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Stuppy v. World Gym International3/7/2003
) 22 Cal.3d 388.
In that case, our Supreme Court considered constitutional challenges to Civil Code section 789.3, which assesses a penalty of $100 per day against a landlord who willfully deprives his or her tenant of utility services for the purpose of evicting the tenant. (Id. at p. 392.) The court held that the penalty violated due process under certain conditions and that the amount of the penalty was excessive. (Ibid.) In discussing due process, the court noted that the amount of the penalty was mandatory and the duration of the penalty was potentially unlimited. (Id. at p. 399.) "No discretion is permitted the trier of fact in fixing the penalty. The acts prohibited by the section potentially encompass a broad range of culpable activity and conduct on the part of the landlord, and a widely divergent injury resulting in damage to the tenant. The fixed penalties are imposed upon potential defendants who may vary greatly in sophistication and financial strength. [Citation.] These features of section 789.3 emphasize its substantial difference when compared, for example, with recently adopted federal statutes which require the consideration of various ameliorating factors in the assessment of proper civil penalties. [Citations.] No such moderating influences may be considered under section 789.3. . . . In our view, a statute which applies such a mandatory, fixed, substantial and cumulative punitive sanction against persons of such disparate culpability is manifestly suspect." (Hale, at pp. 399-400.)
World Gym refers to the court's conclusion: "In summary, operation of the penalty provided by section 789.3 is mandatory, mechanical, potentially limitless in its effect regardless of circumstance, and capable of serious abuse. Its severity appears to exceed that of sanctions imposed for other more serious civil violations in California and for similar prohibited acts in other jurisdictions. For all of the foregoing reasons in combination, we hold that section 789.3 may, under circumstances such as those herein presented, produce constitutionally excessive penalties." (Hale v. Morgan, supra, 22 Cal.3d 388, 404.)
World Gym concludes that a trial court must consider these factors in assessing civil penalty and punitive damages awards. Since it finds "that the award was unconstitutionally excessive in light of World Gym's intervention to correct and rectify Murrieta Fitness's statutory violation," it requests us to order the trial court to "consider the vicarious nature of World Gym's culpability as a mitigating factor."
We decline the invitation. First, Civil Code section 1812.94 is not mandatory. It provides the trial court with discretion to order treble damages or not. Nor is the amount of the penalty under that section potentially unlimited. Thus, the infirmities of the statute discussed in Hale v. Morgan, supra, 22 Cal.3d 388 are not present here.
Second, while we agree with World Gym that the court should consider ameliorating factors in exercising its discretion under section 1812.94, it is not clear from the record that the trial court failed to do so. Although the court's comments were ambiguous, as discussed above, it declared that the jury found that World Gym's conduct was a cause of what happened, and that the degree of control exercised by World Gym was sufficient to support an award of treble damages. Since World Gym was thus found to be the actual wrongdoer, the trial court did not abuse its discretion in awarding treble damages for the violations of the statute which requires services to begin within six months of the signing of the membership contract, and the statute requiring refunds within 10 days of the receipt of a cancellation notice. (Ci
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