Opinion
G054473
04-30-2018
HOWARD GENSLER, Plaintiff and Appellant, v. LISA MUKAI et al., Defendants and Respondents.
Howard Gensler, in pro. per., for Plaintiff and Appellant. Phillips Law Corporation and Brent R. Phillips; Jacobson & Gorrie and Ronald A. Gorrie for Defendant and Respondent Brian Lenorud. No appearance for Defendant and Respondent Lisa Mukai.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00780754) OPINION Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed. Howard Gensler, in pro. per., for Plaintiff and Appellant. Phillips Law Corporation and Brent R. Phillips; Jacobson & Gorrie and Ronald A. Gorrie for Defendant and Respondent Brian Lenorud. No appearance for Defendant and Respondent Lisa Mukai.
This case is a perfect reminder of the critical role a complete record plays in an appeal. After being bitten by a dog owned by defendant Lisa Mukai, and under the control of her son, defendant Brian Lenorud (defendant), plaintiff Howard Gensler filed suit alleging claims of battery, negligence and statutory strict liability, and seeking compensatory and punitive damages. A jury found in plaintiff's favor on the negligence and strict liability causes of action, awarding him approximately $7,500 in compensatory damages. The battery cause of action and the issue of punitive damages never reached the jury because the trial court granted nonsuit as to both.
Plaintiff appeals the grant of the nonsuit, claiming the court incorrectly stated the requisite elements of battery and the type of evidence needed to send the issue of punitive damages to the jury. We disagree as to battery. And, as for punitive damages, even if we were to find the court misstated the law, the lack of any transcripts of trial testimony or other evidence in the appellate record makes it impossible to determine whether there was evidence from which a reasonable jury could find clear and convincing proof of malice, fraud or oppression. Accordingly, plaintiff has failed to meet his burden of showing reversible error and we affirm the judgment.
FACTS
Plaintiff and defendant met for the first time one evening when plaintiff went to defendant's mother's condominium to look at a magazine collection defendant was selling. Defendant stood inside the front door as plaintiff walked up the pathway toward the condominium. Although the solid, opaque portion of the door was open, a security screen door was closed. Plaintiff observed defendant standing behind the screen door with a dog next to him.
Because the dog was barking, plaintiff allegedly leaned forward slightly and reached out his hand so the dog could smell it through the screen door. As plaintiff did so, defendant opened the screen door to greet him. The dog pushed through the open doorway and bit plaintiff on the right side of his face. As a result, plaintiff sustained cuts and puncture wounds which were treated with twenty-eight stitches and scar-reducing injections.
Plaintiff sued defendant and defendant's mother. The original complaint contained causes of action for negligence, battery, and premises liability, and it prayed for compensatory and punitive damages. Both defendant and his mother successfully demurred to select portions of the complaint.
Attempting to cure the deficiencies identified by the court, plaintiff amended his complaint to add factual allegations and a strict liability cause of action against each defendant. Defendant and his mother again demurred and filed a motion to strike the punitive damages allegations. The court partially sustained the demurrer, with leave to amend, and granted the motion to strike. As to the latter, the court found there were insufficient factual allegations demonstrating malice, but indicated plaintiff could move for leave to add a punitive damages claim to the amended complaint if he later learned of such facts.
Plaintiff filed a second amended complaint. After the amendment, the causes of action remaining against defendant were negligence, battery and strict liability. Those remaining against defendant's mother were strict liability and premises liability. Plaintiff also renewed his request for compensatory and punitive damages as to both defendants.
Defendants demurred to the battery cause of action against defendant (Lenorud) and the strict liability cause of action against defendant (Mukai), and again filed a motion to strike punitive damages from the complaint. The court overruled the demurrers and denied the motion to strike.
The case went to trial. After plaintiff presented his case in chief, defendants made an oral motion for partial nonsuit concerning the battery claim and plaintiff's request for punitive damages. Despite plaintiff's opposition, the court granted the nonsuit in full. It found a lack of evidence concerning two essential elements of battery and punitive damages. According to the court, those elements included: (1) "foreknowledge or pre-knowledge of the propensity of the animal to cause injury[;]" and (2) "evidence that the owners of the dog intended for some injury or damage to occur to [plaintiff], or anyone else who approache[d] the front door . . . ."
The remainder of the case went to the jury, which returned a verdict in plaintiff's favor, finding defendant negligent and holding defendant's mother strictly liable pursuant to Civil Code section 3342. Plaintiff was awarded $7,528 in damages, less $1,356 in medical costs paid by his health insurance. The trial court entered judgment accordingly.
Civil Code section 3342, subdivision (a), provides, in relevant part: "The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness." --------
DISCUSSION
Plaintiff contends the trial court erred in granting nonsuit in favor of defendants on the issues of battery and punitive damages because the court misstated the requisite elements of each, thereby holding plaintiff to a higher level of proof than necessary to send the matters to the jury. Specifically, he takes issue with the court's statement that required evidence defendant (1) knew the dog had a propensity to cause injury, and (2) "intended for some injury or damage to occur to [plaintiff], or anyone else who approaches the front door" of the house. Plaintiff also argues a prior ruling on a demurrer by defendant precluded the court—under the doctrines of res judicata or law of the case, or some variation thereof—from stating the law as it did at the time of the motion for nonsuit. We find no reversible error.
The contention concerning the alleged preclusive effect of the court's demurrer ruling is without merit. Res judicata and collateral estoppel apply to final judgments and orders from a separate, prior lawsuit. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-825.) The ruling which plaintiff claims had preclusive effect was a prior ruling in this same case made by a different judge at the demurrer stage. As for the law of the case doctrine, it only applies to principles and rules of law established by a prior appellate decision in the same case. (Kowis v. Howard (1992) 3 Cal.4th 888, 893.) There is no prior appellate decision in this case. And, case law is clear that a ruling on a demurrer has no preclusive effect. (De La Beckwith v. Superior Court (1905) 146 Cal. 496, 499; Valvo v. University of Southern California (1977) 67 Cal.App.3d 887, 892, fn. 3.)
Turning to battery, a question of law which we review de novo, the tort is generally defined as "any intentional, unlawful and harmful contact by one person with the person of another." (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611 (Ashcraft).) The elements of a cause of action for civil battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend him or her; (2) lack of consent by the plaintiff to the contact; (3) the defendant's conduct harmed or offended the plaintiff; and (4) if the conduct offended the plaintiff, a reasonable person in the plaintiff's position would have been offended as well. (So v. Shin (2013) 212 Cal.App.4th 652, 669; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 872.)
The "intent to harm" element generally may be satisfied in one of two ways. The first is to establish that the "very purpose for which [the defendant's] act [was] done" was to harm, regardless of the likelihood of harm. (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746 (Gomez).) The second is to demonstrate the harm is a consequence that is "substantially certain to result" from the type of act intentionally done by the defendant. (Schroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 922; see also People v. Colantuono (1994) 7 Cal.4th 206, 218, fn. 9 [battery shown by evidence defendant "willfully engaged in conduct that would directly, naturally, and probably result in injury to another when in fact such injury actually occurred"]; Gomez, supra, 50 Cal.App.4th at p. 746; Ashcraft, supra, 228 Cal.App.3d at p. 613 ["In an action for civil battery[,] the element of intent is satisfied if the evidence shows defendant acted with a 'willful disregard' of the plaintiff's rights"].) This recognizes the longstanding legal principle that "'every person is presumed to intend the natural and probable consequences of his [or her] acts.'" (Gomez, supra, 50 Cal.App.4th at p. 746.)
In the context of an attack by an unrestrained domesticated dog, if there is no evidence of a subjective intent to harm, the means of demonstrating intent is through evidence the defendant knew or had reason to know the dog was vicious, dangerous, or had a propensity to attack. With such evidence, it may then be said the harm is a consequence that is "substantially certain to result." (Gomez, supra, 50 Cal.App.4th at p. 746.)
Reviewing the trial court's legal pronouncements, it is plain the elements of battery it espoused were in accordance with the law. First, it stated plaintiff needed to show "the owners of the dog intended for some injury or damage to occur to [plaintiff], or anyone else who approaches the front door." This is the same as saying the owners had an "intent to harm." Next, the court stated plaintiff needed evidence that defendant knew the dog had a "propensity . . . to cause injury." While technically not a separate element, but instead a means of showing the requisite "intent," propensity evidence was necessary under the circumstances. Plaintiff readily admits there was no evidence to suggest that defendant subjectively intended to harm plaintiff or someone else walking to the front door. Thus, propensity evidence would have been the means of demonstrating the dog bite was "substantially certain to result" from defendant opening the screen door while the dog was barking and unrestrained.
Contrary to plaintiff's assertion, the fact the dog was barking as plaintiff approached the door was not sufficient to send the battery claim to the jury. Dogs bark at people they do not know, other animals, and inanimate objects. Sometimes they bark for no reason. Absent additional evidence demonstrating viciousness or dangerousness, barking is a "harmless activit[y] ordinarily associated with, and expected from, dogs." (Nava v. McMillan (1981) 123 Cal.App.3d 262, 267; see also Yuzon v. Collins (2004) 116 Cal.App.4th 149, 164, 166 [dangerousness not inferred from dog pushing, barking and jumping at screen door, or from dog running out open door and frightening neighbor]; Chandler v. Vaccaro (1959) 167 Cal.App.2d 786, 790 [chasing motorcycles and snapping at car tires does not give notice of dangerousness].)
Although plaintiff describes the dog as "large" and says it was "barking aggressively through the screen door[,]" these factual issues fall outside the narrow issue presented to us on appeal and outside the scope of the record before us. As plaintiff emphasized in his briefing, this appeal concerns whether the trial court's statement of the law regarding battery and punitive damages was accurate. Hence, he did not include any transcripts of trial testimony or other evidence in the appellate record. That omission precludes us from considering any of his factual assertions. (Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.)
The same problem plagues plaintiff's contention concerning punitive damages. He correctly identifies the statutory language that sets forth the standard for obtaining punitive damages—"where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." (Civ. Code, § 3294, subd. (a).) However, even if we were to find the trial court misstated plaintiff's evidentiary burden, the lack of evidence in the record renders it impossible for plaintiff to demonstrate reversible error.
We review a nonsuit concerning punitive damages to determine if the record contains evidence from which a reasonable jury could find clear and convincing proof of malice, fraud or oppression. (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60-61.) The problem here is there is no evidence before us on this issue; plaintiff apparently chose not to include any such evidence because he deemed it irrelevant to his appeal. "'"A judgment or order of the [trial] court is presumed correct. . . ."' [Citation.] It is the appellant's affirmative duty to show error by an adequate record." (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) Without any evidence in the record before us, we cannot say there was sufficient evidence concerning malice—the ground on which plaintiff bases his punitive damages claim—to send the issue of punitive damages to the jury. (See Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 ["'Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]'"].)
DISPOSITION
The judgment is affirmed. Defendant is entitled to costs on appeal.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.