The California Supreme Court has denied rehearing in Roby v. McKesson and issued an order modifying its opinion. Both parties sought rehearing, and an additional rehearing petition was filed by the Consumer Attorneys of California as amicus curiae.

The Consumer Attorneys’ petition raised an interesting issue. It asked the court to delete language from the opinion stating that the need for deterrence in the form of punitive damages is lower in cases involving emotional distress damages, because emotional distress damages already include a punitive component. The California Supreme Court borrowed that statement from the U.S. Supreme Court’s opinion in State Farm v. Campbell. But the Consumer Attorneys argued that the principle should not be extended to California law because in California, emotional distress damages are strictly limited to compensation and cannot include any punitive component. The Supreme Court rejected that argument without comment.

The order modifying the opinion addresses a different issue. The modification is apparently intended to clarify that punitive damages will not necessarily be available in every FEHA case involving the sort of attendance policy used by the defendant in this case.