Mattco Forge, Inc. v. Arthur Young & Co.

CROSKEY, J., Concurring and Dissenting.

With but one exception, I concur with the thoughtful and well-reasoned opinion of my colleagues. However, that exception is important as it relates to the very significant question of what jurors should be told about the “clear and convincing” evidentiary standard they are required to apply in determining a defendant’s *851liability for punitive damages. Regrettably, I must dissent from the majority opinion’s analysis and discussion of this issue and from the resulting withdrawal from previously asserted declarations by this court regarding the inadequacy of BAJI No. 2.62.1

One of the important changes in the law made by the Willie L. Brown Jr.Bill Lockyer Civil Liability Reform Act of 1987 was to increase the evidentiary threshold which must be met in order to justify a recovery of punitive damages. Civil Code section 3294, subdivision (a), now requires that a party seeking punitive damages must prove the existence of fraud, malice or oppression by “clear and convincing” evidence. This represents an important change in the law and is in line with a number of procedural and substantive changes which have been made by the Legislature over the past 15 years to limit and make more burdensome the recovery of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 712-713 [34 Cal.Rptr.2d 898, 882 P.2d 894]; Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 332-333 [5 Cal.Rptr.2d 594].)2

*852The clear and convincing standard of proof is one of three recognized Evidence Code section 3 However, it has been imposed in California in only limited cases4 and then as a reflection of “the degree of confidence our society thinks [a factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.” {In re Winship (1970) 397 U.S. 358, 370 [90 S.Ct. 1068, 1075-1076, 25 L.Ed.2d 368] (cone. opn. of Harlan, J.).) As the United States Supreme Court stated in Addington v. Texas (1979) 441 U.S. 418 [99 S.Ct. 1804, 60 L.Ed.2d 323], “The standard [of proof] serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision. [H . . . HQ . . . One typical use of the [clear and convincing] standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly *853reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof.” (Id., at pp. 423-424 [99 S.Ct. at pp. 1807-1808].) By the 1987 legislation, California elevated a claim for punitive damages to this higher level of public concern.5

For nearly 100 years, California has applied a consistent definition to this very high standard of proof. In In re Angelia P., supra, 28 Cal.3d 908, our Supreme Court stated that the “clear and convincing” standard required, as the majority notes, “a finding of high probability.” What the majority opinion ignores, however, is that the Angelia P. court went on expressly to approve a characterization of this proof standard which fully supports the instruction requested by Arthur Young. (Id. at p. 919.) “This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be ‘“so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.” ’ (Sheehan v. Sullivan (1899) 126 Cal. 189, 193 [58 P. 543].) It retains validity today. [Citation.]” (In re Angelia P., supra, 28 Cal.3d at p. 919, italics added; see also Copp v. Paxton (1996) 45 Cal.App.4th 829, 846 [52 Cal.Rptr.2d 831]; Lillian F. v. Superior Court, supra, 160 Cal.App.3d at p. 320; In re David C. (1984) 152 Cal.App.3d 1189, 1208 [200 Cal.Rptr. 115]; In re Terry D. (1978) 83 Cal.App.3d 890, 899 [148 Cal.Rptr. 221].)

My colleagues emphasize that the Sheehan court, in its 1899 opinion, had also referred to seven other characterizations of the clear and convincing burden which were not mentioned by Angelia P. Quoting from an earlier opinion (Mahoney v. Bostwick (1892) 96 Cal. 53 [30 P. 1020]), Sheehan noted that different courts had described the “clear and convincing” standard as requiring evidence which was: “clear, satisfactory and convincing,” “clear and satisfactory,” “clear and convincing,” “very satisfactory,” “strong and convincing,” “clear, unequivocal, and convincing,” and “clear, explicit and unequivocal.” Little wonder that the Angelia P. court ignored such tautological expressions and chose instead to describe the proof standard in those terms used in Sheehan (“so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind”) which would provide at least some assistance to a trier of fact attempting to apply that standard.

When the Legislature determined in 1987 to impose this much higher burden of proof in punitive damage cases, it did so in the context of an *854uninterrupted and consistent line of decisions which have accepted and followed the language which was initially used in Sheehan and ultimately specifically endorsed in Angelia P. “ ‘It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. [Citations.]’ [Citations.]” (Estate of McDill (1975) 14 Cal.3d 831, 839 [122 Cal.Rptr. 754, 537 P.2d 874]; see also Anderson v. I. M. Jameson Corp. (1936) 7 Cal.2d 60, 67 [59 P.2d 962]; Estate of Marón (1986) 183 Cal.App.3d 707, 712-713 [228 Cal.Rptr. 402].)

The Legislature’s decision to apply a more rigorous proof standard to claims of punitive damage liability, taken together with the Supreme Court’s very specific articulation of what the clear and convincing standard required, must control our understanding of the proof burden now imposed in punitive damage cases. In my view, the conclusion is inescapable that the Legislature necessarily, and as a matter of law, intended the same meaning and definition of that standard as set out in Angelia P. Indeed, given the history of consistent judicial interpretation, there was no need to attempt a legislative definition of that standard. Significantly, there is no legislative history to the contrary.

My colleagues complain that the language specifically endorsed by Angelia P. imposes a burden “approaching the criminal burden of proof of beyond a reasonable doubt.” I quite agree. The clear and convincing standard is indeed a high one, as it was intended to be; it does approach the criminal standard, but it is not the same or even “essentially” the same. The attempt by the majority to equate the language approved by Angelia P. with a reasonable doubt standard, and thereby justify its rejection, is a circular argument based upon a false premise simply assumed by the majority. In effect, this argument merely quarrels with the manner in which the Supreme Court chose to define “clear and convincing.” The Angelia P. court itself defined the standard by use of the language requested by Arthur Young while, at the same time, making it clear that this was a lower burden of proof than “beyond a reasonable doubt.” (In re Angelia P., supra, 28 Cal.3d at pp. 918-919.)

As this court has previously stated on three other occasions, the language of BAJI No. 2.62 as it presently reads is both misleading and unnecessarily limited. It suggests an evidentiary test which is significantly less rigorous than the one the Supreme Court has repeatedly defined in much stronger and more explicit terms. (In re Marriage of Weaver, supra, 224 Cal.App.3d at p. 487, fn. 8; see also Mock v. Michigan Millers Mutual Ins. Co., supra, 4 *855Cal.App.4th at pp. 332-333; DuBarry Internat., Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552, 566, fn. 19 [282 Cal.Rptr. 181].) While, as the majority correctly notes, BAJI No. 2.62 is not an incorrect statement of the law (Mock, supra, at p. 333, fn. 29; Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 804 [274 Cal.Rptr. 139]), it does not go far enough. To that extent, it misleads jurors by providing no guidance whatever as to how they are to recognize “clear and convincing” evidence. Nor does the present instruction assist the jury in determining whether that evidentiary standard has been met. Given the Supreme Court’s descriptive characterization in Angelia P. of this elevated burden, a judge conducting a bench trial has better information as a trier of fact than do jurors in a jury trial. How do we justify such a difference, not to mention the discrimination imposed upon defendants who have to try a punitive damage case to a jury? In my view, this practice cannot be justified. A proper remedy would be to modify BAJI No. 2.62, when requested by a party, to reflect the more explicit language used by the courts to describe what is meant by the term “clear and convincing.” (Cf. Roberts v. Ford Aerospace & Communications Corp., supra, 224 Cal.App.3d at p. 804.)

In this case, Arthur Young did make such a request6 and Mattco made no objection thereto. Nonetheless, the trial court refused to give anything other than the unmodified BAJI instruction. I believe that was error. The language of BAJI No. 2.62, requires a finding of “high probability” and then goes on to say that more than a mere “preponderance” of the evidence is necessary. That language does not come close to explaining what the Supreme Court has said is required to meet the “clear and convincing” standard. On the other hand, the rejected instruction refers to the clarity as well as the strength of the evidence. The simple reference in BAJI to “high probability,” standing alone, does not call for a juror conviction that the matter is without “substantial doubt” or that it commands “the unhesitating assent of every reasonable mind.” The excluded language was critically important because it answered the question, “how high must the probability be?”

Given that we reverse and remand this matter for a new trial, it is not necessary for me to belabor the question of whether these erroneous instructions were prejudicial. Nonetheless, it is clear from the record that the trial *856court’s refusal to properly define the term “clear and convincing” was indeed prejudicial to Arthur Young’s defense. Several of the factors outlined in Soule v. General Motors Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298], were implicated.7 The evidence with respect to whether Arthur Young had committed fraud was in serious conflict and the jury, which required six days of deliberation to reach its verdict, asked the court several times for help with the instructions defining fraud. This was the very issue to which the jury had to be persuaded by the “clear and convincing” standard. Thus, I believe it fairly can be concluded that a different verdict on this issue was reasonably probable had a proper instruction on the evidentiary standard been given.

For the foregoing reasons, I would remand this matter with additional instructions to submit the issue of punitive damage liability to the jury upon a proper and meaningful definition of the term “clear and convincing.”8 It is simply not enough to say only that “clear and convincing” requires a “high probability of the truth,” a “higher” level of proof than the preponderance standard. Given the Supreme Court’s past consistent approach to a more exacting definition of this evidentiary standard, the continued use of an unmodified BAJI No. 2.62 is an abdication of judicial responsibility to provide jurors with adequate instructions on the law. The Supreme Court should consider granting review of this case so as to address this important question.

Respondent’s petition for review by the Supreme Court was denied April 30, 1997.

AJI No. 2.62 defines the evidentiary standard in the following terms:

“ ‘Clear and convincing’ evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence.”

In College Hospital, the Supreme Court recently summarized these changes: “Beginning in 1979, various procedural restrictions were enacted. The Legislature limited the circumstances under which evidence of the defendant’s financial condition could be discovered and admitted, authorized bifurcation of the punitive damages phase of trial, and barred disclosure of the amount of punitive damages sought in the complaint. (Civ. Code, § 3295, subds. (a)-(e).) These provisions were apparently intended to curtail use of such claims as a tactical ploy. The pretrial discovery limits ensure that defendants are not coerced into settling suits solely to avoid unwarranted intrusions into their private financial affairs, while the evidentiary restrictions minimize potential prejudice to the defense in front of a jury. [Citations.] HQ In 1980, the Legislature began modifying the substantive elements of punitive damage awards. It limited the circumstances under which an employer could be held liable for punitive damages ‘based upon acts of an employee.’ (Civ. Code, § 3294, subd. (b).) At the same time, the concepts of ‘oppression,’ ‘fraud,’ and ‘malice’ were given specific definitions. (Id., § 3294, subd. (c).) ... [DO Additional requirements were imposed by the [1987 Reform Act]. [It] amended Civil Code section 3294 by increasing the plaintiff’s burden of proving punitive damages at trial to ‘clear and convincing evidence.’ The definition of ‘malice’ was also refined. For plaintiffs attempting to prove malice by showing a ‘conscious disregard’ of their rights as opposed to an actual intent to harm, the [statute] imposed additional requirements of ‘despicable’ and ‘willful’ defense conduct. HD [Finally, it] also added section 425.13 to the Code of Civil Procedure. [That] statute imposes certain pretrial procedural requirements on plaintiffs attempting to plead a punitive damages claim against a health care provider. It is not the only statute of its kind. Between 1988 and 1992, several similar provisions, covering both compensatory and punitive damage claims, were added to the Code of Civil Procedure. (§§ 425.14 [punitive damages claim against religious corporation], 425.15 [negligence claim against volunteer director or officer of nonprofit corporation], 425.16 [‘SLAPP’ suit affecting right of petition/ffee speech]; see also Civ. Code, §§ 1714.10 [conspiracy claim against *852attorney], 3295, subd. (c) [discovery in punitive damages action].)” (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at pp. 712-713.)

Evidence Code section 115 provides: “ ‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. [<1 Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”

The following is a summary of some of the evidentiary circumstances where California has recognized or imposed a clear and convincing burden of proof standard. They include: (1) deed absolute in form is actually a mortgage (Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 7 [147 P.2d 583]; Wehle v. Price (1927) 202 Cal. 394, 396-397 [260 P. 878]); (2) deed absolute in form is actually a conveyance subject to a trust (see Sheehan v. Sullivan (1899) 126 Cal. 189, 192-193 [58 P. 543]; Adams v. Young (1967) 255 Cal.App.2d 145, 155 [62 Cal.Rptr. 877]; Spaulding v. Jones (1953) 117 Cal.App.2d 541, 545 [256 P.2d 637]); (3) oral agreement to make a will (see Lynch v. Lichtenthaler (1948) 85 Cal.App.2d 437, 441 [193 P.2d 77], disapproved on another point in Brown v. Superior Court (1949) 34 Cal.2d 559, 565 [212 P.2d 878]); (4) property acquired after marriage is nevertheless separate property (overcoming the strong presumption in favor of community property) (see Estate ofNickson (1921) 187 Cal. 603, 605 [203 P. 106]); (5) proof to overcome rebuttable presumptions of paternity (Fam. Code, § 7612); (6) establishment of a probate conservatorship (Conservator-ship of Sanderson (1980) 106 Cal.App.3d 611, 620 [165 Cal.Rptr. 217]); (7) proceedings to terminate parental rights (In re Laura F. (1983) 33 Cal.3d 826, 839 [191 Cal.Rptr. 464, 662 P.2d 922]; In reAngelia P. (1981) 28 Cal.3d 908, 919 [171 Cal.Rptr. 637, 623 P.2d 198]); (8) proof of malice in defamation of public official or public figure (Tague v. Citizens for Law & Order, Inc. (1977) 75 Cal.App.3d Supp. 16,25 [142 Cal.Rptr. 689]); (9) proof of obscenity in public nuisance abatement action (People ex rel. Cooper v. Mitchell Brothers’ Santa Ana Theater (1982) 128 Cal.App.3d 937, 940 [180 Cal.Rptr. 728]); (10) proof to support an order that a conservatee lacks the capacity to give a written, informed consent to convulsive treatment (Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 323-324 [206 Cal.Rptr. 603]); (11) proof of oral transmutation of separate property into community property (see In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 487 [273 Cal.Rptr. 696]; Evid. Code, § 662; see also 1 Witkin, Cal. Evidence (3d ed. 1986) Burden of Proof and Presumptions, §§ 160-161, pp. 137-139).

As we recently noted, “Beyond doubt, when the Legislature amended Civil Code section 3294 in 1987 to impose a ‘clear and convincing’ evidentiary standard, it intended to impose a new statutory limitation on the award of punitive damages. [Citation.]” (Stewart v. Truck Ins. Exchange (1993) 17 Cal.App.4th 468, 482, fn. 27 [21 Cal.Rptr.2d 338].)

The proposed jury instruction submitted by Arthur Young modified BAJI No. 2.62, as follows: “ ‘Clear and convincing’ evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating agreement of every reasonable mind." (Italics added.) As I point out in footnote 8, post, a proper instruction need not use these exact words.

In Soule, the Supreme Court summarized the rule for determining whether instructional error was prejudicial to the complaining party. It stated that consideration of a number of factors is required: “ ‘(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent’s argument to the jury may have contributed to the instruction’s misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury’s verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].’ [Citations.]” Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571.)

Given the legal characterizations endorsed by the Angelia P. court, and recognizing that the precise language utilized in a judicial opinion may not be appropriate for use in a jury instruction, I would suggest that a proper instruction would add the following sentence to BAJI No. 2.62: “It requires that the evidence be sufficiently strong to command your immediate agreement and so clear as to leave you in no substantial doubt as to the truth of those facts.”