Filed 7/12/21
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HUE THI DANG MAI, D076708
Cross-complainant and
Appellant,
(Super. Ct. No. 37-2017-00009627-
v. CU-OR-CTL)
HKT CAL, INC., et al.,
Cross-defendants and
Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Ronald L. Styn, Judge. Affirmed in part; reversed in part with directions.
Mark Stuart Rosen for Cross-complainant and Appellant.
Blake Law Firm, Steven Wilson Blake and Danielle S. Ward for Cross-
defendant and Respondent HKT Cal, Inc.
Manning & Kass, Ellrod, Ramirez, Trester, Rinat Klier-Erlich and
Mark R. Wilson for Cross-defendant and Respondent Victoria Robinson.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of part 6 of the Discussion.
Hue Thi Dong Mai was sued for breach of contract by a prospective
purchaser of the apartment building she owned, a suit occasioned by
fraudulent conduct on the part of Mai’s real estate agent. The prospective
purchaser ultimately dismissed the breach of contract action, and Mai
invoked the “tort of another” doctrine in suing, by cross-complaint, the agent
and her employer to recover the attorney’s fees Mai incurred defending the
contract action. In the course of that second phase of the litigation, Mai’s
counsel failed to appreciate the difference between presenting a claim for
attorney’s fees as damages at trial, and one for fees as costs of suit in a
posttrial motion. By its own admission, the trial court shared in this
confusion for a period of time.
Into this mix on the eve of trial, the cross-defendants submitted as
dispositive authority the Court of Appeal decision in Copenbarger v. Morris
Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1 (Copenbarger), which
seemed to have the same effect as tossing a lit firecracker into the middle of a
crowded dance floor. Acknowledging significant discomfort, the trial court
apologized to Mai’s counsel and reversed course on earlier tentative
evidentiary rulings. Considering its hands tied by Copenbarger, the court
decided it had no discretion to guide the case to what it believed was a fair
resolution. Urging Mai to appeal the decision, it ultimately and regretfully
concluded it could not award anything on her claim for attorney’s fees.
Mai’s appeal presents two issues. First, to what extent does
Copenbarger accurately define the minimum showing required to sustain an
award of attorney’s fees as damages? Second, was the trial court correct in
believing that Copenbarger eliminated its discretion to allow Mai to present
her attorney’s fee claim on the merits? As to the first issue, we believe
Copenbarger’s analysis, some of which is dicta, may mislead trial courts by
2
causing them to disregard well-established and, in several instances, binding
precedent that predates it. For that reason, we offer a narrow reading of
Copenbarger that harmonizes it with other case authority to the extent that
is possible. Regarding the second issue, even accepting Copenbarger’s
analysis at face value does not, as the trial court here seemed to believe,
eliminate all discretion the court possessed to make mid-trial adjustments
and accommodations that respect defendants’ right to a fair trial while also
allowing plaintiffs to litigate the merits of their claims. Accordingly, we
reverse and remand for a limited retrial on the issue of attorney’s fees as
damages in which the court can both apply the proper legal principles and
exercise its discretion to achieve substantial justice between the parties.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Mai was surprised to learn that John Fike was under the
impression he had purchased an apartment building she owned. Although
Mai listed the building for sale in 2015 and received an offer from Fike at
that time, he never responded to her counteroffer. Then the building nearly
sold to Dawn Oree, but the purchase fell through when Oree could not obtain
financing. In the course of due diligence for that sale, Mai provided various
documents about the building and her associated finances to her real estate
agent, Victoria Robinson, to give to Oree.
Trusting Robinson with this information turned out to be a fateful
decision. In late 2016, Robinson used her knowledge about Mai’s building to
arrange a fraudulent sale to Fike.1 She forged Mai’s signature on numerous
documents, including the sales contract, and then tried to retroactively
convince Mai to sell the property in a series of almost 60 increasingly
1 Although Robinson’s account differed, we recite the facts in accordance
with the trial court’s findings.
3
desperate text messages. Mai’s single, firm response indicated she did not
want to sell the building at that time.
Unfortunately, from Fike’s perspective Robinson qua Mai had already
done so. As a result, Fike sued Mai in 2017 for breach of contract and specific
performance. Mai cross-complained, alleging various claims against
Robinson and her employer, HKT Cal, Inc. doing business as Keller Williams
Commercial (KW), including fraud as to Robinson and negligence as to both
parties. After Mai’s cross-complaint was filed, Fike added Robinson, KW and
another individual as defendants in his action. He settled with those parties
two years later and dropped his suit against Mai. In the meantime, however,
she had been forced to defend the breach of contract claim. Mai’s cross-
complaint against Robinson and KW, which proceeded to trial, was primarily
aimed at recovering the attorney’s fees she paid to defend the Fike suit under
the “tort of another” doctrine. She also sought recovery for emotional distress
and punitive damages.
Following a bench trial, the court’s written decision noted the stark
inconsistencies and contradictions in the testimony. Mai claimed she never
signed any documents pertaining to the sale of her property to Fike, while
Robinson insisted she witnessed Mai sign the papers. The evidence
ultimately convinced the trial judge that Robinson was not credible. In
addition to a visible mismatch between Mai’s authenticated signature and
her supposed signatures on the sale contract and associated documents, the
date of the text messages—in which Robinson pleaded with Mai to consider
Fike’s offer days after Mai allegedly signed the contract—and the fact that
Robinson impersonated Mai to get information from her utility provider
buttressed the court’s conclusion that Robinson forged Mai’s signature to
orchestrate the fraudulent sale. She did all of this, apparently, to collect
4
what would have been a sizeable commission on a sale that exceeded $1
million and assuming she could convince Mai to agree to the transaction. In
addition to these factual findings, the court also determined that Robinson
breached her fiduciary duty to Mai. And while it found KW had no
corresponding independent duty to Mai, the employer was nonetheless liable
for Robinson’s tort because she was acting under the broker’s real estate
license at the time.
As to damages, Mai was awarded $50,000 for emotional distress and
$200 in punitive damages against Robinson—the latter paltry figure due to
Robinson’s minimal net worth. The court recognized that Mai’s principal
damage claim “was the attorney’s fees caused by having to defend Fike’s
lawsuit,” a sum she claimed was nearly $200,000. But it concluded it could
not award Mai anything on this claim. The court reached this conclusion
despite having “no doubt that work was done” and “attorney’s
fees . . . incurred.” And it was convinced from an equitable perspective that
“there ought to be a way to get at least some damages.” But the court
believed it was bound by the Court of Appeal decision in Copenbarger, supra,
29 Cal.App.5th 1, which it viewed as dictating that “Mai was unable to
provide admissible evidence in support of her attorney’s fees.” Mai’s primary
contention on appeal is that the trial court erred in reaching this conclusion.
DISCUSSION
The principal issue in this case involves the recovery of attorney’s fees
as damages and the Copenbarger decision’s restrictive view of how plaintiffs
must offer proof of attorney’s fees in such cases. We therefore begin with
some helpful background regarding attorney’s fees as damages, followed by a
detailed summary of Copenbarger and a procedural description of the trial
proceedings that demonstrates how fundamentally the trial court’s
5
understanding of Copenbarger affected its view of this case and the ultimate
decision it reached.
We go on to analyze various aspects of the Copenbarger holding in light
of other relevant California authority—only some of which was considered by
Copenbarger. Based in part on this broader focus, we restate the applicable
legal principles that define the minimum showing necessary to support an
award of attorney’s fees as damages. These principles do not create the legal
straightjacket that the trial court believed Copenbarger had constructed.
Moreover, Copenbarger did not eliminate the trial court’s ability and
discretion to make mid-trial adjustments in procedure that would remedy
what it considered a manifestly unfair result. We therefore reverse and
remand for further proceedings. As to the remaining issues, we reject both
KW’s overly narrow framing of its own liability and Mai’s contention that the
trial court’s punitive damages award was too low as a matter of law.
1. Background Information on Attorney’s Fees as Damages
In limited circumstances, it is permissible for plaintiffs to recover
attorney’s fees as damages. The claim that Mai made here—that she was
forced to procure the services of an attorney to defend herself in the Fike suit
as a result of Robinson’s fraud—falls into one of these limited categories
known as the “tort of another” theory.2 While such doctrines are sometimes
described as exceptions to the general “American rule” that each party pays
for their own attorney’s fees (see, e.g., Gray v. Don Miller & Associates, Inc.
(1984) 35 Cal.3d 498, 505; Flyer’s Body Shop Profit Sharing Plan v. Ticor
2 The tort of another doctrine allows for the recovery of attorney’s fees as
damages when a plaintiff is forced into litigation with a third party due to the
tortious conduct of the defendant. (See Prentice v. North American Title
Guaranty Corp., Alameda Division (1963) 59 Cal.2d 618 (Prentice); Rossi,
Attorneys’ Fees (3rd ed. 2021) Allowance of Fees as Damages, § 8:3.)
6
Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155), this characterization can be
misleading. It is better to conceptualize these cases as claims for
compensatory damages where the facts happen to permit the plaintiff to seek
attorney’s fees as a type of compensatory award. As our Supreme Court has
stated, attorney’s fees that are recoverable as damages function in “the same
way that medical fees would be part of the damages in a personal injury
action.” (Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 (Brandt).) In
this context, an award of fees is “not really an ‘exception’ at all but an
application of the usual measure of . . . damages.” (Sooy v. Peter (1990) 220
Cal.App.3d 1305, 1310 (Sooy).)
For that reason, it is critical to distinguish attorney’s fees as damages
“from ‘attorney’s fees qua attorney’s fees.’ ”3 (Third Eye Blind, Inc. v. Near
North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311, 1325.)
Although this fundamental distinction has been described repeatedly (see
Brandt, supra, 37 Cal.3d at p. 817; Sooy, supra, 220 Cal.App.3d at p. 1310), it
persists in causing occasional confusion in both trial and appellate courts.
But the distinction is far more than academic. It affects the burden that
plaintiffs bear to produce evidence in support of their substantive claims, and
it differs in significant ways from the requirements for a posttrial motion for
fees as costs. (See Code Civ. Proc., § 1033.5, subd. (a)(10).)
That Mai was entitled to claim attorney’s fees as damages due to
Robinson’s conduct is not in question here; neither cross-defendant
challenges this general principle, or the trial court’s factual findings that
would support an award of these damages to Mai had she submitted—or been
3 Claims for attorney’s fees as damages usually arise in tort or contract
actions. (See, e.g., Prentice, supra, 59 Cal.2d 618 [tort] and Copenbarger,
supra, 29 Cal.App.5th 1 [contract].)
7
allowed to submit—proper evidence of her fees. To understand that
controversy, we turn now to the Copenbarger decision. (Copenbarger, supra,
29 Cal.App.5th 1.)
2. The Copenbarger Case
Like many cases where attorney’s fees are sought as damages,
Copenbarger involved two disputes. The first one was essentially a landlord-
tenant conflict that arose after Newport Harbor Offices & Marina, LLC
(Newport) ran into financial trouble and stopped paying its rent on a
commercial property it had subleased from Morris Cerullo World Evangelism,
Inc. (Morris Cerullo). Morris Cerullo brought an unlawful detainer action
against Newport. The Maag Trust, which had gained an interest in
Newport’s lease, then joined the unlawful detainer suit as a defendant and
brokered a settlement agreement that included a promise from Morris
Cerullo to dismiss the unlawful detainer action. (Copenbarger, supra, 29
Cal.App.5th at pp. 4‒6.)
Shortly thereafter, Morris Cerullo tried to rescind the settlement
agreement and litigate the unlawful detainer action. (Copenbarger, supra, 29
Cal.App.5th at p. 6.) The Maag Trust responded by filing a breach of contract
claim against Morris Cerullo, commencing the second suit in the case. While
the Maag Trust was attempting to enforce the settlement agreement, it
continued to defend the unlawful detainer action. Three years later, Morris
Cerullo finally dismissed the detainer suit, and the Maag Trust sought as
breach-of-contract damages the attorney’s fees it incurred defending the
unlawful detainer action during the three years between the settlement
agreement and the dismissal. (Id. at pp. 6‒7.)
After a bench trial, the Maag Trust was awarded attorney’s fees as
damages based on: (1) the testimony of its trustee, Lloyd Copenbarger, who
8
recalled being billed for approximately $118,000 in fees and paying about
$90,000; and (2) the trial court’s judicial notice of documents filed in the
unlawful detainer action that reflected certain work performed by the Maag
Trust’s attorneys. (Copenbarger, supra, 29 Cal.App.5th at pp. 7‒8, 11‒13.)
The Court of Appeal questioned both foundations for the award, ultimately
concluding that the Maag Trust failed to prove damages for breach of the
settlement agreement. Copenbarger’s substantive analysis begins with the
principle that “[t]he plaintiff in a breach of contract action has the burden of
proving nonspeculative damages with reasonable certainty.” (Id. at p. 11.)
The opinion then focused on the testimony of Lloyd Copenbarger, which it
characterized as providing the only possible basis to support an award of
attorney’s fees as damages. According to the court, Copenbarger’s testimony
was legally insufficient for several reasons.
The court first addressed Copenbarger’s testimony regarding the bills
he received from his attorneys. It pointed out that he “did not bring the
invoices with him to trial” and that his “testimony about the attorney
invoices was inadmissible as hearsay and under the secondary evidence
rule.”4 (Copenbarger, supra, 29 Cal.App.5th at pp. 12‒13.) In any event, said
the court, “[a]n invoice itself is hearsay, and is not admissible to prove the
work or services reflected in the invoice were performed, unless a
foundational showing is made of an exception to the hearsay rule.” (Id. at
p. 13, citing Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging
Co. (1968) 69 Cal.2d 33, 43 (Pacific Gas).) It acknowledged the business
records exception to the hearsay rule as a potential solution, but noted that
4 Under the secondary evidence rule, oral testimony is generally
inadmissible to prove the content of a writing. (See Evid. Code, § 1523,
subd. (a).)
9
Copenbarger as the recipient of the invoice could not qualify “to testify as to
[the invoice’s] identity and the mode of its preparation.” (Copenbarger, at
p. 13.)
The court further determined that apart from the invoices,
Copenbarger could not provide the evidence necessary to support an award of
attorney’s fees as damages. Specifically, he did not personally supervise the
lawyers, did not know what legal services were performed, and could not
distinguish between legal work on the unlawful detainer matter and work
performed on the breach of contract action. In the court’s view, this
amounted to “a wholesale failure of proof.” (Copenbarger, supra, 29
Cal.App.5th at p. 14.)
The Copenbarger opinion also considered the trial’s court’s decision to
judicially notice the documents in the court file to supplement the evidence
that legal work was performed in the unlawful detainer action, but concluded
it did not save the Maag Trust’s claim. Although the court did not directly
address the propriety of judicial notice, it found that these court-filed
documents had “little materiality” because “ ‘the truth of matters asserted in
such documents is not subject to judicial notice.’ ” (Copenbarger, supra, 29
Cal.App.5th at pp. 14‒15, quoting Board of Pilot Commissioners v. Superior
Court (2013) 218 Cal.App.4th 577, 597.) According to the court, “The
judicially noticed, court-filed documents are not relevant evidence of who
prepared the documents, the amount incurred in attorney fees to prepare
them, and whether that amount was reasonable.” (Copenbarger, at p. 15.)
Finally, Copenbarger contrasted the Maag Trust’s assertedly
inadequate attempt to prove its attorney’s fees with its view that these
amounts could have been proved “quite easily” by providing a proper
foundation for admitting the invoices as business records. Alternatively, “the
10
attorneys who represented the Maag Trust in the [unlawful detainer action]
could have testified about their hourly rates, the work performed, and the
amount of time spent on various tasks.” (Copenbarger, supra, 29 Cal.App.5th
at p. 15.) In the appellate court’s view, “[s]uch evidence is required when a
prevailing party requests attorney fees by motion [and] [n]o less is required
when attorney fees are sought as damages.” (Ibid.)
3. The Effect of Copenbarger on the Trial
Returning to this case, it appears that at the outset, neither Mai’s
counsel, Mark Bagula, nor the trial judge appreciated the difference between
“attorney fees sought qua damages and attorney fees sought qua costs of
suit.” (Copenbarger, supra, 29 Cal.App.5th at p. 9.) They were both under
the impression that Bagula could file a posttrial motion for attorney’s fees
supported by one or more declarations with the relevant evidence.
The defense attorneys,5 on the other hand, became aware at some point
during the discovery process of the relevant distinction. In March 2019, at
about the same time Fike was dismissing the unlawful detainer action,
Bagula refused to turn over unredacted copies of Mai’s bills from his firm,
citing attorney-client privilege and attorney work product. Defense counsel
responded that they needed the information and might have to seek an order
compelling production from the trial court. But they never did so.
Several days before the trial began in early May, Bagula attempted to
mark as trial exhibits some partially unredacted attorney billing records.
Cross-defendants then filed a motion in limine to exclude the bills based on
unfair surprise because Mai did not produce the unredacted versions during
5 This litigation involved multiple parties. When we refer to the defense
attorneys, we mean counsel representing both or either Robinson and KW,
distinguishing when necessary.
11
discovery. Bagula responded with a “pocket brief,” to which defense counsel
replied, but the court did not consider these filings immediately because it
was focused on other issues.
Although the defense brief cited Copenbarger, supra, 29 Cal.App.5th 1,
Bagula and the trial court remained unaware of the details of the case; both
were still under the impression that even if Mai could not introduce the
unredacted bills into evidence, she could prove the amounts paid through her
own testimony and generally support the damages claim in other ways.6 But
during Mai’s direct examination, defense counsel objected to Bagula’s
attempt to do just that, claiming hearsay and citing Copenbarger.
It was only then, a few days into the trial, that the court thoroughly
familiarized itself with the Copenbarger decision. And it then concluded,
contrary to its earlier assumptions, that it could not allow Bagula to
introduce the amount Mai paid in attorney’s fees through her testimony. As
the court summarized, “[Copenbarger] differs from the law as I understood it.
We get fee motions all the time, and lawyers come in and they claim they
have various hourly rates, and they claim they spent so much time, but on
reasonableness, the Courts of Appeal always say, ‘We defer to the experience
of the trial judge,’ and all of that. [¶] . . . [¶] And based on that, I assumed
that I would be able, even without other evidence, knowing that this case was
tried in front of me—I have motions in front of me. I know there was work
done in this case—that I would be able to award some lawyer’s fees, but this
case seems to say otherwise. [¶] . . . [¶] That’s different from my position last
week . . . . [¶] . . . [¶] I was not aware of [Copenbarger] so I think, based on
this, I have to sustain the [defense’s] objections. [¶] . . . [¶] So I’m going to
6 Bagula argued, “She can say she received the bills, she can say she paid
them, she can say how much she paid each month.”
12
sustain the objection, but I encourage you [Mr. Bagula] to do something,
because this is all counter intuitive to me.”
Bagula continued to argue that getting the actual bills into evidence
was not critical to his case. And once he realized the limitations that might
be placed on Mai’s testimony, he repeatedly asked the court to allow him to
testify in order to authenticate the bills. Cross-defendants countered that it
would be unfair to allow Bagula to add himself to the witness list so late,
since they would have deposed him and prepared for a cross examination if
they had earlier notice that he would testify. Apparently persuaded by these
concerns, the court rejected Bagula’s request. It also read Copenbarger as
prohibiting the court from taking judicial notice of the pleadings and papers
in the court file to provide at least some evidence of the work performed by
Mai’s attorneys.7
But the full impact of all of this seems to have dawned on the court only
toward the end of the trial, when it came to the disturbing conclusion that
Bagula’s failure to turn over unredacted copies of the bills or list himself as a
witness during discovery, coupled with its reading of Copenbarger, made it
impossible to prevent a manifestly unfair result. As the court explained
apologetically to Bagula before hearing closing arguments, it considered itself
helplessly constrained:
“Court: And for what it’s worth, I read [Copenbarger] again
and—I won’t say what I want to say, but—
“Bagula: Please do.
7 Referring to the appellate opinion, the court explained, “It says what
the [trial] court tried to do in that case was take judicial notice of the file,
which is what I had suggested early on, which seemed like a reasonable thing
for me to do. And I could look at least at the pleadings and then infer from
that some reasonable value of the services. The appellate court in
[Copenbarger] specifically said I couldn’t do that.”
13
“Court: I would—based on the decision that I’m going to
make, I strongly—assuming I find liability, strongly urge
you to appeal. But I just think you’re barred. I think,
under our rules and everything, the failure to disclose, and
the court goes on about that—you know, that even any
testimony about what’s in the bills could be secondary
evidence. So the bills are critical. I wasn’t focused on that,
but the—in other words, the best—what we always—used
to say is best evidence is the bills themselves. And you
need to lay—and there’s—there’s no way Mai could lay a
foundation of that. [¶] And with my ruling that your
failure to list on any of the pretrial, the TRC report, or your
list of evidence, your list of witnesses, any of that,
somebody to lay the foundation, I think I’m bound by that
case. . . . I mean [it is] a horrible case for a plaintiff.
“Bagula: Yes, Your Honor.
“Court: And—but I think I’m bound by it.
“Bagula: I understand the Court’s decision. . . .
“Court: Yeah. And I—I’ll be honest, I did everything I
could. Because it seems to me if there—if I do find
liability— . . . there ought to be a way to get at least some
damages. [¶] And there’s no question that if there was a
forgery, that was the cause of the lawsuit, which caused the
attorney’s fees. I have no doubt that attorney’s fees were
incurred. I have no doubt that work was done. But under
[Copenbarger], I—I can’t—I have to follow it. I want the
record to be very clear on that. . . . [¶] . . . [¶] So you—you
know, I—I like to do the right thing, but sometimes I can’t.”
Several specific comments the court made in this final exchange are
worth highlighting. First, the court mentioned that although the attorney’s
bills were critical, it had not focused on that issue earlier, implying it did not
appreciate the full weight of its decision to exclude the partially unredacted
bills when it did so. Second, it commented that Bagula’s failure to identify a
witness who could authenticate the bills, understood in light of Copenbarger,
bound the court to an outcome that it considered manifestly unfair.
14
Even more critically, the court said that it did “everything [it] could”
and thought “there ought to be a way to get at least some damages” if it found
liability, which it went on to do in its statement of decision. This
commentary is telling, because it demonstrates that the court misunderstood
the scope of its own discretion. The precise manner in which the court
interpreted Copenbarger to limit its inherent ability to address errors that
arose during litigation is not entirely clear. But it seems to have read that
case—which assessed evidentiary errors after the fact—as precluding it from
doing anything to mitigate similar problems that arose in the midst of an
ongoing trial.
As we explain in further detail below, the facts of this case differ in
several respects from those in Copenbarger. Moreover, we question certain of
Copenbarger’s legal conclusions in light of existing precedent that the opinion
either failed to consider or gave insufficient weight to. Finally, even
assuming that Copenbarger’s analysis was correct, it need not have been
interpreted by the trial court as constraining it from exercising its
considerable discretion to guide the trial to a fair result.
4. How Much Evidence Is Enough to Support a Claim for Damages?
We now proceed to consider the plaintiff’s prima facie burden in an
attorney’s-fees-as-damages case and the trial court’s decision here that Mai
could not meet that burden. Although they arise in different procedural
contexts, the fundamental issue in both this case and Copenbarger is the
same: What is the minimum amount of evidence necessary to sustain an
award of attorney’s fees as damages? It is, in effect, as though defendants
made a motion for partial nonsuit at the close of plaintiff’s case and the trial
court was called upon to decide whether the plaintiff would even be permitted
15
to argue attorney’s fees as damages. Reading Copenbarger as entirely
dispositive, the trial court here effectively granted a partial nonsuit.
In reversing a trial court judgment for insufficient evidence,
Copenbarger made certain assumptions about what was required to meet a
plaintiff’s prima facie burden and, in the absence of other evidence from the
defendant, sustain a judgment in plaintiff’s favor. Although it made a point
of distinguishing between attorney’s fees as damages at trial and attorney’s
fees recoverable as costs in a postjudgment motion, Copenbarger assumed
that the requirements for obtaining fees in both contexts were the same. It
cited certain rules for attorney’s fee motion practice and concluded that
because “[s]uch evidence is required when a prevailing party requests
attorney fees by motion [and] [n]o less is required when attorney fees are
sought as damages.”8 (Copenbarger, supra, 29 Cal.App.5th at p. 15.)
Having surveyed the law with regard to a plaintiff’s prima facie burden
at trial to prove damages, we question this assumed equivalence. In our
view, the considerations are quite different when reviewing a judgment
following a full trial, as opposed to a postjudgment motion where most or all
the evidence is presented by declaration. Moreover, it is difficult to justify a
different rule for proving attorney’s fees than would apply to other similar
expenses recoverable as damages. Rather than looking to the standards
governing posttrial motions for attorney’s fees, as Copenbarger did, we find
more helpful guidance in the general principles governing a plaintiff’s burden
of production to establish compensatory damages.
8 Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315 and
Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, both relied
on by Copenbarger, involved motions for attorney’s fees under Code of Civil
Procedure section 425.16, subdivision (c). (Copenbarger, supra, 29
Cal.App.5th at p. 15.)
16
The plaintiff’s responsibility in making a preliminary showing of
medical expenses in personal injury cases provides a helpful starting place,
since it constitutes a close analogue: “ ‘When a pedestrian is struck by a car,
he goes to a physician for treatment of his injuries, and the motorist, if liable
in tort, must pay the pedestrian’s medical fees. Similarly, . . . an insurance
company’s refusal to pay benefits has required the insured to seek the
services of an attorney to obtain those benefits, and the insurer, because its
conduct was tortious, should pay the insured’s legal fees.’ ” (Brandt, supra,
37 Cal.3d at p. 817.) Phrasing the Brandt principle for broader application
on the facts of our case, where a defendant’s conduct requires the plaintiff to
incur attorney’s fees in prosecuting or defending a lawsuit (generally
involving a third party), the defendant should pay the plaintiff’s legal fees.
To support a claim for medical expenses as damages, plaintiffs must
demonstrate the amount of each claimed expense. (Haning et al., California
Practice Guide: Personal Injury (2020) Damages, ch. 3-C, §§ 3:350‒3:351.)
Beyond this, plaintiffs must also show the expenses were reasonable and
incurred as a result of injuries caused by the defendant. (McAllister v. George
(1977) 73 Cal.App.3d 258, 264 (McAllister); Gimbel v. Laramie (1960) 181
Cal.App.2d 77, 81 (Gimbel).) Testimony that they paid the cost of medical
treatment for injuries caused by the defendant is sufficient evidence that
such costs were reasonable, and satisfies the plaintiff’s initial burden of
production.9 (Malinson v. Black (1948) 83 Cal.App.2d 375, 379 (Malinson).)
9 As we later explain, submission of an actual invoice can corroborate
such testimony. But it is not a necessary component of the plaintiff’s case.
(See Moore v. Mercer (2016) 4 Cal.App.5th 424, 446 [approving of a plaintiff’s
summaries of medical bills as “an efficient manner of presenting the evidence
to the jury and, in the absence of an objection or evidence to the contrary,
[enough to] sustain[ ] plaintiff’s burden of proving her damages”].)
17
Similar standards govern other cases involving damage to property.
(See, e.g., Laubscher v. Blake (1935) 7 Cal.App.2d 376, 383 [finding the cross-
complainant’s evidence that he paid a certain amount to repair his car in an
accident caused by the defendant sufficient to support the award of
damages].) We see no reason why the same principles should not apply in
any case where the plaintiff pays for professional services to deal with the
consequences of the defendant’s unlawful action, and then seeks to recover
those costs as compensatory damages against the defendant. A prima facie
case as to the costs incurred and their reasonableness can be established by
the plaintiff’s testimony that bills for the services were paid.10
With these considerations in mind, we consider several aspects of the
Copenbarger opinion that convinced the trial court Mai could not meet her
burden of production. Analyzed in light of the rules that apply to proving
damages generally, we discuss why the concerns expressed in Copenbarger
did not necessarily preclude Mai from proving the necessary elements of her
damage claim.
10 What it takes for plaintiffs to make an initial showing to support their
damages is, of course, distinct from the greater burden a plaintiff must carry
if their case is challenged by the defense. Plaintiffs with challenged medical
costs often rely on the testimony of their treating physician to further support
their claim of damages. (See Pebley v. Santa Clara Organics, LLC (2018) 22
Cal.App.5th 1266, 1278‒1280.) In the same manner, a plaintiff with
challenged legal costs can rely on the testimony of their attorney to
authenticate any invoices offered, explain why certain tasks were performed,
and further support the reasonableness of those costs. This kind of testimony
is permitted by the State Bar. (Rules Prof. Conduct, rule 3.7(a)(2).)
18
a. Under established Supreme Court precedent, invoices are admissible
to support a plaintiff’s testimony that certain amounts were paid and
provide a prima facie showing that the amounts were reasonable.
Absent testimony from the lawyers themselves, Copenbarger can easily
be read to require that plaintiffs offer their actual invoices for attorney’s fees
in order to support any claim for the amounts paid as damages.11
(Copenbarger, supra, 29 Cal.App.5th at p. 15.) The analysis in Copenbarger
at least suggests that the only proper way to do this is to first authenticate
the bills with a competent witness, submit them as exhibits, and then call the
plaintiff to testify that the bills were paid. Anything less, the decision seems
to warn, will subject the plaintiff to insurmountable hearsay and/or
secondary evidence rule objections. Indeed, that reading of Copenbarger was
the genesis of much of the confusion in this case.
But interpreting Copenbarger in this manner would create a conflict
with Chief Justice Traynor’s opinion for the Supreme Court in Pacific Gas,
supra, 69 Cal.2d 33, which established what has been called a hearsay
exception for invoices: “Since invoices, bills, and receipts for repairs are
hearsay, they are inadmissible independently to prove that liability for
repairs was incurred, that payment was made, or that the charges were
reasonable. [Citations.] If, however, a party testifies that he incurred or
discharged a liability for repairs, any of these documents may be admitted for
the limited purpose of corroborating his testimony [citations], and if the
charges were paid, the testimony and documents are evidence that the charges
11 We use the terms “invoices” and “bills” interchangeably throughout,
and broadly mean these terms to also include receipts and any other
documentation prepared to show proof of payment.
19
were reasonable.”12 (Pacific Gas, at pp. 42‒43, italics added.) In other
words, once the plaintiff testifies (based on personal knowledge) that a bill in
a particular amount was received and paid, the invoice itself can be
introduced to explain and support the plaintiff’s testimony as well as show
the amount was reasonable. (Ibid. [“Since there was testimony in the present
case that the invoices had been paid, the trial court did not err in admitting
them.”].)
This theory of admissibility is justified by the “recognition that a
person who receives a bill has ‘every interest to dispute its accuracy or
reasonableness if there is reason to do so. Thus, if a bill or invoice is paid, the
court is assured of the accuracy and reasonableness of the charges.’ ”
(Dumrichob, supra, 63 Cal.App.4th at pp. 1267‒1268.) But even as it
approved the admissibility of invoices to support a plaintiff’s testimony as to
amount and reasonableness of expenditures caused by the defendant’s
conduct, Pacific Gas explained that the detailed content of invoices could not
be read to the trier of fact and then used to prove what exactly had been
done. This would be using the invoices to prove the truth of the matter
recited in the invoice and thus violate the hearsay rule. As Chief Justice
Traynor explained, “[t]he individual items on the invoices” could not be read
12 The Court of Appeal decision in Jones v. Dumrichob (1998) 63
Cal.App.4th 1258 (Dumrichob) refers to Pacific Gas as creating “a narrow but
long-recognized exception to the hearsay rule.” (Dumrichob, at p. 1267.)
Later commentators suggest that invoices are really admitted for a
nonhearsay purpose. (See Wegner et al., Cal. Practice Guide: Civil Trials and
Evidence (The Rutter Group 2020) ¶ 8:1025 [“bills for services rendered may
be admissible for nonhearsay purposes; e.g., to corroborate testimony that a
party incurred the liability, or to show that the charges were reasonable”].)
20
“to prove that these specific repairs had actually been made.” (Pacific Gas,
supra, 69 Cal.2d at p. 43.)13
Although Pacific Gas dealt with repair costs for a turbine (Pacific Gas,
supra, 69 Cal.2d at p. 36), the principle it announced can fairly be applied to
costs incurred for a wide variety of goods and services. Indeed, it has been
invoked broadly to permit the receipt of invoices for dental work, refunds for
diseased cattle, and bills for expert witnesses. (See, respectively, McAllister,
supra, 73 Cal.App.3d at p. 263, Imperial Cattle Co. v. Imperial Irrigation
Dist. (1985) 167 Cal.App.3d 263, 272, and Dumrichob, supra, 63 Cal.App.4th
at p. 1267.)
Copenbarger cites Pacific Gas, supra, 69 Cal.2d 33 for the general
proposition that “[a]n invoice itself is hearsay . . . unless a foundational
showing is made of an exception to the hearsay rule” (Copenbarger, supra, 29
Cal.App.5th at p. 13), but does not acknowledge the Pacific Gas holding that
invoices are admissible over a hearsay objection. It also did not consider or
discuss Malinson, supra, 83 Cal.App.2d 375, which held that when a plaintiff
testifies certain costs were paid,14 such testimony not only provides some
13 Here, relying on Copenbarger, the trial court properly ruled that the
“individual items on the invoices”—the detailed descriptions of the legal work
performed—were inadmissible hearsay and could not satisfy Mai’s burden.
14 The rule for unpaid bills is less certain, and at a minimum is up for
debate. (Compare the suggestion in Malinson, supra, 83 Cal.App.2d at p. 379
that expenses incurred would be “some evidence of reasonable value”
regardless of the payment status with commentary to the contrary in Latky v.
Wolfe (1927) 85 Cal.App. 332, 347, Linde v. Emmick (1936) 16 Cal.App.2d
676, 684, and Gimbel, supra, 181 Cal.App.2d at p. 81; see also Ochoa v.
Dorado (2014) 228 Cal.App.4th 120, 138 [concluding that unpaid medical
bills do not reflect the reasonable value of services provided, relying on cases
that explain the idiosyncratic nature of billing in the medical context].)
21
evidence that the costs were reasonable but, “in the absence of contradictory
testimony, will be held sufficient to support the award” of damages.
Malinson drew from an early Supreme Court case, Dewhirst v. Leopold (1924)
194 Cal. 424, 433 (Dewhirst), for this proposition and has since been followed
on this point by other appellate courts.15 (See, e.g., People v. Southern Cal.
Edison Co. (1976) 56 Cal.App.3d 593, 606; Plonley v. Reser (1960) 178
Cal.App.2d Supp. 935, 938.)
Of course, the plaintiff in Copenbarger never sought to introduce the
invoices as evidence, so the opinion’s discussion of their admissibility is
technically dicta. In any event, we decline to read Copenbarger as conflicting
with binding precedent from our Supreme Court. We are thus of the opinion
that its commentary on the inadmissibility of the invoices would only apply to
cases where plaintiffs attempt to read the detailed entries on the bills during
their testimony to prove the specific repairs made or services rendered—and
not where the invoices are offered for the more limited and appropriate
purpose of corroborating testimony that they actually paid certain amounts
and/or to make a prima facie showing that the charges were reasonably
incurred.16
As pertinent to this case, Mai sought to introduce redacted copies of the
attorney invoices only to support her testimony that she paid the billed
amounts and as some evidence that the amounts were reasonable.17 This
15 Both Malinson and Dewhirst are cited with approval in Pacific Gas,
supra, 69 Cal.2d at page 43.
16 Such testimony would not violate the secondary evidence rule since is it
not offered to prove the content of the writing. (Evid. Code, § 1521.)
17 Defendants argue that Mai’s failure to provide unredacted billing
records until the eve of trial prejudiced their right to effectively cross-
22
approach is specifically permitted by Pacific Gas. The trial court erred in
broadly reading Copenbarger to preclude both Mai’s testimony and receipt of
the invoices for these limited and appropriate purposes. This evidence would
have satisfied Mai’s prima facie burden to establish how much she paid for
legal services and the reasonableness of that amount.
b. Judicial notice of attorney-prepared documents in the court file was
an available means to provide some evidence of the legal work that
was performed.
In addition to showing what was paid to her attorneys and a basis to
conclude that these amounts were reasonable, Mai was also obligated to
provide some evidence of the work that was performed on her behalf. (See
California Steel Bldgs., Inc. v. Transport Indem. Co. (1966) 242 Cal.App.2d
749, 760 [to sustain a damages award plaintiff must provide “some evidence
examine her regarding her attorney’s fees. (See Copenbarger, supra, 29
Cal.App.5th at p. 15.) Mai responds by voicing her concern that the
protections of the client-attorney privilege are impermissibly undermined if a
plaintiff bringing a claim for attorney’s fees as damages is required to
disclose bills during discovery. As we have explained, there is no general
requirement that invoices are necessary to support a claim for damages based
on repairs or other expenses incurred by the plaintiff. Indeed, the redacted
bills here avoided the hearsay problem highlighted in Pacific Gas that
prevents a plaintiff from reading the detailed entries on an invoice. To the
extent defendants are complaining that they needed unredacted bills to
prepare their defense, their remedy was to file a motion to compel the
production of the documents. To the extent that Mai’s concerns about
balancing privileged communications with discovery obligations remain, we
note that the trial court’s power to control the order of evidence (Evid. Code,
§ 320), set the order of trial as to any distinct issue (Code Civ. Proc., § 598),
limit the scope of discovery (Code Civ. Proc., § 2017.020), and limit the scope
of depositions (Code Civ. Proc., § 2025.420), all provide critical protections to
ensure a fair balance of the rights of the litigants. (See also Lipton v.
Superior Court (1996) 48 Cal.App.4th 1599, 1620 [noting courts can order
documents produced with any necessary redactions to protect privileged
information].)
23
of the nature and extent of the services rendered” (italics added)].) Although
this is not a heavy burden, defendants contend she failed to introduce any
evidence of what legal services were performed. In this regard, they
maintain that Mai is just like Lloyd Copenbarger. She did not supervise the
legal work and knew nothing of what the attorneys actually did. (See
Copenbarger, supra, 29 Cal.App.5th at p. 14.) They further rely on
Copenbarger as precluding judicial notice of the court file in the Fike action to
support Mai’s claim. (Id. at pp. 14‒15.) Defendants conclude that, just as in
Copenbarger, “[n]o admissible evidence was presented of the nature of the
legal work performed.” (Id. at p. 14.)
We begin by observing that Copenbarger expressly did not decide
whether judicial notice of the pleadings and other documents in the court file
was error. (Copenbarger, supra, 29 Cal.App.5th at p. 14 [“We do not address
that argument.”].) Instead, it concluded that the documents in the court file
“have little materiality” to the question of what legal work was performed in
previous litigation. (Ibid.) Copenbarger appears to be concerned that taking
judicial notice of attorney-prepared documents in the court file to show the
nature of the legal work performed would involve “ ‘the truth of matters
asserted in such documents [which] is not subject to judicial notice.’ ” (Id. at
p. 15.) But it is not the truth of the statements in the pleadings and briefs
that makes them relevant. Rather, papers from previous litigation are
evidence that legal work was performed on a litigant’s behalf. What imbues
them with evidentiary value is the fact that they constitute the work product
of the attorney of record working for the plaintiff in the prior suit.
Notwithstanding Copenbarger’s disinclination to decide the issue, case
law is quite clear that the court can take judicial notice of documents in the
court file. (Evid. Code, § 452, subd. (d); Heston v. Farmers Ins. Group (1984)
24
160 Cal.App.3d 402, 413 [briefs filed in court are subject to judicial notice].)
More importantly, judicial notice of such documents is proper for the specific
purpose of establishing “the nature and extent of [legal] services.” (Estate of
Fulcher (1965) 234 Cal.App.2d 710, 719 (Fulcher).)
The case of Bruckman v. Parliament Escrow Corp. (1987) 190
Cal.App.3d 1051 (Bruckman) is a particularly pertinent application of this
general principle. There, the plaintiff was forced to incur attorney’s fees in
prosecuting a quiet title action as a result of the negligence of the defendant
title insurer. In the subsequent negligence action, the plaintiff sought the
fees incurred as damages and attempted to prove them through “exhibits
containing statements from his attorneys in that action, cancelled checks and
his testimony.” (Id. at p. 1061.) In addition, at plaintiff’s request, the court
took judicial notice of the documents in the court file of the quiet title action
“for the purpose of substantiating his claim of damages and to familiarize the
court with the complexity and extent of the litigation.” (Ibid.) Finding “no
error in this procedure,” the appellate court affirmed the damages award,
finding that “the amount was reasonable and that the damages had been
proved with reasonable certainty.” (Ibid.)
In this case, Mai suggested the trial court could take judicial notice of
the documents filed by her attorneys in the Fike suit and the trial judge
initially expressed his willingness to do so. Moreover, he was personally
familiar with this material since he had presided over that matter as well.
25
But he changed his decision later on because he read Copenbarger as
precluding resort to judicial notice for this purpose.18
It was a mistake for the trial court to read Copenbarger as barring this
established use of judicial notice. To be fair, Copenbarger strongly implies—
though it does not hold—that the kind of judicial notice approved of in
Bruckman and Fulcher is improper. Insofar as Copenbarger is inconsistent
with these opinions, we disagree with its conclusions. The sounder and long-
established rule is that materials filed by attorneys on behalf of litigants can
be judicially noticed and provide evidence to support an award of attorney’s
fees. As relevant to this case, the materials filed on Mai’s behalf by her
attorneys in the Fike action were properly subject to judicial notice and
provide some evidence of the work performed defending that case.19
5. The Trial Court’s Misunderstanding of Its Own Discretion
Consistent with the general rules that apply to the proof of damages at
trial, we have explained why Mai’s testimony and the attorney invoices,
combined with attorney-prepared documents in the court file of which the
18 Copenbarger also suggests that court-filed documents “are not relevant
evidence of who prepared the documents, the amount incurred in attorney
fees to prepare them, and whether that amount was reasonable.”
(Copenbarger, supra, 29 Cal.App.5th at p. 15.) But in this case, the purpose
of judicial notice was not to prove the amount of attorney’s fees or their
reasonableness. Mai’s testimony was admissible to do that. As to “who
prepared the documents,” both Mai’s testimony and the court file could
establish the lawyer or firm who served as Mai’s attorney of record during the
relevant time period.
19 In this case, to say the Fike filings provided some evidence of the work
performed by Mai’s attorneys is not to say they would necessarily support an
award of the full billed amount. But the trial court here concluded it was
without authority to award Mai anything for attorney’s fees based in part on
its belief that Copenbarger precluded judicial notice of the court file. For the
reasons already explained, this conclusion was manifestly incorrect.
26
court could take judicial notice, would have provided a sufficient basis to
support an award of attorney’s fees as damages. But even if the trial court
read Copenbarger’s comments on hearsay, the secondary evidence rule, and
judicial notice as a holding that this combined evidence was insufficient as a
matter of law, we need to explain why a court coming to this realization in
the middle of trial was still empowered to guide the proceedings to what it
considered to be a fair resolution.
This is because of the critical difference in procedural posture of the
two cases. Copenbarger was assessing evidentiary errors after a trial
concluded and judgment had been entered, whereas the trial court in this
case was presiding over an active trial when its understanding of the
governing law materially changed. If it now believed Mai was obligated to
prove her damage claim through the testimony of her attorney who could
authenticate unredacted invoices as business records, it could have paused
the proceedings. Under its inherent powers, it could have granted a
continuance, ordered unredacted copies of the attorney’s bills to be provided
to the defendants, and then allowed the defendants to depose Bagula before
he was added to the witness list. This would have mitigated any prejudice to
the defendants and avoided the substantially unfair outcome that the court
later lamented—gutting Mai’s ability to present her case. It also would have
been a comparatively simple option since this was a bench trial and involved
no jurors.
While such an interruption in proceedings would undoubtedly be
unusual, it is surely preferable to a court continuing to preside over a trial
that leads inevitably to a result the judge considers unfair and erroneously
thought was beyond his power to remedy. Courts possess the inherent power
to continue matters before them. (Curtis v. Underwood (1894) 101 Cal. 661,
27
669; Eclavia et al., California Jurisprudence (3rd ed. 2021) § 283.) And while
delaying litigation is generally disfavored in light of efficiency concerns (Gov.
Code, § 68607), those concerns are secondary to the primary function of the
courts—to adjudicate disputes on their merits. “[D]ecisions about whether to
grant a continuance or extend discovery ‘must be made in an atmosphere of
substantial justice. When [efficiency and fairness concerns] collide head-on,
the strong public policy favoring disposition on the merits outweighs the
competing policy favoring judicial efficiency.’ ” (Hernandez v. Superior Court
(2004) 115 Cal.App.4th 1242, 1246; see also Cal. Rules of Court,
rule 3.1332(d)(10) [courts consider the interests of justice in weighing a
request for a continuance].) Avoiding reversal on appeal is also the more
efficient option, even when it causes trial delays.
Here, the court’s comments late in the trial, which it took pains to put
on the record, persuade us that it did not consider itself authorized to avoid
both an unfair result and the evidentiary minefield seeded by its reading of
Copenbarger. It believed itself doomed to either repeat the mistakes of the
trial judge in Copenbarger or bar the admission of any and all evidence that
would have supported Mai’s damages—even though that evidence was
readily available and she attempted to offer it.
That the court thought it was so constrained suggests that it
misunderstood the scope of its own discretion. While the court’s evidentiary
decisions merit deference and generally will not be disturbed on appeal
unless an abuse of discretion occurred, “an erroneous understanding by the
trial court of its discretionary power is not a true exercise of discretion.”
(People v. Marquez (1983) 143 Cal.App.3d 797, 803.) For this reason as well,
we remand for a retrial on the narrow issue of attorney’s fees as damages at
which the trial court can exercise the full range of its discretion in resolving
28
any remaining discovery issues. (Brewer v. Second Baptist Church (1948) 32
Cal.2d 791, 801 (Brewer) [“The appellate courts have power to order a retrial
on a limited issue, if that issue can be separately tried without such confusion
or uncertainty as would amount to a denial of a fair trial.”].)
6. Additional Issues
Two issues remain for our resolution. The first involves the scope of
KW’s liability for Robinson’s actions. KW argues that even if the evidence
was sufficient to support an award of attorney’s fees as damages, it cannot be
held liable for Mai’s attorney’s fees in the Fike suit under the tort of another
doctrine because only Robinson—not KW—committed a tort against Mai.
But this argument merely ignores respondeat superior as a theory of liability.
It further ignores the trial court’s explicit finding that KW was liable for
Robinson’s actions on those grounds. KW cites no case authority for its
implied position that respondeat superior is inappropriate here, and the case
on which the trial court relied, Alhino v. Starr (1980) 112 Cal.App.3d 158,
indicates otherwise. (Id. at pp. 174‒175.) Since KW advanced no legal
argument on this point, we need consider the issue no further. (Landry v.
Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700 [“When an
issue is unsupported by pertinent or cognizable legal argument it may be
deemed abandoned and discussion by the reviewing court is unnecessary.”].)
The final issue we must resolve is whether, as Mai claims, the trial
court’s $200 award of punitive damages assessed against Robinson was too
low as a matter of law. Mai asserts that the trial court’s focus on Robinson’s
low net worth, which it found to be $1,000, was inadequate, and that it
29
should have allowed inquiry into20 and considered her future earning
potential in its decision. But she cites no caselaw that mandates such a
process.
When challenged, punitive damages are generally reviewed for
excessiveness, which implicates due process concerns. (12 Miller & Starr,
California Real Estate (4th ed. 2021) § 40:93.) In that context, appellate
courts apply de novo review, and consider “(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 Mut.
Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 409 (State Farm).)
But a low punitive damages award does not create an “acute danger of
arbitrary deprivation of property” as an excessive award does. (State Farm,
supra, 538 U.S. at p. 417.) And because a “plaintiff is never entitled to
punitive damages as a matter of right,” the award amount is a “question[ ]
committed to the trier of fact”—in this case, the trial court. (Uzyel v. Kadisha
(2010) 188 Cal.App.4th 866, 923‒924; see also Civ. Code, § 3294, subd. (a)
[plaintiff “may” recover punitive damages].) In this context, where no
constitutional concerns as to the defendant nor right of recovery as to the
plaintiff animate our review, we give substantial deference to the court’s
judgment.
In assessing a punitive damages award, there is no “rigid standard for
measuring a defendant’s ability to pay.” (Adams v. Murakami (1991) 54
20 Contrary to Mai’s assertion that she was limited to inquiring about
Robinson’s current net worth, the trial court also allowed questions regarding
her net worth (though not her income) in previous years.
30
Cal.3d 105, 116, fn. 7.) Net worth is the most common measure of wealth
used, and although the trier of fact is permitted to look beyond net worth, it
is by no means required to do so. (Rufo v. Simpson (2001) 86 Cal.App.4th
573, 621.) Neither is there some] proportionality requirement between the
award of compensatory and punitive damages (absent a potentially excessive
award). (Brewer, supra, 32 Cal.2d at p. 802 [“The rule that exemplary
damages must bear a reasonable relation to actual damages [citations] is
designed solely to guard against excessive punitive damages.”].)
As a general rule, punitive damage awards beyond ten percent of a
defendant’s net worth run the risk of being deemed excessive. (Bankhead v.
ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 81; Sierra Club Foundation v.
Graham (1999) 72 Cal.App.4th 1135, 1163 [10 percent of net worth is a
generally recognized “cap” on punitive damages].) Here, the trial court
considered Robinson’s low net worth and set the damages at twenty percent.
While the actual figure is modest, it appears the court doubled the general
cap in order to carry out the purpose of a punitive award—to punish the
wrongdoer and deter future bad acts. (Neal v. Farmers Ins. Exchange (1978)
21 Cal.3d 910, 928, fn. 13.) Mai has made no showing that the trial court
abused its discretion in doing so.
31
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court
for retrial on the limited issue of attorney’s fees as damages in accordance
with this opinion. In all other respects, the judgment is affirmed. Mai is
entitled to costs on appeal.
DATO, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
32