This unpublished memorandum disposition from the Ninth Circuit affirms a punitive damages award in a housing discrimination case.

The defendant landlord limited occupancy in certain studio apartments to one person per studio.  The Fair Housing Center of Washington argued that this policy unfairly discriminated against families, in violation of federal, state, and local housing laws. The district court ruled agreed and imposed punitive damages on the landlord, who appealed.

The Ninth Circuit affirmed in an opinion with very little analysis, as is typical of unpublished memorandum dispositions.  The discussion is so cursory, it does not even reveal the amount of punitive damages at issue.  (Press reports indicate the award was $100,000.)

Although the majority seemed to think the case was a slam-dunk, Judge Bea dissented from the decision to affirm the punitive damages.  He explained that the plaintiff presented no evidence that the defendant acted with an “evil motive” as required for punitive damages under the Fair Housing Act:

[The defendant] was simply unwilling to change a longstanding and reasonable business policy—which [the defendant] maintained was legal—until ordered to do so by a court. It cannot be the case that in order to avoid being subjected to punitive damages, a business must immediately change its policies whenever it is accused of misconduct by an advocacy group or an administrative agency, rather than insist that the group or agency prove liability in a court of law. A defendant similarly cannot be subjected to punitive damages for failing prophetically to cease conduct that is only subsequently enjoined by a court order. . . . . None of the district court’s findings in this case come close to evincing the “reckless or callous indifference” required to award punitive damages under the FHA.

This is an issue that comes up fairly often in California punitive damages litigation.  Plaintiffs’ counsel will sometimes argue that a defendant’s failure to admit liability is itself a reason for punishment.  California courts have recognized, however, that a defendant cannot be punished merely for defending itself.  In light of Judge Bea’s dissent on this point, it’s a bit surprising that the judges in the majority did not bother to offer any response to his arguments.

The Ninth Circuit issued a published opinion today that expressly disagrees with a decision of the Fifth Circuit.

The issue is whether punitive damages are available in unseaworthiness cases under general maritime law.   The Ninth Circuit answered this question in the affirmative in 1987, in a case called Evich v. Morris.  But the Fifth Circuit ruled a few years ago that a subsequent Supreme Court case impliedly overruled Evich.

Not so, says the Ninth Circuit:

The Fifth Circuit’s leading opinions . . . are scholarly and carefully reasoned, but so are the dissenting opinions, which to us are more persuasive.

This case has the makings of a good cert. petition, with an express circuit split on an issue of federal common law.  Stay tuned to see whether the Ninth Circuit agrees to take this one en banc.

This unpublished memorandum disposition from the Ninth Circuit does not have much factual detail, so we can’t tell exactly what GEICO did to warrant punitive damages.  But whatever it was, the Ninth Circuit found GEICO’s conduct to be “of low to moderate reprehensibility.”

As a result, the court concluded that the jury’s $2.5 million punitive damages award was unconstitutionally excessive when compared to the $266,000 in compensatory damages (a nine to one ratio).  The court observed: “This is significantly higher than the four-to-one proxy that we apply in similar contexts.”  The court then reduced the award to a little over $1 million, right at the four-to-one benchmark.

The panel consisted of Judges McKeown, Gould, and Rothstein (a district court judge for the Western District of Washington, sitting by designation).

The Ninth Circuit issued this published opinion yesterday, affirming punitive damages in excess of $2 million and compensatory damages of $855,000.  The plaintiffs were three Latino police officers who alleged that the City of Westminster discriminated against them.

The case actually involved nine separate punitive damages awards, because each of the three plaintiffs recovered punitive damages from each of the three defendants.  The ratios of punitive damages to compensatory damages ranged from a low of 1:8 to a high of 8:1.  The court found that none of these ratios violated due process, in light of the highly reprehensible nature of the defendants’ conduct.

One interesting wrinkle is that one of the defendants died before trial. California law governs the question whether the punitive damages claim against that defendant survived his death, and the general rule is that punitive damages are not available against a decedent’s estate.  However, the Ninth Circuit observed that defense counsel agreed to submit the punitive damages claim to the jury despite the defendant’s death.  The court seems to be suggesting that the defense might have forfeited the issue, but instead of addressing that question squarely, the Ninth Circuit remanded the case to the district court to decide the recoverability of punitive damages from the decedent’s estate.

Law 360 reported yesterday on the Ninth Circuit’s memorandum disposition in this wrongful termination case in which the plaintiff claimed he was fired for reporting potential Medicare fraud.  It’s only five pages long, so there isn’t much analysis.  In a nutshell, the jury awarded $88,000 in economic damages and $1.155 million in punitive damages, a ratio of 13 to 1.  The Ninth Circuit determined the punitive damages award was constitutionally excessive and reduced it to $352,000, a ratio of 4 to 1.

Interestingly, the Ninth Circuit noted that a lower ratio was appropriate in light of the “substantial” compensatory damages.  Contrast that approach to the California Court of Appeal’s decision in Bullock v. Philip Morris, which held that a compensatory damages award of $850,000 (nearly ten times larger than the award in this case) was not substantial.  The Bullock court reached that conclusion by comparing the amount of the award to the defendant’s wealth.  We are not aware of any other decisions following that approach, and the Ninth Circuit certainly didn’t follow it here.

The Ninth Circuit also observed that the jury’s punitive damages award was excessive in relation to the $10,000 fine that the California Labor Code authorizes for unlawful retaliation against whistleblowers.  California courts have gotten into the habit of saying that such comparisons are “not useful” (see Bullock again), even though the third guidepost of BMW v. Gore calls for courts to “accord substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.”

This Ninth Circuit opinion clarifies the showing necessary to recover punitive damages for certain types of lawsuit against government officials under 42 U.S.C. section 1983.

The plaintiff, Jonathan Castro, was arrested for public intoxication and placed into a “sobering cell” at the local police station.  While he was in custody, he was savagely beaten by another intoxicated arrestee, leaving him with permanent traumatic brain injuries.

Castro sued the officers on duty, claiming they violated his civil rights by placing a violent inmate in his cell and failing to supervise them.  After a jury trial, he recovered $2.6 million in compensatory damages plus $18,000 in punitive damages.  The officers appealed.

The officers argued, among other things, that the evidence did not support an award of punitive damages.  That required the Ninth Circuit to examine the standards for recovery of punitive damages in cases like this.  The liability standard for failure-to-protect claims is whether the defendants acted with “deliberate indifference” to a substantial risk of serious harm.  Punitive damages are available when the defendant acted with “reckless or callous indifference” to federally protected rights of others.

These definitions raise the question whether there a difference between “deliberate indifference” and “reckless or callous indifference.”  In other words, once a plaintiff establishes liability, does the plaintiff need to prove anything else to get punitive damages?  The Ninth Circuit answered “no.”  The court concluded that the terms are effectively synonymous.  Accordingly, once the jury in this case found that the defendant acted with deliberate indifference, the jury was free to tack on punitive damages.

By our count, the $15.9 million punitive damages award in Marlo v. UPS was the fifth largest punitive damages verdict in California in 2012.  The district court reduced that award to $6.6 million, which was still three times the amount of compensatory damages.

The Ninth Circuit has affirmed the reduced award in this memorandum disposition, by a vote of two to one.  The memorandum is short on analysis, as such dispositions typically are.  It doesn’t explain what sort of conduct warranted such a large award.  It does explain, however, that the UPS vice president who committed the misconduct had sufficient policymaking authority that he qualified as a “managing agent” under Civil Code section 3294.

The memorandum ends with the conclusory statement that the amount of the award, as reduced, is not constitutionally excessive.  It contains no explanation of why a one-to-one ratio is not the maximum permissible ratio in this case given the substantial punitive compensatory damages award. (See State Farm v. Campbell and Roby v. McKesson.)

The dissenting opinion by James G. Carr, a senior district judge sitting with the Ninth Circuit by designation, is even more terse.  It says, in its entirety:

Respectfully, and aware of my lesser familiarity with California law relating to managing agents, I dissent.

Yes, that’s the same Judge Carr who wrote the order we blogged about yesterday, vacating a $20 million punitive damages award against Philip Morris.