Specific Requirements

Code of Civil Procedure section 607a provides:

“In every case which is being tried before the court with a jury, it shall be the duty of counsel for the respective parties, before the first witness is sworn, to deliver to the judge presiding at the trial and serve upon opposing counsel, all proposed instructions to the jury covering the law as disclosed by the pleadings. Thereafter, and before the commencement of the argument, counsel may deliver to such judge, and serve upon opposing counsel, additional proposed instructions to the jury upon questions of law developed by the evidence and not disclosed by the pleadings. All proposed instructions shall be typewritten, each on a separate sheet of paper. Before the commencement of the argument, the court, on request of counsel, must:

1. decide whether to give, refuse, or modify the proposed instructions;
2. decide which instructions shall be given in addition to those proposed, if any; and
3. advise counsel of all instructions to be given. However, if, during the argument, issues are raised which have not been covered by instructions given or refused, the court may, on request of counsel, give additional instructions on the subject matter thereof.”

Code of Civil Procedure section 647 requires, to preserve an objection to a proposed jury instruction, that a party must, "at the time when the . . . decision . . . is made, or within a reasonable time thereafter, make[] known his position thereon, by objection or otherwise. . . ."

A party in a civil case is "entitled to have the jury instructed as to its theory of the case provided:

1. that it requests and submits legally correct instructions, and
2. that there is sufficient evidence to support the theory."

(Cumbre, Inc. v. State Comp. Ins. Fund (2010) 189 Cal.App.4th 1381, 1387.)

Errors in Jury Instructions

Erroneous or misleading jury instructions may also be a ground for granting a motion for new trial. (Maher v. Saad (2000) 82 Cal.App.4th 1317, 1325; Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 642 [Erroneous failure to instruct may also be ground for a new trial under Code Civ. Proc., Sec. 657(1) for “irregularity in the proceedings”].)

An erroneous refusal to instruct the jury is reversible if it is probable that the error prejudicially affected the verdict. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, at 580.) We independently review contentions that the court erred in instructing the jury. (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) In doing so, and in evaluating any prejudicial impact of the allegedly erroneous instruction, we view the evidence in the light most favorable to the losing party because “we must assume the jury might have believed the evidence upon which the proposed instruction was predicated and might have rendered a verdict in favor of the losing party had a proper instruction been given.” (Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1664.)

Standard of Review for Error in Jury Instructions

When deciding whether an instructional error was prejudicial, we must consider “insofar as relevant:

1. the degree of conflict in the evidence on critical issues;
2. whether respondent's argument to the jury may have contributed to the instruction's misleading effect;
3. whether the jury requested a rereading of the erroneous instruction or of related evidence;
4. the closeness of the jury's verdict; and
5. the effect of other instructions in remedying the error.”

(Morales v. 22nd Dist. Agric. Ass'n (2016) 1 Cal.App.5th 504, 525 citing Soule, supra, 8 Cal.4th at 570–571.)