Dattilo v. McCartney

Filed 3/13/07 Dattilo v. McCartney CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. James A. Bascue, Judge. Affirmed.

William R. Lively & Associates and William R. Lively for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

__________________________________________

Plaintiff Bryan Dattilo appeals from the default judgment he obtained against defendant Brett McCartney^[1]in an action for battery and defamation. The trial court awarded Dattilo his prayer for compensatory damages in the amount of $292,667.51, but denied any award of punitive damages on the ground Dattilo failed to present evidence of McCartneys financial condition as required by Adams v. Murakami (1991) 54 Cal.3d 105 (Adams).

Dattilo argues Adams does not apply to a default judgment, because it was not possible for him to obtain discovery or proof of McCartneys financial condition. Dattilo further argues that evidence of a defendants financial condition is no longer required as a result of the Supreme Courts decision in State Farm Mutual Automobile Insurance Co. v. Campbell (2003) 538 U.S. 408 (State Farm), which indicated a defendants wealth is irrelevant to the issue of punitive damages.

We conclude Adams continues to represent the state of California law and that proof of financial condition is required before punitive damages may be awarded, even in a default setting. The Supreme Courts decision in State Farm did not overrule Adams, as matters of entitlement to punitive damages remain an issue of state law. We therefore affirm the judgment.

PROCEDURAL HISTORY

Dattilos complaint included causes of action for battery and slander. Dattilo alleged he was severely beaten by McCartney on April 10, 2002, suffering painful injuries which resulted in permanent physical and emotional suffering. Dattilo also alleged that two weeks after the beating, McCartney told Dattilos supervisors that Dattilo had sexually assaulted two women on the date of the beating. The complaint prayed for general, special, emotional distress, and punitive damages according to proof at time of trial.

McCartneys default was entered by the court clerk. The trial court awarded a default judgment for compensatory damages, but denied Dattilos request for an award of punitive damages in the absence of proof of McCartneys financial condition. Dattilo timely appealed from the default judgment.

DISCUSSION

Dattilos sole argument is that the trial court erred in denying him punitive damages as part of the default judgment on the basis that Dattilo failed to present evidence of McCartneys financial condition. Dattilo makes two arguments regarding the denial of punitive damages. First, the holding in Adams that evidence of a defendants financial condition must be presented before punitive damages are awarded does not apply to a default judgment. Second, the Supreme Courts State Farm decision indicates wealth should not be a component of punitive damages, and the focus instead should be on the reprehensibility of the defendants conduct. We address each contention in order, but deny relief.

A. Adams

A reviewing court cannot make a fully informed determination of whether an award of punitive damages is excessive unless the record contains evidence of the defendants financial condition. (Adams, supra, 54 Cal.3d at p. 110.) Without such evidence, reviewing courts will be unduly restricted in their attempts to assess whether awards of punitive damages are excessive. (Id. at p. 116, fn. omitted.) The court in Adams declined to specify the type of evidence necessary to reflect a defendants financial condition, but noted it would not affirm an award of punitive damages because [n]o financial evidence of any kind was introduced, and the issue has not been fully developed by the parties. (Id. at p. 116, fn. 7.) In addition, Adams imposes the burden of producing that evidence on the plaintiff. (Id. at p. 119.) (Chavez v. Keat (1995) 34 Cal.App.4th 1406, 1410.) The requirement that a plaintiff present evidence of the defendants financial condition is a requirement imposed as a matter of public policy and hence not subject to waiver by the failure of an inattentive defendant to object or otherwise call attention to the inadequacy of plaintiffs proof. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1282.)

Our Supreme Courts direction has been clear and unambiguouspunitive damages are not to be awarded unless the plaintiff tenders some evidence of a defendants financial condition. We cannot ignore this directive. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Dattilos failure to introduce any evidence of McCartneys financial condition is fatal to his claim for punitive damages.

Dattilos argument that he could not conduct discovery of McCartneys financial condition because McCartney defaulted, does not alter this result. Our review of the record reveals no showing of what efforts, if any, were undertaken by Dattilo to obtain information regarding McCartneys financial condition. None of the moving papers discusses the issue and none of the declarations in support of the default judgment speak to the point. Dattilos opening brief does assert that Dattilo was unable to obtain any evidence of [McCartneys financial condition], despite retaining an investigator to find such information. However, the law does not permit a reviewing court to consider factual assertions of counsel in a brief that are not supported by citation to the trial record. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1166, fn. 1; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004, fn. 2; People v. Young (1978) 85 Cal.App.3d 594, 608; Cal. Rules of Court, rule 8.204(1)(C).) The record on appeal simply does not support Dattilos claim that reasonable efforts were made to uncover evidence of McCartneys financial condition.

B. State Farm

Dattilo further argues that the focus in determining a defendants liability for punitive damages has shifted from that expressed in Adams as a result of the decision in State Farm. In State Farm, the Supreme Court addressed the measure of punishment, by means of punitive damages, a State may impose upon a defendant in a civil case. The question is whether, in the circumstances we shall recount, an award of $145 million in punitive damages, where full compensatory damages are $1 million, is excessive and in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. (State Farm, supra, 538 U.S. at p. 412.) Ultimately, the Supreme Court concluded that the punitive award of $145 million, therefore, was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the property of the defendant. (Id. at p. 429.)

As can be seen from the Supreme Courts description of the issue presented and its resolution, the decision in State Farm did not determine, as a matter of constitutional law, what evidence a state court may require to support an award of punitive damages. The issue in State Farm was one of constitutional limitations on awards of punitive damages; the Court did not purport to limit a states power to determine eligibility for punitive damages in the first instance. (State Farm, supra, 538 U.S. at p. 416.)

State Farm did not disavow the use of wealth in assessing punitive damages. The principle of federalism remains in play: [E]ach State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders, and each State alone can determine what measure of punishment, if any, to impose on a defendant who acts within its jurisdiction. (State Farm, supra, 538 U.S. at p. 422.) What State Farm does say is: The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award. (Id. at p. 427.) (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1697.)

After the decision in State Farm, our Supreme Court has reiterated the relevance of a defendants financial condition to the issue of excessive punitive damages. Thus, while wealth cannot substitute for the high courts guideposts in limiting awards, and cannot alone justify a high award, the guideposts were not intended to prevent juries from levying awards that serve important state interests and provide a meaningful deterrent against corporate misconduct. [Citation.] . . . [I]n determining whether a lesser award could have satisfied the States legitimate objectives [citation], a reviewing court may nonetheless give some consideration to the defendant's financial condition. (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1185, fn. omitted.)

Placed in its proper context, State Farm announces a rule of constitutional limitations on awards of punitive damages. State Farm does not set a constitutional standard of procedure for determination of punitive damages in state courts. The initial requirements of proof for punitive damages remain a concern for the state courts. The California Supreme Court has spoken to the need for proof of a defendants financial condition as a prerequisite to obtaining punitive damages. Nothing in State Farm alters the rule established in Adams.

DISPOSITION

The judgment is affirmed. No costs are awarded on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J. MOSK, J.

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^[1] McCartney has not appeared in this appeal.