January 2, 2013

Unpublished opinion finds that defendant waived challenge to punitive damages award

As a general rule, when a California defendant wants to challenge a jury's damages award as excessive, the defendant must raise that issue in a new trial motion to preserve it for appeal.  This unpublished opinion (Silas v. Arden) from the Second Appellate District, Division One, applies that rule and finds that a defendant waived his right to challenge a punitive damages award by not raising excessive damages in a motion for new trial.

In Silas, the defendant argued that the award was excessive because the plaintiff's counsel inflamed the passions and prejudices of the jury with improper arguments.  That seems like the sort of argument that is a trial court should probably decide in the first instance.  In other situations, however, a defendant might be able to challenge a punitive damages award on appeal even without moving for a new trial.  A defendant who argues that an award is excessive as a matter of law under the Due Process Clause should be able to raise that argument for the first time on appeal, because it is a pure legal issue that does not require the appellate court to resolve evidentiary conflicts.  See, for example, Storage Services v. Ooosterbaan (1989) 214 Cal.App.3d 498, 515, fn. 9 [no waiver where excessive damages argument does not involve conflicting testimony or issues of credibility].    

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