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November 30, 2010


APPEAL from a judgment of the Superior Court of Sacramento County, Michael G. Virga, Judge. Reversed with directions. (Super. Ct. No. 07AS00311)

The opinion of the court was delivered by: Robie , Acting P. J.


In the proceeding to dissolve the marriage between Linda A. Boblitt and Steven B. Boblitt,*fn2 the family court judge considered Linda's claims that Steven had committed acts of domestic violence against her before and during the marriage (and during the dissolution proceeding) in determining whether to award Linda spousal support. (See Fam. Code, § 4320, subd. (i).) Subsequently, in this tort action for damages based on Steven's alleged domestic violence against Linda (see Civ. Code, § 1708.6 [recognizing tort of domestic violence]), the trial court concluded Steven was entitled to judgment on the pleadings because the judgment in the dissolution proceeding (which was then on appeal) precluded Linda from further litigating the domestic violence issues under the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion).

We conclude the trial court erred in granting Steven's motion for judgment on the pleadings for two reasons. First, a judgment that is on appeal is not "final" for purposes of applying the doctrines of claim and issue preclusion. Second, a request for spousal support in a marital dissolution proceeding is not based on the same primary right as a tort action based on domestic violence and therefore a party is not necessarily precluded from seeking damages for alleged acts of domestic violence and also asking a family law court to consider those same acts of domestic violence in awarding spousal support.

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.


We take the following facts from Linda's first amended complaint and from documents in the dissolution proceeding that are subject to judicial notice.*fn3 (See Evid. Code, § 452, subd. (d).)

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 causes of action for negligent and intentional infliction of emotional distress. In March 2008, Linda filed her first amended complaint in the action; it contained the same causes of action as the original complaint.

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 ...

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