No. S070177



	IN THE SUPREME COURT

	OF THE STATE OF CALIFORNIA



THOMAS M. WHITE,          

Respondent,                           No. S070177

vs.

ULTRAMAR, INC.,

Appellant.
___________________________________


	PETITION FOR REVIEW FROM COURT OF APPEAL
	FOURTH DISTRICT, DIVISION ONE, No. D023907

	SAN DIEGO COUNTY SUPERIOR COURT No. 670423
	THE HONORABLE DONALD J. MELOCHE, JUDGE
	______________________________________________

	REQUEST BY THE CALIFORNIA EMPLOYMENT LAWYERS
	ASSOCIATION (CELA) FOR PERMISSION TO FILE
	AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF
	IN SUPPORT OF RESPONDENT THOMAS M. WHITE
	__________________________________________




JOSEPH POSNER, INC. 
[S.B. # 62428]
16311 Ventura Blvd., Suite 555
Encino, CA 91436-4303
(818) 990-1340

Norman Pine, Esq.
[S.B. # 67144]
14156 Magnolia Blvd., Ste. 200
Sherman Oaks, CA 91423
(818) 379-9710

Attorneys for Amicus Curiae 
California Employment Lawyers 
Association

No. S070177



	IN THE SUPREME COURT

	OF THE STATE OF CALIFORNIA



THOMAS M. WHITE,          

Respondent,                           No. S070177

vs.

ULTRAMAR, INC.,

Appellant.
___________________________________


	PETITION FOR REVIEW FROM COURT OF APPEAL
	FOURTH DISTRICT, DIVISION ONE, No. D023907

	SAN DIEGO COUNTY SUPERIOR COURT No.670423
	THE HONORABLE DONALD J. MELOCHE, JUDGE
	______________________________________________

	REQUEST BY THE CALIFORNIA EMPLOYMENT LAWYERS
	ASSOCIATION (CELA) FOR PERMISSION TO FILE
	AMICUS CURIAE BRIEF IN
	SUPPORT OF RESPONDENT THOMAS M. WHITE
	________________________________________

TO THE HONORABLE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE 
JUSTICES OF THE SUPREME COURT:
The California Employment Lawyers Association (CELA) is an 
organization composed of attorneys who represent primarily 
plaintiffs in employment discrimination and related cases.  CELA is 
familiar with the issues in this case and believes that there is a 
need for further argument on these points:

- The legislative history of SB 1989 confirms that the 
Legislature adopted the term "managing agent" to codify this 
Court's decision in Egan v. Mutual of Omaha, 24 Cal. 3d 809 (1979).
- A company whose managing agent commits a tortious act with 
the requisite malice or oppression or conscious disregard is liable 
for punitive damages where that manager's actions determine the 
company's policies in actual practice.
If this request is granted, the following brief is 
respectfully submitted.
Respectfully submitted,

NORMAN PINE, ESQ.

JOSEPH POSNER, INC.

By__________________________
  				  JOSEPH POSNER,
  				  Attorneys for California Employment
  				  Lawyers Association, Amicus Curiae


No. S070177



	IN THE SUPREME COURT

	OF THE STATE OF CALIFORNIA



THOMAS M. WHITE,          

Respondent,                           No. S070177

vs.

ULTRAMAR, INC.,

Appellant.
___________________________________


	PETITION FOR REVIEW FROM COURT OF APPEAL
	FOURTH DISTRICT, DIVISION ONE, No. D023907

	SAN DIEGO COUNTY SUPERIOR COURT No. 670423
	THE HONORABLE DONALD J. MELOCHE, JUDGE
	______________________________________________

	AMICUS CURIAE BRIEF IN
	SUPPORT OF RESPONDENT THOMAS M. WHITE
	__________________________________________


TO THE HONORABLE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE 
JUSTICES OF THE SUPREME COURT:
	INTRODUCTION
This Court posed two questions in granting review.  Respondent 
Thomas M. White has offered answers to both questions but much more 
needs to be said.  Also, Ultramar's briefs muddy the waters and 
require an additional response.

	ARGUMENT
1.  THE LEGISLATIVE HISTORY OF S.B. 1989, INCLUDING THE 
LEGISLATURE'S ADOPTION OF THE TERM "MANAGING AGENT," RATHER 
THAN THE ORIGINAL PROPOSED TERM "SENIOR EXECUTIVE OFFICER," 
CONFIRMS THAT THE PRINCIPLES SET FORTH IN EGAN WERE CODIFIED, 
NOT REPUDIATED. 
Ultramar's argument about the Legislative intent surrounding 
SB 1989, the bill that amended Civil Code 3294 ["section 3294"], is 
predicated on the assumption that this Court's decisions in Egan v. 
Mutual of Omaha Ins. Co., 24 Cal. 3d 809 (1979) and Agarwal v. 
Johnson, 25 Cal. 3d 932 (1979) were wild aberrations which the 
Legislature wished to cure.  According to Ultramar, these two 
decisions constituted a doctrine which  "dramatically expanded the 
scope" of corporate employer liability for punitive damages and the 
1980 amendments were intended to "repudiate" that doctrine and  
"restore a balance" that more closely resembled the pre-1979 case 
law. (Opening Brief ["Open. Br."], p.11, 12.)   This argument is 
riddled with  fundamental flaws.	
  
A.  Long Before Egan, California Courts Had Affirmed Punitive 
Damage Awards For The Actions Taken By Those Employees, Regardless 
Of Their Titles, Who Had  "Discretionary Powers."

Ultramar's argument about Legislative intent fails at the 
starting gate because it is premised on the claim that pre-Egan, 
California had only imposed punitive damages for the actions of 
senior corporate executives.  Indeed, some of the very cases 
Ultramar cites as purported support for its position directly prove 
the opposite.
For example, Ultramar relies upon this Court's opinion in 
Bechtel Corp. v. Industrial Accident Comm'n, 25 Cal. 2d 171,174 
(1944), a case construing "willful misconduct" under Labor Code 
section 4553 (which imposes liability on a corporation for the 
acts, inter alia, of its managerial employees). (Open. Br. pp. 15-
16.)  In Bechtel, however, this Court said:
"A `managing agent or a managing representative is one who has 
general discretionary powers of direction and control -- one 
who may direct, control, conduct or carry on his employer's 
business or any part or branch thereof.' (Citation.)" 
25 Cal. 2d at 174, emphasis added and deleted.
This Court added another key concept as well: the test is the level 
of "general discretionary powers" the employee has, not whether or 
not any particular "title" (e.g., "foreman") is used.  (Ibid.)

Obviously, Bechtel is indistinguishable from this Court's 
later holdings in Egan and Agarwal.   In Egan, this Court stressed 
that the critical inquiry was that, regardless of their "`level'" 
(or title) in the corporate hierarchy, the two managerial agents 
had "broad discretion" to dispose of plaintiff's insurance claim 
and, thus, to create the "ad  hoc formulation of policy."  (24 Cal. 
3d at 822, 823.)   Likewise, in Agarwal, a case involving wrongful 
termination, this Court held that punitive damages were 
appropriately imposed on the employer for the conduct of the 
individuals who had "the most immediate control over the decision 
to terminate" the plaintiff.  (25 Cal. 3d at 952.)  Such punitive 
liability was appropriate because of the societal need "to 
encourage careful selection and control of persons placed in 
important management positions."  (Id. at 947, emphasis added.) 
Ultramar also cites Toole v. Richardson-Merrill, Inc., 251 
Cal. App. 2d  689 (1967) as supposed support for its contention 
that pre-Egan, California only imposed punitive damages for the 
acts of "high-level management." (Open. Br. p. 14.)  Again, 
however, Ultramar's own case bites its hand.  In Toole, the court 
made clear that a mere head of a company sub-division (the 
associate director of research, Dr. Van Maanen) was "high enough on 
the executive scale of responsibility to hold appellant liable in 
punitive damages."  (251 Cal. App. 2d  at 712.)          

Finally, even Professor Witkin's treatise treats pre-and post-
Egan cases interchangeably.  (6 Witkin, Summary of California Law 
(9th ed. 1988), Torts, 1346, p. 808-809.)  Indeed, section 1348 
labels section 3294(b) as a "codification" of the Torts Restatement 
Rule which California had recognized both  pre-Egan and in Egan. 
 (Id. at p. 809.)

B.  Given The Well-Settled State Of California Law In 1979, Section 
3294(b) Cannot Be Viewed As Silently Repealing Egan and Agarwal.
In Torres v. Automobile Club of Southern California, 15 Cal. 
4th 771 (1997), this Court reiterated a familiar, yet fundamental, 
rule:
"In circumstances such as these, we are assisted by the rule 
that courts should not presume the Legislature in the 
enactment of statutes intends to overthrow long-established 
principles of law unless that intention is made clearly to 
appear either by express declaration or by necessary 
implication."
15 Cal. 4th at ____.
Ultramar's interpretation of Section 3294(b) cannot be reconciled 
with this rule.  

It is striking that Section 3294(b) added a series of new 
definitions for the terms "malice," "fraud," and "oppression" which 
are critical to the determination of punitive damages.  Yet, SB 
1989 offered no definition for the term "managing agent."  If use 
of this term was really intended to overthrow existing law, the 
Legislature surely would have taken some steps to make that 
intention clear by adding one additional definition.  But the 
Legislature obviously wanted the term "managing agent" to remain 
unchanged as this Court had been applying that term for at least 
the 35 years between Bechtel and Egan.

C.  Ultramar's Interpretation Of "Managing Agent" Would Render The 
Ratification Portion Of Section 3294(b) Complete Surplusage.
Ultramar contends that to be a "managing agent" under Section 
3294(b), "one must be a final policymaker of the corporation" 
concerning the conduct at issue. (Open. Br. p. 4, emphasis added.) 
  We would fully agree with that concept if we thought Ultramar 
meant one could be a de facto "final" policymaker in the sense that 
Agarwal defined the concept, e.g., a managing agent is the person 
with  "the most immediate control over the decision" in question. 
 (25 Cal. 3d at 952.)   
Ultramar makes clear, however, that it really uses "final 
policymaker" to connote the top of the corporate hierarchy.  One 
obvious problem with this interpretation is that it renders moot 
the entire portion of section 3294(b) which creates punitive 
damages exposure whenever a company ratifies a wrongful act.  If 
only persons at the top of the corporate hierarchy can "act" for 
the corporation for punitive damages purposes, there is no one left 
who can "ratify" their actions and thereby trigger punitive damages 
under an alternative theory. 

D.  Ultramar's "Ordinary Language" And "Similar Statute" Analysis 
Also Contradicts Its Interpretation.
Ultramar acknowledges that the starting point for statutory 
analysis is the language of the statute.  Claiming the term 
"managing agent" is unclear, it turns to the definition in Black's 
Law Dictionary.  That definition, however, fully corresponds to the 
concepts this Court articulated back in 1944 in Bechtel and 
reaffirmed in Egan and Agarwal.  
As quoted by Ultramar, the definition of "managing agent" in 
Black's is a person invested with "general power, involving the 
exercise of judgment and discretion" or a person with the exclusive 
supervision "or control of some department of a corporation's 
business, the management of which requires of such person the 
exercise of independent judgment and discretion . . . ."  (Open. 
Br. p. 28, emphasis added.)  
Likewise, Ultramar analogizes to the term "managing agent" 
under the Federal Rules of Civil Procedure.  That definition, too, 
includes the same concepts which are fatal to Ultramar's 
interpretation herein since a "managing agent" is defined merely as 
one with  "powers to exercise judgment and discretion in dealing 
with corporate matters."  (Open Br. p. 30, quoting so-called Rubin 
test, emphasis added.)  

Reference to use of the term "managing agent" in similar 
statutes and rules raises a major ethical concern which this Court 
should carefully consider.  Rule 2-100 of the Rules of Professional 
Conduct permits opposing counsel to initiate ex parte contacts with 
unrepresented former employees and present employees other than 
officers, directors and managing agents.  (Continental Ins. Co. v. 
Superior Court, 32 Cal. App. 4th 94, 118 (1995).)  We suspect that 
Ultramar, and other corporate entities, would raise howls of 
protest if  "managing agent" in that context was interpreted to 
mean only the most senior policymakers of the corporation.  If Mr. 
White's counsel attempted to contact the individual tortfeasors ex 
parte, Ultramar's corporate temper would rise as sharply as its 
gasoline prices of late. Yet, there is no principled  reason to 
create a different definition of the term in the punitive damages 
context than in the Rule 2-100 context.

E.  Ultramar's Analysis Of Legislative History Is Filled With 
Inaccuracies, Half-Truths And Logical Lapses.
SB 1989's original purpose was the reduction of punitive 
damages and much of the final statute produced that result.  
However, through the give-and-take of the legislative process, the 
"tort reform" proponents had to give up on their effort to 
repudiate Egan in order to achieve the other limitations they 
wanted.   

The final legislative compromise gave the tort reformers 
definitions of malice, fraud and oppression and  limits on 
discovery of financial information of a defendant.  However, the 
final version of the bill rejected the language which Senator Maddy 
and Assemblyman Knox had originally sought i.e., only permitting 
punitive damages based on the actions of  "a senior executive 
officer or officers" of the corporation. [005, emphasis added.]  
The evolution of the legislative compromise that resulted in 
passage of the bill is easily traced.  The Senate version contained 
the "senior executive language" described above and language 
limiting punitive damages except where the employer, itself, was 
"personally guilty."  [4-6.]  Conversely, the Assembly version 
rejected both of these concepts and proposed use of the "managerial 
capacity" language contained in the Torts Restatement. [16-19, 
201.]  The bill therefore was submitted to a Conference Committee. 
 The result of that Conference Committee debate was the final 
version of section 3294(b) which adopted the "personally guilty" 
concept, but deleted the "senior executives" concept in favor of 
the term "managing agent."  

The process of what occurred in the Conference Committee was 
described by Conference Committee member Senator Roberti who 
printed a letter in the Senate Journal explaining that, "with 
respect to the term `managing agent,'" the intent of the bill was 
"not to alter the rule of corporate liability for punitive damages 
as it related to that term in the case of Egan . . . ." [203.]  
Ultramar strenuously argues the Roberti letter should be ignored 
and that a letter to Governor Brown sent by Senator Maddy (and 
Assemblyman Knox) should instead be believed. [255-259, 262-266.] 
Ultramar argues the Roberti letter "neither recounts 
legislative events nor elucidates arguments made about SB 1989." 
 (Reply Br. 3.)   On its face, this statement is absurd when 
applied to the Roberti letter.  By its express terms, Sen. 
Roberti's letter sets "forth representations that were made to me 
during the Conference Committee by the proponents" of the bill;  
moreover, Sen Roberti's letter states that it was being printed in 
the Senate Journal "to clarify the intent of the Conference 
Committee" and states that it was written "with the knowledge of 
the Conference Committee." [203, emphasis added.] 

Ultramar also seeks to discredit the Roberti letter by 
focusing on the slip of one word in the statement that the bill's 
intent "with respect to the term `managing agent' is not to alter 
the rule of corporate liability for punitive damages as it related 
to that term in the case of Egan . . . ." [203, emphasis added.] 
 Gleefully noting that Egan did not use the term "managing agent" 
- it referred to "managerial agent" instead --  Ultramar argues the 
entire Roberti letter is therefore "nonsensical."  (Reply Br. p. 
4.)   However, if "term" is simply replaced with the word 
"concept,"  the letter makes perfect sense.  Moreover, the same 
"nonsensical" mistake which Ultramar accuses Senator Roberti of has 
been made by the BAJI Committee, by Witkin, and by the California 
courts.  In the past 20 years they have all treated Egan as 
defining the term "managing agent" in section 3294(b).  (See, e.g., 
BAJI (8th Ed.), BAJI Nos. 14.73, 14.73.1, and 14.74 [treating Egan 
and Agarwal as defining the proper meaning of "managing agent" as 
that term is used in section 3294(b.); Witkin, supra,  1346, 
1348, 1355.)  
Finally, Ultramar goes to great lengths to show that the 
August 28, 1980 Roberti letter was printed "too late" to affect the 
Assembly vote and only one day before the Senate vote.  (Reply Br. 
p. 5.)  So what?  Whether the letter affected one house or not, it 
could hardly matter.  The significance of the letter is that it 
memorializes representations that were made to Conference Committee 
members, during the committee debate, with the intent that their 
votes be swayed.  

Besides discounting the Roberti letter,  Ultramar is also 
forced to discount the enrolled bill memorandum prepared for 
Governor Brown. (Reply Br. p. 6.)   The enrolled memorandum notes 
the California Trial Lawyers' Association opposed the bill in 
concept but that "they concede it does little more than codify 
existing case law." [261, emphasis added.]  
Ultramar's argument is that the enrolled bill memorandum is 
"vacuous" because it relies on the "concession" of opponents of the 
bill.  However, that "concession" is quite important for two 
reasons.  First, it confirms the nature of the representations that 
were made to Senator Roberti (and others) during the Conference 
Committee debate. Second, it sheds light on the governor's state of 
mind in agreeing to sign the bill.   

Finally, in desperate search of support for its legislative 
history argument, Ultramar submits that the California Trial 
Lawyers' Association ("CTLA") "lobbied incessantly" against passage 
of the bill and it implies the reason was because of CTLA's fear 
that Egan's standards would be repudiated.  (Open. Br. p. 22.)   
However, none of the pages quoted by Ultramar support the 
suggestion that the fear of repudiating Egan had anything to do 
with CTLA's opposition. [45, 53, 89, 121-122, 134, 136-149, 236.] 
 	Indeed, the only pages reflecting CTLA's view of the impact of 
the proposed legislation on Egan simply reflect that CTLA was 
concerned that after Egan had refined the Restatement of Torts 
concept of corporate responsibility for actions of managerial 
employees, "changing the technical terms and definitions" will 
"only serve to confuse the law" and will invite "needless 
litigation" over the proper interpretation.  Indeed, as this very 
case confirms, CTLA was amazingly prophetic -  though, like 
Cassandra, it could hardly derive any satisfaction from having been 
proven so right. 

2.  A COMPANY WHOSE MANAGING AGENT COMMITS A TORTIOUS ACT WITH 
THE REQUISITE MALICE OR OPPRESSION OR CONSCIOUS DISREGARD IS 
LIABLE FOR PUNITIVE DAMAGES WHERE THAT MANAGER'S ACTIONS 
DETERMINE THE COMPANY'S POLICIES IN ACTUAL PRACTICE.
This Court's second question in granting review is whether a 
supervising employee who commits a tortious act must make corporate 
policy in order to be a managing agent for the purposes of imposing 
punitive damage liability.  The answer to that question is yes, 
assuming that we define corporate policy as what the company 
actually does - not necessarily what the company says.  
No better example of this concept can be found than the 
seminal case of Egan v. Mutual of Omaha, 24 Cal. 3d 809 (1979).  
There, as in White, the buck stopped with the two claims managers 
who actually made the decision to terminate Egan's disability 
benefits.  To Mr. Egan, it didn't matter what the board of 
directors may have resolved, or what the company had written in its 
claims manual; the only thing that really mattered was that the 
claims managers both had, and exercised, the power to deny him his 
benefits wrongfully.  As far as he was concerned, they were the 
company.

This is how it is in the real world, whether we are talking 
about employment decisions as in Mr. White's case, or in the 
manufacturing environment where managers decide to put a product 
out among the consuming public knowing that it is only a matter of 
time before the defective bumper bracket turns the automobile into 
a raging inferno of death.  In Grimshaw v. Ford Motor Co., 119 Cal. 
App. 3d 757, 774-777, 813-814 (1981), Ford made much the same 
argument that Ultramar makes here.  That argument should be 
rejected for the very same reason:
"There was also evidence that Harold Johnson, an assistant 
chief engineer of research, and Mr. Max Jurosek, chief chassis 
engineer, were aware of the results of the crash tests and the 
defects in the Pinto's fuel tank system.  Ford contends that 
those two individuals did not occupy managerial positions 
because Mr. Copp testified that they admitted awareness of the 
defects but told him they were powerless to change the rear-
end design of the Pinto.  It may be inferred from the 
testimony, however, that the two engineers had approached 
management about redesigning the Pinto or that, being aware of 
management's attitude, they decided to do nothing.  In either 
case, the decision not to take corrective action was made by 
persons exercising managerial authority.  Whether an employee 
acts in a `managerial capacity' does not necessarily depend on 
his `level' in the corporate hierarchy."
119 Cal. App. 3d at 814, emphasis added.

As Egan pointed out, "Defendant should not be allowed to 
insulate itself from liability by giving an employee a 
nonmanagerial title and relegating to him crucial policy 
decisions."  24 Cal. 3d at 823, emphasis added.
"Corporate policy" is a mere abstraction.  California courts 
have recognized consistently that it is decisions and actions that 
shape corporate policy in reality.  For example, in Roberts v. Ford 
Aerospace, 224 Cal. App. 3d 793 (1990), the plaintiff was an 
African-American seven year employee.  Originally the company rated 
his performance favorably but after Ford hired a new group of 
employees, Roberts found racist statements scrawled on the bathroom 
walls.  After he complained, the graffiti was removed but a series 
of events began in which he was excluded from discussions, meeting 
times were changed without notice to him, he was given unjustified 
reprimands, and he was ridiculed and mimicked.  When he complained, 
the harassment escalated and finally culminated in his firing.
He sued for retaliatory discharge under the Fair Employment & 
Housing Act (FEHA), Govt. Code. Sec. 12900 et seq., and recovered 
compensatory and punitive damages. By special verdict the jury 
found that (1) Roberts' termination was racially motivated in 
violation of the public policy against discrimination and (2) all 
defendants acted with malice in retaliating against Roberts.
The Court of Appeal upheld the entire verdict, noting:

"Ford's manager, Mr. Luna, testified that he had the power 
only to recommend hiring and firing, and although he 
terminated respondent's employment, 'no single person in 
Ford...has the authority to fire anybody.'  To fire someone, 
'you have to get the support...from Industrial Relations.'  
The evidence more than supported a finding that Ford 
participated in the discriminatory conduct."
224 Cal. App. 3d at 801.
Nowhere, of course, in the articles of incorporation or the 
bylaws or the resolutions passed by the board of directors of Ford 
Aerospace does it say that the company shall tolerate, encourage 
and foster racial harassment.  But the Court of Appeal had no 
trouble recognizing that the policies of the company were 
determined by what the company did, not by what the company said.
Or, consider Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 
(1988).  There, after an extensive discussion of Senate Bill 1989 
(1979-1980 Regular Session) (63 Cal. App. 4th at 1149-1151), the 
court upheld the imposition of punitive damages where the employer 
carried on, to put it mildly, a "policy" of benign neglect of the 
animalistic impulses of one of its chief rainmakers.  Testimony 
established that any number of persons in the managerial hierarchy 
knew what was happening and chose either to ignore it or to 
administer a slap on the wrist when a swift kick was called for. 
(63 Cal. App. 4th at 1138-1145).  The Weeks court rejected the same 
argument which Ultramar makes in the instant case:

"Baker & McKenzie thus interprets Civil Code Section 3294 as 
permitting an award of punitive damages directly against an 
employer only upon a showing that the employer both engaged in 
the conduct defined by subdivision (b), and was itself guilty 
of fraud, oppression or malice, i.e., the conduct authorizing 
liability for punitive damages under subdivision (a).  The 
history of the statute, however, does not support that 
interpretation.  To the contrary, it seems that proponents of 
Senate Bill 1989 understood and accepted that employers might 
be found directly liable for punitive damages in any of the 
situations outlined by Civil Code Section 3294, subdivision 
(b), without an additional explicit finding that the employer 
was guilty of fraud, oppression or malice.  Senator Maddy thus 
urged use of the term `managing agent' `to describe the lowest 
level person within a corporation who must be "personally 
guilty of oppression, fraud [or] malice" or possess the 
requisite "advance knowledge" and "authorize or ratify" the 
conduct at issue before punitive damages can be assessed 
against the corporation.'..."
63 Cal. App. 4th at 1153, first emphasis added, others in 
original.
In Siva v. General Tire, 146 Cal. App. 3d 152, 159 (1983), a 
tire service person recovered damages including punitives where the 
local manager for a tire repair company knew the extent of damage 
to a tire but allowed his subordinates to disregard company-wide 
standards.  The court focused on the policies which were followed 
in actual practice:

"It is clear Bannish [the plant manager] acted in a managerial 
capacity.  (See Egan v. Mutual of Omaha Ins. Co., supra, 24 
Cal. 3d at p. 822.)  The jury could reasonably infer...that 
Bannish knew the extent of damage to the tire but failed to 
write an inspection tag.  The jury then could have concluded 
that because at least two and possibly several other workers 
saw the extent of the repairs, there was an implicit local 
policy to disregard General's written standards.  General 
demonstrated this tire to all its plant managers as an example 
of poor quality control.  The jury could thus infer the Los 
Angeles plant disregarded the corporation's specifications. 
 Where there are production errors followed by other serious 
errors in a setting which indicates the managers are simply 
not looking at the final product, a jury can properly find the 
managers have instituted a policy which tacitly approves the 
work done.  The tacit approval of misconduct in the 
circumstances of this case constitutes ratification of it."
146 Cal. App. 3d at 159, emphasis added.

Mathews v. Govt. Emp. Ins. Co. (GEICO), 23 F.Supp. 2d 1169, 99 
DJDAR 2519 (S.D. Cal., Sept. 17, 1998) provides a perfect example 
of a regional manager who established a policy in practice that 
differed from corporate guidelines and violated the law willfully. 
 The San Diego region used credit reports improperly in deciding 
whom to accept or reject for employment, in violation of the 
federal Fair Credit Reporting Act (FCRA), 15 USC 1681.  Willful 
violations of the FCRA can subject the violator to punitive 
liability.  (15 USC 1681n(a)).  GEICO tried to claim the violations 
were not willful, but it did not get very far.  Mathews ruled that 
punitives were recoverable: "Congress did not intend to enable 
mass-users of credit reports to evade meaningful liability for 
repeated violations of their `grave responsibilities' under the 
FCRA by sticking their heads in the sand and pleading ignorance of 
the law." 99 DAR at 2521.
But, said GEICO, our officers in Maryland knew the law but did 
not know the illegal details of the San Diego region's policy.  
Corporate leaders also did not know that the senior San Diego 
officers who designed the illegal policies were completely unaware 
of the company's policies or of their responsibilities under 
federal law.  This argument did not go very far, either.  The court 
said that the company's own argument would enable a reasonable 
factfinder to determine that GEICO had adopted its illegal credit 
screening policy in reckless disregard of whether the policy 
contravened the rights of the applicants.  If so, the plaintiff 
class could recover punitives.
Note the Mathews court's emphasis on how the San Diego office 
acted in practice, even though there was a corporate policy against 
the very thing which the San Diego office was doing.  The regional 
human resources manager who instituted the illegal policy was 
certainly a managing agent whose acts of conscious disregard were 
enough to confer punitive damage liability on the corporation.

Even the United States Supreme Court looks to how an employer 
acts in practice, as opposed to what it says.  In Faragher v. City 
of Boca Raton, 524 U.S. ____, 118 S.Ct. 2275 (1998), plaintiff was 
a female lifeguard employed by the city at a city-run beach. The 
workforce was overwhelmingly male, and according to Ms. Faragher, 
two of her superiors, Terry and Silverman, subjected the few female 
lifeguards to uninvited and offensive touching, lewd remarks, and 
derogatory and offensive anti-women statements.  Although the city 
had adopted a written sexual harassment "policy" and revised it 
during the time that Faragher worked there, no one in city 
management bothered to tell the lifeguards that the policy even 
existed, and so they were unaware of it.  
Faragher sued under Title VII of the 1964 Civil Rights Act. 
 The case was tried to the court, which found that Terry and 
Silverman had created an abusive work environment, but only awarded 
Faragher $1.00 in nominal damages. The trial court also refused to 
find the city liable on the basis of constructive knowledge.
The U.S. Supreme Court ruled that the city was liable 
vicariously for the actions of the two supervisors.  The court 
reversed the judgment, pointing out that Terry and Silverman were 
given virtually unchecked authority over Faragher and the other 
employees.  The wonderful "policy" which read so well on paper had 
no effect on the realities of the workplace.

There is no question that if instead of a municipality, the 
City of Boca Raton was a private company operating in California, 
the actions of Terry and Silverman would subject it to well-
deserved punitive damage liability.  Faragher is a perfect example 
of the difference between a pious pronouncement at the top level 
and the reality of what happens when the rubber hits the road.  By 
giving these two miscreants unchecked authority over the 
subordinate lifeguards, Boca Raton established and perpetuated a 
policy in practice of condoning, permitting and encouraging sexual 
harassment.  
	CONCLUSION
We tell our children that actions speak louder than words.  As 
responsible adults, we can only become role models by our conduct, 
because the children learn what they live, not what they hear.
That is exactly what Egan and the cases which have followed 
the enactment of SB 1989 have told us consistently. The policy of 
the company that matters - as actually set by those managing agents 
with the discretion to do so - is what the company does.  In the 
real world, this is the only policy that counts.  Mr. White's 
verdict should be affirmed.

Respectfully submitted,

  				NORMAN PINE, ESQ.

JOSEPH POSNER, INC.

By__________________________
  				  JOSEPH POSNER, ESQ.
 				  Attorneys for California Employment
  				  Lawyers Association, Amicus Curiae


	TABLE OF CONTENTS

	Page

Table of Authorities	iii

REQUEST BY THE CALIFORNIA EMPLOYMENT LAWYERS
ASSOCIATION (CELA) FOR PERMISSION TO FILE
AMICUS CURIAE BRIEF IN
SUPPORT OF RESPONDENT THOMAS M. WHITE	1

AMICUS CURIAE BRIEF IN
SUPPORT OF RESPONDENT THOMAS M. WHITE	3

INTRODUCTION	3

ARGUMENT	4

1.  THE LEGISLATIVE HISTORY OF S.B. 1989, 
INCLUDING THE LEGISLATURE'S ADOPTION OF 
THE TERM "MANAGING AGENT, RATHER THAN 
THE ORIGINAL PROPOSED TERM "SENIOR EXECUTIVE 
OFFICER," CONFIRMS THAT THE PRINCIPLES 
SET FORTH IN EGAN WERE CODIFIED, NOT REPUDIATED. 	4

A.  Long Before Egan, California Courts 
Had Affirmed Punitive Damage Awards For 
The Actions Taken By Those Employees, 
Regardless Of Their Titles, Who Had  
"Discretionary Powers."	4

B.  Given The Well-Settled State Of 
California Law In 1979, Section 3294(b) 
Cannot Be Viewed As Silently Repealing 
Egan and Agarwal.	7

C.  Ultramar's Interpretation Of 
"Managing Agent" Would Render The 
Ratification Portion Of Section 3294(b) 
Complete Surplusage.	8

D.  Ultramar's "Ordinary Language" And 
"Similar Statute" Analysis Also Contradicts 
Its Interpretation.	9

E.  Ultramar's Analysis Of Legislative 
History Is Filled With Inaccuracies, 
Half-Truths And Logical Lapses.	10


2.  A COMPANY WHOSE MANAGING AGENT 
COMMITS A TORTIOUS ACT OF MALICE OR 
OPPRESSION OR CONSCIOUS DISREGARD IS 
LIABLE FOR PUNITIVE DAMAGES WHERE THAT 
MANAGER'S ACTIONS DETERMINE THE COMPANY'S 
POLICIES IN ACTUAL PRACTICE.	15

CONCLUSION	23

	TABLE OF AUTHORITIES

Case	Page

Agarwal v. Johnson, 	25 Cal. 3d 932 (1979)	4


Bechtel Corp. v. Industrial Accident Comm'n, 	25 Cal. 2d 171,174 (1944)	5


College Hospital Inc. v. Superior Court, 	8 Cal. 4th 704, 712 (1994)	10


Commodore Home Systems, Inc. v. Superior Court, 	32 Cal. 3d 211, 218-219 (1982)	14


Continental Ins. Co. v. Superior Court, 	32 Cal. App. 4th 94, 118 (1995)	10


Egan v. Mutual of Omaha Ins. Co., 	24 Cal. 3d 809 (1979)	4


Faragher v. City of Boca Raton, 	524 U.S. ____, 118 S.Ct. 2275 (1998)	21


Grimshaw v. Ford Motor Co., 	119 Cal. App. 3d 757, 774-777, 813-814 (1981)	16


Kuchta v. Allied Builders Corp., 	21 Cal. App. 3d 541, 549 (1971)	6


Mathews v. Govt. Emp. Ins. Co. (GEICO), 	23 F.Supp. 2d 1169, 99 DJDAR 2519 (S.D. Cal., 9/17/98)	20


Pusateri v. E.F. Hutton & Co., 	180 Cal. App. 3d 247, 252 (1986)	13


Roberts v. Ford Aerospace, 	224 Cal. App. 3d 793 (1990)	17


Siva v. General Tire, 	146 Cal. App. 3d 152, 159 (1983)	19


Stephens v. Caldwell Banker Commercial Group, Inc., 	199 Cal. App. 3d 1394, 1404 (1988)	13


Toole v. Richardson-Merrill, Inc., 	251 Cal. App. 2d  689 (1967)	6


Torres v. Automobile Club of Southern California, 	15 Cal. 4th 771 (1997)	7


Weeks v. Baker & McKenzie, 	63 Cal. App. 4th 1128 (1988)	18






Other Authorities

6 Witkin, Summary of California Law (9th ed. 1988), 	Torts, 1346, p. 808-809	6


BAJI 14.73, 14.73.1, and 14.74	13


Civil Code 3294	4


Rules of Professional Conduct, Rule 2-100	9




Service List:

Dale Larabee, Esq.
1230 Columbia Street, Ste. 910
San Diego, CA 92101

William J. Dritsas, Esq.
David D. Kadue, Esq.
Michael J. Sears, Esq.
Seyfarth Shaw et al.
101 California Street, Ste. 2900
San Francisco, CA 94111-5858

Clerk of the Court
Court of Appeal
Fourth Appellate District
Division One
750 "B" Street, Ste. 300
San Diego, CA 92101

Clerk of the Court (for delivery to 
 Hon. Donald J. Meloche, trial judge)
Superior Court for the County of San Diego
220 W. Broadway
San Diego, CA 92101

Courtesy copies to:

Fred Ashley, Esq.
2201 Dupont Drive
Suite 710
Irvine, CA 92715


Nancy Bornn, Esq.
233 Wilshire Blvd., Ste. 500
Santa Monica, CA 90401


Mary Dryovage, Esq.
1231 Market St.
Penthouse West
San Francisco, CA 94103


Virginia Keeny, Esq.
128 North Fair Oak Ave.
Suite 204
Pasadena, CA 91103


Gary Laturno, Esq.
9255 Towne Center Drive
Suite 520
San Diego, California 92121


Barbara Lawless, Esq.
600 Montgomery Street
33rd Floor
San Francisco, CA 94111


Dolores Leal, Esq.
6300 Wilshire Blvd.
Suite 1500
Los Angeles, CA 90048


Cliff Palefsky, Esq.
535 Pacific Avenue
San Francisco, CA 94133

Steven Pingel, Esq.
3020 Old Ranch Pkwy, Ste. 320
Seal Beach, CA 90740

William Quackenbush, Esq.
1700 So. El Camino, Suite 408
San Mateo, CA 94402

Willie Smith, Esq.
2350 West Shaw Avenue, Ste. 154
Fresno, CA 93711


James P. Stoneman, Esq.
100 W. Foothill Blvd.
Claremont, CA 91711

Christopher Whelan, Esq.
11246 Gold Express Dr., Ste. 100
Gold River, CA 95670

Chris Bello, Esq.
2320 Seventh St.
Berkeley, CA 94710

Teri Chaw
National Employment Lawyers Association
600 Harrison St., #535
San Francisco, CA 94107

   Ultramar implies that this Court's decisions in these two 
cases were really dictated by the "heart-rending tale" and the 
"shocking story" the cases presented factually.  (Open. Br. p. 18.) 
 This suggestion insults the institutional function this Court 
serves and its heavy responsibilities under CRC Rule 29(a).
   In so ruling, this Court relied on Kuchta v. Allied 
Builders Corp., 21 Cal. App. 3d 541, 549 (1971), a case that pre-
dated Egan by eight years and which, in turn, relied on long-
standing California authorities.
  Although the punitive damages were assessed against 
appellant Richardson-Merrill, Inc., the bad conduct was performed 
by one of its divisions, the Wm. S. Merrill, Co. Inc. division.  
(251 Cal. App. 2d at 695.)  This division, in turn, consisted of 
two lesser divisions, one of which was the Biological Science 
Division.  Dr. Van Maanen headed this lesser division.  (Ibid.) 
  Ultramar concedes that avoiding surplusage is important and 
it argues that its  interpretation is necessary in order to make 
sense out of the statutory words "personally guilty."  (Open. Br. 
p. 32.)  Its argument, however, makes no sense.  Whatever 
definition of "managing agent" is adopted, the phrase "personally 
guilty" will remain the same.  The only real question  is what 
level of managerial responsibility the Legislature thought 
appropriate to trigger such "personal guilt" on the corporation. 
Ultramar's surplusage argument adds nothing to that analysis.   
   This legislative compromise underscores how grossly 
misleading is Ultramar's reference to this Court's decision in 
College Hospital Inc. v. Superior Court, 8 Cal. 4th 704, 712 
(1994).  Ultramar notes this Court stated section 3294(b) "limits 
the circumstances" of punitive damages and, from that passing 
aside, Ultramar leaps to the conclusion that the limitation alluded 
to involved  "the number of people whose conduct can be imputed to 
the corporation."  (Open. Br. p. 27.)  Nothing in College Hospital 
remotely supports that leap.  Indeed, this Court expressly declined 
to reach the issue of whether Egan was meant to be undercut .  (8 
Cal. 4th at 723.) 
  References to page numbers in brackets refer to the two 
volume Legislative History submitted by Ultramar.
  In contrast, it is the Maddy-Knox letter that is the proper 
subject of Ultramar's criticism.  Although Ultramar baldly asserts 
that the Maddy-Knox letter "recount[s] legislative discussions", it 
cites no pertinent passage which supports that claim. (Reply Br. p. 
4, fn. 3.)  Indeed, comparison of the Roberti letter with the 
Maddy-Knox letter shows that it is the latter, not the former, 
which contravenes the rule that a letter from an individual 
legislator which merely reflects the personal understanding or 
opinions of the author is not properly considered.
  Moreover, since section 3294(b) was adopted in 1980, Egan 
and Agarwal have been treated by the Court of Appeal as jointly 
defining the meaning of the term "managing agent". (See, e.g., 
Stephens v. Caldwell Banker Commercial Group, Inc., 199 Cal. App. 
3d 1394, 1404 (1988); accord, Pusateri v. E.F. Hutton & Co., 180 
Cal. App. 3d 247, 252 (1986).) 
  This Court has recognized the propriety of considering 
enrolled bill memoranda. (Commodore Home Systems, Inc. v. Superior 
Court, 32 Cal. 3d 211, 218-219 (1982).)