Rufo v. OJ Simpson - Right Of Publicity

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Page 48 Distributors, Inc. (1979) 100 Cal. App. 3d 821, 839, 161 Cal. Rptr. 225 [time of second trial should be used, not time of first trial or time of injury]; Washington v. Farlice (1991) 1 Cal. App. 4th 766, 777 [upon appellate reversal of punitive damages judgment and remand for a new trial, the defendant's financial condition at the time of retrial should be used].) These cases do not hold that a defendant's future financial prospects are legally irrelevant or improper for the jury to consider. Simpson's contention that evidence of his future financial prospects is legally [**99] irrelevant or improper makes no sense. The ultimately proper level of punitive damages is an amount not so low that the defendant can absorb it [*622] with little or no discomfort ( Neal v. Farmers Ins. Exchange, supra, 21 Cal. 3d 910, 928), nor so high that it destroys, annihilates, or cripples the defendant. ( Adams v. Murakami, supra, 54 Cal. 3d 105, 112, 113; Kenly v. Ukegawa, supra, 16 Cal. App. 4th 49, 57.) Whether the defendant's financial prospects are bleak or bright is relevant to the ultimate issue whether the damages will ruin him or be absorbed by him. Simpson cites no authority that squarely supports his contention. In propounding a Model Punitive Damages Act, the Uniform Law Commissioners considered the law to be obviously contrary to Simpson's argument. Section 7(a) of the Act lists nine factors to be considered by a jury in determining what constitutes a fair and reasonable amount of punitive damages. The Commissioners endeavored "to list those factors which are relatively noncontroversial and which would probably come into play in most cases involving a claim for punitive damages." The fourth factor listed is, "the defendant's [**100] present and future financial condition and the effect of an award on each condition." (14 West's U. Laws Ann. (Master ed. 2000 supp.) Model Punitive Damages Act, @ 7, subd. (a)(4), and com. thereto, pp. 53, 63, 64, PAGE 36 86 Cal. App. 4th 573, *622; 2001 Cal. App. LEXIS 41, **100; 103 Cal. Rptr. 2d 492, ***526; 2001 Cal. Daily Op. Service 759
Page 49 italics added.) In Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal. App. 3d 381, 202 Cal. Rptr. 204, the court affirmed a punitive damages verdict against a corporation based in part on a corporate resolution to borrow money. It said a corporate resolution to borrow "serves as an indicator of [***527] the continuing health and viability of a business." ( Id. at pp. 385, 391, 202 Cal. Rptr. 204.) Simpson next contends that even if his ability to earn money in the future was relevant, Roesler's testimony should have been excluded as "grossly speculative." Simpson argues that Roesler compared Simpson to other famous sports celebrities without confronting the negative effects stemming from the findings in this case that he killed the victims or the evidence from the defense witnesses that the demand for Simpson's services or products had fallen off. This argument confuses weight and credibility of evidence with admissibility of evidence. Whether Roesler's [**101] evaluation of Simpson's future income potential was credible was an issue of fact for the jury. The appellate court cannot reweigh the credibility of witnesses or resolve conflicts in the evidence. ( Vallbona v. Springer (1996) 43 Cal. App. 4th 1525, 1535-1536.) The appellate court must view the conflicting evidence regarding punitive damages in the light most favorable to the judgment pursuant to the familiar substantial evidence rule. ( Neal v. Farmers Ins. Exchange, supra, 21 Cal. 3d 910, 928.) Roesler was well qualified by his experience to render an opinion on the value of a celebrity's name and likeness. Contrary to Simpson's present argument, Roesler did not ignore negative publicity. He discussed how the value of Simpson's autographed pictures went up during the criminal trial and had remained at that level since. He discussed how the value of Mike Tyson [*623] memorabilia increased even after Tyson's conviction of rape. He opined there was a definite market for Simpson autographs unaffected by the outcome of this trial. He said Simpson has a very high level of recognition throughout the world, and there were many people who want a Simpson product or autograph. [**102] In his written report which was admitted into evidence, he discussed
Page 1 and 2: Page 1 SHARON RUFO et al., Plaintif
Page 3 and 4: Page 3 Other physical evidence from
Page 5 and 6: Page 5 People v. McCray (1997) 58 C
Page 7 and 8: Page 7 Nancy Ney was a director of
Page 9 and 10: Page 9 Simpson contends "a period o
Page 11 and 12: Page 11 kill her, but also serves t
Page 13 and 14: Page 13 Cal. 3d 573, 584-587, 209 C
Page 15 and 16: Page 15 and to explain her conduct
Page 17 and 18: Page 17 weighing process, shows the
Page 19 and 20: Page 19 evidence about any score on
Page 21 and 22: Page 21 implanted in the minds of t
Page 23 and 24: Page 23 29B pt. 4 West's Ann. Evid.
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Page 27 and 28: Page 27 be bound by the manner in w
Page 29 and 30: Page 29 head. Simpson appears to re
Page 31 and 32: Page 31 by SID in the laboratory, b
Page 33 and 34: Page 33 opinion as to the validatio
Page 35 and 36: Page 35 But the presumption of prej
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Page 39 and 40: Page 39 jury award, however, was in
Page 41 and 42: Page 41 Punitive damages are not aw
Page 43 and 44: Page 43 Freeman also reviewed the d
Page 45 and 46: Page 45 memorabilia shop in Manhatt
Page 47: Page 47 likeness in the future; Sim
Page 51 and 52: Page 51 limited economic damages re
Page 53 and 54: Page 53 PAGE 38 86 Cal. App. 4th 57
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Rufo v. OJ Simpson - Right Of Publicity

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