BULLOCK v. PHILIP MORRIS USA, INC

Filed 1/30/08 - opinion on remand from Supreme Court

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Story continues from Part III .

The reprehensibility of the defendants conduct toward the plaintiff depends in part on the scale and profitability of the course of conduct of which the defendants conduct toward the plaintiff is a part. (Johnson, supra, 35 Cal.4th at pp. 1207‑1208.) [T]he court in State Farm noted that conduct involving repeated actions was worse than, and could be punished more severely than, conduct limited to an isolated incident. (State Farm, supra, [538 U.S.] at p. 419.) [Fn. omitted.] (Johnson, supra, at p. 1206.) The State Farm court stated that even [l]awful out-of-state conduct may be probative when it demonstrates the deliberateness and culpability of the defendants action in the State where it is tortious, but that conduct must have a nexus to the specific harm suffered by the plaintiff. (State Farm, supra, at p. 422.) The California Supreme Court in Johnson stated, To consider the defendants entire course of conduct in setting or reviewing a punitive damages award, even in an individual plaintiffs lawsuit, is not to punish the defendant for its conduct toward others. An enhanced punishment for recidivism does not directly punish the earlier offense; it is, rather,   a stiffened penalty for the last crime, which is considered to be an aggravated offense because a repetitive one.   (Ewing v. California (2003) 538 U.S. 11, 25-26 [155 L.Ed.2d 108, 123 S.Ct. 1179].) . . . By placing the defendants conduct on one occasion into the context of a business practice or policy, an individual plaintiff can demonstrate that the conduct toward him or her was more blameworthy and warrants a stronger penalty to deter continued or repeated conduct of the same nature. (Johnson, supra, at pp. 1206‑1207, fn. 6.) Johnson stated further, The scale and profitability of a course of wrongful conduct by the defendant cannot justify an award that is grossly excessive in relation to the harm done or threatened, but scale and profitability nevertheless remain relevant to reprehensibility and hence to the size of award warranted, under the guideposts, to meet the states interest in deterrence. . . . Nothing the high court has said about due process review requires that California juries and courts ignore evidence of corporate policies and practices and evaluate the defendants harm to the plaintiff in isolation. (Id. at p. 1207.)

The United States Supreme Court in Williams, supra, 127 S.Ct. 1057, held that a state court may not award punitive damages for the purpose of punishing a defendant for harm caused to nonparties to the litigation. (Id. at p. 1063.) Williams stated, In our view, the Constitutions Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent . . . . [1] (Ibid.) Williams explained that a defendant would have no meaningful opportunity to defend against a charge of injury caused to others and that the jury would have to speculate as to the nature and extent of such injuries. (Ibid.) Williams stated that a jury may consider evidence of harms to others in determining the degree of reprehensibility, but stated that a jury cannot consider that evidence for the purpose of punishing the defendant: Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible . . . .  Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties. (Id., at p. 1064.) Thus, Williams distinguished (1) considering evidence of harm caused to others to determine the degree of reprehensibility (one of the three constitutional guideposts to determine the due process limits on the amount of a punitive damages award) of the conduct that harmed the plaintiff from (2) considering that same evidence for the purpose of punishing the defendant.

Williams rejected the statement by the Oregon Supreme Court that  [i]f a jury cannot punish for the conduct, then it is difficult to see why it may consider it at all.  (Williams, supra, 127 S.Ct. at pp. 1064-1065.) Williams again distinguished considering harm caused to others to determine reprehensibility from considering that same evidence for the purpose of punishing the defendant: We have explained why we believe the Due Process Clause prohibits a States inflicting punishment for harm caused strangers to the litigation. At the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility. [Citation.] (Id. at p. 1065)

Williams stated further: How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In particular, we believe that where the risk of that misunderstanding is a significant onebecause, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jurya court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases. (Williams, supra, 127 S.Ct. at p. 1065, initial italics added, subsequent italics in original.)

b. Philip Morriss Proposed Instruction Was Not Improper and the

Courts Refusal to Instruct Was Prejudicial Error

Philip Morris contends the refusal of three of its proposed instructions on punitive damages was error. Proposed instruction V‑1 stated, You are not to impose punishment for harms suffered by persons other than the plaintiff before you. Proposed instruction V‑2 stated, You are not to punish defendant for the impact of its conduct on individuals in other states or countries. Proposed instruction AA stated, You must consider Philip Morris financial condition and ability to pay a punitive damages award as part of the process of arriving at an appropriate punishment. But you may not punish a defendant simply because it is large. The first of these proposed instructions bears a handwritten Denied, the second bears in the same handwriting Denied and the judges initials, and the third bears no indication of any ruling. Bullock acknowledges that the court refused the instructions. We conclude that the refusal of the first of these instructions was error.

A party is entitled to an instruction on each theory of the case supported by the pleadings and substantial evidence for which the party requests a proper instruction, as stated ante. (Soule, supra, 8 Cal.4th at p. 572; Munoz v. City of Union City, supra, 120 Cal.App.4th at pp. 1107-1108.) Proposed instruction V‑1 expressed the rule of law later confirmed in Williams, that the jury could not award punitive damages for the purpose of punishing Philip Morris for harming nonparties to the litigation. (Williams, supra, 127 S.Ct. at pp. 1063-1065.)

The fact that proposed instruction V‑1 did not include the qualification that evidence of harm caused to others could be considered to determine the reprehensibility of the conduct that harmed Bullock did not render the instruction incomplete or misleading. Williams made it clear that imposing punishment for harm caused to others, which is prohibited, is separate and distinct from determining the degree of reprehensibility by considering evidence of harm caused to others, which is permitted. (Williams, supra, 127 S.Ct. at pp. 1063-1065.) A jury that considers evidence of harm caused to others to determine the reprehensibility of a defendants conduct toward the plaintiff, for the purpose of determining the amount of a punitive damages award, is not imposing punishment for harm caused to others. (Ibid.) It is therefore appropriate to state without qualification that a jury may not impose punishment for harms suffered by nonparties to the litigation, as proposed instruction V‑1 stated.

Philip Morris had no duty to qualify its proposed instruction in order to encompass a rule of law favorable to Bullock concerning the permissible use of evidence of harm caused to others. Each party in a civil case has a duty to propose instructions that accurately state the law supporting its own theory of the case, and need not qualify its proposed instructions for the benefit of an opposing party. (Agarwal v. Johnson, supra, 25 Cal.3d at pp. 949-951 [held that an instruction on punitive damages that correctly stated the law but could have been qualified was proper, and that the appellants waived their objection by failing to request a qualifying instruction]; Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 543 [Plaintiffs were not required to cover in their requested instructions each and every point favorable to defendant. If defendant had decided that further instruction about the statute would have been helpful, it could have submitted such an instruction. [Citations.]]; Hensley v. Harris (1957) 151 Cal.App.2d 821, 825 [Each party has a duty to propose instructions in the law applicable to his own theory of the case. He has no duty to propose instructions which relate only to the opposing theories of his adversary.].) Accordingly, we conclude that proposed instruction V‑1 was not improper and that the court erred by refusing to give the instruction.

Evidence was presented at trial of Philip Morriss nationwide publicity campaign designed to mislead the public as to the adverse health effects of smoking cigarettes, as we have discussed. Evidence also was presented of the numbers of smokers in California who have died as a result of smoking cigarettes. Bullocks counsel emphasized that evidence in closing argument and referred to the numbers of people who were lied to year after year and who allegedly died as a result of smoking. He argued that for each lawsuit against Philip Morris for smoking-related illnesses years, 28,000 Californians have died from smoking in the past 40 years. The $28 billion in punitive damages awarded by the jury was equivalent to $1 million for each of the purported 28,000 deaths. In light of this record, and absent any instruction providing adequate guidance concerning evidence of harm caused to others, we conclude that the refusal of Philip Morriss proposed instruction V‑1 was prejudicial.[2]

Proposed instruction V‑2 was similar in effect to proposed instruction V‑1. In light of our conclusion that the refusal to give the latter was prejudicial error, we need not decide whether the refusal to give the former was error.

As for proposed instruction AA, the court properly instructed the jury to consider the amount of punitive damages that would have a deterrent effect on Philip Morris in light of its financial condition. (Simon, supra, 35 Cal.4th at pp. 1184-1185.) The first sentence of proposed instruction AA (You must consider Philip Morris financial condition and ability to pay a punitive damages award as part of the process of arriving at an appropriate punishment.) was substantially similar to the instruction given, so the refusal to give that part of the proposed instruction was not error. In our view, the second sentence of the proposed instruction (But you may not punish a defendant simply because it is large.) also was encompassed in the same instruction given together with the instruction stating that punitive damages must bear a reasonable relation to the injury, harm, or damage actually suffered by the plaintiff. Those instructions, taken together, adequately informed the jury that the amount of punitive damages cannot be based on the defendants size alone, while properly stating that the defendants financial condition is an appropriate consideration. Proposed instruction AA was properly rejected.

7. A Remittitur by This Court Would Be Inappropriate

Bullock contends the appropriate remedy for any instructional error with respect to punitive damages is for this court to reduce the amount of punitive damages awarded by the jury by way of remittitur. An appellate court may reduce the amount of an excessive damages award by issuing a remittitur that conditions affirmance of the judgment on the plaintiffs consent to the reduction. (See Cunningham v. Simpson (1969) 1 Cal.3d 301, 310; Deevy v. Tassi (1942) 21 Cal.2d 109, 120-121.) The use of a remittitur by a reviewing court is not limited to cases where the only error at trial was in the amount of the award. Rather, remittitur may be appropriate where instructional error resulted in an excessive award and the amount of the excess is ascertainable. (Salstrom v. Orleans Bar Gold Min. Co. (1908) 153 Cal. 551, 559; Conger v. White (1945) 69 Cal.App.2d 28, 42-43.) Moreover, in Stevens v. Snow (1923) 191 Cal. 58, 68, disapproved on another ground in Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1208‑1211, the California Supreme Court issued a remittitur reducing by one‑half the amount of a judgment based on instructional error and error in the admission of evidence despite the Supreme Courts express acknowledgment that it could not determine how the errors affected the amount of the judgment.

In this case, we cannot determine how the instructional error that we have found affected the amount of the punitive damages award and we cannot substitute our own assessment of the appropriate amount of punitive damages for that of a jury (or a judge on a new trial motion). We therefore conclude that a remittitur by this court would be inappropriate. A new trial limited to the amount of punitive damages is thus required.

8. Scope of the New Trial

A trial court ruling on a new trial motion may order a new trial on a limited issue if a trial on that issue alone would not prejudice any party. (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285; Leipert v. Honold (1952) 39 Cal.2d 462, 466.) Similarly, an appellate court may order a new trial on a limited issue if a trial on that issue alone would not cause such uncertainty or confusion as to deny a fair trial. (Brewer v. SecondBaptistChurch (1948) 32 Cal.2d 791, 801; see Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776 (Torres).) The primary reasons to order a new trial limited to an issue, or issues, that can be determined separately without prejudice to any party are to relieve the trial court and the parties of the unnecessary burden of relitigating issues that have been decided, and to respect and preserve the results of a trial on issues as to which the appellant has not shown error. (Leipert, supra, at p. 466; Barmas, Inc. v. Superior Court (2001) 92 Cal.App.4th 372, 375-376 (Barmas); see Torres, supra, at p. 776.) Whether an issue can be tried separately without prejudice to any party depends on the particular circumstances of each case. (Brewer, supra, at p. 801.) Any doubts as to whether a new trial limited to damages is appropriate should be resolved in favor of a complete new trial. (Liodas, supra, at pp. 285-286; Leipert, supra, at pp. 466-467.)

The question whether a limited new trial is appropriate typically arises in cases involving excessive or inadequate compensatory damages. (See 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, 114, pp. 618-619.) A new trial limited to determining the amount of compensatory damages ordinarily is proper unless the record indicates that the finding of liability resulted from a compromise verdict, in which case the new trial should encompass both liability and damages. (E.g., Leipert v. Honold, supra, 39 Cal.2d at p. 467; Hughes v. Schwartz (1942) 51 Cal.App.2d 362, 364-370.)

In Liodas v. Sahadi, supra, 19 Cal.3d 278, the California Supreme Court stated that the defendants liability was correctly determined, but concluded that a new trial on compensatory and punitive damages must encompass liability as well. The trial court had instructed the jury on the measure of damages for fraud by a fiduciary, but refused an instruction on the measure of damages for ordinary fraud. (Id. at. pp. 283-284.) Liodas stated that there was conflicting evidence as to when the fiduciary relationship ended, and that it was impossible to determine whether the jury found the defendant liable for ordinary fraud or fraud by a fiduciary. (Id. at pp. 284, 286.) Liodas stated further that numerous transactions were alleged to be fraudulent, that the evidence was in conflict, and that it was impossible to determine which transactions the jury found fraudulent. (Id. at p. 286.) Liodas stated that before awarding damages, the second jury must determine whether the defendant was liable for fiduciary or ordinary fraud and must determine which transactions were fraudulent. (Ibid.) Because those issues must be redetermined in the new trial, Liodas concluded that the issue of liability was inseparable from the issue of damages, that a partial new trial would be prejudicial to the defendant, and that a new trial on all issues therefore was required. (Ibid.)

Liodas v. Sahadi, supra, 19 Cal.3d 278, is distinguishable from the present case because the new jury in Liodas had to determine which of the numerous transactions were fraudulent and whether the defendant was acting as a fiduciary at the time in order to apply the proper measure of compensatory damages to each transaction. Here, in contrast, there was no error in the award of compensatory damages, and the jury in the new trial on punitive damages need not make any finding with respect to liability in order to determine the proper measure of damages. Under California law and the federal due process clause, the jury awarding punitive damages in the new trial must consider the reprehensibility of Philip Morriss conduct, the amount of compensatory damages or the harm suffered by Bullock, and Philip Morriss financial condition, as we have stated. The trial court has the discretion to admit evidence relevant to those considerations notwithstanding the fact that Philip Morriss liability for compensatory and punitive damages and the amount of compensatory damages have been established. (Torres, supra, 15 Cal.4th at p. 781, fn. 3; Sharp v. Automobile Club of So. Cal. (1964) 225 Cal.App.2d 648, 654.)

Torres is instructive. The question presented in Torres was whether Civil Code section 3295, subdivision (d) entitled the defendant to a new trial on liability and compensatory damages following the reversal of an award of punitive damages and remand for a new trial on punitive damages. (Torres, supra, 15 Cal.4th at p. 775.) Section 3295, subdivision (d) states that evidence of the defendants profit and financial condition must be presented to the same trier of fact that determined liability and found the defendant guilty of oppression, fraud, or malice. Torres concluded that section 3295, subdivision (d) applies only in a bifurcated trial, and does not apply in a new trial following a reversal. (Torres, supra, at pp. 778-780.) Torres concluded that section 3295, subdivision (d) requires the trier of fact that is presented evidence of the defendants profit and financial condition in a bifurcated trial to be the same trier of fact that determined the defendants liability and found the defendant guilty of oppression, fraud, or malice. (Torres, supra, at p. 778.) Torres distinguished the application of the statute in a bifurcated trial from the situation where an appellate courts reversal requires a new trial. Torres concluded that section 3295, subdivision (d) was not intended to deprive an appellate court of its authority to order a new trial limited to the issue of punitive damages, and held that the statute did not entitle the defendant to a new trial on liability and compensatory damages following the reversal of a punitive damages award. (Torres, supra, at pp. 779-780, 782.)

Torres, supra, 15 Cal.4th 771, acknowledged the authority of an appellate court to order a new trial on a limited issue (id. at pp. 776, 779-780), but did not decide whether the limited new trial ordered in that case was an appropriate exercise of that authority. Torres stated, however, in the context of retrials, it generally is unnecessary for the same jury to determine liability and punitive damages in order to ensure a reasonable relation between actual and punitive damages. (Id. at p. 781.) Torres stated further, quoting from Brewer v. SecondBaptistChurch, supra, 32 Cal.2d at page 802:

 Upon a retrial of the issue of exemplary damages the jury can maintain that reasonable relation between general and exemplary damages without having to determine for itself the amount of general damages. The amount of general damages has been properly determined by the first jury. Upon a retrial of the issue of exemplary damages it is only necessary for the second jury to be advised of the amount of general damages already awarded in order that it may maintain a reasonable relation between such damages and the exemplary damages, if any, that it awards. If it fails to do so and awards excessive exemplary damages, there is an adequate remedy by way of an appropriate motion before the trial court or by appeal. (32 Cal.2d at p. 802.) In short, because there are adequate safeguards for ensuring that the jury in a limited retrial can maintain a reasonable relationship between actual and punitive damages, there ordinarily is no need for a complete retrial to guard against an excessive punitive damages award. (Torres, supra, 15 Cal.4th at p. 781, fn. omitted.)

Philip Morris argues that a punitive damages award in a new trial must be based on the same conduct that the jury in the first trial found was committed with oppression, fraud, or malice, and that absent a clear indication of the particular conduct that the jury found to be punishable, the jury in the new trial might base a punitive damages award on conduct that the prior jury did not find oppressive, fraudulent, or malicious. Language in Medo v. Superior Court (1988) 205 Cal.App.3d 64 (Medo) and Barmas, supra, 92 Cal.App.4th 372, could be construed to support this view to some degree.

Medo, supra, 205 Cal.App.3d 64, involved a bifurcated trial in which the jury was discharged prematurely before the punitive damages phase. The trial court ordered punitive damages to be tried before a new jury. (Id. at pp. 66-67.) Medo concluded that Civil Code section 3295, subdivision (d) required the same jury to determine both liability and the amount of punitive damages. (Medo, supra, at p. 68.) Medo stated: Punitive damages are not simply recoverable in the abstract. They must be tied to oppression, fraud or malice in the conduct which gave rise to liability in the case. Thus BAJI No. 14.71, the instruction on punitive damages, tells the jury that in arriving at an award of punitive damages, it is to consider the reprehensibility of the conduct of the defendant and that the punitive damages must bear a reasonable relation to the actual damages. In order for a jury to evaluate the oppression, fraud or malice in the conduct giving rise to liability in the case, it must consider the conduct giving rise to liability. (Id. at p. 68.) Medo held, however, that the defendant waived the same‑trier‑of‑fact requirement by failing to timely object to a separate jury. (Id. at pp. 69‑70.)

Torres quoted the above-quoted passage from Medo, supra, 205 Cal.App.3d 64, and stated, We are not persuaded. (Torres, supra, 15 Cal.4th at p. 780.) Torres distinguished Medo on the ground that Medo involved an improperly discharged jury in a bifurcated trial rather than a partial retrial following a reversal on appeal. (Torres, supra, at p. 780.) Torres expressly stated no opinion whether Medo was correctly decided, but stated that even if Medo were correct, Civil Code section 3295, subdivision (d) did not upset settled law regarding the power of appellate courts to affirm the liability and compensatory damage aspects of a judgment while ordering a retrial limited to punitive damages. (Torres, supra, at pp. 780-781.)

Barmas, supra, 92 Cal.App.4th 372, involved a bifurcated trial in which the jury deadlocked on the issue of malice. The trial court ordered a new trial on the issue of malice and, if appropriate, punitive damages. (Id. at pp. 374-375.) Barmas rejected the defendants argument that Civil Code section 3295, subdivision (d) required a new trial on liability as well, citing Torres, supra, 15 Cal.4th 771. Barmas stated further, in dicta: A partial retrial that encompasses issues of both malice and punitive damages affords a defendant an even greater assurance of fairness than was found sufficient in Torres. In a retrial restricted to punitive damages, as in Torres, a new jury would receive an instruction that, in a prior proceeding, defendants conduct was determined to be malicious. However, although the new jury will hear evidence concerning the defendants conduct, it may not be apprised of the specific act or acts upon which the previous jurys finding of malice was based. In the Torres-type situation, there is a risk that the new jury could award punitive damages based on conduct the previous jury did not find malicious. Here, any such risk would be eliminated by the scope of the partial retrial. The new jury would determine whether [defendant] acted with malice and, if so, whether an award of punitive damages is warranted. Any award of punitive damages, therefore, would be made in light of specific conduct which the new jury found to be malicious. (Barmas, supra, at pp. 376-377.)

Sharp v. Automobile Club of So. Cal., supra, 225 Cal.App.2d 648, in contrast, held that the order granting a new trial based on excessive punitive damages in that case must be limited to the amount of punitive damages, and reversed the order to the extent it granted a new trial on other issues. (Id. at p. 654.) Sharp rejected the defendants argument that for a jury in the new trial to try the issue of amount of punitive damages separate and apart from the facts which are claimed to justify it would deny the defendants a fair trial. (Id. at pp. 653-654.) Sharp stated that the jury had properly decided that punitive damages were warranted, that the issue need not be decided again in a new trial, and that, nothing stated in this decision is intended in any way to restrict the exercise of the discretion of the trial court as to the scope of the evidence that may be introduced as to the proper amount of punitive damages notwithstanding that neither the issues of the fraud itself nor that plaintiff is entitled to such damages are to be relitigated. (Id. at p. 654.)

We conclude that the new trial here must be limited to determining the amount of punitive damages. Philip Morriss liability, the amount of compensatory damages, and oppression, fraud, or malice were determined in the first trial without prejudicial error. Although it is likely that much of the same evidence presented in the first trial will be presented again in the new trial, we believe that this limitation on the issues in dispute will result in some time savings. Moreover, neither party is entitled to an opportunity to seek to either reduce or increase the amount of compensatory damages established in the first trial, and the findings of liability and oppression, fraud, or malice should not be disturbed.

In our view, the requirement that the jury must consider the degree of reprehensibility of Philip Morriss conduct that harmed Bullock provides sufficient assurance that the award of punitive damages will be based on the same course of conduct on which the first jury based its finding of oppression, fraud, or malice. The trial court in the new trial, in the exercise of its discretion, should admit evidence relevant to determining the amount of punitive damages in the same manner that a trial court in a new trial limited to the amount of compensatory damages should admit evidence relevant to determining that amount. We are aware of no requirement that the jury in the new trial must be informed of which particular acts the first jury determined to be oppressive, fraudulent, or malicious where the jury made no finding specifically identifying those acts. If the amount awarded by the jury in the new trial is excessive, an adequate remedy is available by way of a new trial motion and an appeal in which the appellate court must consider de novo the constitutional guideposts. (Simon, supra, at p. 1172 & fn. 2; see Torres, supra, 15 Cal.4th at p. 781.) Accordingly, we conclude that a new trial limited to determining the amount of punitive damages will not prejudice Philip Morris.[3]

In light of our reversal of the judgment as to the amount of the punitive damages award, the remaining contentions by Philip Morris and Bullock concerning the amount of punitive damages are moot.

9. The Award of Attorney Fees as a Sanction Was Error

The court awarded Philip Morris $45,809.48 in attorney fees against Piuze as a sanction under Code of Civil Procedure, section 128.6. Philip Morris concedes that section 128.6 was not effective at the time of the order awarding fees and never became effective, that the court had no authority to award fees, and that the order awarding fees should be reversed.[4] We agree and reverse the order.

DISPOSITION

The judgment is reversed as to the amount of punitive damages and affirmed in all other respects, with directions to the superior court to conduct a new trial limited to determining the amount of punitive damages in a manner consistent with the views expressed in this opinion. The order awarding a monetary sanction against Piuze is reversed. Philip Morris and Bullock are to bear their own costs on appeal. Piuze is entitled to recover his costs on appeal.

CERTIFIED FOR PUBLICATION

CROSKEY, J.

WE Concur:

KLEIN, P. J.

KITCHING, J.

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[1] Similarly, Williams described the question presented and the courts holding as follows: The question we address today concerns a large state-court punitive damages award. We are asked whether the Constitutions Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent). We hold that such an award would amount to a taking of property from the defendant without due process. (Williams, supra, 127 S.Ct. at p. 1060.)

[2] Although Philip Morriss proposed instruction need not have been qualified, a specific instruction encompassing both the permitted and prohibited uses of evidence of harm caused to others would be appropriate in the new trial if requested by the parties. We believe that an instruction on these issues should clearly distinguish between the permitted and prohibited uses of such evidence and thus make clear to the jury the purposes for which it can and cannot consider that evidence. A jury may consider evidence of harm caused to others for the purpose of determining the degree of reprehensibility of a defendants conduct toward the plaintiff in deciding the amount of punitive damages, but it may not consider that evidence for the purpose of punishing the defendant directly for harm caused to others. (Williams, supra, 127 S.Ct. at pp. 1064, 1065.) In our view, Judicial Council of California Civil Jury Instructions (Aug. 2007 rev.) CACI Nos. 3940, 3942, 3943, 3945, 3947, and 3949 could convey this distinction better by stating more explicitly that evidence of harm caused to others may be considered for the one purpose but not for the other, and by providing that explanation together with the reprehensibility factors rather than in connection with the reasonable relationship issue.

[3] We decline to follow Medo, supra, 205 Cal.App.3d 64, and Barmas, supra, 92 Cal.App.4th 372, to the extent the views expressed in those opinions may be inconsistent with our views expressed in this opinion.

[4] A court has no inherent authority to award attorney fees as a sanction. (Bauguess v. Paine (1978) 22 Cal.3d 626, 638-639.)