California Court of Appeal Mar 29, 2016 No. D061969Unpublished
Filed 3/29/16 Chaker v. Troxel CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
NICOLE CHAKER, D061969
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2009-00100132-CU-CR-CTL) HAROLD RAYMOND TROXEL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Randa
Trapp, Judge. Affirmed.
Nicole Chaker, in pro. per., for Plaintiff and Appellant.
Joseph Barr & Associates, Joseph J. Barr, Jr., and Gary L. Ritchie for Defendants
and Respondents.
Plaintiff Nicole Chaker had a long-running dispute with her neighbors, defendants
Harold Troxel (Husband) and Barbara Bolla (Wife), which culminated in an October
2008 confrontation between them. Chaker then filed this action, pleading numerous
claims against Husband, Wife, and their daughter, defendant Sarah Bolla (Daughter),
seeking both compensatory and punitive damages.
Because Chaker sought punitive damages and a jury trial, the liability issues were
bifurcated from the punitive damage issue, tried and determined by the jury during the
first phase. On the liability issues, the jury returned a special verdict entirely exonerating
" '[I]t is incumbent upon . . . appellant . . . to make certain that the trial court has ruled [on
the appellant's request] and that the record on appeal discloses that ruling before the
alleged ruling may be assigned as error. [Citations.]' "].) The record contains only an
unrecorded sidebar conference between counsel and the court, after which the court
informed the jury it was required to determine the punitive damages issue (and instructed
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it on that issue) and the jury deliberated and reached its award. Chaker's attorney made
no objection on the record to that procedure.
Chaker is correct that punitive damages are based, in part, on a defendant's
financial condition (Bullock v. Phillip Morris USA, Inc., supra, 159 Cal.App.4th at
p. 690, fn. 18), and some evidence of that financial condition is ordinarily necessary to
support a punitive damages award. (Dumas v. Stocker (1989) 213 Cal.App.3d 1262,
1267-1270.) However, Chaker cites no authority suggesting the parties may not agree2
to submit the punitive damages issue to the jury without a separate evidentiary hearing on
the defendant's financial condition, particularly when (as here) some evidence of the
defendants' financial circumstances had already been introduced at trial. Because the
record permits the conclusion Chaker's counsel agreed to the procedure employed below,
she may not predicate error on that procedure. (Transport Ins. Co. v. TIG Ins. Co. (2012)
202 Cal.App.4th 984, 1000 [" 'Under the doctrine of invited error, when a party by its
2 The only indication of what transpired at trial concerning this question was that, in Chaker's motion for new trial, her attorney averred, during an unreported sidebar conference, he told the trial judge he "believed [he] was entitled to introduce evidence on Defendants' financial condition." However, in reply to the new trial motion, defense counsel averred that, during an unreported sidebar conference before the verdict was read, "[a] conversation ensued regarding how to best handle the next phase of trial. [¶] . . . [Plaintiff's counsel], the Court and I discussed going to the next phase of jury deliberations immediately after the reading of the verdict, without presentation of any additional testimony or evidence. [Plaintiff's counsel] and I both agreed upon proceeding to the next phase of jury deliberations without the presentation of any additional testimony or evidence. [¶] . . . [¶] . . . At no time did [Plaintiff's counsel] object to not putting on any additional evidence on any issue, let alone the issue of my clients' financial condition." 7
own conduct induces the commission of error, it may not claim on appeal that the
judgment should be reversed because of that error.' "].)
The "Inadequate Award" Claim
Chaker next asserts the amount awarded as punitive damages was inadequate. We
conclude this claim was waived below and has been waived on appeal.
When an appellate court reviews a claim that the damage award below was
inadequate, it is mindful that "[t]he amount to be awarded in a case of this type is a
question of fact. Thus it is to be determined by the jury in the first instance, and reviewed
by the court on motion for new trial [citation]. The issue must be presented to the trial
court by motion for new trial [and] cannot be raised for the first time on appeal . . . ."
(Jenkins v. Dahnert (1962) 202 Cal.App.2d 567, 568.) Although Chaker moved for a
new trial, the only arguments she presented in support of that motion were the
inconsistency of the verdicts and the erroneous preclusion of evidence of the net worth of
the defendants. She cannot raise the issue of inadequate damages on appeal. (Schroeder
v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918, fn 6.)
Moreover, even assuming Chaker had preserved the issue below, a claim asserting
inadequate damages is merely a subset of those appeals challenging sufficiency of the
evidence to support the judgment. (See generally Jenkins v. Dahnert, supra, 202
Cal.App.2d at pp. 568-569 [amount of damage award is fact question and may only be
reversed when "award is without support in the evidence"].) When an appellant claims
the evidence is insufficient to support the judgment, the appellant's opening brief must set
forth all the material evidence on point; the brief cannot merely state facts favorable to
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appellant. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Bresnahan v.
Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153, fn. 5.) When appellant's opening
brief states only the favorable facts, ignoring evidence favorable to respondent, the
appellate court may treat the substantial evidence issues as waived and presume the
record contains evidence to sustain every finding of fact. (Doe v. Roman Catholic
Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 ["Because plaintiff has
failed in his obligations concerning the discussion and analysis of a substantial evidence
issue, we deem the issue waived."]; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400,
409 [appellant cannot shift burden of presenting all material evidence to respondent, nor
is appellate court required to undertake independent examination of record when
appellant " 'has shirked his responsibility in this respect.' "].)
Here, Chaker's opening brief is almost entirely devoid of any reference to the
evidence presented below. She only briefly alludes to a few facts she deemed favorable
to her arguments while entirely ignoring all evidence favorable to defendants. Under
these circumstances, we deem waived on appeal any claim of inadequate punitive
damages.
C. Challenge to the Verdict in Favor of Daughter
Chaker finally contends that, because the evidence "clearly indicated" Daughter
instigated and participated in the conduct against Chaker occurring on October 4, 2008,
the court erred when it did not enter judgment against Daughter for elder abuse or false
imprisonment. However, Chaker did not move for a judgment notwithstanding the
verdict, and therefore waived at trial any claim the court erred in failing to enter judgment
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against Daughter notwithstanding the jury's verdict in Daughter's favor. (Bogacki v.
Board of Supervisors (1971) 5 Cal.3d 771, 780, 779-781 [party may not raise new theory
for first time on appeal and this rule "is to be stringently applied when the new theory
depends on controverted factual questions"].) Moreover, Chaker's claim—that the
evidence did not support the verdict in Daughter's favor—is also waived on appeal,
because (as discussed above) Chaker's brief states only the few facts she deemed
favorable to her arguments while entirely ignoring all evidence favorable to Daughter.
(Doe v. Roman Catholic Archbishop of Cashel & Emly, supra, 177 Cal.App.4th at
p. 218.)
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the jury's verdicts were not inconsistent because the statutory definition of elder abuse requires proof of physical harm, pain, or mental suffering, which the jury could have found absent despite finding the defendants committed assault and battery. Furthermore, the court held that the plaintiff waived her challenges regarding punitive damages and the verdict in favor of the daughter by failing to properly preserve them or present the necessary evidence on appeal.
Issues
Whether the jury's verdicts finding assault and battery but not elder abuse were irreconcilably inconsistent.
Whether the trial court erred in the procedure for determining punitive damages without a separate evidentiary hearing.
Whether the punitive damages award was inadequate.
Whether the evidence supported the verdict in favor of the daughter.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude the verdicts are not inconsistent because the elder abuse statute requires an assault or a battery that caused the victim to suffer physical harm, pain or mental suffering.”
“Because the record permits the conclusion Chaker's counsel agreed to the procedure employed below, she may not predicate error on that procedure.”