Common law; CACI Nos. 1300, 1301
Assault and battery: two torts, and neither one requires an injury
A claim in California superior courts · Last verified August 26, 2026
These are the two oldest intentional torts, and both are narrower and stranger than people expect.
Battery does not require injury. An offensive touching is enough — spitting, an unwanted grab, a shove that leaves no mark. The interest protected is bodily integrity, not physical health.
Assault requires no contact at all. It is complete when the plaintiff is put in apprehension of an imminent harmful or offensive touching. A punch that misses is an assault; a punch that lands is a battery; most incidents are both.
And the civil claim is entirely separate from the criminal case. A prosecution that never happens, or that ends in acquittal, does not affect the civil claim, which is decided by a preponderance of the evidence rather than beyond a reasonable doubt.
What the claims are
Battery — the defendant intentionally touched you, or caused you to be touched, in a harmful or offensive way, without your consent.
Assault — the defendant acted intending to cause a harmful or offensive contact, or the imminent apprehension of one, and you reasonably believed you were about to be touched that way.
Where the rights come from
Common law. There is no California statute defining the civil torts; the Penal Code definitions are similar but not identical and do not govern the civil claim.
What a plaintiff has to prove
Battery — CACI No. 1300:
- The defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend.
- The plaintiff did not consent.
- The plaintiff was harmed or offended by the contact.
- A reasonable person in the plaintiff's position would have been offended.
Assault — CACI No. 1301:
- The defendant acted intending to cause harmful or offensive contact, or the imminent apprehension of it.
- The plaintiff reasonably believed they were about to be touched in a harmful or offensive manner, or it reasonably appeared the defendant was about to carry out the threat.
- The plaintiff did not consent.
- The plaintiff was harmed, and the defendant's conduct was a substantial factor.
Note the numbering runs backwards from what you would guess — battery is 1300 and assault is 1301, even though assault ordinarily precedes battery in the sequence of events.
Intent means intending the contact or the apprehension, not intending the harm. A defendant who meant to touch and did not expect injury has still committed a battery.
And the contact need not be with the body. Touching something closely connected to the plaintiff — knocking a plate from their hand, grabbing a bag they are carrying — is a battery.
Words alone are generally not an assault. There must be an apparent present ability to carry out the threat, and the apprehension must be of an imminent contact. A threat about next week is not an assault.
How long you have to file — and this is where California has moved
Two years for the ordinary claim, under CCP § 335.1.
Three years for domestic violence, under CCP § 340.15 — from the last act of domestic violence, or from when the plaintiff discovered or should have discovered the injury and its cause, whichever is later.
Ten years for sexual assault, under CCP § 340.16 — an action for recovery of damages suffered as a result of sexual assault committed against a plaintiff who was an adult at the time must be commenced within ten years of the last act, or within three years of discovering that an injury or illness resulted from the assault, whichever is later.
That is a substantial expansion from the ordinary two years, and it reflects a deliberate legislative judgment about when these claims surface. Childhood sexual assault has its own separate and longer scheme, and revival windows have opened and closed in recent years — verify the current provisions before concluding a claim is barred, because this area has moved repeatedly and the answer depends on the plaintiff's age at the time and the date of the conduct.
Six months to present a government claim where a public entity or employee is a defendant — which is the controlling deadline in any excessive force case, whatever the underlying period.
Tolling for minority and incapacity applies under CCP § 352.
What has to happen before you file
Nothing, against a private defendant.
Against a public entity or peace officer: the Government Claims Act six-month presentation requirement, and it must be pleaded and proved. That is the deadline that ends most civil claims arising from a police encounter, and it runs while the criminal case is still pending.
There is no requirement that a criminal case be brought, or concluded, first. A civil claim may be filed regardless — though a defendant facing prosecution will often seek a stay of the civil case to protect against self-incrimination.
Who can be sued — and who cannot
The person who did it, and anyone who directed, aided, or encouraged it.
An employer, vicariously, where the assault or battery occurred within the scope of employment — which is a real limit. Conduct arising from a purely personal dispute generally falls outside it, while force used in the course of doing the job may not.
A public entity, vicariously under Government Code § 815.2, for the acts of its employees within the scope of employment.
A peace officer who used unreasonable force. Reasonable force is privileged, so the civil claim against an officer is in substance a claim that the force exceeded what was reasonable — the same question the federal excessive force claim asks, which is why the two are pleaded together with the Bane Act.
Not a defendant who was privileged, which is the category the defenses below define.
Common defenses
Consent, express or implied. This is the most important defense and it is broader than it sounds — participants in contact sports consent to contact within the rules and to some outside them; medical patients consent to procedures they authorised.
But consent has limits. Consent obtained by fraud is no consent. Exceeding the scope of consent is a battery — a surgeon who performs a different operation commits one, which is a distinct theory from lack of informed consent and carries different rules.
Self-defense, and defense of others — reasonable force to prevent imminent harm, proportionate to the threat, and only while the threat continues.
Defense of property, which permits reasonable force but not deadly force to protect property alone.
The shopkeeper's privilege, permitting a merchant with probable cause to detain a suspected shoplifter for a reasonable time in a reasonable manner to investigate.
Lawful authority — a peace officer using reasonable force, or a citizen's arrest properly made.
Comparative fault, which reduces rather than bars recovery, though its application to intentional torts is limited.
Workers' compensation exclusivity, for a battery between coworkers arising out of employment — with the same exceptions that apply to emotional distress claims.
The limitations period, and the Government Claims Act where a public defendant is involved.
What the claim pays
Nominal damages, where the touching was offensive but caused no measurable harm. The bare invasion of bodily integrity is actionable.
Medical expenses, lost earnings, and future care.
Pain and suffering and emotional distress, which are the substance of most of these claims and are recoverable without any separate emotional distress cause of action.
Punitive damages under Civil Code § 3294 on clear and convincing proof of oppression, fraud, or malice — and an intentional battery frequently supplies it, which is the main reason to plead the intentional tort rather than negligence. Not available against a public entity, though available against an individual officer.
Statutory enhancements where a civil rights statute is pleaded alongside: the Bane Act and Ralph Act both attach treble damages with a $4,000 minimum and attorney's fees to conduct that would otherwise pay only compensatory damages.
No fee-shifting on the common law claims themselves.
Jury trial: yes.
A note on death cases. Where the victim died, the claim splits: a survival action under CCP § 377.30 for what the decedent suffered, and a wrongful death claim under CCP § 377.60 for the heirs' own loss. Since January 1, 2026, a survival action can no longer recover the decedent's pain and suffering — see CCP § 377.34.
What people get wrong
"I wasn't injured, so there's no claim." Battery requires an offensive touching, not an injury. Nominal damages are available.
"They never touched me." Then it may be assault, which requires no contact — only a reasonable apprehension of imminent contact.
"They threatened me over the phone." Generally not an assault. The apprehension must be of imminent contact, and there must be an apparent present ability to carry it out.
"The prosecutor declined to file, so I have no case." The civil claim is independent and uses a lower standard of proof.
"I have two years." Two for an ordinary claim, three for domestic violence, and ten for sexual assault against an adult — and six months to present a government claim if a public entity is involved.
"I consented to the surgery, so there's no battery." Not if the surgeon exceeded the scope of what you authorised.
"I can use force to protect my property." Reasonable force, yes. Deadly force to protect property alone, no.
"The officer was doing their job." Reasonable force is privileged. Unreasonable force is a battery, and it is usually pleaded with the Bane Act and the federal claim.
Where they came from
Assault and battery are among the earliest actions the common law recognised, and their structure still reflects what they were for: keeping the peace. Battery was actionable without injury because the alternative to a legal remedy for an insult was a private one, and the law preferred a lawsuit to a feud. That is why an offensive touching with no harm remains actionable a thousand years later.
California inherited them intact and has changed almost nothing about the elements. What has changed, and substantially, is the time allowed to sue.
The limitations periods have been extended repeatedly in one direction only. Sexual assault against an adult moved from the ordinary personal injury period to ten years, with a discovery alternative; domestic violence to three; childhood sexual assault to a separate and far longer scheme, punctuated by revival windows that reopened expired claims outright.
Those changes rest on a factual judgment rather than a doctrinal one — that the ordinary two-year period was calibrated to injuries a plaintiff recognises and acts on immediately, and that these are not those injuries. It is the clearest example in California tort law of the Legislature adjusting a deadline to match how a particular harm is experienced.
Common questions
Do I have to be injured to sue for battery?
No. An offensive touching is enough, and nominal damages are available without any physical harm. The tort protects bodily integrity rather than health.
They swung and missed. Is that anything?
Yes — that is assault, which requires no contact at all, only that you reasonably believed a harmful or offensive touching was about to happen.
How long do I have to sue?
Two years for an ordinary claim. Three years for domestic violence. Ten years for sexual assault against an adult, or three years from discovering the injury resulted from it, whichever is later. If a public entity is involved, you have six months to present a government claim.
The district attorney did not file charges. Can I still sue?
Yes. The civil claim is independent of any prosecution and requires only a preponderance of the evidence rather than proof beyond a reasonable doubt.
Can I sue a police officer?
Yes, where the force was unreasonable — reasonable force is privileged. These claims are normally pleaded with the Bane Act and a federal civil rights claim, and the six-month government claim deadline applies to the state claims.
Can I use force to defend my property?
Reasonable force, yes. Deadly force to protect property alone, no.