Punitive Damages: A Brief Comparison of Federal and California Practice [Part 1 of 5]
Introduction
Attorneys who appear in both state and federal courts must be familiar with the differences between the two systems. While some rules have harmonized over time,[1]other procedures are entirely distinct. As a matter of competence, lawyers who practice in state and federal courts should stay familiar with these differences. As a matter of strategy, when a party has the option to litigate in either forum, the differences may present a tactical edge.
This article, comparing punitive damages in federal and state actions, is one of a five-part series of articles highlighting particular differences in California versus federal civil procedure. Other articles in this series examine differences in the jury system, citation to unpublished authorities, evidentiary privileges, and class actions.
Punitive Damages Under California Law
In California, punitive damages are generally available, in non-breach of contract cases,[2] when a plaintiff has proven by clear and convincing evidence that the defendant acted with “oppression, fraud, or malice[.]”[3]
Punitive damages are intended to punish, and thereby deter, wrongful acts.[4] “It follows that the wealthier the wrongdoing defendant, the larger the award of exemplary damages need be in order to accomplish the statutory objective.”[5] Thus, the goal is deterrence, not to crush the defendant financially. “[T]he purpose of punitive damages is not served by financially destroying a defendant. The purpose is to deter, not to destroy.”[6] California therefore requires that, before punitive damages may be awarded, the plaintiff must present evidence of the defendant’s ability to pay the award.[7]
Further, the Court has an independent duty to ensure that evidence of the defendant’s financial condition has been presented before any amount of punitive damages may be awarded.[8] Thus, a defendant’s failure to preserve an objection on this point does not waive the issue.
Comparison with Federal Practice
Federal punitive damages are imposed for the same reasons as in California: to punish and deter.[9]
The grounds to impose punitive damages in federal actions are similar to those of California actions. In federal cases, the factfinder may award punitive damages if the defendant’s conduct “was malicious, oppressive or in reckless disregard of the plaintiff’s rights.”[10]
Unlike California, a “financial condition” requirement is not present in federal law. A plaintiff in a federal case is therefore not required to show the defendant’s ability to pay. Nor does a plaintiff in state court need to present evidence of the defendant’s financial condition if the underlying claim arises out of federal law. Because the financial condition requirement is considered substantive law,[11] federal courts enforce this prerequisite when the punitive damages claim is based on state law.[12] Even when a plaintiff is not required to present evidence of the defendant’s ability to pay, the defendant may desire to introduce evidence of financial condition, i.e., to show an inability to pay.
Depending on the claim, federal and state actions occasionally vary in the standard of proof required to obtain punitive damages. Whereas California requires “clear and convincing evidence” of malice, oppression, or fraud, federal actions impose varying burdens of proof depending on the nature of the action. For example, in federal maritime cases, plaintiffs are only held to a “preponderance of the evidence” standard.[13]
With regard to immunity, both federal and state law treat government entities as immune from punitive damages.[14] There are narrow exceptions for suits against government employees.[15]
Due Process Limitations
Punitive damages are not limitless—as plaintiffs’ attorneys are all too aware. Federal and state actions share the same due process “guideposts” articulated by the United States Supreme Court.[16] According to the Court, the Fourteenth Amendment “prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.”[17] Courts therefore must consider whether a punitive damage award in consistent with “(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”[18] Further, the Supreme Court has observed that, “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages . . . will satisfy due process.”[19]
The California Supreme Court has embraced the “single-digit ratio” approach, stating that “ratios between the punitive damages award and the plaintiff's actual or potential compensatory damages significantly greater than 9 or 10 to 1 are suspect and, absent special justification . . . , cannot survive appellate scrutiny under the due process clause.”[20] In some areas of federal law, the ratio has been capped at 1 to 1.[21]
Due Process also limits plaintiffs, in both state and federal actions, from obtaining punitive damages for conduct by a defendant against a third party. “[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 those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.”[22] Evidence of harm to nonparties may be presented “to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible . . . . “[23] But a plaintiff 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 nonparties.”[24]
Conclusion
State and federal laws permit punitive damages to punish and deter wrongs.[25] Both systems recognize the same due process limitations on punitive damage. Federal and California law diverge principally in two areas: California’s requirement to present evidence of a defendant’s financial condition, and the burdens of proof, which is lower than “clear and convincing” as to certain federal causes of action.
For a plaintiff seeking punitive damages, there is no procedural advantage to be obtained by “forum shopping” between state and federal courts. Federal courts must apply California’s law, and visa versa, depending on the claim at issue. When forum is an option, a more important factor to consider would be the potential jury pool: for example, in a conservative county, a federal pool, drawing in residents from neighboring counties, may be more favorable to the plaintiff. The topic of juries is addressed in the next article of this series.
Endnotes
For purposes of citation to California authorities, this article follows the California Style Manual (4th ed. 2000). Federal authorities are cited using the Bluebook (20th ed. 2015). Code citations are to California state codes, e.g., the California Evidence Code, unless otherwise specified.
[1] For example, California’s electronic discovery rules have generally caught up with their federal counterparts. California’s Electronic Discovery Act, enacted in 2009, was largely modeled on the federal rules. See Assem. Com. on Judiciary, Analysis of Assem. Bill No. 5 (2009-2010 Reg. Sess.) (“[m]any of the bill’s specific provisions are drawn from recently enacted federal rules . . . .”).
[2] “An award of punitive damages is not supported by a verdict based on breach of contract, even where the defendant’s conduct in breaching the contract was wilful, fraudulent, or malicious. Even in those cases in which a separate tort action is alleged, if there is ‘but one verdict based upon contract’ a punitive damage award is improper.” (Myers Bldg. Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960, internal citations omitted.)
[3] Civil Code section 3294 provides when punitive damages are available in California:
(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
. . .
(c) As used in this section, the following definitions shall apply:
(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
. . . ;
see Judicial Council of California Civil Jury Instructions (2017) number 3947:
Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated
If you decide that [name of individual defendant]’s or [name of entity defendant]’s conduct caused [name of plaintiff] harm, you must decide whether that conduct justifies an award of punitive damages. The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.
You may award punitive damages against [name of individual defendant] only if [name of plaintiff] proves by clear and convincing evidence that [name of individual defendant] engaged in that conduct with malice, oppression, or fraud.
You may award punitive damages against [name of entity defendant] only if [name of plaintiff] proves that [name of entity defendant] acted with malice, oppression, or fraud. To do this, [name of plaintiff] must prove [one of] the following by clear and convincing evidence:
1. [That the malice, oppression, or fraud was conduct of one or more officers, directors, or managing agents of [name of entity defendant], who acted on behalf of [name of entity defendant]; [or]]
2. [That an officer, a director, or a managing agent of [name of entity defendant] had advance knowledge of the unfitness of [name of individual defendant] and employed [him/her] with a knowing disregard of the rights or safety of others; [or]]
3. [That the conduct constituting malice, oppression, or fraud was authorized by one or more officers, directors, or managing agents of [name of entity defendant]; [or]]
4. [That one or more officers, directors, or managing agents of [name of entity defendant] knew of the conduct constituting malice, oppression, or fraud and adopted or approved that conduct after it occurred.]
“Malice” means that a defendant acted with intent to cause injury or that a defendant’s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A defendant acts with knowing disregard when the defendant is aware of the probable dangerous consequences of his, her, or its conduct and deliberately fails to avoid those consequences.
“Oppression” means that a defendant’s conduct was despicable and subjected [name of plaintiff] to cruel and unjust hardship in knowing disregard of [his/her] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.
“Fraud” means that a defendant intentionally misrepresented or concealed a material fact and did so intending to harm [name of plaintiff].
An employee is a “managing agent” if he or she exercises substantial independent authority and judgment in his or her corporate decisionmaking such that his or her decisions ultimately determine corporate policy.
There is no fixed formula for determining the amount of punitive damages, and you are not required to award any punitive damages. If you decide to award punitive damages, you should consider all of the following factors separately for each defendant in determining the amount:
(a) How reprehensible was that defendant’s conduct? In deciding how reprehensible a defendant’s conduct was, you may consider, among other factors:
1. Whether the conduct caused physical harm;
2. Whether the defendant disregarded the health or safety of others;
3. Whether [name of plaintiff] was financially weak or vulnerable and the defendant knew [name of plaintiff] was financially weak or vulnerable and took advantage of [him/her];
4. Whether the defendant’s conduct involved a pattern or practice; and
5. Whether the defendant acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive damages and [name of plaintiff]’s harm [or between the amount of punitive damages and potential harm to [name of plaintiff] that the defendant knew was likely to occur because of [his/her/its] conduct]?
(c) In view of that defendant’s financial condition, what amount is necessary to punish [him/her/it] and discourage future wrongful conduct? You may not increase the punitive award above an amount that is otherwise appropriate merely because a defendant has substantial financial resources. [Any award you impose may not exceed that defendant’s ability to pay.]
[Punitive damages may not be used to punish a defendant for the impact of [his/her/its] alleged misconduct on persons other than [name of plaintiff].]
[4] Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, fn. 13.
[5] Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65.
[6] Adams v. Murakami (1991) 54 Cal.3d 105, 112.
[7] Kelly v. Haag(2006) 145 Cal.App.4th 910, 916-918; Adams, 54 Cal.3d at p. 119.
[8] Tomaselli v. Transamerica Ins. Co.(1994) 25 Cal.App.4th 1269, 1282-1284.
[9] Philip Morris USA v. Williams, 549 U.S. 346, 352 (2007)
[10] See Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 5.5 (2017):
Punitive Damages
If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of
punitive damages are to punish a defendant and to deter similar acts in the future. Punitive damages
may not be awarded to compensate a plaintiff.
The plaintiff has the burden of proving by [a preponderance of the evidence] [clear and convincing evidence] that punitive damages should be awarded and, if so, the amount of any such damages.
You may award punitive damages only if you find that the defendant’s conduct that harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff’s rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring the plaintiff. Conduct is in reckless disregard of the plaintiff’s rights if, under the circumstances, it reflects complete indifference to the plaintiff’s safety or rights, or if the defendant acts in the face of a perceived risk that its actions will violate the plaintiff’s rights under federal law. An act or omission is oppressive if the defendant injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by misusing or abusing authority or power or by taking advantage of some weakness or disability or misfortune of the plaintiff.
If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering the amount of any punitive damages, consider the degree of reprehensibility of the defendant’s conduct [, including whether the conduct that harmed the plaintiff was particularly reprehensible because it also caused actual harm or posed a substantial risk of harm to people who are not parties to this case. You may not, however, set the amount of any punitive damages in order to punish the defendant for harm to anyone other than the plaintiff in this ' case].
[In addition, you may consider the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.]
. . . .
[11] Chavez v. Keat(1995) 34 Cal.App.4th 1406, 1410-1416.
[12] See, e.g., Coughlin v.Tailhook Ass’n, 112F.3d 1052, 1056 (9th Cir. 1997) (punitive damages claims
arising under state law are subject to state punitive damages requirements).
[13] See, e.g., In reExxon Valdez,270F.3d 1215, 1232 (9th Cir.2001).
[14] See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-71 (1981).
[15] See, e.g., Monell v. Dept. of Soc. Servs. Of City of New York, 436 U.S. 658 (1978).
[16] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-18 (2003).
[17] Id. at 416.
[18] Id. at 418 (citingBMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)).
[19] Id. at 425.
[20] Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1182.
[21] Exxon Shipping Co. v. Baker, 554 U.S. 471, 515 (2008).
[22] Philip Morris USA, 549 U.S. at 353.
[23] Id. at 353.
[24] Id.
[25] For a discussion on the role of tort law as a deterrent, see Andrew F. Popper, In Defense of Deterrence, 75 Alb. L. Rev. 181 (2012).