Toler v. Gordon CA1/5

Filed 5/16/14 Toler v. Gordon CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JOEL THOMAS TOLER, Plaintiff and Appellant, A136032 v. DONALD GORDON et al., (Solano County Super. Ct. No. FCS035803) Defendants and Respondents.

MEMORANDUM OPINION* Joel Thomas Toler appeals from a judgment entered on a jury verdict rendered in favor of respondents Donald and Terry Gordon.1 The jury awarded the Gordons $150,000 in compensatory damages on claims of malicious prosecution, intentional infliction of emotional distress, and assault. It also found Toler had engaged in the tortious conduct with malice, oppression, or fraud and awarded respondents $300,000 in punitive damages. Toler claims on appeal that: (1) the Gordons failed to prove elements of their causes of action; (2) the evidence did not justify the amounts of compensatory

* We resolve this case by a Memorandum Opinion pursuant to California Standards of Judicial Administration, Standard 8.1. 1 We use the name Gordon to refer to respondents. Although they were sued as Donald and Terry Compton, their brief tells us this was erroneous. It appears that Terry Gordon’s maiden name is Compton. We will therefore refer to the Gordons as they refer to themselves.

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and punitive damages; and (3) the conduct of respondents’ trial counsel was prejudicial to his case.2 The record in this case is sparse. The clerk’s transcript contains only a copy of the judgment, the jury’s verdicts, Toler’s notice of motion and motion for judgment notwithstanding the verdict (JNOV), a minute order, the notice of appeal, appellant’s designation of record, the trial court’s order denying Toler’s motion for JNOV, and the register of actions. We have none of the parties’ pleadings, none of the parties’ in limine motions, and none of the exhibits introduced at trial. We do have a reporter’s transcript of the trial proceedings. It is from this very limited record that we must glean the facts of this case. Insofar as we can discern, Toler initially brought an action against Donald and Terry Gordon. From the register of actions, he appears to have sought damages for tortious interference with a contractual relationship, defamation, and assault and battery. The Gordons filed a cross-complaint for malicious prosecution, intentional infliction of emotional distress, and assault. On the eve of trial, Toler voluntarily dismissed his complaint with prejudice, and the matter proceeded to trial on the Gordon’s cross- complaint. The events giving rise to the cross-complaint began in 2008, when Toler, a bail agent, contacted the Gordons in connection with a small claims court summons issued to a man named Thomas Hughes. Hughes had signed a bond contract for one of his co- workers, Jeffery Colon-Moore. The latter failed to appear at a court hearing, and a forfeiture notice was issued. Toler appears to have sued Hughes on the bond in small claims court, and he sought to serve process on Hughes at the Gordons’ address. After the summons arrived, Terry Gordon spoke to Toler by phone and told him the man summoned did not live there. Toler later went to the Gordons’ home looking for Colon-Moore. Toler was armed, refused to leave when asked, and made threats that placed the Gordons in fear for