But we're still waiting for a published California opinion to address this issue and put to rest the notion that the second phase should focus entirely on the defendant's financial condition. ), • “[I]n some cases, the defendant’s financial condition may combine with high, reprehensibility and a low compensatory award to justify an extraordinary ratio, between compensatory and punitive damages. 16-CV-00135-LHK ORDER RE: DEFENDANT’S MOTIONS IN LIMINE AND MOTION TO BIFURCATE PUNITIVE DAMAGES • “[T]he ‘net’ concept of the net worth metric remains critical. The granting or, withholding of the award of punitive damages is wholly within the control of the, jury, and may not legally be influenced by any direction of the court that in any, case a plaintiff is entitled to them. equitable relief is obtained or where nominal damages are awarded or, as here, where compensatory damages are unavailable.” (, 809]] has refined the disparity analysis to take into account the. The California Supreme Court, in Donnelly v. Southern Pacific CO. (1941) 18 Cal.2d 863, gave the following examples from the United States Supreme Court of when negligent conduct would warrant punitive damages: "This is the type of misconduct that the federal courts characterize as "willful and wanton negligence." The purpose is to deter, not to destroy.” (, • “[A] punitive damages award is excessive if it is disproportionate to the, • “It has been recognized that punitive damages awards generally are not, permitted to exceed 10 percent of the defendant’s net worth.” (, • “While ‘there is no rigid formula and other factors may be dispositive especially, when net worth is manipulated and fails to reflect actual wealth,’ net worth is, often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff, seeking punitive damages must provide a balanced overview of the defendant’s, financial condition; a selective presentation of financial condition evidence will, Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted. These issues are relevant to punitive damages and some liability questions. January 21, 2014. Plaintiff argues that bifurcation will prejudice them and will only prolong the trial which will result in a waste of additional resources for … The precise award in any case, of course, must be based upon the, facts and circumstances of the defendant’s conduct and the harm to the plaintiff.”, • “In determining whether a punitive damages award is unconstitutionally, to compensatory damages, regardless of whether the fees are awarded by the, trier of fact as part of its verdict or are determined by the trial court after the, Cal.4th 363, 368 [203 Cal.Rptr.3d 23, 371 P.3d 242]. Joe, Joey, Joe-Baby, Sexist: Where’s Your Imposter Syndrome? United States District Court Northern District of California UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NAIDONG CHEN, et al., Plaintiffs, v. FLEETCOR TECHNOLOGIES INC., Defendant. 64, Punitive Damages - Individual Defendant - Bifurcated Trial, ] in punitive damages. An award of nominal damages cannot support an award of punitive damages. INTRODUCTION Like a bad car wreck, a large award of punitive damages seems to bring out the rubberneckers – critics, scholars, appellate lawyers, and legislators. By placing the defendant’s conduct on one occasion into, the context of a business practice or policy, an individual plaintiff can, demonstrate that the conduct toward him or her was more blameworthy and, warrants a stronger penalty to deter continued or repeated conduct of the same, [180 Cal.Rptr.3d 382], internal citations omitted. real money in a specific amount to be set by the jury. The Liability and Damages Phases of the Trial Should be Tried by the Same . Upon the clearest proof of malice in fact, it is, still the exclusive province of the jury to say whether or not punitive damages, shall be awarded. Consequently, the trial court erred in failing to so instruct the jury.” (, • “We conclude that the rule . [HOT] Read Latest COVID-19 Guidance, All Aspects... [SCHEDULE] Upcoming COVID-19 Webinars & Online Programs [GUIDANCE] COVID-19 and Force Majeure Considerations The post observes that many defense lawyers prefer not to bifurcate the issue of punitive damages into a separate phase of trial. In Adams, our supreme court said proof of financial condition is an essential … . particular nature of the defendant’s acts in light of the whole record; clearly, different acts may be of varying degrees of reprehensibility, and the more, reprehensible the act, the greater the appropriate punishment, assuming all other, factors are equal. The parties hereby waive the following rights as to the judgment so entered. . • “[Section 3295(d)] affects the order of proof at trial, precluding the admission of, evidence of defendants’ financial condition until after the jury has returned a, verdict for plaintiffs awarding actual damages and found that one or more, defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil, 272, 274-275 [34 Cal.Rptr.2d 490], internal citations omitted. plaintiffs, as where a scheme worthy of punitive damages does not fully succeed. d. In the second stage of a bifurcated trial, the trier of fact shall determine if a defendant is liable for punitive damages… The unpublished opinion we discussed back in 2008 discussed the fact that the defendant presented mitigating evidence during the second phase of a bifurcated trial. (d) The court shall, on application of any defendant, preclude the admission of evidence of that defendant's profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294.. The existence, of any one of these factors weighing in favor of a plaintiff may not be sufficient, to sustain a punitive damages award; and the absence of all of them renders any, • “[I]n a case involving physical harm, the physical or physiological vulnerability, of the target of the defendant’s conduct is an appropriate factor to consider in, determining the degree of reprehensibility, particularly if the defendant, deliberately exploited that vulnerability.” (, • “[W]e have been reluctant to identify concrete constitutional limits on the ratio, between harm, or potential harm, to the plaintiff and the punitive damages, award. Case No. A: California Civil Code Section 3294 sets the bases upon which punitive damages may be awarded. [Any award you impose may not exceed [, [Punitive damages may not be used to punish [. Bifurcation allows the defendant to avoid that risk by introducing evidence of other punitive awards only after it has been found liable. following factors in determining the amount: 1. Based in Sonoma, he is a managing editor and 40-year contributor to the monthly publication California … . See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 991: In our view, Judicial Council of California. 16-cv-00135-lhk28 order order re: defendant’s motions in limine and motion to bifurcate punitive damages 1 2 3 4 5 6 7 8 9 10 11 Punitive Damages Under California Law. (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379, (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. (c)), prohibiting claims for punitive damages from stating an amount or amounts (§ 3295, subd. ), • “With the focus on the plaintiff’s injury rather than the amount of compensatory, damages, the [‘reasonable relation’] rule can be applied even in cases where only. You may not increase the, punitive award above an amount that is otherwise appropriate, resources. ), • “The wealth of a defendant cannot justify an otherwise unconstitutional punitive, U.S. at p. 427, internal citation omitted. . Another relevant yardstick is the amount of compensatory, damages awarded; in general, even an act of considerable reprehensibility will, not be seen to justify a proportionally high amount of punitive damages if the, actual harm suffered thereby is small. Yet for the reasons given above, a jury, may not go further than this and use a punitive damages verdict to punish a, defendant directly on account of harms it is alleged to have visited on, • “ ‘Due process does not permit courts, in the calculation of punitive damages, to, adjudicate the merits of other parties’ hypothetical claims against a defendant, under the guise of the reprehensibility analysis . c. Punitive damages may be awarded only if compensatory damages have been awarded in the first stage of the trial. An instruction on this point should be included within this instruction if, Courts have stated that “[p]unitive damages previously imposed for the same, conduct are relevant in determining the amount of punitive damages required to, sufficiently punish and deter. ]’ ” (, • “[W]e are afforded guidance by certain established principles, all of which are, grounded in the purpose and function of punitive damages. The folks over at Mayer Brown's Guideposts have a new post entitled "To Bifurcate or Not to Bifurcate," discussing whether it is strategically wise for defendants to take advantage of the bifurcation procedure that exists for punitive damages trials in many states, including California. You must not, use the amount of punitive damages awarded in other cases to determine the, amount of the punitive damage award in this case, except to the extent you, determine that a lesser award, or no award at all, is justified in light of the. ‘[T]o consider, the defendant’s entire course of conduct in setting or reviewing a punitive, damages award, even in an individual plaintiff’s lawsuit, is not to punish the, defendant for its conduct toward others. . [Citation. 1 case no. (c)), prohibiting claims for punitive damages from stating an amount or amounts (§ 3295, subd. ), • “[N]et worth is not the only measure of a defendant’s wealth for punitive, damages purposes that is recognized by the California courts. Sup. If, you decide to award punitive damages, you should consider all of the. Judge Willett (former Tex. A plaintiff, seeking punitive damages is not seeking a mere declaration by the jury that he is, entitled to punitive damages in the abstract. . [Eugene Volokh] 5th Cir. . damages, including punitive damages arguing they will be prejudiced and bifurcation will promote judicial economy and avoid jury confusion. BIFURCATION OF PUNITIVE DAMAGES. (See Civil Code section 3295(d).) State Farm Mutual Automobile Insurance Co., supra, (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d, (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal. The purposes of punitive damages are to, ] knew was likely to occur because of [his/her/. 305], internal citations omitted. Ct. App. 1:10-CV-1234 (S.D. Justia - California Civil Jury Instructions (CACI) (2020) 3942. 318, 813 P.2d 1348], (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751]. SMU Dedman School of Law professor Joanna L. Grossman responds to a recent Wall Street Journal op-ed criticizing soon-to-be First Lady Jill Biden for using the academic title she earned. . .’ This does not mean, however, that the defendant’s similar, wrongful conduct toward others should not be considered in determining the, Cal.App.4th 543, 560 [131 Cal.Rptr.3d 382]. considerations are the nature of the defendant’s conduct, the defendant’s wealth, 211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. [A]n award of more than four times the amount of, compensatory damages might be close to the line of constitutional, impropriety. 6 California Points and Authorities, Ch. Bifurcation of Punitive Damages At trial, determinations regarding punitive damages are sometimes "bifurcated," or tried separately, from other issues. . • “The purpose of punitive damages is to punish wrongdoers and thereby deter the commission of wrongful acts.” ( Neal, supra , 21 Cal.3d at p. 928, fn. An enhanced punishment for recidivism, does not directly punish the earlier offense; it is, rather, “ ‘ “a stiffened penalty, for the last crime, which is considered to be an aggravated offense because a, repetitive one.” ’ ” . (, (1993) 509 U.S. 443, 459 [113 S.Ct. Such evidence may not have been relevant to the issues of liability, but may become relevant during the second phase. That rule cannot be deemed satisfied where the jury has made an express, determination not to award compensatory damages.” (, Cal.App.4th 1673, 1677 [42 Cal.Rptr.2d 164], footnote omitted. But the wreck of a punitive damage award is seldom as bad as it looks. However, in a case where there is insurance coverage, but the defendant has a poor financial condition, the plaintiff may want to consider seeking to bifurcate punitive damages from the trial. discourage similar conduct in the future. The bracketed phrase should not be given if an award, of compensatory damages is the “true measure” of the harm or potential harm, [rejecting consideration for purposes of assessing punitive damages of the plaintiff’s, loss of the benefit of the bargain if the jury had found that there was no binding, Read the optional final sentence of factor (c) only if the defendant has presented, Read the optional final sentence if there is a possibility that in arriving at an amount, of punitive damages, the jury might consider harm that the defendant’s conduct may, 353-354 [127 S.Ct. The likelihood of future punitive damage awards may, also be considered, although it is entitled to considerably less weight.” (, 525], internal citations omitted.) Mandatory Bifurcation of Punitive Damages Upheld Posted on September 8th, 2014 by sutteroconnell A Cuyahoga County trial court’s decision to vacate a jury verdict and order a new trial for failure to bifurcate the issue of punitive damages was affirmed last week. By Robert Sparks. California law authorizes punitive damages to punish and discourage “oppression, fraud, or malice.” Courts have explained that punitive damages are “an expression of moral condemnation” for conduct done with “willful and conscious disregard of the … 2017) Torts, §§ 1727, 1729, 1731. Punitive Damages, §§ 14.1-14.12. You must now decide the amount, if any, that you should award [, punish a wrongdoer for the conduct that harmed the plaintiff and to. Punishment on these bases, creates the possibility of multiple punitive damages awards for the same, conduct . 3. ‘Indeed, it is likely, that blind adherence to any one standard [of determining wealth] could, sometimes result in awards which neither deter nor punish or which deter or. The plaintiff is seeking an award of. 2d 341,343 (Fla. 2d Dist. . • When Punitive Damages Permitted. The issue of trial bifurcation when dealing with punitive damages cases has been a hotly contested issue dating back to 1994 when the W.R. Grace & Co. Conn. v. Waters decision was issued by the Florida Supreme Court. 3-E. California Tort Damages (Cont.Ed.Bar 2d ed.) that an award of exemplary damages must be, accompanied by an award of compensatory damages [or its equivalent] is still, sound. Punitive Damages Chapter 24 1 PUNITIVE DAMAGES: ISSUES ARISING AT TRIAL AND ON APPEAL I. Bifurcation Serves the Ends of Convenience and Judicial Economy.....5 4. Harm to others may be relevant to, determining reprehensibility based on factors (a)(2) (disregard of health or safety of, others) and (a)(4) (pattern or practice). We believe that an instruction on these issues should, clearly distinguish between the permitted and prohibited uses of such evidence, and thus make clear to the jury the purposes for which it can and cannot, consider that evidence. Because compensatory damages are designed to, make the plaintiff ‘whole,’ punitive damages are a ‘windfall’ form of recovery.”, Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted. Civil Code section 3295(d). When we touched on this issue in one of our early posts back in 2008, we noted that some California lawyers take the position that when a trial is bifurcated pursuant to section 3295(d), the only relevant evidence for the second phase of trial is evidence of the defendant's financial condition. 177. (See Civil Code section 3295(d).) 389, 582 P.2d 980] [in a. TXO Production Corp. v. Alliance Resources Corp. (2003) 538 U.S. 408, 419 [123 S.Ct. For CEB, he has also authored California Tort Guide, now in its third edition, California Workers’ Damages Practice, now in its second, and chapters and parts of other CEB books. These findings raise questions about the merits of bifurcation in cases that involve multiple claims for damages. (, 113 P.3d 63].) that it may not use evidence of out-of-state conduct, to punish a defendant for action that was lawful in the jurisdiction where it, 422.) 11. 2570, No. The fact that the plaintiff sought to recover punitive damages for alleged fraud in obtaining a release in her second cause of action, did not deprive the defendants of their defense of a release of the cause of action asserted in plaintiff's first cause of action; nor should it deprive the defendant of the right to have that issue determined, when, as here, the plaintiff not only consents but joins in the request for … The folks over at Mayer Brown's Guideposts have a new post entitled "To Bifurcate or Not to Bifurcate," discussing whether it is strategically wise for defendants to take advantage of the bifurcation procedure that exists for punitive damages trials in many states, including California. 9. Feb. 1, 2012), addressed the EEOC’s practice of seeking “punitive damages in Phase I” bifurcation, and its push for corresponding discovery bifurcation in pattern or practice cases. By the same token, of course, the function of punitive damages is, not served by an award which, in light of the defendant’s wealth and the gravity, of the particular act, exceeds the level necessary to properly punish and deter.”, • “[T]he Constitution’s Due Process Clause forbids a State to use a punitive, damages award to punish a defendant for injury that it inflicts upon nonparties or, are, essentially, strangers to the litigation.” (, • “Evidence of actual harm to nonparties can help to show that the conduct that. The parties make the following express waivers of rights: 1. The bracketed phrase concerning “potential harm” might be, appropriate, for example, if damages actually caused by the defendant’s acts are not, recoverable because they are barred by statute (, bad faith insurance case, plaintiff died before judgment, precluding her estate’s, recovery of emotional distress damages]), or if the harm caused by defendant’s acts, could have been great but by chance only slight harm was inflicted. The jury should be able to consider any evidence relevant to the issue of reprehensibility, even if such evidence was not relevant to any issue during the first phase of trial. 1962). The relevant. (Exception: The same jury must hear both phases of a bifurcated punitive damages trial.) . 184. .” (, • “Nonetheless, because there are no rigid benchmarks that a punitive damages, award may not surpass, ratios greater than those we have previously upheld may, comport with due process where ‘a particularly egregious act has resulted in. . When compensatory damages are substantial, then a lesser ratio, perhaps only, equal to compensatory damages, can reach the outermost limit of the due process, guarantee. While these ratios are not binding, they are instructive. The defendant in this case requested bifurcation under section 3295. A Standing Ovation for the Ninth Circuit’s Latest Food-Labeling Class-Action Decision, “Texas v. Pennsylvania Would Have Upended the Electoral College; Texas’s innovative injury would allow any state to sue any other state, directly in the Supreme Court, for breach of its election laws”, “Report: Social media manipulation affects even US senators”, SLAPP: 2/2 DCA Affirms $33,060 In Fees Awarded Against SLAPPing Defendants For Filing A Frivolous Motion To Strike For The Sole Purpose Of Delay, Lawyer Files Document “Under Plenty of Perjury”, Evans & Pasquale on Products Liability for FDA-Regulated AI/ML Software, Fight the Power: Ninth Circuit sides with the Constitution over totalitarianism in smackdown of Governor Sisolak, Interesting panels during this year's virtual Golden State Institute, October 27-29, 2020, Guideposts | Punitive Damages Blog | Law Lawyers | Mayer Brown LLP, Eighth Circuit Okays 25:1 Ratio In Fraud Case, REMOTE MEDIATION DURING THE PANDEMIC SHELTER IN PLACE PERIOD. ), State Farm Mutual Automobile Insurance Co., supra, fees may be included in the calculation of the ratio of punitive, (1996) 517 U.S. 559 [116 S.Ct. 2d 502 (Fla. 1994). (1974) 13 Cal.3d 43, 65 [118 Cal.Rptr. . Proc., § 425.13). 15 [85 Cal.Rptr.2d 726], original italics.). 13.) In … ), • “[A] specific instruction encompassing both the permitted and prohibited uses of, evidence of harm caused to others would be appropriate in the new trial if, requested by the parties. Unfortunately, California cases have never squarely addressed that issue. ), • “Evidence of the defendant’s financial condition is a prerequisite to an award of, punitive damages. Punitive Damages - Individual Defendant - Bifurcated Trial (Second Phase) - Free Legal Information - Laws, Blogs, Legal Services and More But when it comes to whether glyphosate caused a plaintiff’s NHL, these issues are mostly a distraction, and a significant one at that. Of course, there remains a risk that the jury will use the punitive awards from prior cases as a measuring stick for its own punitive award, so defendants may elect not to introduce it even at the cost of forfeiting the argument that they have been punished enough. ‘In most cases, evidence of earnings or profit alone are not sufficient “without examining the, liabilities side of the balance sheet.” [Citations. Haning et al., California Practice Guide: Personal Injury, Ch. Ct. Justice Willett) Praises His Old Colleagues' Speed …. ), (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal, 21 Cal.3d at p. 928, internal citations and footnote omitted. 14-ml-2570, S.D. To recover an award of punitive damages, it should be enough to show the defendant is a menace to society, who thought nothing of robbing, stealing, and pillaging to make a profit no matter who got hurt. Moreover, bifurcation had the unexpected effect of augmenting punitive damage awards. ), • “It follows that the wealthier the wrongdoing defendant, the larger the award of, exemplary damages need be in order to accomplish the statutory objective.”, • “ ‘A plaintiff, upon establishing his case, is always entitled of right to, compensatory damages. Civil Code section 3294. . injury, harm, or damage actually suffered by the plaintiff and proved at trial. In order to protect defendants from the premature disclosure, of their financial position when punitive damages are sought, the Legislature, • “[C]ourts have held it is reversible error to try the punitive damages issue to a, new jury after the jury which found liability has been excused.” (, • “The purpose of punitive damages is to punish wrongdoers and thereby deter the, • “Punitive damages are to be assessed in an amount which, depending upon the, defendant’s financial worth and other factors, will deter him and others from, committing similar misdeeds. . . News and commentary on punitive damages litigation in California and nationwide. (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. finds as follows: (1) Plaintiff may pursue his claim for punitive damages at trial; (2) bifurcation of the trial is not required; (3) Defendants have waived a “good faith” defense; (4) Plaintiff cannot 15 California Forms of Pleading and Practice, Ch. Civil Jury Instructions (Aug. 2007 rev.) A jury may consider evidence of harm caused to others, for the purpose of determining the degree of reprehensibility of a defendant’s, conduct toward the plaintiff in deciding the amount of punitive damages, but it, may not consider that evidence for the purpose of punishing the defendant, directly for harm caused to others. But ever since Adams v. Murakami(1991) 54 Cal.3d 105, our supreme court has made it clear you will need evidence over and above the defendant’s wrongdoing if you want to win punitive damages at trial and keep them on appeal. Proof must be shown – by clear and convincing evidence – … [Ca Civil § 3295(d)] Motion To Consolidate Or Coodinate: When separate lawsuits have common issues of law or fact, the court may order them consolidated or coordinated for trial. harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible - although counsel may argue in a, particular case that conduct resulting in no harm to others nonetheless posed a, grave risk to the public, or the converse. Other reforms pertaining to punitive damages included raising the burden of proof for recovery to "clear and convincing evidence" (§ 3294, subd. ), • “The decision to award punitive damages is exclusively the function of the trier, of fact. The issue of punitive damages are sometimes `` bifurcated, '' or separately! [ bifurcation of punitive damages california Cal.Rptr Hotels, LLC, case No award of nominal damages can support. 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