A few months ago, we blogged about the Court of Appeal’s decision in Harvey v. Sybase. We noted at the time that the unpublished portion of the opinion seemed to take the position that the clear and convincing evidence standard (which governs punitive damages determinations in California) applies only in the trial court, and not in the Court of Appeal. We noted that the court’s approach to that issue was directly in conflict with other published authority.

Attorney Bruce Nye, who represented the plaintiff in that case (and also maintains the excellent Cal Biz Lit blog), commented on our post, acknowledging the split in appellate authority on this issue. To which we responded: “Eventually the Supreme Court should resolve this issue once and for all.”

It looks like that resolution will come a little sooner than we expected. The California Supreme Court has granted review in Harvey. According to the Supreme Court’s news release, the second issue presented is the same issue we flagged in our blog post:

This case presents the following issues: (1) Must the plaintiff in a discriminatory termination
case under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) present stronger evidence of bias if the person responsible for the termination had previously treated the plaintiff favorably? (2) On review of an order granting a motion for judgment notwithstanding the verdict with respect to an award of punitive damages, must the appellate court determine whether the record contains substantial evidence to support the award by clear and convincing evidence, or is the clear and convincing standard only applicable at the trial court level?

This is an issue we’ve briefed in quite a few cases. California case law has been all over the map. There are conflicts not only between the districts of the Court of Appeal, but in some instances the same district has issued conflicting decisions. I’m out of the office right now so I don’t have access to our research from those cases, but I’ll follow up with some further posts on this when I’m back in the office.