Morgan v. Davidson

• Decision Date: 27 November 2018
• Docket Number: E068344
• Citation: 240 Cal.Rptr.3d 235,29 Cal.App.5th 540
• Court: California Court of Appeals Court of Appeals
• Parties: David MORGAN, Plaintiff, Cross-Defendant and Respondent, v. Claudia DAVIDSON, Defendant, Cross-Complainant and Appellant.

29 Cal.App.5th 540

240 Cal.Rptr.3d 235

David MORGAN, Plaintiff, Cross-Defendant and Respondent,

v.Claudia DAVIDSON, Defendant, Cross-Complainant and Appellant.

E068344

Court of Appeal, Fourth District, Division 2, California.

Filed November 27, 2018

James S. Link, Pasadena, for Defendant, Cross-complainant and Appellant.

Arias & Lockwood and Christopher D. Lockwood, San Bernadino, for Plaintiff, Cross-defendant and Respondent.

OPINION

MILLER J.

Plaintiff, cross-defendant and respondent David Morgan sued Daniel Pena and defendant, cross-complainant and appellant Claudia Davidson for battery. Davidson filed a cross-complaint against Morgan, alleging (1) assault, (2) battery, (3) conversion, and (4) invasion of privacy. The trial court found in favor of Morgan and awarded him $209,000. Davidson raises three issues on appeal. First, Davidson contends substantial evidence does not support the $100,000 punitive damages award. Second, Davidson contends the trial court erred by not permitting her to use a deposition transcript when attempting to impeach Morgan during cross-examination. Third, Davidson asserts the trial court erred by not applying the continuing violation doctrine to extend the statute of limitations for the invasion of privacy cause of action. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Morgan and Davidson were next-door neighbors in the Mockingbird Canyon area of Riverside. Lynda Delgado was Morgan’s next-door neighbor, on the other side of Morgan’s house. Thus, Morgan lived between Davidson and Delgado. There was a fire access road between Morgan’s house and Delgado’s house. Prior to May 10, 2011, Delgado had seen Davidson’s dogs on the access road, attempting to go under Morgan’s fence to enter Morgan’s property. Delgado had also seen Davidson’s dogs viciously bark at Morgan’s alpacas. One of Davidson’s dogs was a white, unneutered male pitbull, named Cotton. The other dog was a German Short Haired Pointer, named Coco.

On May 10, 2011, at approximately 5:45 p.m., Delgado was at Morgan’s house assisting with the care of Morgan’s horses and alpacas. Coco and Cotton ran through a gate onto Morgan’s property. Delgado "heard really loud barking and just really scary sounding growling and barking." The dogs were barking at the alpacas. Delgado then heard the alpacas’ stress cry. Delgado moved from the horse pen toward the alpacas. Morgan took a dog leash from the garage area and placed the leash around Cotton’s neck. Morgan walked over to the gate by his driveway, in order to close it. Morgan’s girlfriend was near a woodpile trying to capture Coco.

Davidson’s son (Son), who was 14 years old, walked up Davidson’s driveway and said, " ‘I want my dog. I want my dog.’ " Son was referring to Cotton. Pena and Davidson followed behind Son. Pena was Davidson’s daughter’s boyfriend. Morgan said he was keeping Cotton and would call animal control to have them impound the dog. Morgan wanted Cotton impounded because the dog had previously attacked Morgan’s animals, and animal control advised Morgan to hold the dog so they could impound it in the future. Morgan refused to release Cotton to Davidson. Morgan repeatedly told Son, Pena, and Davidson to leave his property because they were trespassing. Davidson said, " ‘I want my F’ing dog, give me my dog.’ "

Pena opened the gate. Pena punched Morgan’s face. Morgan fell to the ground, on his knees. Morgan did not strike anyone. Pena and Davidson continued striking Morgan, approximately five to 10 times each. When Morgan was bent forward on the ground, Davidson kicked Morgan’s ribs, while Pena kicked Morgan’s head and upper torso. Morgan screamed.

Davidson and Pena yelled profanities. Son remained on the other side of the gate, watching the beating. Davidson, Pena, and Son left with Cotton. Morgan laid on the ground moaning in pain. Within an hour, sheriff’s deputies arrived at Morgan’s house.

Morgan went to the hospital emergency room. Morgan suffered welts and bruises on his head

, a cracked tooth, painful bruising around his eye, an abrasion on his left shoulder, and an abrasion on his left knee. Morgan’s eye was swollen shut for approximately 10 days, and there was a large amount of blood in his eye. The damage to Morgan’s eye caused him to experience blurry vision and "floaters." Morgan continued to experience blurry vision and floaters at the time of trial. He suffered headaches if he read anything lengthy.

The trial court awarded Morgan $9,000 in special damages and $100,000 in general damages. The trial court found Davidson and Pena acted with malice and oppression. The court awarded Morgan $100,000 in punitive damages.

DISCUSSION

A. PUNITIVE DAMAGES

1. SUBSTANTIAL EVIDENCE

Davidson contends there is not substantial evidence that she acted with malice or oppression.

" ‘ "[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor.’ " ( SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462, 17 Cal.Rptr.3d 96.)

Punitive damages may be awarded when a defendant has acted with malice, fraud, or oppression. ( Civ. Code, § 3294, subd. (a).) " ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Id . at subd. (c)(1).) " ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights." (Id. at subd. (c)(2).)

Pena punched Morgan’s face. Morgan fell to the ground, on his knees. Morgan did not strike anyone. Pena and Davidson struck Morgan, approximately five to 10 times each. When Morgan was bent forward on the ground, Davidson kicked Morgan’s ribs. Morgan screamed. Davidson yelled profanities.

Morgan suffered welts and bruises on his head

, a cracked tooth, painful bruising around his eye, an abrasion on his left shoulder, and an abrasion on his left knee. Morgan’s eye was swollen shut for approximately 10 days, and there was a large amount of blood in the eye. The damage to Morgan’s eye caused him to experience blurry vision and floaters, which he continued to suffer at the time of trial.

Because Davidson punched and repeatedly kicked Morgan, a trier of fact could reasonably conclude she acted intentionally, i.e., it was not an accident that she struck Morgan because she struck him multiple times. Further, the evidence that Davidson struck Morgan multiple times reflects that she intended to cause an injury because repeatedly striking a person indicates a desire to cause to harm. Accordingly, substantial evidence supports a finding that Davidson acted with malice because she struck Morgan with the intention of causing Morgan to suffer an injury.

Davidson contends it was Pena who struck Morgan—not Davidson. We must view the evidence in the light most favorable to Morgan. ( Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 510, 208 Cal.Rptr.3d 655.) The record reflects the following:

Morgan: "They both hit me in the head."

Morgan: "I fell on my knees

"The Court: And what happened?

"[Morgan]: They continued to hit me probably 15 to 20 times.

"The Court: Who are ‘they?’

"[Morgan]: Daniel Pena and Claudia Davidson.

"The Court: Do you know it was both of them?

"[Morgan]: Yes, I do.

"The Court: How do you know it was both of them?

"[Morgan]: I observed this.

"The Court: What was that?

"[Morgan]: I said I observed the—myself being struck repeatedly and being kicked.

"The Court: Where were they standing?

"[Morgan]: Directly in front of me.

"The Court: And what were they using?

"[Morgan]: Their fist and their feet."

Pena and Davidson continued striking Morgan, approximately five to 10 times each. When Morgan was bent forward on the ground, Davidson kicked Morgan’s ribs, while Pena kicked Morgan’s head and upper torso. Because the record reflects that Davidson struck Morgan, and the testimony is reasonable, we cannot conclude that only Pena struck Morgan. (See City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 466, 215 Cal.Rptr.3d 351 [we must view the evidence in the light most favorable to the trial court’s finding].)

Davidson asserts she was wearing slippers while kicking Morgan and therefore could not have injured Morgan. Malice requires an intent to injure, not actual injury. ( Civ. Code, § 3294, subd. (c)(1).) The record reflects Davidson punched Morgan, in addition to kicking him. It can reasonably be inferred that Davidson punched Morgan and repeatedly kicked Morgan because Davidson intended to inflict an injury upon Morgan. (See City of Crescent City v. Reddy, supra, 9 Cal.App.5th at p. 466, 215 Cal.Rptr.3d 351 [we must view the evidence in the light most favorable to the trial court’s finding].) Therefore, we conclude there is substantial evidence of malice.

Davidson contends that because there is evidence contradicting Morgan’s version of the events, a finding of malice is not supported by "[s]ubstantial evidence of clear and convincing evidence." In the trial court, the standard of proof for the punitive damages claim was clear and convincing evidence. ( Civ. Code, § 3294, subd. (a).) "It is the law that whether evidence meets the ‘clear and convincing’ test is exclusively a matter for the determination of the trier of fact. Since the trial court, upon conflicting evidence, made such a determination the question is now closed on appellate review." ( Wurche v. Stenzel (1969) 270 Cal.App.2d 499, 505, 75 Cal.Rptr. 856 ; see also Crail v. Blakely (1973) 8 Cal.3d 744, 750, 106 Cal.Rptr. 187, 505 P.2d 1027.)

In other words, "on appeal from a judgment required to be based upon clear and convincing evidence, ‘the clear and...