Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC 361279 Maureen Duffy-Lewis, Judge. Affirmed.
Magaña, Cathcart & McCarthy, Anne M. Huarte and Clay Robbins III for Plaintiff and Appellant.
Shoecraft Burton, Robert D. Shoecraft and Michelle L. Burton for Defendant and Respondent.
FLIER, J.
Appellant Christopher Martin, who had a homeowner’s insurance policy with respondent Pacific Specialty Insurance Company, brutally assaulted Ricardo Zenon Gutierrez, who recovered an award of $176,667.71 after a bench trial. Respondent declined to defend Martin on the ground that the policy excluded coverage for personal injury that was caused by an intentional act or acts. Martin filed an action for breach of contract and bad faith against respondent, who moved for summary judgment. The motion was granted, judgment for respondent was entered and this appeal ensued. We affirm.
FACTS
A burglary of Martin’s home in April 2005 resulted in the theft of a computer, laptop, camera and bicycle. About a week later, in early May 2005, Martin, while walking on the street, saw three men and a boy riding bicycles. Martin thought that he recognized one of the bikes as his. Martin grabbed the bike and told the man riding the bike that he was going to call the police. The man dropped the bike and ran; Martin pursued him but could not catch him.
Returning to the scene, Martin grabbed the bike that Gutierrez was riding. While the parties differ what part of Gutierrez’s anatomy Martin took hold of, it was either the man’s hair or his neck. Stating repeatedly that he was making a citizen’s arrest, and also endeavoring to call the police, Martin either pulled Gutierrez off the bike or pulled on him sufficiently to cause Gutierrez to fall to the ground where he broke his hip. It is worth noting that it is undisputed that Gutierrez was not riding the bike that Martin thought belonged to him.
What followed now was a spate of vicious assaults that must unfortunately be detailed, in light of the contentions in this appeal. It is undisputed that, holding Gutierrez by the hair, Martin now “walked” the unfortunate man to a grassy area about 50 feet away. While Martin disputes that he pulled Gutierrez to the ground, the fact is that that is where Gutierrez ended up. The not illogical thought occurred to Martin that Gutierrez might try to get away. It is not disputed that to forestall this possibility Martin put his foot on Gutierrez midsection. Nor is it disputed that Martin now slapped Gutierrez twice with his open hand. While Martin denies that he also kicked the prostrate Gutierrez, he does not dispute that his victim, in addition to the broken hip, also sustained broken ribs. Fortunately, a neighbor managed to intervene and stop Martin’s serial assaults.
The police arrived and arrested Martin for felony assault and battery. Although Martin was criminally charged, he was found not guilty of felony assault and battery by means likely to produce great bodily injury, and of the charge of an assault with a deadly weapon.
Gutierrez filed a civil action for assault and battery and for intentional infliction of emotional distress.
Martin tendered the defense to respondent. Respondent interviewed Martin and his lawyer and reviewed the police report, which stated that Martin punched Gutierrez approximately 15 times and kicked him, again approximately, 10 times. In Martin’s interview by respondent, Martin admitted that (1) he grabbed Gutierrez by the hair and pulled him to the ground, (2) he put his foot on Gutierrez midsection because he thought Gutierrez might try to get away, and (3) he hit Gutierrez.
Martin’s homeowner’s policy issued by respondent excludes coverage for personal injury “which is expected or intended by the insured.” Respondent declined coverage and a defense based on this provision, as well as Insurance Code section 533.
“An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” (Ins. Code, § 533.)
Three months after respondent declined coverage, Gutierrez amended his complaint with a cause of action for negligence. The purported cause of action for negligence alleged that plaintiff was “pulled off his bicycle by defendant” and that “defendant pulled plaintiff off from his bicycle as plaintiff was riding his bicycle.” It is highly questionable, especially given the other facts of the encounter, whether pulling Gutierrez off the bicycle was negligent. In the normal course of things, pulling someone off a bike is an intentional act.
Gutierrez’s case was tried before the court sitting without a jury, which, after a trial lasting less than eight hours, entered judgment for $176,667.71. The award was composed of $51,667.71 in stipulated medical expenses and $125,000 for pain and suffering. Since the text of the judgment that was entered is central to this appeal, we set forth the judgment in the margin. We will refer to this judgment as the “civil judgment.”
“A jury trial was waived. The court heard and considered the testimony, the documentary evidence, and the argument of counsels as submitted. The matter having been submitted for decision, and no statement of decision having been requested by either side: [¶] IT IS ADJUDGED that: [¶] Defendant and Cross-Complainant, Christopher Martin used unreasonable force on Plaintiff Gutierrez and was negligent with respect to the matters alleged in the Complaint, causing harm to Gutierrez. [A statement of damages awarded followed.] [¶] Cross-Complainant, Christopher Martin, did not sustain his burden of proof as to the claim for Malicious Prosecution. [Costs of $3,180.07 were awarded to Gutierrez].”
Although there was no statement of decision, the trial court in a minute order stated that Martin had not shown that he was acting in self-defense or that he had probable cause to make a citizen’s arrest but, in any event, the force used was “patently unreasonable.” Just as we do, the trial court rejected Martin’s purported defense that Gutierrez’s osteoporosis was the real cause of his injuries and concluded the minute order with this studied understatement: “Even though the parties can not recall how many times Martin hit, kicked or stomped on Gutierrez, the testimony of the parties and the statements made to the police by the attorney eyewitness support the finding that the force used was unreasonable, and thus the osteoporotic condition is largely irrelevant.”
DISCUSSION
1. The Civil Judgment Is Not Binding on the Issue of Coverage
The civil judgment states in part that Martin “was negligent with respect to the matters alleged in the Complaint.” (See fn. 2.) Martin has, in substance, predicated his entire appeal on the foregoing phrase.
Martin makes two assumptions about the civil judgment, neither of which is correct, as we point out in parts 2 and 3, post. First, Martin assumes that the civil judgment held against Gutierrez on his cause of action for assault and battery, i.e., that the trial court concluded that this cause of action was without merit. Second, he also assumes that the so-called negligence cause of action was, in fact, based on a negligent act. In this part we will assume for purposes of discussion that both assumptions are correct. We therefore address the issue whether the civil judgment is binding on respondent on the issue of coverage.
Respondent was not a party to the civil action brought by Gutierrez against Martin. It is basic that a judgment does not bind a stranger to the action but only parties to the action or those in privity with a party. (In re L.A. County Pioneer Society (1953) 40 Cal.2d 852, 857; Rest.2d, Judgments § 34.)
The question is whether, on the issue of coverage, respondent was in privity with Martin. “An insurer that has been notified of an action and refuses to defend on the ground that the alleged claim is not within the policy coverage is bound by a judgment in the action, in the absence of fraud or collusion, as to all material findings of fact essential to the judgment of liability of the insured. The insurer is not bound, however, as to issues not necessarily adjudicated in the prior action and can still present any defenses not inconsistent with the judgment against the insured.” (Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co. (1959) 51 Cal.2d 558, 561-562, italics added.)
The issue of coverage was not litigated in the civil action brought by Gutierrez. In Schaefer/Karpf Productions v. CNA Ins. Companies (1998) 64 Cal.App.4th 1306, the issue was, as it is in this case, whether a judgment against the insured whom the insurer refused to defend and cover was binding on the insurer. The court held that the prior judgment was not binding on the issue of coverage. The court explained: “Generally speaking, in an action by an injured party against the party who allegedly caused the injury the court does not adjudicate the issue of insurance coverage. The only questions litigated are the defendant’s liability and the amount of damages. The plaintiff is not concerned with the theory of liability which produces victory; only with procuring the largest possible judgment. Similarly, the defendant is concerned only with avoiding, or at least minimizing, a judgment for the plaintiff. [Citation.] Whether the plaintiff’s loss is covered by the defendant’s insurance is not germane to the action, and evidence on that issue would be excluded as irrelevant.” (Id. at p. 1313.)
Martin attempts to distinguish Schaefer/Karpf Productions v. CNA Ins. Companies by contending that in this case, unlike in Schaefer/Karpf when the plaintiff in the underlying case prevailed on all causes of action, Gutierrez actually “lost” the claim that Martin intentionally battered Gutierrez. We explain in the next part why this view is incorrect.
The fact of the matter is that coverage is decided in terms of the provisions of the policy and applicable legal principles. Coverage simply was not at issue in Gutierrez’s civil action and for that reason was neither litigated nor determined. While it is true, as Martin states, that it will be presumed “that a trial court made all factual findings necessary to support a judgment and the necessary findings of ultimate fact will be implied,” the point is that coverage was not even relevant to Gutierrez’s action and the civil judgment, much less was it necessary to support that judgment. (Boldface omitted.)
2. The Civil Judgment Did Not Find That Gutierrez’s Cause of Action for Assault and Battery Was Without Merit
The function of a judgment is to determine the rights of the parties in the action. If the trial court had concluded that the cause of action for assault and battery was without merit, the judgment would have reflected that since one of the “rights” that Gutierrez was asserting was his right to compensation for assault and battery. As it is, the judgment is one that speaks to the entire action, and determines it in Gutierrez’s favor.
“A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.)
The correct view, confirmed by the civil judgment itself, is that the court found in Gutierrez’s favor on both causes of action. The civil judgment states that “Martin used unreasonable force” and then goes on to state that he was negligent. The finding that Martin used unreasonable force means that the court concluded that he committed assault and battery.
This squares with the minute order that was filed before the civil judgment was entered. The minute order states that “the force [Martin] used was patently unreasonable” and that there was uncertainty exactly how many times “Martin hit, kicked or stomped on Gutierrez.” This is not negligence but assault and battery.
Here we are constrained to note that the theory that Martin committed solely a negligent act borders on being nonsense. The facts permit only one conclusion. Martin committed a series of intentional batteries. The circumstance that there is a dispute whether Martin yanked Gutierrez off the bike by his neck or by his hair hardly creates a doubt about the conclusion that Martin repeatedly battered Gutierrez with every intention of doing him great harm. (The stipulated medical specials of $51,667.71 that were awarded are perhaps the most eloquent evidence of the gravity of these batteries.) The reality is that Martin severely battered Gutierrez. Under no conceivable theory are Martin’s actions simply negligent.
The parties have filed supplemental briefs on the recently decided case of Delgado v. Interinsurance Exchange of Automobile Club of Southern California (2009) 47 Cal.4th 302. In relevant part, the court held that “an injury-producing event is not an ‘accident’ within the policy’s coverage language when all of the acts, the manner in which they were done, and the objective accomplished occurred as intended by the actor.” (Id. at pp. 311-312.) This holding certainly applies to this case. Martin dragged Gutierrez by the hair for 50 feet and repeatedly kicked and slapped him. None of this was an accident, and all of it was intended by Martin.
3. The Purported Cause of Action Based on “General Negligence” Does Not Allege Negligent Conduct
In relevant part, this cause of action alleges: “The defendant had a duty to use ordinary care to prevent injury to plaintiff. In breach of said duty, defendant pulled plaintiff off from his bicycle as plaintiff was riding his bicycle.”
Common sense and experience informs one that pulling a person off a bike as that person is riding the bike is nothing other than an intentional act. It is of course true that negligence is not only an omission to act but also the doing of an act that a reasonable person would not have done under the circumstances. (Fouch v. Werner (1929) 99 Cal.App. 557, 564.) But when Martin pulled Gutierrez off the bike as the latter was riding on it, the intent was to bring the man to the ground, which is an assault and battery. The careless driver who changes lanes without taking proper precautions and injures another never intended to injure anyone but only intended to change lanes. The only thing Martin could have intended when he pulled Gutierrez off the bike was to throw him to the ground.
4. Conclusion
The reason behind the amendment to the complaint is of course obvious. The rather elliptical language of the civil judgment (Martin “was negligent with respect to the matters alleged in the Complaint”) is there for the same reason that the complaint was amended. While counsel cannot be faulted for giving the matter a try, the attempt to convert the underlying case into one for negligence was legally doomed at conception. For one, it is hard to imagine a case that is less qualified as one sounding in negligence as Gutierrez’s action against Martin. The upshot of the matter was this litigation and this appeal, which is marginal at best and, at worst, verges on the frivolous.
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
We concur: RUBIN, Acting P. J., BIGELOW, J.