April 27th, 2011 , 7:37 pm
I like to give credit where it is due. As I have mentioned in the past, I enjoy reading the blog posts at www.calpunitives.com. The authors at Horvitz & Levy help educate me on the subject to punitive damages – for which I am grateful, especially since I have been known to handle appeals for plaintiff’s attorneys.
Here are two recent blog posts of interest:
1. On April 19, 2011, the blog reported on an unpublished opinion filed in Miller v. Faiz, Case No. G042917 by the Court of Appeal of the Fourth Appellate District, Division Three in Santa Ana. The issue was whether an appellate court can consider a defendant’s argument that an award of punitive damages is excessive even if the defendant did not raise the issue in a new trial motion. As a fundamental rule of appellate practice, we are taught that if you want to raise an issue of excessive or inadequate damages, you must first bring it to the lower court’s attention in a motion for new trial so that the trial court can evaluate the arguments and perhaps reduce or increase damages. In Miller, the plaintiff argued the defendant waived the issue by failing to bring it up below, but the Court of Appeal held that a constitutional challenge to the amount of a punitive damage award is a purely legal issue that can be considered for the first time on appeal. The court reviewed the issue de novo and determined the punitive damages – at a ratio of 8.3 to 1 – were excessive, but an award in a ratio of 4.2 to 1 would be sufficient. Justice Aronson dissented. A dissent in the 4/3? Highly unusual, but it does happen . . . occasionally. He dissented because he believed the original amount was sufficient. I might add that while the ratio did not exceed a double digit, at least it was not the 1:1 ratio that we are often seeing.
2. The blog also reports on a petition for review filed with the California Supreme Court in Behr v. Redmond (2011) 193 Cal.App.4th 517, which asks the Court to resolve an issue that is of importance to many of us: (1) If a court of appeal substantially reduces a compensatory damages award, is the appellate court required to remand it back to the trial court for a new trial on the punitive damages award, or can it affirm the punitive damages award? The petition argues there is a conflict among the courts of appeal, noting there are five different approaches by the various courts. The petition also raises an issue as to whether the California Constitution creates a constitutional right to a trial by jury on punitive damages, and whether the 1.75 to 1 ratio violates the Fourteenth Amendment’s due process clause. You can find a copy of the Petition at http://www.horvitzlevy.com/extranet/XNet/case_27/filing862.pdf.
By the way, I also received an announcement that Justice David Sills will be retiring as Chief Justice of the Court of Appeal, Fourth Appellate District, Division Three. He will be missed very much and I wish him and his family the best. It has always been a pleasure to appear before him, which I have done for as long as he has been Chief Justice! (Maybe I should also consider retiring?)