Robles v. Autozone

Filed 7/22/08 Robles v. Autozone CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and order of the Superior Court of San Diego County, Judith F. Hayes and William S. Cannon, Judges. Affirmed.

This appeal is another phase of the effort by Joaquin B. Robles, plaintiff, appellant and respondent, to obtain an award of punitive damages in this false imprisonment action against his former employer, defendant, respondent and appellant, AutoZone, Inc. (AutoZone). In the first trial in this action, Robles obtained a jury verdict in his favor for compensatory damages for false imprisonment. That jury found AutoZone's employee, Octavio Jara (Jara), acting within the course and scope of his employment, had falsely imprisoned Robles in the course of an internal company loss prevention investigation, and it awarded Robles $73,150. However, the trial court granted a nonsuit on the request for punitive damages, and Robles appealed.

In the prior opinion issued by this court, we upheld the compensatory damage award but reversed the order granting nonsuit. (Robles v. AutoZone (Nov. 2, 2004, D041499) [nonpub. opn.] (our prior opinion).) We determined that sufficient evidence had been presented to go to a jury on whether, under Civil Code section 3294, subdivision (b), it would be permissible to impose punitive damages on AutoZone if it, as an employer, maintained corporate policies that were followed consistently over time in corporate operations, that effectively authorized conduct by employees, carried out in the course of their duties, that was oppressive, fraudulent or malicious. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 575-576 (White); Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167-168 (Cruz); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726 (College).)^[1]

On remand, the trial court conducted a jury trial limited to the issue of punitive damages, and the jury returned a special verdict that awarded Robles $7.5 million in punitive damages. In proceedings on AutoZone's request for judgment notwithstanding the verdict (JNOV), the trial court reduced that verdict to $438,900, representing a six-to-one ratio of

punitive damages to the compensatory damages previously awarded to Robles in the original proceedings. The court then entered judgment for that amount of punitive damages and costs and fees.

Both parties have appealed from the JNOV. Appellant AutoZone attacks the special verdict rendered by the jury as improperly formulated under Autozone's interpretation of this court's prior opinion and Civil Code section 3294, subdivision (b). AutoZone further contends there is no substantial evidence supporting the judgment with regard to any corporate authorization or ratification of tortious acts by its employees. Also, AutoZone contends the order denying its motion to tax costs was erroneous, because the award of costs was not authorized by statute. (Code Civ. Proc.,  998, 1033.5.)

Further, both AutoZone and Robles are contending in this court that the trial court erroneously changed the verdict amount, and both acknowledge that de novo review is appropriate to determine whether the original award was consistent with constitutional limits for an award of punitive damages. (See Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204 (Gober).) AutoZone contends the reduction was not great enough, compared to the actual damages previously awarded, and Robles contends any reduction was unauthorized on this record.

We will first outline the principles set forth in our prior opinion, for purposes of analyzing AutoZone's challenges to the judgment that argue the special verdict was defective and/or not supported by substantial evidence. We then address the arguments made by both parties about whether the amount of punitive damages set by the trial court violates due process principles. Finally, we will turn to the award of costs.

As will be explained, we conclude that the special verdict appropriately presented the necessary issues to the jury, with respect to corporate authorization of employee conduct, and that substantial evidence supports the findings in the verdict. We next conclude that in ruling on the JNOV motion, the trial court appropriately reduced the amount of punitive damages to an amount that is consistent with constitutional principles and the facts proven. Moreover, the costs award is supported by the record and by statute. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. False Imprisonment Facts; Compensatory Damages Award

The background facts of the false imprisonment incident that was the basis of the first jury's award of $73,150 compensatory damages to Robles were previously outlined in our prior opinion and need not be expanded here, except as necessary to deal with the substantial evidence challenge now brought by AutoZone to the punitive damages award. Initially, we will repeat those basic details as set forth in that opinion:

"On July 1, 2000, Robles arrived at work and was asked by two other managerial employees to sign for the cash in a deposit bag that they had prepared, as they were otherwise occupied. Robles did so, as the armored car driver was ready and waiting, and employees were not supposed to keep him waiting or it would cost the company more money. Robles signed for a bag of bills amounting to $820 at the request of the armored car driver, even though he noticed that the deposit slip was in the wrong portion of the deposit bag, as it occasionally was, due to shortness of time or for the sake of convenience in making last minute changes. The armored car driver took the money bag to the bank. The $820 was found to be missing at the bank for some period of time.

"On July 6, 2000, Robles arrived for work and was told by the store manager . . . that he should go to the back room because loss prevention officer Jara and the district manager  . . .  wanted to talk to him. Robles did so and Jara told him there was an issue they needed to talk about, i.e., that the bank had called stating that they received an empty bag with only a deposit slip, and the slip had Robles's signature on it. Jara asked Robles several times if he knew what had happened, and Robles said no. At some point, [the district manager] left the room. Jara then told him, "we know who did it," and accused Robles of stealing the money. Robles denied this for the remaining part of the first portion of the loss prevention interview, which lasted two hours and seven minutes. Jara told Robles they would need a statement, and Robles filled out a form denying that he had taken the money."

After a 10-minute break in the interview, the following events occurred. Jara asked Robles if he knew that Jara was a police officer (a reserve officer for the City of Chula Vista) and Jara told him that he could get any information about anybody. Jara told Robles he had had a former employee, Julio Martinez, arrested by the police for theft. According to Robles's testimony at the first trial, Jara then said, "All I have to do is give a phone call, and the police will be at the front of the store to pick you up, and they'll take you to jail because what you've done is a felony, and you will serve time." Jara said that if Robles left, he would be arrested. Robles was afraid to leave.

According to Robles, Jara then told him that they could keep the matter within the company if Robles confessed and agreed to pay the money back in monthly installments while keeping his job: "Robles then sat down and wrote what Jara dictated to him in the next page of the statement, confessing to taking the money and signing a promissory note to pay back the money." The interview had lasted over three hours. "Robles was then suspended for a few days, fired, and his last paycheck withheld. He was unable to obtain unemployment insurance, due to being fired, but got a new and better job three or four weeks later. His lost wages amounted to $2,000 or less."

It was soon discovered that the money in the deposit bag, approximately $800 AutoZone cash, had been found at the bank a few weeks later, without a deposit slip or account number, and the store manager and Jara were told at that time about telephone calls from the bank stating this, but no further action was taken by AutoZone about Robles with regard to this money.

In 2001, Robles filed a complaint for damages for false imprisonment and other theories against AutoZone and some of its employees. At the first jury trial, extensive evidence was presented about the incident and about AutoZone's procedures and policies for loss prevention, including training of loss prevention managers, such as Jara, in the use of the company interviewing manual, entitled "Investigative Interviewing, An Investigator's Guide To Interviewing" (the manual). The manual sets forth methods and interview techniques for loss prevention managers to use in interviewing employees accused of theft. Peter Brennan, Jara's supervisor and trainer, normally instructed his loss prevention managers to follow the manual by avoiding the use of terms like "steal," "jail" and "police."

At the first trial, the court allowed Robles to bring in evidence of impeachment witnesses, i.e., three other former employee witnesses who had been through loss prevention interviews with Jara, and they testified about how Jara had threatened them with arrest to keep them in the interview room.

In our prior unpublished opinion, we upheld the compensatory damages award. We further ruled that the nonsuit motion on punitive damages as to the corporate defendant was erroneously granted, based upon the standards set forth in White, supra, 21 Cal.4th 563, for the actual or ad hoc formulation of corporate policy by authorized managing agent employees in the loss prevention field. (Id. at p. 576 (maj. opn. of Chin, J.); id. at pp. 580, 582 (conc. opn. of Mosk, J.).)^[2]

B. Current Trial and Verdict

In March 2006, a second jury was convened to conduct further proceedings limited to the punitive damages claim against AutoZone. Much of the evidence repeated the basic facts of the false imprisonment incident, and much more was added regarding the establishment of corporate policy, such as the adoption of the investigative manual.

Before summarizing the ground covered in the second trial, we first take note that although AutoZone has brought a substantial evidence challenge to the award of punitive damages, it has not extensively outlined the facts, but only sets them forth in general terms. Instead, it has chosen to focus on the evidence only with respect to two aspects of the language of the special verdict: Whether the jury should have been required to identify, by name, an individual managing agent who authorized Jara's conduct during the incident, including the false imprisonment; and the nature and scope of that corporate authorization, in the manual or otherwise.

By contrast, Robles's brief on appeal exhaustively sets forth citations to the record for the evidence about the incident, the loss prevention procedures, the manual, the corporate structure of AutoZone, and other materials. However, many of its record cites are inaccurate. Our task is to cull out the evidence that is essential to resolve the issues presented by each appellant. For our purposes here, to determine if the special verdict was proper in format and if the evidence supported it, we initially set forth a general summary of the categories of evidence presented at the second trial, dealing with: (1) the extent of the corporate authorization by identifiable managing agents of the methods of loss prevention interviews and investigations, such as were conducted by Jara, and (2) whether Jara's methods exceeded any authorized conduct, with the knowledge of his superiors. We cannot, however, omit additional basic evidence about the incident itself.

The six-day trial began with Robles presenting his own testimony about the incident and its detrimental (albeit temporary) effect upon his ability to get a new job to support his family. He stated that even though he told Jara that day that he did not take the money, when Jara threatened him with arrest and encouraged him to confess, after telling him his family would suffer from financial harm otherwise, he gave in because he did not see any other alternative, and he believed, based on what Jara told him, that that would be the end of the matter right away and he could go back to work after serving a two-day suspension. Robles was surprised when he was called back five days later, given a zero check, and fired. After the incident, he was turned down at several other potential employers because he had a loss prevention issue pending with AutoZone, and he was unable to obtain unemployment benefits because AutoZone reported he had been fired. However, he obtained another job within three weeks, through a friend.

Robles called as witnesses two other former AutoZone employees who had been interviewed by Jara and later fired. Those witnesses testified that Jara had threatened them with arrest, in the course of seeking to obtain a confession as a means of internally resolving accusations of theft. One was later fired anyway and one walked out of the interview. Robles and two other former employees testified that their final paychecks were confiscated as a means of paying off the promissory notes that they had written in connection with their confessions obtained by loss prevention managers.

Robles obtained testimony from Leilani Drew, the former store manager at the time the incident occurred (who had since left and then rejoined AutoZone). She said his job evaluations were satisfactory. At the time, she might have told Robles he might want to consult an attorney about the incident, although she did not remember for sure. It was unusual for cash that was missing from AutoZone's store to be found later, such as happened here, but nothing was done about it.

Robles brought in testimony from Willie Brown, a former AutoZone loss prevention manager in Los Angeles who had been trained in the same manner as Jara. They observed each other's work and found it competent. Brown had interviewed one of the former AutoZone employees who also testified, Jennifer Woods. During her interview by Brown, she was threatened with arrest if she did not confess to taking AutoZone property, and was told she could keep her job if she did so. She had not taken property, but eventually made a false confession and was fired, and later sued by AutoZone.

Robles called Jara as an adverse witness, and examined him about his training in and understanding about the loss prevention procedures and his interpretation of the manual. Based on the facts given to him at the time of the incident, Jara had already determined that it was an accusatory interview before he met with Robles. He had not interviewed the other management employees who had prepared the deposit bag on the day of the incident, however. He followed the procedures in the manual as he was trained to do. He did not believe that he had the authority to change or make policy.

During Robles's case, Peter Brennan, a divisional loss prevention manager, testified that he trained regional loss prevention managers, including Jara, according to the manual, which had been approved by the company's executive "CEO team." According to Brennan, AutoZone had so many different systems and procedures in place that it was always able to identify a guilty person.

Robles also presented expert testimony from a psychologist, Dr. Saul Kassin, who evaluated the AutoZone investigation manual. It was modeled upon an industry standard known as the Reid method, a benchmark of the field, but it also included additional material. In the opinion of this expert, some of the methods of investigation set forth in the manual were more likely than not to lead to false confessions and to create mischief or be misleading, and were based on false psychological assumptions. Two types of interviews were outlined in the manual, (1) investigative or (2) accusatory, in which the investigator assumes the employee is guilty. The manual also allows the investigator to combine the two types of interviews and does not clearly set forth the preferred practice of allowing a break between the investigation part and the accusatory part. The expert believed that AutoZone's methods for detecting a falsehood were defective and would not lead to a higher success rate in obtaining the truth. For example, the manual included behavior analysis interview techniques that were not foolproof but could lead the interviewer to be overconfident and too aggressive. Loss prevention managers such as Jara were taught to establish dominance and control over employees they suspected of theft, through the use of psychological techniques in which they evaluated body language and behavior of the suspects to determine their truthfulness, and the purpose of the investigations was to obtain confessions or statements from suspected employees, but the behavioral indications of falsehood set forth in the manual were not all accurate.

According to the expert, his studies showed that the best trained interrogators had only a 65 percent success rate in obtaining truthful answers, and the norm was around 50 percent. However, Jara claimed a 98 percent success rate in his accusatory interviews, in obtaining a statement (although he did not call it a confession). Jara also conducted witness interviews, which he did not count in his success rate.

Further, the expert disagreed with the manual's statement that it was enough to avoid false imprisonment if the investigator allowed the employee a clear exit path. The expert said not only allowing physical access to an exit path was important, but an interviewer should also take into account the possibility of intimidation that would prevent an employee from leaving an interview, due to the employee's inferior status to the interviewer and the desperate mental state potentially created by isolation and confrontations with accusations.

AutoZone's defense case included testimony from Brennan, Jara, and its vice-president of operations, Richard Smith. Smith testified that the manual had been created after consultation with experts in the field. It was approved and adopted by the "CEO team" of AutoZone, which was composed of a number of individuals in leadership positions, at the vice-president level and higher. The identity of the approximately 40 CEO team members was shown by an annual report entered into evidence. The company's operations profit in 2005 was $976 million.

Smith explained that the loss prevention department was a separate and autonomous cost center in the corporate structure of AutoZone, to which other cost centers were subject, to ensure that necessary investigations could be independently conducted. The vice-president of loss prevention reported to the general counsel's office, rather than to the vice-president of operations. When loss prevention managers arrived at stores, they were authorized to conduct their duties without checking with the store managers. Loss prevention created its own expenses in operating, rather than creating a profit. In general, the goals of the loss prevention activities concerning employees were to reduce "shrinkage," or the loss of inventory through internal theft, and this would lead to recovering assets and improving the profitability of each store, since shrinkage of inventory was deducted from store profits. In 2005 alone, the company incurred about $92 million in losses from shrinkage.

In explaining the role of the manual in loss prevention, Smith testified that neither Jara nor Brennan would have the ability to set policy for investigations, as that was the role of the CEO team. Brennan is one of five divisional loss prevention managers and he supervises several individuals such as Jara. There are approximately 55 to 65 employees in loss prevention, and AutoZone employs approximately 54,000 people. Smith stated that he was responsible for seeing to it that the written loss prevention policies were followed, and the company had processes to monitor loss prevention managers in the field to make sure they were following policy.

Brennan testified, among other things, about the nature and extent of the training given to loss prevention managers at AutoZone's nationwide headquarters in Memphis, and the content of the training, which is to enforce the policies set forth in the manual. The manual instructed investigators not to threaten employees with arrest or incarceration.

Jara testified about his version of the incident, and stated that he was never told he did something that was outside of AutoZone policy, but that the company was nevertheless taking responsibility for Robles's compensatory damages. AutoZone promoted Jara after the first trial, to the position of market investigator in which he trains other loss prevention managers, and at the time of trial, he remained employed by AutoZone.

In 2005, AutoZone adopted a new manual for loss prevention, which mainly followed the practices in the first manual, such as assuming guilt in accusatory interviews. However, it differed in that the investigator is required to ask the employee if he or she is recording the interview, which is not allowed, and the investigator is informed that obtaining confessions whenever possible is necessary to protect AutoZone from civil liability. According to Jara, and defense counsel in argument, loss prevention managers have discussed and learned from the compensatory damages verdict in this case, to use caution to the extreme.

At the close of testimony, the court and counsel discussed jury instructions and the format of the special verdict form. The court made various rulings on those issues, to be set out in the discussion portion of this opinion.^[3] In closing argument, counsel for Robles suggested a punitive damages award of $75 million to $200 million would be appropriate.

After deliberations, the jury returned a special verdict as follows. It found that Robles had not proven that either Jara or Brennan was an officer, director, or managing agent of AutoZone, acting in a corporate capacity. However, the jury found that Robles had proven "that one or more officers, directors, or managing agents of AutoZone authorized, sanctioned, or encouraged conduct of Octavio Jara" on the day of the incident. The jury then set the amount of punitive damages to be awarded against AutoZone at $7.5 million. Robles filed a memorandum of costs, including expert witness fees.^[4]

C. Postverdict Proceedings

AutoZone filed its JNOV motion on several grounds. It first argued that the special verdict form was defective, in allowing the jury to make a finding of authorization of Jara's conduct, but without identifying the management employees who had done so. It also contended the verdict was not supported by substantial evidence, and it exceeded constitutional guidelines of due process under federal and state law.

Robles opposed the motion, contending that the special verdict had been properly prepared according to the direction provided by our prior opinion, and that any defense objections had been waived. Robles argued that sufficient evidence of corporate authorization of Jara's interrogation techniques had been presented, through the CEO team's adoption of the manual and the training provided, which Jara and other loss prevention managers followed in their duties. He contended the punitive damages award was proper.

After taking the matter under submission, the court issued its ruling denying the JNOV motion in part and granting it in part. The court first stated that when the evidence was correctly viewed in the light most favorable to Robles, there was substantial evidence to support the jury's finding by clear and convincing evidence that the corporate defendant had acted with fraud, malice, and oppression.

The court then denied AutoZone's request to find that the special verdict format was contrary to law, insofar as it provided "that one or more officers, directors, or managing agents of AutoZone authorized, sanctioned, or encouraged conduct of Octavio Jara" on the day of the incident. The court relied on Civil Code section 3294, subdivision (b), and stated that it described a need to identify "the managing agent who authorized the conduct complained of only in the absence of evidence of corporate ratification of such conduct. [] In publishing, disseminating, and training on the AutoZone security manual, in conducting nationwide training sessions on the security manual and standardized interrogation techniques, and in encouraging agents to observe other agents' interrogations in which the techniques were employed, there was overwhelming evidence that AutoZone, on a management level, added their imprimatur to the conduct of security agents who acted in conformance with the procedures detailed in the manual and implemented and expanded upon by agents in the field. Failure to cause the jury to identify, by name, a managing agent who authorized such conduct is not fatal to plaintiff's case." (Italics added.)

The court further ruled that even assuming this was instructional error of some kind, any such error was waived because AutoZone had not objected to the instruction or verdict form at the time it was offered.

Next, the court rejected AutoZone's request for JNOV with respect to its challenge to the constitutionality of the amount of the award of punitive damages. The court explained its reasoning as follows. Even though corporate fraud, malice, or oppression had been found, and AutoZone's interrogation techniques were found by the jury to be abusive, as a matter of law, there were limitations to the reprehensibility of this conduct because "AutoZone was attempting to address a legitimate problem, that is, employee pilferage. Plaintiff's expert opined that, while he disagreed with many of the suggestions in the Loss Prevention Manual in regard to factors to be considered in the assessment of credibility that these views, though in his opinion erroneous, were widely held among otherwise credible Loss Prevention experts."

Therefore, the court found that since Robles had not suffered from physical harm and was able to obtain similar work shortly after being fired, this required some reduction of the amount of punitive damages from the award of $7.5 million, which represented approximately 100 times his compensatory damages award. The court concluded, "Given the active role played by the corporation in ratifying the conduct found by the jury to have constituted fraud, malice, and oppression and the resulting harm to Plaintiff, this court finds that a multiplier of 6 times compensatory damages passes constitutional muster and provides adequate redress for Plaintiff's injury."

The trial court (Judge Cannon) next heard the motion to tax costs brought by AutoZone. The court ruled that the motion was untimely and that even if it were to be considered on the merits, it was without support. The court relied on the offer to allow judgment made by Robles before the first trial, under Code of Civil Procedure section 998, which was never accepted. Although AutoZone argued another settlement offer had been made by Robles before the second trial, it did not document the nature of this offer or how it formally superseded the earlier offer. The motion to tax costs was denied and judgment was entered accordingly. Both parties filed notices of appeal.

DISCUSSION

We first address the challenge by AutoZone to the validity of the language of the special verdict regarding the existence of authorization of Jara's tortious conduct by "one or more officers, directors, or managing agents" of the company. Its arguments in this respect are closely linked to its claim of insufficient evidence to support the verdict awarding punitive damages. Both these matters require us to outline the proper scope of the direction given by the prior opinion in this case.

Following that analysis, we shall turn to both sides' claims that the trial court did not have a lawful basis, in ruling on the JNOV motion, to adjust the amount of punitive damages awarded. We then address the costs award.

I

AUTOZONE'S APPEAL REGARDING JNOV

A. Contentions: Special Verdict Defects

AutoZone first contends that the language concerning authorization in the special verdict is too broad and is based on a misinterpretation of our prior opinion and of Civil Code section 3294, subdivision (b). According to AutoZone, the false imprisonment incident itself was never authorized by the manual, and therefore no one in the corporate structure could have authorized, sanctioned, or encouraged Jara's conduct, or if so, those individuals had to be identified by name. AutoZone seeks more specificity, relying on authority such as Cruz, supra, 83 Cal.App.4th 160, 167: "Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation's employees."

Further, AutoZone argues that the verdict form fails to include an alternative ground of liability under this statute, ratification, and no such findings may be implied into the special verdict to support any such finding of liability. (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303.) It contends it pursued meaningful objections to the form of the special verdict, such that it may bring these challenges on appeal.

In response, Robles contends that AutoZone's counsel agreed to the composition of the special verdict and waived any objections. Even an error such as a defect in the verdict may be waived by failure to raise it in a timely manner, through seeking correction or clarification. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, 385, pp. 438-439.) Robles also argues the verdict format was justified by the evidence and by statute.

At the outset, we note that we will not find any waiver by AutoZone of its objections to the special verdict form. Although the trial court and counsel extensively discussed the format of the special verdict form, the court made rulings on its content in light of consistent arguments by AutoZone that the manual did not authorize false imprisonment, so that any corporate authorization was lacking. Although the trial court made a finding of waiver, the record as a whole supports a reading that AutoZone simply lost that battle at the time, but de novo review of the legal issues raised, including the special verdict's correctness, is nevertheless justified on appeal. (Trujillov.North County Transit Dist. (1998) 63 Cal.App.4th 280, 285.) We next turn to the guidance provided by the prior opinion.

B. Prior Opinion

The effect of the prior opinion was to set aside the earlier nonsuit ruling regarding the punitive damages request. We could not foresee at the time what evidence would be offered upon remand, nor what disputes would develop about the special verdict formulation. However, in light of the record at that time, we were able to analyze the respective contentions of the parties on whether statutory standards governing punitive damages awards could be met here. Civil Code section 3294, subdivision (b) provides that an employer shall not be liable for punitive damages, based upon acts of an employee of the employer, unless: (1) 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 (2) or authorized or ratified the wrongful conduct for which the damages are awarded (3) 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." (Ibid.) We read this language ("or authorized or ratified") as allowing authorization or ratification to form alternative, yet related, bases of liability, mainly with respect to the timing of the corporate activity in question. AutoZone is contending that the jury verdict and evidentiary showing are defective in two major respects: definition and proof of the "managing agent" of the corporation, and/or the definition and proof of "authorization" of the false imprisonment conduct (e.g., a lack of ratification).

On appeal, the parties debate the scope of the guidance given by the prior opinion, with respect to the issues that were faced upon remand. In particular, they dispute certain language in the concurring opinion on the "authorization" prong of Civil Code section 3294, subdivision (b) ("authorized, sanctioned, or encouraged"). Before addressing that dispute, we first outline how it arose in the context of the prior opinion as a whole. With respect to Jara's false imprisonment conduct, we were analyzing the manual as instructing the interviewer "to establish 'dominance,' 'maintain control,' and to establish to the employee the 'probability of the company having strong evidence of their guilt.' Although AutoZone's manual states that the subject of an interview should not be detained, it does not require the subject to be told that he is free to leave the interview room. There was evidence that Robles was told not to leave and he believed that his employer, through Jara and the store manager on duty, had the authority to require him to stay until the interview was concluded."

With respect to the manner of interpreting the manual, we cautioned against any "unduly selective reading of the manual." We noted that it "actually distinguishes between accusatory and witness interviews, and acknowledges that removing a cloud of suspicion from innocent employees is an appropriate objective. However, the manual gives little guidance of how much supporting documentation is required before an interview changes from a witness interview to an accusatory interview. Even though the manual contains various guidelines and recommendations which appeared to be an effort to set a neutral corporate policy, the evidence of the actual practice in the company was that the manual was loosely used as recommendations and Jara was only minimally supervised." We accordingly concluded in the majority opinion:

"[E]ven though the manual does not expressly direct or ratify Jara's use of threats of arrest, there is substantial evidence in the record from which the trier of fact could conclude that loss prevention was a significant aspect of the company's business and that on a day-to-day basis, Jara was allowed to create and implement the local or 'ad hoc' policy of how to conduct loss prevention interviews, and could exceed company standards. A reasonable jury, applying the standard of clear and convincing evidence, could have reached the conclusion that as the company policy was then being administered, loss prevention interviewers such as Jara were allowed or permitted to use threats of arrest, leading to false imprisonment, even if lip service was being paid by the company to the manual's stated policy against such threats. It was error to grant the nonsuit on behalf of AutoZone on this ground."

We then reached similar conclusions regarding the nature of the participation of Brennan in these events. The majority opinion was accompanied by a concurring opinion expressing the following qualifications as to Justice Haller's view of the issues regarding Jara only:

"AutoZone, not Jara, established the loss prevention policy, required that interviews take place and provided detailed recommendations outlining how these interviews should be conducted. The fact AutoZone decided that it would give wide discretion to the front line employees and that it would recommend procedure, not mandate it, does not mean that Jara was transformed into a managing agent. In short, AutoZone (acting through its officers, directors and managing agents) decided corporate policy and Jara implemented it; he did not, as Ultramar [White] requires, "determine corporate policy." Accordingly, I do not believe Jara fits the definition of a managing agent as used in Civil Code section 3294, subdivision (b) or as interpreted by our Supreme Court. [] Having reached this conclusion, I am not suggesting that AutoZone cannot be held liable for punitive damages arising from Jara's conduct. If the jury determines Brennan was a managing agent and that he knowingly authorized or ratified Jara's conduct, AutoZone is subject to punitive liability. Likewise, if the jury finds that the corporation purposely devised a loss prevention policy that encouraged, sanctioned or authorized Jara's reprehensible conduct, it could be responsible for punitive damages." (Italics added.)

Concurring opinions, properly read, "constitute only the personal views of the writer." (People v. Superior Court (1976) 56 Cal.App.3d 191, 194.) We now apply all these guideposts to the arguments on appeal.

C. Background Leading to Special Verdict Format: JNOV Denial

Although AutoZone has not framed its arguments in terms of instructional error, it is nevertheless important to read the special verdict that is attacked here in view of the instructions given. The jury was instructed in the language of CACI No. 3945, as adapted, to provide that it had been established that Jara had falsely imprisoned Robles, causing Robles actual damages in the amount of $73,150, and that Jara thereby engaged in fraud, malice, and oppression. The jury was then told "to determine whether the corporate defendant, AutoZone is also responsible for punitive damages in connection with the false imprisonment." The court continued the instruction in the language of CACI No. 3945: "The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future. [] You may award punitive damages against AutoZone only if [Robles] proves that AutoZone engaged in that conduct with malice, fraud, or oppression. To do this, [Robles] must prove one of the following by clear and convincing evidence: [] 1. That the conduct constituting malice, oppression, or fraud was committed by one or more officers, directors, or managing agents of AutoZone, who acted on behalf of AutoZone; [or] [] 2. That the conduct constituting malice, oppression, or fraud was authorized by one or more officers, directors, or managing agents of AutoZone; [or] [] 3. That one or more officers, directors, or managing agents of AutoZone actually knew of the conduct constituting malice, oppression, or fraud and adopted or approved that conduct after it occurred."

After defining malice, oppression, despicable conduct, and fraud, the instruction continued: "An employee is a 'managing agent' if he exercises substantial independent authority and judgment in his corporate decision making so that his decisions ultimately determine corporate policy." The instruction explained there is no fixed formula for determining the amount of punitive damages, and set forth the factors to be considered: reprehensibility, reasonable relationship between Robles's harm and the amount of punitive damages, and the amount necessary to punish the defendant and discourage future wrongful conduct, in view of its financial condition. (CACI No. 3945.) The court agreed to give this instruction after noting to counsel that the evidence included the company-approved loss prevention manuals that were part of corporate headquarters material used at nationwide training, and that "the jury could find that the materials within the manuals constituted fraud, malice or oppression, and I don't think you have to show who wrote the manual or who in the corporate office specifically by name approved the manual, only that it was used at the direction of the corporate officers in general, that the corporation, put this out as its manual for loss prevention."

Next, the jury was given a special instruction about the effect of an employee's title: "The title given to an employee by a corporation is not in and of itself determinative of whether such employee is a managing agent but is merely one factor to be considered in making this determination. Corporate liability turns on the extent of discretion conferred on the employee by the corporation, not on any employee's official title."

After the court and counsel agreed upon the instructions to be given, they turned to the language of the special verdict, which first asked whether Jara or Brennan were managing agents. Regarding the question that is now attacked on appeal, the trial court explained its view that "it can be either Jara, or Brennan, or a corporate officer, in my opinion, unnamed, responsible for the manual if the evidence is sufficient to prove that the corporate officers issued that manual in their training in Tennessee to make everybody-let's assume the books said beat people with chains. We don't have to name the person who wrote the book."

In argument to the jury on the special verdict language, Robles's attorney focused on the evidence about whether the 40-some corporate representatives on the CEO team had reviewed the policies in the manual and thereby authorized, approved, sanctioned, or encouraged conduct such as Jara had engaged in with Robles. Plaintiff's counsel reminded the jury that the manual instructed investigators to create dominance through several techniques, and the expert witness had testified that the manual's procedures mixed up the investigative part and the accusatory part. Also, Jara had a 98 percent success rate in obtaining statements from interviewees against whom he had evidence, even though the nationwide average was about half that.^[5] In response, defense counsel argued there was a leap in logic "that when the company's policy is to prohibit all of the conduct that Mr. Robles told us on the witness stand that he found offensive that day, when the Company policy is to prohibit that, how can there be this reversal that that is now the policy of AutoZone to falsely imprison people?"

D. Analysis on JNOV Denial: Special Verdict

We first address AutoZone's statutory objections to the form of the verdict, that the language concerning authorization in the verdict is too broad under Civil Code section 3294, subdivision (b). It claims error because the verdict did not require the jury to identify, by name, an individual managing agent who authorized Jara's conduct during the incident, including the false imprisonment. Next, it contends that since two terms used in the form, sanctioned or encouraged, do not appear in the statute, this somehow expanded the allowable scope of liability for punitive damages.

Returning to the language of Civil Code section 3294, subdivision (b), as relevant here, it allows punitive damages to be imposed on an employer, based upon acts of its employee, where the employer authorized or ratified the wrongful conduct for which compensatory damages are awarded. This language ("or authorized or ratified") must by its

terms allow such authorization or ratification to form alternative bases of liability: "With respect to a corporate employer, the . . .  authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation." (Civ. Code,  3294, subd. (b); italics added.) In Cruz,supra, 83 Cal.App.4th 160, 168, ratification is defined as the " '[c]onfirmation and acceptance of a previous act.' [Citation.] A corporation cannot confirm and accept that which it does not actually know about. [Citation.]"

We first reject AutoZone's contentions that the ratification prong of this statute was never argued to the trial court, or that it had to be specifically inserted into the special verdict form. The evidence as a whole extensively dealt with the concept of corporate adoption of the manual and the extent of supervision of the front-line employees who were conducting loss prevention investigations, in terms of training and follow-up. Those issues were mainly presented in terms of asking the jury to decide whether Jara's conduct, leading to the false imprisonment incident, was authorized by corporate policy and procedure, as established by the CEO team, and as found in the manual. However, evidence was also presented on whether AutoZone had made any changes in response to the incident, and after the first trial, to change its policies or the manual, so that both the time periods before and after the incident were fully covered by the evidence.

Moreover, in ruling on the JNOV, the trial court evaluated the evidence as showing that AutoZone had played an active role "in ratifying the conduct found by the jury to have constituted fraud, malice and oppression." The court's order interpreted the language of Civil Code section 3294, subdivision (b), "or authorized or ratified," as describing "the necessity of identifying the managing agent who authorized the conduct complained of only in the absence of evidence of corporate ratification of such conduct" (apparently to allow alternative bases of liability). The manner in which the evidence was developed was primarily directed toward authorization issues, but since the subject conduct of AutoZone and its representatives extended over a long period of time, both ratification and authorization concepts came into play. In any case, we are satisfied that the special verdict language may be evaluated on its face, in terms of authorization, without the need of creating any additional implied findings on ratification. (Mendoza v. Club Car, Inc.,supra, 81 Cal.App.4th 287, 303.) No such additional findings are essential on this record.

Robles's theory of trial sought to show that responsible officers, directors, or managing agents of AutoZone had authority to set "corporate policies" that allowed or encouraged the false imprisonment incident to occur as it did. This terminology creates some difficulty. In Cruz, supra, 83 Cal.App.4th 160, the court undertook to give meaning to the term "corporate policy" as used in White, supra, 21 Cal.4th at page 573, by referring to dictionary definitions as follows: " 'Corporate policy' is not defined by statute, nor in the case law relating to punitive damages. Dictionary definitions of 'policy' include the following: 'The general principles by which a government [or other body] is guided in its management of public affairs.' [Citation.] 'A principle, plan or course of action as pursued by a government, organization, individual etc.' [Citation.] The [U.S.] Supreme Court has defined 'official policy' . . . as 'formal rules or understandings-often but not always committed to writing-that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time.' [Citation.]" (Cruz, supra, at p. 167.)

In Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1207-1208 (Johnson), the court was analyzing the related issue of the requirements for due process review of punitive damages awards, for proportionality, and made these comments about leading federal decisions (e.g., State Farm Mut. Auto Ins. Co. v. Campbell (2003) 538 U.S. 408, 416 (State Farm)) and their views of the exercise of discretion regarding punitive damages generally: "Nothing the high court has said about due process review requires that California juries and courts ignore evidence of corporate policies and practices and evaluate the defendant's harm to the plaintiff in isolation. [] California law has long endorsed the use of punitive damages to deter continuation or imitation of a corporation's course of wrongful conduct, and hence allowed consideration of that conduct's scale and profitability in determining the size of award that will vindicate the state's legitimate interests. We do not read the high court's decisions, which specifically acknowledge that states may use punitive damages for punishment and deterrence, as mandating the abandonment of that principle." (Johnson,supra, 35 Cal.4th 1191, 1207-1208, fn. omitted; italics added.)

Before specifically addressing the validity of the special verdict on the authorization issues, which involve corporate policy, we return to the ruling of the trial court on JNOV, in which it relied on certain aspects of the evidence to assess the appropriateness and amount of punitive damages, as against the company itself. The court said that the evidence showed that after Robles's termination, "Plaintiff was faced with an uncertain future in that he learned as time went by that he had been 'blackballed' by AutoZone and that AutoZone was informing potential employers of plaintiff's status as a security risk. This occurred at a time when, in fact Plaintiff had stolen nothing from AutoZone. By taking the position that security personnel could promise continued employment in exchange for a confession, AutoZone as a corporate employer played a direct role in causing plaintiff's damages. AutoZone knew or should have known that false promises were being made by its loss prevention managers on a statewide if not a nationwide basis. AutoZone knew or should have known that they were likely to profit from the retained wages from confessing employees."

The trial court's ruling also analyzed the appropriateness of punitive damages in any amount as follows: "AutoZone's conduct in coercing a confession from Plaintiff evidenced a conscious disregard for the health and wellbeing of the Plaintiff who was known to be financially vulnerable at the time of this incident -- riding two or more buses a day to and from his low paying job at AutoZone. The evidence established that the conduct complained of was not an isolated incident but was rather a course of conduct repeated in every instance in which theft by an employee was suspected. AutoZone employed a pattern or practice of isolating the suspect and then tricking the suspect into believing that the ordeal would end and they would continue their employment if only they would agree to repay the missing money. There was nothing that could be described as accidental about AutoZone's procedures. It was designed to achieve one goal at any cost to the employee -- that is, recapture of AutoZone's monetary loss as AutoZone defined that loss."

In its order, the trial court did not address the identity of the individual or collective AutoZone decision makers in its review. When the jury was instructed, it was told no special title was required to be assigned to a corporate managing agent. Other case law has found, without comment on this issue, that punitive damages may properly be awarded against a corporation, without an identification of the individual corporate decision makers by name. In Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, the court evaluated the evidence, including circumstantial evidence, and found the plaintiff had made a substantial showing "that Ford's management decided to proceed with the production of the Pinto with knowledge of test results revealing design defects which rendered the fuel tank extremely vulnerable on rear impact at low speeds and endangered the safety and lives of the occupants. Such conduct constitutes corporate malice." (Id. at p. 814.) Likewise, the court referred to Ford's cost-benefit decisions, "balancing human lives and limbs against corporate profits," as showing Ford's "institutional mentality" as "one of callous indifference to public safety," justifying a punitive damages award based on corporate conduct constituting "conscious disregard" of the probability of injury to members of the consuming public. (Id. at p. 813; see also Romo v. Ford Motor Company (2003) 113 Cal.App.4th 738, 755.)

More recently, this court in Buell-Wilson v. Ford Motor Co. (2008) 160 Cal.App.4th 1107, 1149, evaluated the evidence of the conduct of Ford management and engineers, as justifying punitive damages awards based on corporate conduct, although only a few of those officials and employees were referred to by name at trial. For example, "Ford's engineers knew that the vehicle's design was unstable and prone to rollover in emergency maneuvers due to its high center of gravity and narrow track width. Ford had known for decades the importance of vehicle stability in emergency maneuvers." (Id. at p. 1124.) Also, "Ford's design engineers repeatedly requested Ford to widen the track width and lower the center of gravity on the Explorer to increase its stability. However, management declined to do so. As acknowledged by Robert Simpson, a program manager for the development of the Explorer, this was because of 'the . . . investment that Ford had sunk into the Explorer' . . . ." (Id. at p. 1125.)

Case law has not yet created any requirement under circumstances like these that an individual managing agent must be identified in order for punitive damages liability to be established against a corporation. In the usual employment case in which punitive damages are sought based on tortious conduct, the identity of the offender and the complaining party's supervisor or superior is known to the individual. For example, in White, supra, 21 Cal.4th 563, the plaintiff employee was fired by a supervisor, Salla, who "exercised substantial discretionary authority over vital aspects of the [employer's] business, [such as] managing numerous stores on a daily basis and making significant decisions affecting both store and company policy." (Id. at p. 577.) When this supervisor fired the employee for testifying at an unemployment hearing, she was exercising "substantial discretionary authority over decisions that ultimately determined corporate policy in a most crucial aspect of Ultramar's business." (Ibid.) That plaintiff (White) was in a position to know what happened to him and why. Again, in Cruz,supra, 83 Cal.App.4th 160, the plaintiff knew that a company's employees had arrested him and roughed him up, but he could not show any chain of command-type relationship between that conduct and the corporate leadership policies.

Next, in Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 63, the trial court granted the defendant employer's motion for directed verdict on the ground that the former employee suing the employer had failed to make a sufficient showing that it was a corporate decision maker who made the adverse job action (rescinding his job offer). Gelfo, the plaintiff, had failed to bring in any evidence that the named corporate employee, a vice-president, held such a position in the corporate hierarchy to justify a finding that he was to blame for the adverse action, through any exercise of "substantial discretionary authority over decisions that ultimately determine corporate policy," so as to justify a punitive damages award against the employer. The court noted that under White, supra, 21 Cal.4th at p. 567, the decision of whether an employee is a managing agent, for purposes of imposing punitive damages liability upon the employer, must be made on a case-by-case basis, but it only remains a factual issue if sufficient evidence has been presented to support a verdict in the favor of the party seeking to establish that fact. (Gelfo, supra, at p. 63.)

The cases we have just referred to are distinguishable on their facts, because the types of decisions made by the managing agents, officers or directors were different and more readily discoverable by the complaining parties. The general principle to be enforced is that "punitive damages are not assessed against employers on a pure respondeat superior basis. Some evidence of fault by the employer itself is also required." (College, supra, 8 Cal.4th 704, 724, fn. 11.) In Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151 (Weeks), the court interpreted the term "managing agent" as referring to a function performed by the corporate representative, and stated that this was a fact specific issue in cases that arise under the statute.

Here too, these facts presented issues about how the language