Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Stanislaus County. No. 371230, William A. Mayhew, Judge.
Law Office of Herman C. Meyer, Herman C. Meyer, for Defendant and Appellant.
Linneman, Burgess, Telles, Van Atta, Vierra, Rathmann, Whitehurst & Keene, and Thomas J. Keene, for Plaintiffs and Respondents.
OPINION
Ardaiz, P.J.
Respondents Laurene Vitoria and Tony Vitoria brought this civil action for dissolution of a dairy business partnership they had with Laurene Vitoria’s younger sister, appellant Marie Pires Rupe. Rupe cross-complained against the Vitorias on various theories including conversion. The trial court heard the matter without a jury and entered a judgment dissolving the partnership and awarding Rupe (1) “the principal sum of $177,334.59, with interest, at the legal rate of ten percent per annum from October 15, 2006 until paid in full,” plus (2) “the principal sum of $10,800.00, as reimbursement for her share of … calf sales plus interest at the legal rate of 10% per annum,” plus (3) $116,079 for “conversion” by the Vitorias of a check in that amount “issued by the Dos Palos Y Auction Yard which was made payable to Defendant” for her share of auctioned partnership property but which was withheld from her for almost seven months. The court’s judgment noted that the interest on the $116,079 withheld from Rupe for almost seven months was “already figured in” the $177,334.59 portion of the judgment. The judgment also found Rupe to be the prevailing party for purposes of an award of costs.
Rupe contends on this appeal that (1) the trial court should have awarded her more money (apparently $397,685) and (2) the trial court erred in refusing to award punitive damages for the Vitorias’ conversion of the $116,079 check made payable to Rupe. As we shall explain, we find these contentions to be without merit and will affirm the judgment.
FACTS
In June of 2001 Laurene and Tony Vitoria entered into a written partnership agreement with Laurene’s sister, Marie Pires Rupe, to operate a business known as the Terra Nova Dairy. The agreement provided in part that “Tony and Laurene Vitoria shall be entitled to 70% and Marie Pires Rupe is entitled to 30% of the net profits of the business and all losses occurring in the course of the business shall be borne in the same proportion ….” The Vitorias owned the real property on which the dairy business was located. The sisters’ late father had been a dairyman, and prior to June of 2001 Laurene Vitoria had operated a different dairy with another sister.
Rupe’s husband Claude died in November of 2002. In June of 2004 the Vitorias lived on the property with Rupe and Rupe’s 20-year-old daughter, Kristina. In late June or early July of 2004 the two sisters had a dispute about Kristina’s behavior. Laurene Vitoria wanted to buy Rupe out and get Rupe and her daughter off the property. Two or three days later Laurene made an offer to Rupe to buy Rupe’s share of the partnership for $350,000 but Rupe did not accept the offer. Shortly after that Tony Vitoria came over one night to Rupe’s house on the property and told her the Vitorias wanted her off the property. Rupe left and never came back. Rupe and her sister did not speak to each other for two years, until a deposition in this case was taken in September of 2006. The present action was filed by the Vitorias in May of 2005.
In February of 2006 there was an auction of the dairy herd. The auction brought in proceeds of $1,375,056.10. Of this amount, $1,000,000 was used to pay the partnership’s indebtedness to a bank. The remainder was divided among the Terra Nova Dairy partners according to the 70 percent-30 percent formula. The Dos Palos Auction Yard issued a check made payable to Rupe in the amount of $116,079 representing her 30 percent interest. Rupe did not attend the sale. Laurene Vitoria took possession of the check and held it until she gave it to Rupe at the September 2006 deposition. Laurene Vitoria withheld the check from Rupe because it “was the only thing that I could hold over her head, for her to come to the table and hopefully dissolve [sic] this issue.” Rupe received payment of the $116,079 in September of 2006.
The only witness to testify at trial as to the amount still owed to Rupe for her share of the partnership was certified public accountant Michael Larson. Larson testified that as of October 15, 2006 (i.e., just a few days before Larson’s October 26, 2006 testimony), Rupe was still owed $177,334.59 for her partnership interest. The trial court’s decision noted that Larson’s testimony and his written “schedule” were “[t]he only accounting evidence received” at trial. The trial court’s decision expressly stated that the court “accepts his accounting.” Larson testified that in forming his opinion he relied on information that had been supplied to him by the Terra Nova Dairy accountant (a man named “Titus”), appraisals, inventories that had been provided to the bank, and “the books that Laurene Vitoria kept.” The court’s decision, however, also added $21,600 to account for off-the-books sales about which Laurene Vitoria testified.
THE AMOUNT AWARDED TO RUPE
This appeal requires us to revisit and restate some basic, fundamental principles of appellate review. “‘A judgment or order of the lower court is presumed correct.’” (Denham v. Superior court (1970) 2 Cal.3d 557, 560.) “‘It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such showing, the judgment or order appealed from will be affirmed.…’ [Citation.]” (Walling v. Kimball (1941) 17 Cal.2d 364, 373; Hibernia Sav. etc. Soc. v. Ellis Estate Co. (1933) 132 Cal.App. 408, 412.) “All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal.” (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681; Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.) “The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.” (Coleman v. Farwell (1929) 206 Cal. 740, 741.) “‘“[E]rror must be affirmatively shown.”’” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citation.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Substantial evidence is evidence “‘of ponderable legal significance, … reasonable in nature, credible, and of solid value.’ [Citations.]” (Id. at p. 873. italics omitted.) “When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.” (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429; in accord, see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
In this case the primary issue tried was the amount of money due to appellant Rupe to compensate her for her 30 percent partnership interest. Appellant expressly agreed that Larson was qualified as an expert to offer an opinion on that issue. Larson did so, and appellant offered no contrary evidence. Appellant raised no objection to any of Larson’s testimony. The trial court accepted the undisputed evidence. The testimony of a single witness found credible by the trier of fact “is by itself sufficient to constitute substantial evidence.” (City and County of San Francisco v. Givens (2000) 85 Cal.App.4th 51, 56.) This rule applies even when that witness is an expert witness. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 260; Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 243.)
Furthermore, even if we were to accept appellant’s argument that Larsen’s opinion was based upon a faulty or inaccurate assumption, and that the trial court should have rejected it, appellant makes no showing that any such assumed error was prejudicial. “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475.)
A “‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; in accord, see also Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; in accord, see also Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.) This “so-called Watson standard applies generally to all manner of trial errors occurring under California law, precluding reversal unless the error resulted in a miscarriage of justice.” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801; see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Thus, “[a]lthough the Watson standard is most frequently applied in criminal cases, it applies in civil cases as well.” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801.)
Although appellant argues that the court should not have accepted Larsen’s opinion because Larsen erred in assuming that “the partnership was done on June 30,” 2004, appellant makes no showing of any reasonable probability that she would have obtained a better result if Larsen (or any other expert) had instead assumed that appellant withdrew from the partnership at a later date, apparently February or March of 2006. No evidence was presented as to what appellant’s share of the partnership would have been valued at if an assumption had been made that appellant withdrew from (or “dissociated from” – see Corp. Code, § 16601) the partnership in February or March of 2006. We cannot simply assume appellant would have done better. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th 780.)
PUNITIVE DAMAGES
Appellant’s contention that the trial court erred in refusing to award her punitive damages for the Vitorias’ conversion of the Dos Palos Auction Yard check for $116,079 fails because a successful plaintiff is never entitled as a matter of right to punitive damages. “A plaintiff, upon establishing his case, is always entitled of right to compensatory damages. But even after establishing a case where punitive damages are permissible, he is never entitled to them. The granting or withholding of the award of punitive damages is wholly within the control of the [trier of fact], and may not legally be influenced by any direction of the court that in any case a plaintiff is entitled to them. Upon the clearest proof of malice in fact, it is still the exclusive province of the [trier of fact] to say whether or not punitive damages shall be awarded. A plaintiff is entitled to such damages only after the [trier of fact], in the exercise of its untrammeled discretion, has made the award.” (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801; in accord, see also Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1048-1049, and 10 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1611, and authorities therein cited.) Here, the trial court exercised its discretion to refuse to award punitive damages to Rupe. It was entitled to do so. We note in this regard that although the Vitorias withheld the check from Rupe and thus deprived her of interest she would have earned on the money, they did not profit from this tort. The check was made payable to Rupe. It could not be and was not cashed by the Vitorias. The money remained in the account of the auction yard owner until Rupe finally obtained the check. The Vitorias were also unsuccessful in their use of the withheld check as leverage to obtain a settlement. No settlement was ever reached.
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: Dawson, J., Hill, J.