RADELL v. COMORA (1989)

INTRODUCTION

In this consolidated matter, defendants Emanuel M. Comora and Margaret B. Comora, individually and as trustees of the Comora family trust, appeal from a judgment entered in favor of plaintiffs Irvin Radell, Nancy Radell and David Radell.   Plaintiffs Aileen Comora, individually and as trustee of the Comora family trust, Madeleine Comora and Sian Comora appeal from an order of dismissal entered after the trial court sustained without leave to amend the demurrer of the Radells to their complaint.   In addition, they appeal from an order imposing sanctions pursuant to Code of Civil Procedure section 128.5.

FACTUAL BACKGROUND 1

Irvin and Nancy Radell are the stepfather and mother, respectively, of Margaret Comora.   Emanuel Comora is her husband and David Radell is her half-brother.   The Comoras have three adult daughters, Aileen, Madeleine and Sian.

In May 1970, Emanuel and Margaret Comora faced the foreclosure of a trust deed on real property they owned at 454 North Oakhurst Drive in Beverly Hills (the Oakhurst property).   Emanuel Comora's name alone appeared on the deed to this property.   A receiver was appointed and it appeared approximately $50,000 would be required to cure the default and discharge the receiver.   The Comoras recently had lost their residence and another apartment building to foreclosure;  consequently, they came to live with Irvin and Nancy Radell.   The Radells agreed to provide the sums required to avoid foreclosure on the Oakhurst property.   They entered into an agreement with California Federal Savings and Loan Association to this effect.

On October 19, 1970, the Radells and Emanuel Comora drew up and executed a property agreement.   By its terms, in exchange for $30,000, Emanuel Comora granted 50 percent of his “ownership, interests, and privileges” in the Oakhurst property to Irvin, Nancy and David Radell.   In addition, David Radell and Emanuel Comora executed a management agreement which gave David Radell full authority to manage the property, negotiate leases, collect rents and make all disbursements.   No “direct income payments” were to be made to Emanuel Comora until David Radell deemed them appropriate.   David Radell was to receive a management fee of five percent of the monthly gross income.   David Radell also received an apartment in which to live rent-free;  he resided there until 1976, after which he received instead the cash equivalent of the rental value of the apartment, $1,100 per month.   Pursuant to the management agreement, the tenants received notice on October 27, 1970 that David Radell was taking over management of the property.

On October 21, 1970, Emanuel Comora executed an installment note for $150,000 payable to Nancy Radell.   The note bore interest at the rate of 10 percent per annum, payable monthly;  annual payments of principal were to be made until 1975.   The $150,000 represented the balance due on a note secured by a second deed of trust which Nancy Radell had acquired in 1968, as well as additional sums she had advanced over the years.

The parties amended their property agreement, executing a superseding written agreement on December 20, 1970.   The amendment was precipitated largely by the Radells' investment of an additional $13,500 in the Oakhurst property since October 19, 1970.

The parties remained amicable and payments were made in accord with the terms of the October 19, 1970 property agreement until early in 1984.   At that point, the Comoras repudiated the Radells' supposed ownership interest in the Oakhurst property, ceased to pay them any share of the profits from the building and excluded them from its management.   The instant litigation ensued.

CONTENTIONS **

DISCUSSION I–III**

IV

The Comora defendants aver plaintiffs' cause of action brought under the aegis of Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 206 Cal.Rptr. 354, 686 P.2d 1158 is fatally flawed and thus requires reversal.   The averment lacks merit.

Seaman's addresses the problem of applying the covenant of good faith and fair dealing implied in every contract to permit the bringing of a tort cause of action in the context of a commercial contract not accompanied by a “special relationship.”   The California Supreme Court notes:  “In [ordinary commercial] contracts, it may be difficult to distinguish between breach of the covenant and breach of contract, and there is the risk that interjecting tort remedies will intrude upon the expectations of the parties.   This is not to say that tort remedies have no place in such a commercial context, but that it is wise to proceed with caution in determining their scope and application.”  (36 Cal.3d at p. 769, 206 Cal.Rptr. 354, 686 P.2d 1158.)

Seaman's finds it unnecessary to resolve the problem under the facts, however, in that “a party to a contract may incur tort damages when, in addition to breaching the contract, it seeks to shield itself from liability by denying, in bad faith and without probable cause, that the contract exists.”   (Ibid.)  In that instance, Seaman's concludes, it is not even necessary to rely on the implied covenant of good faith and fair dealing.

“It has been held that a party to a contract may be subject to tort liability, including punitive damages, if he coerces the other party to pay more than is due under the contract terms through the threat of a lawsuit, made ‘ “without probable cause and with no belief in the existence of the cause of action.” ’   [Citation.]  There is little difference, in principle, between a contracting party obtaining excess payment in such manner, and a contracting party seeking to avoid all liability on a meritorious contract claim by adopting a ‘stonewall’ position (‘see you in court’) without probable cause and with no belief in the existence of a defense.   Such conduct goes beyond the mere breach of contract.   It offends accepted notions of business ethics.   [Citation.]  Acceptance of tort remedies in such a situation is not likely to intrude upon the bargaining relationship or upset reasonable expectations of the contracting parties.”  (Seaman's, supra, 36 Cal.3d at pp. 769–770, 206 Cal.Rptr. 354, 686 P.2d 1158.)

Plaintiffs' second amended complaint was filed on July 24, 1984, approximately one month before the California Supreme Court issued Seaman's.   The complaint labels the causes of action set forth as declaratory relief, partition, accounting, dissolution of a partnership and fraud.   It alleges the subject of the action is a written partnership agreement, subsequently amended in writing, which concerns the Oakhurst property.   It further alleges the parties are the partners;  David Radell holds a 25 percent interest, Irvin and Nancy Radell hold a 25 percent interest and defendants hold a 50 percent interest in the partnership.

In addition, the complaint alleges the parties all treated each other as partners from and after October 19, 1970, regularly filing federal and state partnership tax returns, but defendants, in January, February and March 1984, “repudiated the partnership and denied [plaintiffs'] ownership interest in the Property”;  one day after the action originally was served on defendant Margaret Comora, defendants transferred bank accounts belonging to the property without plaintiffs' knowledge or consent, attempted to terminate the post office box used for the property, ceased to distribute to plaintiffs their share of net monthly income, ceased to pay David Radell $1,100 per month in lieu of his use of an apartment on the property and “excluded [plaintiffs] from the management of the Property, all in direct repudiation of the [partnership] Agreements of the parties as hereinafter alleged.”

The complaint also alleges plaintiffs have an interest in the property as partners and coowners, but since at least March 23, 1984, defendants have “usurped complete control and management of the Property” from plaintiffs and have been “using the income, rents and profits derived from the Property for their sole and exclusive benefit.”   Finally, it alleges defendants submitted to the court a “reconveyance deed” and a “quitclaim deed,” each dated October 30, 1982, purportedly signed by plaintiffs, which are forgeries.

On November 4, 1984, plaintiffs' counsel brought the Seaman's case to defense counsel's attention by certified letter.   Plaintiffs' counsel quoted from Seaman's and notified defendants the “tort aspects of the Second Amended Complaint contemplate this theory in seeking punitive damages for the use of forged documents and other fraudulent conduct in an effort to deny the existence of a partnership between plaintiffs and defendants.”   However, plaintiffs did not amend the second amended complaint expressly to state a cause of action under Seaman's.   Defendants objected to this failure to amend, on the ground it prevented them from demurring, but plaintiffs' counsel maintained the existing allegations, i.e., that defendants engaged in fraudulent conduct to repudiate the partnership and deny plaintiffs' ownership interest in the property, adequately covered the theory—posing “a virtual classic example of bad faith denial of a contract without probable cause.”

On the eve of trial, the trial court denied defendants' motion to exclude the Seaman's theory, ruling “[i]f the evidence is presented to support the theory of tort liability on the same general facts ․ as pleaded and which brings the case under ․ the Seaman's [theory], then the court will allow plaintiffs to amend to conform to proof.”   At the conclusion of the jury trial, the court allowed plaintiffs to conform the second amended complaint to proof by adding a sixth cause of action for tortious repudiation of the partnership agreement.

Plaintiffs incorporated the allegations set forth above and, in addition, alleged defendants “have wrongfully repudiated liability to plaintiffs under the aforementioned agreements and under the notes and Deeds of Trust ․ by asserting groundless defenses in bad faith and without probable cause and by offering false evidence, in violation of the covenant of good faith and fair dealing and in violation of defendants' fiduciary duty to plaintiffs.”   It is the latter, newly stated, allegations which defendants view as fatally flawed.   They take the position that Seaman's does not permit a cause of action for repudiation, i.e., denial of liability under a contract, but only for denial of its existence.

Currently, there is a split of authority in the interpretation of Seaman's with respect to this point.  Quigley v. Pet, Inc. (1984) 162 Cal.App.3d 877, 208 Cal.Rptr. 394 involves a situation where the defendant declared a contract rescinded, based upon an alleged misrepresentation made by the plaintiff, demanded reimbursement for overpayment and threatened the plaintiff with a lawsuit.  (At p. 890, 208 Cal.Rptr. 394.)  Quigley notes Seaman's had not required examination of conduct in the performance of a contract, but only asked whether a contract existed.  (Ibid.)

The court finds the distinction important:  “General and punitive damages may be appropriate judicial sanctions for those who in bad faith deny the contract itself, but may be much less well chosen for those whose fault lies only in having inadequate grounds to challenge contract terms․  Not all contractual facts are crystal clear.   The dispute may be to the fact of a meeting of the minds in the first place, or it may be over the meaning of the words used.   Inappropriate reliance may be placed on unenforceable oral ‘modifications' or ‘supplements.’  ․ There may be uninformed positions taken, energized by emotions and self interest.”  (Quigley, supra, 162 Cal.App.3d at p. 892, 208 Cal.Rptr. 394.)   This is much the same position taken in Elxsi v. Kukje America Corp. (N.D.Cal.1987) 672 F.Supp. 1294, 1297–1298.   (Accord, Nissho–Iwai Co. v. Occidental Crude Sales, Inc. (5th Cir.1988) 848 F.2d 613, 622.)

On the other hand, Multiplex Ins. Agency, Inc. v. California Life Ins. Co. (1987) 189 Cal.App.3d 925, 235 Cal.Rptr. 12 takes a different approach.   Multiplex relies on the following:  “Seaman's recognized that stonewalling ‘goes beyond the mere breach of contract.   It offends accepted notions of business ethics.  [Citation.]  Acceptance of tort remedies in such a situation is not likely to intrude upon the bargaining relationship or upset reasonable expectations of the contracting parties.’  [Citation.]”  (At p. 934, 235 Cal.Rptr. 12.)   As a consequence, where a defendant has “denied any liability ‘in bad faith and without probable cause, that the contract exists' or denied liability ‘without probable cause and with no belief in the existence of a defense [stonewalling]’ ․ no special relationship is necessary.   [Citation.]”  (Id., at p. 939, 235 Cal.Rptr. 12, citation omitted.)

 It has long been recognized in California that a partner may state a tort cause of action against another partner where the offending partner “excludes the other, repudiates the very existence of the partnership and converts all of the partnership assets.”  (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 557–558, 561, 562, 140 Cal.Rptr. 330.)  Gherman concludes statutory and case authority use the term “breach of contract” “in the sense that there has been a repudiation of the basic concept—a denial of the very existence of a partnership or joint venture relationship in any form or at any time and a conversion of the partnership assets.   It is regrettable that the words ‘breach’ and ‘repudiation’ are sometimes used interchangeably, but there is a technical difference.   According to Black's Law Dictionary (rev. 4th ed. 1968), a ‘breach of contract’ is the ‘failure, without legal excuse, to perform any promise which forms the whole or part of a contract’ whereas according to the same authority ‘repudiation’ means the ‘rejection;  disclaimer, renunciation;  ․ of a duty or relation.’ ”  (Id., at pp. 563–564, 140 Cal.Rptr. 330, emphasis original in part.)

 Contrary to defendants' assertion, Gherman does not stand for the proposition that a plaintiff must elect between tort, breach of contract and dissolution remedies.   While Gherman states “the victim at least has alternative remedies” (id., at p. 564, 140 Cal.Rptr. 330, fn omitted), the court notes the remedies actually are cumulative pursuant to Corporations Code section 15038 (ibid., fn. 12, 140 Cal.Rptr. 330).   Moreover, although Gherman does not expressly say so, implicit in its holding is a recognition that the repudiating partner acts in bad faith and without any conceivable justification for his action.   In other words, in the context of a partnership, California law long has anticipated Seaman's.

 In this context, plaintiffs' allegations that defendants “repudiated the partnership and denied [plaintiffs'] ownership interest in the Property,” transferred bank accounts belonging to the property without plaintiffs' knowledge or consent, attempted to terminate the post office box used for the property, ceased to distribute to plaintiffs their share of net monthly income, ceased to pay David Radell $1,100 per month in lieu of his use of an apartment on the property and “excluded [plaintiffs] from the management of the Property, all in direct repudiation of the [partnership] Agreements of the parties,” and “usurped complete control and management of the Property” from plaintiffs, “using the income, rents and profits derived from the Property for their sole and exclusive benefit” serve the same purpose as a statement defendants denied the existence of the partnership and partnership agreement.   Of particular pertinence is the allegation defendants performed acts “in direct repudiation of the [partnership] Agreements of the parties.”  (Emphasis added.)   As Gherman notes, “repudiation” in this context means “a denial of the very existence of [the thing] in any form or at any time.”  (72 Cal.App.3d at p. 563, 140 Cal.Rptr. 330, emphasis added.)   Clearly, the import of the allegation actually made and that of the allegation which could have been made are the same.

The allegation that defendants submitted to the court in support of their denials a “reconveyance deed” and a “quitclaim deed,” each dated October 30, 1982, purportedly signed by plaintiffs, which are forgeries, serves the same purpose as an express allegation defendants acted in bad faith and without probable cause.   If the original allegations are not sufficient in themselves, then the added allegation that defendants acted wrongfully, in bad faith and without probable cause, “by offering false evidence” reasonably may be viewed as curing any remaining defect.   Hence, it is unnecessary to determine whether the balance of the added allegations state a cause of action under Seaman's.

Defendants argue the complaint at issue here nonetheless is fatally flawed, in that plaintiffs do not and cannot allege defendants deny the existence of any contract.   Rather, in defendants' view, the only dispute is in how the agreement of the parties is to be interpreted and which version is the correct one.   The argument is specious for two reasons.   First, all litigation which stems from the purported existence of a contract involves a particular contract and plaintiffs do indeed allege defendants denied the existence of a particular contract.   Second, from the face of the complaint it is not in any manner apparent the parties simply have a dispute over interpretation or which version is correct;  thus, from a standpoint of whether plaintiffs stated a cause of action under Seaman's, the assertion is irrelevant.

Defendants would construe Seaman's as meaning a party may escape tortious liability—even if he denies the existence of the written contract the plaintiff says exists—so long as he acknowledges he or she has a written contract with the plaintiff, albeit one with vastly different terms.   In the context of the facts presented here, we cannot agree.  Seaman's expressly refers to a denial, “in bad faith and without probable cause, that the contract exists.”  (36 Cal.3d at p. 769, 206 Cal.Rptr. 354, 686 P.2d 1158, emphasis added.)   When the parties all agree the contract is a written one, the only common sense meaning to be given Seaman's is that denying the existence of the contract the plaintiff proffers as the written agreement of the parties is the type of denial the court had in mind.   It is unthinkable that a defendant could escape tort liability upon fabricating a false version of a genuine contract simply because he or she had the presence of mind not to deny the existence of any form of contract.   It is no less egregious to assert falsely that plaintiff's version of the parties' written agreement is not genuine than it is to deny altogether that any agreement exists.

Not only is defendants' construction of Seaman's unreasonably narrow, but defendants' characterization of the circumstances is inaccurate.   It is clear the instant dispute did not result from ambiguous contract language which reasonably might be given two differing interpretations.   Both the October 19, 1970 agreement and the December 20, 1970 agreement (plaintiffs' version) state unequivocally:  “In return for [a sum certain in] cash, I, Dr. Emanuel M. Comora, do hereby grant fifty percent (50%) of my ownership, interest and privileges in the building and grounds located at 454 North Oakhurst ․ to Nancy, Irvin and David R. Radell.  [¶] I, Dr. Emanuel M. Comora, do hereby agree that Nancy, Irvin and David R. Radell are to receive fifty percent (50%) of the net monthly income from the building and grounds․  If said property is sold, Nancy, Irvin and David R. Radell are to be paid fifty percent (50%) of all monies assigned to my account in escrow as a result of said sale.”   No reasonable person could read those words and reach any conclusion other than that it created some form of coownership and profit sharing—if not a partnership, then a joint venture (it does not matter which).⁴

More importantly, this was not in any manner a case where the parties all agreed a certain written document was executed, but differed in their interpretations of its language.   Concededly, in those circumstances, there would not be a denial of the existence of the contract.   But here, defendants absolutely denied executing the written agreement plaintiffs pleaded as the one made on December 20, 1970.   While defendants did acknowledge they had executed a written agreement with plaintiffs on that date, they contended it was an entirely different document with vastly different terms—unambiguous terms which could be interpreted only as creating a loan and security contract rather than some form of coownership.

Defendants now characterize this as a dispute over which version was “correct”;  it was hardly that.   Rather, it was an express denial of the genuineness of the document plaintiffs proffered, offering in its place another which defendants represented was genuine.   In other words, defendants denied a particular contractual relationship existed and their denial was based on offering a second, sharply differing version of the same contractual document.   In sum, the basic theory of the case was that one of the parties had falsified the crucial document;  the jury concluded defendants had done so and that conclusion is amply supported by the evidence.   It is difficult to conceive of a denial the alleged contract exists which could be taken in any worse faith or with any less probable cause.   Accordingly, given the instant facts and circumstances, it is clear plaintiffs pleaded and proved a Seaman's cause of action.⁵

V, VI ***

VII

Finally, the Comora defendants contend the award of punitive damages is unconstitutional, in that it violates the Fourteenth and Eighth Amendments to the federal Constitution.   We disagree.

The jury awarded plaintiffs $249,224.57 in compensatory damages and $1,250,000 in punitive damages.   Defendants' constitutional challenge to the punitive damage award is twofold:  the imposition of punitive damages (1) violates the due process clause of the Fourteenth Amendment of the United States Constitution and (2) constitutes an “excessive fine” within the meaning of the Eighth Amendment.⁶

Due Process

The Fourteenth Amendment to the United States Constitution prohibits a state from depriving any person of property without due process of law.   Due process requires the government to provide fundamentally fair proceedings, but it “ ‘is not a technical conception with a fixed content unrelated to ․ circumstances.’  [Citation.]”  (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 24, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640.)   To be fundamentally fair, the proceeding must guarantee each party “the opportunity to present his case and have its merits fairly judged.”  (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 433, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265.)

In the present context, defendants argue California's procedure for awarding punitive damages fails to provide them that process to which they are due, in that a jury has virtually unlimited power to punish a defendant—even to the point of financial ruin—without the restraint of any articulable and definite standard.   They assert neither Civil Code section 3294 ⁷ nor the common jury instruction, BAJI No. 1471 ⁸ , provides any real limits to the jury's discretion.   The same argument was addressed and rejected in Zhadan v. Downtown L.A. Motors (1976) 66 Cal.App.3d 481, 501–502, 136 Cal.Rptr. 132.   In reality, the claim is a variant of earlier constitutional challenges based on the asserted vagueness of Civil Code section 3294, i. e., its failure “to provide sufficient guidance for the trial courts charged with implementing it.”  (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66, fn. 13, 118 Cal.Rptr. 184, 529 P.2d 608.)   However, Civil Code section 3294 simply codifies the common law of punitive damages;  that body of law “specifically defines which exemplary damages may be awarded and how the amount shall be determined.  [Citations.]”  (Ibid.)

 The primary tenet of the common law on this subject addresses the very purpose of punitive damages.   Such damages are intended to punish certain defined classes of civil wrongdoers and deter the commission of similar wrongful acts.   Consequently, the appropriate amount of punitive damages is that sum which is necessary “to ensure that the defendant does not repeat his act and that others do not follow his example.  [Citation.]”  (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 1098, 234 Cal.Rptr. 835, petn. for writ of cert. den. sub nom.  Ohio Casualty Ins. Co. v. Downey Savings & Loan Assn. (1988) 486 U.S. 1036, 108 S.Ct. 2023, 100 L.Ed.2d 610.)

The courts are guided “by certain established principles, all of which are grounded in the purpose and function of punitive damages.   One factor is the particular nature of the defendant's acts in light of the whole record;  clearly, different acts may be of varying degrees of reprehensibility, and the more reprehensible the act, the greater the appropriate punishment, assuming all other factors are equal.  [Citations.]  Another relevant yardstick is the amount of compensatory damages awarded;  in general, even an act of considerable reprehensibility will not be seen to justify a proportionately high amount of punitive damages if the actual harm suffered thereby is small.   [Citation.]  Also to be considered is the wealth of the particular defendant;  obviously, the function of deterrence ․ will not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort.   [Citations.]  By the same token, of course, the function of punitive damages is not served by an award which, in light of the defendant's wealth and the gravity of the particular act, exceeds the level necessary to properly punish and deter.”  (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, 148 Cal.Rptr. 389, 582 P.2d 980.)

 The foregoing review of the relevant factors to be considered in determining the amount of an award of punitive damages also demonstrates why that determination is not amenable to fixed standards of mathematical definition.  (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 790, 157 Cal.Rptr. 392, 598 P.2d 45.)   Of necessity, the calculation of punitive damages involves “ ‘a fluid process of adding or subtracting depending on the nature of the acts and the effect on the parties and the worth of the defendants' ”;  it is this process which is committed to the jury's discretion.  (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal.App.3d at p. 1097, 234 Cal.Rptr. 835, quoting from Walker v. Signal Companies, Inc. (1978) 84 Cal.App.3d 982, 998, 149 Cal.Rptr. 119.)

 The relevant factors need not necessarily be placed before the jury in the form of an instruction to afford sufficient guidance;  they are largely a matter of common sense.   Moreover, a party may move for a new trial on the ground of excessive damages.  (Code Civ.Proc., § 657, subd. 5.)   In determining such a motion, the trial court is to examine the entire record and weigh the evidence;  if the court is convinced the jury clearly should have reached a different verdict, a new trial shall be granted.  (Code Civ.Proc., § 657.)   In making such a determination, the trial court of course is guided by the judicial development of those common law legal principles which are the adjunct to Civil Code section 3294.  (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 811, 174 Cal.Rptr. 348.)

 In determining whether present procedures afford a party “fundamental fairness,” the courts examine (1) the private interest affected by the action, (2) the risk of an erroneous deprivation of that interest through the procedure presently used and the probable value of additional safeguards and (3) the government's interest, including the function involved.   (Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18.)   It is, of course, a defendant's property interest which is affected by a determination of whether and in what amount he or she should be liable for punitive damages.   A jury presently is afforded no real discretion is determining whether a defendant should be liable for punitive damages;  the conduct which warrants such an award is defined in careful detail.   While a jury is presently afforded wide discretion, with little definite guidance, in determining the amount in which a defendant should be liable for punitive damages, a high award is immediately subject to attack as excessive in a motion for a new trial.   Such an attack affords the defendant with a full judicial review, including a weighing of the evidence, in the light of broadly articulated common law standards.

Given the innumerable combinations of circumstances which may come into play where punitive damages are sought, those standards cannot in all practicality be more narrowly articulated;  hence, it is difficult to perceive any probability additional safeguards would have value and, indeed, defendants have not suggested any such safeguards.  (See Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal.App.3d at p. 1101, 234 Cal.Rptr. 835.)   Finally, the government has a clear policy interest in punishing and deterring certain peculiarly reprehensible forms of civil wrongdoing, particularly where—as here—a fiduciary relationship exists.   With fiduciary trust must go responsibility consonant with that trust.  (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 820, 169 Cal.Rptr. 691, 620 P.2d 141.)   Upon considering all of the foregoing factors, we conclude the present procedure for fixing the amount of punitive damages to be awarded does not deprive a civil defendant of due process of law.

 Defendants also challenge Civil Code section 3294 as unconstitutionally vague in defining the conduct which gives rise to liability for punitive damages.   This claim has been soundly rejected over the years by a succession of California cases and merits no further discussion.  (See, e.g., Bertero v. National General Corp., supra, 13 Cal.3d at p. 66, fn. 13, 118 Cal.Rptr. 184, 529 P.2d 608;  Grimshaw v. Ford Motor Co., supra, 119 Cal.App.3d at p. 811, 174 Cal.Rptr. 348;  Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 404–405, 89 Cal.Rptr. 78;  Toole v. Richardson–Merrell Inc. (1967) 251 Cal.App.2d 689, 717, 60 Cal.Rptr. 398.)

Eighth Amendment

 In part, the Eighth Amendment to the United States Constitution prohibits the imposition of “excessive fines.”   It is this provision which defendants argue Civil Code section 3294 violates.   In general, Eighth Amendment prohibitions apply only to criminal sanctions and not to purely civil penalties.  (Ingraham v. Wright (1977) 430 U.S. 651, 664, 97 S.Ct. 1401, 1408, 51 L.Ed.2d 711;  Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal.App.3d at p. 1101, 234 Cal.Rptr. 835.)   Defendants, however, place great reliance on footnote 37 of Ingraham, supra, 430 U.S. at page 669, 97 S.Ct. at page 1411.   Footnote 37 does state, “[s]ome punishments, though not labeled ‘criminal’ by the State, may be sufficiently analogous to criminal punishments in the circumstances in which they are administered to justify application of the Eighth Amendment.”   But in relying on this annotation in Ingraham, defendants overlook Downey Savings & Loan Assn., supra, which does not view punitive damages in this manner.

 In any event, there is little difference between a determination of whether a fine is excessive in violation of the Eighth Amendment or whether an award of damages is so excessive as to suggest its origin in the passion and prejudice of the jury.   The former determination depends on the objective sought, the importance and magnitude of the public interest to be protected, the circumstances and nature of the action for which the fine is imposed and, in some circumstances, the defendant's ability to pay.  (Traylor v. State (Del.1983) 458 A.2d 1170, 1178;  Hindt v. State (Del.1980) 421 A.2d 1325, 1333;  Stock v. State (Alaska 1974) 526 P.2d 3, 18;  State v. Trailer Service, Inc. (1973) 61 Wis.2d 400, 212 N.W.2d 683, 689.)   In essence, these are the factors which are to be considered in determining the appropriate amount of punitive damages to be awarded.   To be excessive, a fine must be so disproportionate to the offense as to shock the conscience and exceed the bounds of reason.  (Hindt, supra, at p. 1333.)   An award of punitive damages will be reversed as excessive “only when the entire record viewed most favorably to the judgment indicates the award was the result of passion and prejudice.  [Citation.]”  (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal.App.3d at p. 1099, 234 Cal.Rptr. 835.)   Again, the standards are closely similar.   Hence, at bottom, defendants' claim is simply that the award of punitive damages is excessive as a matter of law, clearly indicating the jury's abuse of discretion.

 Defendants characterize the instant award as “wildly excessive.”   They argue they are individuals with an inability to insure against liability for such a sanction and this should have a definitive effect on the size of the award.   We reject this argument.   The ability or inability to insure against reprehensible civil conduct should have no bearing on its punishment.

 In addition, defendants assert their incomes are relatively small in relation to the size of the award.   The record is devoid of evidence to support this assertion.   Evidence of a defendant's financial condition is not essential to the affirmance of an award of punitive damages (Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d at p. 404, 89 Cal.Rptr. 78;  Hanley v. Lund (1963) 218 Cal.App.2d 633, 644, 32 Cal.Rptr. 733), but wealth is an important consideration (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal.App.3d at p. 1099, 234 Cal.Rptr. 835).   In the instant matter, plaintiffs attempted to obtain evidence of defendants' net worth and general financial condition, but defendants successfully rejected their efforts.   No evidence whatsoever was presented of defendants' total income, net worth or overall wealth.   However, wealth need not be measured in this manner;  other asset and income factors may be considered.  (Id., at p. 1100, 234 Cal.Rptr. 835.)

There was evidence the Oakhurst property, plaintiffs' 50 percent interest in which defendants attempted to usurp, had a fair market value of at least $4,000,000.   In addition, the jury knew the income flow of the Oakhurst property and knew plaintiffs held nearly $250,000 in promissory notes from defendants on which plaintiffs asserted little or no principal or interest had been paid, but which defendants contended had been paid in full inasmuch as plaintiffs had no interest in the Oakhurst property.   This information provided the jury with some reasonable gauge both of the reprehensibility of defendants' conduct and the size of an award which would achieve the statutory punitive and deterrent purposes.

 No fixed ratio determines the proper proportion between punitive and compensatory damages.  (Id., at p. 1097, 234 Cal.Rptr. 835;  Moore v. American United Life Ins. Co. (1984) 150 Cal.App.3d 610, 636, 197 Cal.Rptr. 878.)   In general terms, punitive damages must bear a reasonable relationship to compensatory damages, but the “reasonable relationship” rule exists only to guard against clear excess.  (Finney v. Lockhart (1950) 35 Cal.2d 161, 164, 217 P.2d 19.)   High ratios of punitive damages to compensatory damages generally are upheld and an award of punitive damages many times greater than compensatory damages is not, as a matter of law, excessive.  (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal.App.3d at p. 1098, 234 Cal.Rptr. 835.)   Here, the award of punitive damages is roughly five times greater than the award of compensatory damages;  given its size, it cannot be deemed excessive as a matter of law.   Moreover, considering all the facts, it does not appear to be excessive in the instant circumstances.   Accordingly, the award is affirmed.

VIII †

The judgment and orders are affirmed.   Respondents are to recover costs on appeal and appellants Aileen, Madeleine and Sian Comora are ordered to pay to respondents $5,000 in sanctions.

FOOTNOTES

1.   Additional facts will appear as they are necessary to the resolution of the issues presented on appeal.

FOOTNOTE.   See Footnote *, ante.

4.   There is so great a similarity between the nature and incidents of the relationships of partnership and joint venture that a complaint founded on a theory of partnership will suffice to sustain a judgment even if only a joint venture is proven.  (5 Witkin, Cal. Procedure (3d. ed. 1985) Pleading, § 772, p. 217.)

5.   Nothing we have said herein is intended to stand for the proposition that a written contract is essential to the maintenance of a Seaman's cause of action.

FOOTNOTE.   See footnote *, ante.

6.   The United States Supreme Court recently declined to address similar constitutional challenges in Bankers Life & Casualty Co. v. Crenshaw (1988) 486 U.S. 71, –––– – ––––, 108 S.Ct. 1645, 1650–1651, 100 L.Ed.2d 62, 71–73.   The Supreme Court also denied a petition for a writ of certiorari to the California court of appeal in Richfield Co. v. Nielsen (1988) 486 U.S. 1036, 108 S.Ct. 2023, 100 L.Ed.2d 610.

7.   Civil Code section 3294, subdivision (a), provides:  “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”   Subdivision (c) defines “malice,” “oppression” and “fraud” as follows:  “(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

8.   BAJI No. 1471 provides:  “The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury's sound discretion, exercised without passion or prejudice.”

FOOTNOTE.   See footnote *, ante.

SPENCER, Presiding Justice.

HANSON and DEVICH, JJ., concur.