Opinion
A127682
02-17-2012
SCOTT PETERSON, Plaintiff and Appellant, v. SALLY STEWART et al., Defendants and Respondents. SALLY STEWART et al., Plaintiffs and Respondents, v. SCOTT PETERSON, Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super. Ct. No. SCUK CVG 04-93808
(Mendocino County Super. Ct. No. SCUK CVG 05-94606
Scott Peterson appeals the judgment entered following a jury trial. Peterson contends the judgment should be reversed on the following grounds: (1) The trial court failed to submit a special verdict form to the jury on his defamation claim; (2) the evidence was insufficient to support the award of damages against Peterson for intentional infliction of emotional distress; (3) the trial court should have excluded the testimony of respondents' psychological expert; (4) the trial court allowed an award of duplicative damages; (5) punitive damages were excessive; and, (6) entry of judgment was ineffective because the trial court did not sign the judgment. Finding these contentions unpersuasive, we shall affirm the judgment.
BACKGROUND
Pre-Trial Proceedings
These consolidated cases involve a dispute over misappropriation of confidential customer lists and alleged defamatory statements, all of which arise out of a business venture that went sour. In December 2004, Scott Peterson, founder and director of Mendocino Game Company (MGC), filed suit on behalf of himself and MGC against several MGC investors and former directors (Peterson case), alleging, among other things, breach of fiduciary duty. The named defendants in the Peterson case included Sally Stewart, Larry Wagner, Charlene McAllister, Birdie Wilson-Holmes, and Ron Stark, all shareholders and former directors in MGC, and Andarin Arvola, Peterson's former spouse. Peterson filed a first amended complaint (FAC) in April 2005.
The FAC alleged that MGC owned a board game called "Pirateer." In the course of marketing and selling "Pirateer," MGC developed and maintained a customer list which contained customers' contact information, buying preferences, transaction history and credit card details. MGC made reasonable efforts to maintain the confidentiality of its customer list. Around February 2001, MGC entered into a licensing agreement with Warren Industries, Inc. (Warren). Under the terms of the agreement, Warren had the exclusive right to market "Pirateer" to mass-market retailers. In return, MGC had the exclusive right to sell Warren products within MGC's sales market. The FAC further alleged defendants Stark, Stewart, Wilson-Holmes and Arvola misappropriated MGC's customer list and provided it to Warren, allowing Warren to make sales within the exclusive sales territory granted MGC under the licensing agreement. The FAC asserted causes of action against all defendants (except Arvola) for conversion of MGC's financial records and breach of fiduciary duty. As to Arvola, the FAC alleged she invaded plaintiffs' privacy by eavesdropping on telephone conversations made on a MGC telephone, and that she slandered Peterson by telling Larry Wagner and others that Peterson "suffers from Narcissistic Personality Disorder."
In a prior appeal, Mendocino Game Company v. Stewart (A112047, Nov. 16, 2006) (WL 3323296) (unpublished disposition), we reversed in part an order denying defendant's SLAPP motion on the FAC and directed the trial court to strike the FAC's ninth cause of action—interference with economic relationship against all defendants based on filings submitted to the California Department of Justice. (Id. at p. *8.) (2006 Cal.App.Unpub Lexis 10397.)
In May 2005, former MGC directors Sally Stewart, Birdie Wilson-Holmes and Ron Stark filed suit against Scott Peterson (Stewart case). A third amended complaint (TAC), was filed in the Stewart case in October 2006. In the TAC, the operative complaint in this appeal, Stewart plaintiffs allege that Peterson published documents and made statements accusing them of embezzlement, extortion, theft, disclosing confidential documents, committing adultery, engaging in illegal and improper business practices and "a want of chastity." The TAC alleged causes of action for libel, slander, intentional infliction of emotional distress and intentional interference with economic relationships and sought special, general and punitive damages, as well as costs of suit. In September 2007, upon stipulation by the parties, the trial court consolidated the Peterson and Stewart cases.
Trial Proceedings
The consolidated cases were tried before a jury between September 14 and October 6, 2009. The following evidence was adduced at trial: Peterson originally developed the "Pirateer" board game in 1978 and began to market the game through MGC in 1995. At that time, Peterson and Sally Stewart were involved in a personal relationship. Stewart loved the game and helped Peterson to raise investment funds by encouraging local people to buy shares in MGC. On Stewart's recommendation, numerous local individual investors each bought shares in amounts of $5,000-$10,000, raising a total of approximately $250,000 in operating funds for MGC. Although many individuals invested in MGC, Peterson maintained a majority two-thirds controlling interest, because his shares were based on the $250,000 book value of the company's intellectual property (trademark and copyright), plus an initial investment of $100,000.
In 1995, MGC embarked on a five-year plan that investors hoped would result in MGC becoming a commercial success. Peterson was the sole marketing and sales agent acting for MGC during this period. After five years, however, MGC had yielded no returns to its investors. Many shareholders were concerned that MGC's quarterly statements distributed at shareholder meetings did not accurately report the financial condition of the company. In February 2001, MGC investor Ron Stark asked his bookkeeper, Kathy Sherwood, to examine several financial statements provided to shareholders at a shareholder meeting. Sherwood reported to Stark that the 1999 and 2000 MGC statements she reviewed displayed "no continuity . . . and, for the most part, it's garbage." Sherwood's report also identified a reduction in stockholders' equity of $175,000 over that period that she could not account for. Stark forwarded Sherwood's report to Larry Kaminski, acting financial officer for MGC and Jim Jackson, the company's legal counsel, with a copy to Peterson.
MGC continued "running in the negative" throughout year 2000. In early 2001, MGC negotiated a licensing and distribution agreement with Warren Industries. Warren was a leader in the board games industry. Many MGC investors saw the Warren contract as a "lifeline," and hoped it would finally lead to profitability for MGC. Under the terms of the contract, Warren agreed to market "Pirateer" nationally in large retail outlets (the licensing contract), and to assume manufacture of the game. Freed from its manufacturing role, MGC was to operate as a telemarketing company, selling "Pirateer" to its existing client base of specialty game stores. MGC was also authorized to sell a range of Warren products to its existing customers consistent with quotas specified in the agreement (the distribution contract). In addition, Warren paid MGC $40,000 for its existing stock of "Pirateer," a $60,000 advance on the sales contract and a $30,000 advance on the licensing contract.
In March and April 2001, MGC ramped up to service the Warren contract. Peterson, President of MGC, acquired office space, extra computers, network software, and hired a probationary employee. Peterson also requested a considerable salary from MGC's board to service the Warren contract. Many MGC investors were "outraged" at Peterson's demands because MGC had made no money up to that point. Investor and board member, Larry Wagner, circulated a salary proposal to investors that Peterson receive a monthly salary of $2,000, plus 3 percent of all sales he makes, plus V percent of all other sales by MGC personnel. In response to this investor unrest, Peterson hired legal counsel to "act as his personal advocate on the Board" because "things were not going too well" between him and investors. He also hired a business consultant who prepared a report estimating that the position of President of MGC should carry a minimum salary of $130,000 per annum.
During negotiations regarding Peterson's compensation, concerns arose over whether Warren's "mass market products" would be attractive to MGC's specialty game customers. Also, Peterson believed that Warren was in breach of the distribution contract because it did not remove its sales representatives from territories reserved to MGC under the agreement. According to Peterson, by July 2001, the MGC-Warren contract "pretty much melted down with rep disputes." At the same time, MGC was mired in disputes between Peterson and board members and investors regarding Peterson's compensation and what to do about Warren's demand for the return of the $60,000 advance and termination of the distribution contract. Ultimately, the board voted to freeze MGC funds and deny Peterson further check-writing authority. Thereafter, Peterson used his status as majority voting shareholder to change the bylaws and discharge the MGC board. Peterson ran MGC as its President and sole board member and decided to sue Warren on behalf of MGC. Subsequently, in May 2005, MGC was awarded a $282,000 judgment against Warren.
During the course of the Warren litigation, Peterson compiled a document, which he entitled "WINK, A Whirl of Girls, She Strips to Conquer" (Wink). Peterson styled Wink as "an odd mix of comedy, tragedy, and psychodrama," based largely on "private emails that became public record in this [Warren] lawsuit." Wink listed a cast of "Actors," which included MGC investors and former board members Ron Stark, Sally Stewart and Birdie Wilson-Holmes. Wink also included a series of letters written by Peterson to several persons listed as "Actors," purporting to "forgive" them for transgressions against him. For example, in his "letter" to Sally Stewart, Peterson "forgives" her for "betraying me, . . . conspiring with my enemies, . . . starting the embezzlement rumor, . . . lying to shareholders, . . . trying to have me arrested, . . . and . . . dating my cousin." In his letter to Stark, Peterson "forgives" Stark for "betraying your company, . . . working for our enemies, . . . neglecting your duty as a director in favor of your own personal interests, . . . breaking our confidentiality agreement, and . . . misappropriating our financial records." Peterson also states he "forgives" Stark for "your false complaints to the California State Attorney General against me, . . . your passive aggression and your arrogance," and also "for being so fucking dumb." Peterson made similar accusations against Birdie Wilson-Holmes in the letter of forgiveness he addressed to her in Wink.
Wink also includes a section entitled "Showtime Quiz" consisting of 44 questions with six possible answers, A-F, and an answer key. The quiz identifies Ron Stark as the shareholder who "broke a confidentiality agreement and disclosed proprietary information to a third party" and "embezzled valuable corporate property and filed two false complaints to the California State Attorney General." The quiz identifies Sally Stewart as the MGC officer who "fabricated and promoted an embezzlement rumor against another officer" and identifies Birdie Wilson-Holmes as the MGC officer who "embezzled a list of shareholders."
Finally, plaintiffs in the Peterson and Stewart cases presented expert witness testimony relevant to claims at issue and related damages. Peterson and MGC presented testimony by Dr. John Podboy, a licensed clinical psychologist. Podboy interviewed Ron Stark, Sally Stewart and Birdie Wilson-Holmes, and based on his interviews with them, testified at trial that none had suffered severe emotional distress as a result of Peterson's conduct. Plaintiffs in the Stewart case presented testimony by Dr. Murray Zucker, a practicing psychiatrist, who evaluated Peterson for any diagnosable psychiatric conditions. Zucker testified that Peterson displayed two personality disorders, namely, narcissistic personality disorder and paranoid personality disorder, which cause Peterson to blame others for his failures and make him feel he is "not being recognized for [his] special gifts."
Other evidence adduced at trial is described below as required in the Discussion section, post.
After the evidence was presented, the jury received special verdict forms for the causes of action tried in the consolidated proceedings. The jury returned its verdicts the following day. In the special verdicts returned in the Peterson case, the jury found defendant Arvola did not disclose private facts concerning MGC or Peterson, and did not wiretap either MGC or Peterson. The jury found Arvola did not intrude upon MGC's private affairs. The jury found Arvola intruded upon Peterson's private affairs and awarded him damages of $101 for past economic and noneconomic loss on that claim.In addition, the jury rejected plaintiffs' conspiracy claims against defendants Arvola, Stark, Stewart, Wagner and Wilson-Holmes, as well as their conversion claim against Stark. The jury also rejected plaintiffs' breach of fiduciary duty claim against defendants Stark, Stewart, Wagner, and Wilson-Holmes.
The jury did not return a special verdict on Peterson's defamation claim against Arvola, see Discussion, post.
In the special verdicts returned in the Stewart case, the jury found Peterson defamed Stewart, Stark and Wilson-Holmes by, among other things, making defamatory statements about them in Wink. The jury awarded Stewart, Stark and Wilson-Holmes each $150,000 in assumed damages on their defamation claim against Peterson, and also awarded Stark and Wilson-Holmes $500 dollars each in actual damages on that claim. As to all three plaintiffs, the jury found by clear and convincing evidence that Peterson acted with malice, oppression or fraud. In addition, the jury found Peterson intentionally inflicted emotional distress on plaintiffs Wilson-Holmes and Stark, and awarded each of them $20,000 damages on that claim.
After returning its special verdicts finding that Peterson acted with malice in defaming the Stewart plaintiffs, the jury heard evidence and argument of counsel regarding punitive damages. Thereafter, the jury returned a verdict awarding Stewart, Wilson-Holmes and Stark each $100,000 in punitive damages. A Judgment on Verdict in Open Court was entered in these amounts on October 15, 2009. Post-Trial Proceedings
Following entry of judgment, Peterson filed a motion to vacate the judgment and enter new judgment, pursuant to section 663 of the Code of Civil Procedure. In the motion to vacate judgment, Peterson asserted the punitive damages award was disproportionate to his net worth. Specifically, Peterson argued the evidence showed his actual net worth was $13,000 and that punitive damages should be limited to 10 percent of his net worth — $1,300. Peterson asked the trial court to vacate the punitive damage award and replace it with an award of $1,300.
Further statutory references are to the Code of Civil Procedure unless otherwise noted.
Peterson also filed a motion for a new trial, pursuant to section 661, asserting various grounds for a new trial under section 657. In his motion for new trial, Peterson contended that the judgment filed on October 15, 2009, was incomplete because it contained "no reference to any findings by the jury on [his] defamation action" against Arvola and that punitive damages awards were excessive as a matter of law. Peterson also argued he was prejudiced by defendants' failure to produce their medical expert, Dr. Zucker, for deposition and their failure to produce Dr. Zucker's final report until after the trial began. On December 4, 2009, the court held a hearing on the post-trial motions, entertained argument of counsel and took the matters under submission.
On December 23, 2009, the court issued its Order After Hearing. Regarding Peterson's motion to vacate the judgment, the court reduced the punitive damages award to plaintiffs Stewart, Wilson-Holmes and Stark from $100,000 per plaintiff to $40,000 per plaintiff, and issued a remitittur for punitive damages in the total amount of $120,000. In all other respects, the court denied Peterson's motion for a new trial. Peterson filed an amended notice of appeal on January 13, 2010.
DISCUSSION
A. Special Verdict on Peterson's Defamation Claim
Peterson contends the trial court erred by failing to submit to the jury the special verdict form for his defamation claim against Arvola. Peterson further asserts that because the jury did not return a verdict on his defamation claim, we must remand for a new trial. As explained below, we conclude Peterson has forfeited this contention.
The record shows that at the completion of the evidentiary phase of the trial, the court instructed the jury on the elements, defenses, and measure of damages on the causes of action at issue in the Peterson and Stewart suits, including Peterson's cause of action for slander against Arvola. The court also informed the jury that it had to resolve the claims presented by completing the special verdict forms, each of which contained multiple questions. The court did not read each special verdict form to jurors before sending them out to deliberate: Rather, the court used two of the special verdict forms to illustrate how the jury should work through the questions on each submitted form. The court also informed jurors that they were to work through the questions reflected on each of the special verdict forms.
Following deliberations the jury returned 22 special verdicts. The court read aloud every question answered by the jury on each of the special verdict forms, and the jury confirmed each verdict after it was read. The court did not read a verdict on Peterson's slander claim against Arvola, and the jury did not return a special verdict form on that claim. After the court read each of the special verdicts returned on Peterson's claims, his counsel did not object that the verdict was incomplete as to his slander claim. Rather, Peterson first raised the issue of an incomplete verdict in his motion for a new trial filed on October 28, 2009, three weeks after the jury was discharged.
After all the verdicts were read, both parties declined to poll the jury.
The record is unclear whether the jury was actually given a special verdict form on Peterson's slander claim. Respondents assert Peterson's attorneys prepared the verdict forms for his claims and sent them to respondents' counsel, who then forwarded all the verdict forms to the court with an email copy to the trial judge and Peterson's attorneys. Respondents suggest that Peterson's attorneys must have withdrawn the slander claim because if they truly intended to submit it to the jury the missing verdict form would have been obvious to them.
On this record, we conclude Peterson forfeited his claim that the verdict was incomplete by failing to object to the verdict prior to the jury's discharge. "The forfeiture rule generally applies in all civil and criminal proceedings. (Citations.)" (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 (Keener).) The purpose of the forfeiture doctrine is "to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . ." (Ibid. [citations omitted].) The forfeiture doctrine is based on the principle that the law "casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." (Keener, supra, 46 Cal.4th at pp. 264-265 [citations omitted].) "Consistent with this general rule, . . . '[a]n objection to a defective verdict must be made before the jury is discharged. . . . [D]efects apparent when the verdict was read, and that could have been corrected, are waived [forfeited] by counsel's failure to timely object . . . unless the verdict itself is inconsistent.' (Citations.)" (Keener, supra, 46 Cal.4th at p. 264; see also Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521, & fn. 11 [except where verdict itself is inconsistent, "[f]ailure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected"]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [BMW waived any objection to special verdict form, which manufacturer claimed should have included question of whether manufacturer violated the California Song-Beverly Consumer Warranty Act, by failing to object before court discharged jury].)
Peterson argues the rule of Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452 (Woodcock) precludes forfeiture here. In Woodcock, the California Supreme Court addressed the issue of whether a jury verdict awarding " 'damages in the sum of $13,000 represents the total or gross amount of damages after exclusion of the payments made to plaintiff by intervener [workmen's compensation insurer]." (Id. at p. 455.) In a footnote preliminary to its discussion of the issue, the Court noted that whereas "failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect . . . waiver is not automatic and there are many exceptions." (Woodcock, supra, 69 Cal.2d at p. 457, fn. 2.) Specifically, the Court ruled, "Waiver is not found where the record indicates that failure to object was not the result of a desire to reap a 'technical advantage' or engage in a 'litigious strategy.' (Citations.)" (Ibid.)Peterson argues he did not seek a "technical advantage' or seek to engage in a 'litigious strategy,' therefore, under Woodcock, the forfeiture doctrine does not apply to his jury verdict claim. However, Woodcock predates the Court's fuller exposition of the forfeiture doctrine in Keener, supra. Indeed, the Keener Court noted that "the exception described in Woodcock's dictum" is a "rule for ambiguous verdicts." (Keener, supra, 46 Cal.4th at p. 270 & fn. 30.) The Keener Court declined to extend the Woodcock rule beyond the context of ambiguous verdicts. The Court reasoned that whereas "an ambiguity in a verdict" can be cured by interpretation, "thereby obviating a need for reversal and retrial, . . . without a timely objection to incomplete polling, a court cannot avoid or cure the defect: after the jury's discharge, the court can neither complete the polling nor return the jury to its deliberations." (Id. at p. 270, fn. 31.) Similarly, absent a timely objection in this case, the court was powerless to avoid or cure the incomplete verdict returned by the jury. Accordingly, for the same reasons articulated by the Keener court, we decline to extend the Woodcock exception to the incomplete verdict in this case.
Here, Peterson does not contend that the verdict was inconsistent, therefore forfeiture cannot be avoided on that basis. Rather, Peterson contends the verdict was "deficient" because the jury did not return a special verdict form on his slander claim against Arvola. Moreover, Peterson asserts this deficiency was not apparent because "neither the trial court nor counsel noticed that when the trial court received and read the special verdicts into the record that Peterson's slander claim against Arvola was omitted," adding, "[i]t is not surprising that faced with such a blizzard of questions and special verdict forms [] the omission of a verdict on Peterson's [defamation claim] was not immediately apparent. . . . " We disagree.
Keener, supra, is instructive on this point. In Keener, the Court of Appeals characterized the jury polling at issue as "confusing" and concluded that "no forfeiture occurred, because the polling defect was not 'apparent' to the trial court, to the jurors, or to counsel." (Keener, supra, 46 Cal.4th at p. 266.) Our Supreme Court rejected the Court of Appeals' characterization, stating, "The record reflects . . . that the polling was methodical . . ., nor did defense counsel's failure to notice [the omission complained of] establish that the polling was confusing. This situation was not one in which it was impractical to expect defense counsel to be able to follow the course of the polling and make a contemporaneous objection to any omission." (Ibid.)The same is true in this case. Whereas there were multiple verdict forms, the trial court systematically read each of the special verdicts returned, beginning with the verdicts returned on the claims presented in the Peterson case, and methodically polled the jury on each verdict after reading it to the jury. As in Keener, supra, this procedure "was not one in which it was impractical to expect [Peterson's] counsel to be able to follow the course of the polling and make a contemporaneous objection to any omission." (Keener, supra, 46 Cal.4th at p. 266.) In sum, because the omission of a verdict on his defamation claim against Arvola was apparent, Peterson has forfeited his claim that the verdict was incomplete on the slander claim by failing to object before the jury was discharged. (See Keener, supra, 46 Cal.4th at p. 264 [defects "apparent when the verdict was rendered" are forfeited by counsel's failure to timely object].)
B. Dr. Zucker's Testimony
1. Procedural Background
On October 30, 2008, Peterson filed a motion in limine to exclude the testimony of Dr. Zucker, respondents' expert in the area of psychiatry. At the time the motion was filed, trial was scheduled to begin on November 10, 2008. (5CT 1212)~ In his motion, Peterson argued Dr. Zucker's testimony should be excluded because respondents did not produce Dr. Zucker for deposition until three days before trial was scheduled to begin and had provided only an initial report of Zucker's findings from a psychiatric medical examination conducted on Peterson in April 2008. On November 7, 2008, the trial court issued an order vacating the November 10 trial date. Thereafter, trial was continued several times before it was finally set for September 14, 2009.
Exhibit 6 to Peterson's motion in limine shows respondents offered Dr. Zucker for deposition on November 7 and 8, 2008. Exhibit 7 shows that on October 24, 2008, respondents sent Peterson an initial 1-page psychiatric report prepared by Dr. Zucker summarizing his findings and conclusions. In that report, Zucker stated that "My full report will follow."
On September 10, 2009, the trial court addressed Peterson's pending motion to exclude Dr. Zucker's testimony. Dr. Zucker had not yet been deposed and had not supplemented his initial report. Peterson's counsel argued that although trial had been continued several times, "discovery was closed" and he did not have Dr. Zucker's full report; he contended preclusion of Zucker's testimony and report were appropriate sanctions because "we don't know what the man's gonna say, and we certainly haven't had an opportunity to adequately and properly prepare our own expert."
Counsel for respondents, in turn, informed the court that Dr. Zucker "was offered for deposition numerous times. We had it set in October [2008]. Unfortunately, he had a relative die in his family and had to go out of state for that. We contacted them. . . . We offered him subsequent dates, and they chose not to take his deposition. [¶] And then we had this long gap where we, again, sent multiple letters over the last eight months advising that he's available for deposition; . . . we don't care if you take his deposition, just take it if you want it; and instead they chose not to." Counsel also noted that Dr. Zucker's deposition had most recently been set for July 20, 2009. At the conclusion of the hearing, the trial court took the matter under submission, indicating, however, that if the court did not disqualify Dr. Zucker as a witness, it would require that Dr. Zucker be made available locally for deposition purposes before he testified.
On September 16, 2009, two days after trial began, respondents provided Peterson with a 12-page report prepared by Dr. Zucker, dated September 15, 2009 (September 2009 report). Thereafter, on September 23, the following colloquy, between the court and trial counsel, took place after the jury had been dismissed for the day: "[Defense counsel]: [A]lso tomorrow we have deposition of Dr. Zucker that's on calendar. Dr. Zucker is a medical doctor that [sic] is making himself available tomorrow at 5:00 o'clock for deposition, I'm wondering if it's going ahead. "[Peterson's counsel]: I can't do it tomorrow at 5:00 o'clock, but I think frankly we're probably not going to take his deposition so you cannot worry about that. I've got his reports finally, I've got his other notes, and I'm more than comfortable with that — dealing with him with those." [Defense counsel]: [O]ne issue that comes up with Dr. Zucker is . . . I might have to call him out of order. The Court: Well, why don't you discuss that. I don't think counsel's going to object to calling him out of order. [Peterson's counsel]: Not at all."
We cannot tell whether the deposition referenced in the colloquy was set by order of the trial court in ruling on Peterson's motion to exclude Dr. Zucker's testimony, because after the trial court took the matter under submission on September 10, 2009, no ruling, either oral or written, appears in the record.
Dr. Zucker subsequently testified at trial on Thursday, October 1, 2009. Peterson did not object when Dr. Zucker was sworn. After defense counsel conducted voir dire, he moved that Dr. Zucker "be qualified in the area of psychiatry." Peterson's counsel stated, "No objection, your Honor," and the court ruled it was "going to allow you to ask him opinion testimony questions."
2. Analysis
Peterson asserts the trial court erred by allowing Dr. Zucker to testify at trial regarding opinions contained in the September 2009 report. Specifically, Peterson contends that, pursuant to section 2034.300, the trial court should have excluded Zucker's testimony on the ground that Zucker failed to produce a "full" expert report before trial.
Peterson also notes correctly that a person who submits to a physical or mental examination is entitled, upon request, to a full report containing the statutorily described information, and the examiner can be required to prepare such a report. (See Kennedy v. Superior Court (1998) 64 Cal.App.4th 674, 678 [discussing former section 2032, subd. (h), now renumbered section 2032.610, subd. (a)].) When no such report is forthcoming, the examinee's remedy is a motion to compel accompanied by a meet and confer declaration. (See § 2032.620, subd. (a).) However, the foregoing sections are not implicated here, because Peterson did not file a demand pursuant to section 2032.610, nor did he file a motion to compel accompanied by a meet and confer declaration. Rather, the record shows Peterson filed a demand for exchange of expert witness information, pursuant to section 2034.210.
Section 2034.300 provides in pertinent part: "[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: (a) List that witness as an expert under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce reports and writings of expert witnesses. . . . [¶] (d) Make that expert available for a deposition . . . ." (Id. [italics added].) A trial court's reasonableness determination under section 2034.300 is reviewed for abuse of discretion. (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950 (Boston))
Section 2034.260 sets forth the requirements for expert disclosures.
Here, the trial court's reasonableness determination under section 2034.300 with respect to the production of Zucker's September 2009 report was not an abuse of discretion. In this regard, we note that the discovery statutes governing exchange of expert witness information do not specify a hard-and-fast deadline by which expert reports and writings must be created. (See Boston, supra, 170 Cal.App.4th at p. 952 [declining to declare a rule that "expert reports must be created by the specified exchange date or not at all" because "the Legislature . . . anticipated that experts would continue their preparations after the specified date [for expert disclosures].) Nevertheless, a trial court is not powerless "to prevent or respond to abuse of expert witness discovery procedures." (Ibid.)Specifically, if a party "intentionally manipulated the discovery process to ensure that expert reports and writings were not created until after the specified date," the trial court may find that conduct unreasonable under section 2034.300 and exclude the expert's opinions. (Ibid.)
Here, the record supports the trial court's implicit finding that respondents did not intentionally manipulate the discovery process to ensure Dr. Zucker's report was produced after trial began. In this regard, there is no evidence the trial continuances between October 2008 and September 2009 and Peterson's failure to depose Dr. Zucker during that time were occasioned by respondents' manipulation of the discovery process. Perhaps respondents' production of Dr. Zucker's September 2009 report after trial began would support appellant's assertion of error if it contained diagnoses or opinions different than those in Dr. Zucker's initial report of October 2008. However, our review of Dr. Zucker's reports reveals no material difference between them. The September 2009 report is padded with more background information than the October 2008 report, such as "History of the Current Situation, "Medical History," and "Family History," but the key findings and diagnosis in both reports are identical. Finally, the conduct of Peterson's trial counsel militates against a finding that respondents' conduct was unreasonable in regard to the production of the September 2009 report. (See Boston, supra, 170 Cal.App.4th at p. 954 [stating that the conduct of the party offering the expert is less likely to be unreasonable if the behavior of the party seeking to exclude the expert testimony exacerbated any perceived unfairness arising from a late or incomplete disclosure, for example "when expert was not fully prepared at deposition, but proponent offered to make expert available within one or two days, opponent acted unreasonably by failing to take any action until he moved for exclusion of the expert in the middle of trial"].) On this point, the colloquy quoted above demonstrates that respondents offered Dr. Zucker for deposition a week after he prepared his September 2009 report. Peterson's counsel, however, elected not to depose Zucker and informed the trial court he was "more than comfortable" conducting his cross-examination on the basis of Zucker's notes and reports.
The September 2009 report does include a one-page summary of the results of the MMPI-2 (Minnesota Multiphasic Personality Inventory-2) Outpatient Mental Health Interpretive Report, a self-administered test Peterson took during his consultation with Dr. Zucker in April 2008. However, these test results were not deliberately withheld from Dr. Zucker's initial report of October 2008 because they did not become available until June 2009. Dr. Zucker testified Peterson took the self-administered test in April 2008 at the time of psychiatric examination, that the test was sent to be rated, scored and graded, and that the results did not come back until June 2009.
Dr. Zucker stated in the October 2008 report that "Mr. Peterson has a diagnosable psychiatric condition called Narcissistic Personality Disorder with obsessive traits and probable Alcoholic Dependency. This causes him to behave and relate to others in a characteristic manner. This causes him to be sensitive to rejection, relate superficially, and to be suspicious, blaming self-righteous and paranoid. He shows perceptual distortion, projection, mood lability, and is self-referential. There is no evidence of organic brain disease. Although he is not psychotic, he tends to distort reality and this in turn influences his judgment. [¶] It is my conclusion that Mr. Peterson's Personality Disorder has influenced his actions in the above-referenced matter."
In sum, there is no evidence respondents manipulated the discovery process or engaged in behavior designed to " 'thwart the opposition from legitimate and necessary discovery.' " (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1117; cf. Boston, supra, 170 Cal.App.4th at p. 953 [late production of expert report not unreasonable where there was no evidence plaintiff "engaged in a pattern of behavior designed to impede expert discovery"].) Accordingly, the trial court's reasonableness determination under section 2034.300 did not amount to an abuse of discretion. (See Boston, supra, 170 Cal.App.4th at p. 950.) Thus, the trial court did not err by allowing Dr. Zucker to testify at trial concerning his September 2009 report.
C. Evidence on Intentional Infliction of Emotional Distress
The elements of a cause of action of intentional infliction of emotional distress (IIED) are: "(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394 (Fletcher))Peterson contends defendants Ron Stark and Birdie Wilson-Holmes failed to produce credible evidence, "as a matter of law," either that his conduct was "extreme and outrageous" or that they suffered severe emotional distress as a consequence. This contention is without merit.
First, we reject Peterson's argument that that our resolution of his assertion of error raises a question of law subject to de novo review. Rather, because Peterson challenges the jury's verdict on the IIED claim, we apply the substantial evidence standard of review. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) "Substantial evidence means evidence which is of ponderable legal significance—evidence which is reasonable in nature, credible and of solid value. [Citation.]" (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099.) Under the substantial evidence test, we may reverse the judgment only if there was no ponderable, credible evidence, or reasonable inferences therefrom, in support of the jury's findings. Under this stringent standard, "our duty 'begins and ends' with assessing whether substantial evidence supports the verdict. [Citation.]" (U.S. Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 908.) We start with " 'the presumption that the record contains evidence to sustain every finding of fact.' [Citation.] We review the evidence in the light most favorable to the respondent, resolve all evidentiary conflicts in favor of the prevailing party and indulge all reasonable inferences possible to uphold the . . . verdict. [Citation.]" (Ibid.)We do not "weigh conflicts and disputes in the evidence; that is the province of the trier of fact.' . . . [W]e do not evaluate the credibility of the witnesses or otherwise reweigh the evidence. [Citation.] Rather, 'we defer to the trier of fact on issues of credibility. [Citation.]' " (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514-515.)
Here, evidence adduced at trial showed defendant Ron Stark is a large-scale building contractor whose business involves both public works projects and works for private property owners. Around May 2004, Peterson disseminated the Wink document to numerous people in the community, in which he accused Ron Stark of breaking a confidentiality agreement and disclosing proprietary information to a third party. Shortly thereafter, Peterson also wrote to members of the Fort Bragg Unified School District (District) Board, stating he wished "to challenge Ron Stark's integrity as a contractor" for District and accusing Stark, among other things, of embezzling from MGC. The District Superintendent forwarded Peterson's letter to Stark, asking Stark to provide "a written response to Mr. Peterson's allegations and telephone my office to schedule a meeting for discussion of your response." Around the same time, several persons received anonymous letters. Stark's business partner received a letter stating, "Your partner Ron Stark is a liar and an embezzler[,]" signed "a Friend." Stark himself received a letter stating, "In 1994, your wife had an 8-month affair with Omar Raymond," and Stark's wife received a letter at her place of work stating, "Dear Marilyn, Your hubby's been having a relationship with Sally Stewart. It's all over town[,]" signed "A friend." Furthermore, Stark testified these events "became kind of terrifying for a while," and that he was very uncomfortable having to discuss these letters with his business partner and customer. Stark said he felt "on the carpet" because his wife asked him whether it was true he was having an affair with Sally Stewart. In addition, Stark testified that it was "extremely unsettling" when he received the letter alleging his wife had an affair, because he "was worried about what was next," given the letters going to "everybody in my life." According to Stark, ultimately the letters did not "cause any issues" in his marital relationship, but "it was uncomfortable at the time." Stark testified that all this caused him to be "afraid for my personal safety," and that it had been "really hard" for him to deal with, requiring "quite a bit of counseling" to help him cope.
Defendant Birdie Wilson-Holmes (Holmes) was also a target of Peterson's 2004 Wink publication. In Wink, Peterson accused Holmes of "betraying your company," "siding with our enemies," "neglecting your duty as a director, " misappropriating corporate property," "supporting [] false complaints to the California State Attorney General" and then lying about it. Around the same time as Wink was circulating, Holmes was listed on a website named, "Who's a RAT," the "largest online database of informants and agents." The "informant profile" listed for Holmes on this website stated that she "uses her position to get information about local residents, uses the information for personal advantage, and then turns them into the police." The page from the "Who's a RAT" website was distributed throughout Holmes' community in the form of a flyer. Holmes testified that she found the "Who's a RAT" document "frightening." Holmes also testified that Peterson "tried to blackmail" her by threatening to "make [her] pay" if she did not agree to testify against fellow ex-board members. Furthermore, Holmes testified that Peterson's behavior and campaign against her had "changed her life," stating she is no longer "as open and trusting as I used to be" and no longer "get[s] involved in the community like I used to." Regarding Peterson's actions, Holmes stated, "I feel like I'm dealing with a predator," and that his actions were "frightening and terrifying." Also, Holmes stated she'd "lost so much sleep" on account of Peterson's conduct, and fears "it's never going to be over."
The evidence adduced above constitutes substantial evidence of Peterson's outrageous conduct with respect to Ron Stark and Birdie Wilson-Holmes. Whereas Peterson denied responsibility for the anonymous letters and flyers of the "Who's a Rat" website posting that circulated in the community, the jury rejected Peterson's testimony on that point and found he authored the anonymous communications. The jury's finding was a reasonable inference drawn from the evidence presented. In this regard, Peterson's musings in Wink and letter to the school board showed his capacity to make cruel, false and disparaging remarks against those who drew his ire, and the anonymous communications in question all took place around the same time Wink was circulating and targeted the same people as Wink. Also, one of the anonymous letters, received by Stark's wife at her place of work, accused Stark of having an affair with Sally Stewart. As evidence of the alleged affair, the anonymous letter enclosed an email from Stark to Stewart criticizing Peterson's control over MGC, which concluded, "Let me know what you think. Love Ron." This indicates the anonymous author had access to the same documents from the Warren litigation that Peterson used to compile Wink. Based on this evidence, the jury could reasonably infer that Peterson was responsible for the anonymous communications. (Cf. People v. Williams (2006) 40 Cal.4th 287, 313-314 [concluding there was sufficient evidence to support a reasonable inference by jury that defendant made several late-night, anonymous phone calls to the victim's residence the night before the murder (in which the caller hung up immediately after the phone was answered) where defendant stole the victim's wallet the day before the phone calls and wallet may have contained a card or document with the victim's unlisted number].)
Moreover, the jury observed Stark and Holmes and heard their respective testimonies, and "was in a far better position than we to judge the severity of their emotional distress." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) Certainly, their testimony constituted substantial evidence of "the requisite emotional distress[,] [which] may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry[] (citations), so long as it is "enduring as distinguished from trivial or transitory." (Ibid.)In sum, viewed in the light most favorable to the prevailing defendants, we conclude the record contains substantial evidence to support the jury's verdict on IIED.
D. Damages
Peterson challenges the damages awarded to respondents, contending that (1) compensatory damages are duplicative; (2) compensatory damages are excessive; and, (3) punitive damages are excessive. We address these contentions in turn.
1. Compensatory Damages Are Not Duplicative
As noted above, the jury awarded $150,000 each to Sally Stewart, Birdie Wilson-Holmes and Ron Stark for assumed damages on their defamation claim against Peterson, and $500 each to Stark and Wilson-Holmes for actual damages on their defamation claim. Peterson attacks the defamation award on the grounds that actual damages to Stark and Wilson-Holmes are duplicative of assumed damages. Not so. The fact that a plaintiff proves actual damages for injury to reputation does not preclude the jury from awarding presumed damages for injury to reputation. (See Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1014 [contrary rule would mean that "plaintiff who can prove $1 of actual injury would be precluded from further recovery, whereas the plaintiff who cannot marshal any evidence of actual injury would not be so limited"].) Peterson offers no evidentiary basis to sustain his challenge to the compensatory damages award on this ground.
Peterson also asserts the assumed damages for defamation "may be duplicative" with punitive damages. We easily dispose of Peterson's contention of error on this point. "Compensatory damages are awarded to compensate an injured party for his injury; while punitive damages are awarded to punish a wrongdoer and make an example of him. When both compensatory and punitive damages are awarded, there is no double punishment." (Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 20.)Accordingly, we reject Peterson's contentions that the award for assumed damages is duplicative of actual and punitive damages.
Peterson's reliance on Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 718, is misplaced. The California Supreme Court's comment, that the jury's award of $1.3 million in compensatory damages for "physical and emotional distress [] may have reflected the jury's indignation at [defendant's] conduct, thus including a punitive component," was in the context of assessing the disparity between actual harm and punitive damages for purposes of deciding whether the punitive damages award violated the U.S. Constitution, pursuant to the high court's guidelines in State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408 (State Farm), (see Discussion, section E.3, post). The issue of whether compensatory damages were duplicative of punitive damages was not before the court in Roby v. McKesson.
2. Compensatory Damages Are Not Excessive
"It is well settled that damages are excessive only where the recovery is so grossly disproportionate to the injury that the award may be presumed to have been the result of passion or prejudice. Then the reviewing court must act. [Citations.] The reviewing court does not act de novo, however. As we have observed, the trial court's determination of whether damages were excessive 'is entitled to great weight' because it is bound by the 'more demanding test of weighing conflicting evidence than our standard of review under the substantial evidence rule.' " (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 259 (Fortman); see also Douglas v. Janis (1974) 43 Cal.App.3d 931, 940 [stating that the determination of the jury on the issue of damages "is conclusive on appeal unless the amount thereof is so grossly excessive that it can be reasonably imputed solely to passion or prejudice in the jury"].) All presumptions favor the trial court's determination and we review the record in the light most favorable to the judgment. (Fortman, supra, 211 Cal.App.3d at p. 259.)
Peterson contends the jury's award of assumed damages in the amount of $150,000 per defendant "shocks the conscience" because the defendants failed to produce credible evidence of any damages resulting from Peterson's defamatory statements, such expert testimony relating to damage to reputation. First, we note that to the extent Peterson challenges defendants' credibility and the inferences to be drawn from their testimony, we decline his invitation to reweigh the evidence on appeal. (See Fortman, supra, 211 Cal.App.3d at p. 259.) In all events, we reject his contention of error because substantial documentary and testimonial evidence supports the jury's special verdict findings that Peterson published statements about Stewart, Stark and Wilson-Holmes that were libelous per se. As such, damages are presumed as a matter of law. (See Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 382 [where plaintiff proves libel per se damage to reputation "is conclusively presumed and he need not introduce any evidence of actual damages in order to obtain or sustain an award of damages"]; accord Douglas v. Janis, supra, 43 Cal.App.3d at p. 940; see also Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 349 [noting "defamation is an oddity of tort law," allowing juries to " award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred"]). Finally, there is no indication that the jury's award of $150,000 to each of the three plaintiffs was grossly disproportionate to the injury or the result of passion or prejudice. Indeed, the amount awarded is significantly lower than the $175,000 to $250,000 requested by plaintiffs' counsel during closing argument. In sum, Peterson has failed to demonstrate that the assumed damages are excessive.
Such statements regarding Stark and Wilson-Holmes were noted in our discussion on IIED, ante. As to Stewart, the jury found Peterson sent letters to persons in Mendocino County calling Stewart a liar and accusing her of promoting false gossip; made defamatory statements about her in Wink; wrote to Ron Stark's wife accusing Stewart of having an affair with Stark's husband; and wrote to Sally Stewart's fiance and his family accusing Stewart of spreading false rumors that Peterson was an embezzler.
Peterson also asserts that during their testimony Wilson-Holmes and Stewart violated the court's in limine ruling excluding evidence of litigation costs or attorney fees. and on that basis suggests the jury improperly included litigation costs in its assumed damages award. This suggestion is baseless. Whereas the witnesses on these occasions may have alluded to the ongoing litigation, Peterson's counsel did not object or ask that any of the testimony be stricken. More importantly, the jury was specifically instructed as follows: "A party cannot recover damages for the stress of going through a lawsuit or for lost income from attending meetings, depositions, or trial related to the lawsuit."; "A party cannot recover damages for distress or defamation for statements that are made by any party in the course of discovery or trial in a lawsuit." Thus, no basis exists to think the jury included litigation costs in the assumed damages award. (See People v. Cruz (2001) 93 Cal.App.4th 69, 73, [noting appellate court "presume[s] that the jury 'meticulously followed the instructions given.' (Citation.)"].)
3. Punitive Damages Are Not Excessive
As noted above the jury awarded plaintiffs Stewart, Stark and Wilson-Holmes $100,000 each, for a total of $300,000 in punitive damages. Following Peterson's motion to vacate the judgment, the trial court issued a remitittur reducing punitive damages to a total of $120,000, or $40,000 per plaintiff. Peterson contends the punitive damage award violates both California law and federal constitutional standards. We discuss each contention in turn.
Civil Code section 3294, subdivision (a) permits an award of punitive damages "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."
"Under California law, we review a trial court's determination of punitive damages under the substantial evidence standard. (Citation.)" (County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 545 (Walsh):) "An award of punitive damages hinges on three factors: the reprehensibility of the defendant's conduct; the reasonableness of the relationship between the award and the plaintiff's harm; and, in view of the defendant's financial condition, the amount necessary to punish him or her and discourage future wrongful conduct. (Citations.)" (Kelly v. Haag (2006) 145 Cal.App.4th 910, 914.)
Here, Peterson challenges the punitive damage award on the basis of the third factor, contending plaintiffs failed to present meaningful evidence showing his ability to pay a punitive damage award. We disagree.
We dismiss Peterson's suggestion that the "jury's dislike of the defendant" contributed to the punitive damage award—patently, the trial court's remitittur obviated any such possibility.
"Even if a[] [punitive damage] award is entirely reasonable in light of the other two factors . . . (nature of the misconduct and amount of compensatory damages), the award can be so disproportionate to the defendant's ability to pay that the award is excessive." (Adams v. Murakami (1991) 54 Cal.3d 105, 111 (Adams).)Accordingly, a defendant's ability to pay a punitive damage award must be based on meaningful and substantial evidence of his or her financial condition. (Id. at pp. 110-111.) "Although net worth is the most common measure of the defendant's financial condition, it is not the only measure for determining whether punitive damages are excessive in relation to that condition. (Citation.)." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 624 -625.) Rather, "there is no rigid formula and other factors may be dispositive especially when net worth is manipulated and fails to reflect actual wealth. (Citations.)" (Walsh, supra, 158 Cal.App.4th at p. 546.) The purpose of punitive damages, however, " 'is not served by financially destroying a defendant. The purpose is to deter, not to destroy.' (Citation.) . . . [P]laintiff has the burden of proving the financial condition of the defendant.
(Citation.)" (Ibid.)
Here, based on Peterson's own testimony, the trial court found that he lived rent free in a home on 12 acres owned by a family trust and that the property was worth about $700,000 when last appraised in 2001. Peterson held at least a 60% ownership interest in the family trust and perhaps more, depending on whether the child beneficiaries had received the distribution of their shares. In this regard, the court noted that "the . . . almost photographic memory for detail that Peterson displayed through the rest of the trial appeared to fail him when questions about the trust assets were posed" and that the jury did not appear to accept his testimony about " 'mortgaging' his interest in the trust property with a loan from his wealthy sister who had disclaimed her own interest in the trust." Further, the trial court found the intellectual property value of the Pirateer game was around $250,000 at the outset of the litigation, it is still carried on the corporate books of MGC as an asset in that amount, and Peterson, as majority shareholder, owned 65% of MGC. The court also found that the jury may not have been satisfied with Peterson's "oral accounting of what he did with the $280,000 proceeds of the Warren lawsuit or the cash portion of his trust distribution."
The evidence recited by the trial court, together with the permissible inference that Peterson was attempting to understate his assets and maximize his liabilities (see Walsh, supra, 158 Cal.App.4th at p. 546), provides substantial evidence for the trial court's conclusion that the punitive award will serve to deter Peterson, not "destroy" him. (See Ibid.)Thus, the punitive damages award passes muster under California law.
Peterson also contends the punitive damages award violates federal constitutional standards enunciated by the high court in State Farm, supra, 538 U.S. 408. In State Farm, the high court stated that a grossly excessive punitive damage award violates due process and constitutes "an arbitrary deprivation of property." (State Farm, supra, 538 U.S. at pp. 416-417.) In light of this concern, the court reiterated that appellate courts, in assessing whether punitive damage awards violate the federal constitution, must conduct de novo review under "three guideposts: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded . . . and the civil penalties authorized or imposed in comparable cases." (Id. at p. 418.)
Peterson argues the punitive damage award is constitutionally infirm under the second guidepost because the defamation award itself contained a punitive element. Peterson misconstrues State Farm on this point.
The second guidepost concerns the constitutionally permissible ratio "between harm . . . to the plaintiff and the punitive damages award." (State Farm, supra, 538 U.S. at pp. 424.) In this regard, the Court noted that "in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process[,]" but a higher ratio may be permissible "where 'a particularly egregious act has resulted in only a small amount of economic damages.' (Citation.)" (Id. at p. 425.) Conversely, the court stated, "[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." (Ibid.)
Turning to the punitive award before it, the Supreme Court noted that "the compensatory award . . . was substantial" ($1 million emotional distress damages) and constituted "complete compensation." (State Farm, supra, 538 U.S. at pp. 426.) Moreover, the Court observed that "[t]he compensatory damages for the injury suffered here . . . likely were based on a component which was duplicated in the punitive award. Much of the distress was caused by the outrage and humiliation [plaintiffs] suffered at the actions of their insurer; and it is a major role of punitive damages to condemn such conduct. Compensatory damages, however, already contain this punitive element. (Citation. [quotation omitted].)" Based on these considerations, the Court concluded that the 145-1 ratio of punitive to compensatory damages was constitutionally suspect. (Ibid.)
Contrary to Peterson's suggestion, however, in State Farm the Court did not hold that a punitive damage award is precluded under the federal constitution where the compensatory damages already contains a punitive element. Rather, the Court indicated that in such circumstances a lower ratio of punitive to compensatory damages is warranted. Here, assuming compensatory damages constitute "complete compensation" and that the award reflects a punitive element, the ratio of punitive to compensatory damages ($40,000 in punitive damages to $150,000 in compensatory damages) is well below the 1-1 ratio that may constitute the "outermost limit of the due process guarantee" in such circumstances. (See State Farm, supra, 538 U.S. at p. 425.) Accordingly, the punitive damage award passes muster under federal standards.
E. Entry of Judgment
Last, Peterson contends that the trial court erred because the trial judge did not sign the judgment, asserting that without the signature of a judge, "there was no entry of judgment in the instant case." Entry of judgment in this case is governed by section 664, which provides: "When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict within 24 hours after the rendition of the verdict. . . ." (Ibid. [italics added]) The record demonstrates that judgment was entered in accord with section 664. Nothing more is required. Accordingly, we reject Peterson's contention that there was no entry of judgment.
Peterson's reliance on People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289 (Frontier Pacific) is misplaced. In Frontier Pacific, the appellate court voided summary judgment entered against Frontier Pacific Insurance Company following the forfeiture of a bail bond. The court noted that where a statute " ' "requires a court to exercise its jurisdiction in a particular manner [or] follow a particular procedure, . . . an act beyond those limits is in excess of its jurisdiction." ' (Citations)" (Frontier Pacific, supra, 83 Cal.App.4th at p. 1294.) Because Penal Code section 1306 specifically places "responsibility for entering the summary judgment on default bail on the court," it was "the court's duty, not the clerk's, to render and enter the judgment." (Id. at p. 1295.) Accordingly, the court concluded that the form document signed by the clerk "was not effective as a judgment" and therefore "the 'judgment' is a nullity." (Ibid.)Patently, Frontier Pacific has no application to entry of judgment following a jury trial governed by section 664.
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DISPOSITION
The judgment is affirmed. Mendocino Game Company and Peterson shall bear costs on appeal.
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Jenkins, J.
We concur: _________________
Pollak, Acting P. J.
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Siggins, J.