CACI No. 336. Affirmative Defense - Waiver

Judicial Council of California Civil Jury Instructions (2025 edition)

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336.Affirmative Defense - Waiver
[Name of defendant] claims that [he/she/nonbinary pronoun/it] did not have
to [insert description of performance] because [name of plaintiff] gave up
[his/her/nonbinary pronoun/its] right to have [name of defendant] perform
[this/these] obligation[s]. This is called a “waiver.”
To succeed, [name of defendant] must prove both of the following by clear
and convincing evidence:
1. That [name of plaintiff] knew [name of defendant] was required to
[insert description of performance]; and
2. That [name of plaintiff] freely and knowingly gave up [his/her/
nonbinary pronoun/its] right to have [name of defendant] perform
[this/these] obligation[s].
A waiver may be oral or written or may arise from conduct that shows
that [name of plaintiff] gave up that right.
If [name of defendant] proves that [name of plaintiff] gave up
[his/her/nonbinary pronoun/its] right to [name of defendant]’s performance
of [insert description of performance], then [name of defendant] was not
required to perform [this/these] obligation[s].
New September 2003
Directions for Use
This issue is decided under the “clear and convincing” standard of proof. See CACI
No. 201, Highly Probable - Clear and Convincing Proof.
Sources and Authority
• “Waiver is the intentional relinquishment of a known right after knowledge of
the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422].)
• “ ‘ “The waiver may be either express, based on the words of the waiving party,
or implied, based on conduct indicating an intent to relinquish the right.
[Citation.]” [Citation.] Thus, “California courts will find waiver when a party
intentionally relinquishes a right or when that party’s acts are so inconsistent
with an intent to enforce the right as to induce a reasonable belief that such right
has been relinquished.” [Citation.]’ [Citation.]” (Wind Dancer Production Group
v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78 [215 Cal.Rptr.3d 835].)
• “Acceptance of benefits under a lease is conduct that supports a finding of
waiver.” (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179
[120 Cal.Rptr.3d 943], internal citations omitted.)
• “Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
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no disputed facts and only one reasonable inference may be drawn, the issue can
be determined as a matter of law.’ ” (DuBeck v. California Physicians’ Service
(2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• When the injured party with knowledge of the breach continues to accept
performance from the guilty party, such conduct may constitute a waiver of the
breach. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435,
440-441 [6 P.2d 71].)
• There can be no waiver where the one against whom it is asserted has acted
without full knowledge of the facts. It cannot be presumed, in the absence of
such knowledge, that there was an intention to waive an existing right. (Craig v.
White (1921) 187 Cal. 489, 498 [202 P. 648].)
• “[N]otwithstanding a provision in a written contract that expressly precludes oral
modification, the parties may, by their words or conduct, waive the enforcement
of a contract provision if the evidence shows that was their intent.” (Wind
Dancer Production Group, supra, 10 Cal.App.5th at p. 80.)
• “The burden, moreover, is on the party claiming a waiver of a right to prove it
by clear and convincing evidence that does not leave the matter to speculation,
and ‘doubtful cases will be decided against a waiver’.” (City of Ukiah v. Fones
(1966) 64 Cal.2d 104, 107-108 [48 Cal.Rptr. 865, 410 P.2d 369].)
• “The trial court correctly instructed the jury that the waiver of a known right
must be shown by clear and convincing proof.” (DRG/Beverly Hills, Ltd. v.
Chopstix Dim Sum Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35
Cal.Rptr.2d 515].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 881, 882
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57,
140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08, 22.65, 22.68
CONTRACTS CACI No. 336
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