CACI No. 3934. Damages on Multiple Legal Theories

Judicial Council of California Civil Jury Instructions (2024 edition)

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3934.Damages on Multiple Legal Theories
[Name of plaintiff] seeks damages from [name of defendant] under more
than one legal theory. However, each item of damages may be awarded
only once, regardless of the number of legal theories alleged.
You will be asked to decide whether [name of defendant] is liable to [name
of plaintiff] under the following legal theories [list]:
1. [e.g., breach of employment contract];
2. [e.g., wrongful termination in violation of public policy];
3. [continue].
The following items of damages are recoverable only once under all of
the above legal theories:
1. [e.g., lost past income];
2. [e.g., medical expenses];
3. [continue].
[The following additional items of damages are recoverable only once for
[specify legal theories]:
1. [e.g., emotional distress];
2. [continue].
[Continue until all items of damages recoverable under any legal theory have
been listed.]]
New December 2010
Directions for Use
This instruction is to guide the jury in awarding damages in a case involving
multiple claims, causes of action, or counts in which different damages are
recoverable under different legal theories. It should be used with CACI No. VF-
3920, Damages on Multiple Legal Theories.
This instruction and verdict form are designed to help avoid juror confusion in
filling out the damages table or tables when multiple causes of action, counts, or
legal theories are to be decided and the potential damages are different on some or
all of them. (See, e.g., Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 701-705
[101 Cal.Rptr.3d 773, 219 P.3d 749].) It is not necessary to give this instruction if
the same damages are recoverable on all causes of action, counts, or legal theories,
although giving only the opening paragraph might be appropriate.
First list all of the causes of action, counts, or legal theories that the jury must
address. Then list the items of damages recoverable under all of the theories. Then
list the additional damages that may be awarded on each of the other causes of
action. Each item of damages should be listed somewhere, but only once.
If there are multiple plaintiffs with different claims for different damages, repeat the
entire instruction for each plaintiff except for the opening paragraph.
Often it will be necessary to identify items of damages with considerable specificity.
For example, instead of just “emotional distress,” it may be necessary to specify
“emotional distress from harassment before termination of employment” and
“additional emotional distress because of termination of employment.” (See, e.g.,
Roby,supra, 47 Cal.4th at pp. 701-705.)
Sources and Authority
“Regardless of the nature or number of legal theories advanced by the plaintiff,
he is not entitled to more than a single recovery for each distinct item of
compensable damage supported by the evidence. [Citation.] Double or
duplicative recovery for the same items of damage amounts to overcompensation
and is therefore prohibited. [Citation.] [¶] . . . [¶] In contrast, where separate
items of compensable damage are shown by distinct and independent evidence,
the plaintiff is entitled to recover the entire amount of his damages, whether that
amount is expressed by the jury in a single verdict or multiple verdicts referring
to different claims or legal theories.” (Roby,supra, 47 Cal.4th at p. 702.)
“As for the Court of Appeal’s statement that under the instructions plaintiff was
entitled to recover the same amount of damages under any of plaintiff’s various
theories, we have reviewed the instructions and none of them would preclude a
finding of differing amounts of damage for each theory of recovery. Indeed, as a
matter of logic, it would seem unlikely that plaintiff’s damages from being
defamed by defendants would be identical to the damages he incurred from
being ousted from [the] board of directors. . . . [T]hese theories of recovery
seem based on different ‘primary’ rights and duties of the parties.” (Tavaglione v.
Billings (1993) 4 Cal.4th 1150, 1158 [17 Cal.Rptr.2d 608, 847 P.2d 574.)
“The trial court instructed the jury . . . 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 v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338,
360 [112 Cal.Rptr.3d 455].)
“A special verdict must present the jury’s conclusions of facts, ‘and those
conclusions of fact must be so presented as that nothing shall remain to the
Court but to draw from them conclusions of law.’ In our view, a special verdict
on multiple counts should include factual findings identifying any duplicative
amounts, or a finding as to the total amount of damages eliminating any
duplicative amounts, so as to allow the trial court to avoid awarding duplicative
damages in the judgment.” (Singh,supra, 186 Cal.App.4th at p. 360, internal
citation omitted.)
‘In California the phrase “cause of action” is often used indiscriminately . . .
to mean counts which state [according to different legal theories] the same cause
of action . . . .’ But for purposes of applying the doctrine of res judicata, the
phrase ‘cause of action’ has a more precise meaning: The cause of action is the
right to obtain redress for a harm suffered, regardless of the specific remedy
sought or the legal theory (common law or statutory) advanced. . . . ‘[T]he
“cause of action” is based upon the harm suffered, as opposed to the particular
theory asserted by the litigant. [Citation.] Even where there are multiple legal
theories upon which recovery might be predicated, one injury gives rise to only
one claim for relief. ‘Hence a judgment for the defendant is a bar to a
subsequent action by the plaintiff based on the same injury to the same right,
even though he presents a different legal ground for relief.” [Citations.]’ Thus,
under the primary rights theory, the determinative factor is the harm suffered.
When two actions involving the same parties seek compensation for the same
harm, they generally involve the same primary right.” (Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 798 [108 Cal.Rptr.3d 806, 230 P.3d 342],
original italics, internal citations omitted.)
“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, 760, 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.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1717
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.23 (Matthew
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.50
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.150 (Matthew

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