California Civil Jury Instructions (CACI)

361. Plaintiff May Not Recover Duplicate Contract and Tort Damages

[Name of plaintiff] has made claims against [name of defendant] for breach of contract and [insert tort action]. If you decide that [name of plaintiff] has proved both claims, the same damages that resulted from both claims can be awarded only once.

New September 2003; Revised December 2010

Directions for Use

This instruction may be used only with a general verdict. (See Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 360–361 [112 Cal.Rptr.3d 455].) For an instruction to be used with a special verdict and special verdict form, see CACI No. 3934, Damages on Multiple Legal Theories, and CACI No. VF-3920, Damages on Multiple Legal Theories.

If the issue of punitive damages is not bifurcated, read the following instruction: “You may consider awarding punitive damages only if [name of plaintiff] proves [his/her/its] claim for [insert tort action].”

Sources and Authority

  • “Here the jury was properly instructed that it could not award damages under both contract and tort theories, but must select which theory, if either, was substantiated by the evidence, and that punitive damages could be assessed if defendant committed a tort with malice or intent to oppress plaintiffs, but that such damages could not be allowed in an action based on breach of contract, even though the breach was wilful.” (Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 336–337 [5 Cal.Rptr. 686, 353 P.2d 294].)
  • “Ordinarily, a plaintiff asserting both a contract and tort theory arising from the same factual setting cannot recover damages under both theories, and the jury should be so instructed. Here, the court did not specifically instruct that damages could be awarded on only one theory, but did direct that punitive damages could be awarded only if the jury first determined that appellant had proved his tort action.” (Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 761, fn. 13 [250 Cal.Rptr. 195], internal citation omitted.)
  • “The trial court would have been better advised to make an explicit instruction that duplicate damages could not be awarded. Indeed, it had a duty to do so.” (Dubarry International, Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552, 565, fn. 16 [282 Cal.Rptr. 181], internal citation omitted.)
  • “The trial court instructed the jury, with CACI No. 361, that [plaintiff] could not be awarded duplicative damages on different counts, thus suggesting that it was the jury’s responsibility to avoid awarding duplicative damages. But neither the instructions nor the special verdict form told the jury how to avoid awarding duplicative damages. With a single general verdict or a general verdict with special findings, where the verdict includes a total damages award, the jury presumably will follow the instruction (such as the one given here) and ensure that the total damages award includes no duplicative amounts. A special verdict on multiple counts, however, is different. If the jury finds the amount of damages separately for each count and does not calculate the total damages award, as here, the jury has no opportunity to eliminate any duplicative amounts in calculating the total award. Absent any instruction specifically informing the jury how to properly avoid awarding duplicative damages, it might have attempted to do so by finding no liability or no damages on certain counts, resulting in an inconsistent verdict.” (Singh, supra, 186 Cal.App.4th at p. 360.)

Secondary Sources

15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.50 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or Opposing Damages in Contract Actions, 7.06