Filed 4/29/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STEPHEN COLUCCI, D075932

Plaintiff and Respondent, (Super. Ct. No. CIVDS1502822)

v.

T-MOBILE USA, INC.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, Keith

D. Davis, Judge. Affirmed in part, reversed in part, and remanded with directions.

Allen Matkins Leck Gamble Mallory & Natsis and Amy Wintersheimer Findley;

Paul Hastings, Paul W. Cane, Jr., and Andrea Dicolen, for Defendant and Appellant.

Barrera & Associates, Patricio T.D. Barrera, Ashley A. Davenport; McCormick,

Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie for Plaintiff and Respondent.

T-Mobile USA, Inc. (T-Mobile) appeals a judgment entered on a $5 million jury

verdict in favor of former employee Stephen Colucci in a workplace retaliation case. T-Mobile primarily challenges the $4 million punitive damages award, arguing there is

insufficient evidence that a managing agent engaged in retaliatory conduct or that the

managing agent's actions were malicious or oppressive (Civ. Code, § 3294, subd. (b)).

Alternatively, it argues the punitive damages award is constitutionally excessive and must

be reduced. Finally, T-Mobile contends the jury's $200,000 award of damages for future

emotional distress is not supported by sufficient evidence.

For the reasons discussed below, we reduce the punitive damages award to an

amount that is one and one-half (1.5) times the amount awarded in compensatory

damages, and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

"In summarizing the facts, we view the evidence in favor of the judgment." (Roby

v. McKesson Corp. (2009) 47 Cal.4th 686, 693-694 (Roby).)

T-Mobile, headquartered in the State of Washington, sells wireless telephones and

plans to consumers at retail store locations. There are hundreds of T-Mobile retail stores

in California, which the company groups into smaller geographic regions and districts.

Colucci worked for T-Mobile from 2007 until 2014 as the manager of a store in

Ontario, California, known as the Milliken store. As store manager, he supervised

around 10 employees, participated in hiring and training these employees, conducted

physical inventories, and completed other tasks to support sales. Colucci was a good

employee and garnered positive performance reviews. His direct supervisor was the

district manager of "Inland Empire West." Inland Empire West was comprised of about

nine stores including Milliken.

2 In February 2014, Brian Robson became the new district manager of Inland

Empire West. Robson was responsible for operating his district's stores and roughly 100

employees. His job duties included coaching and developing individual retail store

managers; making final decisions on hiring and firing employees; and handling a wide

range of operational issues in partnership with personnel from other T-Mobile

departments, such as human resources (HR) and loss prevention.

As the new district manager, Robson planned to transfer Colucci from the

Milliken store to a kiosk located inside the Ontario Mills mall (mall location), which had

no store manager at the time. However, Colucci suffered from a medical disability—an

anxiety disorder—that prevented him from performing his job in the crowded mall

location. When Robson told Colucci of his plans, Colucci informed him of his disability

and requested an accommodation (accommodation request). Colucci was willing to

transfer to a different store not located inside a mall. Robson was highly skeptical of

Colucci's condition ("this is the most ridiculous thing I've ever heard") but referred the

matter to HR. An HR representative was likewise doubtful and requested a doctor's note

from Colucci that described his precise limitations. Colucci obtained a medical diagnosis

and physician's letter confirming his limitations. HR ultimately advised Robson that

Colucci could not be transferred to the mall location due to his protected medical

condition.

Several months later, in July 2014, Colucci learned that one or more of the

Milliken retail sales associates was spreading inflammatory rumors and/or making

defamatory statements about him (defamation incident), and Colucci asked Robson to

3 investigate. Robson agreed to do so but allowed the investigation to languish, telling

Colucci he should "quit complaining" and that he had been "nothing but problems."

In the same time frame, Robson heard from a part-time Milliken sales associate

(associate) that Colucci had an outside business (Auto Compound) in which he was

licensed to sell used cars. The associate had recently been disciplined by Colucci due to

work performance issues and was looking to transfer out of the Milliken store.

According to the associate, Colucci had, at some time during the past year, used

T-Mobile's resources to support Auto Compound, including occasionally using

T-Mobile's fax machine and requiring the associate to answer an Auto Compound cell

phone while he was on the clock at T-Mobile.1 Based on the associate's report, Robson

promptly initiated an investigation of Colucci with the help of a loss prevention

manager.2

On July 21, 2014, Colucci called T-Mobile's "integrity line" (a designated means

for employees to report workplace issues) to notify the company of the unresolved

defamation incident. After the defamation incident, the work environment in the store

had been tense and uncomfortable.

1 At trial, the associate's statements were largely discredited. The associate had never been an employee of Auto Compound and was not required to do any Auto Compound work.

2 Colucci's prior supervisor at T-Mobile was aware of Auto Compound and had even referred someone to Colucci for advice on used cars. This supervisor never had any concerns about Colucci's side business or that Colucci was misusing T-Mobile's resources. 4 Around noon on July 22, 2014, Robson and the loss prevention manager visited

the Milliken store, intending to interview Colucci about Auto Compound. However, they

did not have an opportunity to complete any interview or tell Colucci why they were

there. Colucci was experiencing severe back pain that day, for which he later required

surgery. His back pain was aggravated by anxiety over the tense work environment.

Colucci complained to Robson, stating his (1) distress over Robson's failure to resolve

the defamation incident and (2) his belief that Robson was treating him unfairly due to

his medical condition and accommodation request. Colucci requested that he be

permitted to go on a medical leave of absence. Robson responded that it was Colucci's

"right" to take medical leave, and he approved Colucci's taking the rest of the day off.

Colucci left the premises.

Unknown to Colucci, about two hours after he left the Milliken store premises,

Robson recommended to HR that T-Mobile terminate Colucci for "cause"—a conflict of

interest. In making this decision, Robson admittedly bypassed T-Mobile's progressive

discipline policy, which might have included a warning or less severe consequence

before resorting to termination. Information about the alleged conflict of interest had

come almost entirely from the associate; at no point did anyone speak to Colucci about a

purported conflict. Robson claimed that Colucci knowingly refused to be interviewed

about it. Robson and HR exchanged communications about the pending termination.

Between July 23 and 24, consistent with his last conversation with Robson and

still unaware of any pending termination, Colucci submitted a formal request to HR for a

medical leave of absence. Colucci also lodged a second complaint to the integrity line,

5 reporting that Robson was discriminating against him and neglecting to resolve the

defamation incident. Undeterred, Robson proceeded with processing Colucci's

termination.

On July 25, Robson prepared and mailed Colucci a letter informing him of his

employment termination, bearing an effective date of July 22, 2014, per HR's

instructions.3 On July 28, the loss prevention manager who had been assisting Robson

reported to his colleagues during a weekly staff call that Colucci had been "turned into a

customer" (internal company jargon for firing an employee) because of his complaints or

the way he had acted. The loss prevention manager made no mention on the call that

Colucci was terminated due to a conflict of interest.

In February 2015, Colucci filed a complaint against T-Mobile. Of relevance here,

he alleged a cause of action for retaliation in violation of the Fair Employment and

Housing Act (FEHA) (Gov. Code, § 12940, subd. (h)). In 2017, the cause was tried to a

jury, which received evidence regarding the workplace events we have described. In

addition, the jury received evidence regarding Colucci's post-termination life, including

the immense, ongoing toll of the termination on his mental and physical health, and his

struggle to find comparable employment. Finally, the jury heard expert witness

testimony regarding (a) the prognosis on Colucci's mental condition, and (b) his past and

future economic losses, i.e., lost earnings and benefits.

3 According to T-Mobile, Colucci's termination was made effective on July 22 because that was the date Robson recommended termination. According to Colucci, T-Mobile backdated his termination date to July 22 so that it appeared as if he was terminated prior to his second integrity line complaint. 6 The jury returned a unanimous verdict in Colucci's favor on his claim of

retaliation. It awarded $1,020,042 in total compensatory damages as follows:

(A) $130,272 for past economic losses; (B) $189,770 for future economic losses;4

(C) $500,000 for past noneconomic damages and/or emotional distress; and (D) $200,000

for future noneconomic damages and/or emotional distress.

In a bifurcated proceeding on punitive damages, the parties stipulated that the jury

would receive certain information about T-Mobile's financial condition. For 2015 and

2016, respectively, T-Mobile had: total revenue of $32.1 and 37.2 billion; net income of

$733 million and $1.460 billion;5 free cash flow of $690 million and $1.433 billion; and

total assets of $62.4 and $65.9 billion. Colucci's counsel argued that T-Mobile generated

$4 million in net income in one day, based on its 2016 net income of $1.460 billion

divided by 365 days.

4 The jury's award for economic losses, totaling $320,042, corresponded to figures that Colucci's expert economic witness provided in his testimony.

5 The reporter's transcript of the party's stipulation contains an error. The reporter's transcript, volume 7, page 1591, line 15, states that T-Mobile's 2016 net income was $28,460,000,000, or $28.460 billion. However, Colucci's counsel repeatedly stated, without any objection or correction from defense counsel, that T-Mobile's net income for 2016 was $1.460 billion. $1.460 billion divided by 365 days equals $4 million of net income per day, which is not coincidentally what the jury awarded in punitive damages. Thus, we believe the parties stipulated that T-Mobile's net income for the year 2016 was $1.460 billion.

7 The jury awarded $4 million in punitive damages, and the trial court entered

judgment accordingly. Later, the court denied T-Mobile's motions for new trial and for

judgment notwithstanding the verdict. This appeal followed.6

DISCUSSION

I. Substantial Evidence Supports an Award of Punitive Damages

At trial, Colucci argued that Robson was a managing agent of T-Mobile and that

Robson's actions were committed with malice or oppression. The jury agreed, finding

clear and convincing evidence that Colucci was entitled to punitive damages. On appeal,

T-Mobile contends there is insufficient evidence to support either (1) that Robson was a

managing agent of T-Mobile, or (2) that he engaged in acts of malice or oppression.

A. Standard of Review

A jury may award punitive damages in a tort action "where it is proven by clear

and convincing evidence that the defendant has been guilty of oppression, fraud, or

malice." (Civ. Code, § 3294, subd. (a).) On appeal, a jury's decision to award punitive

damages must be upheld if it is supported by substantial evidence. (Egan v. Mutual of

Omaha Ins. Co. (1979) 24 Cal.3d 809, 821 (Egan) ["Determinations related to

assessment of punitive damages have traditionally been left to the discretion of the

jury"].) Because our review is for substantial evidence, we are bound to consider the

evidence in the light most favorable to the prevailing party, giving him the benefit of

6 On appeal, T-Mobile has requested judicial notice of three briefs filed by Colucci's counsel's law firm in three completely unrelated cases. The matter is not relevant. T-Mobile's request for judicial notice is denied. 8 every reasonable inference, and resolving conflicts in support of the judgment. However,

since the jury's findings were subject to a heightened burden of proof, we review the

record in support of these findings in light of that burden. Thus, we inquire whether the

record contains " ' "substantial evidence to support a determination by clear and

convincing evidence. . . ." ' " (In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.)

B. Managing Agent

Civil Code section 3294, subdivision (b), provides in pertinent part: "An

employer shall not be liable for damages pursuant to subdivision (a), based upon acts of

an employee of the employer, unless the employer . . . was personally guilty of

oppression, fraud, or malice. With respect to a corporate employer, the . . . act of

oppression, fraud, or malice must be on the part of an officer, director, or managing

agent of the corporation." (Italics added.) At issue in this case is whether Robson was a

"managing agent"—a term with no statutory definition.

In the seminal case of White v. Ultramar (1999) 21 Cal.4th 563 (White), our high

court construed managing agent as follows: "[T]he Legislature intended that principal

liability for punitive damages not depend on employees' managerial level, but on the

extent to which they exercise substantial discretionary authority over decisions that

ultimately determine corporate policy. Thus, supervisors who have broad discretionary

powers and exercise substantial discretionary authority in the corporation could be

managing agents. Conversely, supervisors who have no discretionary authority over

decisions that ultimately determine corporate policy would not be considered managing

agents even though they may have the ability to hire or fire other employees. In order to

9 demonstrate that an employee is a true managing agent under section 3294, subdivision

(b), a plaintiff seeking punitive damages would have to show that the employee exercised

substantial discretionary authority over significant aspects of a corporation's business."

(Id. at pp. 576-577.)

The White court went on to discuss how "Salla," who supervised the wrongfully

terminated plaintiff/employee, was a managing agent of corporate defendant Ultramar.

Ultramar owned convenience stores at gas stations throughout California. (White, supra,

21 Cal.4th at p. 577; id. at p. 580.) Salla was a "zone manager," responsible for

managing eight stores in the San Diego area and at least 65 employees. (Id. at p. 577.)

Individual store managers reported to her. (Ibid.) Salla's superiors "delegated most, if

not all, of the responsibility for running these stores to her. The fact that Salla spoke with

other employees and consulted the human resources department before firing plaintiff

does not detract from her admitted ability to act independently of those sources." (Ibid.)

In managing numerous stores on a daily basis and making significant decisions affecting

both store and company policy, the court concluded that "Salla exercised substantial

discretionary authority over decisions that ultimately determined corporate policy. . . ."

(Ibid.; see also id. at pp. 583-584 (conc. opn. of Mosk, J.) ["Salla had sufficient discretion

to take actions that necessarily resulted in the ad hoc formulation of policy over the

aspect of the corporation's business giving rise to plaintiff's cause of action"].)

The facts of White are practically indistinguishable from the facts of this case.

Robson was a district manager, responsible for managing nine retail stores and 100

employees. Individual store managers reported to him, and he in turn reported to a more

10 senior manager. Robson had independent, final authority to hire or fire employees within

his district; indeed, he alone decided to fire Colucci. Further, as in White, Robson had

substantial discretionary authority over daily store operations, which led to the ad hoc

formulation of policy. For example, Robson decided whether and where to transfer

employees; whether to institute disciplinary measures; and whether and how to

investigate employees' reported concerns. These decisions affected company policy over

a significant aspect of T-Mobile's business.

T-Mobile's primary counterargument is that Robson was not in a high enough

position to determine official corporate policies, i.e., he was not a corporate policymaker.

T-Mobile posits that managing agents must be corporate policymakers and "policies" in

this context refers only to "formal policies that affect a substantial portion of the

company and that are the type likely to come to the attention of corporate leadership."

(Roby, supra, 47 Cal.4th at p. 715.) In its reply brief, T-Mobile argues that the California

Supreme Court's decision in Roby, at pages 714-715, limited or disapproved White on this

precise point.

In Roby, which was a harassment and discrimination case, the supervisor in

question (Schoener) worked at one of the company's distribution centers and supervised

four employees in a company of over 20,000. (Roby, supra, 47 Cal.4th at p. 714.) The

court, in addressing White, was not reviewing whether substantial evidence supported the

jury's decision to award punitive damages, but rather the constitutionality of the amount

of the jury's award. (Id. at pp. 712, 714.) In deciding whether the award was excessive

under the due process clause, the court analyzed the corporation's degree of

11 reprehensibility, noting that Schoener did not have "broad authority" in determining

formal corporate policies. (Id. at p. 715.) However, two mid-level managers, one of

whom was the head of the distribution center where plaintiff and Schoener worked, had

become aware of Schoener's discriminatory conduct and did nothing to correct it. (Ibid.)

The court therefore assumed without deciding that at least one of the mid-level managers

was a managing agent. (Ibid.) Although that person's inaction was wrongful, the court

concluded the corporation's reprehensibility, in totality, was on the low end of the range

of wrongdoing. (Id. at p. 717.)

Read in context and considering what was actually at issue in Roby, we do not

believe the California Supreme Court intended to modify or limit White's careful

formulation of the managing agent test. Before White, our high court already rejected the

view that a managing agent must be involved in " 'high-level policymaking.' " (Egan,

supra, 24 Cal.3d at p. 822.) Instead, the "determination whether employees act in a

managerial capacity . . . does not necessarily hinge on their 'level' in the corporate

hierarchy. . . . [T]he critical inquiry is the degree of discretion the employees possess in

making decisions that will ultimately determine corporate policy." (Id. at pp. 822-823.)

In Egan, the court upheld the finding that two claims managers were managing agents of

the defendant insurance company. The court opined that a corporate defendant " 'should

not be allowed to insulate itself from liability by giving an employee a nonmanagerial

title and relegating to him crucial policy decisions.' " (Id. at p. 823.)

We have considered all the cases cited by T-Mobile and are not persuaded by its

argument that only T-Mobile's corporate leaders who played a role in setting official

12 corporate policies—e.g., those contained in an employee handbook—could be considered

managing agents. (See, e.g., Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 164, 168

[security guard and his immediate supervisor, both of whom were subordinate to the

store's general manager, were not managing agents]; Gelfo v. Lockheed Martin Corp.

(2006) 140 Cal.App.4th 34, 63 [no substantial evidence presented regarding vice-

president's duties or authority].) Courts evaluate numerous factors in the "managing

agent equation . . . in determining whether the supervisor was a managing agent whose

conduct could justify awarding punitive damages against his employer." (White, supra,

21 Cal.4th at p. 574, citing with approval Kelly-Zurian v. Wohl Shoe Co. (1994) 22

Cal.App.4th 397.) Managing agents are not limited to those individuals with the ability

to set handbook policies. (E.g., White, supra, 21 Cal.4th at p. 577 [manager of eight

retail stores]; Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 370 [onsite project

manager for construction company]; Hobbs v. Bateman Eichler, Hill Richards (1985) 164

Cal.App.3d 174, 193 [office manager of brokerage firm].)

T-Mobile argues that Robson could not be considered a policy setting managing

agent based solely on his deviations from T-Mobile's official company policy, such as

discharging Colucci despite the company's progressive discipline policy or sending

Colucci a termination letter even though managers were not supposed to communicate

with employees who had requested medical leave. However, based on our review of the

record, Robson had substantial discretionary authority to override these general policies.

For example, T-Mobile's progressive discipline policy arguably might have prevented

Colucci's firing had it been followed, but Robson testified that discipline was not

13 required to be progressive under the policy and that he decided the appropriate action to

take, depending on the circumstances. Likewise, Robson testified that management

"typically" would not communicate with employees once they requested leaves of

absences, but he could situationally deviate. Robson suffered no consequences for

deviating from these policies and indeed, was authorized to do so. Accordingly, Robson

formulated operational policies through his discretionary decisions. (White, supra, 21

Cal.4th at p. 577.)

In summary, we conclude substantial evidence supports the jury's finding that

Robson was a managing agent whose conduct could justify an award of punitive damages

against T-Mobile.

C. Malice or Oppression

T-Mobile next contends that, even assuming Robson was a managing agent, there

was insufficient evidence to show he acted with malice or oppression as required to

support an award of punitive damages. (Civ. Code, § 3294, subd. (a).) In this context,

our task is to determine whether substantial evidence supports the jury's finding, by clear

and convincing evidence, that Robson's actions were malicious or oppressive. (Tomaselli

v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287-1288 (Tomaselli).)

"Malice" is defined as "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 rights or safety of others"; "oppression" is "despicable

conduct that subjects a person to cruel and unjust hardship in conscious disregard of that

person's rights." (Civ. Code, § 3294, subd. (c).) " 'Despicable conduct' " is " 'conduct

14 which is so vile, base, contemptible, miserable, wretched or loathsome that it would be

looked down upon and despised by ordinary decent people.' " (Tomaselli, supra, 25

Cal.App.4th at p. 1287.) " ' The mere carelessness or ignorance of the defendant does not

justify the imposition of punitive damages. . . . Punitive damages are proper only when

the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level

which decent citizens should not have to tolerate.' " (Ibid.)

Based on our review of the record, we conclude substantial evidence supports the

jury's finding that Robson acted with malice or oppression. "Malice and oppression may

be inferred from the circumstances of a defendant's conduct." (Monge v. Superior Court

(1986) 176 Cal.App.3d 503, 511.) Here, the jury could reasonably infer from the

evidence that Robson became angered by Colucci's complaints and decided to concoct a

reason for termination, all the while knowing Colucci was in a weak physical and mental

state. None of Robson's actions strike us as inadvertent or careless; even if his initial

termination recommendation was hasty, he had several days to reevaluate and reverse his

decision. He did not. Moreover, the jury could consider it despicable of Robson to allow

Colucci, who was suffering severe back pain, to leave the store under the belief that he

was permitted to go on medical leave, and then turn around and use Colucci's inability to

complete an interview that day as a basis for firing him. The record supports that Robson

willfully and consciously retaliated against Colucci, in violation of Colucci's right to

complain of discrimination. (Cf. Commodore Home Systems, Inc. v. Superior Court

(1982) 32 Cal.3d 211, 220-221 [punitive damages recoverable under Civ. Code § 3294 in

racially-motivated terminations].) in support of its position that Robson did not act with requisite malice or oppression. The

plaintiff in Scott was a preschool teacher who was terminated by the employer/school due

to her decision not to enroll one child in the school, which was part of her job duties.

(Id. at p. 707.) At trial, the plaintiff established that enrolling the child would have

violated the state mandated teacher-student ratio, e.g., one teacher for every 12 children.

(Id. at pp. 709-711.) The jury found that it was wrong to terminate plaintiff for this

reason and awarded punitive damages. (Id. at pp. 708, 715.) The Court of Appeal

affirmed the judgment but reversed the award of punitive damages, explaining that the

school's conduct did not rise to the level of malice or oppression: "[W]rongful

termination, without more, will not sustain a finding of malice or oppression. There was

no evidence [the school] attempted to hide the reason it terminated Scott. It admitted to

terminating her because she would not enroll the [particular] child. Likewise, there was

no evidence [the school] engaged in a program of unwarranted criticism to justify her

termination." (Id. at p. 717.)

The facts of Scott are readily distinguishable. There, the employer was forthright

about its reason for terminating the plaintiff, but the reason was found improper because

it would violate a significant public policy of protecting children. (Scott, supra, 175

Cal.App.4th at pp. 714-715.) In contrast, there is evidence in this case that T-Mobile

attempted to hide its reason for terminating Colucci. Supervisor Robson did not ever

admit he was retaliating against Colucci because Colucci had complained about him;

Robson maintained that the only reason Colucci was terminated was due to a conflict of

16 interest. As we have noted, the jury could infer that the conflict-of-interest rationale was

contrived for many reasons, including that no one at T-Mobile had even asked Colucci

about the underlying facts of the supposed conflict prior to firing him.7 Consequently,

the jury in this case could reasonably find that Robson's retaliatory conduct was

malicious or oppressive. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 912 [evidence that

a decision maker attempted to hide an improper basis for termination with a false

explanation is contemptible and supports a finding of willful conduct].)

II. The Amount of Punitive Damages Is Excessive and Must Be Reduced

Even if the jury was entitled to award some amount of punitive damages,

T-Mobile contends that the jury's $4 million award is constitutionally excessive in

violation of the federal due process clause. Our review is de novo. (Simon v. San Paolo

U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1172 (Simon).)

"The due process clause of the Fourteenth Amendment to the United States

Constitution places constraints on state court awards of punitive damages." (Roby, supra,

47 Cal.4th at p. 712.) An award of grossly excessive or arbitrary punitive damages is

constitutionally prohibited because due process entitles a defendant to fair notice of both

the conduct that will subject it to punishment and the severity of the penalty that may be

7 Colucci established at trial that numerous T-Mobile employees had side businesses. We have not attempted to summarize all the facts Colucci adduced to discredit T-Mobile's conflict-of-interest rationale; suffice it to say, the factual justification for a conflict of interest was highly tenuous. For example, T-Mobile's electronic access policy actually allowed employees to occasionally use T-Mobile's equipment for personal reasons. In addition, multiple witnesses testified that they had never seen Colucci selling used cars during work hours. 17 imposed for the conduct. (State Farm Mutual Automobile Insurance Co. v. Campbell

(2003) 538 U.S. 408, 416-417 (State Farm); Simon, supra, 35 Cal.4th at p. 1171.)

"Eschewing both rigid numerical limits and a subjective inquiry into the jury's motives,"

the Supreme Court set forth "a three-factor weighing analysis looking to the nature and

effects of the defendant's tortious conduct and the state's treatment of comparable conduct

in other contexts." (Simon, at pp. 1171-1172.)

In reviewing the amount of a punitive damages award, a court must "consider

three guideposts: (1) the degree of reprehensibility of the defendant's misconduct; (2) the

disparity between the actual or potential harm suffered by the plaintiff and the punitive

damages award; and (3) the difference between the punitive damages awarded by the jury

and the civil penalties authorized or imposed in comparable cases." (State Farm, supra,

538 U.S. at p. 418.) We address these guideposts in turn.

A. Degree of Reprehensibility

" '[T]he most important indicium of the reasonableness of a punitive damages

award is the degree of reprehensibility of the defendant's conduct.' [Citation.] We have

instructed courts to determine the reprehensibility of a defendant by considering whether:

[(1)] the harm caused was physical as opposed to economic; [(2)] the tortious conduct

evinced an indifference to or a reckless disregard of the health or safety of others;

[(3)] the target of the conduct had financial vulnerability; [(4)] the conduct involved

repeated actions or was an isolated incident; and [(5)] the harm was the result of

intentional malice, trickery, or deceit, or mere accident." (State Farm, supra, 538 U.S. at

p. 419.) "It should be presumed a plaintiff has been made whole for his injuries by

18 compensatory damages, so punitive damages should only be awarded if the defendant's

culpability, after having paid compensatory damages, is so reprehensible as to warrant the

imposition of further sanctions to achieve punishment or deterrence." (Ibid.)

With respect to the first of these reprehensibility factors, the harm to Colucci was

"physical" in the sense that it negatively impacted his emotional and mental health, rather

than being a purely economic harm. (Roby, supra, 47 Cal.4th at p. 713.) With respect to

the second reprehensibility factor, it was objectively reasonable to assume that employer

T-Mobile's retaliation against Colucci would affect his emotional well-being, and

therefore T-Mobile's " 'conduct evinced an indifference to or a reckless disregard of the

health or safety of others.' " (Ibid.)

Colucci does not meaningfully address the third or fourth reprehensibility factors.

He does not contend he was financially vulnerable. As to whether T-Mobile's conduct

was repeated or isolated, we conclude Robson's retaliatory conduct toward Colucci was

an isolated incident. There is no indication in the record that T-Mobile engaged in

repeated acts of retaliation. (See Roby, supra, 47 Cal.4th at pp. 713-714.)

With respect to the fifth reprehensibility factor, the jury necessarily determined

that Colucci's harm was the result of T-Mobile's intentional malice; that is, Robson's

malice was imputable to T-Mobile through his managing agent status. This distinguishes

our case from Roby, where the court explained that the conduct of the managing agents

was not intentional and amounted at most to a conscious disregard of the rights of others.

(Roby, supra, 47 Cal.4th at p. 716.) Nevertheless, we are convinced, as in Roby, that

19 T-Mobile's conduct in this case did not rise to the kind of oppressive or malicious

conduct that has in the past justified large punitive damages awards. (Id. at p. 717

[summarizing egregious conduct causing deaths or severe injuries, and a case involving

repeated outrageous acts of sexual harassment].) Notwithstanding the harm to Colucci

from Robson's actions, there is no hint in the record that T-Mobile engaged in a

calculated pattern of retaliation against its employees. In fact, it was undisputed that

T-Mobile maintained an integrity line to receive employee complaints; the company had

a variety of policies and procedures ostensibly designed to prevent workplace

misconduct; and managers and employees were trained on T-Mobile's employment

policies.

Taking into account all five reprehensibility factors set out in State Farm, supra,

538 U.S. at page 419, we conclude that T-Mobile's conduct warrants the imposition of

sanctions to achieve punishment or deterrence, but the reprehensibility of T-Mobile's

conduct was in the low to moderate range of wrongdoing that can support an award of

punitive damages under California law.

B. Ratio of Punitive Damages to Actual or Potential Harm

Regarding the second guidepost, the Supreme Court has "been reluctant to identify

concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff

[i.e., compensatory damages] and the punitive damages award." (State Farm, supra, 538

U.S. at p. 424.) Yet "in practice, few awards exceeding a single-digit ratio between

punitive and compensatory damages, to a significant degree, will satisfy due process."

(Id. at p. 425.) In general, a higher ratio might be necessary where the plaintiff's injury

20 was hard to detect, or the monetary value of noneconomic harm might have been difficult

to determine. But "[w]hen compensatory damages are substantial, then a lesser ratio,

perhaps only equal to compensatory damages, can reach the outermost limit of the due

process guarantee. The precise award in any case, of course, must be based upon the

facts and circumstances of the defendant's conduct and the harm to the plaintiff." (State

Farm, supra, 538 U.S. at p. 425, italics added.)

Here, the jury's award of compensatory damages was substantial. The jury

decided Colucci was entitled to a total of $1,020,042 in compensatory damages, the

substantial majority of which was for noneconomic harm and/or emotional distress

($700,000). The jury's award for noneconomic harm "may have reflected the jury's

indignation at [T-Mobile's] conduct, thus including a punitive component."8 (Roby,

supra, 47 Cal.4th at p. 718.) We are cognizant that a large amount of damages awarded

for emotional distress may itself serve as a deterrent to further corporate misconduct.

(Ibid.) In Roby, at page 719, the court applied a one-to-one ratio between punitive and

compensatory damages where there was relatively low corporate reprehensibility and a

substantial award of noneconomic damages. Given the low to moderate range of

reprehensibility of T-Mobile's conduct here, we conclude that a 1.5-to-one ratio between

punitive and compensatory damages is the federal constitutional maximum.

8 We discuss in section III, infra, that substantial evidence supports the jury's award of $200,000 for future damages. 21 C. Comparable Civil Penalties

The final guidepost requires us to compare the difference between the punitive

damages award and the " 'civil penalties authorized or imposed in comparable cases.' "

(State Farm, supra, 538 U.S. at p. 428.) T-Mobile points us to the $300,000 maximum

award for combined emotional distress and punitive damages in a federal Title VII case.

Colucci responds convincingly that a Title VII claim is not an appropriate comparison

due to the lower standard of proof to prevail on such a claim. In Roby, the court looked

to the maximum administrative fine the plaintiff could have obtained had she pursued her

FEHA claim before the Fair Employment and Housing Commission (Gov. Code,

§ 12970, subd. (a)(3)), which is $150,000. (Roby, supra, 47 Cal.4th at pp. 718-719.) The

parties have not briefed whether such an administrative fine is a fair comparison, and

accordingly, we do not consider it. T-Mobile has not established a relevant civil penalty

for comparison purposes.

D. Conclusion

Based on the foregoing, we conclude that a 1.5-to-one ratio between punitive and

compensatory damages is the federal constitutional maximum in this case. We are

primarily guided by T-Mobile's low to moderate degree of reprehensibility. In addition,

Colucci's compensatory award appeared to already contain a punitive component.

Finally, we have reviewed evidence of T-Mobile's financial condition and are satisfied

that a $1,530,063 punitive damages award (1.5 times compensatory damages of

$1,020,042) achieves an appropriate deterrent effect. (Roby, supra, 47 Cal.4th at p. 719.)

22

III. Substantial Evidence Supports the Award of Damages for Future Emotional Distress

T-Mobile's final argument on appeal is that no evidence supports the jury's

$200,000 award for future noneconomic harm and/or emotional distress. We disagree.

To recover future damages, a plaintiff must prove that his or her detriment is

reasonably certain to result in the future. (Civ. Code, § 3283; Bihun v. AT&T Information

Systems, Inc. (1993) 13 Cal.App.4th 976, 995, disapproved on other grounds in Lakin v.

Watkins Associated Industries (1993) 6 Cal.4th 644, 664.) "While there is no clearly

established definition of 'reasonable certainty,' evidence of future detriment has been held

sufficient based on expert medical opinion which considered the plaintiff's particular

circumstances and the expert's experience with similar cases." (Bihun, at p. 995.)

However, expert testimony is not required in all cases. For example, it is unnecessary if

the injury is such that the jury could conclude, based on all the evidence and relying upon

its own experiences and common knowledge, that the future harm is reasonably certain to

occur. (Mendoza v. Rudolf (1956) 140 Cal.App.2d 633, 636 [involving future pain and

suffering from car accident].) Courts have affirmed a jury's finding of future damages

based on the plaintiff's testimony of continued pain and suffering at the time of trial.

(Loper v. Morrison (1944) 23 Cal.2d 600, 611 [plaintiff's testimony that at the time of

trial she was still suffering from headaches, nervousness and pain]; Parsell v. San Diego

Consol. Gas & Electric Co. (1941) 46 Cal.App.2d 212, 216 [plaintiff's testimony that two

years after accident she still had little, if any, use of her hand and arm].)

In this case, Colucci's expert psychologist testified that Colucci had, in 2016,

reported symptoms associated with depression and/or a "thought disorder," which the

23 psychologist attributed to Colucci's termination from T-Mobile. The psychologist opined

at trial that Colucci was "improved" insofar as his "depression all the time" had turned to

"periodic depression" and that Colucci "hadn't quite recovered, but he was doing much

better[.]" Importantly, the psychologist believed that Colucci would continue to suffer

"residual issues" until he could "reconstitut[e] his work in a [more fulfilling]

situation . . . ."

The jury heard from Colucci at trial that he had gained up to 100 pounds after

being terminated by T-Mobile in 2014; he became depressed, lethargic, and sad; without

a job, he was inactive and engaging in unhealthy eating habits; and he suffered stomach

problems that disturbed his sleep. Colucci subsequently found a new job, but he made

significantly less money, the job had limited growth potential, and he had to travel for his

new job, which he viewed as a "big sacrifice" to his home life. As of trial, Colucci

testified he had lost "some" but not all the weight he had gained and was still stressed and

"depressed at times" about his wrongful termination from T-Mobile. His emotional

distress was continuing to manifest physically in the form of stomach discomfort,

sleeplessness, and rashes. The jury heard Colucci's testimony first-hand, evaluated his

physical appearance, and was shown pictures of his stress-induced rashes.

Based on all this evidence, a jury could reasonably infer that Colucci would

continue to suffer emotional distress after the trial concluded. Consistent with the

evidence, the jury awarded substantially less in damages for future harm than it did for

past harm. T-Mobile mischaracterizes the state of the evidence, arguing that Colucci's

psychologist admitted Colucci was "fully recovered" by the time of trial. The

24 psychologist did not state that Colucci was "fully recovered"; moreover, the jury was free

to discount any of the psychologist's minimizing statements and credit Colucci instead,

who testified unequivocally that he was continuing to suffer depression, stress, sadness,

and anxiety over being terminated. His testimony was not esoteric; based on its own

experiences, the jury could fairly evaluate the extent of Colucci's future suffering over his

derailed career. Substantial evidence supports the jury's award of damages for future

noneconomic harm and/or emotional distress.

T-Mobile speculates that the reason the jury awarded any amount of damages for

future harm was because of non-discharge-related reasons, e.g., because of Colucci's

anxiety disorder that predated his discharge. These were factual disputes to be resolved

by the jury, and T-Mobile does not contend any instructions were erroneous. Because the

award for future damages is supported by substantial evidence, we have no basis to

reverse it.

25

DISPOSITION

The punitive damages portion of the judgment against T-Mobile is reversed, and

the matter is remanded to the trial court with directions to modify the punitive damages

award to $1,530,063, representing a ratio of 1.5 times the amount awarded in

compensatory damages. In all other respects, the judgment is affirmed. The parties are

to bear their own costs on appeal.

DATO, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.

26