Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles. No. LC 067951, Richard B. Wolfe, Judge.
Nina Antonova, in pro. per., for Plaintiff and Appellant.
Murtaugh Meyer Nelson & Treglia, Lawrence J. DiPinto and Larissa L. Abruscato for Defendants and Respondents Helen Towers Apartments, Helen Properties, Helen Epstein and Marion Donovan.
The Duringer Law Group and Kirk D. Beatty for Defendants and Respondents Law Offices of Stephen C. Duringer & Associates, Stephen C. Duringer & Associates, and Stephen C. Duringer.
GRIMES, J.
SUMMARY
Plaintiff brought claims for breach of contract, wrongful eviction, and malicious prosecution against the owners of an apartment building (and their lawyers, in the case of the malicious prosecution claim) in connection with an earlier unlawful detainer action they filed against her. After a month-long trial, special jury verdicts resulted in a $553.94 recovery for plaintiff on her breach of contract claims, but no recovery on her wrongful eviction and malicious prosecution claims.
Plaintiff appeals. As to the malicious prosecution claim, she contends that the underlying unlawful detainer action terminated in her favor as a matter of law, so that the issue should not have been submitted to the jury. She claims instructional error, errors in the special verdict forms, and evidentiary errors in connection with her wrongful eviction claims, and contends the damages awarded on her breach of contract claims were inadequate. She also objects to the trial court’s disposition of costs relating to certain court fees that were waived when she filed her lawsuit.
We agree there was an error in the court’s treatment of waived fees, but otherwise affirm the judgment.
FACTS
Nina Antonova sued Helen Towers Apartments and the partners who owned it (the Helen Towers defendants) for breach of contract, wrongful eviction and malicious prosecution, and sued their lawyers, Stephen C. Duringer and his firm (the Duringer defendants), for malicious prosecution. Her claims arose from an unlawful detainer complaint Helen Towers Apartments filed on June 27, 2001, to evict Antonova from her apartment, and from preceding notices and demands for payment of rental amounts that Antonova had no obligation to pay.
The pertinent facts were these. Antonova had lived at the Helen Towers Apartments since shortly after the Northridge Earthquake. She was a “Section 8” tenant, meaning that the Housing Authority of the City of Los Angeles paid a portion of the rent on Antonova’s behalf. At the time of these events, the rent for her apartment was $595 per month, and Antonova was responsible to pay $262 per month.
The apartment was leased to Antonova’s mother, who was also a plaintiff in this case. She died during the litigation, and Antonova was substituted as her successor in interest.
In late 2000, the Housing Authority notified participants (including Antonova) that the Section 8 certificate program was undergoing major changes and would be converted to a voucher program; the certificate program and participants’ contracts would be terminated as of February 28, 2001. At the time of these changes, Helen Towers Apartments decided (as it was entitled to do) that it would no longer participate in the Section 8 program.
Certain regulations apply when an apartment owner terminates a contract with a governmental agency that provides for rent limitations to a qualified tenant. The tenant must be given at least 90 days’ written notice of the effective date of the termination, and the tenant is not obligated to pay more than the tenant’s portion of the rent (here, $262 per month) for 90 days following receipt of the notice of termination of the owner’s contract with the governmental agency. (Civ. Code, § 1954.535.)
Helen Towers did not give Antonova the required 90 days’ notice of its withdrawal from the Section 8 housing program until March 23, 2001, and it did so by way of a 90-day notice of termination of tenancy. The March 23d notice (dated the previous day) stated that it was “due to the tenant[’s] refusal to [execute] a written rental agreement with the owner.” Moreover, two weeks earlier, on March 9, 2001, Helen Towers had begun to send Antonova three-day notices to pay rent or quit, demanding payment of the full amount of the rent (including a rent increase to $625 per month), and demanding late charges.
Antonova protested and pointed out the illegality of Helen Towers’s demands, including by a letter she wrote on March 22, 2001, to Robert Jackson, the general manager for Helen Towers. On June 14, 2001, a lawyer at Bet Tzedek Legal Services wrote a letter to Helen Towers on Antonova’s behalf, asserting various legal deficiencies in Helen Towers’s March 23, 2001 notice. The letter pointed out that withdrawal from the Section 8 program was not a basis for terminating a lease under the rent stabilization ordinance, and (citing L.A. Mun. Code, § 151.09) that refusing to execute a new written agreement was not a basis for terminating a tenancy where the new agreement substantially changes the terms of an existing lease.
On June 27, 2001, Duringer filed an unlawful detainer complaint on behalf of Helen Towers, alleging that its 90-day notice to terminate the tenancy expired on June 21, 2001, and seeking possession of the premises, attorney fees and damages at the $625 rental rate from June 22, 2001. Thereafter, the following events occurred.
Antonova moved to a new apartment building. She paid a deposit on the new apartment on July 18, signed a rental agreement on July 23, hired someone to move part of her belongings (including her bed) on July 25, and moved any remaining possessions from the Helen Towers apartment by July 30, 2001. On July 30, 2001, when Antonova went to the apartment to retrieve her remaining belongings, she saw that the landlord had begun to repair the apartment; a maintenance worker for Helen Towers was there and all the outlets had been taken out. Antonova did not tell the maintenance worker to leave. She returned the apartment keys on August 11, 2001. Antonova admitted she would not have stayed at Helen Towers if she had to pay the full rent.
Meanwhile, during the month of July, Antonova resisted the unlawful detainer lawsuit, filing a demurrer to the complaint (which was sustained), and then a demurrer to the first amended complaint, a demand for jury trial, and a motion for change of venue, among other filings. But on the date that had been previously set for trial (July 27, 2001), Antonova did not appear. The court struck Antonova’s demurrer and entered a default judgment, awarding possession to Helen Towers, along with statutory damages for the unlawful detainer of $716.55 and costs of $176.00.
Antonova moved to vacate the default judgment. Her motion was denied, and she appealed.
On December 19, 2002, the appellate division of the superior court reversed the default judgment. The court found that entry of the default and subsequent default judgment, without giving Antonova an opportunity to answer the complaint after her demurrer was stricken, constituted reversible error and the default judgment was void as a matter of law.
On March 7, 2003, Helen Towers filed a request for dismissal of the unlawful detainer lawsuit without prejudice, and the case was dismissed. Later in March and April, Duringer sent several collection letters, seeking payment of slightly more than $1,000 on behalf of Helen Towers.
Then, one year later, Antonova filed this lawsuit for breach of contract, wrongful eviction, and malicious prosecution. Attorney Duringer filed a special motion to strike the malicious prosecution claim against him under the anti-SLAPP statute (Code Civ. Proc., § 425.16), and the trial court granted his motion. Antonova appealed, and this court reversed the trial court’s order, finding that, while the malicious prosecution claim arose from protected First Amendment activity, Antonova had established a probability of prevailing on the merits of her claim. (Antonova v. Duringer (Apr. 27, 2007, B178612) [nonpub. opn.].)
After another year of discovery and pretrial motions, a jury trial began, during which Antonova represented herself and was required to use a Russian interpreter. The trial began on April 28, 2008, and concluded a month later on May 29, 2008. At the close of the trial -- which the trial court aptly described as “long, tedious, detailed, and, at times, punctuated by acrimony, frustration and delay” -- the jury rendered several special verdicts, finding as follows:
1. The unlawful detainer lawsuit did not end in Antonova’s favor (Special Verdict No. I (as to the Duringer defendants) and Special Verdict No. II (as to the Helen Towers defendants).)
2. On the breach of contract claims, the jury awarded Antonova damages for Antonova’s overpayment of rent ($257), Helen Towers’s failure to return the security deposit ($120), and interest on the security deposit ($176.94) (Special Verdict No. III).
3. On Antonova’s constructive eviction claim, the jury found that none of the defendants physically interfered with Antonova’s beneficial enjoyment of the subject premises, and none of the defendants acted with malice “by resorting to the legal process by thus serving” the various notices to pay rent or quit and/or the filing of the unlawful detainer action (Special Verdict No. IV).
4. On Antonova’s retaliatory eviction claim (Special Verdict No. V), the jury answered “no” to the question whether the conduct of any one or all of the defendants was done in retaliation for Antonova’s exercise of a legal right, and likewise answered “no” to the question whether any of the defendants acted with malice by resorting to the legal process by serving the enumerated notices “and/or the filing of an unlawful detainer action done in retaliation for Nina Antonova’s exercise of a legal right[.]”
5. On Antonova’s actual eviction claim (Special Verdict No. VI), the jury found that the defendants did not “enter and take possession of any part of the demised premises or any part thereof between March 1, 2001 and September 1, 2001, and exclude Nina Antonova therefrom.”
Antonova’s motions for judgment notwithstanding the verdict and for a new trial were denied. On November 26, 2008, the court entered an amended judgment in accordance with the special verdicts, awarding Antonova $553.94 against the Helen Towers defendants and entering judgment for the Duringer defendants. Costs were also awarded, as will be described in connection with our legal discussion of this issue, post.
Antonova filed a timely notice of appeal.
DISCUSSION
Antonova challenges the special verdicts on her malicious prosecution, constructive eviction, actual eviction and breach of contract claims, as well as the court’s order on waived fees and costs. Only the latter claim has merit.
In addition, Antonova asserts that defendants’ answers to her first amended complaint did not contain any facts sufficient to constitute a defense. Because the entire matter has been tried before and determined by a jury, Antonova’s challenge to the content of defendant’s answer is irrelevant to the issues on appeal. Antonova also challenges the trial court’s orders denying her motions for judgment notwithstanding the verdict and for a new trial, but because we affirm the judgment on the jury’s verdicts, we need not address these points.
1. The Malicious Prosecution Claim
To establish a claim for malicious prosecution, Antonova was required to show that the prior unlawful detainer action “ ‘ “was pursued to a legal termination in [her] favor, ” ’ ” was brought without probable cause, and was initiated with malice. (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341 (Casa Herrera).) In this case, the first issue, favorable termination, was submitted to the jury during what the court described as the “first phase, ” with further argument and instruction to occur if the jury found the unlawful detainer lawsuit ended in Antonova’s favor. The jury determined that the unlawful detainer lawsuit did not end in Antonova’s favor. Antonova contends the issue should not have been submitted to the jury and, instead, should have been decided by the court in her favor as a matter of law. Under the circumstances of this case, she is mistaken.
The applicable legal principles are settled. To decide if there was a favorable termination, we “ ‘look at the judgment as a whole in the prior action....’ [Citation.]” (Casa Herrera, supra, 32 Cal.4th at p. 341.) To be considered favorable, “ ‘the termination must reflect the merits of the action and the [malicious prosecution] plaintiff’s innocence of the misconduct alleged in the lawsuit.’ [Citation.]” (Id. at p. 342.) But a favorable termination “ ‘does not occur merely because a party complained against has prevailed in an underlying action.... If the termination does not relate to the merits -- reflecting on neither innocence of nor responsibility for the alleged misconduct -- the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.’ [Citation.] Thus, a ‘technical or procedural [termination] as distinguished from a substantive termination’ is not favorable for purposes of a malicious prosecution claim.” (Ibid.)
A voluntary dismissal “may be a favorable termination which will support an action for malicious prosecution[, ]” and “ ‘[i]n most cases, a voluntary unilateral dismissal is considered a termination in favor of the defendant in the underlying action....’ ” (Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 (Fuentes).) However, when a proceeding is terminated “other than on the merits, the reasons underlying the termination must be examined to see if it reflects the opinion of the court or the prosecuting party that the action would not succeed. [Citation.] If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.” (Ibid.)
In this case, there was a conflict concerning “the circumstances explaining [the] failure to prosecute [the unlawful detainer] action further....” (Fuentes, supra, 38 Cal.App.4th at p. 1808.) Defendants dismissed the unlawful detainer lawsuit in March 2003, a few months after the appellate division reversed the default judgment that had been entered against Antonova. Duringer testified that when Antonova appealed from the default judgment, possession had already been restored to Helen Towers, and the amount of money at issue was minimal. “So the landlord made the decision at our recommendation that it just wasn’t... worth the attorney’s fees to spend $5,000 legal fees to oppose the judgment, when the amount in dispute is less than a thousand dollars.” Consequently, Helen Towers did not resist the appeal. The judgment was reversed on appeal because the trial court should have given Antonova an opportunity to answer the unlawful detainer complaint. Duringer also testified that he could not have dismissed the case after the appeal was filed, as the trial court loses jurisdiction. After the appeal was completed, Helen Towers decided not to pursue the matter, both because attorney fees would have been “extremely high” based on “the numerous motions filed by [Antonova]” and because the ability to collect was questionable as well. And, Helen Towers had achieved its goal of regaining possession of the apartment.
The jury resolved the issue in defendants’ favor, and Duringer’s testimony constitutes substantial evidence supporting that verdict. Antonova nonetheless resists this conclusion on several grounds, none of which has merit.
First, Antonova argues that the favorable termination issue was decided in her favor in this court’s decision reversing the trial court’s order granting Duringer’s special motion to strike the malicious prosecution action. She asserts that this court’s decision, which stated that the dismissal “reflected favorable termination on Antonova’s part, ” is the law of the case. (Antonova v. Duringer (Apr. 27, 2007, B178612), supra, at p. 6.) We do not agree.
The law-of-the-case doctrine applies where an appellate court “ ‘states a rule of law necessary to its decision, ’ ” in which case that rule of law is conclusive in subsequent proceedings in the same case. (People v. Boyer (2006) 38 Cal.4th 412, 441; People v. Yokely (2010) 183 Cal.App.4th 1264, 1273.) In Antonova’s case, this court held that Antonova had established a probability of prevailing on the merits of her malicious prosecution claim. While the language used in the opinion can be read as suggesting a decision on the favorable termination element of Antonova’s claim, no such decision may be made on the appeal of an anti-SLAPP motion, where our role is not to decide ultimate issues -- and certainly not where questions of fact are involved -- but to decide whether the plaintiff has presented a prima facie case supporting her claim.
As the decision stated, this court decided whether Antonova “adduced admissible evidence that, assuming it were credited, would warrant a favorable result on the claim.” (Antonova v. Duringer (Apr. 27, 2007, B178612), supra, at p. 4.) Antonova adduced such evidence as to all three elements of her malicious prosecution claim, including the favorable termination element, and that is the legal issue this court decided. But where, as in this case, there are issues of fact involved -- a conflict over the circumstances explaining the defendants’ failure to prosecute the unlawful detainer action further -- then “the determination of the reasons underlying the dismissal is a question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808; cf. Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 780, fn. 3 [“[v]oluntary dismissal is only prima facie proof the litigation was ‘determined adversely’ to the plaintiff, ” who may rebut the showing by contrary proof; “[f]or example, voluntary dismissal of a complaint for unlawful detainer after the tenant has voluntarily vacated does not constitute a determination of that litigation adverse to the plaintiff because plaintiff has accomplished the object of the litigation”].) Those questions of fact were for the jury, not for this court.
Antonova also contends, aside from the law-of-the-case doctrine, that the question of favorable termination is for the court, not a jury, to decide. She cites CACI No. 1501, which in turn cites Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1149, where the court stated that “[t]he element of favorable termination is for the court to decide; thus, our review is de novo.” But the Sierra Club case involved review of a trial court’s determination that, as a matter of law, the summary judgment entered on a complaint in a federal action constituted a favorable termination. (Id. at p. 1148.) And, the case cited in Sierra Club for the quoted proposition, Pattiz v. Minye (1998) 61 Cal.App.4th 822, 826-827, which also involved review of a summary judgment, expressly stated that “the factual circumstances are undisputed and the issue is one of law.” (Id. at p. 826.) But even if, as the CACI commentary states, the jury should decide only the underlying facts, leaving the court to determine whether the facts so found constitute a favorable termination, the resolution in this case would have been no different.
Second, Antonova contends that Special Instructions No. 1 and No. 1a are “wrong.” We review claims of instructional error for prejudice; that is, “a court’s failure to properly instruct is reversible only if the appellant shows it is reasonably probable it would have obtained a more favorable result if there had been the proper instruction.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1459.) We have reviewed the challenged instructions and find no prejudicial error.
All defendants ask this court to decline to review Antonova’s challenges to the jury instructions because they were not transcribed in the reporter’s transcript (all parties having stipulated to relieve the reporter of her responsibility to record the reading of the instructions). Defendants rely on Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, where the court found challenges to jury instructions unreviewable because the contents of the instructions were not in the record on appeal -- neither in the reporter’s transcript nor in the clerk’s transcript. (Id. at pp. 1532-1533.) Here, the instructions are in the clerk’s transcript, which shows both the instructions that were given and the instructions that were refused. No more is required.
As to Special Instruction No. 1 (reproduced in the margin), Antonova complains that the instruction contains no explanation of the concepts “technical termination, ” “procedural termination” or “substantive termination.” But the words “technical” and “procedural” are commonly understood, and the word “substantive, ” though less common, does not require explanation for its meaning to be clear in the context of the instruction as a whole. Moreover, Antonova fails to cite to the record showing that she objected to this instruction. In fact, after augmenting the instruction at Antonova’s request and reading it to the parties, the court asked Antonova if she had any objection. She said it was “[m]uch better” but asked about the definition of “substantive termination.” The court suggested that the sentence might simply be eliminated, but Antonova declined, saying, “No, because it’s very good, technical or procedural termination; that it’s not favorable, it’s okay. [¶] I just thought it might not be very clear for the jury what the other term refers to.” The court pointed out that it was “readily explained” in the third full paragraph, and Antonova replied, “Yes, that’s right. That’s right.” Under these circumstances, Antonova has no basis for complaint.
Special Instruction No. 1 stated: “In order for the termination of the lawsuit to be considered favorable to the Malicious Prosecution plaintiff, the termination must reflect the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit. A voluntary dismissal, even one without prejudice, may be a favorable termination which will support an action in tort (malicious prosecution/wrongful eviction) [¶] However, a favorable termination does not occur merely because a party complained against and [sic] has prevailed in an underlying action. If the termination does not relate to the merits -- reflecting on neither innocence of, nor responsibility for the alleged misconduct, the termination is not favorable in the sense it would support a subsequent action for malicious prosecution. Thus, a technical or procedural termination, as distinguished from a substantive termination, is not favorable for purposes of a malicious prosecution claim. [¶] Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if it reflects the opinion of the Court or the prosecuting party that the action would not succeed. If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.”
As for Special Instruction No. 1a, the jury was told that under Civil Code section 1717, in an action on a contract providing for attorney fees, there is no prevailing party “[w]here an action has been voluntarily dismissed....” Antonova objected (and continues to object) because the instruction does not pertain to malicious prosecution. The trial court responded that “[y]ou have a breach of contract cause of action. That’s why it’s being given, ” and further stated that in any event the jury would be instructed that if they decide an instruction is not applicable, they may disregard it.
It is clear defendants sought this instruction in connection with the favorable termination issue, to bolster its position that Antonova did not prevail on the merits when the unlawful detainer action was voluntarily dismissed; Duringer’s counsel made that point in his closing argument. Antonova is correct that the instruction was “absolutely irrelevant” as there was no attorney’s fee issue in this case. Nonetheless, it is Antonova’s burden to show that it is reasonably probable she would have obtained a different result had the instruction not been given. She has not met that burden. Special Instruction No. 1 directly addressed how the jury should determine the issue of favorable termination. We cannot conclude there is any probability that the jury would have been misled by the inclusion of Special Instruction No. 1a; by its own terms, it simply was not applicable to the malicious prosecution claim. There was no prejudicial error.
When Duringer’s counsel mentioned the substance of Civil Code section 1717 in his closing argument, Antonova objected again. The court stated that it understood the tack being taken by defense counsel, and that Antonova “may disagree with it, and if you do, you’ll have a chance to rebut during your argument.”
2. The Constructive Eviction Claim
Antonova contends the court’s instructions and the special verdict forms were incorrect; the trial court erred in refusing to admit two items of evidence (including the letter from Bet Tzedek); and the evidence she submitted proved defendants acted with an improper purpose in evicting her.
Again, the law on constructive eviction is well settled. “Any interference by the landlord by which the tenant is deprived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so elects and surrenders possession....” (Kulawitz v. Pacific etc. Paper Co. (1944) 25 Cal.2d 664, 670.) But, where the tenant vacates the premises upon the lessor’s notice to quit, “he cannot recover damages for constructive eviction ‘or under any other conceivable theory’ in the absence of a showing that the lessor acted in bad faith.” (Asell v. Rodrigues (1973) 32 Cal.App.3d 817, 824 (Asell), citing Lindenberg v. MacDonald (1950) 34 Cal.2d 678, 683-684.)
Thus, as with malicious prosecution, a landlord would not be liable for constructive eviction based on the wrongful institution of proceedings to recover possession “unless [the tenant] proved both malice and want of probable cause on the part of the landlord in instituting and prosecuting the unlawful detainer action.” (Asell, supra, 32 Cal.App.3d at p.825, citing Black v. Knight (1919) 44 Cal.App. 756.) “Conceptually, an unreasonable landlord may be acting in good faith and without malice when he serves a notice to quit.” (Asell, at p. 825 [“[w]e can easily hypothesize a situation where a landlord subjectively in good faith believes that the tenant has breached the lease, yet under an objective standard lacks reasonable cause to believe such to be the fact”].) So, where the landlord does not physically interfere with the tenant’s possession, the tenant “can recover damages for a wrongful eviction only if [the landlord] served the notice to quit with malice.” (Ibid.)
In this case, the jury was given Special Instruction No. 7, which states in pertinent part:
“ ‘... A constructive eviction may arise from the improper conduct of the landlord from [sic] interfering with the beneficial enjoyment of the premises.’
“The lessor’s good faith resort to the legal process by the serving of a 3 day notice to pay rent or quit, a 3 day notice to perform covenants/conditions or quit, a 30 or 60 day notice to quit, a 90 day notice of termination of tenancy and/or the filing of an unlawful detainer action does not constitute a constructive eviction in the absence of other independent conduct by the lessor done with malice. You will determine the existence or nonexistence of malice.
“You are to determine the existence or nonexistence of malice from the totality of the evidence presented during the trial.
“The malice element relates to the subjective intent or purpose [with which] the defendants in the present action acted in initiating the prior action. The motive of the defendants in the prior action must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. Ms. Antonova must plead and prove actual ill will or some improper ulterior motive. It may range anywhere from open hostility to indifference.
“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.
“Malice as an element of [a] constructive eviction cause of action is not limited to actual hostility or ill will toward the plaintiff, but exists when the proceedings are instituted for an improper purpose. Malice may be proved directly, or it may be inferred from the facts that the defendant lacked probable cause. Again, you are to determine the existence or non-existence of malice from the totality of the evidence presented in this case. While you may consider the lack of probable cause in determining the presence of malice, standing alone however, the lack of probable cause is not sufficient to demonstrate malice. In other words, the presence of malice must be established by other additional evidence.”
Antonova first contends that the second paragraph of the instruction is wrong, because it says that the filing of the unlawful detainer action is not a constructive eviction “in the absence of other independent conduct by the lessor done with malice.” She says that serving a notice to quit without probable cause and in bad faith is sufficient under Asell, and that no “other independent conduct” is necessary. Antonova misunderstands the point made in the second paragraph, which is that there must be evidence of the lessor’s bad faith (malice), above and beyond initiating legal process -- and that is what the instruction refers to in saying “other independent conduct by the lessor done with malice.” The succeeding paragraphs of the instruction explain the malice requirement thoroughly -- stating, for example, that malice exists when the proceedings are instituted for an improper purpose. We see no possibility that the jury was misled on the point.
Antonova also complains that the fourth paragraph of the instruction refers to malice only “in initiating the prior action” and does not refer to the preceding notices. But the notices were necessary prerequisites for the lawsuit and are expressly mentioned in the second paragraph of the instruction. Again, we see no possibility of jury confusion.
Antonova also contends that the meaning of “improper purpose” is not clear and objects to the trial court’s refusal to give her proffered instruction explaining the term. Antonova’s proposed instruction was taken from Albertson v. Raboff (1956) 46 Cal.2d 375, 383, where the court, citing the Restatement of Torts, observed that “[i]t has been pointed out that the ‘principal situations in which the civil proceedings are initiated for an improper purpose are those in which (1) the person initiating them does not believe that his claim may be held valid;...” The court refused to give the instruction, stating that it was covered in the malice instructions and would not be given because it was redundant, further observing that there were numerous places in the instructions discussing malice, and “I am not going to give yet another instruction on the issue of malice.”
Antonova’s proposed instruction stated: “Improper purposes sufficient to establish malice exist in those proceedings in which (1) the person initiating or continuing them does not believe that his claim may be held valid, (2) the proceedings are begun primarily because of hostility or ill will, (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his or her property, or (4) the proceedings are initiated for the purpose of forcing a settlement that has no relation to the merits of the claim.”
The trial court also refused, as redundant, Antonova’s requested instruction on proof of malice in a malicious prosecution action: that “the plaintiff is not required to prove that the prior action was inspired by personal hostility, a grudge, or ill will; it is sufficient if the action was instituted in bad faith, or in the absence of [an] honest and sincere belief in the validity of the action.” Because the jury concluded that the unlawful detainer lawsuit did not end in Antonova’s favor, the refusal to give this instruction could not have prejudiced Antonova.
Antonova contends the quoted language would have allowed her to prove Helen Towers’s malice (that Helen Towers “[did] not believe that [its] claim may be held valid”). But the instruction that was given specifically advised the jury that the malice element related to “the subjective intent or purpose” with which defendants initiated the unlawful detainer action, and that the motive had to be “something other than that of bringing a perceived guilty person to justice....” There is no substantive difference in the two concepts and thus no error in the trial court’s conclusion that the proposed instruction was redundant.
Antonova contended at trial that proof the defendants knew their lawsuit was legally untenable but filed it anyway would be sufficient proof of malice in a constructive eviction case. The instructions given covered the point, clearly stating that the jury could consider the lack of probable cause in determining the presence of malice, but that the lack of probable cause standing alone was not enough, and other additional evidence was required to establish malice. The “other additional evidence” could be proof that defendants knew they were filing an untenable case, that is, a motive “other than that of bringing a perceived guilty person to justice....”
Antonova then contends that, even if the instructions on malice were proper, she proved malice by virtue of her uncontradicted testimony that the manager of Helen Towers yelled at her and threatened her by saying, “I can evict you just like that, without any kind of legal procedure, ” causing her mother to become ill. She also cites other evidence she believes proved that defendants knew the notices they sent were legally untenable: her rent checks citing Civil Code section 1954.535, her testimony that she told Jackson and the manager about the illegality, and so on. Her claim has no merit; it was for the jury -- not an appellate court -- to determine the credibility of Antonova’s testimony and to weigh it along with the rest of the evidence relating to the presence or absence of malice -- which included testimony from Duringer and Jackson about the circumstances surrounding Helen Towers’s withdrawal from the Section 8 program, the notices sent to Antonova, and the filing of the unlawful detainer action. So long as there was substantial evidence to support the verdict -- and there was -- we have no power to substitute our judgment for that of the jury. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
Antonova also objects to the trial court’s refusal (on redundancy grounds) to give two other proffered instructions on constructive eviction. The instructions Antonova proposed were Special Instructions No. 22, “Acts Constituting Wrongful Constructive Evictions, ” and No. 23, “Examples of Wrongful Construction Eviction.” They stated, respectively: “Any interference by the landlord by which the tenant is deprived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so elects and surrenders possession”; and, “Example of wrongful constructive eviction: Serving a notice to quit the premises with malice and without probable cause to believe that the tenant breached the lease when the landlord does not physically interfere with the tenant’s possession.” We see no error in the trial court’s conclusion that these were redundant.
Next, Antonova contends the special verdict form for constructive eviction was “absolutely wrong.” The first question asked if any of the parties physically interfered with Antonova’s beneficial enjoyment of the premises, and Antonova objects to the word “physically, ” claiming that “any” interference is sufficient. But the other relevant type of interference consists of improper attempts to evict a tenant from the premises, and that was covered by succeeding questions on the verdict form. (See Asell, supra, 32 Cal.App.3d at p. 825 [“[w]e hold that because appellant did not physically interfere with respondents’ possession, that respondents can recover damages for a wrongful eviction only if appellant served the notice to quit with malice”].) Antonova’s other objections complain about various words used, such as “resorting” to the legal process, “improperly” interfering with her beneficial enjoyment, and other “ungrammatical and superfluous” questions. Antonova fails to cite to the transcript to show that she made any objection to these words, and consequently has forfeited these contentions (see In re S.C. (2006) 138 Cal.App.4th 396, 406-407), which are in any event meritless.
Next, Antonova contends the trial court failed to tell the jury of its decision that the defendants did not have probable cause to bring the unlawful detainer lawsuit. This is not so. Special Instruction No. 12 states, in part, that: “You are instructed that the defendant lacked probably [sic] cause to commence and/or continue unlawful detainer proceedings at the time said proceedings were commenced and/or concluded. You may consider that fact along with the other evidence, in determining whether malice was present. The effect, if any, of the lack of probable cause is a matter for you to decide.” Antonova complains this was only a “hint” about the lack of probable cause and that the typographical error (“probably”) misled the jury. We reject this notion; the word is correctly spelled the next time it is used, and we have no doubt the trial judge used the right word when he read the instructions to the jury.
Special Instruction No. 12 states, in its entirety:
Antonova also complains that she was prevented in her closing argument from telling the jury (which had not yet been instructed) that the lack of tenability of the unlawful detainer action meant that “had this case [been] decided on [the] merits, it wouldn’t be ruled in favor of the defendants.” Antonova first told the jury that “[t]he court found that the defendants didn’t have any probable cause for any cause of action for... unlawful detainer. [¶] And, therefore, the unlawful detainer was not tenable.” Defendants objected, and the court told Antonova to “[b]e careful in this area, ” but allowed her to continue. She then said, “That means that had this case fall [sic] on the merits, it wouldn’t be ruled in favor of the defendants.” This is the comment the trial court struck, telling the jury to disregard it and telling Antonova that “you can’t deal in the decision or decisions of courts, ” and “[t]his court now has not and cannot be parlayed into a decision at some earlier date.” While the meaning of this exchange is not clear, the court may have been concerned that Antonova was equating the court’s finding of no probable cause with malice. (The court had earlier warned the parties, after it ruled there was no probable cause, that it would listen very carefully to the arguments because “[a] finding of lack of probability [sic] does not relate into a finding as a matter of law that there is malice.”) In any event, the jury was properly instructed there was no probable cause to bring the lawsuit, so we do not think Antonova was prejudiced by the court’s striking her comment.
Next, Antonova objects to the sentence in the last paragraph of Special Instruction No. 12 (see fn. 12, ante), which states, “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.” She contends this is the malice required for punitive damages and is a higher level of malice than is required for malicious prosecution (and, we presume Antonova means, for constructive eviction, which is the issue at hand). But Antonova made no objection to this language and now claims she “didn’t have time to look at Instructions and object.” The record shows otherwise, with the court stating (after Antonova said, “Please, slower. I cannot cope with it”): “Ms. Antonova, I am going slower, and please, do not create a record that is not true. [¶] I can understand why you may want to do that, but I am making a record that I am going slow and I am waiting for you. I am pausing between them.” Because she did not object, the claim is forfeited, and in any event Antonova has not and cannot show that the challenged language was improper or prejudicial.
Antonova next contends the trial court erred when it refused to admit in evidence the June 14, 2001 letter from Bet Tzedek to Frank Nakhjavani, the manager of Helen Towers, enumerating several legal deficiencies in the 90-day notice of termination of Antonova’s tenancy. The trial court also refused to admit Antonova’s March 22, 2001 letter to Jackson (Helen Towers’s general manager), informing him of the illegality of the March 12, 2001 notice of termination of tenancy and demanding return of her overpayment of rent. Antonova points out that in discovery, Helen Towers admitted the genuineness of these letters, and argues in substance that they were admissible to show that defendants knew (because she and the Bet Tzedek lawyer told them) that their actions were legally untenable. Antonova also complains because, during her closing argument, after a defense objection to Antonova’s reference to her letter to Jackson (on the ground that it was not in evidence), the trial court incorrectly stated that “you may argue what you believe you [sent], but there is a dispute as to whether or not it was received.”
The transcript shows the following: On May 7, 2008, the court ruled that the genuineness of the letter to Jackson had been admitted by Helen Towers (that it was sent and received), but that Antonova could not show the document to the jury or read from it, because there was no admission as to the truth of the contents of the letter. Antonova said she wanted to use the letter to prove malice, and the court said the issue could be revisited if the court ruled there was no probable cause. “It may not be read to the jury unless and until the court finds in the plaintiffs’ favor with regard to the issue of probable cause, ” at which time “we’ll revisit this.” The same was true with respect to the Bet Tzedek letter. On May 16, 2008, Jackson testified that he remembered receiving a letter from Antonova, but (referring to her March 22, 2001 letter) “[w]hether this is the letter or not, I can’t say.” (Helen Epstein, the general partner of Helen Towers, admitted the genuineness of both Antonova’s letter and the Bet Tzedek letter.) Jackson testified, when asked if he still had the copy of Antonova’s letter, “No, I don’t believe so, ” and when asked if he had provided Helen Epstein with the letter, answered, “Probably not.” On May 20, 2008, after the court had decided that defendants lacked probable cause to bring the unlawful detainer action, Antonova again asked the court to admit the Bet Tzedek letter into evidence. The court refused, saying that the only issue going to the jury on the malicious prosecution claim during the first phase of the trial was the favorable termination issue, and that Antonova was not to argue anything more on malicious prosecution unless the case proceeded to the second phase (that is, if the jury found the unlawful detainer lawsuit had ended in Antonova’s favor). Antonova said she also needed the letter in evidence for her wrongful eviction claims, but the trial court said that the letter was hearsay and “is not coming into evidence, period.” The next day, Antonova again sought admission of the two letters, saying her own letter was not hearsay because she wanted to refer to it “not as a matter of truth, but as a fact that we did write a letter and the defendants received it.” The court said Antonova could testify that she wrote a letter, but the content would not be received, as there were elements in the letter that were subject to dispute and were self-serving, and there were allegations that contained hearsay. As to the Bet Tzedek letter, the court reiterated that it was “[rife] with hearsay, ” and “[t]here is no way that the contents of this document can be challenged by way of cross-examination.” During Antonova’s closing argument, the court sustained a defense objection to Antonova’s statement that her attorney sent a letter to the defendants “the authenticity [of] which has been recognized as well.”
The trial court’s evidentiary rulings are reviewed for abuse of discretion, and we see none here. The Bet Tzedek letter was hearsay, and Antonova’s letter, as the trial judge pointed out, contained hearsay allegations and matters subject to dispute and was self-serving. Moreover, Antonova was permitted to testify and argue that she informed Helen Towers’s manager and general manager that they had no right to charge the rent they charged or to evict Antonova, and that she stated on her rent payment checks “the section and the law and the fact that we were charged rent illegally.” In any event, the letters at most showed that Antonova and her lawyer believed Helen Towers to be acting illegally; while they show Helen Towers was on notice of Antonova’s position, they do not establish that Helen Towers therefore must have known Antonova’s position was correct (and consequently acted in bad faith in continuing the eviction process). As for the trial court’s reference before the jury to “a dispute as to whether or not [Antonova’s] letter was received” -- a letter which Helen Towers (by its general partner, Helen Epstein) had admitted receiving -- the court’s comment presumably referred to general manager Jackson’s testimony that he couldn’t say whether or not Exhibit 21 was the letter he received. In any event, this comment cannot have prejudiced Antonova’s case, as the admissions by Helen Towers had been read into the record.
Antonova also complains because the trial court denied her request to have the admissions related to the two letters separated out and sent to the jury for use during their deliberations. (Defense counsel objected that these admissions had been read into the record and should not be singled out from other parts of the testimony.) The trial court agreed, observing that “[i]f the jury asks for it, we’ll re-read it.” There was no error.
Finally, Antonova makes many other arguments claiming that she has proved Helen Towers acted with an improper purpose, because its notices and unlawful detainer filing did not comply with the law. While the latter is so, Antonova improperly equates this with proof of malice, which it is not. The fact is that the jury accepted Helen Towers’s evidence and rejected Antonova’s, expressly finding the defendants did not act with malice when they sent the notices and filed the lawsuit. In the absence of a legal error in instructing the jury -- and we have found none -- that is necessarily the end of the matter.
3. The Actual Eviction Claim
Antonova requested Special Instruction No. 33 21, which stated: “Landlord’s retaking possession of the premises and excluding the tenant from the premises, constitutes actual eviction.” The trial court refused to give this instruction, saying it was redundant and that another instruction was more complete. Special Instruction No. 5, which the court gave, stated: “Actual ‘[e]viction’ occurs if a landlord, without tenant’s consent, enters and takes possession of any part of the demised premises or any part thereof during the period between March 1, 2001 and September 1, 2001 and excludes the tenant therefrom.” There is obviously no substantive difference between the two instructions, with the instruction actually given merely identifying the period in question in Antonova’s case. Antonova also objects to the verdict form, which is phrased in the same language as the instruction, asking if any of the named defendants entered and took possession and excluded Antonova from the premises during the March 1 to September 1 period. There was no error.
Finally, Antonova complains that the trial court did not allow her, in her closing argument, to discuss the case of Landon v. Hill (1934) 136 Cal.App. 560, which affirmed a trial court decision, based on detailed facts, that the plaintiff was actually evicted and his surrender of the premises to the landlord was not voluntary. (Id. at pp. 563-565.) Antonova cites cases stating that counsel may not be precluded from discussing the pertinent law and its application to the facts of his or her case. (E.g., Neumann v. Bishop (1976) 59 Cal.App.3d 451, 480 [“ ‘ “[t]hat counsel may, in his argument, state what the law is and apply the law to the facts in the case is well established in California, provided, of course, the statement of what he considers the law to be is correct” ’ ”]; Beaird v. Bryan (1966) 244 Cal.App.2d 836, 842.)
Here, the court’s ruling did not prevent Antonova from stating what the rule of law was or from applying it to the facts of her case. The court prevented her, in effect, from arguing that a court’s decision on actual eviction in a different case with different facts was relevant to the decision in her case. The trial court has the discretion to refuse to allow counsel to read from case law during argument because it may mislead or confuse the jury. (People v. Anderson (1872) 44 Cal. 65, 70-71 [“[a]s a general rule, the practice of allowing counsel, in either a civil or criminal action, to read law to the jury, is objectionable, and ought not to be tolerated” as the “usual effect is to confuse rather than to enlighten the jury”; while there are cases “in which it is permissible for counsel, by way of illustration, to read to the jury reported cases, ” this is “subject to the sound discretion of the court, whose duty it is to check promptly any effort... to induce the jury... to take the law of the case from the books rather than from the Court”].) There was no abuse of discretion here.
4. The Breach of Contract Claims
Antonova made two breach of contract claims, one for failure to return her security deposit, and the other for overpayment of rent. The jury found in her favor on these claims, but did not award all the damages Antonova sought. She challenges the verdicts as unsupported by the evidence and inadequate, and contends the jury should have awarded statutory damages for bad faith retention of the security deposit. (Civ. Code, § 1950.5, subd. (l).) Again, her contentions have no merit.
a. The security deposit
On the security deposit claim, Antonova sought $410, with interest of $176.94, and claimed statutory damages up to twice the amount of the security deposit. (Under Civil Code section 1950.5, subdivision (l), the landlord’s bad faith retention of a security deposit “may subject the landlord... to statutory damages of up to twice the amount of the security, in addition to actual damages, ” and the jury was so instructed.) The evidence showed that Antonova paid $110 of the security for the apartment (a cleaning fee of $100 and key deposit of $10), and the Red Cross paid a $300 security deposit. There was no evidence defendants returned any of the security to Antonova. The jury awarded Antonova $120.00 for “[p]ast failure to return security, ” plus $176.94 for interest on the security deposit. It awarded no statutory damages.
Antonova challenges the failure to award the entire $410, and attributes this to misstatements in defense counsel’s closing arguments and the trial judge’s failure to admonish the jury to disregard the statements. After pointing out to the jury that the Red Cross wrote a check to the landlord for the security deposit, defense counsel stated, “Now, you’re going to hear some law as well about security deposits, and nowhere in it does it say that the landlord, if they don’t give a security accounting, automatically has to give it back. Doesn’t say that anywhere in there.” Antonova objected on the ground this was a misstatement of law. The trial court stated, “The law is going to be given to the jury by the court, ” and told defense counsel to proceed, after again stating that “the court will instruct the jury on the law that applies to this case.” Shortly thereafter, following another objection from Antonova, the court again stated, “This is argument. It’s not evidence. It’s argument.” We see no error, and certainly no prejudice to Antonova.
The jury was instructed that Civil Code section 1950.5 provides that, within three weeks after the tenant has vacated the premises, “the landlord shall furnish the tenant, by personal delivery or by first-class mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security and shall return any remaining portion of the security to the tenant.” (Civ. Code, § 1950.5, subd. (g)(1).)
As for Antonova’s claim for statutory damages for bad faith retention of the security deposit, she simply argues that she proved bad faith by virtue of defendants’ “misappropriation of security deposit” and the collection letters that Duringer sent in March 2003. As to the first point, defense counsel argued that there was no bad faith retention of the security deposit, because, when Antonova moved out of the apartment, “[t]here was no place to send it, ” as “[s]he never left a forwarding address.” As to the second point, Antonova says the March 2003 collection letters demanded the entire amount of the default judgment that was reversed by the appellate division, including costs, plus interest (which she could show arithmetically), rather than, as Duringer testified, the amount of unpaid rent from June 22, 2001, until August 11, 2001, when Antonova turned in the keys. The latter calculation resulted in a slightly different figure than the amounts demanded in the letters, proving, according to Antonova, that “Duringer perjured himself” and defense counsel “lied in closing argument.” Again, Antonova’s arguments have no merit: the jury obviously believed the defense witnesses and concluded that defendants did not act in bad faith, and there is no basis upon which an appellate court may interfere with the jury’s verdict.
b. The rent overpayment claim
On the rent overpayment claim, Antonova sought $930.28, presenting evidence that defendants could not legally collect more than $262 per month from her for 90 days after their March 23, 2001 notice of withdrawal from the Section 8 program, and that she paid the amounts improperly demanded, with total payments from March to June of approximately $2,217. The jury awarded damages for overpayment of rent in the sum of $257, rather than the $930.28 requested. In her appellate brief, Antonova devotes a single page to her argument, citing only to her complaint (alleging that her overpayment as of June 21, 2001, was $1,243.93, from which could be subtracted $313.65 for the period from June 22, 2001, to July 26, 2001, during which she remained in the apartment) and the defendants’ answer denying her allegations. She fails to provide citations to any evidence in the record of this long trial (not even to the evidence we have just cited) to support her claim that the damages were inadequate. For this reason alone, her contention is forfeited. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.)
5. The Trial Court’s Ruling on Costs
Antonova challenges the trial court’s disposition of her waived court fees and costs.
Antonova sought and received a fee waiver when she filed this lawsuit in March 2004. After the jury’s verdict, she filed a memorandum of costs, seeking $815.80 in filing fees, $5,554.66 in jury fees, and $3,110.33 in court reporter fees (one-third of the $9,331 total), plus $3.00 in deposition costs, $524.86 for service of process, $597.50 for exhibit costs, and $2,456 for typing of pleadings and motions. Helen Towers filed a motion to tax costs.
The court ultimately struck all costs sought for filing fees, jury fees, service of process fees, and court reporter fees, as Antonova did not pay them. The court ordered Helen Towers to pay court reporter fees of $2,556.39 directly to the court (the $3,110.33 Antonova sought minus the amount of the judgment). The court’s ruling explained that $553.94 -- the amount of the judgment -- was “the maximum lien the Court has for court reporter fees properly recoverable by the Plaintiff, ” and stated that its order on court reporter fees was “in conformance with [former] Government Code section 68511.3 [subdivision (d)].” The amended judgment states:
“Pursuant to the Order on Plaintiff’s Application for Waiver of Court Fees and Costs entered on March 8, 2004, the Court hereby finds that Jury fees in the amount of $5,554.66 and Court Reporter fees in the amount of $3,110.33 have been accrued on behalf of the Plaintiff. [The Helen Towers defendants] are ordered to pay monies in the amount of $2,556.39 for the Court Reporter Fees incurred and such fees shall be paid directly to the court. Therefore, upon any monetary recovery by Plaintiff pursuant to this Judgment, Plaintiff shall forthwith reimburse the Court for said fees to the extent of any such monetary recovery by the Plaintiff up to, but not exceeding, total the [sic] amount of said fees -- to wit: $6,108.60, pursuant to section 68511.3 of the Government Code.To the extent Plaintiff receives any monies from the Defendant, Plaintiff shall forthwith reimburse the Court as per the foregoing by payment direct to the Los Angeles Superior Court.” (Italics & boldface added.)
Both the Helen Towers and the Duringer defendants had waived a jury.
The court also ordered that Antonova was to recover costs of $2,941 from the Helen Towers defendants ($2,456 of which the parties stipulated was to be paid directly to a third party for typing fees; the remainder was for exhibit costs (reduced to $482) and deposition costs ($3.00)).
In short, under the authority of former Government Code section 68511.3, the court required Antonova to pay her entire $553.94 recovery to the court, to cover waived costs that would have been awarded to her if she had paid them. And, the court suggests that Antonova would owe the court “up to... $6,108.60, ” a sum which results when one adds the amount of the judgment for Antonova ($553.94) to the jury fees ($5,554.66). This was error.
The court appears to have misread former Government Code section 68511.3, which provided in part:
“In any action or proceeding in which the litigant whose fees and costs have been waived would have been entitled to recover those fees and costs from another party to the action or proceeding had they been paid, the court may assess the amount of the waived fees and costs against the other party and order the other party to pay that sum to the court or to the clerk and serving and levying officers respectively, or the court may order the amount of the waived fees and costs added to the judgment and so identified by the clerk.” (Gov. Code, § 68511.3, subd. (d)(2), repealed by Stats. 2008, ch. 462, § 1.) (Italics & boldface added.)
Effective July 1, 2009, Government Code section 68511.3 was repealed and replaced by Government Code section 68630 et seq., concerning waiver of court fees and costs. (See Stats. 2008, ch. 462, § 2.) The statute now provides that if a party whose fees were waived is a prevailing party under section 1032 of the Code of Civil Procedure, the judgment entered in that party’s favor “shall include an order requiring that the party against whom judgment or dismissal has been entered pay to the court the waived fees and costs.” (Gov. Code, § 68637, subd. (b)(1).)
Thus, the court could have assessed the jury fees, as well as the $3,110.33 in court reporter fees (to which Antonova would have been entitled as costs if she had paid them), against Helen Towers. The court did so as to the court reporter fees, except to the extent of the judgment, thus effectively requiring Antonova to pay a part of her own court reporter fees, even though they would have been awarded to her if she had paid them. As for the jury fees, the court required Antonova to reimburse the court for those fees “upon any monetary recovery by Plaintiff pursuant to this Judgment.”
We agree with Antonova that nothing in former Government Code section 68511.3 allowed the court to require Antonova to pay to the court the money she recovers under the judgment in order to pay for court costs. Under former Government Code section 68511.3, the court could have ordered Antonova to pay the amount of waived fees and costs only if the court had ordered those amounts added to the judgment payable by defendants to Antonova. Accordingly, and consonant with current law (Gov. Code, § 68637, subd. (b)(1)), we will modify the amended judgment by (1) excising the provision quoted above in bold italics, and (2) deleting both the immediately preceding and the immediately following sentences in the amended judgment and substituting language requiring defendants to pay both jury fees ($5,554.66) and court reporter fees ($3,110.33) directly to the court.
The modifications will cause the affected provisions of the judgment to read as follows (added provisions in bold italics):
DISPOSITION
The amended judgment is modified to delete the language requiring Antonova to reimburse the court for jury fees and court reporter fees, and is further modified by ordering the defendants to pay the full amount of waived jury fees and court reporter fees directly to the court. As so modified, the judgment is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: BIGELOW, P. J., FLIER, J.
“The words ‘malice’ and ‘malicious’ mean a wish to vex, annoy, or injure another person. Malice means that attitude or state of mind which [causes] the doing of an act for some improper or wrongful motive or purpose. It does not necessarily require that the defendant be angry, vindictive, or bear any actual hostility or ill will toward the plaintiff.
“Malice, like any other fact, may be proved by direct or circumstantial evidence.
“You are instructed that the defendant lacked probably [sic] cause to commence and/or continue unlawful detainer proceedings at the time said proceedings were commenced and/or concluded. You may consider that fact along with the other evidence, in determining whether malice was present. The effect, if any, of the lack of probable cause is a matter for you to decide.
“The malice element relates to the subjective intent or purpose [with which] the defendants in the present action acted in initiating the prior action. The motive of the defendants in the prior action must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. Ms. Antonova must plead and prove actual ill will or some improper ulterior motive. It may range anywhere from open hostility to indifference.
“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. Malice may be proved directly, or it may be inferred from the fact that the defendant lacked probably [sic] cause. Again you are to determine the existence or nonexistence of malice from the totality of the evidence presented in this case. While you may consider the lack of probable cause in determining the presence of malice, standing alone. [Sic.] However, the lack of probable cause is not sufficient to demonstrate malice. In other words, the presence of malice must be established by other additional evidence.”
“Pursuant to the Order on Plaintiff’s Application for Waiver of Court Fees and Costs entered on March 8, 2004, the Court hereby finds that Jury fees in the amount of $5,554.66 and Court Reporter fees in the amount of $3,110.33 have been accrued on behalf of the Plaintiff. [The Helen Towers defendants] are ordered to pay monies in the amount of $3,110.33 for the Court Reporter Fees incurred and $5,554.66 for the jury fees incurred and such fees shall be paid directly to the court.
“Pursuant to Court order, Plaintiff shall recover costs in the amount of $3,110.33 for the Court Reporter Fees incurred by Plaintiff and $5,554.66 for the jury fees incurred by Plaintiff and such fees shall be paid directly to the Court by Defendants....”