Punitive damages are only recoverable as to the conversion, breach of fiduciary duty, fraud and constructive fraud causes of action.
If you were negotiating a settlement, you would NOT be negotiating an amount for punitive damages. That's because an award of punitive damages requires a finding, by clear and convincing evidence, “that the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code, § 3294, subd. (a).)
In California, three factors are to be evaluated in assessing punitive damages:
(1) the reprehensibility of a defendant's conduct;
(2) proportionality: whether the amount of the award bears a reasonable relationship to the damage actually suffered by plaintiff; and
(3) whether the award is reasonable in light of defendant's financial condition. (Neal v. Farmers Ins. Exchange(1978) 21 Cal.3d 910, 928.)
An important consideration in assessing punitive damages is the net worth of the defendant. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 390.) The award must bear some reasonable relationship to the net worth of the defendant, and where the award is grossly disproportionate to the defendant's wealth, a presumption arises that it was the result of passion and prejudice. (Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 469.) A punitive damages award is excessive if it is disproportionate to the defendant's ability to pay. (Mike Davidov Co. v. Issod(2000) 78 Cal.App.4th 597, 607.)
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.
There is no set rule on punitive damages. Punitive damages are a separate type of damages that are only recoverable in certain circumstances and are hard to get. The plaintiff have a higher burden to recover them. Usually, after the trial on liability/damages, there is a separate phase of the trial to argue punitive damages. Without knowing more facts, its hard to advise you. I would say if they lost X dollars and you are willing to pay it back immediatel, they would take it and punitives will not come into play.
LEGAL DISCLAIMER: NO ATTORNEY-CLIENT RELATIONSHIP: The information provided herein is intended for informational purposes only. This information does not necessarily reflect current legal or factual developments and is general in nature. Nothing set forth in this email should be construed as providing legal advice regarding an individual situation. Mark Wagner and/or the Wagner Legal Group makes no warranty, express or implied, about the correctness, accuracy or reliability of the information set forth in this email. The information provided in this email should not be construed as legal advice and does not constitute an engagement of legal services with Mark Wagner and/or the Wagner Legal Group or establish an attorney-client relationship. There should be no expectation that an attorney-client relationship has been created unless you receive and accept a written form of engagement setting forth the terms of the representation. This response may constitute Legal Advertising/Marketing.
Mr. Chen is right. Most corporations and defendants are not going to agree to include a provision for punitive damages in a settlement agreement. If you want to negotiate a settlement, which is usually a great way to proceed since it shows good faith, my suggestion would be to include that number in your settlement offer. Hire a lawyer who knows what they're doing.
Ack! Please see an attorney. If you are exposed to punitive damages then you need representation.
Best of luck to you.
Attorney Rebekah Ryan Main
If you found this answer helpful, let me know by clicking the "Mark as Helpful" button at the bottom of this answer or select it as Best Answer. It’s easy and appreciated.
This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges. We can be visited on the web at www.Main-Law.com or call 909-891-0906.
This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges.