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Clifford v. American Drug Stores8/22/2005
a matter of law, the trial court may not instruct the jury to determine the issue as a matter of fact, but must correctly state what has been found as a matter of law, "even though faulty or inadequate instructions were submitted by the parties or instructions were not submitted by the parties on the vital issues at all." (Lysick v. Walcom (1968) 258 Cal.App.2d 136, 157-158.)
We now turn to Clifford's contention that the exclusion of all evidence of her emotional injuries in the second trial was error. The evidence was excluded pursuant to Sav-On's motion in limine No. 9, in which Sav-On asserted that the second jury needed only to know the amount of compensatory damages, not the nature and extent of Clifford's injuries. The nature and extent of her injuries were irrelevant, Sav-On argued, and would prejudice the jury against it. Here, Sav-On suggests that the nature of Clifford's injuries had no probative value in the second trial. We disagree.
Sav-On relies upon a brief citation to Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910 (Neal) and argues that it establishes an evidentiary rule restricting the consideration of whether to award punitive damages and how much to award to the following three categories of evidence: "(1) the compensatory damages awarded, (2) the reprehensibility of the defendant's conduct, and (3) defendant's wealth." A more informative paraphrasing of the three Neal factors relevant to the assessment of punitive damages is the following: "(1) the degree of reprehensibility of the act; (2) the amount of compensatory damages awarded; and (3) the wealth of the particular defendant. [Citation.]" (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 417, citing Neal, supra, 21 Cal.3d at p. 928, italics added.)
Thus, it is the degree of reprehensibility of the defendant's acts which the jury must consider in assessing punitive damages, and the more reprehensible the acts, the greater the appropriate punishment. (Neal, supra, 21 Cal.3d at p. 928.) Indeed, reprehensibility is the most important indicium of the reasonableness of a punitive damages award. (BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 575.) And the jury must be instructed to consider it. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1243.)
As Clifford points out, the first trial showed that Sav-On's conduct was all the more reprehensible, because it continued to engage in retaliatory conduct knowing that it had caused Clifford to suffer a severe and disabling psychiatric illness, and with an awareness of how fragile her emotional state was as they continued their unlawful conduct.
As used by Sav-On and the trial court, "reprehensibility" appears to be shorthand for degree of reprehensibility. (See Neal, supra, 21 Cal.3d at p. 928.) That shorthand has been commonly used by trial courts for years. (See, e.g., Adams v. Murakami (1991) 54 Cal.3d 105,
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