November 3, 2010

Will the new Chief Justice change the California Supreme Court's approach to punitive damages?

Last week we linked to a National Law Journal article exploring whether the new members of the U.S. Supreme Court might change that court's approach to punitive damages law.  That story prompted us to consider whether Justice Tani Cantil-Sakauye, whose selection as the next Chief Justice of the California Supreme Court was approved yesterday by the voters, might reshape punitive damages law in California.

The short answer is no, we see no indications that Justice Cantil-Sakauye's addition to the court will result in a sea change in punitive damages law.  For starters, none of the California Supreme Court's recent opinions on punitive damages have been closely divided.  In the most recent decision, Roby v. McKesson, was decided by a vote of 5-2.  The two previous cases, Simon v. San Paolo U.S. Holdings and Johnson v. Ford Motor Co., were decided 7-0 and 5-2, respectively.  So there's no reason to think that the presence of one new justice on the court would have changed the outcomes in those cases.

Moreover, we see nothing in Justice Cantil-Sakauye's Court of Appeal opinions to suggest that she has any particular agenda when it comes to punitive damages.  Her most notable punitive damages decision is Nelson v. Exxon Mobil, which is currently pending before the California Supreme Court.  (Click here to view the docket.)  In that case, she held that punitive damages claims are assignable when they arise from a cause of action that is assignable.  We noted at the time that Justice Cantil-Sakauye's opinion seemed to conflict with other cases suggesting that punitive damages claims are never assignable.  But her opinion on this issue does not suggest to us any grand plan to reshape punitive damages law.  And Chief Justice Cantil-Sakauye won't even be able to participate in the Supreme Court's decision.  (See Canon 3E(5)(f) of the California Code of Judicial Ethics [appellate justice is disqualified if "[t]he justice (i) served as the judge before whom the proceeding was tried or heard in the lower court"].) So at this time, we have no reason to expect any change in the California Supreme Court's approach to punitive damages.