3610 . Aiding and Abetting T ort - Essential Factual Elements
[ Name of plaintiff ] claims that [he/she/ nonbinary pr onoun ] was harmed by
[ name of actor ]’ s [ insert tort theory , e.g., assault and battery ] and that
[ name of defendant ] is responsible for the harm because [he/she/ nonbinary
pr onoun ] aided and abetted [ name of actor ] in committing the [ e.g.,
assault and battery ].
If you find that [ name of actor ] committed [a/an] [ e.g., assault and battery ]
that harmed [ name of plaintiff ], then you must determine whether [ name
of defendant ] is also responsible for the harm. [ Name of defendant ] is
responsible as an aider and abetter if [ name of plaintiff ] proves all of the
1. That [ name of defendant ] knew that [a/an] [ e.g., assault and
battery ] was [being/going to be] committed by [ name of actor ]
against [ name of plaintiff ];
2. That [ name of defendant ] gave substantial assistance or
encouragement to [ name of actor ]; and
3. That [ name of defendant ]’s conduct was a substantial factor in
causing harm to [ name of plaintiff ].
Mere knowledge that [a/an] [ e.g., assault and battery ] was [being/going to
be] committed and the failure to pr event it do not constitute aiding and
New April 2008; Revised December 2015
Directions for Use
Give this instruction if the plaintif f seeks to hold a defendant responsible for the tort
of another on a theory of aiding and abetting, whether or not the active tortfeasor is
also a defendant.
Some cases seem to hold that in addition to the elements of knowledge and
substantial assistance, a complaint must allege the aider and abettor had the specific
intent to facilitate the wrongful conduct. (See Schulz v . Neovi Data Corp. (2007)
152 Cal.App.4th 86, 95 [60 Cal.Rptr .3d 810].)
It appears that one may be liable as an aider and abetter of a negligent act. (See
Navarr ete v . Meyer (2015) 237 Cal.App.4th 1276, 1290 [188 Cal.Rptr .3d 623];
Orser v . George (1967) 252 Cal.App.2d 660, 668 [60 Cal.Rptr . 708].)
Sources and Authority
• “The jury was also instructed on aiding and abetting, as follows: ‘A person aids
and abets the commission of a crime when he or she: [¶] (1) W ith knowledge of
the unlawful purpose of the perpetrator , and [¶] (2) W ith the intent or purpose of
committing or encouraging or facilitating the commission of the crime, and [¶]
(3) By act or advice aids, promotes, encourages or instigates the commission of
the crime. [¶] A person who aids and abets the commission of a crime need not
be present at the scene of the crime. [¶] Mere presence at the scene of a crime
which does not itself assist the commission of the crime does not amount to
aiding and abetting. [¶] Mere knowledge that a crime is being committed and the
failure to prevent it does not amount to aiding and abetting.” ( Casella v .
SouthW est Dealer Services, Inc. (2007) 157 Cal.App.4th 1 127, 1 140-1 141 [69
Cal.Rptr .3d 445].)
• “The elements of a claim for aiding and abetting a breach of fiduciary duty are:
(1) a third party’ s breach of fiduciary duties owed to plaintiff; (2) defendant’ s
actual knowledge of that breach of fiduciary duties; (3) substantial assistance or
encouragement by defendant to the third party’ s breach; and (4) defendant’ s
conduct was a substantial factor in causing harm to plaintif f. (Judicial Council of
Cal., Civ . Jury Instns. (CACI) (2014) No. 3610 . . .).” ( Nasrawi v . Buck
Consultants LLC (2014) 231 Cal.App.4th 328, 343 [179 Cal.Rptr .3d 813].)
• “[C]ausation is an essential element of an aiding and abetting claim, i.e., plaintif f
must show that the aider and abettor provided assistance that was a substantial
factor in causing the harm suf fered.” ( American Master Lease LLC v . Idanta
Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1476 [171 Cal.Rptr .3d 548].)
• “The fact the instruction [CACI No. 3610] does not use the word ‘intent’ is not
determinative. ‘California courts have long held that liability for aiding and
abetting depends on proof the defendant had actual knowledge of the specific
primary wrong the defendant substantially assisted. . . . “The words ‘aid and
abet’ as thus used have a well understood meaning, and may fairly be construed
to imply an intentional participation with knowledge of the object to be
attained .” [Citation.]’ A defendant who acts with actual knowledge of the
intentional wrong to be committed and provides substantial assistance to the
primary wrongdoer is not an accidental participant in the enterprise.” ( Upasani v .
State Farm General Ins. Co. (2014) 227 Cal.App.4th 509, 519 [173 Cal.Rptr .3d
784], original italics, internal citations omitted.)
• “As noted, some cases suggest that a plaintif f also must plead specific intent to
facilitate the underlying tort. W e need not decide whether specific intent is a
required element because, read liberally , the fifth amended complaint alleges that
[defendant] intended to assist the Association in breaching its fiduciary duties. In
particular , plaintif fs allege that, with knowledge of the Association’ s breaches,
[defendant] ‘gave substantial encouragement and assistance to [the Association]
to br each its fiduciary duties .’ Fairly read, that allegation indicates intent to
participate in tortious activity .” ( Nasrawi, supra , 231 Cal.App.4th at p. 345,
original italics, internal citations omitted.)
• “[W]e consider whether the complaint states a claim based upon ‘concert of
action’ among defendants. The elements of this doctrine are prescribed in section
876 of the Restatement Second of T orts. The section provides, ‘For harm
resulting to a third person from the tortious conduct of another , one is subject to
CONSPIRACY CACI No. 3610
liability if he (a) does a tortious act in concert with the other or pursuant to a
common design with him, or (b) knows that the other ’ s conduct constitutes a
breach of duty and gives substantial assistance or encouragement to the other so
to conduct himself, or (c) gives substantial assistance to the other in
accomplishing a tortious result and his own conduct, separately considered,
constitutes a breach of duty to the third person.’ W ith respect to this doctrine,
Prosser states that ‘those who, in pursuance of a common plan or design to
commit a tortious act, actively take part in it, or further it by cooperation or
request, or who lend aid or encouragement to the wrongdoer , or ratify and adopt
his acts done for their benefit, are equally liable with him. [para.] Express
agreement is not necessary , and all that is required is that there be a tacit
understanding . . . .’ ” ( Sindell v . Abbott Laboratories (1980) 26 Cal.3d 588, 604
[163 Cal.Rptr . 132, 607 P .2d 924], internal citations omitted.)
• “Liability may . . . be imposed on one who aids and abets the commission of an
intentional tort if the person (a) knows the other ’ s conduct constitutes a breach
of duty and gives substantial assistance or encouragement to the other to so act
or (b) gives substantial assistance to the other in accomplishing a tortious result
and the person’ s own conduct, separately considered, constitutes a breach of duty
to the third person.” ( IIG W ireless, Inc. v . Y i (2018) 22 Cal.App.5th 630,
653-654 [231 Cal.Rptr .3d 771].)
• “Restatement Second of T orts . . . recognizes a cause of action for aiding and
abetting in a civil action when it provides: ‘For harm resulting to a third person
from the tortious conduct of another , one is subject to liability if he [¶] . . . [¶]
(b) knows that the other ’ s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself . . . .’
‘Advice or encouragement to act operates as a moral support to a tortfeasor and
if the act encouraged is known to be tortious it has the same ef fect upon the
liability of the adviser as participation or physical assistance . . . . It likewise
applies to a person who knowingly gives substantial aid to another who, as he
knows, intends to do a tortious act.’ ” ( Schulz, supra , 152 Cal.App.4th at pp.
93-94, internal citations omitted.)
• “California courts have long held that liability for aiding and abetting depends
on proof the defendant had actual knowledge of the specific primary wrong the
defendant substantially assisted . . . . ‘The words “aid and abet” as thus used
have a well understood meaning, and may fairly be construed to imply an
intentional participation with knowledge of the object to be attained .’ ” ( Casey v .
U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1 145-1 146 [26 Cal.Rptr .3d
401], original italics, internal citations omitted.)
• “ ‘Mere knowledge that a tort is being committed and the failure to prevent it
does not constitute aiding and abetting. “As a general rule, one owes no duty to
control the conduct of another . . . .” More specifically , a supervisor is not liable
to third parties for the acts of his or her subordinates.’ ” ( Austin B. v . Escondido
Union School Dist. (2007) 149 Cal.App.4th 860, 879 [57 Cal.Rptr .3d 454],
internal citations omitted.)
CACI No. 3610 CONSPIRACY
• “ ‘In the civil arena, an aider and abettor is called a cotortfeasor . T o be held
liable as a cotortfeasor , a defendant must have knowledge and intent . . . . A
defendant can be held liable as a cotortfeasor on the basis of acting in concert
only if he or she knew that a tort had been, or was to be, committed, and acted
with the intent of facilitating the commission of that tort .’ Of course, a defendant
can only aid and abet another ’ s tort if the defendant knows what ‘that tort’
is . . . . [T]he defendant must have acted to aid the primary tortfeasor ‘with
knowledge of the object to be attained.’ ” ( Casey , supra , 127 Cal.App.4th at p.
1 146, original italics, internal citations omitted.)
• “The concert of action theory of group liability ‘may be used to impose liability
on a person who did not personally cause the harm to plaintif f, but whose
“ ‘[a]dvice or encouragement to act operates as a moral support to a tortfeasor[,]
and if the act encouraged is known to be tortious[,] it has the same ef fect upon
the liability of the adviser as participation or physical assistance. If the
encouragement or assistance is a substantial factor in causing the resulting tort,
the one giving it is himself a tortfeasor and is responsible for the consequences
of the other ’ s act.’ ” ’ The doctrine is likened to aiding and abetting.” ( Navarrete,
supra, 237 Cal.App.4th at p. 1286.)
• “ ‘Despite some conceptual similarities, civil liability for aiding and abetting the
commission of a tort, which has no overlaid requirement of an independent duty ,
dif fers fundamentally from liability based on conspiracy to commit a tort.
[Citations.] “ ‘[A]iding-abetting focuses on whether a defendant knowingly gave
“substantial assistance” to someone who performed wrongful conduct, not on
whether the defendant agreed to join the wrongful conduct.’ ” ’ ” ( Stueve Br os.
Farms, LLC v . Berger Kahn (2013) 222 Cal.App.4th 303, 324 [166 Cal.Rptr .3d
• “ ‘[W]hile aiding and abetting may not require a defendant to agree to join the
wrongful conduct, it necessarily requires a defendant to reach a conscious
decision to participate in tortious activity for the purpose of assisting another in
performing a wrongful act. . . .’ [Citation.] The aider and abetter ’ s conduct need
not, as ‘separately considered,’ constitute a breach of duty .” ( American Master
Lease LLC , supra , 225 Cal.App.4th at pp. 1475-1476.)
• “Nor do we agree with [defendant]’ s contention that there is no evidence she
aided and abetted [tortfeasor]. Her claim is premised on the assertion that the
law in California does not permit liability for aiding and abetting ‘unintentional
conduct’; that [plaintif f] alleged no intentional tort, only that [tortfeasor] acted
negligently , and there is no evidence he intended to harm anyone. She argues,
‘Even if [tortfeasor] inadvertently violated the law against an “exhibition of
speed,” which he did not, [defendant] could not be liable for aiding and abetting
such unintentional conduct.’ However , for purposes of joint liability under a
concert of action theory , it suf f ices that [defendant] assist or encourage
[tortfeasor]’ s breach of a duty , which V ehicle Code section 23109 imposed upon
him (and also upon her not to aid and abet [tortfeasor]).” ( Navarr ete, supra , 237
Cal.App.4th at p. 1290.)
CONSPIRACY CACI No. 3610
• “James too must be held as a defendant because, although he did not fire the
fatal bullet, there is evidence ( which may or may not be suffıcient to pr ove him
liable at the trial ) creating a question for the trier of fact. This evidence
indicates he was firing alternately with V ierra at the same mudhen, in the same
line of fire and possibly tortiously . In other words (to paraphrase the Restatement
. . .), the record permits a possibility James knew V ierra’ s conduct constituted a
breach of duty owed Orser and that James was giving V ierra substantial
‘assistance or encouragement’; also that this was substantial assistance to V ierra
in a tortious result with James’ own conduct, ‘separately considered, constituting
a breach of duty to’ Orser .” ( Orser , supra , 252 Cal.App.2d at p. 668, original
italics; see also Rest. 2d T orts, § 876, Com. on Clause (b), Illustration 6.)
• “Because transferring funds in order to evade creditors constitutes an intentional
tort, it logically follows that California common law should recognize liability
for aiding and abetting a fraudulent transfer .” ( Berger v . V arum (2019) 35
Cal.App.5th 1013, 1025 [248 Cal.Rptr .3d 51].)
Secondary Sources
5 W itkin, Summary of California Law (1 1th ed. 2017) T orts, §§ 149, 150
1 Levy et al., California T orts, Ch. 9, Civil Conspiracy , Concerted Action, and
Related Theories of Joint Liability , §§ 9.01, 9.02 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, Conspiracy , §§ 126.10,
126.1 1 (Matthew Bender)
4 California Points and Authorities, Ch. 46, Conspiracy , § 46.04 (Matthew Bender)
361 1-3699. Reserved for Future Use
CACI No. 3610 CONSPIRACY
Page last reviewed May 2024
Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America.
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