Opinion
A114843
5-30-2008
ROBERT LEE ZIMMERMAN, Plaintiff and Appellant, v. FORREST R. MORPHEW, et al. Defendants and Respondents
NOT TO BE PUBLISHED
Appellant Robert Lee Zimmerman, plaintiff below, appeals from the judgment after jury trial in favor of defendants Forrest R. Morphew and Ephimia Morphew on all of the causes of action brought by Zimmerman against defendants, his former landlords. We affirm the judgment.
BACKGROUND
In 2005, plaintiff was a tenant in a Tiburon, California, apartment rented to him by defendants. He had rented apartments from defendants on the property dating back to 2001. In April 2005, defendants withdrew their approval of plaintiffs subletting of his apartment. On May 1, 2005, defendants served plaintiff with a 60-day eviction notice.
In May 2005, the Towns building official, Dean Bloomquist, visited the premises and found a deck supported by a badly decayed, inadequately repaired beam, and later found a number of other substandard conditions. At trial, plaintiff testified that he complained to the Town of Tiburon (Town) about the conditions of defendants property in late March 2005, before defendants told him he could no longer sublease his apartment. Bloomquist testified at trial that plaintiff first complained to him about the property in late April 2005.
Plaintiff moved out of the premises in August 2005, after defendants paid him moving expenses and agreed to waive two months rent.
In November 2005, the Towns Director of Community Development wrote to defendants that two of the five residential units on their property were illegally installed. The Town did not take any further legal action about the matter.
In May 2005, plaintiff, appearing in propria persona, filed a civil complaint in Marin County Superior Court against defendants. He alleged 10 causes of action, for fraud and deceit, civil conspiracy, breach of implied warranty of habitability, breach of implied covenant of quiet enjoyment, negligent maintenance of the premises, maintenance of a nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and for injunctive and declaratory relief. Plaintiffs lengthy allegations included that the apartments he had occupied were not fit for human occupation, and that defendants had concealed from him that certain units in the premises violated the Towns zoning laws. At trial, plaintiff sought $5,310,480 in compensatory damages, and $6 million in punitive damages.
At trial, plaintiff contended that defendants withdrew their approval of his subletting and served him with an eviction notice in retaliation for his complaints to Town building officials about dangerous conditions at the property. Plaintiff testified that he fell four separate times as a result of dry rot and substandard construction in defendants property, which "led to periodic minor pain recurring and discomfort that extends from my left side of my back to my neck and under my shoulder." He acknowledged that he did not seek medical treatment for these injuries.
As for his damages, among other things, plaintiff testified that he had planned to promote a book and conduct research abroad when defendants told him he could no longer sublet his apartment, effectively destroying his publishing business and causing him significant financial losses. Plaintiff also contended that he was forced to move to a low cost housing area and, therefore, went to New Orleans, where he lost all of his belongings in looting after Hurricane Katrina.
The jury returned verdicts in defendants favor on all causes of action. Plaintiff subsequently filed a timely notice of appeal. Defendants filed a motion to strike plaintiffs opening brief on the ground that many of its factual statements are not supported by citations to the record. On January 31, 2007, we denied the motion, but retained discretion to treat as waived any point urged on appeal that is not supported by appropriate references to the record.
DISCUSSION
I. Plaintiff Fails to Establish Merit in His Causes of Action
Plaintiff first argues that the statements contained in the July 8, 2005 declaration of Bloomquist, the Town building official, regarding the condition of defendants property is dispositive of his case, and require reversal and entry of judgment notwithstanding the verdict. This is incorrect.
In his declaration, Bloomquist states that in May 2005, in response to a tenant complaint of unsafe conditions, he visited the property and sent a letter to defendant Forrest Morphew, instructing him to block off access to the deck at 402 Greenwood Beach Road, where plaintiff resided, as the deck "was supported by a badly decayed beam with some makeshift repairs that were entirely inadequate." Morphew came to his office and indicated his willingness to make the necessary repairs, and the building department issued a permit for repair and replacement.
Bloomquist also states that, in June 2005, he conducted a walkthrough inspection of the property and found various common area problems, including substandard conditions such as dry rot, substandard construction, uneven deck boards resulting in tripping hazards, and substandard and unpermitted repairs on the decks; stairs with similar problems; erosion on the bayside of the building that "may be a result of concentrated drainage outflow"; garage windows that impermissibly open with three feet of the property line; plumbing and gas lines installed and repaired in a substandard manner; unauthorized construction of a storage/design room; the need for both of defendants buildings to be checked for gravity, wind, and seismic loads; unpermitted installation of a washer, dryer, and refrigerator at 400 Greenwood; and multiple instances of work without permits.
Regarding Zimmermans unit, Bloomquist stated that the rotted support beam had been replaced, but that additional repairs to the decking and guardrail were needed; that a washer, dryer, and water heater were installed without permits in a problematically narrow, closet-like area; and that there were falling concrete retaining walls at an access deck, for which a repair permit should be obtained.
Regarding all units, Bloomquist stated that there was various work done without permits or inspections, and general code violations.
Plaintiff views Bloomquists declaration as "undisputed proof that defendants were grossly negligent in the maintenance of their property, engaged in numerous unpermitted repairs, never had their rental property inspected, allowed their property to become dangerously dilapidated and intentionally used unlicensed workers to convert their home and garage into five separate dwelling units without obtaining the required building permits, violating many of Californias building, health and safety codes." Plaintiff contends that "the dangerous and defective conditions the inspector found posed a threat to my health, safety, and enjoyment, and thereby were a nuisance, negligently maintained, a breach of contract, and breached the implied warranty of habitability and the implied covenant of quiet enjoyment." He further argues that the inspectors statements "are undisputed proof of all my causes of action and are supplemented with [defendants] own answers and to admissions and special interrogatories, confirmed as read to by the jury by defense counsel . . . and are sufficient to warrant reversal and JNOV."
In his reply brief, plaintiff also argues this court should review certain "undisputed documentary evidence" that he contends supports reversal and entry of judgment notwithstanding the verdict. We disregard this argument because it is first made in his reply brief. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 822.) To the extent plaintiff may contend he raised these facts in his opening brief, his argument is nonetheless unpersuasive for the same reasons as we state herein.
Plaintiffs argument about the merits of his case below fails for two reasons. First, we have the discretion to disregard issues not properly addressed in the briefs, and may treat them as having been abandoned or waived. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793; Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216.) "`[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.] [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence." (People v. Stanley, at p. 793.) Furthermore, " `"[i]t is the duty of the party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations."" [Citation.] Because `[t]here is no duty on this court to search the record for evidence [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citation]." (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [noting that the Rules of Court require factual assertions to be supported by citations to the record].)
Plaintiffs argument is devoid of meaningful analysis. Although he does cite the inspectors declaration and cases in support of his argument, these citations establish little, if anything, regarding his 10 causes of action. Plaintiff fails to meaningfully address his causes of action or explain how any evidence introduced at trial relates to them. Moreover, plaintiff does not establish the duration of the conditions referred to by Bloomquist in his declaration, or cite to evidence in the record showing that these conditions affected plaintiffs use of the premises. Therefore, we disregard his arguments.
Even if we were to consider plaintiffs arguments, they would be insufficient. "A challenge in an appellate court to the sufficiency of the evidence is reviewed under the substantial evidence rule. [Citations.] `"Where findings of fact are challenged on a civil appeal, we are bound by the `elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court."" (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
As defendants point out, there was substantial evidence to support the jurys determinations. Bloomquist testified that he would red-tag a building that was in seriously unsafe condition, but did not do so regarding defendants property. He testified that he did not receive a complaint from plaintiff until late April 2005, which was after defendants told plaintiff he could not sublease his apartment, and from which it could be reasonably inferred that plaintiff complained to the Town in retaliation, and not because any conditions interfered with his use of the apartment. Plaintiff himself testified that he was not aware of all of what he claimed were safety problems and "massive dilapidation" until July 2005, a few weeks before he moved out of the apartment, when he received Bloomquists report. Kathryn Tama, who became plaintiffs subtenant in mid-2004, testified that the apartment was a "wonderful place" and its condition was "excellent." She did not see any major dangerous conditions or problems on the property, and plaintiff told her the stairs were well maintained. The appliances worked and she did not have any problem regarding falling through any of the decks. Craig Brennan, who testified that in 2004 and 2005 he worked 25 to 35 hours a week at the apartments for defendants, said that he asked plaintiff almost every time he saw him if there was anything that needed fixing, and he could not recall plaintiff ever requesting that he fix anything.
Furthermore, plaintiff fails to explain why the jury could not reasonably conclude that some or all of the matters raised by Bloomquist were minor in nature, or disbelieve plaintiffs testimony of his injuries or other matters. "`A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Furthermore, generally "it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (People v. Jones (1990) 51 Cal.3d 294, 314.) In short, plaintiffs argument that we should reverse because of the merits of his case are not correct.
II. The Trial Court Did Not Act Inappropriately
Plaintiff next argues that reversal is necessary because the trial court judge should have disqualified himself, and communicated improperly with the jury. These arguments are utterly without merit.
A. Disqualification Issues
Defendants indicated that they might call as witnesses two attorneys who plaintiff contends represented defendants before the Town regarding the legality of their rental apartments, contributed time and money to the judges political campaigns for his judgeship, and, in the case of one potential witness, was the judges "best friend," and, "best man at his wedding and his law school buddy." Plaintiff argues reversal is necessary because the trial judge should have disqualified himself under these circumstances. This argument lacks merit for several reasons.
First, plaintiff makes factual assertions without proper legal argument or citation to the record. Accordingly, we may and do disregard these contentions. Plaintiffs argument fails for this reason alone.
People v. Stanley, supra, 10 Cal.4th at page 793; Tiernan v. Trustees of Cal. State University & Colleges, supra, 33 Cal.3d at page 216; Grant-Burton v. Covenant Care, Inc., supra, 99 Cal.App.4th at page 1379; Nwosu v. Uba, supra, 122 Cal.App.4th at page 1246. "An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument" (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873), including when "the relevance of the cited authority is not discussed or points are argued in conclusory form." (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Second, we do not consider plaintiffs argument on its merits because he has not raised it properly, pursuant to Code of Civil Procedure section 170.3, subdivision (d). In People v. Barrera (1990) 70 Cal.App.4th 541, a commissioner presiding over the case advised the parties on the first day of trial that he had represented the defendant in his arraignment in the same case. (Id. at p. 546.) The defendant, defense counsel, and the prosecutor signed a stipulation that the commissioner could hear the case (ibid.), but after being found guilty, the defendant on appeal contended that the commissioners disqualification could not be waived. (Id. at p. 547.) The appellate court held that, although the commissioners disqualification could not be waived because of his prior representation of the defendant, the issue was not properly before the court because the defendant could only obtain writ review pursuant to Code of Civil Procedure section 170.3, subdivision (d). (People v. Barrera, at pp. 551-552.) The court explained that if it were "to permit review on appeal in this matter, a defendant such as appellant would be able to waive the disqualification and permit the judge to preside over the entire case, secure in the knowledge that, if any portion of the result were unfavorable to him, he could appeal and obtain a reversal of the judgment and a `second "bite at the apple," which would constitute an `"intolerable windfall."" (Id. at p. 551; see also People v. Guerra (2006) 37 Cal.4th 1067, 1111 [citing to section 170.3, and holding that it was too late to bring up the issue of judge disqualification for the first time on appeal when all the facts of supposed judicial bias were known during the trial], disapproved on another ground as stated in People v. Rundle (2008) 43 Cal.4th 76, 151.)
At the time of trial, Code of Civil Procedure section 170.3, subdivision (d), provided: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding." (Historical and Statutory Notes, 13A Wests Ann. Code Civ. Proc. (2006) § 170.3, p. 40.)
The facts of this case are very similar to those in People v. Barrera, supra, 70 Cal.App.4th 541. On the first day of trial, the court discussed one of the attorneys designated by defendants as a potential witness, informing the parties that his relationship with him "just goes back so many years," and that the court could not hear a case in which he was involved. At that point, plaintiff asked if the court would accept a "waiver," which the court stated was required to be in writing. Plaintiff subsequently executed a written waiver regarding this relationship, which was signed by plaintiff and defendants attorney and filed with the court. Despite plaintiffs knowledge and participation in this waiver, he did not raise his disqualification claim in full until this appeal, which is plainly inappropriate. (Ibid., People v. Guerra, supra, 37 Cal.4th at p. 1111.) We also find, based on this same case law, that plaintiffs objection to the trial judge at the end of the trial was also made too late, as it was based on the same friendship disclosed to him at the beginning of the trial, and would have given him a second bite of the apple after hearing defendants presentation.
Furthermore, plaintiffs arguments are unsupported by legal authority, and we therefore disregard them. (See fn. 2, ante.)
Even if we were to consider the merits of his argument, neither lawyer was called as a witness in the case. Plaintiff does not establish the trial judge should have disqualified himself under such circumstances. Furthermore, he does not persuasively explain why the waiver he proposed and submitted to the court was inapplicable, at least as to one of the potential witnesses. Plaintiff contends this waiver was never filed with the court, did not cite the basis for the judges disqualification, was not signed by all the parties, that the judge demonstrated he knew his failure to disqualify himself was improper by asking a pro per for the waiver, that "the record reflects no order from the court acknowledging the waiver and actuating it," and that the waiver fails to refer to the specific sections of the Code of Civil Procedure that were waived. These contentions are not supported by the record, except that defendants counsel, rather than defendants, signed the waiver, the significance, if any, plaintiff fails to explain. The record shows the waiver was filed with the court, referred to the courts announced relationship with the potential witness, and that plaintiff offered the waiver, rather than the court asking for one.
Plaintiff also argues that he need not seek a writ pursuant to Code of Civil Procedure section 170.3, subdivision (3), because there was no order issued, because he was a pro per, because the "full range of the judges prejudice" was not felt by him until the end of trial, and because "the interests of justice" call for our review. However, no such order is required (People v. Barrera, supra, 70 Cal.App.4th at p. 552), the fact that he is in propria persona does not entitle him to special treatment (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247), the reasons for the judges purported prejudice were known to plaintiff at the beginning of the trial, and our careful review of the record does not disclose any judicial prejudice that calls for our review.
B. The Trial Courts Ex Parte Communication with the Jury
Plaintiff also argues reversal is necessary because the trial court communicated improperly with the jury outside of his presence. This too is meritless.
The supplemental record submitted by defendants shows that the court, upon plaintiffs return to the trial after a brief hospitalization, asked the jury to consider if extending the trial for two additional days would create any difficulties for them. After the jury departed to consider the matter, the court asked the parties whether they would agree to the court discussing the issue of timing alone with the jury; the parties, including plaintiff, so stipulated.
Plaintiff speculates that the courts request for the parties permission was "highly suspect" because the matter could have been resolved in open court, and that he had no way of knowing what the court actually said to the jurors. He further contends that the "stipulation" has been lost, that "with only rare exceptions, judges may not communicate with jurors in any way or enter the jury room when jurors are present, and that the court should not have sought permission from him because "[a]ny reasonable pro per would think the denial of such permission could prejudice a judge against him." Plaintiff quotes the trial courts remarks after meeting with the jury that, "we didnt talk about the case, obviously, when I went in there, folks, but they did ask if you have some documents that weve been discussing a lot, they are interested in seeing those as soon as possible."
Plaintiffs arguments are unpersuasive. By his stipulation and, at a minimum, his failure to object to the courts ex parte communication or move for a mistrial, plaintiff waived his claim on appeal. (See People v. Jennings (1991) 53 Cal.3d 334, 383-384 [error waived by failure to object or move for mistrial].) As defendants point out, his appearance in propria persona is of no consequence, as such a party "`is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. " (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1247.) In any event, as defendants also point out, plaintiff fails to explain how the courts communication prejudiced him in any way. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 (Polisso) [stating that the court will not "act as counsel for appellant by furnishing a legal argument as to how the trial courts ruling was prejudicial"].) For each and all of these reasons, plaintiffs arguments must be rejected.
III. Plaintiffs Claims of Judicial and Defense Counsel Abuses Regarding Jury Instructions and Verdict Findings
We now turn to plaintiffs claims about numerous errors regarding jury instructions and verdict findings. In doing so, we keep in mind certain basic legal standards. As we have already stated, "`[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. " (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) The appellants burden begins with the obligation to properly brief and argue issues presented, as we also have discussed. (See fn. 2, ante.)
Furthermore, "[i]n reaching a decision on appeal an appellate court is governed by the record; will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief." (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207 (Oldenkott).) "It is improper for an appellant to attempt to bring before the appellate court alleged facts which do not appear in the record on appeal." (Id. at p. 207, fn. 1.)
In addition, "`[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method. " (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 (Doers ).) "It must appear from the record that the issue argued on appeal was raised in the trial court. If not, the issue is waived." (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)
Regarding jury instructions, they "should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories, or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition." (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718 (Fibreboard).)
Furthermore, "[i]n reviewing a courts decision on jury instructions, we follow the principle `there is no rule of automatic reversal or "inherent" prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."" (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1094.) "Instructional error in a civil case is prejudicial `where it seems probable that the error `prejudicially affected the verdict. " (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Appellant has the burden to establish the existence of prejudicial error affecting the merits of his appeal. (SeePolisso, supra, 139 Cal.App.4th at p. 963.)
Plaintiffs briefing on these issues extends for dozens and dozens of pages. As we discuss further post, in this part III and the parts which follow, this briefing raises a plethora of issues, much of which is difficult to follow. It contains citations to authorities that are insufficiently explained, purported statements of law unsupported by authority, plaintiffs own assertion of events and facts without citation to the record, matters that are not established as having been raised properly, or at all, in the trial court below, and no meaningful discussion of the elements of plaintiffs causes of action, or of the prejudice to them that resulted from the many purported errors plaintiff asserts. In short, plaintiff generally does not present proper appellate arguments. We have reviewed his arguments carefully and do not find they provide bases for the relief he seeks. We now address them in the order he discusses them in his opening brief, beginning with this part III.
First, plaintiff complains that the judge improperly refused to give the jury the No. 115 "non-argumentative" jury instructions and nine special verdict forms that plaintiff submitted, the court saying only that they were "overwhelming," substituted several of its own and defense counsels special jury instructions, "neither of which had the authorities required by Title II Rule 229(d) and defense counsels late submitted [jury instructions] were not mailed to me until 10 days after the start of the trial, and never filed with the court," submitted verdict forms to the jury after it began deliberations, and accepted from the defense unfiled and unserved jury instructions and verdict forms just before he was to begin his closing argument.
Plaintiffs arguments as stated are not a basis for relief. While he cites some case law in support of his incorrect statement of our standard of review, he otherwise provides no authority for his position. We disregard plaintiffs arguments because he does not properly address them in his brief or support them with pertinent legal authority (see fn. 2, ante), and fails to establish prejudicial error.
In his brief, plaintiff repeatedly states our standard of review incorrectly, such as that "[t]he standard of review for matters involving [jury instructions] and [verdict findings] is actual prejudice, and injudicious judicial conduct in this regard may be reviewed as an abuse of discretion, as clear error, or de novo."
Zagami, Inc. v. James A. Crone, Inc., supra, 160 Cal.App.4th at page 1094; Soule v. General Motors Corp., supra, 8 Cal.4th at page 580; Larmour v. Campanale (1979) 96 Cal.App.3d 566, 570; Eddie v. Schumacher Wall Board Co. (1926) 79 Cal.App. 318, 322.
Even if we were to address plaintiffs issues, we note that "[a] party is not entitled to have the jury instructed in any particular phraseology and may not complain on the ground that his requested instructions are refused if the court correctly gives the substance of the law applicable to the case." (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335 (Hyatt).) Furthermore, "[i]nstructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories, or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition." (Fibreboard, supra, 227 Cal.App.2d at p. 718.) A brief examination of plaintiffs proposed jury instructions reveals many were plainly inappropriate pursuant to these standards, even putting aside those that contain misstatements of law.
See, e.g., plaintiffs proposed jury instructions Nos. 3 (indicating the rental units are illegal and dangerously hazardous), 9 and 26 (repeating each other), 10 ("California law mandates that defendants return all of the fruits of their fraud, in this case the rent defendants received from plaintiff . . . ."), 12 (suggesting plaintiff may recover damages merely for "discomfort and annoyance"), 16 (bearing the argumentative title that "Defendants Fraudulent and Deceitful Conduct Was Intentional, Willful, Reckless and Wanton"), 20 (indicating a "confidential (fiduciary) relationship exist[ed]" between plaintiff and defendants), 21 through 25 (repetitive of each other), 35 (bearing another argumentative title), 40 (stating, among other things, that "[t]he foreseeability of harm to [plaintiff] from [defendants] failure to maintain their property in a habitable condition is obvious"), 35 and 41 (repetitive of each other), 46 (asserting the "illegality" of defendants rental apartments was alone a basis for "full restitution"), 49 (indicating his leases are void), CACI No. 300 (stating numerous "factual elements" of defendants purported wrongdoing as truth), and CACI No. 431 (referring to defendants "negligence" as a fact). This is by no means a complete list. Plaintiffs proposed verdict forms were similarly problematic.
Second, plaintiff contends that the court "proceeded to lose all" of his proposed jury instructions and verdict forms as well as those "the judge says he submitted to the jury," that the clerks transcript is "unintelligible," that it is "impossible to know what instructions, if any, the jury received," since those in the clerks transcript could not be a part of the "lost `packet because none of those instructions contains the initialing the court requested on the instructions the judge said he would give," and that the clerks transcript index refers to his proposed jury instructions, but that the transcript contains only an index of them.
We have examined the record and find plaintiffs arguments are not a basis for relief. We presume the judgment is correct, and plaintiff must show affirmatively that error has occurred. The clerks transcript contains a set of jury instructions, on the first page of which is handwritten "Given 5/24/06" and the trial judges name. This indicates the court instructed the jury properly, and plaintiff does not establish otherwise. In any event, plaintiff fails to show the prejudice to any of his causes of action that was caused by the errors he contends occurred. (See fn. 5, ante.)
Denham v. Superior Court, supra, 2 Cal.3d at page 564; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.
Next, plaintiff contends the court was unfamiliar with civil law and the law of this case, and complains that the court dismissed his arguments regarding Rowland v. Christian (1968) 69 Cal.2d 108, 118-119, and its "applicability."
This argument also lacks merit because plaintiffs argument is conclusory (see fn. 2, ante), and fails to establish prejudice. (See fn. 5, ante.)
Next, plaintiff contends the approved jury instructions "were never made available to me," and that he did not see the approved verdict findings until receiving the clerks notice of filing of appeal. This argument is not a basis for relief because plaintiff relies on facts that are not in the record about what was made available to him (Oldenkott, supra, 14 Cal.App.3d at p. 207 & fn. 1), and does not establish prejudice. (See fn. 2, ante.)
Next, plaintiff contends the jury was not instructed, verbally or in writing, on breach of the implied warranty of habitability, or breach of the implied covenant of quiet enjoyment. However, the set of jury instructions in the clerks transcript, with the first page indicating they were given to the jury on May 24, 2006, contains such instructions. Furthermore, although plaintiff points out in his brief that the register of actions in the record states that the court will prepare these jury instructions, he fails to also point out that this same page of the register of actions states that "the court clerk gives . . . instructions for breach of warranty of habitability and implied covenant of quiet enjoyment to the bailiff for delivery to the jurors." Thus, it is plain no lack of instruction occurred; in any event plaintiff does not meet his burden of establishing error. (See fn. 7, ante.)
Next, plaintiff complains that the courts verbal instructions "are unnumbered and untitled and jump back and forth," confuse plaintiff and defendant, and "made it virtually impossible for the jury, or me, to follow the instructions." We do not agree that the instructions were confusing. Plaintiff fails to establish that the court erred (see fn. 7, ante), and fails to establish prejudice, particularly in light of the verbal and written instructions given to the jury. (See fn. 5, ante.)
Next, plaintiff complains that "none of the approved [jury instructions] refers to any of the numerous citations of common law, and civil, building, zoning, health and safety codes that form the foundation of my causes of action and appear in my refused 69 proposed [special jury instructions]." This argument is waived because plaintiff provides no authority or record citation for this argument. (See fn. 2, ante.)
According to plaintiff, "[t]hese many errors created actual prejudice that warrants reversal, a new trial, change of venue, and JNOV." This is a conclusory argument that we disregard. (See fn. 5, ante.)
IV. Refusal to Instruct With Plaintiffs 69 Special Jury Instructions
Plaintiff argues further about the courts refusal to instruct with his 69 special jury instructions. In doing so, plaintiff argues repeatedly in a conclusory manner (for example, listing 69 topics addressed in his jury instructions and citing various legal authority, without sufficiently relating them to each other), complains of the courts statement that his instructions were "overwhelming" without establishing that this was error, does not relate the purported errors to his causes of action, and does not explain sufficiently why the instructions given were not satisfactory. Therefore, these arguments are waived. (See fn. 2, ante.) Plaintiff also fails to meet his burden of establishing error (see fn. 7, ante; see also Hyatt, supra, 79 Cal.App.3d at p. 335 and Fibreboard, supra, 227 Cal.App.2d at p. 718 [re jury instructions]) and does not establish prejudice. (See fn. 5, ante.)
V. Other Purported Court Failures to Properly Instruct the Jury
Plaintiff begins his next section of argument by asserting that defendants "had a lawful duty not only to act responsibly and have their property inspected," but also to tell him that "their rental units were constructed without building permits by unlicensed workers in defiance of stop work orders," "never inspected," "were dangerously hazardous," and that they were put on notice by the Town in 1978 and 1998 "that their rental units were `unlawful and abatable because they violated the towns (R1) single-family zoning ordinance." Once again, plaintiff argues in a conclusory manner, does not relate the purported errors to his causes of action, and does not explain sufficiently why the instructions provided were not satisfactory. His arguments fail because he waives his argument (see fn. 2, ante), fails to meet his burden of establishing error (see fn. 7, ante) and, in any event, fails to establish prejudice. (See fn. 5, ante.)
A. Refusal of Negligence Per Se Instructions
Plaintiff argues the court abused its discretion by refusing to give the instructions he requested on negligence per se. He contends that defendants "were clearly negligent in the management of their rental property that was found in violation of many of Californias building, health and safety codes." According to plaintiff, the courts failure to give these instructions "is another abuse of discretion that caused actual prejudice warranting reversal, a new trial and JNOV."
Plaintiff once more waives his argument by making a conclusory argument, both as to any facts that might merit such an instruction and the law (see fn. 2, ante), fails to meet his burden of establishing error (see fn. 7, ante; see also Hyatt, supra, 79 Cal.App.3d at p. 335 and Fibreboard, supra, 227 Cal.App.2d at p. 718 [re jury instructions]) and, in any event, fails to establish prejudice. (See fn. 5, ante.)
B. The Courts Nuisance Instruction
Plaintiff argues that the court substituted its own jury instruction on nuisance for his own and that it "cites no authorities, is absent from the [clerks transcript], crafted at the last minute, and shows the actual prejudice that warrants reversal, a new trial, change of venue, and JNOV." This argument is also not a basis for any relief, as we indicate in part C directly below.
C. Modification of Plaintiffs Proposed CACI 300 and 1001
Plaintiff complains that the court "stripped most each of my allegations of wrongdoing from my CACI 300 and 1001." He argues that the courts doing so "is clearly erroneous actual prejudice that warrants reversal, a new trial."
Plaintiff arguably waives his arguments in part B and herein by not showing he made a proper objection below to these purported errors. (Doers, supra, 23 Cal.3d. at pp. 184-185, fn. 1.) Even considering the merits, he fails to establish in both sections that the courts instructions were in error. (See fn. 7; see also Hyatt, supra, 79 Cal.App.3d at p. 335 and Fibreboard, supra, 227 Cal.App.2d at p. 718 [re jury instructions].) At a minimum, he does not establish he suffered any prejudice as a result of these purported errors. (See fn. 5, ante.)
D. Illegality and Negligence Instructions
Plaintiff argues the court gave an erroneous instruction "without authority, and concocted at the last minute," defining what constitutes an illegal rental unit, as "one which has been determined to be such by final official decision or action of the city where the unit is located in accordance with the citys municipal code." Based on certain case law, the relevance of which he fails to sufficiently explain, and his interpretation of the facts, which he does not support by record citations, he asserts "[c]learly, five dwelling units on a single parcel, in an area zoned single-family since the 1930s, where no documentary evidence of legality was offered, and undisputed evidence of illegality, requires a ruling that the rental units are legal. Instead, the court said it would leave the question of legality up to the jury." He contends the courts action was an abuse of discretion that caused actual prejudice, "should never have been given and warrants reversal, a new trial and JNOV."
Plaintiff waives his arguments by his conclusory presentation, both as to any facts and law that might merit such an instruction (see fn. 2, ante). He also fails to meet his burden of establishing error (See fn. 7; see also Hyatt, supra, 79 Cal.App.3d at p. 335 and Fibreboard, supra, 227 Cal.App.2d at p. 718 [re jury instructions]) and, in any event, fails to establish prejudice. (See fn. 5, ante.)
E. Purported Admissions
Plaintiff next argues that the court, over his objection, instructed the jury improperly with CACI No. 210, telling them that certain purported admissions should not be considered because they were not answered. He further contends that the court would not grant him an opportunity to make a motion to have certain unexecuted admissions deemed admitted, though he was allowed to read them to the jury. According to plaintiff, the courts failure to "properly instruct the jury and place the unexecuted admissions into evidence are abuses of discretion that caused actual prejudice and warrants reversal, a new trial, a new venue, and JNOV."
Contrary to plaintiffs assertion that the court would not grant him the opportunity to make a motion, the court invited him to cite legal authority for the court to consider. Furthermore, his argument is not a basis for relief for the reasons stated in part F directly below.
F. Res Ipsa Loquitor Instruction
Plaintiff next argues that he was entitled to an instruction on the doctrine of res ipsa loquitor, citing Rimmele v. Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 129, which discusses the doctrines application in personal injury actions regarding accidents of a certain nature. He contends the courts failure to do so is "another abuse of discretion causing actual prejudice that warrants reversal, a new trial, change of venue, and JNOV."
Plaintiffs arguments in part E and herein are waived because he does not sufficiently discuss any underlying facts or the law that he cites. (See fn. 2, ante.) Even if we were to consider their merits, plaintiff does not demonstrate that the courts ruling was incorrect (see fn. 7, ante.) or, if it was, that he suffered prejudice. (See fn. 5, ante.)
G. CACI No. 1923
Plaintiff argues that the court should not have provided its instruction based on CACI No. 1923 regarding damages. After citing certain interactions he had with the court, he contends that "[e]very time I tried to reference Californias Civil Code, the court shut me down, including numerous cites included as authorities in my 69 timely proposed and refused [special jury instructions]"; that the written version of the instruction the judge gave to the jury cannot be determined from the record; and that "the judge could have written [plaintiff] is not entitled to any damages because he suffered no harm, a theory he alluded to three times . . . ." Plaintiff contends that "[t]his interchange, and the use of CACI 1923, are abuses of discretion that are clearly prejudicial causing actual prejudice that warrants reversal, a new trial and JNOV."
We have carefully reviewed the record citation provided by plaintiff, and there is no indication that the court instructed the jury that plaintiff suffered no harm. Furthermore, plaintiffs arguments are not a basis for relief for the reasons stated in part I, post.
H. CACI No. 3925
Plaintiff argues the courts modification of CACI No. 3925 to include a reference to parties, so as to instruct that "[t]he arguments of the attorneys or parties are not evidence of damages" and the courts statement that "[t]he argument, not the testimony, but the argument of the attorneys or a party are not evidence of damages" was "an abuse of discretion that is actual prejudice and warrants reversal, a new venue, and a new trial." Plaintiffs argument is not a basis for relief for the reasons stated in part I directly below.
I. Reference to Preponderance of the Evidence
Plaintiff argues the court committed prejudicial error warranting reversal and a new trial when it "used an instruction on preponderance of the evidence in the middle of its inserted claim for retaliatory eviction in a way that makes it appear that retaliatory eviction is the only claim in this case and then never used that instruction again."
Plaintiffs arguments in parts G, H, and herein are waived because he does not sufficiently discuss the legal grounds for his argument (see fn. 2, ante). Even if we were to consider the merits of his arguments, plaintiff does not meet his burden of establishing that the courts rulings were incorrect (see fn. 7, ante) or establish prejudice. (See fn. 5, ante.)
VI. Damages and Mitigation Instructions
Plaintiff contends the court told the jury he was not entitled to damages, and gave an erroneous instruction to the jury over his objection regarding mitigation. He argues these "abuses of discretion and clear errors caused actual prejudice warranting reversal, a new venue, and a new trial." We have carefully examined the record and find this contention that the court instructed that he was not entitled to damages is without merit. As for plaintiffs argument that the court erroneously instructed the jury about mitigation, this argument is waived because he does not sufficiently discuss its legal basis (see fn. 2, ante). Even if we were to consider its merits, plaintiff does not meet his burden of establishing that the courts instruction was incorrect (see fn. 7, ante), or establish prejudice. (See fn. 5, ante.)
VII. Plaintiffs Special Verdict Forms
Plaintiff next contends that the court, by refusing his nine special verdict forms, "stripped all of the factual allegations from each of [plaintiffs verdict forms], leaving the jury and me in the dark with regard as to what facts, if proven, would constitute verdicts in my favor," and that the court inserted key questions at the beginning of its verdict forms "that could only serve to further undermine the [jury instructions], further confusing and nullifying the jury.
Plaintiff outlines what he considers to be various errors with particular verdict forms. He contends that the verdict forms "fail to correspond to the [jury instructions] in the [clerks transcript]," and that certain substituted verdict forms, "although signed by the presiding juror, do not name the defendants." He further complains that "no approved [verdict forms] were available to the jury when they began their deliberations and none were available to me until I received them as part of post-trial record." Plaintiff concludes that "[t]hese abuses of discretion were clearly prejudicial causing actual prejudice and warrant reversal, a new trial, change of venue, and JNOV."
Once more, plaintiffs arguments are waived because he does not sufficiently discuss their legal bases. (See fn. 2, ante.) Even if we were to consider their merits, plaintiff does not meet his burden of establishing that the courts forms or related actions were incorrect. (See fn. 7, ante.) He does not establish that he made proper objections to the courts forms, (see Doers, supra, 23 Cal.3d. at pp. 184-185, fn. 1), and also inappropriately states facts about what purportedly was unavailable to him without reference to the record. (Oldenkott, supra, 14 Cal.App.3d at p. 207 & fn. 1.) In any event, he does not establish prejudice from the courts purported errors. (See fn. 5, ante.)
VIII. Defendants Late Submissions
Plaintiff contends defense counsel did not timely file or serve the trial documents mandated by the local rules, that this was "extraordinarily prejudicial," and that "[d]efense counsel should have been sanctioned and the trial postponed." He argues that "the courts decision to proceed to trial without anyone having the benefit of the required trial documents constitutes an abuse of discretion that caused actual prejudice that warrants reversal, a new trial, change of venue, and JNOV."
Plaintiff does not establish that he properly objected to his claimed late receipt of trial documents from defendants (Oldenkott, supra, 14 Cal.App.3d at p. 207 & fn. 1), that the courts rulings and actions related to the concerns he did raise below were incorrect (see fn. 7, ante), or that he was prejudiced by these purported errors. (See fn. 5, ante.)
IX. The Trial Courts Rulings on the Law of the Case
According to plaintiff, the trial court ruled that defendants purported failure to tell him "the rentals were built without the required building permits and were not inspected are not breaches of contract," and refused to instruct the jury that defendants "arbitrary cancellation of [the] right to sublet by one party without the consent of the other is a breach of contract," thereby failing to instruct the jury properly. He also contends that the trial court indicated it would not instruct the jury on his theories of breach of contract, and that the court "did not rule on many of the other issues that were matters of law such as negligence per se, violation of stop work orders, unpermitted construction, a landlords basic duty of care, the violation of zoning ordinances, and failure to inspect." He argues the courts failures "constitute an abuse of discretion that caused actual prejudice that warrants reversal, a new trial, and JNOV."
Once more, plaintiff makes a series of conclusory arguments without providing sufficient legal authority, thereby waiving these arguments. (See fn. 2, ante.)
He also does not sufficiently explain why the courts instructions as provided were not proper (see fn. 7, ante), or how he was prejudiced in light of the courts instructions. (See fn. 5, ante.)
X. Plaintiffs Contentions About Unheard Motions
Plaintiff contends that "[t]hroughout the trial, whenever I tried to make a motion, such as to have admissions deemed admitted, the judge either ignored me, cut me off, or said wed get to it later," and that they never did. He contends he was unable to make various motions, and that the courts actions constituted "an abuse of discretion that caused actual prejudice that warrants reversal, a new trial, and JNOV." We have carefully examined the record citations made by plaintiff, and find his contentions about the courts conduct without merit. In any event, plaintiff does not establish that he was prejudiced by these purported errors. (See fn. 5, ante.)
XI. Plaintiffs Closing Argument
Plaintiff next contends the trial court denied him an opportunity to adjust his closing argument to the law of the case by refusing him a requested break to review the courts jury instructions and verdict forms before he made his closing argument, which he contends was "an abuse of discretion that caused actual prejudice that warrants reversal, a new trial, and JNOV." The record does not disclose that plaintiff properly objected to proceeding. (Oldenkott, supra, 14 Cal.App.3d at p. 207 & fn. 1.) He does not establish that court was incorrect to proceed under the circumstances (see fn. 7, ante), or that he was prejudiced by the courts actions. (See fn. 5, ante.)
XII. Other Purported Abuses by the Court
According to plaintiff, the court also committed several other "grievous abuses" and allowed certain "unsanctioned episodes" such that "[t]hroughout our case, our judge served as lead attorney for [defendants]." Plaintiff contends [t]hese many abuses of discretion show clear prejudice and warrant reversal, a new venue, and new trial." We have reviewed the record and find these arguments, which include an inexcusable personal attack on the integrity of the trial court that has no place before this court, lack merit.
XIII. Declaratory and/or Injunctive Relief
Plaintiff next contends that the trial court ignored his claim for declaratory and/or injunctive relief as requested in his complaint, and then "summarily shut down the trial as I was about to make motions dealing with this and other matters." Plaintiff implies the court did so because of the judges friendship with one of the potential witnesses. He contends the courts "[f]ailure to rule on Count 10 is an abuse of discretion that caused actual prejudice and warrants reversal and a new trial."
Plaintiff waives his argument by failing to cite to any meaningful authority in support of it (see fn. 2, ante), fails to meet his burden of establishing that the court erred (see fn. 7, ante), fails to show that he ever objected to the trial courts purported error (see Doers, supra, 23 Cal.3d. at pp. 184-185, fn. 1.), or that he was prejudiced by the absence of a ruling. (See fn. 5, ante.)
XIV. Retaliatory Eviction
Plaintiff next contends that the trial court placed so much emphasis on a cause of action for retaliatory eviction that it impermissibly shifted emphasis away from his fraud, nuisance, and negligence allegations, confusing the jury. He contends that "[t]he insertion of an unauthorized [special jury instruction] and [verdict finding] covering a non-existant cause of action is an abuse of discretion that caused actual prejudice and warrants reversal, a new venue, and a new trial." We have reviewed the record and find this argument is without merit. Plaintiff also fails to show prejudice. (See fn. 5, ante.)
XV. Defense Counsels Closing Argument
According to plaintiff, defense counsel made inflammatory statements during his closing argument "over my objection," which plaintiff contends were "inherently prejudicial and an abuse of discretion," that also merit "reversal, JNOV and a new trial."
We have examined the record to evaluate plaintiffs contentions. As for defense counsels statements that "there hasnt been a single corroborating witness to say that this place is unsafe," that plaintiff did not make any real profits from his self-published books, that defendants simply terminated a former tenants right to sublet and merely revoked permission previously given to sublet, plaintiff did not properly object to them. (See Doers, supra, 23 Cal.3d. at pp. 184-185, fn. 1.) In any event, these statements were within "the wide latitude" afforded to counsel to argue his view of the evidence, and the conclusions to be drawn therefrom. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795.)
Plaintiff also complains about defense counsel stating, about his "campaign" against defendant, "Whats going on here? Its unbelievable. And I have to go so far as to say its evil. I sense an evil thing going on here against some really kind and nice people."
In our view, counsels reference to "evil" may well have gone beyond the wide latitude afforded to counsel, and into the realm of inflammatory, personal attack. We seriously doubt defendants argument that these comments were not misconduct because they were "epithets . . . reasonably warranted by the evidence." (People v. McDermott (2002) 28 Cal.4th 946, 1002.) Nonetheless, plaintiff did not make a proper objection below, merely stating to the trial court, "This is unbelievable. I couldnt say anything about Mr. Rolph, but he can call me evil. Thats wonderful." Therefore, he arguably has waived this claim of error. (See Doers, supra, 23 Cal.3d. at pp. 184-185, fn. 1.) Regardless, he does not cite any legal authority in support of his argument. Therefore, we disregard it. (See fn. 2, ante.) Even if we were to consider its merits, plaintiff fails to show how he was prejudiced by these comments. (See fn. 5, ante.)
DISPOSITION
The trial court judgment is affirmed. Costs are awarded to the Morphews.
We concur:
Kline, P.J.
Haerle, J.