The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Assault

1 Elements and Case Citations

  1. Defendant acted with intent to cause, or threatened to cause harmful or offensive contact;
  2. Plaintiff reasonably believed the harmful or offensive contact was imminent;
  3. Plaintiff did not consent to Defendant’s conduct;
  4. Plaintiff was harmed; and
  5. Defendant’s conduct was a substantial factor in causing Plaintiff’s harm.

CALIFORNIA STATE COURTS

California 2d Dist.: So v. Shin, 212 Cal. App. 4th 652, 668-69 (2013).

California 4thDist.: Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 1603-04 (2012).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007).

Eastern District:  Burgess v. Raya, No. 1:11-cv-00921-LJO-JLT (PC), 2013 U.S. Dist. LEXIS 116738, at *12 (E.D. Cal. Aug. 15, 2013).

Northern District: Linder v. City of Emeryville, No. C-13-1934 EDL, 2013 U.S. Dist. LEXIS 113535, at *16 (N.D. Cal. Aug. 6, 2013).

Southern District:  Steel v. City of San Diego, 726 F. Supp. 2d 1172, 1189 (D. Cal. 2010).

2 Defenses to Claim for Assault

(1)   Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter 1 for all defenses.

(2)   Statute of Limitations: Cal. Code Civ. Proc. § 335.1 (two years).

(3)   Self-Defense:  Self-defense is an affirmative defense in civil actions.  See Bartosh v. Banning, 251 Cal. App. 2d 378, 386 (1967).  A defendant may use necessary force to protect oneself against unlawful injury.  The permissible degree of force is determined by what a reasonable person would deem necessary in the defendant’s circumstances.  The defendant has the burden the self-defense was justified.  Boyer v. Waples, 206 Cal. App. 2d 725, 727 (1962).

(4)   Defense of Others: Defendant may use necessary force to protect third party individuals against unlawful injury.  The necessary degree of force is determined by Defendant’s subjective point of view. Lopez v. Surchia, 112 Cal. App. 2d 314, 317 (1952).

(5)   Defense of Property: A defendant may use any force necessary to protect against unlawful injury to his own property by a trespasser, or the property of a relative, ward, servant, master or guest.  Livesey v. Stock, 208 Cal. 315, 317 (1929).  However, the defendant must first warn the trespasser to desist before using force.  Chapell v. Schmidt, 104 Cal. 511, 514 (1894).

(6)   Consent: The plaintiff’s consent is a defense to assault, whether the consent is expressly given or implied by conduct.  Kritzer v. Citron, 101 Cal. App. 2d 33, 39 (1950); cf. Cal. Civ. Code § 1581 (“Consent can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication.”).  “He who consents to an act is not wronged by it.”  Cal. Civ. Code § 3515.  “The burden is on plaintiff to prove lack of consent.”  Barouh v. Haberman, 26 Cal. App. 4th 40, 47 n.6 (1994).

(7)   Words are Insufficient: Words alone are insufficient to constitute an assault, even if profane or threatening.  Tomblinson v. Nobile, 103 Cal. App. 2d 266, 270 (1951).

(8)   Workers’ Compensation Preemption:  “An assault in the workplace is compensable under the workers’ compensation laws where, ‘the subject matter of the dispute involves the work itself.’ . . . If an injury is compensable under the workers’ compensation laws, then recovery under those laws is generally the worker’s only remedy against both his coworkers . . . and his employer . . . .  An exception to the exclusive remedy rule is provided in [Labor Code] section 3601, subdivision (a)(1), which allows a civil suit against another employee for injury or death ‘proximately caused by the willful and unprovoked physical act of aggression of the other employee.’”  Soares v. City of Oakland, 9 Cal. App. 4th 1822, 1825 (1992).
No Defense of Contributory Negligence:  Because assault and battery are intentional torts, “[a]s between the guilty aggressor and the person attacked the former may not shield himself behind the charge that his victim may have been guilty of contributory negligence, for such a plea is unavailable to him.”  Bartosh v. Banning, 251 Cal.App.2d 378, 385 (1967).