Dumas v. Stocker

• Decision Date: 11 September 1989
• Docket Number: No. D006363,D006363
• Citation: 213 Cal.App.3d 1262,262 Cal.Rptr. 311
• Court: California Court of Appeals Court of Appeals
• Parties: George DUMAS, Plaintiff and Respondent, v. Walter STOCKER, Defendant and Appellant.

Page 311

262 Cal.Rptr. 311

213 Cal.App.3d 1262

George DUMAS, Plaintiff and Respondent, v. Walter STOCKER, Defendant and Appellant.

No. D006363.

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

Sept. 11, 1989.

Certified For Partial Publication ¹

Review Denied Nov. 16, 1989.

Daley & Heft, Dennis W. Daley and Patricia A. Shaffer, Solana Beach, for defendant and appellant

James V. Parziale, San Diego, for plaintiff and respondent.

FROEHLICH, Associate Justice.

Walter Stocker, defendant in a personal injury suit filed by George Dumas, appeals from a judgment, after jury trial, awarding Dumas $47,000 general damages and $141,000 punitive damages.

1. Factual Background

On January 1, 1981, Dumas and a friend, Irvin Moultrie, went to visit a friend living at an apartment building owned by Stocker. While making his way to the friend's apartment, Dumas fell through a hole in the walkway and immediately felt pain. Moultrie and a third person pulled Dumas from the hole, and drove Dumas back to Moultrie's home to pick up Dumas's girlfriend. Dumas's girlfriend drove Dumas to the V.A. hospital, where he was refused treatment; he finally obtained treatment approximately two weeks after the accident.

As evidence of general damages, Dumas introduced an expert physician's testimony. Dumas's physician opined that as a result of the incident Dumas had suffered a musculoligamentous sprain, together with increased scarring of the nerve roots in and around the muscles of the lumbar region, causing him chronic pain. Stocker's medical expert testified that although he noted organic findings of scarring and fibrosis in the spinal canal, these organic findings were consistent with Dumas's prior surgical history (Dumas had numerous back problems prior to this incident). Stocker's expert suggested the pain Dumas claimed to be experiencing was exaggerated and involved a "functional overlay."

In support of his claim for punitive damages, Dumas introduced the testimony of an investigator, who described the condition of the walkway as old and rotten, and stated that the handrails were "loose." Photographs were also introduced to depict the condition of the property. Finally, a tenant in the apartment building testified that despite her numerous requests to Stocker, the hole had remained unrepaired for several months prior to the incident, the handrails were loose and remained unrepaired, there were no light bulbs to illuminate the area, and the building was in a general state of disrepair.

The jury awarded $47,000 in general damages and an additional $141,000 in punitive damages. Stocker's motion for a new trial, based in part on his contention that punitive damages were excessive and the result of passion and prejudice, was denied. Stocker also opposed Dumas's proposed judgment because it included prejudgment interest on the entire award, including the punitive damage component. The court awarded interest on the entire judgment. ²

2. Contentions on Appeal

Stocker raises claims of error as follows: (1) that the court erred in summarily adjudicating that Dumas had fallen into a hole on Stocker's property; (2) that the trial court erroneously prohibited defense testimony concerning "secondary gain syndrome" and Dumas's alleged history of exaggerated claims of injury; and (3) that the trial court's instruction concerning the weight to be given to objective and subjective evidence of the extent of Dumas's injury was erroneous. Stocker argues the cumulative effect of these errors was to deprive him of the ability to establish his defense that both the fact and extent of However, Stocker's final contention that the punitive damage award was excessive and based on passion and prejudice has substantial merit. After discussing the alleged pretrial and trial errors raised by Stocker, we will address Stocker's argument regarding the viability of the punitive damage award.

Dumas's claimed injury were fraudulent. For the reasons discussed below, we cannot sustain these contentions.

3.-5. ^*

6. The Punitive Damage Award Must Be Reversed Because it Is Unsupported by the Evidence and Was Apparently the Product of Passion and Prejudice

The jury awarded $141,000 in punitive damages. In light of the evidence and closing argument, we must reverse the amount of punitive damages and remand for recalculation of the award. ¹⁰

The standards for review of an award of punitive damages are well established. Reversal of an award is appropriate only where the record as a whole, viewed most favorably to the judgment, indicates the award was the result of passion and prejudice. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 927, 148 Cal.Rptr. 389, 582 P.2d 980.) Although a trial court's approval of the punitive damage award (by denial of a motion for new trial) is entitled to significant weight (see Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 937, 119 Cal.Rptr. 82), deference is not abdication. It is the duty and responsibility of an appellate court to intervene where the award is so grossly disproportionate or palpably excessive as to raise a presumption that it was the product of passion and prejudice. (Rosener v. Sears, Roebuck & Co. (1980) 110 Cal.App.3d 740, 749-750, 168 Cal.Rptr. 237, citing numerous cases.) We are also guided by the recognition that punitive damages constitute a windfall, create the anomaly of excessive compensation, and are therefore not favored in the law. (Id. at p. 750, 168 Cal.Rptr. 237.) ¹¹

A. Plaintiff's Failure to Introduce Evidence of Defendant's Wealth Renders the Punitive Damage Award Reversible As Unsupported by the Evidence

An important consideration in assessing punitive damages is the net worth of the defendant. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 390, 202 Cal.Rptr. 204.) The award must bear some reasonable relationship to the net worth of the defendant, and where the award is grossly disproportionate to the defendant's wealth, a presumption arises that it was the result of passion and prejudice. (Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 469, 136 Cal.Rptr. 653, citing numerous cases.)

Here, there was no evidence of Stocker's net worth. The only evidence introduced was (1) that Stocker purchased the subject property for between $50,000 and $125,000, and sold it for $153,000; (2) that in 1981 Stocker owned between two and fifteen apartment buildings (no evidence of his equity interest in the properties, or how many buildings he owned at the time of trial, if any, was introduced); and (3) that he filed numerous fictitious business name statements (again, no evidence of his income or equity interest, if any, in these businesses was introduced). There was no evidence of Stocker's net worth at the time of trial (see Zhadan v. Downtown Los Angeles Motor Distributors, Inc. (1979) 100 Cal.App.3d 821, 839, 161 Cal.Rptr. 225 [net worth at time of trial is proper measure] ), nor did Dumas make any effort to obtain such evidence from Stocker, despite the statutory mechanism designed precisely to allow for discovery and production of such information for use at trial. (Civ.Code, § 3295, subd. (c).)

We conclude that the absence of any evidence of Stocker's net worth renders the amount of the award unsupported by the evidence. Several courts have reversed the amount of a punitive damage award, and remanded the issue for reconsideration after evidentiary hearings on net worth, where the plaintiff failed to introduce evidence of net worth of the defendant. (See Alhino v. Starr (1980) 112 Cal.App.3d 158, 179, 169 Cal.Rptr. 136 [judgment reversed for insufficiency of new trial order; court, noting need to ensure any new amount is not the result of passion and prejudice, instructed trial court to redetermine punitive damage award and to take evidence on net worth, if necessary]; see also Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 302, 232 Cal.Rptr. 758 [default judgment awarding punitive damages reversed as to amount because of absence of evidence of defendant's net worth]; see also Forte v. Nolfi (1972) 25 Cal.App.3d 656, 689, 102 Cal.Rptr. 455 [punitive damage award reversed as potentially excessive because the amount was awarded "... without taking any evidence of the resources of the alleged wrongdoers which it sought to punish," and hence lacked evidentiary support].) These cases are directly applicable. Plaintiff made no effort to introduce evidence of defendant's wealth, and instead relied on innuendo and improper argument ¹² to garner the award. In the absence of evidence of Stocker's wealth, we cannot determine, one way or the other, whether the award is reasonable in light of his resources, and reversal is appropriate. (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 866-869, 237 Cal.Rptr. 282 [court award reversed as excessive, noting no reported cases had ever approved six-figure punitive damage award against an individual defendant, and that award amounted to 200 percent of net worth of the individual according to only evidence of net worth introduced at trial].)

Dumas argues that plaintiff is entitled to an award of punitive damages even without any evidence of net worth, and that the obligation to introduce evidence of wealth is on the defendant. Reliance for this proposition is placed on a line of cases culminating in Vossler v. Richards Manufacturing Co. (1983) 143 Cal.App.3d 952, 192 Cal.Rptr. 219. We decline to adopt the Vossler line of authority, and instead adhere to the Alhino approach for several reasons. In concluding plaintiff need not introduce evidence of wealth (id. at p. 965, 192 Cal.Rptr. 219), Vossler relied on a number of cases, all of which were based on the decision in Hanley v. Lund (1963) 218 Cal.App.2d 633, 32 Cal.Rptr. 733. ¹³ Hanley, however Additionally, we believe the Vossler/ Hanley rule is inconsistent with the dictates of numerous cases which admonish that an award of punitive damages, to serve...