Kelman v. Kramer
Filed
10/13/10 Kelman v.
Kramer CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
BRUCE KELMAN et al.,
Plaintiffs and Respondents.
v.
SHARON KRAMER,
Defendant and Appellant.
D054496
(Super. Ct.
No. GIN044539)
NO CHANGE IN JUDGMENT
THE COURT:
The
nonpublished opinion filed September
14, 2010, is modified as
follows:
At
Discussion I, last paragraph beginning with "Finally, because" delete
"Finally,"; begin sentence with "Because" (slip opn., p.
13)
At
Discussion I, after last paragraph, last sentence ending with "that
determination." insert two new paragraphs (slip opn., p. 13):
"We
also recognize that the trial court gave "Plaintiff's Special Jury
Instruction - Proof of Actual Malice," which stated: "Actual malice may be proved by
circumstantial evidence. Although
personal ill will by itself is not sufficient to prove actual malice, a
combination of Kramer's anger, hostility toward the Plaintiffs, failure to
investigate or subsequent conduct may all constitute circumstantial evidence
that actual malice existed. Evidence
alone of Kramer's animosity, hatred, spite or ill will toward Kelman or
Globaltox does not establish actual malice." !(AA 1213)! Contrary to
Kramer's argument on appeal, this instruction did not require that the jury
find that she acted with malice.
"Finally
we reject Kramer's contention that reversible error occurred because exhibit
53, which she offered into evidence,
included e-mails from a third party accusing her of cyberstalking and the jury
had access to the e-mails. The record is
clear that before the exhibits were admitted into evidence and provided to the
jury, the parties and their counsel had met with respect to them and agreed
that exhibit 53 would be admitted. The
trial court was entitled to rely on the agreement of the parties with respect
to the propriety of the exhibits."
There is no
change in the judgment.
The
petition for rehearing is denied.
BENKE,
Acting P. J.
Copies to: All parties
Publication courtesy of San
Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
San Diego Case
Information provided by www.fearnotlaw.com
