Filed 5/16/14 Toler v. Gordon CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



JOEL THOMAS TOLER,
         Plaintiff and Appellant,
                                                                     A136032
v.
DONALD GORDON et al.,                                                (Solano County
                                                                     Super. Ct. No. FCS035803)
         Defendants and Respondents.


                                            MEMORANDUM OPINION*
         Joel Thomas Toler appeals from a judgment entered on a jury verdict rendered in
favor of respondents Donald and Terry Gordon.1 The jury awarded the Gordons
$150,000 in compensatory damages on claims of malicious prosecution, intentional
infliction of emotional distress, and assault. It also found Toler had engaged in the
tortious conduct with malice, oppression, or fraud and awarded respondents $300,000 in
punitive damages. Toler claims on appeal that: (1) the Gordons failed to prove elements
of their causes of action; (2) the evidence did not justify the amounts of compensatory




*
  We resolve this case by a Memorandum Opinion pursuant to California Standards of
Judicial Administration, Standard 8.1.
1
  We use the name Gordon to refer to respondents. Although they were sued as Donald
and Terry Compton, their brief tells us this was erroneous. It appears that Terry
Gordon’s maiden name is Compton. We will therefore refer to the Gordons as they refer
to themselves.

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and punitive damages; and (3) the conduct of respondents’ trial counsel was prejudicial to
his case.2
       The record in this case is sparse. The clerk’s transcript contains only a copy of the
judgment, the jury’s verdicts, Toler’s notice of motion and motion for judgment
notwithstanding the verdict (JNOV), a minute order, the notice of appeal, appellant’s
designation of record, the trial court’s order denying Toler’s motion for JNOV, and the
register of actions. We have none of the parties’ pleadings, none of the parties’ in limine
motions, and none of the exhibits introduced at trial. We do have a reporter’s transcript
of the trial proceedings. It is from this very limited record that we must glean the facts of
this case.
       Insofar as we can discern, Toler initially brought an action against Donald and
Terry Gordon. From the register of actions, he appears to have sought damages for
tortious interference with a contractual relationship, defamation, and assault and battery.
The Gordons filed a cross-complaint for malicious prosecution, intentional infliction of
emotional distress, and assault. On the eve of trial, Toler voluntarily dismissed his
complaint with prejudice, and the matter proceeded to trial on the Gordon’s cross-
complaint.
       The events giving rise to the cross-complaint began in 2008, when Toler, a bail
agent, contacted the Gordons in connection with a small claims court summons issued to
a man named Thomas Hughes. Hughes had signed a bond contract for one of his co-
workers, Jeffery Colon-Moore. The latter failed to appear at a court hearing, and a
forfeiture notice was issued. Toler appears to have sued Hughes on the bond in small
claims court, and he sought to serve process on Hughes at the Gordons’ address. After
the summons arrived, Terry Gordon spoke to Toler by phone and told him the man
summoned did not live there.
       Toler later went to the Gordons’ home looking for Colon-Moore. Toler was
armed, refused to leave when asked, and made threats that placed the Gordons in fear for

2
 Toler was unrepresented by counsel in the court below and is unrepresented on appeal.
The Gordons had counsel below but are proceeding in propria persona in this court.

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their safety. Terry Gordon called 911, and at some point thereafter Toler was arrested.
Toler then sued the Gordons, but he dismissed the case after the Gordons agreed to
appear at a deposition. Toler filed a second lawsuit against the Gordons in May 2010,
and it appears to have been substantially similar to the previously dismissed suit.3 It is
this action that Toler dismissed just before trial in this matter began.
       At the close of the evidence in the case, Toler moved for a directed verdict,
arguing that the Gordons had failed to produce sufficient evidence in support of their
causes of action. The trial court denied the motion, and the jury found in the Gordons’
favor, awarding both compensatory and punitive damages. Toler moved for JNOV, and
according to the register of actions, the Gordons filed an opposition that is not part of the
record on appeal. No one appeared for the hearing on the motion, and the trial court
denied it. Toler then filed this appeal.
       Toler contends the Gordons failed to prove elements of their causes of action.
This is essentially a claim that substantial evidence does not support the jury’s verdict.
We reject this argument for several reasons. First, error is never presumed, and it is
Toler’s burden to provide a record that is adequate to demonstrate prejudicial error. (See,
e.g., Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) “ ‘A necessary corollary to
this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates
error only on the part of the record he provides the trial court, but ignores or does not
present to the appellate court portions of the proceedings below which may provide
grounds upon which the decision of the trial court could be affirmed.’ [Citation.]” (Ibid.)
Toler has not provided us with the exhibits introduced at trial, and we must presume that
those documents would provide some support for the jury’s verdict. (See Foust v. San
Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [in absence of contrary
showing, reviewing court presumes that if any matters could have been presented to
support challenged order, such matters were presented].)


3
  Although copies of Toler’s complaints against the Gordons were introduced at trial,
they are not part of the record on appeal.

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       Second, Toler’s opening brief is little more than an attempt to reargue the evidence
presented to the jury. This “misapprehends our role as an appellate court. Review for
substantial evidence is not trial de novo.” (OCM Principal Opportunities Fund, L.P. v.
CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 866.) We do not weigh the
evidence, but rather accept as true all evidence most favorable to respondents while
discarding as lacking in verity evidence unfavorable to them. (Ibid.)
       Moreover, even on this limited record, it appears there is substantial evidence to
support the jury’s verdict on the Gordons’ causes of action. On their claim for assault,
Toler contends he did nothing to threaten the Gordons, but he conceded below that his
conduct “certainly [was] intimidation.” The testimony of the Gordons, which we have
outlined above, provided sufficient evidence for the jury to find the tort of assault had
been committed. (See CACI No. 1301.)
       Turning to the malicious prosecution cause of action, Toler’s claim that the
question of probable cause was a legal one for the trial court to resolve is simply
incorrect, as shown by the case he cites in support of it. In Sheldon Appel Co. v. Albert &
Oliker (1989) 47 Cal.3d 863, the California Supreme Court explained that “when . . .
there is no dispute as to the facts upon which an attorney acted in filing the prior action,
the question whether there was probable cause to institute the prior action is purely a
legal question, to be determined by the trial court on the basis of whether, as an objective
matter, the prior action was legally tenable or not.” (Id. at p. 868, italics added.) The
facts in this case are not undisputed. Toler also argues that the action on which the
Gordon’s malicious prosecution claim was based did not terminate in the Gordons’ favor,
and the termination did not reflect on the merits of the action. But the record does not
contain enough information for us to determine either the precise nature of that action or
the terms of its dismissal. Since it is Toler’s burden to provide a record sufficient to
demonstrate error, this claim must fail. (Osgood v. Landon, supra, 127 Cal.App.4th at
p. 435.)
       Toler asserts the Gordons failed to establish his conduct was sufficiently
outrageous to sustain a claim for intentional infliction of emotional distress. Liability has


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been imposed, however, for conduct that is certainly no more egregious than that
presented here. (See Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48
Cal.3d 583, 593-594 [collecting illustrative cases].) And it was for the jury to determine
whether the Gordons had suffered severe emotional distress. (Rulon-Miller v.
International Business Machines Corp. (1984) 162 Cal.App.3d 241, 254.)
       Toler further contends there is insufficient evidence to support the award of
damages. This is an issue on which we must give considerable deference to the jury.
(Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067.) The jury appears to have
awarded a considerable portion of the damages for the Gordons’ emotional distress. The
Gordons testified they had suffered very significant emotional distress from both the
lawsuits and the incident during which Toler came to their home. Since there is no fixed
standard by which to compute the monetary value of emotional distress, we cannot say as
a matter of law that the jury’s award was excessive. (Id. at pp. 1067-1068 & fn. 17.)
       Toler argues the conduct of respondents’ trial counsel prejudiced him. We have
reviewed the portions of the reporter’s transcript at which this alleged misconduct is said
to have occurred, and it does not appear Toler ever objected to the actions of respondents’
counsel. By failing to object, Toler has forfeited this argument on appeal. (E.g.,
Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892 [argument about alleged misconduct of
opposing trial counsel forfeited where no objection made below].) Toler also complains
about entirely proper trial tactics, such as the use of his deposition for impeachment
purposes. (See Code Civ. Proc., § 2025.620, subd. (a) [“Any party may use a deposition
for the purpose of contradicting or impeaching the testimony of the deponent as a
witness”].)
                                          DISPOSITION
       The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)




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                                _________________________
                                Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




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