CACI 3934 Damages on Multiple Legal Theories

California Civil Jury Instructions CACI

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];


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];


[The following additional items of damages are recoverable only once for [specify legal theories]:

1.[e.g., emotional distress];


[Continue until all items of damages recoverable under any legal theory have been listed.]]

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., Robysupra, 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.” (Robysupra, 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.” (Singhsupra, 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 Bender)
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 Bender)