Unlike “compensatory damages” (such as medical bills, lost wages, lost earning capacity, car repair bills and pain and suffering), punitive damages are based not on the plaintiff’s losses, but on the reprehensibility of the defendant’s conduct and the defendant’s ability to pay.
When granted, punitive damages are awarded in addition to compensatory damages.
To help you better understand how to get punitive damages in a California personal injury case, our California personal injury lawyers will discuss:
- 1. When is a plaintiff awarded punitive damages in California?
- 2. What is “malice, oppression or fraud”?
- 3. What is “clear and convincing” evidence?
- 4. What is the process for seeking punitive damages?
- 5. How are punitive damages calculated in California?
- 6. Is there a cap on punitive damages in California?
California Civil Code 3294 allows a trial court jury to award punitive damages in a personal injury case. The plaintiff must prove by clear and convincing evidence that the defendant’s conduct amounted to malice, oppression, or fraud.
Punitive damages are not intended to compensate a plaintiff for his or her losses. Rather they serve to:
- Punish people and companies (“wrongdoers”) who engage in particularly bad behavior, and
- Serve as an example to discourage both the defendant(s) and others from behaving similarly in the future (“deterrence”).
California Civil Code 3294(c) defines “malice,” “oppression” and “fraud” as follows:
- Conduct which is intended by the defendant to cause injury to the plaintiff, or
- Despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
- Despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
- An intentional misrepresentation, deceit, or concealment of a material fact known to the defendant,
- Made with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
To recover compensatory damages (also called actual damages) in a California personal injury case, the plaintiff must usually prove each element of the claim by a preponderance of the evidence.1
This means the plaintiff must simply show it is more likely than not that each element of the claim is true.
But when it comes to punitive damages, the plaintiff must prove malice, oppression or fraud by “clear and convincing evidence.”
California law does not specifically define this term. But it is a higher burden of proof than “preponderance of the evidence.”
It requires the plaintiff to prove malice, oppression or fraud with a high degree of probability.2
A plaintiff must specifically ask for an award of punitive damages (also called exemplary damages). The request in a punitive damages claim may not specify an amount being sought.3
Punitive damages are sometimes determined in the same proceeding as the defendant’s liability.
Or the defendant can request that the issue be “bifurcated” and tried separately.4
If the trial is bifurcated, the jury will not hear any evidence of the defendant’s profits or financial condition unless and until:
- The plaintiff first wins the case, and
- The jury determines that the defendant is guilty of malice, oppression, or fraud.
Only then will the jury hear evidence of the defendant’s finances and determine what amount of punitive damages to award.5 This avoids prejudicing the jury against a “deep pocket” defendant.
There is no fixed standard for determining the amount of punitive damages in a California personal injury case.6
In determining whether to award punitive damages and, if so, how much, the jury will consider:
- The degree of reprehensibility of the defendant’s conduct;
- Whether there is a reasonable relationship between the amount of punitive damages and the plaintiff’s actual harm or potential harm; and
- What amount will punish the defendant and discourage future wrongful conduct, taking into account the defendant’s financial condition/net worth.7
Unlike some other states (such as Nevada) there is no cap on punitive damages in a California personal injury case.
But the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments.8
The United Supreme Court has held that punitive damages must, therefore, bear a reasonable relationship to the compensatory damages awarded to the plaintiff.
The more reprehensible the behavior, the higher the multiplier can be.910
The U.S. Supreme Court has said that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”11
Example: Robert is awarded compensatory damages of $100,000 in a lawsuit for a serious construction accident. The jury determines that the construction company acted with willful and conscious disregard of the rights or safety of others. It is guilty of “oppression” as defined in California Civil Code section 3294.
Robert’s California injury lawyer proves that the construction company has significant assets. The jury awards Robert $5,000,000 in punitive damages. The judge then rules that the amount is excessive because it is equal to fifty times Robert’s compensatory damages. The judge reduces the punitive damages award to $500,000 (a multiplier of five times the compensatory award).
Robert’s total award is $600,000: $100,000 in compensatory damages plus $500,000 in punitive damages.
For additional help…
If you believe you were injured due to someone’s malice, fraud or oppression, we invite you to contact our California law firm. We will fight for a settlement to cover all your compensatory damages (including emotional distress). Our experienced California injury lawyers have offices in Los Angeles, San Francisco, and throughout the state.
If you were injured in Nevada, you may wish to read our article on punitive damages in Nevada.
- California Evidence Code §115. See also CACI 3947.
- In re Angelia P. (1981) 28 Cal.3d 908. Barton v. Alexander Hamilton Life Ins. Co. of America (Court of Appeal of California, Fourth District, Division Two, 2003) 110 Cal.App.4th 1640.
- California Civil Code § 3295(e); also see § 3294 (“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”)
- California Civil Code Section 3295.
- See Adams v. Murakami (1991) 54 Cal.3d. 105.
- See California Civil Jury Instructions (CACI) 3940 and 3947.
- Same. Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159. See: Philip Morris USA v. Williams (2007) 549 U.S. 346; Stevens v. Owens-Corning Fiberglas Corp. (Appellate Court, First District, Division Three, 1996) 49 Cal.App.4th 1645; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128; Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543; Nickerson v. Stonebridge Life Ins. Co. (2016) 63 Cal.4th 363; Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962; Adams v. Murakami (1991) 54 Cal.3d 105; Fernandes v. Singh (2017) 16 Cal.App.5th 932; Farmers & Merchants Trust Co. v. Vanetik (2019) 33 Cal.App.5th 638; Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68; Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165; Gagnon v. Continental Casualty Co. (1989) 211 Cal.App.3d 1598; Nickerson v. Stonebridge Life Ins. Co. (Nickerson II) (2016) 5 Cal.App.5th 1; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704; White v. Ultramar, Inc. (1999) 21 Cal.4th 563;
- Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U. S. 424.
- State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408.
- BMW of North America, Inc. v. Gore (United States Supreme Court, 1996) 517 U. S. 559; Simon v. San Paolo U.S. Holding Co. (California Supreme Court, 2005) 35 Cal. 4th 1159.
- State Farm, supra, endnote 9.