Failure to Mitigate Damages Law Definition Defense Elements Lawyer

Definition

The doctrine of mitigation of damages holds that a plaintiff who suffers damage as a result of a breach of contract has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided. (Agam v. Gavra (2015) 236 Cal.App.4th 91, 111.)


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The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice or surrender important and valuable rights. (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.)

Burden on the Defendant

The burden of proving a plaintiff failed to mitigate damages is on the defendant. (Agam v. Gavra (2015) 236 Cal.App.4th 91, 111.) “The burden of proving that losses could have been avoided by reasonable effort and expense must always be borne by the party who has broken the contract. Inasmuch as the law denies recovery for losses that can be avoided by reasonable effort and expense, justice requires that the risks incident to such effort should be carried by the party whose wrongful conduct makes them necessary. Therefore, special losses that a party incurs in a reasonable effort to avoid losses resulting from a breach are recoverable as damages. (Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460-461.)


Factual Determination

Whether a plaintiff acted reasonably to mitigate damages is a factual matter to be determined by the trier of fact. (Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460.)


Plaintiff’s Duty to Take Reasonable Steps to Mitigate

A plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided. (Agam v. Gavra (2015) 236 Cal.App.4th 91; Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41.)

A party injured by a breach of contract is required to do everything reasonably possible to negate his own loss and thus reduce the damages for which the other party has become liable. The plaintiff cannot recover for harm he could have foreseen and avoided by such reasonable efforts and without undue expense. However, the injured party is not precluded from recovery to the extent that he has made reasonable but unsuccessful efforts to avoid loss. (Branond & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460.

Breach of Contract Duty to Mitigate

The doctrine of mitigation of damages holds that a plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided. A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion. Valle De Oro Bank v. Gamboa, 26 Cal. App. 4th 1686.

Breach of Lease: Landlord Duty to Mitigate in

A lessor, injured by breach of a contract must mitigate his damages. However, the burden is on the lessee to prove that the lessor failed to mitigate. Polster, Inc. v. Swing, 164 Cal. App. 3d 427.

Under Cal. Civ. Code § 1951.2, applicable where the tenant abandons the property before the end of term, the duty to mitigate the damages will often require that the property be re-let at a rent that is more or less than the rent provided in the original lease. The test in each case is whether the lessor acted reasonably and in good faith in re-letting the property. Polster, Inc. v. Swing, 164 Cal. App. 3d 427.

Personal Injury Duty to Mitigate

“It has been the policy of the courts to promote the mitigation of damages. The doctrine applies in tort, wilful as well as negligent. A plaintiff cannot be compensated for damages which he could have avoided by reasonable effort or expenditures.” (Green v. Smith (1968) 261 Cal.App.2d 392, 396 [67 Cal.Rptr. 796], internal citations omitted.)


“The frequent statement of the principle in the terms of a ‘duty’ imposed on the injured party has been criticized on the theory that a breach of the ‘duty’ does not give rise to a correlative right of action. It is perhaps more accurate to say that the wrongdoer is not required to compensate the injured party for damages which are avoidable by reasonable effort on the latter’s part.” (Green, supra, 261 Cal.App.2d at p. 396, internal citations omitted.)


“The reasonableness of the efforts of the injured party must be judged in the light of the situation confronting him at the time the loss was threatened and not by the judgment of hindsight. The fact that reasonable measures other than the one taken would have avoided damage is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. ‘If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen.’ The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law. It is sufficient if he acts reasonably and with due diligence, in good faith.” (Green, supra, 261 Cal.App.2d at pp. 396–397, internal citations omitted.)


“The correct rule is that an injured person must use reasonable diligence in caring for his injuries. What is reasonable diligence depends upon all the facts and circumstances of each case. There is no hard and fast rule that the injured person must seek medical care of a particular type. Self-care may be reasonable under the circumstances, and the jury should be so instructed where that factor is relevant.” (Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 346 [112 P.2d 723], internal citations omitted.)


 ‘The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32 Cal.Rptr.2d 329], internal citations omitted.)


“The duty to minimize damages does not require an injured person to do what is unreasonable or impracticable, and, consequently, when expenditures are necessary for minimization of damages, the duty does not run to a person who is financially unable to make such expenditures.” (Valencia v. Shell Oil Co. (1944) 23 Cal.2d 840, 846 [147 P.2d 558], internal citations omitted.)


“Contributory negligence was closely allied and easily confused with the rule of mitigation of damages, on which the jury was also instructed. Both doctrines involved the plaintiff’s duty to act reasonably. Contributory negligence was concerned with the plaintiff’s negligence before being injured, while the mitigation rule was concerned with a lack of due care after the injury. The effect of contributory negligence was to bar all recovery by the plaintiff. In contrast, a plaintiff’s failure to mitigate barred recovery of only the portion of damages which could have been avoided by ordinary care after the injury.” (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 874–875 [148 Cal.Rptr. 355, 582 P.2d 946], internal citations omitted.)


The rule of [mitigation of damages] comes into play after a legal wrong has occurred, but while some damages may still be averted … .’ ” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066 [232 Cal.Rptr. 528, 728 P.2d 1163], internal citations omitted.)


“[W]hile the burden of proving the extent of injury … actually incurred as a result of a defendant’s tortious conduct lies with the plaintiff, the burden of proving the plaintiff failed to act reasonably in limiting his or her consequential damages—that is, failed to mitigate damages—is on the defendant … .” (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 97 [101 Cal.Rptr.3d 303].)


“One who contributes to damage cannot escape liability because the proportionate contribution may not be accurately measured. It is incumbent upon the party alleging injury to prove the amount of damages. Respondent sustained that burden in this case. If the damages proven could be reduced proportionately, that burden rested upon appellant.” (Oakland v. Pacific Gas & Electric Co. (1941) 47 Cal.App.2d 444, 450 [118 P.2d 328], internal citations omitted.)


“It is true that plaintiff is in duty bound to minimize his damage in any way that he reasonably can, and if he negligently refuses to do so he cannot recover for that which he might have prevented. It is for appellant to establish that the steps taken by plaintiff to so minimize his loss or damage falls short of the obligation so fixed. In other words, the burden is on defendant to establish matters asserted by him in mitigation or reduction of the amount of plaintiff’s damage, and defendant here has not met that burden.” (McNary v. Hanley (1933) 131 Cal.App. 188, 190 [20 P.2d 966].)

Duty to Mitigate Damages for Future Lost Earnings

“A plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568 [54 Cal.Rptr.2d 468].)


“It is the employer’s burden ‘to affirmatively prove failure to mitigate as an affirmative defense.’ ” (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 871 [136 Cal.Rptr.3d 259].)


“Whether a plaintiff acted reasonably to mitigate damages, however, is a factual matter to be determined by the trier of fact, and is reviewed under the substantial evidence test.” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 884 [164 Cal.Rptr.3d 811].)


“The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided.’ A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion. The duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable. ‘The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32 Cal.Rptr.2d 329], internal citations omitted.)


“Had plaintiff actually retired and taken her retirement pension, we are convinced the trial court would have been required to exclude evidence of plaintiff’s retirement benefits as a collateral source. … [¶] It seems to us to make little sense to allow introduction into evidence of retirement benefits that plaintiff never received on the issue of mitigation where such evidence would have been precluded under the collateral source rule had she actually received the benefits. It appears the court viewed the issue as one of fact, akin to the question whether plaintiff made reasonable efforts to mitigate her damages by seeking comparable or substantially similar employment.” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 877.)

Duty to Mitigate Damages for Past Lost Earnings

“A plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568.


“The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided.’ A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion. The duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable. ‘The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.


“Whether a plaintiff acted reasonably to mitigate damages, however, is a factual matter to be determined by the trier of fact, and is reviewed under the substantial evidence test. The burden of proving a plaintiff failed to mitigate damages, however, is on the defendant, not the other way around.” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 884.

Homeowner Unreasonable Failure to Minimize or Prevent Damage

Right to Repair Act Affirmative Defense of Homeowner’s Failure to Mitigate. Civil Code section 945.5(b).


Although the Act establishes various maximum time periods in which the builder may respond, inspect, offer to repair, and commence repairs, the builder avails itself of the full time allowed by the Act at its peril. The builder is liable for the damages its construction defects cause, and even when a homeowner has acted unreasonably in failing to limit losses, the builder remains liable for ‘damages due to the untimely or inadequate response of a builder to the homeowner’s claim.’ (§ 945.5, subd. (b).) What constitutes a timely response will vary according to the circumstances, and the maximum response periods set forth by the Act do not necessarily insulate a builder from damages when the builder has failed to take remedial action as promptly as is reasonable under the circumstances. The Act’s liability provisions thus supply builders and homeowners clear incentives to move quickly to minimize damages when alerted to emergencies.” (McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 257–258 [227 Cal.Rptr.3d 191, 408 P.3d 797].)

Mitigation of Damages (Property Damage)

“It has been the policy of the courts to promote the mitigation of damages. The doctrine applies in tort, wilful as well as negligent. A plaintiff cannot be compensated for damages which he could have avoided by reasonable effort or expenditures.” (Green v. Smith (1968) 261 Cal.App.2d 392, 396 [67 Cal.Rptr. 796], internal citations omitted.)

“The frequent statement of the principle in the terms of a ‘duty’ imposed on the injured party has been criticized on the theory that a breach of the ‘duty’ does not give rise to a correlative right of action. It is perhaps more accurate to say that the wrongdoer is not required to compensate the injured party for damages which are avoidable by reasonable effort on the latter’s part.” (Green, supra, 261 Cal.App.2d at p. 396, internal citations omitted.)

“The reasonableness of the efforts of the injured party must be judged in the light of the situation confronting him at the time the loss was threatened and not by the judgment of hindsight. The fact that reasonable measures other than the one taken would have avoided damage is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. ‘If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen.’ The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law. It is sufficient if he acts reasonably and with due diligence, in good faith.” (Green, supra, 261 Cal.App.2d at pp. 396–397, internal citations omitted.)

“A plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided. Here the jury determined that 25 percent of the ‘property damage to the house’ could have been avoided. That damage was measured by the cost of repair, i.e., $130,000. The court was obligated to give effect to the jury’s finding and reduce this aspect of the award to $97,500.” (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41 [21 Cal.Rptr.2d 110], internal citations omitted.)

“A plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts. Thrifty-Tel’s only response is that mitigation does not ‘ “require a complex series of doubtful acts and expenditures.” ’ Picking up the telephone to reach out and touch the Bezeneks or sending them a letter was complex, doubtful, or expensive? Based on Myron Bezenek’s unchallenged testimony, we must presume that simple expedient would have averted the second hacking episode. Accordingly, Thrifty-Tel is not entitled to recover damages for the February 1992 event.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568–1569 [54 Cal.Rptr.2d 468], internal citations omitted.)

“Contributory negligence was closely allied and easily confused with the rule of mitigation of damages, on which the jury was also instructed. Both doctrines involved the plaintiff’s duty to act reasonably. Contributory negligence was concerned with the plaintiff’s negligence before being injured, while the mitigation rule was concerned with a lack of due care after the injury. The effect of contributory negligence was to bar all recovery by the plaintiff. In contrast, a plaintiff’s failure to mitigate barred recovery of only the portion of damages which could have been avoided by ordinary care after the injury.” (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 874–875 [148 Cal.Rptr. 355, 582 P.2d 946], internal citations omitted.)

‘The rule of [mitigation of damages] comes into play after a legal wrong has occurred, but while some damages may still be averted … .’ ” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066 [232 Cal.Rptr. 528, 728 P.2d 1163], internal citations omitted.)

“Generally, ‘[a] person injured by the wrongful act of another is bound … to exercise reasonable care and diligence to avoid loss or minimize the resulting damages and cannot recover for losses which might have been prevented by reasonable efforts and expenditures on his part.’ The burden of proving facts in mitigation of damages rests upon the defendant.” (Hunter v. Croysdill (1959) 169 Cal.App.2d 307, 318 [337 P.2d 174], internal citations omitted.)

“One who contributes to damage cannot escape liability because the proportionate contribution may not be accurately measured. It is incumbent upon the party alleging injury to prove the amount of damages. Respondent sustained that burden in this case. If the damages proven could be reduced proportionately, that burden rested upon appellant.” (Oakland v. Pacific Gas & Electric Co. (1941) 47 Cal.App.2d 444, 450 [118 P.2d 328], internal citations omitted.)

Restatement Second of Torts section 918 provides:

(1)Except as stated in Subsection (2), one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.

(2)One is not prevented from recovering damages for a particular harm resulting from a tort if the tortfeasor intended the harm or was aware of it and was recklessly disregardful of it, unless the injured person with knowledge of the danger of the harm intentionally or heedlessly failed to protect his own interests.