This unpublished opinion shoots down an argument that arises fairly often in punitive damages appeals. When the issue on appeal is whether the plaintiff failed to prove malice by clear and convincing evidence, plaintiffs sometimes argue that the defendant’s testimony contained inconsistencies, which shows the defendant was lying, which in turn proves that the defendant was acting with an evil motive, i.e., malice.

The Second Appellate District, Division Seven, rejected that sort of argument here. It ruled that inconsistencies in the defendant’s testimony were not a substitute for clear and convincing proof of malice:

In this case, the issue is whether there was substantial evidence to support a finding by clear and convincing evidence that Wall knew or should have known that Welded was receiving stolen funds. As previously discussed, the inconsistencies in Wall’s trial testimony reasonably could support a finding by the jury that Wall was not a credible witness and that he thus had failed to prove his affirmative defense of good faith. But none of the inconsistencies supported the inference that, at the time Welded received the two transfers from Gruys, Wall knew or had reason to know that Gruys had stolen those funds from someone else. Unlike the good faith defense for which Wall and Welded had the burden of proof, the burden rested on Gunderson to establish by clear and convincing evidence that Wall and Welded (as opposed to Gruys) were guilty of malice, oppression, or fraud. However, absent any evidence that Wall and Welded had actual or constructive knowledge that the transferred funds did not belong to Gruys, Gunderson could not satisfy his burden of proving that Wall and Welded acted with an intent to cause Gunderson injury or engaged in despicable conduct in a conscious disregard of his rights.

Accordingly, the court reversed an $800,000 punitive damages award. (The court also reversed a $2.4 million punitive damages award against another defendant, after concluding that the award resulted from an improper discovery sanction.)

There may be some situations in which inconsistencies in the defendant’s testimony do in fact support an inference of malice, because the inconsistencies rule out any possible explanation for the defendant’s conduct other than malice. But that will not always be the case, as this opinion illustrates.