V. James DeSimone

DeSimone won an appeal in April to uphold a remarkable punitive damages award that was more than 33 times the amount of the compensatory damages. It was something of an uphill struggle.

“I remember the first day I got into court and the judge said … something to the effect of, ‘If you think I’m following a 1978 punitive damages precedent, you’ve got some high hopes here,’” he said.

By the end of the nonjury trial, DeSimone convinced that judge to award his clients $15,000 in actual damages plus $500,000 in punitives, which the appellate court affirmed. Rubio v CIA Wheel Group, 21 DJDAR 3534 (Cal. App. 2nd Dist. April 15, 2021).

The case involved a saleswoman who was fired when she complained about mistreatment following her cancer diagnosis and chemotherapy. Sadly, she died during trial. DeSimone came on to represent her family in a new trial.

Under California law, the family could only seek economic damages, not noneconomic damages. And under U.S. Supreme Court precedent, punitive damages generally should be less than 10 times compensatory damages.

But citing his 42-year-old precedent, DeSimone argued that the judge could calculate punitives on the total amount of economic and noneconomic damages the saleswoman would have won had she lived. By that measure, Los Angeles Superior Court Judge Randolph M. Hammock could have awarded punitives of nearly $1.5 million, he argued.

April’s appellate ruling reaffirms and updates the ’78 precedent. But these days, it has additional importance, DeSimone said. “A number of people in our country have died untimely deaths in this past year, so it becomes all the more important for families to vindicate those rights when they can.”

DeSimone has another big case on appeal currently, in which a jury awarded $1.6 million to a Black woman who was harassed and demeaned by Latino co-workers.

He said he had some trepidation bringing the case to a Los Angeles Superior Court jury that he knew could be half Latino itself. In the end, the multi-ethnic jury — which he called “a bouquet of humanity,” quoting the prosecutor in the Derek Chauvin murder trial — supported his view of the facts. And the judge awarded a bit more than $800,000 in attorneys’ fees. Birden v. The Regents of the University of California, B302956 (Cal. App. 2nd Dist., filed Dec. 11, 2019).

He is still hoping to secure a nearly $1 million fee award he was granted in a 20-year-old civil rights case on behalf of two Chinese refugees sexually assaulted by a federal asylum officer. The women have received $1.2 million in damages. Lu v. United States, 921 F.3d 850 (9th Cir. 2019).

And DeSimone is set for trial in February representing a Latino man harassed and mocked at work when he converted to Judaism and began wearing a yarmulke. Cortez Levy v. City of Westminster, 30-2019-01063410 (O.C. Super. Ct., filed April 12, 2019).

— Don DeBenedictis