California Legislature—2013–14 Regular Session

Assembly Bill No. 1095

Introduced by Assembly Member Nestande

February 22, 2013

An act to amend Section 3294 of the Civil Code, relating to civil actions.

LEGISLATIVE COUNSEL’S DIGEST

AB 1095, as introduced, Nestande. Civil actions: damages.

Existing law authorizes the plaintiff, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, to recover damages for the sake of example and by way of punishing the defendant in addition to the actual damages.

This bill would make technical, nonsubstantive changes to this provision.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3294 of the Civil Code is amended to
read:

3294.  

(a) In an action for the breach of an obligation not arising
from contract, where it is proven by clear and convincing evidence
that the defendant has been guilty of oppression, fraud, or malice,
the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishing the
defendant.

(b) An employer shall not be liable for damages pursuant to
subdivision (a), based upon acts of an employee of the employer,
unless the employer had advance knowledge of the unfitness of
the employee and employed him or her with a conscious disregard
of the rights or safety of others or authorized or ratified the
wrongful conduct for which the damages are awarded or was
personally guilty of oppression, fraud, or malice. With respect to
a corporate employer, the advance knowledge and conscious
disregard, authorization, ratification or act of oppression, fraud,
or malice must be on the part of an officer, director, or managing
agent of the corporation.

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant
to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard
of the begin delete rights end delete begin insert safety end insert or begin delete safety end delete begin insert rights end insert of others.

(2) “Oppression” means despicable conduct that subjects a
person to cruel and unjust hardship in conscious disregard of that
person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person
of property or begin insert a end insert legal begin delete rights end delete begin insert right end insert or otherwise causing injury.

(d) Damages may be recovered pursuant to this section in an
action pursuant to Chapter 4 (commencing with Section 377.10)
of Title 3 of Part 2 of the Code of Civil Procedure based upon a
death which resulted from a homicide for which the defendant has
been convicted of a felony, whether or not the decedent died
instantly or survived the fatal injury for some period of time. The
procedures for joinder and consolidation contained in Section
377.62 of the Code of Civil Procedure shall apply to prevent
multiple recoveries of punitive or exemplary damages based upon
the same wrongful act.

(e) The amendments to this section made by Chapter 1498 of
the Statutes of 1987 apply to all actions in which the initial trial
has not commenced prior to January 1, 1988.