New Jury May Rule on Malice After Deadlock

Wednesday, September 19, 2001

Page 1

New Jury May Rule on Malice After Deadlock—C.A.

By a MetNews Staff Writer

Retrial limited to the question of a tort defendant’s maliciousness for punitive damages purposes, after a jury found for plaintiffs on compensatory damages but deadlocked on malice, is permissible, this district’s Court of Appeal ruled yesterday.

The statutory requirement that the same trier of fact rule on compensatory damages and evidence of a defendant’s financial condition did not prevent a trial judge from exercising his or her discretion to order a new trial on a limited matter after deadlock.

In some cases, Justice Fred Woods wrote for Div. Seven, there is a risk that the new jury hearing the limited matter could award punitive damages based on conduct the first jury did not find to be malicious. But there would be no such danger where the second jury is ruling on both malice and punitive damages.

“Here, any such risk would be eliminated by the scope of the partial retrial,” Woods said. “The new jury would determine whether [the defendant] acted with malice and, if so, whether an award of punitive damages is warranted. Any award of punitive damages, therefore, would be made in light of specific conduct which the new jury found to be malicious.”

Woods’ panel rejected a petition for writ of prohibition by defendants Hair at Fred Segal, Michael A. Baruch and Paul DeArmas after Los Angeles Superior Court Judge Warren Ettinger granted a motion for limited retrial but invited the appeals court to take up the matter.

The issue, the judge said, was one “that would be incredibly helpful to most trial judges” in a situation that “happens often enough so that it would be helpful to know what the appellate courts want us to do.”

Central to the question is Code of Civil Procedure Sec. 3295(d), which contains the “same trier of fact” requirement.

The state Supreme Court ruled in Torres v. Automobile Club of So. Calif. in 1997 that the statute does not entitle a defendant to a new trial on all issues after a punitive damages award is reversed on appeal.

In the case of the Hair at Fred Segal defendants, the trial jury found against them and awarded the plaintiffs $124,000 in compensatory damages, found if favor of defendant DeArmas on the punitive damages claim, and deadlocked as to defendant Baruch on the question of malice.

The jury was discharged, and the plaintiffs moved to schedule a retrial on the question of malice and punitive damages.

“Although the Torres case on which plaintiffs rely involved a different scenario than the instant case, i.e., the reversal on appeal of an excessive punitive damages award, much of the court’s reasoning for approving a retrial limited to punitive damages supports the partial retrial ordered by the trial court in this case,” Woods said. “Thus, after reviewing the legislative history, the court concluded that the ‘same trier of fact’ requirement in subdivision (d) of Civil Code section 3295 was intended to prevent defendants from having separate juries decide compensatory and punitive damages when a case is bifurcated and, as such, the requirement promotes judicial economy….

“It appears to this court that the Legislature was concerned about a defendant getting a second bite at the apple by impaneling a second jury to try the question of punitive damages, after one jury had found against the defendant in the first phase of the case,” the judge said. “This is not an issue when a partial retrial is required, whether the retrial is ordered by the appellate court (as in Torres), or by the trial court (as in this case).”

The case is Barmas v. Superior Court, Galasso RPI, B150977.