Belanger v. Biggs CA2/3 ( 2020 )

Filed 12/24/20 Belanger v. Biggs CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
NANCY BELANGER et al., B296853, B297614
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC611723)
v.
EDWARD BIGGS et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Barbara M. Scheper, Judge. Affirmed in part
and reversed in part.
Buchalter, Douglas C. Straus, Harry W.R. Chamberlain II
and Robert M. Dato for Defendants and Appellants Edward Biggs
and Biggs Realty, Inc.
Grebow & Rubin, Arthur Grebow and Julie H. Rubin for
Defendants and Appellants Pacific Palisades Bowl Mobile
Estates, LLC, a California Limited Liability Company, Pacific
Palisades Bowl Mobile Estates, LLC, a Nevada Limited Liability
Company and Pacific Palisades Bowl Mobile Estates, LLC, a
Deleware Limited Liability Company.
Brown White & Osborn, Thomas M. Brown, Kenneth P.
White; Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs
and Respondents.
——————————
Edward Biggs (Biggs); Biggs Realty, Inc. (Biggs Realty);
Pacific Palisades Bowl Mobile Estates, LLC, a California Limited
Liability Company (CA LLC); Pacific Palisades Bowl Mobile
Estates, LLC, a Nevada Limited Liability Company (NV LLC);
and Pacific Palisades Bowl Mobile Estates, LLC, a Delaware
Limited Liability Company (DE LLC) appeal from a judgment
awarding Nancy Belanger and Gaelyn Marvin compensatory
damages, punitive damages, and attorney fees.1 Belanger and
Marvin were residents of a mobile home park, the Pacific
Palisades Bowl Mobile Estates (the park). This lawsuit stems
from Biggs’s removal of Belanger’s and Marvin’s mobile homes
from the park without their knowledge or consent. Defendants
challenge the jury’s awards of compensatory and punitive
damages and the trial court’s award of attorney fees. We affirm
in part and reverse in part.
1 The CA LLC, NV LLC, and DE LLC are referred to
collectively as the LLC defendants.
2
BACKGROUND
I. A landslide damages the mobile homes in the park.
Belanger and Marvin were residents at the park where
Belanger owned two mobile homes and Marvin owned one.2
Belanger purchased her first mobile home in the park in 1996
and planned to use it as her retirement home. Belanger also had
a second adjacent mobile home that the prior resident
bequeathed to her after passing away in 2011. Marvin purchased
her home in the park in 1995 and planned to move her elderly
and infirm parents into it to care for them.
In January 2005, heavy rains caused a landslide on the
hillside above Belanger’s and Marvin’s mobile homes, damaging
them. The Department of Housing and Community Development
(HCD) ordered the residents to evacuate their mobile homes due
to the hillside’s instability until HCD determined that they were
safe to reoccupy.3
Two weeks after the landslide, Marvin and Belanger
returned to their mobile homes where they lived for almost a
year.4 The damage to the mobile homes manifested several
2 While Belanger and Marvin owned their mobile homes,
they leased the spaces from the park where their mobile homes
were situated.
3
HCD is the agency that oversees mobile and
manufactured home parks in California.
4 The record is unclear as to whether HCD temporarily
lifted the order to vacate at this time while Marvin and Belanger
reoccupied their mobile homes. However, by the spring of 2015,
3
months after the landslide as a result of the ground movement
beneath them.
II. The park residents sue the park owners and enter into a
settlement agreement.
In 2006, Belanger, Marvin, and three other park residents
sued Biggs, the former park owner, and third parties.5 The
complaint alleged that the park owners failed to maintain the
hillside above the park, which caused the landslide. The park
residents sought damages for loss of use of their homes and
personal property, moving expenses, loss of use of the leases, loss
of enjoyment of their homes and leases, emotional distress, and
attorney fees.
While the lawsuit was pending, Biggs served the park
residents with a 60-day notice to terminate their tenancies in the
park. The park residents obtained a preliminary injunction
which enjoined the park owners from terminating their
tenancies. In a subsequent order concerning the preliminary
injunction, the trial court clarified that the preliminary
injunction was predicated upon the park residents’
representation that as a result of HCD’s order to vacate, the park
residents had vacated their mobile homes. The trial court stated
that it understood the term vacate to include that park residents
had “removed all personal property from each mobile home and
defendants had not yet applied to HCD for the requisite permit to
stabilize the hillside.
5Biggs and the CA LLC purchased the park from its
previous owner after the landslide.
4
lot. To the extent any personal property remains in the mobile
home and/or lot, it shall be deemed abandoned.”
In 2011, the parties settled. The settlement agreement
contained a general release of liability for conduct occurring
“from the beginning of time to the date of execution of this
Agreement.” It also contained a Civil Code section 1542 waiver
limiting the general release to those claims that park residents
knew of or suspected to exist at the time of the settlement.
The agreement terminated the park residents’ tenancies in
the park, but allowed them to reestablish their leasehold
interests in their respective spaces for the same rental rate at the
time of landslide if and when HCD withdrew the order to vacate.
The park residents had no obligation to remove their mobile
homes from their spaces and were allowed to access their mobile
homes upon 24 hours’ notice to Biggs. Biggs was permitted to
remove the mobile homes from the park without any obligation to
replace them under two conditions. Biggs could remove the
mobile homes if specifically ordered to so do by HCD or another
governmental agency or if their removal was necessary to
stabilize the hillside above the park. The five park residents,
including Belanger and Marvin, received $1.4 million “for
physical damage to and/or loss of use of tangible property.”
The parties’ counsel in the prior action arranged for the
park residents to store their personal property and items in their
homes after the case settled. The park residents believed that
the preliminary injunction was no longer in effect, allowing them
to store their possessions in their mobile homes. Belanger and
Marvin did not remove their personal property from their homes
after the settlement.
5
III. Biggs removes Belanger’s and Marvin’s mobile homes from
the park without their knowledge.
In 2013, Biggs decided to develop the park into an “upscale
resort community.” He planned to purchase the older homes
from the residents, demolish them, and build two-story
manufactured homes in their place that would cost
approximately $500,000 to $1 million each. Biggs targeted
Belanger’s and Marvin’s mobile homes because they were older
mobile homes and were located on spaces with the best ocean
views.
Thereafter, Biggs made numerous misrepresentations to
Belanger and Marvin, asserting, for example, that he had
permission to remove their homes pursuant to various orders
from state agencies, including HCD, so that Biggs could stabilize
the hillside. Biggs acknowledged that it would be easier to
remove Belanger’s and Marvin’s mobile homes without their
consent instead of negotiating a price for them.
In July 2015, without Belanger’s or Marvin’s consent or
knowledge, Biggs removed their mobile homes from the park.
Belanger and Marvin did not learn of their removal until they
saw the empty spaces where their mobile homes used to be from
a road overlooking the park. Their private investigator
discovered that Belanger’s mobile homes were removed from the
park and sold to third parties. The park’s manager had forged
Belanger’s signature on the bills of sale and applications for
duplicate titles for her homes in order to sell the mobile homes.
Marvin’s mobile home was never found.
Before Biggs removed Belanger’s and Marvin’s mobile
homes, he misrepresented that he had obtained permission from
HCD to remove them. Only weeks before Biggs removed the
6
mobile homes from the park, Marvin faxed him a request to give
her and Belanger at least one month’s notice so that they could
remove their personal property they had stored there. Belanger
listed her personal property in each of her mobile homes,
estimating the total value of the items inside at $50,000 Belanger
had not removed any items in either of her homes between 2010
and 2015. Belanger had also made improvements to her mobile
home that she intended to remove if Biggs was going to demolish
it.
Marvin had also stored personal property in her mobile
home since her current residence was much smaller and had no
room for all of her furniture and belongings. Marvin estimated
that the value of her personal property and fixtures was at least
$30,000. The park managers stated that they witnessed movers
take Belanger’s and Marvin’s property out of the mobile homes
when Biggs ordered their removal.
Biggs knew that he did not own the homes or have any
right to have them removed except under the conditions of the
settlement agreement. He also understood that the agreement
only provided for removal of the mobile homes, not their
demolition or sale to third parties.
IV. Belanger and Marvin sue Biggs and his companies for the
loss of their mobile homes.
Belanger and Marvin sued Biggs, Biggs Realty, and the
LLC defendants. The complaint alleged causes of action for
conversion, trespass, breach of written contract, breach of the
implied covenant of good faith and fair dealing, and actual
fraudulent conveyance. Biggs moved for summary judgment,
arguing that the settlement agreement from the prior action
barred Belanger’s and Marvin’s causes of action for conversion,
7
trespass, breach of written contract, and breach of the implied
covenant of good faith and fair dealing. The trial court denied
the motion, finding that the settlement agreement did not
preclude Belanger’s and Marvin’s causes of action because they
were based on the defendants’ new conduct of removing and
converting the homes. The trial court also rejected defendants’
claims that the current action sought a double recovery for
damages in the prior action.
However, the trial court decided to conduct a bench trial to
adjudicate defendants’ challenge that the settlement agreement’s
terms were ambiguous and susceptible to other interpretations.
Defendants argued that the general release barred all future
known and unknown claims against them. Further, defendants
asserted that if the agreement did not cover claims unknown to
Belanger and Marvin, they should have known about the claims
in the present lawsuit because the agreement contemplated
removal of their mobile homes. At the conclusion of testimony,
the trial court held that the settlement agreement’s terms were
not ambiguous nor susceptible to the interpretation proffered by
defendants. However, the trial court allowed defendants to
present evidence to a jury that Belanger or Marvin had
abandoned their personal belongings at the time of removal and
permitted defendants to argue that they did not sustain damages
because the mobile homes were empty.
After the second phase of the trial, the jury returned a
verdict in favor of Belanger and Marvin for each of their causes of
action for conversion, breach of contract, fraudulent conveyance,
and breach of the implied covenant of good faith and fair dealing.
The jury awarded Belanger $84,000 for past economic damages,
$208,000 for past noneconomic loss, and $185,000 for future
8
noneconomic loss, totaling $477,000. The jury awarded Marvin
$52,000 for past economic damages, $220,000 for past
noneconomic loss, and $196,000 for future noneconomic loss,
totaling $468,000.6 The jury found that Biggs acted with malice,
oppression, or fraud and imputed that conduct to Biggs Realty
and the LLC defendants.
V. The jury awards punitive damages.
During the punitive damages phase, Biggs testified as to
his financial condition. Biggs’s real estate holdings generated
$10,860,208 in annual rental income and he had a net worth of
$81,529,893. The fair market value of his assets totaled
$148,730,672.
Biggs also described the structure of Biggs Realty and the
LLC defendants. Biggs Realty ran and was the managing
member of all the LLC defendants. Biggs was the president of
Biggs Realty which he co-owned with his wife. Biggs combined
the funds for the LLC defendants in one bank account. He also
interchanged his name and those of the LLC defendants when
conducting business, which all shared his home office. Biggs’s
companies did not have employees and he made all of the
decisions for each of them.
The jury awarded Belanger and Marvin $4 million in
punitive damages each. The trial court entered judgment in
favor of Belanger and Marvin, awarding them $4,477,000 and
$4,468,000 respectively and against defendants, jointly and
6 While the jury returned a verdict against defendants for
actual fraudulent conveyance, Belanger and Marvin did not seek,
nor did the jury award, any damages for the fraudulent
conveyance cause of action.
9
severally. The trial court denied defendants’ motions for a new
trial and for judgment notwithstanding the verdict.
VI. The trial court awards Belanger and Marvin their attorney
fees.
Belanger and Marvin requested attorney fees pursuant to
the terms of the settlement agreement in the amount of
$1,790,984. The trial court ruled that they were entitled to
attorney fees on their contract claims only. The trial court
reduced plaintiffs’ counsel’s hours by 500 hours and deducted
$50,000 from the fees requested because plaintiffs’ counsel spent
those hours on the tort claim unrelated to the breach of contract
causes of action. The trial court awarded them $1,487,990.30 in
fees.
Defendants appealed. Biggs and Biggs Realty appealed
separately from the LLC defendants. We consolidated the
appeals and allowed Belanger and Marvin to file a consolidated
respondents’ brief.
DISCUSSION
I. Defendants were not entitled to an offset from the
settlement award in the prior action.
Defendants’ first contention is that trial court erroneously
instructed the jury that there could be no offset for any portion of
the $1.4 million settlement paid in the prior action to the five
park residents. Defendants challenge the instruction itself and
then argue that the jury’s awards of past economic damages for
personal property were not supported by substantial evidence.
We review jury instructions de novo. (Mize-Kurzman v.
Marin Community College Dist. (2012) 202 Cal.App.4th 832, 845.)
“A judgment may not be reversed on appeal, even for error
10
involving ‘misdirection of the jury,’ unless ‘after an examination
of the entire cause, including the evidence,’ it appears the error
caused a ‘miscarriage of justice.’ [Citation.] When the error is
one of state law only, it generally does not warrant reversal
unless there is a reasonable probability that in the absence of the
error, a result more favorable to the appealing party would have
been reached.” (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 574.) “A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case
advanced by him which is supported by substantial evidence.”
(Id. at p. 572.)
The challenged instruction reads: “You have heard
evidence and argument that Plaintiffs were compensated for the
physical damage caused to their mobile homes and the loss of use
as a result of a landslide in a 2011 Settlement Agreement.
Plaintiffs were not compensated in the 2011 Settlement
Agreement for the harms they alleged here. You must not
consider the prior settlement amount in determining whether to
award Plaintiffs damages.” Defendants assert that this
instruction was erroneous because it may have allowed Belanger
and Marvin a double recovery if they had been compensated for
damage to their mobile homes and personal property caused by
the landslide.
A plaintiff “is not entitled to more than a single recovery for
each distinct item of compensable damage supported by the
evidence. [Citation.] Double or duplicative recovery for the same
items of damage amounts to overcompensation and is therefore
prohibited.” (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158–
1159.) This principle is not applicable here. Even if Biggs
compensated Belanger and Marvin for personal property that
11
was damaged by the landslide through the settlement agreement,
that did not then confer the right to destroy or convert that
property that had been replaced or repaired, which Belanger and
Marvin claimed to have done after the landslide. The harms are
therefore distinct and not duplicative. Defendants could claim an
offset only if there was evidence that Belanger and Marvin were
requesting damages that were at least in part the same damages
that they were compensated for by the settlement in the prior
action.7 That was not the case here, therefore, the instruction
was correct.
II. The past economic and future noneconomic damages are
appropriate.
A. The past economic damages awards are supported by
substantial evidence.
Defendants assert that the jury’s past economic damages
awards to Belanger for $84,000 and to Marvin for $52,000 were
not supported by substantial evidence. Specifically, defendants
argue that these amounts are inconsistent with Belanger’s and
Marvin’s appraiser who set the total value for Belanger’s two
mobile homes at $54,000 and Marvin’s mobile home at $27,000.
In other words, the jury awarded Belanger $30,000 more and
Marvin $25,000 more than the value of the mobile homes as
attested to by plaintiffs’ own expert.
7 Moreover, defendants’ citations to Belanger’s testimony in
the prior action regarding damage to her mobile home supports
the conclusion that the mobile home itself was damaged, but not
necessarily any personal property inside.
12
This argument is meritless. Belanger and Marvin offered
testimony regarding the contents of their mobile homes,
including pieces of furniture, fixtures, and other personal items
that remained in the mobile homes when defendants converted
them. Nonetheless, defendants argue that this evidence cannot
support the verdict because Belanger and Marvin had already
been compensated for this loss by the settlement agreement in
the prior action. However, as discussed above, the damage to the
personal property from the landslide was distinct from the harm
caused by Biggs when he converted the mobile homes before
allowing Belanger and Marvin an opportunity to remove their
belongings. We also reject defendants’ position that the property
was rendered valueless by the trial court’s preliminary injunction
enjoining Biggs from evicting park residents in the prior action.
Defendants were afforded the opportunity to argue that the
personal property that was abandoned was valueless or worth
considerably less than what Belanger and Marvin claimed, but
that theory was rejected by the jury.
Accordingly, the damages awarded to Belanger and Marvin
were supported by substantial evidence.
B. The future noneconomic damages awards were legally
proper and supported by substantial evidence.
Defendants next argue that the jury’s award of future
noneconomic damages is both factually unsupported by the
record and deficient as a matter of law. They contend that the
jury’s awards of $185,000 and $196,000 for Belanger and Marvin
respectively are based on speculative injuries and are thus not
recoverable as a matter of law.
“Noneconomic damages compensate an injured plaintiff for
nonpecuniary injuries, including pain and suffering. Pain and
13
suffering is a unitary concept that encompasses physical pain and
various forms of mental anguish and emotional distress.
[Citation.] Such injuries are subjective, and the determination of
the amount of damages by the trier of fact is equally subjective.
[Citation.] There is no fixed standard to determine the amount of
noneconomic damages. Instead, the determination is committed
to the discretion of the trier of fact.” (Corenbaum v. Lampkin
(2013) 215 Cal.App.4th 1308, 1332, fn. omitted.) A “plaintiff may
recover not only for physical pain but for fright, nervousness,
grief, anxiety, worry, mortification, shock, humiliation, indignity,
embarrassment, apprehension, terror or ordeal.” (Capelouto v.
Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893.)
Speculative damages are not compensable. (Ferguson v.
Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037,
1048.) “To recover future damages, a plaintiff must prove that
his or her detriment is reasonably certain to result in the future.”
(Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 460.)
Expert testimony is “unnecessary if the injury is such that the
jury could conclude, based on all the evidence and relying upon
its own experiences and common knowledge, that the future
harm is reasonably certain to occur.” (Ibid.)
Defendants claim that Belanger’s and Marvin’s future
injuries are inherently speculative because they are based on the
subjective belief that they will suffer physical, psychological, and
emotional symptoms as a result of the stress and anxiety they
will experience in their future dealings with Biggs. By way of
example, defendants state that, if Biggs were to sell the park,
Belanger’s and Marvin’s purported fears would have zero
substance. This argument and example ignore the fact that the
future noneconomic damages were also based on Belanger’s and
14
Marvin’s strong emotional attachment to their homes and their
plans to use them during retirement or to care for their families.
Belanger testified that she continued to suffer emotional distress,
pain and suffering caused by the loss of her mobile home.
Belanger said, “I loved my home, and [Biggs] took it from me.
And it’s tough. You know, it was my retirement home. I worked
hard to keep it that way. It’s emotional.” The same type of loss
applies to Marvin, who testified that she continues to suffer
emotional and physical distress from Biggs’s conduct, including
sleep issues, headaches, an ulcer, and depression. Marvin said, “I
had anxiety and stress and then fear set in because I have a child
now. And how am I going to provide for that child for the future.
He was 13.” Thus, the future noneconomic damages awards were
based on more than Belanger’s and Marvin’s speculative fear of
future interactions with Biggs.
Defendants next assert that future emotional distress
damages are unavailable in connection with property losses as
opposed to injuries to the person. While it is settled that a
plaintiff may recover for past mental anguish resulting from
destruction of property (Acadia, California, Ltd. v. Herbert (1960)
54 Cal.2d 328, 337; Gonzales v. Personal Storage, Inc. (1997) 56
Cal.App.4th 464, 477), neither party has cited to a case where a
plaintiff expressly recovered for future emotional distress based
on damage to property. Defendants cite to the relevant jury
instruction for conversion, CACI No. 2102, which states a
plaintiff’s right to recover emotional distress in the past tense:
“Emotional distress suffered by [name of plaintiff] as a result of
[name of defendant]’s conduct.” (Boldface and Italics omitted.)
However, “ ‘[j]ury instructions, whether published or not, are not
themselves the law, and are not authority to establish legal
15
propositions or precedent. They should not be cited as authority
for legal principles.’ ” (Evans v. Hood Corp. (2016) 5 Cal.App.5th
1022, 1049.)
In the absence of any other authority, we agree with
Belanger and Marvin that they have suffered and will continue to
suffer emotional distress from the loss of their mobile homes and
that the jury found this loss compensable. When reviewing a
damages award, we “must determine every conflict in the
evidence in respondent’s favor, and must give him the benefit of
every inference reasonably to be drawn from the record.” (Seffert
v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508.)
III. The punitive damages awards were appropriate.
Defendants next argue that the punitive damages awards
must be reversed because they are excessive as a matter of law
and violate due process.
In determining the constitutional maximum for a punitive
damage award, courts follow three guideposts: “(1) the degree of
reprehensibility of the defendant’s misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff and
the punitive damages award; and (3) the difference between the
punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.” (State Farm Mut.
Ins. v. Campbell (2003) 538 U.S. 408, 418.) Our review of the
award is de novo. (Simon v. San Paolo U.S. Holding Co., Inc.
(2005) 35 Cal.4th 1159, 1172.) We make an independent
assessment of the reprehensibility of defendants’ conduct, the
relationship between the awards and the harm done to the
plaintiffs, and the relationship between the award and civil
penalties authorized for comparable conduct. (Ibid.) However,
16
“findings of historical fact made in the trial court are still entitled
to the ordinary measure of appellate deference.” (Ibid.)
A. Defendants’ conduct was highly reprehensible.
The “ ‘most important indicium of the reasonableness of a
punitive damages award is the degree of reprehensibility of the
defendant’s conduct.’ ” (State Farm Mut. Ins., supra, 538 U.S. at
p. 419.) “On this question, the high courts instructed courts to
consider whether ‘[1] the harm caused was physical as opposed to
economic; [2] the tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of others; [3] the target
of the conduct had financial vulnerability; [4] the conduct
involved repeated actions or was an isolated incident; and [5] the
harm was the result of intentional malice, trickery, or deceit, or
mere accident.’ ” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
713.)
Nearly every reprehensibility factor is present here and
well supported by the evidence. Belanger and Marvin presented
evidence that the defendants’ conversion of their mobile homes
caused them substantial emotional distress. Harm to a person’s
emotional and mental health qualifies as physical harm. (Roby v.
McKesson Corp., supra, 47 Cal.4th at p. 713.) In turn,
defendants’ conduct of removing and then permanently depriving
Belanger and Marvin of their mobile homes showed a reckless
disregard for their emotional health. Notwithstanding the
fraudulent manner of defendants’ conduct, it is objectively
reasonable that the permanent loss of a person’s home would
negatively impact his or her emotional wellbeing. Belanger and
Marvin were also in a financially vulnerable position with respect
to Biggs. Unlike other homeowners who own the land beneath
their houses, Belanger and Marvin rented space in the park
17
where their mobile homes sat. As defendants admit in their
briefs, Biggs could sell the land at any time and Belanger and
Marvin would have no recourse. While Belanger and Marvin had
the right to reestablish their leaseholds, Biggs did not have to fix
the land around their mobile homes and thus HCD’s order to
vacate could remain in effect indefinitely. It is also indisputable
that defendants’ behavior was not an isolated incident. Biggs
admitted to lying to Belanger and Marvin over time so they
would consent to the removal of their mobile homes. Further,
once the mobile homes were removed, defendants took the extra
step of selling the mobile homes through deceit. These actions
were willful. Biggs knew the settlement agreement did not grant
him ownership of the mobile homes or authorize him to
permanently deprive Belanger and Marvin of them. Yet, Biggs
contracted for their demolition and removal without Belanger’s or
Marvin’s consent. He also knew that Belanger and Marvin
claimed to have property in the mobile homes that they wished to
remove before Biggs took any action. Lastly, Biggs never told
Belanger or Marvin that he planned to remove their mobile
homes or the property within before he did so. They only
discovered his misconduct by chance. These facts show a high
degree of reprehensibility.
B. The disparity between the actual harm and the
punitive damages award did not violate due process.
Due process “prohibits the imposition of grossly excessive
or arbitrary punishments on a tortfeasor.” (State Farm Mut. Ins.,
supra, 538 U.S. at p. 416.) Few “awards exceeding a single-digit
ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process.” (Id. at p. 425.)
18
The jury awarded Belanger $477,000 in compensatory
damages and $4 million in punitive damages, a ratio of 8.39 to 1,
and awarded Marvin $468,000 in compensatory damages and $4
million in punitive damages, a ratio of 8.55 to 1. Both of these
are single-digit ratios. Nonetheless, defendants argue for a lesser
ratio because the compensatory damages were substantial and
damages for emotional distress comprised a significant portion of
the awards.
Defendants cite Walker v. Farmers Ins. Exchange (2007)
153 Cal.App.4th 965 to support their argument that a punitive
damages award should be reduced when accompanied by a large
noneconomic damage award that is punitive in nature. In
Walker, the court affirmed a reduction of a punitive damages
award from $8.3 million to $1.5 million when the jury also
awarded $1.5 million in emotional distress damages. (Id. at pp.
973–975.) However, Walker is distinguishable. The only
reprehensibility factor was plaintiffs’ financial vulnerability and
the misconduct was the result of an oversight and an isolated
incident. (Id. at p. 973.) As stated above, Marvin and Belanger
suffered both pecuniary harm and physical harm in the form of
emotional distress from the loss of their homes and personal
property, which was the direct result of defendants’ repeated
misconduct and continued reckless disregard for Belanger’s and
Marvin’s wellbeing.
Therefore, the noneconomic damages awards were not
punitive in nature, as they were supported by evidence of
19
Belanger’s and Marvin’s emotional and mental harm. The
multipliers were not unconstitutionally high under these facts.8
IV. Defendants did not fraudulently convey the park.
Defendants argue that Belanger’s and Marvin’s claim for
fraudulent conveyance fails as a matter of law because they failed
to show any harm. We agree.
“ ‘A fraudulent conveyance is a transfer by the debtor of
property to a third person undertaken with the intent to prevent
a creditor from reaching that interest to satisfy its claim.’ ”
(Kerkeby v. Superior Court (2004) 33 Cal.4th 642, 648.) “A well-
established principle of the law of fraudulent transfers is, ‘A
transfer in fraud of creditors may be attacked only by one who is
injured thereby. Mere intent to delay or defraud is not sufficient;
injury to the creditor must be shown affirmatively. In other
words, prejudice to the plaintiff is essential.’ ” (Mehrtash v.
Mehrtash (2001) 93 Cal.App.4th 75, 80.)
Belanger’s and Marvin’s theory of injury caused by the
fraudulent conveyance was that Biggs’s transfer of ownership of
the park from the NV LLC to the DE LLC temporarily put the
park beyond their reach through an entity then unknown to
them, and permanently made it more difficult for them to use the
park to collect what they were owed. However, the trial court
had jurisdiction over all the LLC defendants throughout the case
and each of them has been available to satisfy any judgment
8 The parties’ briefs do not address the third guidepost—
the difference between the punitive damages awarded by the jury
and civil penalties authorized in other cases—therefore we do not
discuss it here.
20
resulting from the transfer of the park. Thus, Belanger and
Marvin failed to show prejudice from the transfer of the park.
We disagree, however, with defendants’ assertion that
reversing the judgment on the fraudulent conveyance cause of
action should result in a new trial on all issues related to the
punitive damages liability and other damages claims. The record
shows that Belanger and Marvin did not seek damages with
respect to their fraudulent transfer claim. Rather, they sought,
and the trial court granted, only an injunction against further
transfers. This does not support defendants’ contention that the
fraudulent transfer cause of action affected the findings of malice,
fraud, and oppression because, as discussed above, there was
more than ample conduct for the jury to draw from to conclude
that defendants acted with malice, fraud, and oppression to
trigger punitive damage liability.
V. Plaintiffs were entitled to a portion of their attorney fees.
Defendants argue that the trial court erred in concluding
that plaintiffs were entitled to $1,487,990.30 in attorney fees.
Defendants assert that the plaintiffs were required to elect
between tort remedies of emotional distress and punitive
damages or contract remedies of attorney fees under the
settlement agreement’s fee clause.
We review an award of attorney fees for abuse of discretion.
(Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
To the extent the issue turns on the interpretation of a contract
and the trial court’s authority to award attorney fees, our review
is de novo. (Globalist Internet Technologies, Inc. v. Reda (2008)
167 Cal.App.4th 1267, 1273.)
The attorney fees provision in the settlement provided, “the
prevailing party shall be entitled to recover reasonable attorney’s
21
fees and expenses incurred in enforcing the Agreement.” Thus,
the plain language of the agreement limits attorney fees to the
time spent pursuing those causes of action that arise from
enforcement of the agreement, not those grounded in tort. (See
Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th
698, 709.) Belanger and Marvin assert that we should affirm the
trial court’s award of attorney fees because it properly
apportioned the fees between their contract and tort causes of
action and excluded fees related to the torts. When a plaintiff
prosecutes both breach of contract and tort claims, the plaintiff
may recover fees under a contract containing a fee provision for
work performed on the contract claims. (Reynolds Metals Co. v.
Alperson (1979) 25 Cal.3d 124, 129.)
Defendants disagree and argue that, based on the doctrine
of election of remedies, Belanger and Marvin were required to
choose between their attorney fees generally or recovery of their
emotional distress and punitive damages awards. “Broadly
speaking, election of remedies is the act of choosing between two
or more concurrent but inconsistent remedies based upon the
same state of facts. . . . Ordinarily a plaintiff need not elect, and
cannot be compelled to elect, between inconsistent remedies
during the course of trial prior to judgment. [Citations.]
However, if a plaintiff has unequivocally and knowledgeably
elected to proceed on one of the remedies he is pursuing, he may
be barred recourse to the other.” (Roam v. Koop (1974) 41
Cal.App.3d 1035, 1039.) “Courts and commentators have long
recognized the harshness of the election of remedies doctrine and
have for some time looked upon it with disfavor. [Citations.] To
mitigate the doctrine’s effects, courts over the years have devised
22
various ways of narrowing its application.” (Baker v. Superior
Court (1983) 150 Cal.App.3d 140, 145.)
The doctrine does not apply because Belanger and Marvin
did not seek inconsistent remedies for causes of action based on
the same set of facts. (See Glendale Fed. Sav. & Loan Assn. v.
Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 137.)
Here, while there is some overlap in the facts underlying the
contract and tort causes of action, Belanger’s and Marvin’s
theories of tort included additional facts such as Biggs’s
misrepresentations, his subsequent sale of the mobile homes to
third parties, and his deception. Moreover, the remedies sought
were not inconsistent because Belanger and Marvin pursued
separate causes of action under separate theories of recovery.
(See Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3
Cal.App.5th 1155, 1170.)
Defendants rely on Perry v. Robertson (1988) 201
Cal.App.3d 333 and Fairchild v. Park (2001) 90 Cal.App.4th 919to argue that Belanger and Marvin were required to elect
between their punitive damages awards or pursuing attorney fees
under the settlement agreement. Neither case supports this
contention.
In Perry v. Robertson, supra, 201 Cal.App.3d at page 335,
the plaintiff sued her real estate broker claiming the broker
negligently drafted the written sales agreement for the sale of
her home. The contract with the broker included an attorney fees
provision. (Ibid.) However, the plaintiff’s complaint only alleged
a single cause of action for negligence. (Id. at p. 336.) The
plaintiff prevailed on her cause of action for negligence at trial,
which also necessarily proved a breach of the parties’ contract,
and the court awarded her attorney fees. (Id. at p. 337.) The
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defendant argued that the plaintiff could not collect her attorney
fees because the lawsuit sounded in tort and was not an action on
the contract. (Ibid.) Perry considered whether the complaint’s
single cause of action for negligence encompassed a cause of
action for breach of contract, and whether plaintiff elected a
consistent remedy to recover damages under a contract theory.
(Id. at p. 338.) Perry affirmed the attorney fees award, holding
“when the prevailing plaintiff in such an action has not elected a
distinctive remedy in tort, such an action may be, and here is, ‘on
a contract.’ ” (Id. at p. 344.) Unlike the plaintiff in Perry, Marvin
and Belanger alleged and prevailed on multiple causes of action
for torts and breach of the settlement agreement that were based
on distinct facts. Thus, we do not find Perry applicable.
In Fairchild v. Park, supra, 90 Cal.App.4th at page 922,
tenants sued their landlord for breach of contract, breach of the
implied warranty of habitability, negligence, and fraud. Before
trial, the trial court dismissed the tenants’ fraud claim and
barred all tort relief on the claim for breach of the warranty of
habitability. (Ibid.) Thus, the only remaining claims were those
for breach of contract and breach of the implied warranty of
habitability, which the trial court noted could sound in contract
or tort. (Ibid.) The Fairchild plaintiffs prevailed on their
contract causes of action only and thus it does not support
defendants’ argument here where plaintiffs prevailed on both
contract and tort causes of action.
VI. The punitive damages awards against the LLC defendants
were appropriate.
Lastly, the LLC defendants argue that the punitive
damages judgment against each of them must be reversed
because plaintiffs only offered evidence of Biggs’s financial
24
condition, but not the individual financial conditions of the LLC
defendants.
“Evidence of a defendant’s financial condition is a legal
precondition to the award of punitive damages. [Citation.] We
examine the record to determine whether the challenged award
rests upon substantial evidence. [Citations.] If it does not, and if
the plaintiffs had a full and fair opportunity to make the
requisite showing, the proper remedy is to reverse the award.”
(Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165,
195.)
Plaintiffs concede that they did not present evidence of the
financial condition of each of the LLC defendants. Rather,
plaintiffs argue that the LLC defendants agreed to verdict forms
and jury instructions that allowed the jury to award punitive
damages jointly and severally against all defendants and that the
evidence of Biggs’s financial condition alone was enough to
satisfy their burden of proof.
The LLC defendants assert that they submitted a special
verdict form, but the trial court chose a general verdict form
instead and thus they did not agree to a joint and several
punitive damage verdict form. This contention is not supported
by the record. The LLC defendants cite to a portion of the
reporter’s transcript where the trial court proposed a general
verdict form with special questions rather than the special
verdict forms submitted by the parties’ counsel. They have not
cited to any portion of the record that shows that they disagreed
with the trial court’s proposal or if there was any further
discussion on the issue. “It is incumbent upon counsel to propose
a special verdict that does not mislead a jury into bringing in an
improper special verdict.” (Myers Building Industries, Ltd. v.
25
Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960, fn. 8.)
Therefore, this issue was forfeited.
However, even if the issue was not forfeited, Belanger and
Marvin supplied ample evidence of Biggs’s financial condition
and how he exercised exclusive authority over the LLC
defendants such that there was no meaningful separation
between them. For example, Biggs treated the LLC defendants
as interchangeable and commingled assets. He used one bank
account, combining the funds of the LLC defendants and each of
them shared Biggs’s home office. Biggs was the president of
Biggs Realty which was the managing member of all the LLC
defendants.9 Biggs also interchanged his name and that of the
LLC defendants when conducting business.
Biggs’s financial condition alone supported the punitive
damages award, and there was no meaningful separation
between Biggs and the LLC defendants. Therefore, the joint and
several punitive damages award against the LLC defendants was
appropriate even without evidence of each of their individual
financial conditions. (See Mathews v. Happy Valley Conference
Center, Inc. (2019) 43 Cal.App.5th 236, 268.)
9Biggs owns 50 percent of Biggs Realty with his wife
Loretta Biggs.
26
DISPOSITION
The judgment is reversed with respect to the cause of
action for fraudulent conveyance only and affirmed in all other
respects. Nancy Belanger and Gaelyn Marvin are awarded their
costs on appeal.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
EGERTON, J.
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