In the ensuing years, however, the Courts of Appeal began upholding exemplary damage awards even if no compensatory damages were made, so long as the record showed the defendant tortiously harmed the plaintiff. (See decisions discussed in Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1364-1369 [ 7 Cal.Rptr.2d 482] (dis. opn. of Johnson, J.).)(1) Pointing to the jury's express determination that plaintiffs suffered "0.00" compensatory damages, Daley argues that the requisite foundation for awarding exemplary damages is absent.
At this stage, plaintiff's request for punitive damages is permissible. Defendant's citation to Jackson v. Johnson, 5 Cal. App. 4th 1350 (1992), is misplaced. In Jackson, the court held that punitive damages were not allowed in a legal malpractice verdict when no actual damages were found. 5 Cal. App. 4th at 1351.
Here, plaintiff has already demonstrated the commission of a tortious act, and may yet prove defendants' liability for some part of the damages arising therefrom. It does not follow that because plaintiff's compensatory damage claim may be completely offset, he is automatically precluded from recovering punitive damages against defendants. Neither Kluge v. O'Gara, 227 Cal. App. 2d 207 (1964) norJackson v. Johnson, 5 Cal. App. 4th 1350 (1992) mandate dismissal of plaintiff's claim. After receiving full satisfaction on a judgment in malpractice, the Kluge plaintiff sued the former defendant and others alleging a conspiracy to undermine the earlier malpractice litigation.
Hyon's theories of recovery for legal malpractice in the cross-complaint suffer from a critical infirmity: they pled speculative damages that might occur in the future, but had not yet occurred. Our high court has repeatedly stressed, "`The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to create a cause of action for negligence. . . .' [Citation.]" ( Jordache Enterprises, Inc. v. Brobeck, Phleger Harrison (1998) 18 Cal.4th 739, 749-750 [ 76 Cal.Rptr.2d 749, 958 P.2d 1062], italics added; see also Budd v. Nixen, supra, 6 Cal.3d 195, 200; Fritz v. Ehrmann (2006) 136 Cal.App.4th 1374, 1381 [ 39 Cal.Rptr.3d 670]; Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1355 [ 7 Cal.Rptr.2d 482].) "`Hence, until the client suffers appreciable harm as a consequence of his attorney's negligence, the client cannot establish a cause of action for malpractice.
As another division of this district observed, "[t]his `liberal construction' is a euphemism for nullification." ( Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1358 [ 7 Cal.Rptr.2d 482].) We agree, and decline to follow James or its progeny.
An award of actual damages, even if nominal, is required to recover punitive damages. (Civ. Code, § 3294; Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147 [ 279 Cal.Rptr. 318, 806 P.2d 1353] ["actual damages are an absolute predicate for an award of exemplary or punitive damages"]; Mother Cobb's Chicken T., Inc. v. Fox (1937) 10 Cal.2d 203, 205 [ 73 P.2d 1185]; Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1358 [ 7 Cal.Rptr.2d 482].) Neither Borghese nor Swaney can recover actual damages from Petrominerals or Silverman and, therefore, neither Borghese nor Swaney can recover punitive damages.
To the extent Laurens claims he was entitled to a jury trial solely on the issue of punitive damages, we reject this claim as well. Such a bifurcated procedure would be inconsistent both with the fact that there is no separate cause of action for punitive damages — they "are only ancillary to a valid cause of action" ( Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1355 [ 7 Cal.Rptr.2d 482]) — and with the statutory command that evidence of a defendant's financial condition necessary to support a punitive damages award be presented to the " same trier of fact" that found the defendant liable. (Civ. Code, § 3295, subd. (d), italics added.)
(2) In the case of punitive damages, the exaction arises from a "private" wrong: if there is no wrong resulting in compensable injury to this plaintiff, there can be no exaction of punitive damages. (See, e.g., Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1355 [ 7 Cal.Rptr.2d 482].) By contrast, in the case of "public" wrongs, the law seeks to enforce compliance with norms of conduct through the infliction of punishment regardless of the existence of an identifiable victim in a particular case; no one needs to be waiting for the parking space in order to justify the issuance of a parking ticket.
(9) For causation to be established, there must be a nexus between the compensatory damages assessed and the breaches of fiduciary duty. ( Stanley v. Richmond, supra, 35 Cal.App.4th at p. 1086; DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1506 [ 33 Cal.Rptr.2d 219] ; Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1355 [ 7 Cal.Rptr.2d 482].) (3h) In this instance the compensatory damages are a purely a mathematical result of measuring the difference between two quantities: subtraction of the result of multiplication of 40 percent times the damages assessed in the personal injury action from multiplication of 70 percent times the same damages.
(7) It would appear BAJI No. 6.37.5 most closely approximates a usable instruction which the abundant case law contemplates in professional negligence cases and has been used for that purpose. (E.g., Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1356 [ 7 Cal.Rptr.2d 482]; cf. DiPalma v. Seldman, supra, 27 Cal.App.4th at p. 1507.) However, it requires some modification to eliminate the "but for" language and to substitute the substantial factor test.