STEVEN v. RICHARD

Filed 9/13/06

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

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The jury verdict in fact supports that the evidence about Sergeant Neumann's actions against Officer Thetford did not improperly taint the remainder of the trial. The jury found Grassilli did not prove his retaliation claims against Sergeant Neumann and, although it found Sergeant Neumann liable for supervisory liability, it apportioned only a small percentage of fault for this conduct. This finding reflects the jury understood that the evidence about Sergeant Neumann's actions against Officer Thetford was not relevant to show Sergeant Neumann's retaliation against Grassilli.

In addition to challenging Officer Thetford's testimony concerning Sergeant Neumann, defendants also argue the court erred in permitting Officer Thetford to testify about the internal criminal investigation initiated against him. After Officer Thetford was deposed in the case, several CHP supervising officers (who did not include Sergeant Toth or Sergeant Neumann) began an internal criminal investigation against him, accused Officer Thetford of committing perjury, and pressured him to change his testimony. Officer Thetford testified at trial about the investigation, and voluntarily brought the transcript of an internal administrative hearing to trial.

This evidence was probative for several reasons. First, the evidence was relevant to explain Officer Thetford's demeanor and state of mind in providing favorable testimony to Grassilli. The jury was entitled to know that Officer Thetford was testifying truthfully despite substantial potential risk to his career. Additionally, the testimony was relevant because Sergeant Crofton, who was defendants' expert witness, actively participated in the investigation and made numerous statements that brought his credibility into question. For example, Officer Thetford testified that during the investigation, Sergeant Crofton urged Officer Thetford to change his prior testimony. At the investigative hearing, Sergeant Crofton told Officer Thetford that it was "important for you not to say anything that would embarrass the Department," and that Officer Thetford's deposition testimony "was extremely damaging to the Highway Patrol [and] that there would be a great monetary loss to the Highway Patrol should [Officer Thetford's] testimony come up in court . . . ." Sergeant Crofton told Officer Thetford that "we [the CHP] go out of our way never to be construed in any way other than the way we want to be construed." Because these statements were highly probative to challenge Sergeant Crofton's credibility, Grassilli was entitled to elicit the information.

Contrary to defendants' additional assertions, Officer Thetford's reference to the administrative hearing transcript at trial did not reflect prejudicial error. While answering a question during his direct examination, Officer Thetford made an unsolicited comment that he had brought to trial the transcripts from an internal investigation hearing. Outside the presence of the jurors, Grassilli's counsel asked for an opportunity to review the transcript. Officer Thetford said he had no objection to providing the attorneys with copies of the transcript. Defense counsel, however, objected to the disclosure of the transcript based on the CHP's right to assert a statutory privilege for personnel records. Although the court questioned whether the CHP could assert a privilege if the employee waived that privilege, the court ultimately decided that the transcript would not be disclosed to the jury, but that each counsel would be provided with a copy.

Thereafter, Officer Thetford responded to Grassilli's counsel's questions about the investigation primarily from his memory, rather than from the transcript. However, during defense counsel's cross-examination, counsel questioned Officer Thetford directly about the transcript, including whether he had identified any particular sections of the transcript that he thought were important. At one point, when Officer Thetford asked to refer to the transcript, defense counsel responded, "You can refer to anything you want, sir." Officer Thetford then read without objection from the transcript.

On this record, there was no error pertaining to the administrative transcript. It is undisputed that Officer Thetford brought the transcript to court voluntarily without being asked to do so by either counsel. Moreover, the transcript was not admitted as an exhibit, and Officer Thetford relied on the contents only after defense counsel specifically invited him to do so.

IV. Compensatory Damages

The jury awarded Grassilli $210,000 in economic damages and $290,000 in noneconomic damages.[1] Defendants challenge the sufficiency of the evidence to support these amounts.

A. Generally Applicable Law

When a section 1983 plaintiff "seek[s] damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts." (Memphis Community School Dist. v. Stachura (1986) 477 U.S. 299, 306.) "[D]amages in tort cases are designed to provide 'compensation for the injury caused to plaintiff by defendant's breach of duty.' [Citations.]" (Ibid.) The jury has wide latitude in the amount of damages to be awarded. The jury's finding will be upheld if it does not exceed some "'"rational appraisal or estimate of the damages that could be based upon the evidence . . . ."'" (Baron v. Suffolk County Sheriff's Dept. (1st Cir. 2005) 402 F.3d 225, 245.)

B. Economic Damages

On his economic damages claim, Grassilli presented evidence that defendants' retaliatory actions caused him to (1) suffer $228,011 in lost profits and loss of business value because of Tibbans's decision not to continue to sell water tanks to Grassilli; and (2) incur attorney fees of $9,750 to defend Grassilli in the various infractions and criminal actions. The jury found Grassilli proved he suffered $210,000 in economic damages. On appeal, defendants contend the jury's factual determination as to lost profits and loss of business value is unsupported by the evidence.

Grassilli's theory of lost business damages was based on evidence showing (1) Grassilli owned an established profitable business (Ramona Pump & Supply); (2) Grassilli had a valuable business relationship with Tibbans, whereby he purchased the water tanks at below-market prices in exchange for an exclusive buy-sell agreement; (3) Tibbans decided to stop selling and delivering water tanks to Grassilli because of Officer Barr's repeated actions in delaying and citing the Tibbans trucks carrying water tanks to Grassilli's jobsites; (4) Grassilli thereafter changed his business model and stopped selling water tanks because he no longer had access to a low-priced supplier; (5) the Ramona Pump & Supply profits and sales decreased after the termination of the Tibbans-Grassilli relationship; and (6) the decline in profits could not be explained by other relevant economic factors.

To show the amount of the loss, Grassilli presented the testimony of an expert economist, Michael Willoughby, who opined that Grassilli's business suffered lost profits because of the loss of its primary supplier. Willoughby found that Ramona Pump & Supply was an established business, and thus its business history provided a basis for calculating any business loss. Willoughby examined the financial records for the year 1999 to determine a baseline for the business profits. He then used expected population growth figures and other estimates to make assumptions as to the growth in sales and expenses. Based on that analysis, Willoughby compared what Grassilli should have earned with what he did actually earn. This comparison established that the lost profits for year 2000 were $15,348; lost profits for year 2001 were $23,324; and lost profits for year 2002 were $33,811. The total of these lost profits was $72,483.

With respect to the loss of business value, Willoughby said this loss reflected an evaluation of how much the business was worth in 2002 relative to what it might have been worth without the termination of the Tibbans-Grassilli relationship. To calculate this figure, Willoughby looked at the sales of businesses similar to Grassilli's business. He then identified an appropriate ratio by using a data service and applied a multiplier of 4.6 for earnings from four transactions of pump services businesses, averaging the sales, and concluded buyers were paying $4.60 for every dollar of earnings. Based on this analysis, Willoughby estimated a loss of business value of $155,528.

Willoughby's expert opinions provided a reasonable basis for the jury to conclude that Grassilli's business suffered a loss of approximately $228,000 caused by defendants' conduct. When a defendant's tortious conduct impacts an established business, lost profits "are generally recoverable if the amount 'may be ascertained with reasonable certainty from the past volume of business and other provable data relevant to the probable future sales. [Citations.]'" (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 883.) "Uncertainty as to the amount of profits is not fatal to such a claim. [Citations.] '. . . It is enough to demonstrate a reasonable probability that profits would have been earned except for the defendant's conduct. [Citations.]'" (Id. at pp. 883-884.)

In asserting the economic damages award was unsupported, defendants argue that Willoughby's opinions were based on an improper assumption, i.e., that the most significant interference by defendants came in 2000. Defendants maintain that this assumption was improper because the jury verdict reflects that the jury "was most offended by the interference between 1997 and 1999." However, the issue as to which acts the jury found most offensive is not necessarily determinative of the damages amount. The bulk of the claimed economic damages were caused by the impact on Grassilli's business resulting from Tibbans's decision to terminate the relationship. The evidence was undisputed that the final decision to terminate came in early 2001, and there was some evidence supporting that the relationship began deteriorating in prior years based on Officer Barr's conduct targeting the Tibbans trucks. Based on this evidence, the jury could find Willoughby's assumption that defendants' conduct caused a loss of profits beginning in 2000 to be reasonable, even if the claimed wrongful conduct began much earlier.

Defendants alternatively challenge the economic damages award by complaining that Grassilli did not "identify one job, by name or otherwise, lost because of appellants' retaliatory conduct." The absence of this evidence does not preclude a finding that he lost profits. The essence of Grassilli's lost profits claim was that Tibbans's refusal to continue to sell him tanks made it difficult for him to continue the water tank portion of his business and he thus lost profits he would have earned. The evidence was undisputed that Grassilli had a decrease in sales of water tanks from 1999 to 2002. Although the jury was entitled to consider the fact that Grassilli did not produce specific evidence of a particular job lost because of defendants' conduct, the fact does not preclude the jury's lost profits finding.

Defendants additionally argue that Grassilli did not have any documentation supporting that he lost 100 days of work. However, it is not clear that the jury awarded Grassilli any damages for this claimed lost work. Likewise, Grassilli's testimony that he did not "know" if defendants' conduct diminished his business profits is not fatal to his damages claim. Grassilli made clear at trial he did not keep the books for his business and was not familiar with the company finances, and that his wife was responsible for this aspect of the business. Grassilli's expert, Willoughby, testified that he spoke with Mrs. Grassilli, rather than Mr. Grassilli, about the business finances because of her greater familiarity with the financial aspects of the business.

We additionally reject defendants' emphasis on the fact that Grassilli's expert did not specifically opine as to whether the lost profits were proximately caused by defendants' actions. It was undisputed that Grassilli's sales went down after the termination of the Tibbans relationship, and Willoughby was unable to identify any other likely basis for this decline. It is reasonable to conclude the loss of a primary supplier who had sold its products to Grassilli at below-market prices would result in an economic loss to Grassilli. Although the defense expert opined that drought conditions and/or the lack of a contractor's license could have been a cause of the loss of profits, the jury was entitled to reject these opinions.

Substantial evidence supported the economic damages award.

C. Noneconomic Damages

The jury awarded Grassilli $300,000 in noneconomic damages against the three defendants. Of this amount, the jury found Officer Barr responsible for $210,000, Sergeant Toth responsible for $75,000, and Sergeant Neumann responsible for $15,000. On appeal, defendants claim these damages were excessive as a matter of law.

Under section 1983, a plaintiff is entitled to emotional distress damages caused by the defendant's violation of the plaintiff's constitutional rights. (Memphis Community School Dist. v. Stachura, supra, 477 U.S. at p. 307; Carey v. Piphus (1978) 435 U.S. 247, 264; see Mathie v. Fries (2d Cir. 1997) 121 F.3d 808, 813-815.) The plaintiff has the burden to show the extent and magnitude of the emotional injuries, and it is within the jury's province to determine the appropriate amount of damages. If the defendant claims the amount awarded was excessive, a trial court has broad discretion in determining the validity of this claim. (Sheets v. Salt Lake County (10th Cir. 1995) 45 F.3d 1383, 1390.) A trial court's rejection of an excessive damages argument is "entitled to considerable deference on appeal." (Ibid.) A reviewing court "will only find an abuse of discretion if the jury award is '"so excessive . . . as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or another improper cause invaded the trial . . . ."' [Citation.]" (Ibid., accord Mathie, supra, 121 F.3d at p. 813.)

In this case, the jury and the trial judge, who heard Grassilli testify and observed his demeanor, could reasonably reach the conclusion that he had suffered substantial emotional distress. Both Grassilli and his wife testified that the retaliation caused Grassilli to become upset, angry, nervous, and short-tempered. This evidence showed Grassilli's relationship with his wife and children was substantially affected. Grassilli became quiet and would not interact with his family. Grassilli began avoiding going into town or out to dinner and no longer felt comfortable taking his sons to car shows because of his concern he would be stopped by Officer Barr while driving his El Camino. Although defendants attempt to trivialize the fact that Grassilli no longer felt comfortable going to car shows with his sons, this circumstance must be viewed in the context of the importance that these shows had in Grassilli's personal and social life. Moreover, the retaliatory activities caused Grassilli to change his business (because of the termination of his relationship with Tibbans), so that he was required to spend more time performing labor-intensive activities and less time with his family.

In asserting there was insufficient evidence to support the jury's finding, defendants focus on evidence showing that on several occasions Grassilli communicated his displeasure with the officers' continued harassment by verbalizing profanities to Officer Barr and engaging in other similar conduct. Defendants argue this conduct shows there was an absence of any "'real' emotional trauma suffered by" Grassilli. The jury, however, had a substantial basis to find that Grassilli did not engage in some of these alleged activities. Additionally, to the extent that Grassilli did communicate his displeasure to the officers, the jury had an ample basis to find the communications did not reflect the absence of emotional distress, and instead were the manifestations of a person who was deeply frustrated, angry and upset by the law enforcement officers' continuing retaliatory activities.

After considering the evidence, observing Grassilli and his wife testify, and evaluating defendants' attitude towards Grassilli, the jury placed a $300,000 monetary value on Grassilli's emotional distress. The trial judge, who presided over the trial and had the opportunity to view the evidence first-hand, exercised independent judgment in deciding that the $300,000 was not excessive.

On the record before us, we cannot conclude this amount reflects passion or prejudice, or shocks the judicial conscience. Although Grassilli was not overly verbal or detailed about his emotional suffering, the jury was aware that he was not someone who could easily articulate or explain his feelings. It was not unreasonable for a jury to conclude that someone in Grassilli's position, who was harassed by law enforcement officers over a five-year period, would suffer substantial emotional trauma, frustration and humiliation. Grassilli's testimony showed that the officers' conduct did in fact take an emotional toll on his personal and professional life. "It is within the jury's province to evaluate the credibility of witnesses who testify to emotional distress, and we shall not disturb those credibility determinations on appeal." (Bruso v. United Airlines, Inc. (7th Cir. 2001) 239 F.3d 848, 857.)

V. Punitive Damages

A. Relevant Factual and Procedural Background

Before the punitive damages phase, defendants notified the court they intended to produce evidence of their financial conditions, and proposed a jury instruction stating the jury "may" consider this evidence in determining the appropriate punitive damages award. Grassilli's counsel agreed the defendants had the right to present financial condition evidence, but objected to the proposed instruction because federal, not state, law applied. Grassilli's counsel requested that the court use Instruction No. 7.5 of the Ninth Circuit's manual on model jury instructions which does not mention financial condition evidence. (9th Cir. Civ. Jury Instr. 7.5 (2001).)[2] Grassilli's counsel also asserted that if defendants submitted their financial evidence, he should be permitted to ask defendants whether they were entitled to be indemnified by the state for a punitive damages award under Government Code section 825.[3]

After considering these arguments, the court ruled: (1) it would permit defendants to produce evidence of their financial conditions; (2) it would give Grassilli's proposed federal model punitive damage instruction that did not specifically refer to the financial condition evidence; and (3) it would not permit Grassilli to introduce evidence pertaining to Government Code section 825 relating to the possibility of indemnification.

The only evidence presented during the ensuing punitive damages phase was the testimony of Officer Barr and Sergeant Toth concerning their financial resources. Neither officer was cross-examined. Officer Barr testified that his gross salary as a CHP officer is approximately $5,000 per month, and his wife earns a gross monthly salary of about $4,000. Their total monthly expenses are $6,700. The couple has three children under the age of 13, and they own their home with a fair market value of about $410,000, encumbered by a first and second mortgage totaling $370,000. Officer Barr has approximately $8,000 in bank accounts, a retirement account of $6,500, and three vehicles, two on which he is making payments. Officer Barr has no other investments or income sources.

Sergeant Toth testified that he has been retired since July 2000, and he receives approximately $60,000 in annual retirement income. He has retirement accounts of approximately $55,000, and a checking/savings account of about $10,000. Sergeant Toth estimated his monthly expenses to be approximately $3,300. Sergeant Toth owns a home with a fair market value of approximately $400,000, and owes $135,000 on the mortgage, and owns rental property with a value of approximately $200,000 and a loan balance of $72,000. He earns approximately $30 per month from the rental property.

During his closing argument, Grassilli's counsel urged the jury to "send a message" and to award an amount sufficient to insure defendants would be held accountable for their breach of trust. He reminded the jury of CHP management's complicity in promoting an environment that obfuscates the truth and called upon the jury to act as the conscience of the community and to "reform the process." Although deferring to the jury, counsel maintained that nothing less than a "small fortune" would deter future conduct and suggested such figures as $7 million or a 10 to 1 ratio.

In response, defense counsel argued that punitive damages were not warranted as Grassilli had been handsomely rewarded and had been "made whole" by the compensatory damages award. He stressed that "these two individuals are not responsible for reforming the California Highway Patrol" and rejected the view that the jury should "hold these two individuals out to cause a reform." In further support of his argument, defense counsel stated that "these individuals are going to feel the pain with any award" and, in an obvious reference to compensatory damages, stated they "are going to be punished handsomely with having to write a check." Grassilli's counsel objected on the basis of "[m]isstatement of the law." The court sustained the objection.

In his rebuttal, Grassilli's counsel focused on defendants' testimony regarding their limited financial resources and suggested a defendant's financial condition was of no relevance in setting punitive damages:

"[s]trap out [defense counsel's] argument, I have no money, therefore, don't hold me accountable. I have no money, therefore, don't punish me. The law doesn't say that.

Here is the law: punitive damages doesn't talk about 'I have no money, so don't punish me.' But that's what they're saying.

And what kind of message would that say to other officers?

Let's just embrace his argument. They have no money, so give them $50,000 or less. If I'm a law enforcement [officer] and I want to get by with this, I bankrupt myself and put it all in my wife's name. 'I have no money. You can't touch me. I have no money.'

Folks, that's just not right. This is a case that they never said they're sorry, once. They . . . fail[ed] to accept responsibility in this here.

What have we heard?

Nothing, 'Don't hurt me. I have no money.'

The flip side is, I have no money. You can't hurt me."

After a brief deliberations period, the jury awarded approximately $4 million in punitive damages: $3,000,000 against Officer Barr and $1,005,522 against Sergeant Toth.

B. Analysis

Defendants contend the punitive damages award is excessive and violates their due process rights. They also contend the court erred in failing to instruct the jury that their financial condition was relevant in determining the appropriate amount of punitive damages to be awarded. They claim this failure was particularly prejudicial because of defense counsel's argument suggesting the jury should not consider defendants' financial condition in determining the appropriate amount of punitive damages. For the reasons explained below, we conclude that the amount of the award is excessive on constitutional and nonconstitutional grounds.

1. Constitutional Limits

Punitive damages advance important state interests of deterrence and retribution. (State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 416 (State Farm).) The due process clause, however, "prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. . . . '[E]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.'" (Id. at pp. 416-417.) Thus, "[t]o the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property." (Id. at p. 417.)

To determine the constitutional limits of a punitive damages award in any given case, a court examines three "guideposts" articulated by the United States Supreme Court: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." (State Farm, supra, 538 U.S. at p. 418, citing BMW of North American, Inc. v. Gore (1996) 517 U.S. 559, 575; Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 215 (Gober).)

We apply a de novo review and independently assess these factors. (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 436; Simon v. San Paulo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1172 (Simon).) Although a jury's underlying findings and determinations as to the extent and cause of the plaintiff's injury are factual determinations, "a punitive damages award is not a finding of fact, but rather an expression of moral condemnation." (Gober, supra, 137 Cal.App.4th at p. 212.)

Under these principles, we conclude the $3 million and approximately $1 million punitive damages awards exceed constitutional limits.

Reprehensibility

Abuse of authority by a law enforcement officer is reprehensible and punitive damages awards "serve a critical role in deterring such misconduct." (DiSorbo v. Hoy (2nd Cir. 2003) 343 F.3d 172, 188.) To protect society, we give law enforcement officers great power, but do so with the expectation that they will use this authority properly. Any breach of that trust is a serious matter deserving of a substantial monetary sanction that will meaningfully punish the defendant and serve to assure that the officer (as well as other law enforcement officers) will never again engage in similar conduct.

However, it is the degree of the reprehensibility, not its existence in an absolute sense, that is the critical factor in evaluating whether a damages award withstands constitutional scrutiny. (State Farm, supra, 538 U.S. at p. 419.) The United States Supreme Court has cautioned that the totality of the circumstances must be considered in determining the level of reprehensibility and has observed that a defendant's conduct--even where repetitive acts are involved--may be less culpable for purposes of punitive damages if the conduct caused no physical harm and did not otherwise detrimentally affect the plaintiff's health or safety. (Ibid.) That is the case here.

The jury found Officer Barr and Sergeant T oth repeatedly abused their law enforcement authority and used the power of the state for the purpose of retaliating against Grassilli for exercising his constitutional rights. This conduct was wrong and inexcusable. However, Grassilli was never physically assaulted, imprisoned or otherwise physically mistreated or abused, or threatened with such mistreatment. The harm Grassilli suffered was far less serious than suffering caused by the defendants' conduct in other civil rights cases in which the courts have found lesser awards to be constitutionally excessive. (See, e.g., DiSorbo v. Hoy, supra, 343 F.3d 172 [police officer used excessive force on woman at police station, including slamming her against the wall, choking her, and striking her repeatedly as she lay face down; court reduced $1.275 million punitive damage award to $75,000]; Mathie v. Fries, supra, 121 F.3d at pp. 810, 817 [prisoner subject to "horrific" rape and repeated sexual advances by corrections officer who engaged in "'an outrageous abuse of power and authority'"; court found $500,000 punitive damages award constitutionally excessive, reduced award to $200,000].) Moreover, the improper conduct occurred sporadically, rather than on a weekly or even a monthly basis.

Additionally, the reprehensibility factor focuses on the conduct of the defendant, and not on the activities of other individuals or entities who may share the blame. On our review of the record, the amount of the award likely includes the jury's adoption of Grassilli's counsel's argument that the CHP management should be punished for its conduct in encouraging other officers to be less than honest about defendants' wrongful conduct. At oral argument, Grassilli's counsel expressly agreed with this assessment. However, the punitive damages award cannot be constitutionally upheld to the extent it includes an amount to punish the CHP management. In setting the level of punitive damages, a jury may consider the amount necessary to deter the conduct of the defendant and others, but it may not punish a defendant for the wrongful conduct of another person or entity.

Ratio of Punitive Damages to Actual or Potential Harm

The second relevant constitutional factor in evaluating whether a punitive award exceeds constitutional limits is the ratio between the compensatory and punitive damages. (State Farm, supra, 538 U.S. at p. 425.) "Although this ratio is not 'marked by a simple mathematical formula' (State Farm, supra, 538 U.S. at p. 424, citing TXO Production Corp. v. Alliance Resources Corp. (1993) 509 U.S. 443, 458), the United States Supreme Court has decreed that 'few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process' and has cautioned that a 4 to 1 ratio 'might be close to the line of constitutional impropriety.' (State Farm, supra, 538 U.S. at p. 425.)" (Gober, supra, 137 Cal.App.4th at p. 222.) "Nonetheless, extraordinary factors, such as extreme reprehensibility or unusually small, hard-to-detect or hard-to-measure compensatory damages, may justify punitive damages in excess of a single-digit ratio." (Ibid., citing State Farm, supra, 538 U.S. at p. 425; Simon, supra, 35 Cal.4th at p. 1182.) On the other hand, "[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee. The precise award in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff." (State Farm, supra, 538 U.S. at p. 425.)

The award against Sergeant Toth reflected an 8 to 1 ratio, and the award against Officer Barr an 8.5 to 1 ratio. These ratios are close to the upper constitutional limits, and the case does not include the extraordinary factors identified by the Supreme Court as justifying a larger ratio. Defendants did not cause physical harm, and the compensatory damages were not unusually small, hard to detect, or difficult to measure. Grassilli was fully compensated for his economic damages and received a substantial recovery for his claimed emotional injuries. The high court has recognized that when the compensatory damages award includes a substantial amount of emotional distress damages, there is a danger that this compensation will be duplicated in a punitive damages award, thus calling for a smaller ratio. (State Farm, supra, 538 U.S. at p. 426; see Rest.2d Torts § 908, com. c, p. 466 ["In many cases in which compensatory damages include an amount for emotional distress, such as humiliation or indignation aroused by the defendant's act, there is no clear line of demarcation between punishment and compensation and a verdict for a specified amount frequently includes elements of both"].)

Comparison to Civil Remedies

The final Supreme Court guidepost requires a comparison between the punitive damages award and other civil penalties authorized or imposed in comparable cases. (State Farm, supra, 538 U.S. at p. 428.) "The rationale for this consideration is that, if the penalties for comparable misconduct are much less than a punitive damages award, the tortfeasor lacked fair notice that the wrongful conduct could entail a sizable punitive damages award." (DiSorbo v. Hoy, supra, 343 F.3d at p. 187.)

Under California law, a person who violates another person's constitutional rights may be liable for a maximum of three times the amount of the actual damage suffered. (Civ. Code, §§ 52, subd. (a), 52.1, subds. (a), (b); see Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 752-753.) The 8 to 1 and 8.5 to 1 ratios are substantially higher than this amount. Further, although law enforcement officers are presumed to understand the serious consequences that can occur if the officer misuses his or her law enforcement authority, it is doubtful defendants would have been prepared for a punitive damages award amounting to Officer Barr's entire annual income for 50 years, or Sergeant Toth's entire retirement income for 16 years. (See Lee v. Edwards (2nd Cir. 1996) 101 F.3d 805, 811.)

To be continue as Part VI ………

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* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts III, IV, VI, VII, and VIII of the Discussion section.

[1] The jury apportioned the economic damages as follows: $147,000 against Officer Barr; $58,000 against Sergeant Toth; and $5,000 against Sergeant Neumann. The jury apportioned the noneconomic damages as follows: $210,000 against Officer Barr; $58,000 against Sergeant Toth; and $15,000 against Sergeant Neumann.

[2] The model instruction states in relevant part: "The purposes of punitive damages are to punish a defendant and to deter a defendant and others from committing similar acts in the future.

. . .

If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff." (9th Cir. Civ. Jury Instr. 7.5, supra.)

[3] Government Code section 825, subdivision (b), provides that a public entity may pay for a compensatory damages award against an employee acting within the scope of his or her employment, but a public entity is not authorized to pay a punitive damages award unless "the governing body of [the] public entity . . . finds all of the following:

(1) The judgment is based on an act or omission of an employee or former employee acting within the course and scope of his or her employment as an employee of the public entity.

(2) At the time of the act giving rise to the liability, the employee or former employee acted, or failed to act, in good faith, without actual malice and in the apparent best interests of the public entity.

(3) Payment of the claim or judgment would be in the best interests of the public entity.

As used in this subdivision with respect to an entity of state government, 'a decision of the governing body' means the approval of the Legislature for payment of that part of a judgment that is for punitive damages or exemplary damages, upon recommendation of the appointing power of the employee or former employee, based upon the finding by the Legislature and the appointing authority of the existence of the three conditions for payment of a punitive or exemplary damages claim." (Italics added.) Section 825, subdivision (b) further states that "[t]he possibility that a public entity may pay that part of a judgment that is for punitive damages shall not be disclosed in any trial in which it is alleged that a public employee is liable for punitive or exemplary damages, and that disclosure shall be grounds for a mistrial."