Corenbaum v. LampkinCorenbaum v. Lampkin
CROSKEY, Acting P. J.—This case requires us to consider the impact and implications of the California Supreme Court’s opinion in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 [129 Cal.Rptr.3d 325, 257 P.3d 1130] (Howell). As in Howell, the medical providers who treated plaintiffs in this case accepted, pursuant to prior agreements, less than the full amount of their medical billings as payment in full for their services. We
John Corenbaum and Charles Carter (Carter) suffered injuries when a vehicle driven by Dwight Eric Lampkin collided with a taxicab in which they were passengers. Lampkin was convicted of fleeing the scene of an injury accident (
Lampkin contends the trial court erred by admitting (1) evidence of the full amounts billed for plaintiffs’ medical care, rather than the amounts actually paid and accepted as full payment by plaintiffs’ medical providers and (2) evidence of his prior arrest for driving under the influence. He also contends Carter is not entitled to an award of punitive damages because he did not seek punitive damages in his complaint, and the amount of punitive damages awarded to both Corenbaum and Carter is excessive relative to his ability to pay. We conclude that evidence of the full amounts billed for plaintiffs’ medical care was not relevant to the amount of damages for past medical services, damages for their future medical care, or noneconomic damages. Because plaintiffs have not shown that evidence of the full amounts of their medical bills was relevant to any other issue, the admission of such evidence was error. We reject Lampkin’s challenges to the punitive damage awards. We therefore will reverse, in part, the judgments in favor of Corenbaum and Carter and remand the matter for a new trial limited to the issue of compensatory damages.
In their appeal, plaintiffs contend the trial court erroneously held that section 1021.4, which authorizes an attorney fee award to the prevailing plaintiff “[i]n an action for damages against a defendant based upon that defendant’s commission of a felony offense for which that defendant has been convicted,” does not authorize a fee award in these circumstances. We conclude that the court properly held that this action is not based on the felony offense for which Lampkin was convicted. We therefore will affirm the order denying a fee award.
1. Plaintiffs’ Injuries and Lampkin’s Arrest and Conviction
Corenbaum and Carter were passengers in a taxicab traveling east on Broadway in downtown Long Beach at approximately 1:30 a.m. on April 5, 2008, when a Lexus automobile traveling south on Atlantic Avenue collided with the taxicab in the intersection of those two streets. A witness in the vehicle immediately behind the taxicab testified that the Lexus ran the red light traveling at a speed of approximately 50 to 70 miles per hour. The posted speed limit on Atlantic Avenue was 25 miles per hour. Both vehicles involved in the collision came to a rest, and the driver of the Lexus fled on foot. Corenbaum and Carter suffered serious injuries.
Lampkin was one of two registered owners of the Lexus at the time of the collision. He had spent the evening of April 4, 2008, eating dinner with friends at a restaurant and nightclub in downtown Long Beach. He consumed copious amounts of alcohol that evening. Security guards asked him to leave the restaurant and escorted him out at approximately 11:30 p.m. His companions left as well, and the group walked to a bar nearby. While the group was walking to the bar, Lampkin stumbled and fell to the ground. He later separated from the group, walked away from the others and fell a second time.
Nicolle Topp was one of several friends who were with Lampkin on the evening of April 4, 2008. After leaving the bar, several of them went to Topp’s condominium a few blocks away. Lampkin arrived later, at approximately 2:15 a.m., apparently still intoxicated. He fell asleep on the floor. After he awakened in the morning he stated that his keys, wallet, cell phone and jacket were missing. Lampkin and Topp searched for those items where Lampkin said he might have left them, but found nothing, and then went to the parking garage near the restaurant where he said he had parked his Lexus, but did not find his car there. Lampkin called the police and reported his car stolen.
The police interviewed Lampkin that morning and arrested him. A jury found him guilty of fleeing the scene of an injury accident (
Corenbaum filed a complaint against Lampkin and others in February 2010 and filed a first amended complaint in August 2010 alleging counts against Lampkin for negligence and gross negligence, and seeking punitive damages. Charles and Daniella Carter, husband and wife, filed a complaint against Lampkin and others in March 2010 alleging counts against Lampkin for negligence and loss of consortium. The two actions were consolidated before trial.
Lampkin filed a motion in limine before trial to exclude any evidence of his arrest and conviction of driving under the influence arising from a prior incident that occurred on December 23, 2007. He argued that such evidence was relevant only to his character and was inadmissible to show his lack of credibility, pursuant to
Plaintiffs filed a motion in limine before trial to exclude any evidence of the payment of plaintiffs’ medical bills by a collateral source. On the same day, Lampkin filed a “Request for Court to Hold a Post-Verdict Hearing on Reduction of Plaintiffs’ Medical Expenses to the Amount Incurred,” requesting a postverdict hearing “in the event that the jury verdict includes damages for past medical expenses in an amount exceeding the amount paid for those medical services.” The trial court granted plaintiffs’ motion in limine “without prejudice” subject to a posttrial “Hanif/Nishihama” motion.1 The court also granted Lampkin’s request to hold a postverdict hearing, stating, “we’ll have the hearing.”
3. Trial and Verdict
A jury trial in the consolidated actions commenced in May 2011 with Lampkin as the sole defendant appearing at trial. Lampkin admitted that he was negligent before jury selection began. Charles and Daniella Carter moved
In accordance with the trial court’s in limine rulings, the jury heard evidence of the full amounts billed for Corenbaum’s and Carter’s past medical care and heard no evidence of the lesser amounts accepted by their medical providers as full payment pursuant to prior agreements with Lampkin’s private insurers. The trial court, over Lampkin’s objection, also allowed him to be questioned regarding his arrest for driving under the influence on December 23, 2007. The court instructed the jury, including an instruction that Lampkin had admitted his negligence.
The jury returned a special verdict on June 3, 2011, finding that Lampkin’s negligence was a substantial factor in causing harm to each of the three plaintiffs. It found that Corenbaum and Carter had suffered past and future economic and noneconomic damages totaling $1,834,602 and $1,392,141.87, respectively, and that Daniella Carter had suffered $75,000 in damages for loss of consortium.2 It also found that Corenbaum and Carter, respectively, bore 10 percent and 20 percent of the responsibility for their own injuries. The jury also found that Lampkin had acted with malice.
Lampkin testified in the second phase of the trial relating to punitive damages. He admitted that he had been served with a subpoena to produce at trial all records in his possession, custody or control evidencing his “current wealth, assets and liabilities.” He acknowledged that he had produced no documents and stated that he had no assets or wealth and nothing to produce. He later conceded, however, that he had $300 in a savings account and had a bank statement or bankbook evidencing that account, but had failed to produce it. He testified by way of explanation, “I thought it [(the subpoena)] was assets and wealth. It didn’t say anything about checking account or savings account.” He testified that his only assets were his savings account and his personal clothing, the value of which he could not estimate. The jury returned a verdict, also on June 3, 2011, awarding punitive damages in the amount of $20,000 each to Corenbaum and Carter and awarding no punitive damages to Daniella Carter.
4. Posttrial Motions, Judgments and Appeals
On June 24, 2011, Lampkin filed a motion to reduce the compensatory damage awards pursuant to Hanif, supra, 200 Cal.App.3d 635, and Nishihama,
On July 5, 2011, the trial court entered a separate judgment against Lampkin for each plaintiff, awarding Corenbaum and Carter, respectively, $1,537,985.97 and $1,108,362.08 in compensatory and punitive damages, and awarding Daniella Carter $60,000 in compensatory damages.3 The judgments in favor of Corenbaum and Carter also awarded $15,000 in damages against the co-owner of the Lexus, who did not appear at trial.
Lampkin filed a new trial motion challenging the punitive damage awards as excessive and unsupported by the evidence. He argued that there was insufficient evidence of his financial condition at the time of trial and that the awards were excessive in light of Lampkin’s testimony as to his limited assets. He also moved for judgment notwithstanding the verdict on the same grounds. The trial court denied both motions on August 17, 2011.
The California Supreme Court filed its opinion in Howell, supra, 52 Cal.4th 541, on August 18, 2011.
The trial court heard Lampkin’s motion to reduce the compensatory damage awards on September 6, 2011. The court denied the motion, stating in a minute order, “While this Court feels that a reduction is appropriate, it is without jurisdiction to do so. As this Court has already denied the Motion for New Trial, the jurisdiction now rests with the Court of Appeal.”
Corenbaum filed a motion for an award of attorney fees pursuant to section 1021.4.4 Charles and Daniella Carter filed a separate fee motion under the same statute. The trial court denied the motions in an order dated September 6, 2011, stating that the felonious conduct for which Lampkin was convicted
Lampkin filed a notice of appeal on September 16, 2011, stating that he was appealing the judgment entered on July 5, 2011 (No. B236227).5 Plaintiffs jointly filed a notice of appeal from the order denying their motions for attorney fees (No. B237871). We have consolidated the two appeals.
CONTENTIONS
Lampkin contends the trial court erred by (1) admitting evidence of the full amounts billed for Corenbaum’s and Carter’s medical care when the amounts accepted by their medical providers as full payment were less than the amounts billed; (2) admitting evidence of his prior arrest for driving under the influence on December 23, 2007; (3) instructing the jury on punitive damages as to Carter despite the absence of a claim for punitive damages in Carter’s complaint; and (4) denying his motion for a new trial on punitive damages.
Corenbaum and Carter contend the trial court erroneously concluded that section 1021.4 does not authorize an attorney fee award in these circumstances.
DISCUSSION
1. The Admission of Evidence of the Full Amounts Billed for Plaintiffs’ Medical Care Was Error
a. Howell v. Hamilton Meats & Provisions, Inc.
The California Supreme Court in Howell, supra, 52 Cal.4th 541, held that an injured plaintiff whose medical expenses are paid by private insurance can recover damages for past medical expenses in an amount no greater than the amount that the plaintiff’s medical providers, pursuant to prior agreement, accepted as full payment or, to the extent that payment is still owing, the amount that the medical providers had agreed to accept as full payment for the services provided. (Id. at p. 566.) The plaintiff’s pecuniary loss is limited to the amount paid or incurred for past medical services, so the plaintiff cannot recover damages in excess of that amount. (Id. at p. 555.) Howell
Howell also held that limiting a plaintiff’s recovery in this manner does not contravene the collateral source rule. (Howell, supra, 52 Cal.4th at pp. 563-566.) The collateral source rule provides that the damages awarded to an injured plaintiff cannot be reduced by the amount paid on the plaintiff’s behalf by a source independent of the tortfeasor, such as an insurer. (Id. at p. 551; Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 [84 Cal.Rptr. 173, 465 P.2d 61] (Helfend).) “The rule thus dictates that an injured plaintiff may recover from the tortfeasor money an insurer has paid to medical providers on his or her behalf.” (Howell, supra, at p. 551.) Helfend reaffirmed California’s acceptance of the collateral source rule, but did not explain “how the collateral source rule would apply to damages for past medical expenses when the amount billed for medical services substantially exceeds the amount accepted in full payment.”6 (Howell, supra, at p. 552.)
Medical providers typically enter into agreements with private insurers in which the medical providers agree to accept discounted payments for the services provided to insured patients. (Howell, supra, 52 Cal.4th at pp. 558, 560-561.) The term “ ‘negotiated rate differential’ ” refers to the difference between the full amount billed and the amount that the provider has agreed to accept from the insurer as full payment. (Id. at p. 555.) An insured plaintiff incurs no liability for the negotiated rate differential and suffers no pecuniary loss in that amount. (Id. at pp. 555, 557.) Instead, the plaintiff’s pecuniary loss is limited to the amount that the medical providers accepted or agreed to accept as full payment. (Id. at p. 555.)
To be recoverable in damages, a plaintiff’s medical expenses must be both incurred and reasonable. (Howell, supra, 52 Cal.4th at p. 555.) Damages for past medical expenses are limited to the lesser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the
Howell also stated that the full amount billed by medical providers is not an accurate measure of the value of medical services. (Howell, supra, 52 Cal.4th at p. 562.) Howell addressed this issue in rejecting the argument that limiting the plaintiff’s recovery to the amount paid or incurred for medical expenses would result in a windfall to the tortfeasor. (Id. at pp. 560-563.) Howell noted that there can be significant disparities between the amounts charged by medical providers and the costs of providing services, that prices for providing a particular service can “vary tremendously . . . from hospital to hospital in California,” and that there can be significant disparities between the amounts charged to insured and uninsured patients. (Id. at pp. 560-562.) Even uninsured patients often pay less than the published rates as a result of means-tested discounts. (Id. at p. 561.)
“With so much variation, making any broad generalization about the relationship between the value or cost of medical services and the amounts providers bill for them—other than that the relationship is not always a close one—would be perilous. [¶] . . . [I]t is not possible to say generally that providers’ full bills represent the real value of their services, nor that the discounted payments they accept from private insurers are mere arbitrary reductions.” (Howell, supra, 52 Cal.4th at p. 562, italics added.) Howell stated that “a medical care provider’s billed price for particular services is not necessarily representative of either the cost of providing those services or their market value.” (Id. at p. 564.)
Howell emphasized that the negotiated rate may be the best indication of the reasonable value of the services provided and that it is unclear how any other “market value” could be determined. Howell stated, “pricing of medical services is highly complex and depends, to a significant extent, on the identity of the payer. In effect, there appears to be not one market for medical
Howell also held that the negotiated rate differential is not a collateral source payment and therefore is not subject to the collateral source rule. (Howell, supra, 52 Cal.4th at pp. 563-566.) The collateral source rule does not apply to losses or liabilities that the plaintiff never incurred and therefore is not entitled to recover. (Id. at pp. 563-564.) For this and other reasons, the collateral source rule is inapplicable to the negotiated rate differential and does not make that amount recoverable as tort damages. (Id. at pp. 564-565.)
Further, the evidentiary aspect of the collateral source rule makes any evidence of a collateral source payment inadmissible for the purpose of determining the amount of damages. (Howell, supra, 52 Cal.4th at p. 552.) This precludes evidence that an insurer, or another source independent of the tortfeasor, paid for the plaintiff’s medical care, but does not preclude evidence of the amount that a medical provider, pursuant to prior agreement, accepted as full payment. (Id. at pp. 563, 567.) Evidence of the amount that a medical provider accepted as full payment, pursuant to prior agreement, is relevant to the amount of damages for past medical expenses and is admissible for that purpose, “assuming it satisfies other rules of evidence.” (Id. at p. 567.)
Evidence of the full amount billed, in contrast, is not relevant to the amount of damages for past medical expenses if the plaintiff never incurred liability for that amount.8 “Where the provider has, by prior agreement, accepted less than a billed amount as full payment, evidence of the full billed
b. Evidence of the Full Amount Billed Is Not Relevant to the Amount of Past Medical Expenses
Although Howell, supra, 52 Cal.4th 541, did not directly so hold, we are persuaded by the carefully considered reasoning in Howell, and therefore do hold that evidence of the full amount billed for a plaintiff‘s medical care is not relevant to the determination of a plaintiff‘s damages for past medical expenses, and therefore is inadmissible for that purpose if the plaintiff‘s medical providers, by prior agreement, had contracted to accept a lesser amount as full payment for the services provided.10 In contrast, evidence of the amount accepted by medical providers as full payment does not violate the collateral source rule and is admissible provided that the source of the payment is not disclosed to the jury and the evidence satisfies the other rules of evidence. (52 Cal.4th at p. 567.)
Consumer Attorneys argues that any evidence of the amount accepted by a medical provider as full payment for the services provided, including testimony given in court, constitutes evidence of a statement as to the terms of the agreement between the medical provider and the plaintiff‘s health insurer and therefore is inadmissible under the hearsay and parol evidence rules. We disagree. The hearsay rule provides that evidence of an out-of-court statement offered to prove the truth of the matter stated is inadmissible unless
Consumer Attorneys also argues that a plaintiff seeking damages for past medical expenses should be able to present evidence of not only the amount accepted as full payment for past medical services provided, but also the reasonable value of those services. We reject that argument as well. Because an injured plaintiff can recover as damages for past medical expenses no more than the amount incurred for those past medical services (Howell, supra, 52 Cal.4th at p. 555), evidence that the reasonable value of such services exceeded the amount paid is irrelevant and inadmissible on the issue of the amount of damages for past medical service (see id. at p. 559). Moreover, for the jury to consider both evidence of the amount accepted by medical providers as full payment and evidence of a potentially greater reasonable value would very likely cause jury confusion and suggest the existence of a collateral source payment, contrary to the evidentiary aspect of the collateral source rule. Likewise, the presentation in each case of evidence as to the reasonable value of a plaintiff‘s medical care apart from the amount accepted by medical providers as full payment would, as Howell stated, “routinely involve violations of the evidentiary aspect of the collateral source rule. If the jury were required to decide whether the price actually paid for medical care was lower than reasonable, the defense could not in fairness be precluded from showing the circumstances by which that price was determined, including that it was negotiated and paid by the plaintiff‘s health insurer. In contrast, our conclusion, that the plaintiff may recover no more than the medical providers accepted in full payment for their services, allows for proof of the amount paid without admitting evidence of the payment‘s source.”12 (Howell, supra, 52 Cal.4th at p. 563.)
c. Evidence of the Full Amount Billed for Past Medical Services Is Not Relevant to the Determination of Damages for Future Medical Expenses
An injured plaintiff is entitled to recover the reasonable value of medical services that are reasonably certain to be necessary in the future. (
As already noted, Howell stated that the full amount billed is not an accurate measure of the value of medical services, that there can be significant disparities between the amounts charged by medical providers and the costs of providing services, and that the price of a particular service can “vary tremendously . . . from hospital to hospital in California” and “a medical care provider‘s billed price for particular services is not necessarily representative of either the cost of providing those services or their market value.” (Howell, supra, 52 Cal.4th at pp. 560-562, 564.) These and other observations in Howell compel the conclusion that the full amount billed by medical providers is not relevant to the value of past medical services. For the same reason,
d. Evidence of the Full Amount Billed for Past Medical Services Cannot Support an Expert Opinion on the Reasonable Value of Future Medical Services
Our conclusion that the full amount billed by medical providers for past medical services is not relevant to the value of the services provided also has implications for expert opinion testimony that may be offered on remand as to the reasonable value of medical services to be provided in the future. Because the full amount billed for past medical services provided to plaintiffs is not relevant to the value of those services, we believe that the full amount billed for those past medical services can provide no reasonable basis for an expert opinion on the value of future medical services. Evidence of the full amount billed for past medical services provided to plaintiffs therefore cannot support an expert opinion on the reasonable value of future medical services. (
Similarly,
Moreover, for an expert to base an opinion as to the reasonable value of future medical services, in whole or in part, on the full amount billed for past medical services provided to a plaintiff would lead to the introduction of evidence concerning the circumstances by which a lower price was negotiated with that plaintiff‘s health insurer, thus violating the evidentiary aspect of the collateral source rule. (Howell, supra, 52 Cal.4th at p. 563.) Thus, we conclude that any expert who testifies on remand with respect to the reasonable value of the future medical services that Corenbaum and Carter are reasonably likely to require may not rely on the full amounts billed for plaintiffs’ past medical expenses.14
e. Evidence of the Full Amount Billed Is Not Relevant to the Amount of Noneconomic Damages
Noneconomic damages compensate an injured plaintiff for nonpecuniary injuries, including pain and suffering. Pain and suffering is a unitary concept that encompasses physical pain and various forms of mental anguish and emotional distress. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 [103 Cal.Rptr. 856, 500 P.2d 880].) Such injuries are subjective, and the determination of the amount of damages by the trier of fact is equally subjective. (Id. at p. 893.)15 There is no fixed standard to determine the amount of noneconomic damages. Instead, the determination is committed to the discretion of the trier of fact. (7 Cal.3d at p. 893; see Rest.2d Torts, § 912, com. b, pp. 479-480.)
This is no easy task. In Beagle v. Vasold (1966) 65 Cal.2d 166 [53 Cal.Rptr. 129, 417 P.2d 673], the Supreme Court, in allowing a per diem pain and suffering argument, commented, “One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively
Lawyers have used the amount of economic damages as a point of reference in their argument to a jury, or in settlement discussions, as a means to help determine the amount of noneconomic damages. We need not comment on this practice except to state that it can provide no justification for the admission of evidence that is otherwise inadmissible and that is not relevant to the amount of economic damages. As we have explained, the full amount billed for past medical services is not relevant to a determination of the damages for either past or future medical services if the medical providers had agreed to accept a lesser amount as full payment. We conclude that evidence of the full amount billed is not admissible for the purpose of providing plaintiff‘s counsel an argumentative construct to assist a jury in its difficult task of determining the amount of noneconomic damages and is inadmissible for the purpose of proving noneconomic damages.
f. The Judgment Must Be Reversed for a New Trial on Compensatory Damages
As explained above, we conclude that evidence of the full amounts billed for Corenbaum‘s and Carter‘s medical care was not relevant to the amount of their damages for past medical expenses, future medical expenses or noneconomic damages, and it was not offered in evidence for any other purpose. The admission of evidence of the full amounts billed therefore was error. (
2. Lampkin May Raise the Issue on Appeal
Lampkin‘s failure to object to the admission of evidence of the full amounts billed does not preclude him from raising the issue on appeal. An appellant may challenge the admission of evidence for the first time on appeal despite his or her failure to object in the trial court if the challenge is based on a change in the law that the appellant could not reasonably have been expected to foresee. (People v. Black (2007) 41 Cal.4th 799, 810-811 [62 Cal.Rptr.3d 569, 161 P.3d 1130]; People v. Turner (1990) 50 Cal.3d 668, 703 [268 Cal.Rptr. 706, 789 P.2d 887].) Opinions by the Courts of Appeal prior to Howell, supra, 52 Cal.4th 541, held that the rule from Hanif, supra, 200 Cal.App.3d 635, and Nishihama, supra, 93 Cal.App.4th 298, limiting the amount of a plaintiff‘s recovery did not preclude the admission of evidence of the full amount billed for past medical care, and stated that such evidence provided the jury a more accurate indication and a more complete picture of the extent of the plaintiff‘s injuries. (Olsen v. Reid (2008) 164 Cal.App.4th 200, 204 [79 Cal.Rptr.3d 255]; Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157 [46 Cal.Rptr.3d 780].) Lampkin could not reasonably have been expected to anticipate the rule announced for the first time in Howell, supra, 52 Cal.4th at page 567, that evidence of the full amount billed is not relevant on the issue of past medical expenses in these circumstances.
On the other hand, we reject plaintiffs’ argument that the rule that evidence of the full amounts billed is inadmissible in these circumstances (see Howell, supra, 52 Cal.4th at p. 567) should not apply retroactively to the judgments entered in plaintiffs’ favor.17 As a general rule, judicial decisions in tort cases are given full retroactive effect in all pending cases, including cases pending on appeal. (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978-979, 981-982 [258 Cal.Rptr. 592, 772 P.2d 1059]; Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24 [44 Cal.Rptr.2d 370, 900 P.2d 619].) But considerations of fairness and public policy may justify an exception when a judicial decision changes a settled rule of law on which the parties have relied. (Claxton v. Waters (2004) 34 Cal.4th 367, 377 [18 Cal.Rptr.3d 246, 96 P.3d 496].) ” ’ “Particular considerations relevant to the retroactivity determination include the reasonableness of the parties’ reliance on the former rule, the nature of the change as substantive or procedural, retroactivity‘s effect on the administration of justice, and the purposes to be served by the new rule. [Citations.]” ’ [Citations.]” (Id. at pp. 378-379.)
The parties here relied on the former rule allowing the admission of evidence of the full amounts billed, but did so subject to Lampkin‘s right to seek a reduction of damages in a posttrial hearing. Our application of the rule that evidence of the full amounts billed is inadmissible in these circumstances will not upset any expectation or reliance regarding the amount recoverable and will result in no unfairness. Moreover, the new rule concerns only the relevance and admissibility of evidence of the full amount billed and does not change the legal consequences of past conduct by imposing new or different liabilities for such conduct. (Cf. Californians for Disability Rights v. Mervyn‘s, LLC (2006) 39 Cal.4th 223, 230-232 [46 Cal.Rptr.3d 57, 138 P.3d 207].) We conclude that the exception to the general rule of full retroactivity is inapplicable.
3. Lampkin Has Shown No Error in the Admission of Evidence of His Prior Arrest for Driving Under the Influence
Lampkin contends the evidence of his arrest for driving under the influence on December 23, 2007, was not relevant to any issue in this case and was unduly prejudicial. He argues that the evidence was not relevant to his awareness of the dangers of drunk driving at the time of the April 5, 2008, incident because at that time he had neither attended drug or alcohol counseling as a result of the prior incident nor suffered a conviction as a result of that incident. He argues that the only purpose of the evidence was to show a tendency to act consistent with his conduct on a specific prior occasion. He argues that such evidence is inadmissible character evidence under
Lampkin‘s argument on appeal differs somewhat from his argument in the trial court. He argued on his motion in limine in the trial court, based on
Lampkin also has not shown that he is entitled to a reversal based on
4. The Trial Court Properly Instructed the Jury on Punitive Damages
Lampkin contends Carter failed to allege a claim for punitive damages in his complaint, so the trial court erred by instructing the jury on punitive damages as to Carter. But the reporter‘s transcript shows that the court granted the Carters’ oral motion before opening statements to amend their complaint by adding a count for willful misconduct and a prayer for punitive damages. We therefore conclude that the court did not err in instructing the jury on punitive damages as to Carter.
5. Lampkin Is Estopped from Asserting That the Punitive Damage Awards Are Excessive
Lampkin contends there is insufficient evidence of his financial condition to justify an award of punitive damages in any amount, and his own testimony as to his financial condition shows that the $40,000 awarded in punitive damages is excessive. Whatever the merits of this argument, Lampkin is estopped from asserting it.
“Even if an award is entirely reasonable in light of the other two factors . . . , the award can be so disproportionate to the defendant‘s ability to pay that the award is excessive for that reason alone.” (Adams v. Murakami, supra, 54 Cal.3d at p. 111.) Absent meaningful evidence of a defendant‘s financial condition, a reviewing court cannot determine whether a punitive damage award is excessive under California law. (Id. at pp. 113-114.) Accordingly, evidence of the defendant‘s financial condition at the time of trial is a prerequisite to an award of punitive damages. (Id. at pp. 108-109, 116; Kelly v. Haag (2006) 145 Cal.App.4th 910, 915 [52 Cal.Rptr.3d 126].)
A trial court ruling on a new trial motion may grant a new trial on the ground of excessive damages only if “after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (
A defendant who fails to comply with a court order to produce records of his or her financial condition may be estopped from challenging a punitive damage award based on lack of evidence of financial condition to support the award. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 608-609 [92 Cal.Rptr.2d 897] (Mike Davidov).) The trial court in Mike Davidov ordered the defendant to produce all records of his financial condition for the purpose of determining the amount of punitive damages. The defendant failed to comply with the order, and the court awarded $96,000 in punitive damages. (Id. at pp. 603-604.) We noted that the defendant‘s records were the only source of information available to the plaintiff regarding the defendant‘s financial condition and that the defendant‘s disobedience of the court order prevented the plaintiff from obtaining that
Similarly here, Lampkin failed to comply with a subpoena requiring him to produce at trial records of his financial condition, and he does not challenge that subpoena on appeal. A subpoena “is a writ or order directed to a person and requiring the person‘s attendance at a particular time and place to testify as a witness” (
6. Section 1021.4 Does Not Authorize a Fee Award in These Circumstances
Plaintiffs contend the trial court erroneously concluded that it had no authority to award them attorney fees under section 1021.4. We independently review the denial of plaintiffs’ motions for attorney fees to the extent that the ruling was based on the court‘s construction of a statute and application of the statute to undisputed facts. (California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1544 [68 Cal.Rptr.3d 391].)
“Our fundamental task in construing a statute is to ascertain the legislative intent so as to effectuate the purpose of the law. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715 [3 Cal.Rptr.3d 623, 74 P.3d 726].) Because the statutory language ordinarily is the most reliable indicator of legislative intent, we begin by examining the words of the statute. (Ibid.) We give the words of the statute their ordinary and usual meaning and construe them in the context of the statute as a whole and the entire scheme of law of which it is a part. (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043 [12 Cal.Rptr.3d 343, 88 P.3d 71].) If the language is clear and a literal construction would not result in absurd consequences that the Legislature did not intend, we presume that the Legislature meant what it said and the plain meaning governs. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [21 Cal.Rptr.3d 676, 101 P.3d 563].) If the language is ambiguous, we
Section 1021.4 authorizes an attorney fee award in favor of the prevailing plaintiff “[i]n an action for damages against a defendant based upon that defendant‘s commission of a felony offense for which that defendant has been convicted.” In our view, an action for damages is “based upon” the defendant‘s commission of a felony within the meaning of the statute if and only if the damages claimed by the plaintiff were caused by the same felonious criminal conduct for which the defendant was convicted. (Vaillette v. Fireman‘s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 689, fn. 7 [22 Cal.Rptr.2d 807] [“Section 1021.4 authorizes the court to award reasonable attorney fees to a prevailing plaintiff against the defendant convicted of the felony that has caused the plaintiff‘s loss.” (italics omitted)]; see Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1650 [4 Cal.Rptr.2d 52] [“What section 1021.4 and the restitution provisions of Proposition 8 seek to address are felonies that cause injuries to other persons.“]; Wood v. McGovern (1985) 167 Cal.App.3d 772, 778 [213 Cal.Rptr. 498] [“Section 1021.4 simply provides for the award of attorney‘s fees to a plaintiff who prevails in an action to recover losses occasioned by the commission of a felony by a convicted defendant.“].)
Vehicle Code section 20001 states, in relevant part:
“(a) The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.
“(b)(1) Except as provided in paragraph (2), a person who violates subdivision (a) shall be punished by imprisonment in the state prison, or in a county jail for not more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that imprisonment and fine.”20
Many courts have concluded that the conduct made criminal by
We therefore conclude that when a defendant has been convicted of a violation of
People v. Carbajal (1995) 10 Cal.4th 1114 [43 Cal.Rptr.2d 681, 899 P.2d 67], cited by plaintiffs, is not on point. The trial court in Carbajal ordered restitution, as a condition of probation, for property damage caused by a driver who was convicted of fleeing the scene of an injury accident (
DISPOSITION
The judgments in favor of Corenbaum and Carter are reversed as to the awards of compensatory damages against Lampkin, and the matter is remanded with directions to conduct a new trial limited to determining the amounts of compensatory damages in favor of Corenbaum and Carter in
Kitching, J., and Aldrich, J., concurred.
On May 13, 2013, the opinion was modified to read as printed above.