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Brumfield v. Richardson2/19/2002
invokes the election of remedies doctrine to imply that the Brumfields suffered no prejudice as a result of the court's decision not to instruct on their breach of contract and fraudulent misrepresentation claims, as the court afforded the Brumfields an adequate remedy by allowing the jury to decide the negligence claim, and the court merely accelerated the inevitable election of remedies. Richardson's election of remedies arguments are unavailing.
Clearly, the Brumfields would be required to make an election between tort damages and contract damages in the event they prevailed at trial on both theories of liability. Otherwise, they would impermissibly obtain a double recovery. (3 Witkin, Cal. Procedure, supra, Actions, ยง 139, pp. 203-204.)
Richardson, however, has cited no case law or statutory authority, and we are aware of none, that gives a trial court discretion to make such election for the plaintiffs after the parties have rested, and before the tort and contract claims are submitted to the jury for decision, by means of a ruling that effectively directs a verdict against the plaintiffs on their breach of contract claim. Assuming arguendo a favorable jury verdict, the plaintiffs would be entitled to make their election of remedies after the jury returns its verdict and before entry of judgment.
3. Lack of prejudice: Effect of the modified version of BAJI No. 6.10.5
Richardson asserts it is "plain" from the trial record that the court's decision to give no jury instructions on the Brumfields' claim for breach of contract did not result in a probable miscarriage of justice because the court instructed the jury with a modified version of BAJI No. 6.10.5. We agree and conclude the court's instructional error was not prejudicial.
For the sake of clarity, we reiterate that the modified version of BAJI No. 6.10.5 that the court gave to the jury in this matter provided:
"The performance of an operation by a veterinarian to which the animal's owner has not consented is a violation of a veterinarian's professional duties.
[ ] Where a veterinarian obtains consent of the animal's owner to one type of operation and subsequently performs a substantially different operation, that is likewise a violation of a veterinarian's professional duties.
[ ] A violation of either of those duties also renders the veterinarian subject to liability for any injury resulting therefrom." (Italics added.)
Richardson argues the Brumfields can show no prejudice because the jury was explicitly instructed under the foregoing modified jury instruction that it should impose liability on him if it found the Brumfields had proven that he engaged in precisely the same conduct they claimed would constitute the alleged breach of contract. Specifically, he asserts that as a result of the giving of the informed consent instructions set forth in the modified version of BAJI No. 6.10.5, "the jury would have found [Richardson] to be negligent if it believed that he had promised one thing and done another." He also asserts that " ven with those instructions, the jury found no negligence." Richardson's arguments are meritorious and must be sustained.
The trial record shows that by a vote of 11 to 1, the jury returned a special verdict in favor of Richardson on the Brumfields' cause of action for professional negligence, finding that Richardson was not negligent. Specifically, the record shows that the first question set forth in the special verdict form asked the jury, "Was [Richardson] negligent?" The jury answered, "No," and did not answer the remaining two questions pertaining to causation and damages. Based on the jury's
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