Assault and Battery

This page details CA’s civil assault and battery law. This page gives basic information to seriously injured victims of assault or battery. The information on this page is not a substitute for speaking with a personal injury attorney, but it will help you to understand some legal basics before your consultation.

This page covers:

  • What is assault and battery?
  • The differences between criminal and civil assault and battery
  • Who is responsible in assault and battery cases?
  • What can you recover in an assault and battery claim?
  • What to do if you’re the victim of an assault and battery
  • The statute of limitations
  • Consulting an assault and battery attorney

What is Assault and Battery?

The phrase “assault and battery” is well-known to the everyday person, but very few realize that assault and battery are actually two separate legal claims.


Assault occurs if someone intentionally tries to hit you, you believe that they mean to hit you, and, for whatever reason, they do not. Think of someone pointing picking up a hammer, swinging it at you, but missing. If you trip trying to get away and severely injury your head, you’ve suffered an injury due to assault.

The essential elements . . . for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (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. So v. Shin


Battery is very similar to assault, except that the bad guy does not miss you. He must actually make contact with you. So, how can there be battery without assault?  The easiest example to understand would be when the defendant intends to cause you harm from behind. In this instance, you did not believe they were about to touch you because you never saw the defendant coming which is an essential part to assault.

Civil vs. Criminal Assault and Battery

As mentioned above, assault and battery can be brought as both a criminal and a civil claim. The most important thing to note is that bringing one does not prevent the other from bringing brought as well, but there are also three other major differences noted as follows:

  • Who can bring assault and battery claims?
    • Civil – Your San Diego personal injury attorney will file this lawsuit in civil court for you.
    • Criminal – The District Attorney’s office will have to file this claim. Your private attorney and you will have very little, if any, influence over whether this is filed.
  • The standard of proof
    • Civil – Your attorney only needs convince a nine out of twelve jurors that the bad guy, more likely than not, committed the act. This is called a “preponderance of evidence.”
    • Criminal – There is a higher burden of proof that must be met. All 12 jurors must believe that the defendant is guilty “beyond a reasonable doubt” in criminal assault and battery.
  • The penalties
    • Civil – The damages in an assault and battery lawsuit try to “make you whole,” to put you back to where the event never occurred. This could amount to economic damages, emotional distress, medical expenses, and possibly more.
    • Criminal – CA Penal Code 241 sets the penalty for assault at a fine not exceeding $1,000, by 6 months of maximum prison time, or both. Battery’s penalty, located in CA Penal Code 243, is punishable with no more than a $2,000 fine, 6 months of maximum prison time, or both. Please note that these have different factors that may adjust the numbers or time in prison and that the fine included DOES NOT go to you.

Assault and Battery | San Diego Personal Injury Lawyer

Liability in Assault and Battery

One obvious answer as to who is responsible for an assault and battery is the bad-guy assailant. However, the owner of the property where the assault or batter occurred may also be liable under “premises liability.” Premises liability essentially says that the owner of the property owes a duty to anyone on their property to keep it reasonably safe.

For example, if a business has a poorly lit parking lot, and knows that dangerous people live nearby, and are mugged and assaulted in the parking lot, the business may be liable for some of your damages. Premises liability can be extremely complicated, so if you think that the area in which the assault occurred was not as safe as it should have been, you should contact an attorney.

Comparative Fault

Another factor that may come into play in your assault and battery claim is a concept called “pure comparative negligence.” The principles of pure comparative negligence were adopted by CA in 1978[1] and analyze to what extent the victim was responsible for bringing on the injury. The jury may decide upon a percentage of blame and reduce your compensation accordingly. For example, if you instigate a bar fight, but don’t throw a single punch, the jury may say you were 25% responsible for the bad guy punching you. Your recovery will be reduced by 25%.

What Should You do if You Are the Victim of an Assault and Battery?

As with any injury, the first thing you should do is call 911. You may need medical assistance. Make sure you file a police report as soon as possible detailing exactly how the injury occurred. If you can, write or record anything you can remember about the assailants. If there are witnesses, be sure to get their contact information as their testimony will prove useful in your case. If possible, take pictures of the scene. Finally, contact an experienced attorney.

The Statute of Limitations

The time limit to file your claim is two years. CA’s Code of Civil Procedure § 335.1. The statute of limitations for any lawsuit is extremely important, so we recommend that you contact an  attorney as soon as possible. While we recognize that healing process may take a long time, both mentally and physically, the court system does not accept that as an excuse for missing this deadline. We highly recommend that you call a lawyer immediately.

Free Consultations & Contingency Fees

If you or a loved one are the victims of an assault and battery, you should contact our attorney to review your case. We provide hope for seriously injured people. Our personal injury office in San Diego handles these types of claims.

Furthermore, you will not be charged a penny upfront if our attorney takes on your case as we are paid on a contingency fee. The attorney will not recover this fee unless you win or settle your case. Additionally, your attorney will cover the costs of your lawsuit and recover these from the settlement or verdict.

[1] Daly v. General Motors Corp. (1978) 20 Cal.3d 725