Rideau v. Taylor

Filed 10/30/06 Rideau v. Taylor CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Following a bench trial, the court awarded plaintiff $15,000 in compensatory damages upon evidence that defendant pharmacist battered plaintiff customer during an altercation over the authenticity of a prescription plaintiff presented at a drug store. While holding the pharmacist and his employer liable on the battery cause of action, the court rejected plaintiff’s claims for intentional infliction of emotional distress and punitive damages. Plaintiff appeals the court’s rejection of those claims. We affirm the judgment in its entirety.

facts

On the afternoon of June 13, 2003, plaintiff Anthony Rideau went to Leo’s Drugstore in downtown Oakland to fill a prescription for Vicodin, Valium, and Buspar. The prescription was written by Jayum Starks, M.D., who was treating plaintiff for degenerative joint disease. The pharmacist, defendant Roger Taylor, told plaintiff the prescription looked altered and Taylor telephoned the physician to verify the prescription. There was some delay in receiving verification, during which time plaintiff asked for the return of his prescription to fill it elsewhere.[1] Taylor refused to return the prescription.

The parties provide diverging accounts of the events at this juncture. Pharmacist Taylor testified that plaintiff angrily said “I’ll come back there and kick your ass,” walked behind the counter and put his hands on the pharmacist. Taylor testified that he “pushed [plaintiff] back, and the scuffle ensued. [Plaintiff] swung. I ducked. I swung back. And at that time we spilled outside into the floor of the store. And [plaintiff] was down, and I was on top of him. And next thing I know, . . . one of our clerks from the front, ran down the aisle, picked me up and carried me back into the pharmacy.”

Plaintiff testified that Pharmacist Taylor was the aggressor. Plaintiff said that when he demanded his prescription back, the pharmacist ran from behind the counter and starting punching him in the face and head. Plaintiff said the pharmacist “whipped [him] at least 10 minutes or more to mercy, down on [his] knees,” as plaintiff tried to block as many shots as he could. Plaintiff testified that he never retaliated against Taylor, but only covered up to protect himself from the beating.

Two independent witnesses corroborated plaintiff’s account of the altercation. Beverly Milton is a mental health rehabilitation specialist who was in the drug store to exchange medication for a client. Milton testified that plaintiff and Pharmacist Taylor were having a “pretty heated” conversation about a prescription. Milton heard plaintiff say, “Man, I am not a punk. Just give me back my prescription,” and then the pharmacist “came from behind the counter and attacked [plaintiff].” Milton testified that Taylor repeatedly hit plaintiff in the face hard, “[b]oom, boom, boom,” as plaintiff shielded his head in defense. Taylor stopped only after store employees pulled him off plaintiff. Milton was “appalled” and in disbelief.

Deborah Ann Finley testified to the same effect. Finley was at the store with a friend when she heard plaintiff and Pharmacist Taylor arguing over a prescription. Finley heard Taylor accuse plaintiff of forging the prescription, and plaintiff said “Man, I’m no punk. You don’t have to talk to me like that.” Taylor made “some derogatory comments in anger,” like “[d]o you think I’m a fool.” Taylor came from behind the counter and “physically hit that man.” Finley testified that the “attack” came quickly, and was “vicious” and “horrendous.” Finley said plaintiff tried to protect his face, and Taylor was finally pulled off plaintiff by a store employee.

At the close of evidence, the trial court remarked that it was impressed by the testimony of the independent witnesses and found them credible. The court stated that Pharmacist Taylor, “without provocation or without an adequate amount of provocation, attack[ed] the plaintiff.” The court announced that it would render judgment in favor of plaintiff on the battery cause of action. However, the court ruled in favor of defendants on the cause of action for intentional infliction of emotional distress, finding “no showing of any intention by the defendant” Taylor to inflict emotional distress on the plaintiff. The court also denied punitive damages. The trial judge remarked that defendant Taylor’s “behavior was outrageous“ but “I think that the process that Mr. Taylor has gone through, the spending of his time in this court, the process of the litigation has been enough of a detriment to future actions of this party of this type on his part. And I quite frankly don’t expect to see it happen again.”

The court asked plaintiff’s counsel to prepare the form of judgment and counsel did so, noting on the judgment that no statement of decision had been requested. Judgment was entered on December 15, 2005. Four days after the judgment was issued, plaintiff filed a belated request for a statement of decision. However, three days later and before any action was taken on that belated request, plaintiff filed a notice of appeal to this court. The parties completed appellate briefing in August 2006.

discussion

Plaintiff maintains that the trial court erroneously failed to hold defendants liable for intentional infliction of emotional distress, and for punitive damages. Plaintiff does not clearly articulate the grounds for his challenge or substantiate his claims by appropriate citations to the record. (Cal. Rules of Court, rule 14(a).) In stating the facts in his appellate brief, plaintiff relies almost entirely upon the court’s comments summarizing the evidence rather than providing citations to witness testimony or trial exhibits. When a citation to witness testimony is provided, the citation is to a multitude of pages from the reporter’s transcript representing testimony on diverse subjects.

In stating his arguments, plaintiff merely insists that the trial court erred, without particularizing the nature of the error. Plaintiff says he is not disputing the sufficiency of the evidence, but does not plainly say what he is disputing. As well as can be ascertained from the briefing, plaintiff’s contention is that the salient facts, as determined by the trial court, entitled him to awards in his favor for intentional infliction of emotional distress and punitive damages. In short, plaintiff appears to contend that the trial court misconstrued or misapplied applicable law.

On the emotional distress claim, plaintiff suggests that the court’s finding of a battery necessitated a finding of intentional infliction of emotional distress. Plaintiff is mistaken. While the same facts may support liability for both battery and intentional infliction of emotional distress in a particular case, the two causes of action have distinct elements.

A battery is defined as “any intentional, unlawful and harmful contact by one person with the person of another.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611.) In contrast, “[t]he elements of the tort of intentional infliction of emotional distress are ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . .” ‘ “ (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Here, the trial court focused upon the first element in commenting at the close of evidence that there was “no showing of any intention by the defendant to inflict emotional distress on the plaintiff.” While the court concluded that defendant Taylor made an intentional, unlawful (i.e., unconsented), and harmful contact with plaintiff, that conclusion did not necessitate a finding that Taylor intended to cause emotional distress or acted in reckless disregard of the probability of causing emotional distress. Plaintiff’s argument to the contrary misunderstands the distinctions between the torts of battery and intentional infliction of emotional distress.

In any event, the only prejudice plaintiff attaches to the denial of his intentional infliction of emotional distress cause of action is the lack of compensation for psychiatric injury and treatment. Plaintiff fails to understand that emotional distress damages were fully compensated by the general damages assessed against defendants for battery. Tort damages include damages for “mental suffering naturally ensuing from the acts complained of” and, “in the case of many torts, such as . . . battery[,] . . . mental suffering will frequently constitute the principal element of damages.” (State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338.) So it is here, where it appears that plaintiff did not present any evidence of economic damages. On appeal, plaintiff makes no effort to demonstrate that the damages awarded omitted recovery for emotional distress.

Plaintiff also mistakenly claims that he was entitled to an award of punitive damages. “[A] plaintiff is never entitled as a matter of right to exemplary damages.” (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 800.) “ ‘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 jury, 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 jury to say whether or not punitive damages shall be awarded. A plaintiff is entitled to such damages only after the jury, in the exercise of its untrammeled discretion, has made the award.’ “ (Id. at p. 801.) Plaintiff was entitled only to the free exercise of the fact finder’s discretion, which is what he received. (Ibid.)

“The primary purposes of punitive damages are punishment and deterrence of like conduct by the wrongdoer and others. [Citations.] In the traditional noncommercial intentional tort, compensatory damages alone may serve as an effective deterrent against future wrongful conduct.” (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 810.) In exercising its discretion, the trial court here denied punitive damages upon concluding that no additional deterrence was needed beyond the compensatory damages awarded and the litigation “process that Mr. Taylor has gone through.” We find no abuse of discretion.

disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

[1] The prescription was ultimately verified as valid.