Bullock v. Philip Morris 5/17/06 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B164398M

Case Date: 08/02/2006

Preview:Filed 5/17/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

JODIE BULLOCK, Plaintiff and Appellant, v. PHILIP MORRIS USA, INC., Defendant and Appellant; MICHAEL J. PIUZE, Objector and Appellant.

B164398, B169083 (Los Angeles County Super. Ct. No. BC249171)

ORDER MODIFYING OPINION AND DENYING PETITIONS FOR HEARING [NO CHANGE IN JUDGMENT]

THE COURT: The opinion filed in the above-entitled matter on April 21, 2006, is modified as follows: 1. On page 16, paragraph 2, line 2, after the word "direct" insert the words

"or indirect" so the sentence reads, "Philip Morris's selective recitation of evidence focuses on whether Bullock was a direct or indirect recipient of specific representations."

2.

On page 16, paragraph 2, line 6, after the words "and that the" insert the

words "substance of" so the clause reads, "and that the substance of the misinformation reached Bullock indirectly through various means and media sources and caused her to begin and to continue smoking." 3. On page 49, line 16, delete the word "must" and replace it with the word

"should" so that line 16 reads, "pp. 1665-1666.) Evidence of a prior punitive damages award should be presented to the" 4. On page 49, at the end of line 18, add a new footnote designation 26,

change all subsequent footnote numbers accordingly, and add a new footnote 26 to read as follows: Nonetheless, Philip Morris asks us to consider two specific prior California punitive damages awards totaling $59 million that became final after judgment was entered by the trial court in this matter. We decline to do so. In Stevens v. Owens-Corning Fiberglas Corp., supra, 49 Cal.App.4th at page 1664, the court explained that evidence of prior punitive damages awards was necessary to determine the significance of those awards, including whether the defendant actually paid the awards and whether the awards arose from the same course of conduct. "For evidence of other awards to have probative value, it must be tested in an adversary setting, giving the plaintiff a chance to probe the underlying facts. [Citations.]" (Ibid.) The Texas Supreme Court in OwensCorning Fiberglas Corp. v. Malone, supra, 972 S.W.2d 35, in contrast, held that a trial court reviewing a due process challenge may consider evidence of prior
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punitive damages awards beyond what was presented to the jury at trial (id., at p. 52), but refused to consider postjudgment awards cited for the first time on appeal because those awards were not part of the trial court record and there was no proof of payment (id., at p. 53, fn. 7). Our review of the correctness of a judgment ordinarily is limited to the record before the trial court at the time the judgment was entered. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) If a judgment is affirmed on appeal, it is affirmed as rendered on the date of the judgment, not as of a later date. (People's Home Sav. Bank v. Sadler (1905) 1 Cal.App. 189, 193; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,

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