CERTIFIED FOR PARTIAL PUBLICATION
In the proceeding to dissolve the marriage between Linda A. Boblitt and Steven B. Boblitt,
Because this tort action for domestic violence was not precluded by the judgment in the dissolution proceeding, we will reverse the judgment in this action and remand the case with instructions to the trial court to deny Steven's motion for judgment on the pleadings.
FACTUAL AND PROCEDURAL BACKGROUND
We take the following facts from Linda's first amended complaint and from documents in the dissolution proceeding that are subject to judicial notice.
Linda and Steven began cohabiting in February 1983. His verbal abuse of her began that day. It later escalated to physical abuse. In December 1984, he broke her jaw. His physical and verbal abuse of her continued off and on for the next 23 years.
Meanwhile, in December 1989, the parties married. Eventually, Linda filed for dissolution of the marriage in January 2004. Even after that, however, Steven continued to verbally harass and physically abuse her, up through January 28, 2008.
In January 2007, Linda filed a statement of issues in the dissolution proceeding in which she described in some detail Steven's "long history of physical and emotional abuse" of her and asserted that her injuries from the abuse, both physical and psychological, had impaired her ability to work.
Just three days later, Linda commenced this action by filing a complaint for damages against Steven, alleging a cause of action for domestic violence and assault and battery, a cause of action for breach of fiduciary obligations, and
In April 2008, a judgment on reserved issues was entered in the dissolution proceeding. In the statement of decision supporting that judgment, the family court judge (Judge James Mize) stated that "[i]n ordering spousal support" he had "considered all of the circumstances set forth in Family Code [section] 4320," which include "[d]ocumented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party." (Fam. Code, § 4320, subd. (i).)
Judge Mize also included a separate section in the statement of decision entitled "DOMESTIC VIOLENCE AND CREDIBILITY OF THE PARTIES," in which he described that "[o]ne of the principal questions at trial for the Court was the determination of whether there had been domestic violence and whether descriptions of domestic violence were truthful." The judge asserted that Linda "was permitted to testify as to every allegation of domestic violence up to the date of trial," which occurred in July 2007. It is not clear, however, whether, or to what extent, Judge Mize found domestic violence. He stated that some of Linda's "allegations of physical domestic violence . . . were simply not credible." In particular, he concluded that Linda's "allegations that she was sexually assaulted by [Steven] are simply unbelievable." But he also noted that Steven's "behavior during the marriage and post-separation could be described as intimidating" and that Steven "did and said some things that he should not be proud of or that were not appropriate." The judge explained that, to the extent Steven's behavior interfered with Linda's business, he was remedying that behavior "by making a spousal support award for [Linda] in the amount of $2,000.00 for eight months," with the reduction to zero at the end of that period conditioned on the parties having no contact with each other in the interim. Judge Mize asserted that Linda had "requested repayment for past medical bills, future medical bills, counseling and alleged pain and suffering," but he found "[n]o award to [Linda] other than the support ordered here is appropriate."
In July 2008, after an unsuccessful new trial motion, Linda appealed the judgment in the dissolution proceeding.
In opposing the motion, Linda argued that the judgment in the dissolution proceeding was "not a final judgment . . . on the merits," noting that the judgment was on appeal. She also argued her domestic violence cause of action was "not tried in the dissolution action."
The trial court (Judge Michael Virga) granted Steven's motion without leave to amend "on the grounds of res judicata or collateral estoppel,"
On appeal, Linda contends the trial court erred in granting Steven's motion for judgment on the pleadings because the judgment in the dissolution proceeding was not final and "[t]he dissolution proceeding did not encompass [Linda's] spousal abuse injury claims." We agree on both points.
First, however, we pause to address Steven's claim that Linda "has waived all of the arguments now presented to this Court as a result of not raising them before the trial court."
Steven acknowledges that Linda asserted in her papers in the trial court that the judgment in the dissolution proceeding was not final, but he claims she provided "no analysis as to why this might be important [and] no citation to any case that describes what a final judgment is." As to Linda's other argument, Steven contends it "appears nowhere in the underlying law suit. It simply cannot be found."
To the extent Steven complains that Linda raised one of her arguments in the trial court but did not support it with analysis or citation to authority, a similar complaint could be levied at Steven in this court, because while he asserts waiver based on Linda's alleged failure to raise in the trial court the arguments she now makes, he does not cite any case or other authority regarding the doctrine of waiver or supporting his assertion that a finding of waiver would be appropriate here. These omissions would justify us treating Steven's waiver argument as waived because "`[e]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.'" (People v. Stanley (1995) 10 Cal.4th 764, 793 [42 Cal.Rptr.2d 543, 897 P.2d 481].) "`Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.'" (Estate of Randall (1924) 194 Cal. 725, 728-729 [230 P. 445].)
Despite the foregoing, we elect to consider all of the arguments before us, and doing so we find no merit in Steven's waiver argument. "[E]ven assuming the arguments [Linda now makes] were not tendered in the trial court, they present questions of law that do not turn on disputed facts . . .,"
The Dissolution Proceeding Did Not Encompass Linda's Cause of Action for Domestic Violence
Rather than rely on the lack of finality of the dissolution proceeding alone to reverse the judgment of dismissal—given that the judgment in that proceeding may soon be final and this issue could arise again—we also address Linda's second argument, which is that the dissolution proceeding did not encompass her domestic abuse claims against Steven. Again, we agree.
"For purposes of res judicata, California applies the primary right theory to define cause of action as: (1) a primary right possessed by the plaintiff, (2) a corresponding duty imposed upon the defendant, and (3) a wrong done by the defendant which is a breach of such primary right and duty. [Citations.] Thus, a single cause of action is based on the harm suffered, rather than on the particular legal theory asserted or relief sought by the plaintiff." (Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 991 [95 Cal.Rptr.2d 837].)
In the trial court, Steven argued that Linda's cause of action for domestic violence was premised on the breach of her primary right "to be free from domestic violence, assault and battery," and "this primary right ha[d] already
We have found little California case law that is helpful on the question of the claim preclusive effect of a judgment in a marital dissolution proceeding in a later tort action, but Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091 [6 Cal.Rptr.3d 881] turns out to rest on reasoning that is persuasive here.
In Nicholson, the appellate court confronted (among other things) whether a "wife's malicious prosecution action [was] precluded by the family court's prior ruling on her motion for attorney's fees and costs" in her marital dissolution proceeding. (Nicholson v. Fazeli, supra, 113 Cal.App.4th at p. 1094.) The husband's trust had been joined as a party in the dissolution proceeding, and the wife had "filed a complaint against the Trust . . . seeking declaratory relief and imposition of a constructive trust" relating to certain property. (Ibid.) A "court order temporarily partially removed [the husband] as trustee of the Trust and replaced him with his sons . . . as trustees ad litem for the sole purpose of defending the Trust against [the wife]'s complaint. . . . [An] attorney for [the sons] filed a cross-complaint in the dissolution action against [the wife] and [the husband] seeking possession of [various property] alleged to be Trust property in [the wife]'s possession." (Ibid.) Ultimately, "the Trust voluntarily dismissed its cross-complaint without prejudice." (Id. at p. 1095.) The wife then "filed a motion in the dissolution action seeking attorney's fees and costs under Family Code sections 271 and 2030 from [the husband and his sons] and the Trust," "assert[ing] that [the husband and his sons], the Trust and [the attorney] had filed and prosecuted a frivolous cross-complaint out of spite." (Ibid.) "[T]he judge in the dissolution action awarded [the wife] $50,000 in attorney's fees and costs under Family Code sections 271 and 2030 against [the husband] and the Trust. The judge denied her request that [the sons] should be ordered to pay her fees and costs. . . ." (Ibid.)
The wife then "filed a malicious prosecution action against [the husband], [his sons] and [the attorney]," "alleg[ing] that the cross-complaint filed by [the attorney] on behalf of [the sons] against her and [the husband] had been procured by [the husband] and that they lacked probable cause for their allegations in the cross-complaint." (Nicholson v. Fazeli, supra, 113 Cal.App.4th at p. 1095.) The trial court ultimately granted the defendants' motion for judgment on the pleadings without leave to amend. (Id. at p. 1096.)
We find a similar reasoning persuasive here. A tort action like the present one is based on "the primary right to be free from personal injury" (no matter how many different tort theories may be alleged). (Sawyer v. First City Financial Corp. (1981) 124 Cal.App.3d 390, 399 [177 Cal.Rptr. 398].) "It is clearly established that `. . . there is but one cause of action for one personal injury [which is incurred] by reason of one wrongful act.'" (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 [126 Cal.Rptr. 225, 543 P.2d 593].) There is no sound basis, however, for concluding that a claim for spousal support in a marital dissolution proceeding is also based on "the primary right to be free from personal injury," even if one of the circumstances the family court considers in adjudicating that claim is domestic violence between the parties.
The Family Code recognizes that a person has a right to spousal support from his or her former spouse under certain circumstances. Specifically, subdivision (a) of Family Code section 4330 provides that "[i]n a judgment
Because the same primary right does not underlie a request for spousal support in a marital dissolution proceeding and a tort action for damages, the doctrine of claim preclusion does not preclude a person from offering evidence of domestic violence in connection with a request for spousal support in a dissolution proceeding, then suing for damages for domestic violence, or vice versa. Accordingly, a judgment in a dissolution proceeding where claims of domestic violence were (or could have been) litigated with relation to a claim for spousal support does not preclude a later tort action for domestic violence.
Of course, a judgment in a dissolution proceeding where claims of domestic violence were, in fact, litigated still may have preclusive effect under the doctrine of issue preclusion, which "`precludes relitigation of issues argued and decided in prior proceedings'" (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 896), even if it does not have preclusive effect under the doctrine of claim preclusion. But here, the doctrine of issue preclusion did not justify judgment on the pleadings in favor of Steven. If there had been a final judgment in the dissolution proceeding when Steven moved for judgment on the pleadings, and if Steven had shown that all of the allegations of domestic violence on which Linda's current tort action is based were, in fact, litigated and decided against her in the dissolution proceeding, leaving nothing new for decision in this case, then it might have been proper to grant his motion. As it was, however, there was no final judgment in the dissolution proceeding when Steven moved for judgment on the pleadings. Moreover, Steven did not carry his burden (see Vella v. Hudgins (1977) 20 Cal.3d 251, 257 [142 Cal.Rptr. 414, 572 P.2d 28]) of showing that the parties litigated in the dissolution proceeding all of the allegations of domestic violence Linda seeks to raise in this case, or that Judge Mize resolved all of those allegations against her. Without the actual evidence introduced in the dissolution proceeding, which Steven did not put before the trial court or this court, Judge Mize's statement that Linda "was permitted to testify as to every allegation of domestic violence up to the date of trial" in July 2007 does not establish which incidents of domestic violence actually were litigated in the dissolution proceeding. Further, Judge Mize's statement of decision was not specific on whether he found domestic violence, or which alleged incidents of domestic violence he found were not proven because Linda was "not credible," as Judge Mize referred only generally to "[o]ther allegations of physical domestic violence." Under these circumstances, the doctrine of issue preclusion cannot support the judgment on the pleadings in favor of Steven.
The judgment of dismissal is reversed, and the case is remanded to the trial court with directions to vacate the order granting the motion for judgment on the pleadings and enter a new order denying that motion. Linda shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
Butz, J., and Mauro, J., concurred.
On appeal, Linda offers no argument relating to the trial court's ruling on her cause of action for breach of fiduciary obligations. Accordingly, our decision does not address that cause of action.
Linda's cause of action for negligent infliction of emotional distress was coextensive with her cause of action for breach of fiduciary obligations because it was based on "economic actions [Steven allegedly took] during the course of the parties' dissolution proceeding, many of which [we]re identified in the [cause of action for breach of fiduciary obligations]." In turn, Linda's cause of action for intentional infliction of emotion distress was coextensive with her cause of action for domestic violence and assault and battery because it was based on "[t]he intentional actions of [Steven]" that were alleged in the other causes of action.
Because Linda offers no argument on appeal specifically relating to her cause of action for negligent infliction of emotional distress and because that cause of action was based on the same allegations as her cause of action for breach of fiduciary obligations, which we do not address, we also do not address the cause of action for negligent infliction of emotional distress.
As for Linda's cause of action for intentional infliction of emotional distress, to the extent that cause of action was premised on the same allegations as her cause of action for domestic violence, our discussion regarding the latter cause of action applies with equal force to the former.