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Clifford v. American Drug Stores8/22/2005
its appropriate context. (People v. Morris (1991) 53 Cal.3d 152, 188-190, overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "` ntil the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility.' [Citation.] In these kinds of circumstances, an objection at the time the evidence is offered serves to focus the issue and to protect the record. As one trial practice text advises: `An unsuccessful motion [in limine ] can serve the same purpose as an objection at trial in preserving the record on appeal . . . . However, the motion should be sufficiently clear and specific to allow the appellate court to determine whether it would have been redundant to have also objected at the time the evidence was going to be introduced.' [Citation.]" (Morris, at p. 190.)
Counsel's argument to the trial court in favor of excluding all new evidence and all previously presented evidence that might be irrelevant in the second trial is not sufficiently clear for this court to determine whether an objection made at the time the evidence was introduced would have been redundant.
Further, we reject the suggestion in Clifford's argument that the trial court's discretion was limited. Although only relevant evidence is admissible, all relevant evidence is admissible, unless otherwise provided by statute. (Evid. Code, §§ 350, 351.) Thus, all evidence previously admitted to prove liability is potentially admissible during a retrial upon the issue of punitive damages, and the trial court must independently evaluate the evidence of either type. (See Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at pp. 887-888; Evid. Code, § 352.) It may be that in a limited retrial some evidence is relevant to determining the amount of punitive damages, while not relevant to the issue of liability because that has already been determined. In such a case, a limiting instruction would be appropriate. (See Evid. Code, § 355.) But Clifford did not request a limiting instruction.
We conclude that Clifford's objection was insufficient to preserve for appeal her contention that the trial court should have excluded new evidence and irrelevant evidence in the retrial.
3. Attorney Fees
Clifford contends that the trial court abused its discretion in refusing to enhance the lodestar figure, "e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, . . . is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees." (Ketchum, supra, 24 Cal.4th at p. 1138.)
At the same time, however, she suggests
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