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Clifford v. American Drug Stores8/22/2005
126; BAJI No. 14.72.2 (2004 rev.) [bifurcated trials]; BAJI No. 14.72.2 (1989 re-rev.) [same].) And here, the trial court read without modification the following language of BAJI No. 14.72.2: "If you determine that punitive damages should be assessed against defendants, in arriving at the amount of such an award, you must consider: 1, The reprehensibility of the conduct of the defendants. . . ."
This shorthand for degree of reprehensibility presents little difficulty when the same jury decides both the liability phase and the punitive damage phase of a bifurcated trial. In this case, however, particularly when read in conjunction with the definitions of malice and oppression, it is probable that it suggested to the jury that it could find that the conduct was not reprehensible. But the first jury had already determined that the defendants' conduct was reprehensible, when it found that their conduct was malicious.
The Oxford English Dictionary (2d. ed. 1989, OED Online) defines reprehensible as follows: "Deserving of reprehension, censure, or rebuke; reprovable; blameworthy." Malice, however, is something more: it requires an intent 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." (Civ. Code, § 3294, subd. (c)(1).) "`Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." (Civ. Code, § 3294, subd. (c)(2).) "`"Despicable conduct" is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinarily decent people.'" (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)
Since the intentional infliction of injuries, or inflicting them with a willful and conscious disregard of the rights or safety of others or by means of despicable conduct, is certainly blameworthy and deserving of censure, reprehensibility is subsumed within the concepts of malice and oppression. Thus, having determined that malice and oppression had been established by clear and convincing evidence, the first jury necessarily also determined that reprehensibility had been established by clear and convincing evidence.
All evidence admitted during the liability phase of a bifurcated trial is potentially admissible in the damages phase unless it is rendered inadmissible by some exclusionary rule. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at pp. 887-888; Evid. Code, § 352.) By the same token, all evidence admitted to prove liability is potentially admissible during a retrial upon the issue of punitive damages. (See Evid. Code, § 352.)
We agree that the jury must be told the amount of compensatory damages to enable it to assess whether the amount of punitive damages it may be considering bears a reasonable relati
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