A California plaintiff who sues a healthcare provider for professional negligence cannot request punitive damages in the complaint until the trial court determines, based on competent evidence, that the plaintiff has a “substantial probability” of obtaining punitive damages.  See Code of Civil Procedure section 425.13.  California’s appellate courts take this requirement very seriously, as this published opinion indicates (Pomona Valley Hospital Medical Center v. Superior Court).

The plaintiff sued Pomona Valley Hospital, claiming she was injured by a medical putty (Striker Biotech’s OP-1 Putty) used during her back surgery.  To support her claim for punitive damages, she relied on letters showing that the hospital was conducting a study on OP-1 putty.  She said the letters showed the hospital acted with malice by including her in the study without her consent.  The trial court agreed, and allowed the plaintiff to amend her complaint to request punitive damages.

The defendant petitioned the Court of Appeal (Second Appellate District, Division Five) for writ relief.  The Court of Appeal called for further briefing and scheduled an oral argument.  The oral argument apparently did not go well for the plaintiff, who sent a letter to the court withdrawing her punitive damages claim. Despite that letter, the Court of Appeal apparently concluded that the California legal community would benefit from further guidance on this issue, so it issued a published opinion reversing the trial court’s order.  The Court of Appeal held that the plaintiff failed to submit any evidence that she was included in the OP-1 study, or that anyone was included in the study without their informed consent.  Her evidence established nothing more than the existence of a study, which was not enough to carry her burden of demonstrating a probability of success on her claim for punitive damages.

Public entities are immune from punitive damages in California under Government Code section 818. What about agents performing a public entity’s functions?  This unpublished opinion says the statutory immunity doesn’t extend to them.

Plaintiff Thomas Madeiros filed a tort claim with the City of Palo Alto.  Defendant George Hills Co. (GHC) was a third party-contractor responsible for administering claims against the city.  After GHC told Madeiros his claim was untimely, he sued GHC for false representation, seeking punitive damages.  The trial court granted GHC’s motion to strike the punitive damages claim under section 818, under the theory that GHC was entitled to immunity as an agent performing the duties of a public entity.

The California Court of Appeal (Third Appellate District) reversed and reinstated the punitive damages claim. It held that a contractor for a public entity is not immune from punitive damages for its own tortious conduct. The case will go back to the trial court, and Medeiros will have the chance to prove that GHC acted with malice, oppression, or fraud in its processing of his claim.

As a general rule, when a California defendant wants to challenge a jury’s damages award as excessive, the defendant must raise that issue in a new trial motion to preserve it for appeal.  This unpublished opinion (Silas v. Arden) from the Second Appellate District, Division One, applies that rule and finds that a defendant waived his right to challenge a punitive damages award by not raising excessive damages in a motion for new trial.

In Silas, the defendant argued that the award was excessive because the plaintiff’s counsel inflamed the passions and prejudices of the jury with improper arguments.  That seems like the sort of argument that is a trial court should probably decide in the first instance.  In other situations, however, a defendant might be able to challenge a punitive damages award on appeal even without moving for a new trial.  A defendant who argues that an award is excessive as a matter of law under the Due Process Clause should be able to raise that argument for the first time on appeal, because it is a pure legal issue that does not require the appellate court to resolve evidentiary conflicts.  See, for example, Storage Services v. Ooosterbaan (1989) 214 Cal.App.3d 498, 515, fn. 9 [no waiver where excessive damages argument does not involve conflicting testimony or issues of credibility].