Opinion
H035925
09-23-2011
JOSEPHINE MADRIZ, Plaintiff, Cross-Defendant and Respondent, v. JOSE OCHOA, Defendant, Cross-Complainant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 1-08-CV-120445 consolidated with 1-08-CV-125908)
After a court trial, plaintiff Josephine Madriz was awarded compensatory and punitive damages in her action for battery against her husband, Jose Ochoa, arising from two incidents in which he injured her. Defendant appeals, contending that the court's statement of decision was deficient and that the evidence did not support the finding that he caused plaintiff's injuries on the first occasion. He further contends that the court erred in awarding plaintiff punitive damages because the evidence was legally and factually insufficient to show both the element of malice and defendant's ability to pay the amounts awarded. We find no error and will affirm the judgment.
Background
Defendant's representation of the facts underlying the judgment is efficient but unorthodox. He claims to be challenging only the legal sufficiency of the facts to support the judgment; yet his brief is replete with assertions that the evidence presented at trial was insufficient to support the trial court's factual findings as well as its legal conclusions. Even so, he believes that "it is appropriate to adopt the trial court's Statement of Decision as Appellant's Statement of Facts." We treat this as a concession to the accuracy of the trial court's express factual findings and a waiver of any contradictory representations of the events that occurred.
Plaintiff criticizes defendant for the deficiencies in his opening brief—specifically, defendant's failure to set forth all of the material facts in the record. In response, defendant points out that plaintiff herself has failed to provide adequate citations to the record. We will disregard all factual assertions that do not comply with California Rules of Court, rule 8.204, whether made by plaintiff or defendant.
By the same token, there is no reason to join defendant in confining our summary of the facts to the statement of decision, which had to state ultimate facts, not all of the evidence on which the court's decision was based. (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1379-1380; Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 500.) Accordingly, we will not limit our review to the facts recited by the trial court in its statement of decision, but will examine the entire record and apply the substantial evidence rule where it is apparent that defendant is urging us to reject the trial court's findings of fact. That undertaking requires us to "accept as true all evidence tending to establish the correctness of the findings of the trial court, resolve all conflicts in the evidence in favor of the prevailing party, and indulge all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 49-50.)
According to plaintiff's trial testimony, defendant had started becoming verbally abusive toward her in March 2005, about a year after their marriage, and began acting violently toward her in January of 2006. Defendant filed for dissolution of the marriage in September of 2006, but they still lived together at the time of these events.
Plaintiff's lawsuit was based on two events occurring late that year. On September 2 plaintiff and defendant were on their way to a party and then to Las Vegas for the weekend. In the backseat of the car was plaintiff's daughter, C., who was 14 at the time. On the way to drop C. at her grandmother's house, they stopped at a Starbucks. Plaintiff offered to bring something from Starbucks for C., who did not want to leave the car because she was in pajamas. Defendant, however, was adamant that C. have nothing if she was unwilling to go inside herself. Plaintiff bought a drink for C., but defendant grabbed it and threw it away. The two began arguing and drove back to their house. Plaintiff and defendant were outside the car when defendant threw his coffee at her, causing her to be "filled with coffee." C. jumped out of the car and began screaming for defendant to stop, while defendant told both her and plaintiff to shut up. At one point defendant "came charging . . . at [C.]," and plaintiff got between them, telling him to stop. Defendant then grabbed plaintiff's hands, pushed her down, and twisted her fingers. The police arrived shortly after that.
Plaintiff testified that as a result of this altercation she suffered a broken left middle finger and a ring finger on her right hand that was broken or sprained. She had "pins" inserted in her left middle finger to straighten it out, but she declined treatment of the right hand because she needed to use that hand. As a result, she had a crooked right ring finger. She did not tell either the police or the doctors what defendant had done because he told her not to; he said nobody would believe her, and he would throw C. out of the house. Instead, he told her to say that she hurt herself on some luggage.
Plaintiff produced billing records for the medical treatment she received for her injuries on that occasion, and she estimated the number of work hours she missed for surgery and doctor's visits.
The second occasion occurred on December 14, 2006. Plaintiff's office was having a Christmas party at a local restaurant. Throughout the evening, defendant, who had arrived having already consumed alcohol, "kept ordering double vodkas." By the time they returned to the car after dinner, defendant was drunk and had threatened plaintiff in front of the other dinner guests. Plaintiff's sister-in-law helped defendant into the front passenger seat of the car, joined by C., who had been spending the evening with her cousin. Defendant wanted to go to his own car, but plaintiff told him he couldn't drive and that they could pick it up the next day. During the drive home defendant was swearing, screaming at plaintiff and calling her names, spitting on the floor, and banging on the dashboard and console. Plaintiff told him to stop; but defendant pulled at the steering wheel and tried to hit her. The car was swerving all over the freeway, so plaintiff took the next exit and pulled over.
Eventually, they reached their home, and plaintiff told C. to run upstairs and hide in her room. Defendant tried to block plaintiff's entrance, and when she was able to get inside and run to the bedroom, he chased her. Defendant kicked the bedroom door open, pushed her onto the bed, and began punching her with his fists. He told plaintiff that "he was gonna fuck [her] up" and ruin her nose. Plaintiff sustained bruises all over her body, her arms, and her legs. She had a black eye, a cut lip, and a sore face. She did not think it necessary to obtain medical treatment, however, because she did not have anything broken. The next day plaintiff's brother came over, and when he saw her he called the police. Criminal proceedings were initiated, resulting in a protective order. Plaintiff moved out of the house shortly after the December 14 incident.
C. was 17 at the time of trial in December 2009. She testified about what she had seen on both occasions. She confirmed plaintiff's description of the events of September 2, 2006, when her mother and defendant drove to Starbucks. She was in the backseat, still in her pajamas, as it was early in the morning and she was going to be dropped off at her grandmother's. Defendant was angry that C. did not want to get out of the car, and her mother and defendant began arguing. When C. saw defendant throw the coffee at plaintiff, she was "frantic" and "really scared," and she asked some neighbors to call the police. She held the phone up as if to take a picture and get defendant to stop; he then started "coming after" her, until plaintiff stood between them and told defendant to stop. It was then that defendant grabbed plaintiff's hands and "twisted her down toward the ground." The police showed up after that and let defendant go, and plaintiff drove C. to her grandmother's house.
During her mother's company Christmas party on December 14, C. and her cousin went to a movie and walked around the mall where the restaurant was. When she returned to the restaurant afterward, she left with her mother and defendant. Defendant appeared to be drunk; he left his car behind, and plaintiff drove. Defendant was yelling profanities, banging on the middle console, and grabbing and punching plaintiff's arm, making the car swerve, especially when she tried to block him. When they reached home, C. was told to go upstairs and hide in her room. She called her aunt, Melinda Madriz, to come over and help her mother, as she continued to hear arguing and "loud bangs" downstairs. The next morning she saw bruises on her mother's face and a swollen lip.
Melinda Madriz, plaintiff's sister-in-law, was at plaintiff's office party that night. She testified that afterward plaintiff herself was slurring and "in no condition to drive," but she did not see who actually drove home. Later, after C. summoned her to their home, Melinda Madriz saw plants and dirt all over the floor, evidencing "some kind of scuffle." She went upstairs to check on plaintiff, who was crying but as yet had no bruises. Plaintiff insisted that she was all right and refused to leave the house that night.
Plaintiff brought this action on August 19, 2008, alleging battery, assault, intentional infliction of emotional distress, negligence, and domestic violence, and requesting both compensatory and punitive damages. Defendant answered and filed his own complaint against plaintiff arising out of events occurring between October and December 2006. The two complaints were consolidated and tried together in December 2009. After defendant requested a statement of decision, the court's judgment was vacated to allow defendant to file a proposed statement of decision, and he was given until April 8, 2010 to do so.
The court thereafter rejected defendant's account of the facts and conclusions in his proposed statement and issued its statement of decision along with the final judgment on May 14, 2010. In the judgment the court awarded plaintiff $7,237 for her medical expenses and wage loss, $10,000 for her pain and suffering, and $20,000 in punitive damages, all arising out of the September 2, 2006 battery. Addressing the December 14, 2006 battery, the court awarded plaintiff $1,200 for her wage loss, $3,800 for her pain and suffering, and $10,000 in punitive damages. At the same time, the court found that defendant had failed to prove any of the allegations in his own complaint. Defendant does not challenge this last finding on appeal, and it will not be discussed further.
Discussion
1. Statement of Decision
We first address the last issue raised by defendant, whether the trial court adequately addressed the issues raised in defendant's request for a statement of decision. Under Code of Civil Procedure section 632, upon a party's request after trial, the court must issue a statement of decision "explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial." If the statement of decision does not resolve a controverted issue or is ambiguous, and the omission or ambiguity was brought to the attention of the trial court, "it shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing party as to those facts or on that issue." (Code Civ. Proc. § 634.)
Defendant acknowledges but questions the prevailing rule that "[t]he trial court is not required to respond point by point to the issues posed in a request for statement of decision. The court's statement of decision is sufficient if it fairly discloses the court's determination as to the ultimate facts and material issues in the case." (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1379-1380; accord, Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 500.) "When this rule is applied, the term 'ultimate fact' generally refers to a core fact, such as an essential element of a claim." (Central Valley General Hosp. v. Smith (2008) 162 Cal.App.4th 501, 513.) "Ultimate facts are distinguished from evidentiary facts and from legal conclusions." (Ibid.)
Applying this rule, the trial court recognized that it was not required to make findings with regard to "detailed evidentiary facts or to make minute findings as to individual items of evidence. Only where a trial court fails to make findings as to a material issue which would fairly disclose the determination by the trial court would reversible error result." (Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1525.) In addition, even if the court fails to articulate such a finding, "if the judgment is otherwise supported, the omission is harmless error unless the evidence is sufficient to sustain a finding in favor of the complaining party which would have the effect of countervailing or destroying other findings." (Ibid.; accord, Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 67-68.)
Defendant goes to great lengths to explain how "elusive" he finds the "distinction between evidentiary facts, ultimate facts, and conclusions of law," and he complains that here the court's statement of decision is either silent or ambiguous in several respects. He specifically points to "a complete failure to find on the controverted issue of how could plaintiff 'succeed' in keeping her injuries (both hands) a secret from so many people." He also questions the factual basis for the court's findings regarding his net worth and his ownership of real property, facts material to the court's award of punitive damages. Both of these issues, along with others, were raised in defendant's request for a statement of decision. Defendant asserts that the court's response to his request was to "sluff it off generally, by invoking the 'ultimate facts rule' " with no "genuine effort to 'explain the factual and legal basis for its decision as to each of the principal controverted issues.' "
We find the court's statement of decision to conform to Code of Civil Procedure section 632 and settled judicial explanations of that provision. The court articulated its finding that plaintiff's fingers were injured when defendant intentionally and maliciously twisted them and caused her to fall. How plaintiff was able to conceal her injury and thus avoid exposing defendant's conduct is not material to the ultimate issues of whether defendant intended to harm her and did so with malice. As to causation, the court made it clear that it believed plaintiff and C.'s account of the injury to plaintiff's fingers. Likewise, the court explained its conclusion that defendant had the ability to pay the punitive damages award: he earned more than $100,000 per year and he owned three properties, one of which in 2006 was worth more than $700,000 in equity. This explanation was sufficient, as it fairly disclosed the court's determination as to the ultimate facts bearing on defendant's ability to pay punitive damages, a material issue in the case. (Cf. Golden Eagle Ins. Co. v. Foremost Ins. Co., supra, 20 Cal.App.4th at p. 1380.) Whether the court's findings are supported by substantial evidence in the record is another question, which we address below.
2. Sufficiency of the Evidence
a. Cause of September Injury
As noted earlier, defendant adopted as his statement of facts the trial court's summary of the events of September and December 2006. He nevertheless contends that those facts do not constitute substantial evidence that he inflicted injury to plaintiff's fingers in the September 2, 2006 incident. The specific issue, which he complains was not addressed in the court's statement of decision, was whether plaintiff was capable of hiding her pain and disfigurement from people in the days after the injury. Even if an implied finding regarding this capability can be made, defendant argues, "our trier of fact is running quite wild." Instead, defendant urges this court to reject plaintiff's testimony as inherently improbable.
Defendant's attempt to bypass the evidence falls far short of the mark. Not only did plaintiff testify about her experience of the injury, but C. described what she saw that morning, which was entirely consistent with plaintiff's account. Plaintiff also had medical records to back up her claim, including those following surgery to implant pins in the finger that was broken, and she showed the trial judge the crooked finger on her right hand, which had not been treated. There is no basis for concluding that plaintiff herself was not credible regarding the circumstances of her injury or the pain she sustained as a consequence.
Defendant cannot successfully attack the element of causation by focusing on the minor details of how plaintiff was able to hide her pain and what time and place the injuries occurred. He does not specifically argue that there was insufficient evidence that he was the one who inflicted those injuries. There can be no question that he did. The court believed plaintiff's testimony that she did not tell anyone that plaintiff was the one who had hurt her because defendant had threatened that if she told anyone, he would tell C.'s father that C. could no longer live with plaintiff and defendant. There is no basis in this record for rejecting any of the factual findings pertaining to the battery defendant perpetrated on September 2, 2006.
The trial court rejected any suggestion that plaintiff injured her hands while gathering her luggage at the airport. The court also found no self defense on this occasion, but defendant had not made the assertion of self-defense in connection with the injuries to plaintiff's hands. He did claim self-defense as to the December injuries to plaintiff's face. As to the September incident, however, defendant merely claimed that he did not throw coffee at plaintiff or twist her fingers.
b. Punitive Damages
Civil Code section 3294, subdivision (a), provides: "In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant." In this case, the court, as trier of fact, found that on both occasions defendant had injured plaintiff with malice and therefore was liable for punitive damages. Defendant disputes both the finding of malice in the September incident and the evidence of his ability to pay the two punitive awards to plaintiff.
"Malice" is defined in subdivision (c)(1) of Civil Code section 3294 as conduct that 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." Defendant contends that the evidence presented here was insufficient because it did not show that he intended to cause the "specific injury that did occur"—namely, "a broken bone type injury."
Defendant's position is unsupported by any of the authority he cites. Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415 discussed the intent required for invasion of privacy; the court in that case did not define malice, nor did it even define intent in the way defendant now suggests. On the contrary, the Marich court referred to jury instructions which allowed juries to find the requisite intent if the defendant was " 'substantially certain' " that a battery would result from his or her conduct. (Id. at p. 421, fn. 3.) Gomez v. Acquistapace (1996) 50 Cal.App.4th 740 merely noted the general rule regarding willful conduct. Neither case had anything to do with malice. Indeed, the standard defendant invokes from People v. Colantuono (1994) 7 Cal.4th 206, is completely contrary to defendant's position. The Supreme Court in that case, while explaining the intent required for assault ("an incipient or inchoate battery") (id. at p. 216), stated: "[I]t is clear that the question of intent for assault is determined by the character of the defendant's willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed. Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault . . . . '. . . The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.' [Citation.] The pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm. . . . Because the nature of the assaultive conduct itself contemplates physical force or 'injury,' a general intent to attempt to commit the violence is sufficient to establish the crime." (Id. at pp. 217-218.)
Thus, whether defendant intended specifically to break the bones in plaintiff's fingers or only generally to hurt her is immaterial. The fact is that he intentionally grabbed and twisted them, forcing her to the ground in pain, breaking one of the fingers in her left hand and causing permanent disfigurement in the right. The court did not err by finding malice in these circumstances.
As to the evidence of defendant's ability to pay the punitive damages awards, defendant contends that the evidence presented at trial was "stale" and therefore insufficient to show that he had the ability to pay $20,000 in punitive damages. That evidence, he adds, was derived from the file in the parties' dissolution action, of which the court improperly took judicial notice.
Defendant correctly observes that evidence of his financial condition was a prerequisite for an award of punitive damages. (Green v. Laibco, LLC (2011) 192 Cal.App.4th 441, 452; see also Adams v. Murakami (1991) 54 Cal.3d 105, 108-109 [record must contain meaningful evidence of the defendant's financial condition].) In order to demonstrate ability to pay a punitive damages award, "there should be some evidence of the defendant's actual wealth. Normally, evidence of liabilities should accompany evidence of assets, and evidence of expenses should accompany evidence of income." (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 680.) A punitive damages award is based on the defendant's financial condition at the time of trial, and it is the plaintiff's burden to make this showing. (Kelly v. Haag (2006) 145 Cal.App.4th 910, 915.)
On appeal, "punitive damages awards are reviewed under the substantial evidence standard of review 'in which all presumptions favor the trial court's findings and we view the record in the light most favorable to the judgment.' [Citation.] We are also 'guided by the "historically honored standard of reversing as excessive only those judgments which the entire record, when viewed most favorably to the judgment, indicates were rendered as the result of passion and prejudice . . . ." [Citation.]' (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 927 . . . .) Stated differently, '[a]n appellate court may reverse an award of punitive damages only if the award appears excessive as a matter of law or is so grossly disproportionate to the ability to pay as to raise a presumption that it was the result of passion or prejudice.' (Zaxis Wireless Communications, Inc. v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 583 . . . , citing Neal v. Farmers Ins. Exchange, supra, [21 Cal.3d] at p. 928 . . . .)" (Behr v. Redmond (2011) 193 Cal.App.4th 517, 535.)
In light of these principles, we must uphold the awards. The evidence of plaintiff's ability to pay was not limited to the family law file, but included current assets and income. At trial plaintiff's counsel called defendant to testify about his financial circumstances, including his real estate holdings, securities and other assets, and employment compensation. Defendant said he was a partial owner of STI Electronics, for which he worked, along with about five other stockholders. The court admitted the parties' 2006 family law file, including the marital settlement agreement. That exhibit showed bank accounts and insurance policies which were defendant's separate property, and a loan to his employer worth $126,000. He was asked about real property he held in Morgan Hill, and he confirmed both the value and the $139,000 encumbrance on that property at that time. He updated this information by explaining that there was another $230,000 loan he had taken out on that property during the parties' marriage. In May 2005 the property was worth $800,000 or $899,000, depending on the source of the information. Another property, of which he owned 70 percent during the marriage, he currently owned entirely, having bought plaintiff out during the settlement. That property was worth $280,000 in 2006 with an encumbrance of $213,000; but defendant pointed out that the housing market had declined since then. The third property was located in Mexico; he currently owned 30 percent of that; but, he said, "with today's values it would be lucky [sic] if it's worth what I even owe on it," which was $200,000.
Although the values and liabilities attached to these assets were not clearly identified consistently with Baxter v. Peterson, supra, 150 Cal.App.4th at page 680, plaintiff also adduced evidence of defendant's income. Defendant acknowledged that he was currently paid $10,000 a month, as he had in 2006, not including bonuses or commissions. As of June 2006 his paycheck reflected a "year to date" income of $297,000. In 2005 his W-2 showed $295,000, and in 2004 he made over $1 million. He maintained, however, that "the market has crashed and the economy is in the gutter . . . [s]o the number is a total difference today."
Cross-examining himself, defendant pointed out that the evidence plaintiff had produced was during the "great years for everybody, with "skyrocketing" home values. By this time, he was "under water" with two of his homes and only breaking even in the Morgan Hill home. The value of that home, he believed, was only $150,000, while he owed $210,000. Although his $10,000 monthly salary was approximately correct, his business was "clinging on [sic] to stay alive." He thought he would be "lucky" to make "maybe 110 thousand this year," and his bills were exceeding all of his payments; he anticipated that he would have to give up at least two of his homes. His savings were "keeping [him] alive at this point."
Defendant was representing himself at this time. His counsel had not yet substituted in, but did so shortly thereafter and was permitted to examine the next witness, plaintiff's daughter C.
Plaintiff makes the useless point that defendant "failed to produce any evidence" to support his speculation regarding the fair market value of his properties or his liabilities and ownership interest in them. It was not defendant's burden to produce such evidence.
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On redirect, however, plaintiff's counsel presented bank statements from January of 2009, the current year, showing nearly $26,000 in assets, a deposit of $29,000, and available credit of $221,296. Counsel also adduced a separate savings account statement showing more than $19,000 in assets and available credit of $231,296. In February of that year defendant deposited close to $19,666 in that account. At the end of March the statement showed a deposit of $83,557.85, and a separate deposit of $50,000. Another savings account reflected a deposit of $359,521 for January of 2009. Defendant's explanation was that he "had to pay some bills," and he pointed out to the court the substantial withdrawals he had made for those months.
"[O]bviously, the function of deterrence . . . will not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort. [Citations.] By the same token, of course, the function of punitive damages is not served by an award which, in light of the defendant's wealth . . . exceeds the level necessary to properly punish and deter."(Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d at p. 928, fn. 13; see also Kelly v. Haag, supra, 145 Cal.App.4th at p. 915.) Without "meaningful" evidence of the defendant's financial condition, "a reviewing court can only speculate as to whether the award is appropriate or excessive." (Adams v. Murakami, supra, 54 Cal.3d at p. 112; see also Baxter v. Peterson (2007) 150 Cal.App.4th 673, 681 [insufficient evidence of liabilities in addition to assets].)
Taking into account these settled standards for evaluating punitive damages awards, we conclude that the amounts awarded in this case are supported by sufficient evidence and were not excessive. In setting punitive damages, the trial court assumed earnings of "over $100,000 per year" and recognized his status as a partner in the company. Even if defendant's assets in real property are ignored, the trial court's finding on income alone is supported by the testimony and documentary evidence presented at trial. The amounts awarded by the court-- $20,000 attributable to the September battery and $10,000 for the December beating—were justified when considered in light of the substantial harm plaintiff suffered as a consequence of defendant's conduct. Defendant does not take issue with the ratio of punitive damages to compensatory damages; such a challenge would be futile, since the punitive damages amounted to just under three to one for the first incident and just over one to one for the second, even without taking into account plaintiff's damages for pain and suffering. (See Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1182-1183 [ratios far exceeding single digit require extraordinary circumstances to be reconciled with due process; see also Deevy v. Tassi (1942) 21 Cal.2d 109, 120 [pain and suffering are components of compensatory damages] and Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1060 [noting that punitive damages are "dissimilar to pain and suffering and other compensatory damages"]; cf Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1563 [3.8-to-1 ratio consistent with due process for egregious conduct that put plaintiff out of business].) No error occurred in awarding punitive damages in the circumstances presented here.
Disposition
The judgment is affirmed.
ELIA, J. WE CONCUR: RUSHING, P. J. PREMO, J.