WHITE v. ULTRAMAR INC

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Court of Appeal, Fourth District, Division 1, California.

Thomas M. WHITE, Plaintiff and Respondent, v. ULTRAMAR, INC., Defendant and Appellant.

No. D023907.

Decided: March 31, 1998

Seyfarth, Shaw, Fairweather & Geraldson, William J. Dritsas and Michael J. Sears, San Francisco, for Defendant and Appellant. Larabee & Loadman and Dale R. Larabee, San Diego, for Plaintiff and Respondent.

In this wrongful termination action, defendant Ultramar, Inc. (Ultramar), appeals a judgment entered on a jury verdict of $342,000 in favor of plaintiff, Thomas M. White (White), and the court's post-trial award of attorney fees to White in the amount of $70,542.60.   Ultramar contends:  (1) there is insufficient evidence to support the verdict on White's causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing;  (2) the court improperly instructed the jury on White's contract claims;  (3) the court erred in excluding after-acquired evidence of good cause to terminate White;  (4) White's relief is limited by the doctrine of unclean hands;  (5) White's claim for tortious discharge in violation of public policy fails as a matter of law;  (6) the jury's award of compensatory damages was incorrectly calculated;  (7) the jury's award of punitive damages is not supported by the evidence;  (8) the court committed reversible error by excluding evidence and refusing to instruct the jury on the issue of whether the conduct giving rise to White's claim for punitive damages was attributable to a “managing agent” of Ultramar, as required by Civil Code section 3294;  (9) Ultramar was prejudiced by the admission of inadmissible evidence;  and (10) the court erred in awarding White attorney fees under Labor Code 2 section 218.5.   We reverse the judgment as to the award of attorney fees and remand for a redetermination of fees.   We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ultramar operates a chain of gasoline service stations and convenience stores throughout California.   In July 1991, Ultramar hired White to work weekends as a clerk/cashier in its store in Pacific Beach.   After he began working for Ultramar on weekends, White continued to work full-time as a clerk/cashier at a 7-Eleven store.

Russ Gossman, the Ultramar manager who hired White, told White Ultramar employees could have free fountain sodas and coffee at any time and could use Ultramar's cups.   Gossman also informed White that Ultramar had a progressive discipline policy under which unsatisfactory employees were given oral and written notice and an opportunity to correct deficiencies prior to termination.

White remained a part-time employee of Ultramar until he was promoted to the full-time position of assistant manager in November 1992.   Larry Asemka, the store manager at the time of White's promotion, told White his pay would be increased to $7 an hour and he would be able to work a lot of overtime.   Asemka advised White to put his job with Ultramar first and be available to work odd shifts.   White understood that to mean he should quit working full-time at 7-Eleven.

In April 1993, Asemka was fired by Ultramar's zone manager, Lorraine Salla.   White continued to work as assistant manager under Asemka's replacement, Thomas McKinney.

On the morning of July 19, 1993, Asemka called White and asked him to testify at his unemployment compensation hearing at 10 a.m. White agreed to testify at the hearing.   He was not scheduled to begin work at Ultramar that day until 3 p.m. Ernest Fimbres, a clerk at Ultramar, also agreed to testify at Asemka's hearing.   Fimbres needed a ride to the hearing because his truck had mechanical problems so he asked White to pick him up at the store, which was right next to his house.

White arrived at the store between 8 and 9 a.m. White and Fimbres both testified that Fimbres was walking out of the store as White entered.   Fimbres testified that he had helped himself to a cup of coffee and was walking out of the store with it when White arrived.   As White entered, Fimbres told him he would wait in his (White's) truck.   White then walked over to where McKinney was wiping down the soda machine and began to draw a soda.   He testified that McKinney asked him if he could begin his shift at 1 p.m. instead of 3 p.m. and he agreed to do so.   According to White, McKinney said nothing else as he walked out of the store with his soda.

McKinney's testimony differed markedly from Fimbres's and White's.   McKinney testified he had previously told Fimbres and White that the store drink policy was that off duty employees had to pay for their drinks the same as any other customer.   As White and Fimbres were preparing to leave the store with their drinks, McKinney waited to see if they would pay for them.   When it became clear they intended to leave the store without paying, McKinney said to White, “You guys are supposed to pay for those drinks.”   White replied, somewhat sarcastically, that they would “bring the cups back” and walked out of the store.   After verifying with the cashier on duty that White and Fimbres had not paid for their drinks, McKinney called Salla and asked for permission to fire them.   Salla told McKinney she would consult with the human resources department at the corporate office and get back to him.

Salla appeared and testified at Asemka's unemployment compensation hearing along with White, Fimbres and Sam Taylor, another Ultramar employee.   When White went back to Ultramar after the hearing to begin working his shift, McKinney told him he was suspended and ordered him to wait outside the store for Salla to arrive.

Salla arrived about two and a half hours later.   White testified that Salla told him he “knew better than to do something like that against her.”   White told Salla she could not fire him for testifying at Asemka's hearing and she replied, “No, I can fire you for stealing that soda.”   Salla testified that she fired White for refusing to pay for a drink.   Fimbres was fired the next day for the same reason.

The store was equipped with a videotaping system designed to operate 24 hours a day.   The system had an automatic reverse feature to allow for continuous taping.   However, on the videotape of the day White was fired there was a five minute gap in the tape.   The time period missing from the tape is the period White and Fimbres were in the store getting drinks and during which McKinney, according to his testimony, told them to pay for the drinks.

White filed this action against Ultramar, alleging causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, tortious discharge in violation of public policy, slander per se and intentional infliction of emotional distress.   After Ultramar unsuccessfully moved for summary judgment, the case was tried to a jury.   The jury returned special verdicts in White's favor on his causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing and tortious discharge in violation of public policy.   On the special verdict form for each of those causes of action the jury stated White suffered damages in the amount of $14,000.   The jury awarded White punitive damages in the amount of $300,000 in connection with his cause of action for discharge in violation of public policy.   White did not prevail on his claim for intentional infliction of emotional distress because the jury found he did not suffer severe emotional distress.3

After trial, White moved for attorney fees under section 218.5.   The court granted White's motion and denied Ultramar's concurrent motion for a new trial.   The court awarded White attorney fees in the total amount of $70,542.60, including fees of $2,347.50 incurred in opposing Ultramar's motion for new trial.

DISCUSSION

I**

II

Tortious Discharge in Violation of Public Policy

Ultramar contends the court erred in allowing White to maintain his cause of action for tortious discharge in violation of public policy.7

 The California Supreme Court recently reviewed the law regarding tortious discharge claims in Stevenson v. Superior Court (1997) 16 Cal.4th 880, 66 Cal.Rptr.2d 888, 941 P.2d 1157.   Regardless whether the employment relationship is at-will, “[a]n employer may not discharge an ․ employee for a reason that violates fundamental public policy.”  (Id. at p. 887, 66 Cal.Rptr.2d 888, 941 P.2d 1157.)

 Stevenson reaffirmed that “to support a tort action for wrongful discharge, ‘the policy in question must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer,’ and must be not only ‘fundamental’ and ‘substantial,’ but also ‘well established’ at the time of the discharge.  [Citation.]  [The California Supreme Court has] noted four categories of employee conduct subject to protection under a claim of wrongful discharge in violation of fundamental public policy:  ‘(1) refusing to violate a statute [citations];  (2) performing a statutory obligation [citation];  (3) exercising a statutory right or privilege [citation];  and (4) reporting an alleged violation of a statute of public importance [citations].’  [Citation.]”  (Stevenson v. Superior Court, supra, 16 Cal.4th at p. 889, 66 Cal.Rptr.2d 888, 941 P.2d 1157.)

“ ‘A public policy exception [to the at-will employment principle] carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public.’  [Citation.]   In the context of a tort claim for wrongful discharge, tethering public policy to specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge:  ‘The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes;  so limited, the public policy exception presents no impediment to employers that operate within the bounds of the law.’  [Citation.]

 “In this manner, [the California Supreme Court] established a set of requirements that a policy must satisfy to support a tortious discharge claim.   First, the policy must be supported by either constitutional or statutory provisions.   Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual.   Third, the policy must have been articulated at the time of the discharge.   Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ”  (Stevenson v. Superior Court, supra, 16 Cal.4th at pp. 889-890, 66 Cal.Rptr.2d 888, 941 P.2d 1157, fn. omitted.)

 Ultramar contends White's tortious discharge claim fails because it is not tethered to a fundamental policy delineated in a constitutional or statutory provision.   Specifically, Ultramar contends there is no statute or constitutional provision that expressly proscribes the conduct forming the basis for White's tortious discharge claim.   Ultramar also contends White's testifying at an unemployment benefits hearing does not fall within any of the four categories of employee conduct subject to protection under a claim of tortious discharge (i.e., refusing to violate a statute, performing a statutory obligation, exercising a statutory right or reporting an alleged violation of a statute of public importance).

 There is no express requirement that a discharge must be specifically prohibited by the precise terms of a particular statute.  Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1086-1087, 4 Cal.Rptr.2d 874, 824 P.2d 680, found a discharge could be deemed tortious where it was in response to the employee's reporting a co-worker's claim of sexual harassment.   The Supreme Court concluded that although the discharged employee was not himself discriminated against on account of his sex within the constitutional prohibition against sexual discrimination, there was direct statutory authority for the jury's finding that his employer violated a fundamental public policy when it constructively discharged him in retaliation for his refusal to give false or incomplete testimony in an administrative investigation of charges of discrimination based on sexual harassment.   The court stated:  “It is self-evident that few employees would cooperate with such investigations if the price were retaliatory discharge from employment.”  (Id. at p. 1097, 4 Cal.Rptr.2d 874, 824 P.2d 680, fn. omitted.)   That, of course, is the price Ultramar claims it was entitled to exact from White merely because its conduct was not specifically prohibited in an Unemployment Insurance Code provision.   As in Gantt, White's discharge violates fundamental legislative policy goals, the achievement of which is impeded by retaliatory discharges such as this.

In section 100 of the Unemployment Insurance Code the Legislature stated, in relevant part:

“As a guide to the interpretation and application of this division the public policy of this State is declared as follows:

“Experience has shown that large numbers of the population of California do not enjoy permanent employment by reason of which their purchasing power is unstable.   This is detrimental to the interests of the people of California as a whole.

“․

“Experience has shown that private charity and local relief cannot alone prevent the effects of unemployment.   Experience has shown that if the State awaits the coming of excessive unemployment it can neither create immediately the organization necessary to orderly, economical and effective relief nor bear the financial burden of relief without disrupting its whole system of ordinary revenues and without jeopardizing its credit.

“The Legislature therefore declares that in its considered judgment the public good and the general welfare of the citizens of the State require the enactment of this measure under the police power of the State, for the compulsory setting aside of funds to be used for a system of unemployment insurance providing benefits for persons unemployed through no fault of their own, and to reduce involuntary unemployment and the suffering caused thereby to a minimum.”

As in Gantt, where the discharge was not expressly prohibited by any statute or constitutional provision, White's discharge for testifying on his own time at the request of a former Ultramar employee seeking unemployment benefits violates a fundamental policy which the Legislature has deemed vital to the economic interests of all Californians.8

In Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 37 Cal.Rptr.2d 718 (review den.), the court cited Gantt 's holding that a tortious discharge claim must be carefully tethered to a fundamental policy delineated in a constitutional or statutory provision.  (Gould, supra, 31 Cal.App.4th at p. 1147, 37 Cal.Rptr.2d 718.)   The court also reiterated its earlier decision in Soules v. Cadam, Inc. (1991) 2 Cal.App.4th 390, 401, 3 Cal.Rptr.2d 6, where it noted an action for tortious discharge will lie wherever the basis of the discharge contravenes a fundamental public policy.  (Gould, supra, 31 Cal.App.4th at p. 1147, 37 Cal.Rptr.2d 718.)  Gould refused to limit such actions only to those examples listed in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, 32 Cal.Rptr.2d 223, 876 P.2d 1022, and Stevenson- -i.e., refusal to violate a statute, performing a statutory obligation, exercising a statutory right or reporting an alleged violation of a statute of public importance.9  (Gould, supra, 31 Cal.App.4th at p. 1147, 37 Cal.Rptr.2d 718.)

The Gould plaintiff alleged his employer fired him to avoid paying accrued commission and vacation pay.  (Gould, supra, 31 Cal.App.4th at p. 1146, 37 Cal.Rptr.2d 718.)   While there was no precise statute prohibiting discharge on this basis, the court found his claim was tethered to the fundamental public policy delineated in sections 201, 202 and 216, which require an employer to pay wages promptly upon cessation of employment.  (Gould, supra, 31 Cal.App.4th at p. 1147, 37 Cal.Rptr.2d 718.)   Citing Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 837, 187 Cal.Rptr. 449, 654 P.2d 219, the court noted that the economic position of the average worker, and in particular his family, made it essential to the public welfare that pay be received promptly.  (Gould, supra, 31 Cal.App.4th at p. 1147, 37 Cal.Rptr.2d 718.)   The Legislature's expression of public policy in Unemployment Insurance Code section 100 is no less fundamental than the policy of prompt payment of wages due an employee.

Gould also considered whether the plaintiff stated a cause of action for tortious discharge by alleging he was discharged for reporting a violation of the overtime wage laws applicable to other employees.   The court held these allegations supported a tortious discharge claim, again, not because there was an express statutory or constitutional prohibition against such discharge, but because it contravened the public policy interests underlying the statutory obligation to pay overtime wages.  (Gould, supra, 31 Cal.App.4th at pp. 1148-1149, 37 Cal.Rptr.2d 718.)

Here, Ultramar is required to pay unemployment insurance benefits in appropriate cases to fulfill the fundamental policy interests articulated in Unemployment Insurance Code section 100.  The Legislature's policy concerns are also expressed in Unemployment Insurance Code section 1266, which notes that many unemployed individuals lack skills which would make them competitive in the labor market and that it is the “policy of this State to assist these individuals by providing unemployment compensation benefits․”   That policy is contravened when employers engage in coercive, intimidating or retaliatory action which discourages employees from testifying at unemployment compensation hearings and, thus, frustrates efforts by eligible claimants to produce evidence at such hearings.

In light of Gould, we disagree with Ultramar's contention that the four categories of employee conduct subject to protection noted in Gantt, Stevenson and Turner are exclusive.  Stevenson reiterated Gantt 's language about “tethering public policy to specific constitutional or statutory provisions․”  (Stevenson v. Superior Court, supra, 16 Cal.4th at p. 889, 66 Cal.Rptr.2d 888, 941 P.2d 1157.)   Just as in Gantt and Gould, the retaliatory discharge here is sufficiently “tethered” through legislative expressions of fundamental public policy.   Accordingly, the court did not err in allowing White to maintain his tortious discharge claim.

III***

IV

Punitive DamagesA. Sufficiency of Evidence of Managing Agent

 “A [corporation] ․ is liable for punitive damages for the act of oppression, fraud or malice of an officer, director, or managing agent of the corporation.  [Citations.]”  (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1404, 245 Cal.Rptr. 606;  Civ.Code, § 3294, subd. (b).)  Ultramar contends there is insufficient evidence that any Ultramar employee involved in White's termination was an officer, director or managing agent of Ultramar.   We conclude there is substantial evidence to find Salla, the person primarily responsible for White's retaliatory discharge, was a managing agent of Ultramar.

Ultramar relies on Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 27 Cal.Rptr.2d 457, for the proposition that a supervisory employee is not a managing agent within the meaning of Civil Code section 3294 unless he or she is in a policymaking position.   However, we are not persuaded that only supervisors that directly make corporate policy qualify as managing agents under Civil Code section 3294.

Kelly-Zurian relied on Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 169 Cal.Rptr. 691, 620 P.2d 141, in concluding an employee must hold a policymaking position to be deemed a managing agent.  (Kelly-Zurian v. Wohl Shoe Co., supra, 22 Cal.App.4th at p. 421, 27 Cal.Rptr.2d 457.)   However, Egan did not hold that an employee must actually be in a position to directly make policy to be deemed a managing agent.   Rather, Egan stated “the critical inquiry is the degree of discretion the [supervisory employee possesses] in making decisions that will ultimately determine corporate policy.”  (Egan v. Mutual of Omaha Ins. Co., supra, 24 Cal.3d at pp. 822-823, 169 Cal.Rptr. 691, 620 P.2d 141, italics added.)   This statement does not provide a clear definition of the term “managing agent,” as a wide variety of discretionary managerial decisions regarding hiring, firing, discipline, employee “perks” and day-to-day business operations can be viewed as ultimately determining, directly or indirectly, corporate policy, written or unwritten.   In any event, Egan expressly rejected a narrow construction of the term “managing agent” for purposes of determining liability for punitive damages.   (Id. at p. 822, 169 Cal.Rptr. 691, 620 P.2d 141.)

Agarwal v. Johnson (1979) 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58, concluded two supervising employees were managing agents for purposes of imposing punitive damages because “they were directly responsible for supervising [the plaintiff's] performance and had the most immediate control over the decision to terminate him.”  (Id. at p. 952, 160 Cal.Rptr. 141, 603 P.2d 58.)   In reaching that conclusion, the Supreme Court reaffirmed its rejection in Egan of a narrow construction of the term “managing agent” (Agarwal, supra, at p. 952, 160 Cal.Rptr. 141, 603 P.2d 58) and engaged in no discussion of whether the supervisory employees in question were in policymaking positions.

Citing Agarwal, the court in Stephens v. Coldwell Banker Commercial Group, Inc., supra, 199 Cal.App.3d 1394, 245 Cal.Rptr. 606, concluded a supervisory employee was a managing agent and, therefore, his corporate employer was liable for punitive damages for the plaintiff's wrongful demotion because the supervisory employee “had immediate ․ control over the decision to demote plaintiff, and he was directly responsible for evaluating plaintiff's performance.”  (Id. at p. 1404, 245 Cal.Rptr. 606.)   Like Agarwal, the Stephens court did not address whether the supervisory employee was in a position to make corporate policy.

In light of Egan, Agarwal and Stephens, we conclude there is substantial evidence to find Salla was a managing agent of Ultramar because she undisputedly had supervisory control over White's employment and had the most immediate control over the decision to fire him.

B. Refusal of Ultramar's Special Managing Agent Instruction

 Ultramar contends the court committed reversible error by refusing its proffered special instruction that the determination of whether an employee is a managing agent does not hinge on the employee's level in the corporate hierarchy;  rather the critical inquiry in determining whether an employee is a managing agent is the degree of discretion the employee possesses in making decisions which will ultimately determine corporate policy.

Ultramar's refused instruction was extracted from Egan. In Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 227 Cal.Rptr. 465, overruled on another ground in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580, 34 Cal.Rptr.2d 607, 882 P.2d 298, the court noted that the practice of extracting special instructions from appellate opinions is “a practice often criticized as tending to produce instructions which are repetitive, misleading and inaccurate statements of the law as to the particular case.  [Citations.]   And ‘[i]t is not error to refuse instructions which are repetitious in substance and would serve only to emphasize unduly a party's theory of the case and which so far as they contain correct statements of the law are adequately covered by the instructions given.  [Citation.]’  [Citation.]”  (Id. at p. 487, 227 Cal.Rptr. 465.)

 Ultramar's proffered managing agent instruction was clearly repetitive and adequately covered by the instructions given.   In addition to being instructed that “[i]f the employer is a corporation, the authorization [of the conduct constituting malice] must be on the part of an officer, director, or managing agent of the corporation[ ]” (BAJI No. 14.73), the jury was instructed that “[a]n employee acts in a managerial capacity where the degree of discretion permitted the employee in making decisions is such that the employee's decisions will ultimately determine the business policy of the employer.”  (BAJI No. 14.74.)   The latter instruction is substantially the same as Ultramar's refused special instruction.11

 A party “is not entitled to have the jury instructed in any particular phraseology and may not complain on the ground that his requested instructions are refused if the court correctly gives the substance of the law applicable to the case.  [Citation.]”  (Hyatt v. Sierra Boat Co., supra, 79 Cal.App.3d at p. 335, 145 Cal.Rptr. 47.)   The instructions the court gave the jury adequately covered the substance of the law applicable to White's claim for punitive damages.

C. Exclusion of Michael Kuritzkes's Testimony on the Issue of Managing Agent

 Ultramar contends the court erred in refusing to allow Michael Kuritzkes, Ultramar's vice-president and general counsel, to testify in the punitive damage phase of the trial about Ultramar's policies and whether Salla and other supervisory employees involved in White's discharge were managing agents of Ultramar.

 The trial court has broad discretion in admitting and excluding evidence.  “Relief is available only where the alleged abuse of discretion clearly constitutes a miscarriage of justice.”  (Cain v. State Farm Mut. Auto. Ins. Co. (1975) 47 Cal.App.3d 783, 798, 121 Cal.Rptr. 200.)

Essentially, Ultramar sought to prove through Kuritzkes's testimony that Ultramar was not guilty of malice in discharging White and no act that could be construed as malice was committed by a managing agent of Ultramar.   The court indicated the managing agent issue should have been covered in the first phase of the trial.   In that phase, the jury was instructed about malice, oppression and fraud in accordance with Civil Code section 3294 and was required to make a finding as to whether Ultramar was guilty of such conduct.   As noted, the jury was also appropriately instructed on imputation of malice to a corporation through the acts of a managing agent.   It was not an abuse of discretion for the court to exclude, in the punitive damage phase of trial, testimony going to issues the jury had already decided in the first phase.

The court excluded Kuritzkes's managing agent and culpability testimony on the additional ground he was not listed as a witness and had not been deposed.   Although the record indicates White waived any objection to Kuritzkes testifying about Ultramar's financial condition without having been deposed, the record does not show White agreed to the excluded areas of Kuritzkes's proposed testimony.   The court did not abuse its discretion in excluding Kuritzkes's testimony.

D. Sufficiency of Evidence of Malice

 Ultramar contends there is insufficient evidence of malice on its part.   We reject this contention out of hand.   The jury could reasonably find by clear and convincing evidence that Ultramar was guilty of malice in discharging White in retaliation for testifying in an unemployment benefits hearing, fabricating a reason for the discharge after the fact, and turning off a video recorder which would have depicted the incident on which it relied to justify White's discharge.

E. Sufficiency of Evidence of Ultramar's Financial Condition

 Ultramar contends the punitive damages award must be set aside because White failed to produce meaningful evidence of its financial condition as required by Adams v. Murakami (1991) 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348.

 White introduced a financial statement of Ultramar's parent corporation which showed Ultramar's income,12 and Ultramar's own financial statement.   The latter exhibit showed Ultramar's net worth to be $283 million.   The jury was presented with sufficient meaningful evidence of Ultramar's financial condition to award punitive damages.

F. The Punitive Damage Award Was Not Excessive

 Finally, Ultramar contends the jury's $300,000 punitive damage award was excessive.   A punitive damage award may not be reversed as excessive unless “the entire record, viewed most favorably to the judgment, indicates the award was the result of passion and prejudice.”  (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1658, 57 Cal.Rptr.2d 525.)   The factors to be considered in making that determination are:  “(1) the reprehensibility of the defendant's misdeeds;  (2) the amount of compensatory damages, though there is no fixed ratio for determining whether punitive damages are reasonable in relation to actual damages;  and (3) the defendant's financial condition.  [Citations.]”  (Ibid.)

 White asked the jury for $3 million in punitive damages and was awarded $300,000.   Considering the reprehensibility of Ultramar's retaliatory discharge, the compensatory award of $42,000 and the evidence of Ultramar's substantial net worth, we conclude the punitive damage award reasonably served the public interest in punishment and deterrence of wrongdoing, which is the essential purpose of punitive damages.  (Stevens v. Owens-Corning Fiberglas Corp., supra, 49 Cal.App.4th at p. 1658, 57 Cal.Rptr.2d 525.)   The punitive damage award does not appear to be the result of passion and prejudice.

V†

DISPOSITION

The judgment is reversed as to the award of attorney fees.   The cause is remanded for a redetermination of attorney fees.   The judgment is affirmed in all other respects.   White is awarded his costs on appeal.

FOOTNOTES

FOOTNOTE.  

FN2. All statutory references are to the Labor Code unless otherwise specified..  FN2. All statutory references are to the Labor Code unless otherwise specified.

3.   White voluntarily dismissed his slander claim at trial.

FOOTNOTE.   See footnote *, ante.

7.   Ultramar unsuccessfully challenged White's public policy claim through its motion for summary judgment and a motion for nonsuit at trial.

8.   In 1997, the Legislature expressly protected employees who testify at unemployment compensation hearings by enacting Unemployment Insurance Code section 1237 which provides, in pertinent part:  “No business entity shall discharge or otherwise discriminate against any person because he or she has sought information from the [Employment Development Department] concerning his or her rights under this code or the Labor Code, cooperated with any investigation undertaken by the department, or has testified or is about to testify in any proceeding brought pursuant to this code or the Labor Code.”

9.   These four examples of protected employee conduct were first noted by the California Supreme Court in Ganttv. Sentry Insurance, supra, 1 Cal.4th at pages 1090-1091, 4 Cal.Rptr.2d 874, 824 P.2d 680.

FOOTNOTE.   See footnote *, ante.

11.   Ultramar's proffered managing agent instruction and BAJI No. 14.74 are both misleading in that they can be construed as meaning a corporation can only be subject to punitive damages through the acts of employees who directly make corporate policy-a dubious proposition in light of Agarwal and Stephens.

12.   Ultramar contends it was prejudiced because White's counsel occasionally referred incorrectly to Ultramar as “Ultramar Corporation,” Ultramar's parent company.   However, Kuritzkes clearly explained the relationship of the two corporations to the jury and the jury presumably understood it.   Ultramar has not met its burden of showing it was prejudiced by White's counsel's misstatements.

FOOTNOTE.   See footnote *, ante.

HADEN, Judge.1 FN1. Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

WORK, Acting P.J., and BENKE, J., concur.