*1 Dist., May 1970.] First Div. One. No. 25644. [Civ. FERRARO, Plaintiff and Respondent,
PAT al., et Defendants Appellants. FINANCE CORPORATION PACIFIC *5 Counsel O'Connell Woelflen, & Frederick J.
Partridge, Todisco Partridge, & and Peter J. Capriola Defendants and Capriola Appellants. Rea, Frasse, Anastasi, Clark Lewis & and William G. Clark for Plaintiff and Respondent.
Opinion ELKINGTON, (Pacific) J. Defendants Pacific Finance Corporation Steitz, William (Steitz), business as Bill Steitz doing Motor Sales appeal Ferraro, in favor of judgment Pat entered ver plaintiff dicts 12, 1968, on July pro nunc tunc as of 1968. The action January *6 for brought damages from the conversion Pacific resulting alleged by and Steitz of Ferraro’s automobile.
At an earlier trial the Fer- court directed the to return a for jury verdict compensatory raro’s the were also By instructions damages. they permitted so, exemplary awarded, to determine whether if the should be damages $2,812 amount. The fixed the at and awarded jury damages compensatory $15,000 $8,000 damages of Pacific and Steitz. exemplary against against trial, On Pacific’s and Steitz’ new a limited new trial “solely motions for a the issue of the amount to be assessed” was granted. of damages punitive The from which based the verdict this taken is judgment appeal $2,812 for of the first and exem- returned by compensatory damages jury,
345 Steitz, re $8,000 $25,000 against of Pacific and damages against plary also Pacific has the second after the limited retrial. turned by jury clerk, 1967, 30, the pur August from a entered “judgment” appealed 664, following section of Code of Civil Procedure suant to the directions trial had the effect a the first verdicts. order limited new granting The jury’s 840 822, Wolf, (Love v. of the earlier 249 Cal.App.2d vacating judgment. 543, P.2d 42]; 544 Goldberg, King [523 Cal.Rptr. P. 1035]; Mfg. Kerrigan, Universal Film Co. v. 47 Cal.App. the 475].) lie a vacated judgment an cannot Since obviously appeal be 1967, must from the entered “judgment” August purported appeal dismissed. is that the awards of exemplary contention
Appellants’ principal the must be set aside since were they based and prejudice upon passion jury. rule.
In our are the evidence” we bound “substantial inquiry This holds a on the that when verdict is attacked principle ground it is not sustained the of an court begins evidence power appellate evidence, ends con with determination whether there is substantial uncontradicted, verdict; tradicted which when two will support more inferences can court be drawn from the facts reasonably reviewing fact, not may substitute its deductions jury. for those trier of here the (See Inc., Estates, Green Trees Enterprises, Springs Inc. v. Palm Alpine Cal.2d 805].) Following substantial evidence rule we facts in accept support awards as were they found presumably jury. The trial record discloses the following evidence.
In 1966 one Howard April bought Bowers Cadillac automobile Steitz, from defendant a used car dealer. The took the transaction form a conditional sales $600 contract under which Bowers made down pay- ment and agreed to the balance in pay installments. contract monthly was then sold and assigned defendant Pacific under an agreement pro- viding Pacific would have indicia” of the car. In “ownership preparing the necessary application change with Motor Vehicle ownership of Steitz Department, to indicate Pacific’s employee neglected security in, of, interest or “legal error, ownership” Cadillac. Because this some *7 weeks later the Motor Vehicle forwarded to Bowers a Department nego- tiable certificate of automobile, ownership of the “pink slip” which showed to be him owner the vehicle to be unencumbered.
Plaintiff Ferraro was the of a manager motel Santa Clara 19, 1966, On he County. July Bowers, learned that motel, a of the had guest a Cadillac The automobile which he wanted to sell. Ferraro was interested. exhibited. ex- designating Bowers as owner was Ferraro slip,” “pink $2,700. amined and then offer was drove car offered Bowers The and the Bowers delivered the endorsed price accepted paid. slip” “pink and the automobile to Ferraro on 20. The transfer as to Ferraro was July in all bona fide. Ferraro thus became the absolute owner of respects Cadillac free automobile of claim of Steitz or Pacific.1 any
In the meantime Bowers installment of the con- had missed the second tract then owned Pacific. around Sometime July “prior 18,” Steitz learned He July that the had been issued to Bowers. “pink slip” communicated this On or 20 promptly information to Pacific. July Steitz “checked with the of Motor Vehicles and determined Department Mr. Bowers had the issued in his name.” He Pacific informed. pink slip kept Soon thereafter both Pacific and Steitz learned that the was in Fer- Cadillac raro’s Then given Pacific heard that had the car to possession. Bowers car, Ferraro. It entered Pacific’s but Ferraro had mind purchased decided company against making of him. On or about any July inquiry 26 Pacific decided to of the “got ignition ahold repossess. company number and trunk number so could drive be made so could keys [Pacific] the car Decision was away.” reached to the car around 3 o’clock pick up the morning.
Asked if there was reason he didn’t check with Ferraro before any why vehicle, (since Pacific’s repossessing operations manager promoted transaction, branch manager) who handled the directly replied, “[T]he easiest is to restore the automobile first and be way ask second to questions frank, because we in a lot of trouble quite with third get fig- party people had a to the car.” He uring they legal right then stated that such was “the of the policy company.”
Pacific then called its automobile to do the upon professional repossessor said, state of the car’s title this “I job. Upon learning man would like this and not involved. It just pass assignment get cause me might some Steitz, aware of Ferraro’s had no intention to ownership, problem.” pick up the car. asked to do so Pacific he declined When ex- undertaking California, anyone engaged selling as is well known to in the business 1In automobiles, lending money security prospective purchaser a on the knowledge of motor may rely exclusively defect on the véhicle without tion disclosed 4453.) of title informa (See Code, statutory ownership. §§ Veh. 4450- certificate of Hays City Sprigg, As is stated in First Nat. Bank 838], 259-260 “California is known as a title’ state ‘full insofar registration anyone transacting motor This vehicles concerned. means that rely business with the owner of motor vehicle can the title as reflected registration certificate, inquiry.” without further *8 fact, contract, and, as Pacific’s own it was “because the cept agent, they car, their as far as was concerned.” Pacific letter author- accordingly by [he] ized a Steitz “our 1964 Cadillac.” With the letter he employee up pick was furnished Pacific with and a written memorandum duplicate keys address, motel,” Ferraro’s giving him as “owner of and describing suggest- ing that be done at “3 a.m.” The job was for admittedly repossession Pacific,” the “account of not Steitz.
Ferraro’s car 28-29, 1966, during night picked up July taken to Steitz’ lot where it was held he to Pacific’s order. When subject discovered his car to be Ferraro missing, notified who later in- police formed him that “Pacific Finance had it.” Company repossessed
On August 1966, Ferraro’s wrote Pacific as follows: “This attorney office Patrick represents F. Ferraro who the above-described purchased 20,1966, automobile on July from one Howard Bowers. Mr. Bowers had the to the car in pink his slip be the him to owner. On possession showing legal 28, 1966, July Mr. Ferraro found his car it stolen. missing reported We discovered that your this car company off street and drove picked up it to Fresno. We are immediate return of this demanding car giving you avoid If we opportunity are forced to litigation. this mat- litigate ter, we will not conversion, seek only reimbursement for but we ask for will exemplary damages this outlandish act. We suggest you im- reply mediately.”
Pacific’s house counsel “Your letter replied August stating: August was handed to me for The contract we held in the response. name of Howard Bowers has been dealer and repurchased by selling Pacific no Finance claims longer interest or over the any control Cadillac described in the ... I communicate with caption. suggest you [the dealer’s to discuss attorney] what if client has to rights your possession of the Cadillac. Incidentally, dealer its selling through agents repossessed the Cadillac as a result of default on the Howard part purchaser Bowers. Do not hestitate to me a line if drop wish to you communicate further with Pacific Finance in this matter.”
Pacific’s letter of 4 was August and in several false. Its misleading respects writer admitted on the witness stand that he had learned on August “Mr. had Ferraro actually car” from bought Bowers. car’s contract had not been (Steitz). dealer” “repurchased by Nor had the “sell- selling dealer” ing the Cadillac repossessed its the car had “through in fact agents”; been taken Pacific letter, its And through Pacific agent. contrary to at the have, time claimed to asserted, or at least “an interest or arbitrarily control” over vehicle.
Ferraro’s efforts to obtain the car from Steitz met with a similar lack of success.
On 1966, the September Motor Vehicle wrote to Pa- Department cific stating: “Since the vehicle has been transferred this now becomes a civil matter and we shall be to issue certificates in the name of Pat obliged Ferraro, unless we receive within the date of this letter a days Restraining Order issued out of a California a or U.S. Court or request from law enforcement to withhold transfer.” Pacific agency thereupon, due, for the September balance sold the vehicle’s contract back to Steitz. Steitz’ status as of Pacific was ended and he succeeded agent whatever claim or right had over the car. Steitz possession company then, means of a by order, court issuance of a superior restraining prevented “pink later, slip” Ferraro. Some weeks as in fact” Steitz “attorney ap- for a plied duplicate “pink falsely certifying original in slip” “lost, stolen, Bowers’ name had been mutilated or is Steitz ex- illegible.” at the trial that he did so “because the plained other certificate ownership locked was in litigation.” Under up circumstances not clear from the record the Motor Vehicle Department, although holding original “pink slip” name, Bowers’ Bowers, issued the Steitz then located duplicate “pink slip.”2 somehow obtained his to the signature duplicate “pink slip,” thereupon sold the Cadillac to some third party.
It is worthy related, that at no time emphasis the events we have during trial, during contention made Pacific or Steitz that Ferraro by was not an innocent of Bowers’ car for value—or not its purchaser owner in fact and Pacific, i.e., in law. It is also noted that officers of responsible its operations counsel, its district manager, and its house manager, par- in the ticipated of the repossession car with withholding knowledge Ferraro’s title. we evidence have related is substantial and to a considerable
extent it is uncontroverted. It must be assumed that it was believed and ac and it by must be this cepted jury, court. It discloses a accepted tortious, felonious,3 highhanded, of Ferraro’s perhaps taking property Pacific and Steitz. trial, 2No contention was appeal, made at or on this that Bowers or Steitz or anyone any rights against duplicate “pink derived virtue slip,” Ferraro order, restraining
or the or the action in which it was issued. unlawfully another, away personal 3One who takes and property carries against permanently owner’s will and deprive with intent the owner of its (Pen. Code, 484; Witkin, possession, guilty (1963) is § of theft. Cal. Crimes 349-360.) pp. property exceeding If the is automobile or $200 an of a value theft, grand (Pen. Code, 487.) felony. offense is Although § a criminal act agent, principal knowingly committed his who party directed the act is also a 31; (Pen. Code, Witkin, (1963) 49-50.) to the pp. § offense. Cal. Crimes had been ad Without a financial Pacific statement objection *10 evidence; $750,000,000. The jury mitted in it current of over showed assets were invited to the Pacific “for the purpose consider financial condition of has been long of the of their amount award. This graduating” exemplary Williams, P. 875]; 705, to v. (see held be Marriott 152 710 Cal. [93 proper Assn., 357, 1050]; Mc Greenberg v. Western Cal. 364 P. 140 [73 Turf Wadler, 124, Bille v. 37]; Mann v. 131 Cal.Rptr. Cal.App.2d Manning, 142, 254]). “An important is the damages factor in the of an award for determining propriety punitive Motors, Guaranty of Chevrolet 270 Cal. (Horn wealth the tortfeasor.” Co., 477, 871]; McCarthy 267 Cal. Oakes v. App.2d [75 Cal.Rptr. 127].) App.2d our initial urged, following
Pacific on strenuously rehearing petition court, affirmance of the and this that the trial and judgment, jury judge, to failed the circum- give consideration to following mitigating proper (1) stances: Pacific it of advised Steitz to return Ferraro’s car when learned (2) his and it the day the Motor Vehicle ownership, Department telephoned the the before and was told there had been no car’s change repossession granted title. We the for the further consider- of rehearing giving purpose to ation these representations.
We first after re discuss Pacific’s insistence that the automobile’s it had to It is noted that advised Steitz return car Ferraro. possession this contention is of and entirely based officers self-serving testimony of Pacific.4 and the counsel relevant kind was any No writing produced was not And was other testimony corroborated Steitz there anyone. wise much to discredit contention.
Pacific’s “house counsel” testified of Au- that before he wrote letter 4, 1966, (see gust ante) to Ferraro’s he and the p. attorney company Ferraro’s title recognized and that oral “demand right to Cadillac had been made the dealer to Mr. return the car Ferraro.” upon [Steitz] letter, Yet his written while held Steitz the vehicle as Pacific’s makes agent, this; no mention of instead it that Ferraro’s discuss with suggests lawyer Steitz’ attorney any “what rights has to your client possession if (Italics Cadillac.” added.) Furthermore, Pacific itself could have returned the car then or anytime next several weeks. Steitz had held during pos- session the car for Pacific as or bailee agent from the time it had been at Ferraro’s And picked motel. Steitz had up no or claim of right right 4Pacific has furnished us with transcript testimony proceedings question first trial where also the principal was the issue. suggestion Nowhere in record we do find a testimony or otherwise that Pacific had ever advised Steitz to return Ferraro’s car. Pacific; as against or its asserted no to the automobile right, possession argument, in his when he advised Pacific’s trial counsel so conceded this case to determine can Pacific Finance’s involvement “You only until the action extent of its malicious and wanton misconduct oppressive And Steitz. date of car was 15 when the repurchased” September must the car returned doubt whether Pacific ordered finally, lingering conduct vanish with a consideration of that reasonably company’s unless Vehicle letter stating 13 Motor receiving Department September issued would be certain were taken within 10 a new days, “pink slip” steps control of the Ferraro. was to Pacific’s response, September give up *11 full there- car contract back to Steitz and receiving payment by assigning its of Pacific thus insured that Ferraro would be deprived for. permanently his property. directed arguendo, if we contention that it orally
Even Pacific’s accept, Cadillac, right to return the an unconditional to Steitz such was not attempt that such redelivery done It must be inferred Ferraro. wrong certainly Steitz, contract, loss. was conditional on under his making good'Pacific’s another, an one has taken the of Where knowingly property wrongfully not reason- to of its value a third may offer return it upon payment party circumstance; aggra- mitigating be instead it would seem to deemed a ably vate the wrong.
There is also decided evidence that it in conflict with Pacific’s claim to 27 only it “learned” a call on repossess through July telephone after that Bowers had claim never been owner. This as the Cadillac’s registered is contradicted Pacific’s dated 26 authorizing sharply telegram July car, fabrication of to take the and the even earlier professional repossessor for evidence duplicate keys the record we find purpose. Throughout had learned “for the Motor Ve a fact” as 17 from early July Steitz Bowers, hicle that a to and that had been issued Department “pink slip” this information had interested officers. been furnished Pacific’s promptly Without contradiction the evidence showed that an automobile purchaser had 10 which days registration, to of change ownership within apply and that after such 45 to be allowed before the 60 must application days on the Motor Vehicle records. For this reason change appears Department’s Pacific knew that there could be official record on of no available July of title to Ferraro. change
Civil Code the breach an ob- section 3294 “In an action for of provides contract, been of not where the defendant has ligation arising guilty fraud, malice, or in addition to or plaintiff, oppression, express implied, example the actual the sake damages, recover may damages for of (Italics added.) way punishing defendant.” for con are awardable in an action damages Exemplary properly fraud, version, malice, (Haigler given showing oppression. required 331].) such Donnelly, Although v. 18 Cal.2d P.2d should be of them “are favorite of the law and damages not granting Ashe, (Gombos v. with the caution” 158 done greatest nevertheless, 933]), damages whether such P.2d the determination so, amount, of the awarded, and, function should be if is the exclusive Church, Cal.2d Baptist It said in trial Brewer Second jury. case, en 713], his is always “A establishing plaintiff, upon a case But after establishing titled even right compensatory damages. them. The he is entitled to where are never permissible, punitive damages within wholly award is damages granting withholding punitive direction of the control of the not be influenced jury, may any legally entitled them. clearest the court that case a is plaintiff Upon fact, say of malice it still the exclusive proof province A is entitled to be awarded. whether or not shall plaintiff punitive untrammeled its discre such after the in the exercise of damages only jury, tion, has made the award.”
It has been damages, held after a award jury repeatedly exemplary say it becomes the for new trial to of the trial court on motion province Lockhart, the Cal.2d (See Finney whether is excessive. amount 19]; Boughton, P.2d Zimmerman v. 197 Cal.App.2d 119]; Inc., Shops, Country Lawson v. Town & Cal.App .2d 843].) “After an has been award approved trial the court the will to the amount by court hesitate declare reviewing excessive unless consideration the entire record the evi including dence it must be said that the award was result of or passion prejudice.” Lockhart, (Finney v. supra, 164.) we that the Here note trial p. court motion for a new trial refused to awards. upset exemplary To reach a conclusion that the $25,000 subject $8,000 awards of and re- sulted from or passion we must find prejudice that each of (the the 12 jurors verdict was unanimous) was so motivated. We must further and go draw the same conclusion with to the for, trial respect out, as we judge, have pointed it was his to allow duty awards to stand if only exemplary were they reasonably supported by evidence. were jury instructed properly the court. were advised They
to consider the case without regard to sympathy, or prejudice, passion or against any party. were told They that where a has or person maliciously wantonly another, oppressively, caused proximately to injury might punish be awarded “to wrongdoer . . . and to serve as an (Italics such conduct.” example warning engage to others not added.) (See Code, 3294.) Civ. §
It that Pacific’s that the could conclude reasonably jury appears was at least cer in the to be redressed” equal, participation wrong “sought the fol than, not are less that of such conclusion tainly Steitz. Supporting lowing considerations. not have
It is but would undenied that for Pacific’s Steitz importunities, and taken Ferraro’s automobile. He did so Pacific’s authorization only upon instruc- then as Pacific’s and for Pacific’s account. The detailed solely agent address, whereabouts, as to and hour of re- tions Ferraro’s the car’s obtained, were and the prepared, necessary duplicate keys possession Ferraro, Pacific ad- Pacific’s When was made manager. complaint he was to the mittedly knew that the owner entitled possession held for the vehicle which it had taken. The car at Steitz time “account” of contract. its letter Pacific which owned Bowers But in Pacific insisted it had resold the car’s contract Steitz “no falsely Cadillac,” claimed interest or control and denied longer any over “through agents for its that Steitz its wrongful responsibility taking saying the Cadillac.” repossessed must
We disbelieved Pacific’s of its oral presume testimony wished, directions to Steitz to Even return car. if we were permitted, to be charitable to Pacific on this then we would be find question, obliged that the car It was ordered returned with the be Steitz. loss to borne by inconceivable that Pacific had waived its the dealer which had rights against the Bowers contract. Pacific’s that Ferraro should *13 determination guaranteed not recover his was further when the Motor Vehicle demonstrated property advised of its issue the intent to a to Department slip” company “pink Ferraro. Such official transfer of would have resulted certainly ownership in the of the Cadillac to now Ferraro—the that Pacific delivery thing very it claims for several wanted to But had weeks do. instead of the allowing course, Pacific, due, to take its the for amount then transferred the transfer Bowers contract back to Steitz with the results we have heretofore discussed. Pacific intentionally Thus its to correct beyond any placed power ability Ferraro. the it had done And this whole admittedly of wrong sorry spectacle had in its a “to arrogance genesis restore the corporate policy automobile frank, be and ask second to because a lot first we in of questions quite get had a with third to the figuring they legal trouble car.” party people right seems well in the awards exemplary The difference two amount indicated, the had been As the evidence and reason. jury by by supported as defendants would awards damage against to such told return exemplary to others or ... serve an example warning and to the wrongdoer “punish apparently a engage large not to in such conduct.” Pacific was corporation, somewhere at the rate of in the automobile engaged buying financing public 50,000 a 100,000 It had cars each year. adopted company between and (as rightfully its some whenever in course of business person, policy; aof otherwise, or a to here) possession or claimed adversely right ownership force after vehicle, stealth or that the car be seized policy required obvious to would It becomes which the “ask company questions.” its alert mind that a must be With very reasonable such profitable. policy hundreds, counsel, enforcers, staff of other perhaps and repossessors, policy are, thousands, or annually must right adverse claims which be made that many It is as obvious resolved Pacific’s favor. wrong, speedily just unable, reasons re- must be or for other financially victims policy to luctant, to resources are re- obliged with Pacific’s economic cope is it is in the claims. Such a malicious just linquish oppressive; policy interest that it be curbed. public with an “ex- charged establishing
A jury wrongdoer” “punishing [Pacific, Steitz, such to others not to con- ample warning engage and] duct” must have was necessary that a substantial award speedily recognized would as to Steitz An amount which be accomplish purpose. adequate well be an might for Pacific acceptable continuation price pay its And it must be remembered that in the awards policy. fixing jury respective were told positions consider the they might de- financial seen; Here no manifestation of again, passion prejudice fendants. rather jury of conscientious discerning judgment appears.
Defendants, Pacific, out the ratio” actual particularly point “disparate in the awards. exemplary damages
There is no fixed ratio which to determine a proper proportion between the two classes of damages; factors the amount of influencing award can be disclosed only the trial record including review of the Lockhart, evidence. (Finney v. supra, 161, 164; 35 Cal.2d Co., Oakes v. McCarthy supra, 263.) su Although perficial are of comparisons value, little we observe the relation of actual to cases; exemplary damages Lockhart, approved in Finney v. following *14 supra, 161, 35 Cal.2d $1—$2,000; Co., Scott v. Times-Mirror 181 Cal. 672, 345 P. 12 1007], A.L.R. $7,500-$30,000; Guaranty Horn v. Motors, Chevrolet supra, 477, 270 $842-$5,000; v. Cal.App.2d Oakes Co., McCarthy supra, 267 $14,825-$59,300; Cal.App.2d Giorgio Di AFL-CIO, Fruit Corp. v. 215 350], Cal.App.2d [30 Cal.Rptr. $10,000-$50,000. Co., Scott v.
In Times-Mirror supra, 181 Cal. the court considered a similar argument of a ratio of disproportionate actual to dam- exemplary Quoted found 367) statement with was the following (p.
ages. approval Shaw, are v. “Where the jury Luther 157 Wis. N.W. : properly 18] as in- with damages, such broad discretion reference to given exemplary might dicated the code of were told by they instructions whereby they and assess defendant a sum which deemed against they just proper, others, entitled best calculated to be an to and to such are him jury example observe these what they say. to instructions in faith as just meaning good How, then, no can it be said that their verdict They disregarded is perverse? evidence and violated instructions these damages. no in fixing exemplary a estimates what would be sufficient as and deterrent a punishment Their of and an as- was with the actual very high damages example compared view, sessed and but be candid to high of it would any point hardly ex- invite them in the of this instruction to fix such sum which language matter, their such and then them bias or judgment charge pressed with because the measure conduct of their abhorrence of defendant’s perversity their what would be a sufficient and deterrent judgment punishment was sum of than that some other man which represented larger money (Also Giorgio or men would have allowed.” Di Fruit cited with approval AFL-CIO, Shaw, Corp. supra, 581.) Luther v. In Cal.App.2d supra, the ratio of actual to the court was exemplarary damages approved by $1,500. $150 to here, in the of the conduct defendants is light disparity us,
shown the record before does not to us be unreasonable. appear Accept. Corp., v. Mercantile Luke Defendants some reliance on place 438) automobile case In that (p. 764]. that basis for holding defendants] was converted with “some erroneously finance was made exhibited malicious When complaint purpose.” the car. Ap and offered to return the owner’s recognized rights company “there offer, court considered because of that parently appellate distin the detention [as does not to have been any appear oppression also found from the the car.” The court initial guished conversion] instructed exemplary the trial had been jury erroneously question 439): the erroneous instruction It was concluded “In view of damages. (p. excessive ex borne unreasonable given proportion [$2,500 $580.80 re to the actual sustained damages emplary .” damages... there should be a retrial of issue spectively], Luke, to defen- home brought In when the conduct of their agents de- before us both dants, In the case endeavored to the situation. they rectify Fer- Cadillac. When knew Ferraro to be the owner of subject fendants control denied untruthfully demanded his Pacific at first raro property, whole, car over turned the vehicle, later, made over the and then being
355 Steitz, con- Steitz. that defendant similar demand was made on Although certificate, nived with Bowers to secure a fraudulently duplicate ownership continued, virtue of being which the with Ferraro conversion wrongful denied of a sort forever his malice and Aggravated property. oppression not in Defendants’ reliance on Luke were here found appearing jury. Luke is misplaced. discussion, least recognize
We that the at awards here under after of all windfall to Ferraro. constitute a payment litigation expenses, result, Legal writers have criticized that such awards this some saying clear; should be made to the in a case state. But California law proper “the in addition to the actual recover plaintiff, damages, may Code, the sake of (Civ. the defendant.” by way example punishing 3294.) must be Any change § made not courts. Legislature, in awards this case were did bear a ratio certainly substantial and they large to the feel allowed. But even this court compensatory damages may though fact, awards, amounts, had it been the trier of such their have or would different, been we are nevertheless bound the rule that we not dis- may turb them unless have they resulted from prejudice. appear passion Barber, (See 54, Gruner v. 292].) 207 58 Cal.App.2d Cal.Rptr. [24 In our view the to have considered the evidence jury appears faithfully and followed the trial awards seem to court’s instructions. Their exemplary reflect evidence, close and reasoned consideration not passion prejudice against either Pacific or Steitz.
Defendants also erred in contend that the court at the first trial a directing verdict that Ferraro was entitled This damages. to compensatory not point may now be raised on from the following judgment appeal second trial for reasons we shall now relate.
Code of (reenacted 902) Civil Procedure section as 938 1968 provided § that “Any party aggrieved may cases appeal prescribed [Code 904.1)] (reenacted Civil Procedure .” . . . Section 963 § 963 1968 § allowed an “From an new . . .” One order trial. appeal granting who moves for a new trial on all issues and obtains a new trial only limited issues is an the new who aggrieved right has party appeal Nelson, (Spencer 162, 886]; trial v. order. 30 Cal.2d 164-165 P.2d Holder, Stegmann 1]; v. 223 Danielson Cal.App.2d Stokes, 489]; Garcia v. San Cal.App.2d [29 Cal.Rptr. Mixt, Gabriel Ready 327]; but see Mfg. Kerrigan, Universal Film Co. v. supra, 255.) Code of Cal.App. Civil (reenacted Procedure section 956 906) 1968 as “The provided: pro § visions of this section do not authorize the court to review decision or
356 effect to sec been taken.”5 order from which an have might Giving appeal Ackerman, 644, 956, 648 Woodman v. Cal.App.2d tion 249 [57 allow, from a 687], not on an judg law of this does appeal states: “The state ment, which an might a review of decision or order from pre any appeal 470, Tingley, Mohn Cal. 492 (See have taken.” also v. been viously Parker, 473]; 286, 733]; P.2d P. West v. [217 Cal.App.2d Assn., 327, & Weber v. Marine Cooks' Stewards' 93 Larson, 304, 852].) 1009]; P.2d Weygandt 130 Cal.App. defendants, It failed to from order follows that having appeal trial, new that the first trial a limited not now granting only may complain erred a verdict the issue of judge damages. directing compensatory that the in the second trial erred defendants contend court
Finally, the amount exem were to determine of directing jury they only and not allowed. This con damages, whether such should be plary tention also we find to be without merit. trial,
In the earlier out, as we have returned a pointed jury verdict against defendants for compensatory As to the damages. exemplary damages the vedict had not been directed. The new trial being granted on the issue of the amount of exemplary damages only, question whether there should be such damages was the first disposed jury. And, for the reasons indicated, we have the order the limited granting new trial is now beyond (see cited, review appellate ante). authorities Accord- it was ingly, without error that the court at the second trial instructed that was to determine only amount of exemplary damages. find a We motion of Ferraro to dismiss defendants’ from the appeal 12, judgment 1968, entered July pro 31, nunc tunc as of January merit, be without and a discussion thereof to our unnecessary disposition the cause. entered on judgment pro nunc tunc July as of January
31, 1968, affirmed; is the motion to dismiss the from appeal judgment “Upon text section 956 follows: appeal judgment 5The full decision, may court review the verdict any ruling, or proceeding, intermediate order or necessarily decision which involves the merits or judgment, affects the substantially rights which party. may affects the of a appeal The court also on such any review order respondent, on motion a new party trial. The in whose judgment given, favor the was may, appealing judgment, without request from such may any the court to and it mining foregoing review purpose matters for the of deter appellant whether or not the prejudiced by the error or errors which he relies for reversal or judgment modification appeal from which the provisions taken. The of this section do not authorize the court to review decision appeal might or order from which an have been taken.” *17 30, 1967, The the is August is denied. from entered appeal “judgment” dismissed.
MOLINARI, P. the decision reached J. I concurin by my colleague decision, I and in that do not Elkington Justice the rationale of his excepting the have subscribe to the the vehicle suggestion may repossession to been felonious or the that the course of conduct employed suggestion this case Pacific Finance is to a policy Corporation pursuant company case cars which it has to In this both no repossessing right repossess. Pacific and the dealer acted Steitz and With maliciously par oppressively. ticular the regard to Pacific’s conduct I the record am satisfied that supports that, Steitz, former, inference as the as the between Pacific and assignee sold, owner of the conditional under the vehicle was sales contract which Steitz, had it within in the its who was re to Pacific’s power compel agent Ferraro, to return the at to the possession, vehicle to least time plaintiff up Pacific sold the contract to not back Steitz. In Pacific was my justi opinion fied in the to the the contract Steitz under circumstances. Under reselling executed of the Steitz “Repurchase Agreement” assignment as to part Pacific the former to the latter the balance under the agreed pay unpaid contract repossessed demand or the ve of Pacific recovered if Pacific hicle, the provided vehicle was to tendered Steitz Pacific within speci fied Pacific, Here the is record bereft of demand but period. any such more important, a valid repurchase agreement reposses contemplates sion Here, Pacific. that Pacific did make the recovery by assuming demand, subject when, it acted reason to oppressively knowing having believe, that it did not have as an innocent right against to repossess it purchaser, its to the assigned vehicle back to rights Steitz.
Although award Pacific is in relation to the actual dam against high ages Ferraro, sustained I do not consider it so grossly disproportionate as to raise a that it is the result of presumption passion prejudice.
As indicated in the of Justice opinion Elkington purpose an award of to the defendant and to exemplary damages solely punish make of him. is to make example object damages exemplary Catalina, as well as the example (Thomson fit the offense v. punishment 402, 205 Cal. 198]), 405-406 P. nec the amount determining essary effect the to con impose was entitled punitive appropriate jury Williams, sider wealth (Marriott 705, v. P. Pacific. 152 Cal. 710 [93 875]; Co., 231, Oakes v. McCarthy 264 Cal.App.2d Cal.Rptr. 127]; AFL-CIO, Di Giorgio 560, Fruit Corp. v. 581 [30 Cal.App.2d 350]; MacDonald v. Cal.Rptr. Joslyn, Cal. 293 [79 case the measured Torts, 908.) 707]; Rest., Here in present § Rptr. ability Pacific’s evidence indicating in the light the punishment Court, 210, 58 Cal.2d (see Coy Superior the award respond 678]), so made and in doing A.L.R.3d 373 P.2d in fact If Pacific has per- as the fit offense. well example punishment of the award disclosed in this case in the of conduct sisted type deter- as a $25,000 serve to act sum of should in the substantial *18 rent its against repetition. Cor Finance $25,000 Pacific award of
SIMS, against J. I dissent.—The (1969) Simpson Cunningham (see shocks conscience my poration view as I 855, 39]) because P.2d Cal.3d 308-309 the restoration did not act to the evidence the defendant prevent its demanded second to its owner after the purchaser automobile rightful con of the formal repurchase return. there was no Although reassignment obvious, 15, 1966, it tract the dealer until September the indicia the dealer to furnish of the and the failure of relationship parties lender for the original pur that the dealer was liable to the ownership, dealer, be as chaser’s contract balance. Under these circumstances lender, tween on satisfying himself was entitled to security lender, (Civ. Code, dealer, re 2849.) It not the who liability. was the § tained and refused to return car after The subsequent 1966. August transfer of the contract back to the dealer evidenced the relation merely which existed and the dealer’s to the ship security, recognized right against lender whom he was bound to The fact that this indemnify. transfer enabled the dealer to further the matter of does litigate ownership, not indicate that the lender dealer’s retention encouraged joined and ultimate of the automobile. the lender could disposition Although automobile, waive its own interest it could not release the rights had, which the dealer in what had been intended to be the for the security loan, of the performance without original its purchaser’s forfeiting rights (Civ. Code, dealer. against 2854.) It had §§ no choice other than to leave the determination of the validity transfer from Bowers to Ferraro to the dealer.
Under these circumstances I would a new trial as to the defendant grant $8,000 Pacific unless the consented to remittitur to against plaintiff (See Accept. Corp. (1952) defendant. Luke v. Mercantile 111 Cal.App.2d 764].)