Deal v. Home Depot

Filed 10/3/06 Deal v. Home Depot CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant, Ricky Deal, appeals from a judgment entered awarding him $3000 for false imprisonment against respondent Home Depot U.S.A., Inc. (Home Depot). On appeal Mr. Deal contends that the trial court erred in a number of its rulings on motions in limine. After he filed his opening brief, Home Depot moved to dismiss the appeal, arguing that Mr. Deal had accepted the fruits of the judgment and therefore is barred from the prosecution of the appeal. Finding merit in Home Depot’s contention, we grant the motion to dismiss the appeal.Factual and Procedural Background

In May, 2001, while at Home Depot, Mr. Deal was apprehended by one of its loss prevention agents and placed under citizens arrest for allegedly shoplifting several ceiling fans. He was detained for 30 minutes by Home Depot until a San Jose police officer arrived and placed him under arrest. Mr. Deal was prosecuted for petty theft with a prior (Pen. Code, § 666), but his first trial ended in a mistrial. Thereafter, he was retried and the second trial ended with a guilty verdict. The trial court sentenced Mr. Deal to five years’ probation on the condition that he serve 10 months in the county jail. Mr. Deal appealed the judgment and in September 2003, after he had already finished serving his sentence, this court reversed the judgment, finding that the district attorney had committed misconduct.[1] The district attorney elected not to retry Mr. Deal.

In May 2002, while his criminal appeal was still pending, Mr. Deal filed a civil action against Home Depot stating a cause of action for false imprisonment and seeking damages. Shortly before trial, Mr. Deal moved to amend the complaint to state a cause of action for malicious prosecution. The trial court denied the motion without prejudice to renewing it before trial.

At trial, Home Depot moved to limit the evidence of damages to the period of detention at Home Depot and to exclude any evidence of damages associated with the subsequent criminal process. The trial court ruled that Home Depot’s conduct was privileged and, as a result, their liability ended at the moment the police took Mr. Deal into custody. Therefore, the trial court granted Home Depot’s motion, stating that the only manner for Mr. Deal to recover damages for his time in custody was with a cause of action for malicious prosecution.

Thereafter, Mr. Deal renewed his motion to amend the complaint to add a cause of action for malicious prosecution. In denying the motion for leave to amend, the trial court offered Mr. Deal the opportunity to make an offer of proof as to the element of favorable termination. The court gave him two separate occasions to argue the motion. After the court denied the motion for leave to amend, Mr. Deal waived a jury and the matter proceeded to court trial. The trial court awarded the defendant $3,000 in damages for false arrest. Home Depot paid Mr. Deal the judgment amount and he then executed an acknowledgement of satisfaction of judgment. This appeal ensued.

Discussion

After the record was filed and Mr. Deal filed his opening brief, Home Depot moved to dismiss the appeal, contending, among other things,[2] that Mr. Deal has accepted the “fruits” of the challenged judgment and is, therefore, precluded from prosecuting this appeal. Home Depot’s contention has merit.

“It is the settled rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal therefrom.” (Schubert v. Reich (1950) 36 Cal.2d 298, 299.) Therefore, the question before us is whether Mr. Deal accepted the benefit of the judgment in his favor. If he has, we must dismiss the appeal. “To waive the right to appeal by accepting the benefits of the judgment, ‘appellant must demonstrate a clear and unmistakable acquiescence in, or, to put it another way, an “ ‘unconditional, voluntary, and absolute’ “ acceptance of, the fruits of the judgment. [Citations.]’ [Citation.]” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1364.) Mr. Deal unmistakably accepted the benefits of the judgment.

In H.D. Arnaiz v. County of San Joaquin the county accepted a check for the judgment amount and then held the check until the Board of Supervisors established a trust account in which the funds were to be deposited and retained “ ‘until such time as a higher court renders its decision," (H.D. Arnaiz, Ltd. v. County of San Joaquin, supra, 96 Cal.App.4th at 1364 (Arnaiz).) The Arnaiz court held that the county had not shown a clear and unmistakable acquiescence in the trial court's order, and, therefore had not waived its right to appeal. Here, not only did Mr. Deal unconditionally accept the check for the full judgment amount, he also executed a satisfaction of judgment and release. While merely accepting and holding a check in trust pending resolution of the appeal may not demonstrate a clear and unmistakable acquiescence in the judgment, accepting a check and executing a satisfaction of judgment does.

Mr. Deal argues that we should not dismiss the appeal because he is not appealing from the money judgment for the pre-arrest detention which he accepted, but from the evidentiary rulings which limited the presentation of damages in this case to only those pre-arrest damages. Mr. Deal misunderstands both the rule barring appeal and its exceptions. There are two equally well settled exceptions to the rule. The first is that where a satisfaction is involuntary and enforced by process, the mere circumstance that the judgment has been so satisfied does not of itself alone deprive a party aggrieved of his right to appeal. The second exception is where the appellant is admittedly entitled to the benefits or these benefits would not be affected or put in jeopardy by the appeal and where the appeal only relates to an additional claim which is small as compared with those at stake under the remainder of the judgment. (Schubert v. Reich, supra, 36 Cal.2d p. at 300; Greenspot Desert Inns v. Roy (1944) 63 Cal.App.2d 54, 58-59.) Neither of these exceptions apply in this case. Satisfaction of judgment was not compelled by process here, it was voluntarily made and voluntarily accepted. Nor was Mr. Deal admittedly “entitled” to any portion of the judgment. He was not owed for products or services rendered; the $3,000 was entirely for damages arising from the false imprisonment. (Mathys v. Turner (1956) 46 Cal.2d 364, 366.) Further, if the case is retired, Mr. Deal is not guaranteed any judgment in his favor. Therefore, this appeal does place the accepted judgment in jeopardy.

Evidentiary rulings which limit the presentation of evidence shape the landscape and form the boundaries of every case, and are an integral part thereto. Those rulings may be challenged either by writ while the case is pending or on appeal from the judgment. An appellant cannot seek, in effect, to bifurcate the judgment to appeal only those rulings which precluded the presentation of certain damages, while accepting the fruits of the judgment for other damages which were allowed. He must either reject or accept the judgment as a whole. Mr. Deal admittedly seeks to challenge only the rulings which precluded presentation of post-arrest damages. Because he has already accepted the fruits of the judgment in his favor for the pre-arrest damages, he is precluded from making such a challenge. Therefore, we must grant Home Depot’s motion to dismiss the appeal.

Disposition

Home Depot’s Motion to Dismiss the Appeal is granted. The appeal from the judgment is dismissed.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] The factual summary of the criminal proceedings are drawn from this court’s opinion in People v. Deal (Sept. 9, 2003, H023960) [nonpub. opn.].

[2] Because Home Depot’s primary argument, regarding Mr. Deal’s acceptance of the fruits of the judgment, is dispositive, we need not address the remainder of its contentions regarding alleged sham assertions and violations of the rules of court.