MONIA v. PARNAS CORPORATION (1991)

Parnas Corporation (Parnas) appeals from the judgment in Victor Monia's action for malicious prosecution.¹  Parnas contends the jury was erroneously asked to determine the reasonableness of Parnas's belief in the truth of the statement that served as the basis for the underlying libel action;  that Parnas was improperly deprived of its defense of reliance on advice of counsel;  that the evidence was insufficient to establish that Parnas acted maliciously in bringing the libel action;  that the trial court abused its discretion in admitting certain expert testimony to prove malice on the part of Parnas;  and that prejudicial misconduct on the part of Monia's trial counsel requires a reversal of the judgment.   Parnas also contends the evidence fails to support the jury's award of $60,000 in compensatory and $200,000 in punitive damages.

As we conclude that the jury interrogatories and special verdict conformed to the rule of Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498, that the evidence was properly admitted and sufficiently supports the judgment, and that the asserted misconduct of Monia's counsel is not so prejudicial as to warrant a new trial, we will affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual background of this case was set forth in West Valley Taxpayers, supra.   For convenience, it is quoted here.

“In 1978 City of Fremont Mayor Gene Rhodes faced civil and criminal suits regarding his alleged failure to comply with provisions of the Political Reform Act of 1974 (Gov.Code, § 81000 et seq.) and with regulations established by the Fair Political Practices Commission (see Gov.Code, § 83100 et seq.).   In pleadings and newspaper accounts, Rhodes's alleged conflicts of interest were linked, in part, to his dealings with Parnas Corporation (Parnas), a Bay Area real estate developer.

“This link resurfaced two years later in connection with an election in the City of Saratoga.   The election ballot contained ‘Measure A,’ an initiative placing controls on hillside development.   A flier distributed during the campaign was headed, ‘Protect Your City And Rights:  VOTE “YES” ON MEASURE A.’   Under the subheading, ‘Why is Saratoga Behind Other Cities in Controlling Hillside Developments?,’ the flier contained the following:  ‘Developers such as Parnas Co., that was involved in the Fremont Mayor's conflict of interest, are now developing land in Saratoga's hills․'

“In May 1980 Parnas brought a libel action against the three organizations listed at the bottom of the flier and an individual officer of each organization, who were not listed on the flier.   The defendants included West Valley Taxpayers and Environment Association (WVTEA) and Victor Monia, the president of WVTEA.   The complaint alleged that the flier statement regarding Parnas was false and libelous on its face.  ‘It clearly exposes [Parnas] to hatred, contempt, ridicule, and obloquy, because it accuses [Parnas] of being involved in a conflict of interest situation and committing criminal acts.’

“In their answer WVTEA, Monia, and the other defendants alleged that the flier statement regarding Parnas was not false.  ‘To the contrary, they were truthful in that [Parnas] did have a connection with the controversy surrounding allegations and charges made against former Mayor Rhodes of Fremont, in that some of the charges made clearly involve plaintiff PARNAS CORPORATION as a party which was both appearing before the Fremont City Council and requesting action, and was then involved or had been in the past involved in land transactions with the then Mayor of Fremont, Mr. Rhodes, and in other particulars to be shown according to proof.’

“In February 1983 Parnas's libel suit was dismissed under Code of Civil Procedure section 583, subdivision (a), for lack of prosecution.

“In February 1984 WVTEA and Monia filed the instant action for malicious prosecution against Parnas and Parnas's counsel in the libel suit.   The complaint alleged that Parnas lacked probable cause to bring the libel action for several reasons, including the fact that ‘the statements alleged in the Parnas Complaint to have been the basis for a libel claim were, in fact, true․’  In their answer, Parnas and counsel responded that, ‘in instituting the prior action, [Parnas] was acting in reliance upon advice of counsel, and [Parnas] maintained and continues to maintain an honest, good faith belief in the liability of defendants [WVTEA and Monia] in the prior action for the conduct therein alleged.’

“WVTEA and Monia settled the malicious prosecution action with Parnas's former counsel and proceeded against Parnas alone.   After lengthy in limine proceedings, the trial judge concluded, as a matter of law, that Parnas's libel suit against WVTEA was supported by probable cause.   As a result, the court dismissed WVTEA's malicious prosecution action against Parnas.   Monia's suit against Parnas proceeded to trial.”  (West Valley Taxpayers & Environment Assn. v. Parnas Corp., supra, 222 Cal.App.3d 627 at 629–630, 271 Cal.Rptr. 611.)

The trial was divided into three phases:  (1) probable cause;  (2) malice and compensatory damages;  and (3) punitive damages.   Following presentation of evidence in the first phase of trial, the jury found that Parnas did not have a reasonable, good faith belief that the flier statement was false and damaging.   The trial court then ruled that Parnas lacked probable cause as a matter of law to file the underlying libel suit.   At the conclusion of the second phase of the trial, the jury found that Parnas acted with malice in “initiating and/or maintaining” the libel action, and awarded Monia $60,000 in compensatory damages.   After deliberating over the evidence adduced in the final phase of the trial, the jury awarded Monia $200,000 in punitive damages.   Parnas appeals.

DISCUSSION

1. Form of Special Verdict on Issue of Probable Cause Was Proper.

 To establish a cause of action for malicious prosecution of a civil action, a plaintiff must plead and prove that the prior action was brought by or at the direction of the defendant, without probable cause, and was initiated with malice.  (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608.)   Probable cause requires a reasonable belief in the possibility of success in the underlying suit.   (West Valley Taxpayers & Environment Assn. v. Parnas Corp., supra, 222 Cal.App.3d 627 at 631, 271 Cal.Rptr. 611 [citing 5 Witkin, Summary of Cal. Law (9th ed.1988) § 447, p. 531.].)

 The determination of probable cause is a question of law for the trial court.  (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d 863 at p. 877, 254 Cal.Rptr. 336, 765 P.2d 498.)   However, if the facts on which the defendant relied in bringing the underlying action are disputed, the jury must decide those facts before the trial court can rule on probable cause.  (Ibid.)  In Sheldon Appel Co. v. Albert & Oliker, supra, the California Supreme Court clarified the probable cause element of the tort of malicious prosecution.  “Whereas the malice element is directly concerned with the subjective mental state of the defendant in instituting the prior action, the probable cause element calls on the trial court to make an objective determination of the ‘reasonableness' of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.   The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted.”  (Id. at p. 878, 254 Cal.Rptr. 336, 765 P.2d 498;  emphasis in original.)   The Sheldon court noted that, while its earlier decisions on probable cause indicated that the defendant's subjective belief may be relevant to the probable cause issue, the “belief” in such cases “related to the defendant's belief in, or knowledge of, a given state of facts, and not to the defendant's belief in, or evaluation of, the legal merits of the claim.”  (Id. at p. 879, 254 Cal.Rptr. 336, 765 P.2d 498.)   It follows, then, that a finding as to whether the defendant entertained a good faith belief in the factual basis of the underlying legal claim is a component of the probable cause determination in a malicious prosecution action.  (West Valley Taxpayers & Environment Assn. v. Parnas Corp., supra, 222 Cal.App.3d 627 at p. 632, 271 Cal.Rptr. 611.)   In Sheldon, because there was no dispute as to the facts the defendant knew when he instituted the underlying suit, the trial court erred in submitting the probable cause issue to the jury.   (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d 863 at p. 884, 254 Cal.Rptr. 336, 765 P.2d 498.)   In West Valley Taxpayers, by contrast, factual issues concerning the accuracy of the statement about Parnas in the pro-“Measure A” flier—and, consequently, Parnas's good faith belief in the falsity of the statement—required resolution by a jury before the trial court could rule on the probable cause element.  (West Valley Taxpayers & Environment Assn. v. Parnas Corp., supra, 222 Cal.App.3d 627 at p. 634, 271 Cal.Rptr. 611.)   The same is obviously true in Parnas's appeal of the judgment in favor of Monia.

 Parnas contends that submission to the jury of the special verdict form and instructions on probable cause constituted prejudicial error.   The jury was instructed that “[t]he plaintiff has a burden of proving by a preponderance of the evidence all of the facts necessary to establish that Parnas lacked a reasonable good faith belief that the statement in the flier was false and damaging.”   The special verdict form listed five questions and instructed the jury that if it answered the first question (“Did Parnas Corporation have a reasonable, good faith belief that the statement was false and damaging?”) in the negative, it must skip the remaining four questions, which dealt with the defense of reliance on advice of counsel.   The instruction and special verdict form are infirm, Parnas urges, because they elicited a finding as to Parnas's subjective belief in the legal tenability of its libel claim, contrary to the rule of Sheldon.

We cannot agree.   The question whether a defendant reasonably and in good faith believes that a statement concerning him is false and damaging does not, as Parnas contends, go to the legal merits of a libel action but rather to the defendant's subjective conviction that he has suffered a wrong.   The special verdict did not require the jury to determine whether Parnas believed its libel action was legally tenable.   Rather, the form asked whether Parnas had a reasonable, good faith belief in certain facts giving rise to the libel complaint.   Neither the instruction nor the special verdict form required the jury to decide the merits of the underlying libel claim.

Parnas complains of the compound nature of the special verdict form, which required the jury to make a finding as to whether Parnas believed the flier statement was false and damaging.   Parnas contends the statement constituted libel per se, for which special damages are presumed, and argues that submission to the jury of the question whether the statement was damaging improperly shifted to Parnas the burden of proving that the flier harmed its business.   We do not subscribe to Parnas's interpretation of the special verdict form.   In our view, the jury essentially was asked whether Parnas had a reasonable, good faith belief that the pro-“Measure A” flier contained a statement untrue and negative toward Parnas, as distinguished from a true statement, or a statement inaccurate but neutral in character.

Finally, the special verdict form and instruction were not erroneous by virtue of the fact that they required the jury to determine whether Parnas's belief in the false and damaging nature of the statement was reasonable.   Parnas contends the reasonableness of its belief went to the legal issue of probable cause, and was therefore not a subject for resolution by the jury under the rule of Sheldon.   Again, we disagree.  “Reasonable,” in the context of the special verdict and instruction, pertains to whether Parnas could rationally infer—from the circumstances known to it through its own dealings with the Fremont mayor, its participation in the Fair Political Practices Commission investigation, published newspaper accounts, and any other relevant sources—that the flier statement was false and damaging.   The presence of the word “reasonable” in the special verdict form and instruction did not transform the jury's task from that of making the factual determination regarding what Parnas believed, into one of rendering a legal decision whether the libel claim was legally tenable.   We find nothing in Sheldon requiring a different conclusion.

Parnas reiterates its contention that it had a factual basis for the libel action, citing the testimony of various witnesses.   In essence, what Parnas seeks is a judicial reweighing of the evidence on which the jury found for Monia.   However, the function of the appellate court does not extend to making factual redeterminations.  (See Moreno v. Sayre (1984) 162 Cal.App.3d 116, 121, 208 Cal.Rptr. 444.)

2. Parnas Was Not Erroneously Deprived of Its Advice-of-Counsel Defense.

 Parnas urges that the form of special verdict that was presented to the jury erroneously deprived Parnas of its defense of reliance on advice of counsel, resulting in a miscarriage of justice.   As noted above, the form first asked the jury whether Parnas had a reasonable, good faith belief that the flier statement was false and damaging.   The form then directed the jury, if it found Parnas did not have such a belief, to skip the remaining questions, which dealt with the advice-of-counsel defense.   Parnas contends that the issue whether it had a reasonable, good faith belief that the statement was false and damaging is not the same issue as whether Parnas acted in good faith in reliance on the advice of its counsel.

Parnas's contention is correct but misses the point.   Reliance on advice of counsel is no defense to a malicious prosecution action when the defendant lacked a good-faith belief in the truth of the underlying claim.  (Franzen v. Shenk (1923) 192 Cal. 572, 576, 221 P. 932.)   If Parnas did not believe the flier statement was false and damaging, no advice Parnas might receive from its attorney could justify its bringing suit for libel, or insulate it from resultant liability for malicious prosecution.   The jury found that Parnas did not have a reasonable, good faith belief that the statement was false and damaging.   Consequently, Parnas did not reach the factual threshold for application of the defense of reliance on advice of counsel.   The special verdict form therefore properly directed the jury not to answer questions pertaining to that defense.

The authorities Parnas cites are not inconsistent with this conclusion.   Klotz v. Alexander (1962) 203 Cal.App.2d 238, 243, 21 Cal.Rptr. 305, states that “ ‘[g]ood faith is an independent element of probable cause in malicious prosecution cases, and an actual and honest belief in the guilt of the plaintiff is obviously an integral part of good faith.’ ”  (Quoting 32 Cal.Jur.2d, Malicious Prosecution, § 23.)   In Siffert v. McDowell (1951) 103 Cal.App.2d 373, 378, 229 P.2d 388, the court of appeal approved submission of the defense of advice of counsel to the jury when the evidence was in conflict on the issue whether defendants fully disclosed to counsel the facts material to the underlying action.   The extent of Parnas's disclosure of facts to its attorney is immaterial if Parnas lacked an actual and honest belief that the flier statement was false and damaging.   Thus, the special verdict form correctly directed the jury to skip questions relating to the advice-of-counsel defense if it were to conclude, as it did, that Parnas lacked such a belief.

3. Special Verdict Question Regarding Malice Was Not Erroneous.

 At the close of the second phase of the trial, a special verdict form was submitted to the jury.   The form asked, “Did the defendant act with malice in initiating and/or maintaining the subject libel action?”   Parnas contends that a cause of action for malicious prosecution requires proof of malice at the initiation of the underlying action, not in subsequent acts.   Thus, Parnas complains, the special verdict erroneously permitted the jury to consider evidence of events that occurred after Parnas filed the underlying libel action.   The error was prejudicial, Parnas argues, because Monia presented extensive evidence of postfiling events, including evidence of the discovery strategy employed by counsel for Parnas and of subsequent lawsuits brought by Parnas against the City of Saratoga.

 We cannot agree.   It is true that without proof of malice at the initiation of the underlying action a malicious prosecution claim will fail.  (See Bertero v. National General Corp., supra, 13 Cal.3d at p. 50, 118 Cal.Rptr. 184, 529 P.2d 608.)   The special verdict form therefore did not reflect existing law with entire accuracy.   However, under the circumstances we cannot say that Parnas was prejudiced, since neither the court's formal instructions nor the evidence and arguments of counsel could have misled the jury into believing it could find for Monia solely on the strength of Parnas's conduct in the course of the underlying litigation.   Beyond any reasonable dispute, the focus of this case was on Parnas's motive for filing the libel action.   That Parnas acted maliciously in instituting suit against Monia was a recurring theme of plaintiff's closing argument;  we are directed to no instances of argument improperly urging the jury to base a finding of malice solely on Parnas's postfiling conduct.

 Parnas contends, however, that the special verdict form was prejudicial because it allowed the jury to consider evidence of Parnas's discovery strategy and other events subsequent to initiation of suit.   Such evidence was not necessarily irrelevant to the issue of malice, since proof of malice in the manner in which the underlying litigation was conducted provides some support for an inference that the defendant initiated the action out of malice.   Parnas was free to, and did, argue that its conduct in the underlying litigation fell within the norms of civil litigation.   The special verdict form given the jury in this case did not constitute prejudicial error.

4. Evidence Sufficiently Supported Jury Finding of Malice.

 Parnas contends Monia presented insufficient evidence to sustain the jury's finding of malice.   We cannot agree.   Based on the evidence presented during the first phase of the trial, the jury found that Parnas lacked a reasonable, good faith belief that the flier statement was false.   Malice may be inferred from proof of lack of good faith on the part of the defendant.   (Bertero v. National General Corp., supra, 13 Cal.3d 43, 66, 118 Cal.Rptr. 184, 529 P.2d 608;  Fry v. Bank of America (1956) 142 Cal.App.2d 150, 158, 298 P.2d 34.)   Citing Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1466, 242 Cal.Rptr. 562, Parnas argues that for malice to be inferrable from lack of probable cause, a defendant's prefiling conduct must be clearly unreasonable, i.e., more culpable than mere negligence.   In Grindle, an attorney representing a defendant in a personal injury action cross-complained against the plaintiff for indemnity.   After reading the depositions of the parties and a physician in the plaintiff's action, the attorney voluntarily dismissed the cross-complaint, stating he believed it to be without merit.   The Grindle court held that the attorney's prefiling research was not so deficient as to warrant an inference of malice.  (Id. at pp. 1466–1467, 242 Cal.Rptr. 562.)   In focusing on the behavior of the attorney, as opposed to the actual belief of the party, Grindle relied on pre-Sheldon case law.  (Id. at pp. 1467–1468, 242 Cal.Rptr. 562 [citing Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d 675, 120 Cal.Rptr. 291, disapproved in Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498].)   Further, Grindle did not address the question whether a jury may infer malice from a party's lack of a good faith belief in the falsity of a statement on which he bases a libel action.   We do not find Grindle to be persuasive authority in the present factual context.

Parnas further complains that a finding of malice may not be based on the jury's improper determination of probable cause.   Having found no error in submission of the special verdict and instructions on probable cause, we cannot say that the jury improperly based its finding that Parnas acted maliciously on an erroneous finding of probable cause.

5. Trial Court Did Not Abuse Its Discretion in Admitting Expert Testimony to Show Malice.

 Parnas urges strenuously that the trial court erred in admitting the testimony of Penelope Canan, Ph.D., on the issue whether Parnas acted maliciously in litigating the underlying libel claim.   The trial court permitted Dr. Canan, a professor of sociology, to testify as an expert on the motivations behind, and effects of, the phenomenon of Strategic Lawsuits Against Public Participation (SLAPP suits), of which she opined the present case is an example.   The trial court overruled objections to her testimony, noting that Parnas was free to challenge her qualifications and to argue her opinions should be given little weight.   By offering Dr. Canan's testimony on the issues of malice and damages, Monia sought to establish that Parnas acted from an ulterior motive or purpose distinct from that of enforcing its right not to be defamed:  that is, to affect the political process and chill the first amendment rights of its opponents, Monia and WVTEA.

On appeal, Parnas renews its objections to Dr. Canan's testimony.   It contends that the issue whether it acted maliciously is not a proper subject for expert testimony because a lay jury is equipped to determine whether a party acted with malice.   Parnas also argues that admission of Dr. Canan's testimony usurped the role of the jury.   Parnas contends further that Dr. Canan rendered legal opinions, although unqualified to do so, and that, in forming her opinions, she relied on inadmissible hearsay and such remote and speculative matters as other, unrelated lawsuits analyzed in her study.

To address the question whether the issue of malice was a proper subject for expert opinion in this context, it is necessary to describe Dr. Canan's background and testimony in some detail.

With George Pring, a law professor at the University of Denver, Dr. Canan is engaged in a continuing study of SLAPP suits nationwide.   Dr. Canan defines SLAPP suits as civil actions for damages brought against individual citizens or citizens' groups for advocating issues of public importance by contacting a public official or the electorate.   SLAPP suits are characterized by an effort to punish political opponents for past behavior, an attempt to preclude their future political effectiveness, the desire to warn others that political opposition will be punished, the use of the judicial system as part of an economic strategy, or some combination of the above attributes.   Groups targeted by SLAPP suits often lose members, funds, and political potency.

Dr. Canan considered Parnas's libel action against Monia to fit the SLAPP criteria.   She based this opinion on Professor Pring's review of court documents filed in the case and on her own review of deposition transcripts, newspaper articles, and statistics about population change in Saratoga and in Santa Clara County from 1960 to 1988.   In Dr. Canan's opinion, Parnas's motives in bringing the libel action were (1) to retaliate against political opposition;  (2) to prevent future political opposition;  (3) to warn others that political opposition would be punished;  and (4) to deny others their rights as citizens.   She also testified that Parnas's suit revealed a lack of concern for its effects on democracy.

 The rule of admissibility of expert opinion testimony is easily stated and oftentimes easily met.   An expert may testify as to his or her opinion on a subject that is sufficiently beyond common experience that an expert's opinion would assist the trier of fact.  (Evid.Code, § 801, subd. (a).)  A party offering expert testimony need not prove it is necessary to a jury's comprehension of the evidence;  the test is whether the testimony would be helpful to the trier of fact.  (See People v. McDonald (1984) 37 Cal.3d 351, 367, 208 Cal.Rptr. 236, 690 P.2d 709.)  “[T]he admissibility of expert opinion is a question of degree.   The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission;  if that were the test, little expert opinion testimony would ever be heard.   Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would ‘assist’ the jury.   It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when ‘the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.”  (Ibid. [citing People v. Cole (1956) 47 Cal.2d 99, 103, 301 P.2d 854].)   Although no reported case has reached the question whether expert testimony is admissible to establish malice in the filing of a SLAPP suit, we find a reasonably close analogy in the use of expert opinion to prove an insurance company acted in bad faith in denying coverage under a policy, which use the California Supreme Court approved in Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 924, 148 Cal.Rptr. 389, 582 P.2d 980.

On the record before us, we cannot say the trial court abused its discretion in admitting Dr. Canan's testimony.   Parnas fails to persuade us that the phenomenon of politically motivated lawsuits is one so completely within the common experience of jurors that Dr. Canan's opinions could not have assisted this jury.

 Nor has Parnas shown how Dr. Canan's opinion may have been based on matters that are not reasonably relied on by other experts in the same field of study.   The fact that Dr. Canan's opinions were based on inadmissible hearsay contained in newspaper articles did not invalidate her opinion, but went rather to its weight.  (Board of Trustees v. Porini (1968) 263 Cal.App.2d 784, 793, 70 Cal.Rptr. 73.)   Parnas has not demonstrated that newspaper articles are not the type of evidence on which experts in Dr. Canan's field reasonably rely in forming their opinions.  (See Evid.Code, § 801, subd. (b).)

 Parnas complains it was prejudiced when Dr. Canan gave a legal opinion, despite her lack of qualification as a lawyer or constitutional law expert, that Parnas threatened democracy and violated Monia's constitutional rights under the First Amendment's petition clause.   We note that it was counsel for Parnas who elicited from Dr. Canan what were arguably legal opinions in his cross-examination.   We also note that he availed himself of the opportunity to question her at length regarding the bases for her opinion.   Moreover, the jury was given a modified version of BAJI No. 2.40, on the weight to be accorded expert testimony.   Under these circumstances, admission of Dr. Canan's testimony did not amount to reversible error.

 Nor can we agree that admission of Dr. Canan's testimony constituted an abuse of discretion under Evidence Code section 352.   Parnas attacks her testimony as remote, speculative, and prejudicial because she based her opinion in part on studies of other, unrelated SLAPP suits.   We find the contention without merit.   Parnas was entitled to challenge her opinion on cross-examination, and did so.   It was for the jury to assess the value of that opinion.

Finally, we reject Parnas's argument that Dr. Canan's testimony usurped the role of the jury.   Otherwise admissible opinion testimony is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.   (Evid.Code, § 805.)

 Parnas contends the trial court erred in overruling its objections to Dr. Canan's qualifications to testify as an expert on the subject of SLAPP suits.   A person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert on the subject to which the testimony relates.   (Evid.Code, § 720, subd. (a).)  In light of Dr. Canan's scholarly background and long study of SLAPP suits, the trial court did not abuse its discretion in permitting her to testify.   The fact that she had never before testified as an expert on SLAPP suits did not dictate rejection of her testimony.  (McCleery v. City of Bakersfield (1985) 170 Cal.App.3d 1059, 1066, 216 Cal.Rptr. 852.)   We are satisfied, on the record before us, that the trial court took a sufficiently close look at Dr. Canan's qualifications to support admission of her testimony.

6. Compensatory Damages Award Was Supported by Substantial Evidence.

 The jury awarded Monia $60,000 in compensatory damages.   Parnas contends that this award was not supported by substantial evidence and is disproportionate to the actual harm Monia suffered.   The record fails to substantiate Parnas's claim.

The scope of appellate review of compensatory damage awards is narrow.   If the jury's verdict is supported by substantial evidence, it will be upheld.   (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 354, 268 Cal.Rptr. 309.)   All presumptions favor the judgment.  (Bertero v. National General Corp., supra, 13 Cal.3d 43, 61, 118 Cal.Rptr. 184, 529 P.2d 608.)   Only on a showing that a compensatory damage award is so grossly disproportionate to any reasonable view of the evidence as to raise a strong presumption that it is based on prejudice or passion will it be reversed on appeal.  (Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872, 905, 260 Cal.Rptr. 331.)

The record fails to suggest that the jury based its $60,000 compensatory damage award on passion or prejudice.   On the contrary, ample evidence supports the award.   Monia testified about the considerable anxiety he suffered as he wondered whether he would lose his family's home and was forced to devote more and more time to defending the libel suit.   Worry over the suit adversely affected his work performance, and he was ultimately fired.   His termination led to financial hardship.   Monia also testified that as a result of being sued, he grew apprehensive about participating in politics and community affairs.   He believed the stress associated with the suit had a negative effect on his health.   A friend of the Monia family testified that Monia seemed to be going “downhill” emotionally after the libel suit was filed.   Parnas does not explain how this evidence is insufficient to sustain the verdict.

Instead, Parnas points to testimony seemingly at odds with the conclusion that Monia suffered damage as a result of the libel action.   Specifically, Parnas notes that Monia became a planning commissioner for the City of Saratoga in December 1980 or January 1981 and held that post for two years;  that Monia offered to purchase his employer's plant in Spain for $1.8 million in November 1981;  that Monia and a friend formed their own business, Visa Technologies, in March 1982;  and that from 1982 to 1986 Monia was a member of the board of West Valley College.   Parnas also notes that Monia presented no testimony regarding either medical expenses or attorney's fees and costs incurred in defending the libel action.   However, it was for the jury to weigh the evidence of the harm caused by Parnas's lawsuit;  we cannot say that $60,000 is so grossly disproportionate to the injury occasioned by the suit as to compel a conclusion that it was based on passion or prejudice.

7. Punitive Damages Were Properly Awarded.

Parnas raises several challenges to the jury's award to Monia of $200,000 in punitive damages.   First, Parnas contends it cannot be liable for punitive damages because Monia failed to prove by clear and convincing evidence that any officer, director, or managing agent of Parnas acted with the requisite fraud, malice, or oppression.  (See Civ.Code, § 3294, subd. (b).)  Second, Parnas argues that the award, which exceeds one third of Parnas's net worth, is excessive.   Third, Parnas contends that its reliance on the advice of its counsel precludes an award of punitive damages.

 Parnas's first contention is without merit.  Civil Code section 3294, subdivision (b), provides that “[a]n employer shall not be liable for [punitive damages], based upon acts of an employee of the employer, unless the employer ․ authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.   With respect to a corporate employer, the ․ authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”   Obviously, the statute governs a corporation's vicarious liability for acts of its employees and agents.   We are not concerned with Parnas's vicarious liability for anyone's acts;  rather, we are dealing with Parnas's liability for its own act, i.e., filing the underlying libel action without probable cause and with malice.   Subdivision (b) of section 3294 has no application to this case.

 Parnas's second contention likewise fails.   In reviewing an award of punitive damages, we apply the substantial evidence test, seeking to determine whether the verdict is supported by evidence that is reasonable, credible, and of solid value.  (J.R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union (1989) 208 Cal.App.3d 430, 444, 256 Cal.Rptr. 246.)   Three factors guide appellate review of punitive damage awards:  the nature of the defendant's acts in light of the whole record, the amount of compensatory damages, and the defendant's wealth.  (Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d 910, 928, 148 Cal.Rptr. 389, 582 P.2d 980.)   We may reverse a punitive damage award as excessive only when the entire record, reviewed in the light most favorable to the judgment, indicates that the award was rendered as a result of passion and prejudice.  (Bertero v. National General Corp., supra, 13 Cal.3d 43, 65, fn. 12, 118 Cal.Rptr. 184, 529 P.2d 608;  Armitage v. Decker (1990) 218 Cal.App.3d 887, 907, 267 Cal.Rptr. 399.)   Assessed by this standard, the jury's award to Monia of $200,000 is not excessive.   The record fully supports the inference that Parnas used the libel litigation to chill its opponents' political activity, an aim repugnant to the ideals of American democracy.   The record contains substantial evidence of the emotional and economic harm Parnas's actions inflicted on Monia;  we cannot say that the punitive damage award, slightly more than three times the amount the jury awarded in compensatory damages, was unreasonable in relation to the actual damages fixed by the jury.  (See Gagnon v. Continental Casualty Co. (1989) 211 Cal.App.3d 1598, 1602, 260 Cal.Rptr. 305.)   Finally, although the punitive damages represent a substantial part of Parnas's net worth, Parnas has not argued that satisfaction of the award will force it out of business.   Parnas cites a case in which an appellate court reduced an award of punitive damages from $175,000, representing about one third of the defendant's net worth, to $50,000.   (Zhadan v. Downtown L.A. Motors (1976) 66 Cal.App.3d 481, 499–500, 136 Cal.Rptr. 132.)   However, that case does not stand for the rule that every award of punitive damages in excess of one third of the defendant's net worth must be reduced.   Each case must be assessed on its own merits in light of the standards set forth above.  (Cf. Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 655, 151 Cal.Rptr. 399.)   Parnas has not established that passion or prejudice dictated the punitive damage award.   This is not a case in which justice demands we overturn the jury's determination.

8. Misconduct of Counsel for Monia Does Not Warrant Reversal.

 Parnas argues that it was so greatly prejudiced by various improper and inflammatory suggestions made by counsel for Monia during his argument and examination of witnesses that fairness demands reversal of the judgment.   Counsel asked Len Borello, general manager of Parnas, whether he knew any of the Bonannos.  (The name Bonanno is associated with an organized crime family.)   The trial court sustained Parnas's objection, ordered the question stricken, and admonished the jury that the question was not evidence of anything.   Counsel also argued, in closing the first phase of the case, that although Parnas had never been accused of criminality in connection with the Fremont mayor's conflict of interest, “[t]oday, knowing what we know, we might think that there should be some, that there should be something wrong with that․”  Counsel for Monia also made various references to the personal wealth of Parviz Kamangar, several times inquiring about or referring to Mr. Kamangar's gift of a Rolls Royce to a friend.

Counsel's suggestion that Parnas was somehow involved with organized crime figures clearly constituted misconduct.   The suggestion was utterly irrelevant and could only have been intended to inflame the jury.   We are disturbed at the failure of Monia's appellate counsel to acknowledge its extreme impropriety.   However, although it was inexcusable, we cannot say it requires reversal of the judgment, inasmuch as the reference was an isolated one and was immediately followed by an appropriate admonition.   In the context of the long trial of this action, the misconduct was not so egregious as to force the conclusion that it caused a miscarriage of justice.  (See Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 407, 196 Cal.Rptr. 117.)

 We decline to address the claim of misconduct in counsel's argument that, although Parnas had never been accused of criminality in the Fremont matter, perhaps its conduct was indeed criminal.   Counsel for Parnas did not object, and Parnas has therefore waived its claim of misconduct as to that remark.  (Ibid.)

 Counsel's references to a gift of a Rolls Royce by Mr. Kamangar were irrelevant, prejudicial, and improper.   However, Parnas's counsel objected only once to the mention of the Rolls Royce gift, and even then did not ask the trial court to admonish the jury.   Perhaps counsel deemed it tactically unwise to multiply objections on this score, but in the context of the long trial of this case, we do not find reversible error.  (Ibid.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Victor Monia and the West Valley Taxpayers and Environment Association (WVTEA) filed the complaint in this case.   The trial court dismissed WVTEA as a plaintiff, ruling that Parnas Corporation had probable cause, as a matter of law, to bring the underlying libel suit.   In an earlier opinion, this court reversed the dismissal of WVTEA, holding that threshold factual questions required jury resolution before the trial court could properly determine whether Parnas had probable cause to sue WVTEA for libel.  (West Valley Taxpayers & Environment Assn. v. Parnas Corp. (1990) 222 Cal.App.3d 627, 271 Cal.Rptr. 611.)   Following the dismissal of WVTEA, the malicious prosecution action proceeded to trial with Monia as sole plaintiff.   It is Parnas's appeal from the ensuing judgment in favor of Monia that we now determine.

AGLIANO, Presiding Justice.

PREMO and COTTLE, JJ., concur.