CACI No. 3934. Damages on Multiple Legal Theories

Judicial Council of California Civil Jury Instructions (2017 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
fillin 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
specificit . 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
findin 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 find 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 specificall informing the
jury how to properly avoid awarding duplicative damages, it might have
attempted to do so by findin 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 finding identifying any duplicative
amounts, or a findin 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 specifi 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 specificall instruct that
damages could be awarded on only one theory, but did direct that punitive
damages could be awarded only if the jury firs 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 (10th ed. 2005) Torts, § 1550
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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