Opinion
Super.Ct. No. INC052881
ORDER MODIFYING OPINION
King J.
The opinion filed in this matter on March 2, 2011, is modified as follows:
1. The last paragraph on page 21 of the opinion is deleted and replaced with the following:
“The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, fn. 12.) When, however, the evidence is insufficient to establish that alleged prospective damages are reasonably certain to occur, a jury’s award of such damages cannot be sustained on appeal. (Green Wood Industrial Co. v. Forceman Internat. Development Group, Inc. (2007) 156 Cal.App.4th 766, 776-778.) When the evidence is sufficient to sustain some but not all alleged damages, we will reduce the judgment to the amount supported by the evidence. (Id. at pp. 778-779; Mendoza v. Rudolf (1956) 140 Cal.App.2d 633, 637-638.)
2. The fourth sentence of the last paragraph on page 24 shall be deleted as follows: Although our review of the jury’s award and the trial court’s denial of Redmond’s new trial motion is highly deferential, the gross disparity between the amount supported by evidence and the jury’s award of $2.5 million is more than enough to “shock the sense of justice and raise the presumption that the amount was arrived at as the result of passion and prejudice....” (See Bellman v. San Francisco H. S. Dist., supra, 11 Cal.2d at p. 586.) The following sentence is inserted in its place:
We will therefore modify the judgment to reduce the award accordingly.
3. On page 25, the second full paragraph is deleted and replaced with the following two paragraphs:
“In a civil case not arising from the breach of a contractual obligation, the jury may award punitive damages ‘where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.’ (Civ. Code, § 3294, subd. (a).)” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 712.) “Under California law, a punitive damages award must be based on three factors: (1) the reprehensibility of the defendant’s conduct; (2) the amount of compensatory damages awarded to or actual harm suffered by the plaintiff; and (3) the defendant’s financial condition.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 690, fn. 18; see BAJI No. 14.71 (9th ed. 2002.).)
Generally, punitive damages awards are reviewed under the substantial evidence standard of review “in which all presumptions favor the trial court’s findings and we view the record in the light most favorable to the judgment.” (Kelly v. Haag (2006) 145 Cal.App.4th 910, 916.) We are also “guided by the ‘historically honored standard of reversing as excessive only those judgments which the entire record, when viewed most favorably to the judgment, indicates were rendered as the result of passion and prejudice....’ [Citation.]” (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 927.) Stated differently, “[a]n appellate court may reverse an award of punitive damages only if the award appears excessive as a matter of law or is so grossly disproportionate to the ability to pay as to raise a presumption that it was the result of passion or prejudice.” (Zaxis Wireless Communications, Inc. v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 583, citing Neal v. Farmers Ins. Exchange, supra, at p. 928.)
4. The last paragraph on page 25 shall be modified to read as follows:
Redmond does not challenge the jury’s finding that Behr was entitled to an award of punitive damages or argue that the evidence was insufficient to establish the requisite oppression, fraud, or malice. And, although punitive damages awards are subject to constitutional limits (see, e.g., Roby v. McKeeson Corp., supra, 47 Cal.4th at p. 712; State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 416-418), Redmond does not contend that such limits were exceeded in this case. Nor does Redmond dispute the sufficiency of the evidence of the reprehensibility of his conduct or assert that the jury’s award is disproportionate to his ability to pay. Instead, Redmond argues that when, as here, “a jury’s mistake about the amount of recoverable compensatory damages requires reversal of such an award, an accompanying punitive damages award is rendered ‘suspect’ and must be also reversed for determination anew.” He relies on Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664 (Krusi) and Auerbach v. Great Western Bank (1999) 74 Cal.App.4th 1172 (Auerbach).
5. On page 28, after the first full paragraph, the following paragraphs shall be inserted:
In a petition for rehearing, Redmond contends the punitive damages award is constitutionally excessive and argues that he has not waived the argument when he failed to assert it in his opening brief. We hold that the argument has been waived. In his opening brief, Redmond’s entire argument concerning the punitive damages award consists of the following two sentences and citations: “Punitive damages ‘must be proportional to recoverable compensatory damages.’ (Auerbach v. Great Western Bank (1999) 74 Cal.App.4th 1172, 1190 (Auerbach).) Accordingly, where, as here, a jury’s mistake about the amount of recoverable compensatory damages requires reversal of such an award, an accompanying punitive damages award is rendered ‘suspect’ and must be [sic] also be reversed for determination anew. (Ibid.; see also Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 680-681 (Krusi).)” Neither Auerbach nor Krusi discussed the constitutionality of punitive damages awards.
In his petition, Redmond now contends that his failure to assert a constitutional argument “was true only as to the original judgment” and that he “has never before had an opportunity to brief the question of whether the $2.75 million punitive award assessed against him is constitutionally excessive when measured against the reduced compensatory award.” The argument is disingenuous.
Redmond’s argument in his opening brief as to the “suspect” nature of the punitive damages award is predicated upon his assumption that we would agree with his argument to reduce the compensatory damages award; that is, the punitive damages award was “suspect, ” Redmond argued, because of the “jury’s mistake about the amount of recoverable compensatory damages....” Thus, his punitive damages argument anticipated and assumed that we would reduce the compensatory damages award as he requested. It is this assumption that provided him with the opportunity to argue that the punitive damages award was suspect and reversible under Auerbach and Krusi.
Redmond simply cannot logically or fairly argue that his argument as to the suspect nature of the award was properly asserted while a constitutional argument would have been premature. Just as he had the opportunity to argue, and did argue, that the reduction of compensatory damages rendered the punitive damages award suspect, he had the opportunity to argue that the same reduction rendered the award unconstitutional. Yet he elected to raise only the former argument and forego the latter. Accordingly, his failure to brief the constitutional issue constitutes a waiver or abandonment of the issue on appeal. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345-1346, fn. 6; Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
Except for these modifications, the opinion remains unchanged. These modifications do not effect a change in the judgment.
We concur: Hollenhorst Acting P.J. McKinster J.