Zadok v. Tarzana Springs CA2/7 ( 2016 )

Filed 2/11/16 Zadok v. Tarzana Springs CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DANNY ZADOK, B252781
Plaintiff, Cross-defendant and (Los Angeles County
Appellant, Super. Ct. No. BC474773)
v.
TARZANA SPRINGS, LLC et al.,
Defendants, Cross-defendants and
Respondents;
TOP NOTCH TOWING, INC.,
Defendant and Cross-complainant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald
M. Sohigian, Judge. Affirmed in part and reversed in part.
Law Office of Rafi Moghadam and Rafi Moghadam for Plaintiff, Cross-defendant
and Appellant.
Early, Maslach & Hartsuyker, Ronald R. Heard and B. Eric Nelson for
Defendants, Cross-defendants and Respondents.
_______________________
INTRODUCTION
This case involves a landlord-tenant dispute that arose when the landlord towed
the tenant’s old and inoperable car from the premises because of alleged lease violations.
The towing company sold the car for its salvage value of $450 when the tenant failed to
pick up his car and pay the towing and storage fees.
The tenant, Danny Zadok, sued the landlord, Tarzana Springs, LLC, the property
manager, G & K Management Co., Inc. (G&K), and the towing company, Top Notch
Towing, Inc. (TNT), alleging breach of contract, negligence, and conversion. TNT filed
a cross-complaint seeking indemnification from Tarzana Springs and G&K and the
recovery of its towing and storage fees from Zadok. After a bench trial, the trial court
found that Tarzana Springs had the contractual right to tow the car and that Zadok owed
TNT $2,350 for towing and storage fees. The court entered judgment accordingly.
Zadok appeals from that judgment, raising numerous issues, many of which were
not raised in the trial court. We will address the merits of only those issues that Zadok
arguably presented below, including his challenge to: (1) the trial court’s denial of his
request for a continuance; (2) the trial court’s alleged failure to protect him from being
misled about his counsel’s abandonment; (3) the trial court’s evidentiary rulings; and
(4) the trial court’s award of affirmative relief to TNT, a corporation not represented at
trial. We affirm the judgment in favor of all defendants on Zadok’s complaint and
reverse the judgment against Zadok on TNT’s cross-complaint.
FACTUAL BACKGROUND
In 1994, Zadok became a tenant at Tarzana Springs, an apartment complex
managed by G&K. Over the years, he renewed his lease. On May 9, 2008, Zadok signed
the lease at issue,1 which contains an addendum entitled “Addendum to Residential Lease
1 Above his signature, Zadok wrote: “compar[e] to original 1/22/94.” He claimed
that he was “forced to sign” the Lease, and that his notation indicated his agreement to
the terms that were “consistent with the original contract.”
2
Parking Agreement” (the Lease). Under the Lease, Zadok was assigned two parking
spaces for his two vehicles—a 1986 Chevrolet Caprice and a 2001 Ford Expedition.
The Lease contains numerous provisions that restrict parking at Tarzana Springs
and authorize the landlord to tow away vehicles parked in violation of those restrictions.
One provision states that an assigned space must be used for parking of a vehicle “in
good working order” with current registration and must not be used for storage. Another
provision authorizes towing when a tenant fails to move a vehicle for facility
maintenance after receiving prior notice.
On December 16, 2010, Tarzana Springs, acting through G&K, directed TNT to
tow Zadok’s Caprice from its assigned space. Steven Ray Garcia, TNT’s owner, was the
person who towed the Caprice. The car was towed, according to Tarzana Springs,
because Zadok did not move his car after being notified that the parking area would be
steam cleaned, and because Zadok otherwise violated the Lease by using the parking
space to store an inoperable and unregistered vehicle.
On December 17, 2010, Zadok noticed that his car was missing from his assigned
space. After learning from TNT that Tarzana Springs had the car towed, Zadok spoke
with the property manager who purportedly told him that the towing was a mistake, and
that TNT agreed to tow his car back to him. Garcia denied promising to tow the car back
to Zadok, and testified that Zadok was unwilling to come to the tow yard and pay to pick
up his car. As a result, Garcia contacted a company, Ritter Lien Sales, Inc., to dispose of
the car through a lien sale.
On January 10, 2011, Ritter Lien Sales notified Zadok of its intent to sell the
Caprice to recover a towing fee of $109.50 and storage fee of $871, unless Zadok paid
those fees within two weeks. In response, Zadok signed the part of the notice stating that
he contested the claim and opposed the sale. Zadok, however, did not send a copy of his
opposition to the Department of Motor Vehicles as required to stop the sale. Garcia thus
proceeded with the sale. At the sale, no one bid on the car, which was in such “poor
shape [that] not even [Garcia’s] regular junk yard guys” wanted it. Garcia eventually
sold the car for $450, its “junk value.” The car had no retail value.
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PROCEDURAL BACKGROUND
A. THE PRETRIAL PROCEEDINGS
On December 7, 2011, Zadok filed this lawsuit against Tarzana Springs, G&K,
and TNT. In the first amended complaint, he asserts claims for breach of contract,
negligence, and conversion and seeks $10,000 for the Caprice and $18,046 for the tools
inside it.2 TNT filed a cross-complaint against Tarzana Springs and G&K for indemnity
and against Zadok for breach of contract.
On May 31, 2012, the court conducted a case management conference and set
several dates. The case was referred to mediation with a post-mediation conference on
January 13, 2013. A final status conference was set for May 17, 2013, and the trial was
scheduled for June 3, 2013.
On May 16, 2013, the day before the final status conference, Zadok’s counsel,
George J. Shalhoub, filed a notice of settlement, stating that a request for dismissal would
be filed within 45 days. Because of that filing, the court vacated the previously
scheduled dates, including the June trial date. The court then set a hearing on July 16,
2013 for an “Order to Show Cause Re Dismissal” (OSC).
On June 28, 2013, Shalhoub filed a substitution of attorney, signed by Shalhoub
and Zadok, indicating that Zadok would be representing himself. Two weeks later, on
July 11, 2013, Zadok filed an ex parte application seeking to continue the July 16 OSC
hearing. In his supporting declaration, he informed the court that he decided not “to
settle this case for the amounts offered by the defendants” (i.e., $3,000) and that he was
“now representing [himself] in this case.” He requested a continuance because he would
be observing the Jewish holiday of Tisha B’Av on July 15 and July 16. Over the
objection of Tarzana Springs and G&K, the court granted the continuance until August
15, 2013. Zadok advised the court at the July 11 hearing that Shalhoub and another
attorney likely would represent him in future proceedings.
2 The only claim asserted against TNT is for conversion.
4
On August 15, 2013, the court scheduled the trial for August 22. Zadok objected.
Although he appeared without counsel and had not filed another substitution form, Zadok
stated that his lawyer, Shalhoub, was on vacation. Zadok also informed the court that he
would need a lengthy continuance because of the upcoming holidays. He stated that he
had to prepare for the Jewish New Year, Yom Kippur, and Sukkot and indicated that he
would need a “minimum of two months after the holidays.” The court denied Zadok’s
request to continue the trial. The court set the trial for August 22.
On August 22, 2013, the parties appeared for trial. The court asked for a time
estimate for the trial. Zadok estimated that the trial would take less than three hours. The
court then asked Zadok whether he wanted to start the trial that day or trail it to the next,
because Zadok had mentioned that he needed time to prepare for the Jewish holidays.
The court explained that it was trying its best to accommodate Zadok, stating: “And I
want to get your case finished so that you can attend to your—I know you had some
things to do on another one of the Jewish holidays . . . , and I’m trying as hard as I can so
you can get all that in so you on the one hand can have your day in court and on the other
hand do your religious obligation . . . .” Zadok responded: “I want to finish today. I
mean this is three years already.”
B. THE TRIAL PROCEEDINGS
The bench trial began on August 23 and continued on August 26 and 27. Because
Zadok raises numerous issues not raised below, we will summarize the positions the
parties presented to the trial court.
According to defendants, G&K authorized the towing when Zadok failed to move
his car after being notified that the parking area had to be cleared for steam cleaning. In
addition, the towing was justified because Zadok violated the terms of the Lease, which
precluded him from parking an unregistered and inoperable vehicle in his assigned space.
Garcia testified that the Caprice was in “very bad shape” with two flat, shredded tires that
looked like they “had rotted out.” In addition, the car had no battery, a missing trunk
lock, a big puddle of fluid underneath it, and a lot of trash inside, including magazines,
newspapers, rags, and rat feces. There were no tools or anything of value in the car.
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After the car was towed, Zadok refused to pay the towing and storage fees, prompting
TNT to initiate a lien sale. Eventually, the car was sold to a salvage yard for $450,
because no one would buy it at the auction.
Zadok gave a very different version of the events. He testified that he bought the
Caprice used in 1988 for $1,800 or $2,500, and that the car was a “classic” in 2010
“worth between $7,000-$12,000.” “[T]he car was in . . . excellent condition” and in high
demand by filmmakers and collectors. The photographs of the car being towed did not
depict the condition of the car before it was towed: the car had “four new tires”— none
of which was flat; and it did not have all the damage shown. The damage to his car,
including the tires, was the “result of planned vandalism by [TNT].” TNT’s “pictures
were taken days after the actual towing and in a different place. It seems as if it was fully
reenacted.” Zadok did admit, though, that the car was last registered to operate on the
roads in 2006.
Zadok acknowledged receiving notice of the steam cleaning, but claimed that the
notice occurred months before the towing and that he moved his car as directed. Zadok
argued that the towing had nothing to do with the steam cleaning or the use of his parking
spot as a storage space for a dilapidated car. Rather, “this whole matter is one big
conspiracy” perpetrated by individuals who “lie[d] flagrantly in court.” Tarzana Springs
and G&K had “stolen” his car because “they don’t like [him].” “Anyone can see that this
was not an innocent mistake, but rather a planned scheme to give [him] trouble.” After
stealing his car, defendants prevented him from getting it back as part of a
“premeditated” plan that was accomplished by “excuses and lies and acting by force.”
Zadok likened the defendants to “thieves or terrorists” who commit “extortion.” He also
accused them of submitting falsified evidence to the court, claiming that the Lease
addendum was “a forged document,” even though he previously admitted the
genuineness of the document in response to a request for admission.
Zadok claimed that defendants also stole the valuable tools inside his car. He
argued that “[a]n assumption could be made that when [TNT] saw that the car was a
classic and had expensive tools in it, they decided to keep it.” Zadok listed more than
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150 items that were in his car when it was towed, including but not limited to: a 60-pound
jack hammer, six shovels and handles, six narrow shovels, six 2-man cross-cut saws, six
picks, six garden hoes, six fork hoes with handles, six hammers, four crowbars, two
chainsaws, 200 feet of water hoses, 100 copper pipe fittings, 20 copper shut-off valves, a
wood planer, and tree climbing equipment with 150 feet of rope. Zadok claimed that he
was entitled to $18,046 for the value of the “very expensive professional tools” and
$78,500 for the loss of their use.
C. THE TRIAL COURT’S DECISION
After hearing closing arguments, the trial court tentatively ruled in favor of
defendants and subsequently issued a statement of decision consistent with its tentative
ruling. The court concluded that the evidence “richly supported” the conclusion that
there was no breach of the Lease, because that agreement authorized Tarzana Springs to
tow Zadok’s car without notice for storing in his parking space an inoperable vehicle that
did not have current registration. The court also found that Zadok failed to move his car
for steam cleaning after being notified to do so. When G&K had the car towed, it did so
“in a reasonable, appropriate and proper manner.”
The court then rejected Zadok’s remaining claims. The court concluded that
Zadok failed to prove any negligent conduct or conversion. In addressing the conversion
claim, the court found ample evidence “that there were no tools in the subject vehicle as
alleged by [Zadok]” and that the fair market value of the car when towed was no more
than $450. “The car was in [an] extremely dilapidated condition,” as shown in the
defense photographs, and “had no value beyond that of salvage value.” On the cross-
complaint, the court found in favor of TNT and awarded it $2,350 for towing and storage
fees.
On September 30, 2013, the trial court entered judgment. Zadok timely filed his
notice of appeal on November 25, 2013.
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DISCUSSION
A. THE DENIAL OF A TRIAL CONTINUANCE
Relying on Vann v. Shilleh (1975) 54 Cal. App. 3d 192, Zadok contends that the
trial court committed reversible error in denying him a continuance after his attorney
allegedly abandoned him. He further contends that the trial court violated its duty to
protect him from being abandoned or misled. Neither contention has merit.
1. The Trial Court Did Not Abuse Its Discretion in Denying a Continuance
Trial continuances are “disfavored” and may be granted “only on an affirmative
showing of good cause.” (Cal. Rules of Court, rule 3.1332(c).) In deciding whether to
grant a continuance, a trial court must consider each request “on its own merits.” (Ibid.)
In doing so, the court must consider all relevant circumstances, including “the proximity
of the trial date, whether there were previous trial continuances, the length of the
requested continuance, and the prejudice that parties or witnesses would suffer as a result
of the continuance. [Citation.]” (Thurman v. Bayshore Transit Management, Inc. (2012)
203 Cal. App. 4th 1112, 1126.) We will uphold the trial court’s decision absent “‘clear
abuse . . . appearing in the record. [Citation.]’” (Ibid.) There was no clear abuse here.
On May 17, 2013, the trial court vacated the June trial date because Zadok filed a
notice of settlement. At the next proceeding on July 11, the trial court granted Zadok’s
request for a continuance for religious accommodation. On August 15, the trial court set
trial on August 22 over Zadok’s objection. By that point, the case had been pending for
more than 18 months, the prior trial date had been vacated because of the settlement
notification, and Zadok had almost two months to obtain new counsel or to prepare for
trial of a case that he described as a “simple” one that would take less than three hours to
try. Under these circumstances, the trial court’s decision to deny a lengthy continuance
request was not an abuse of discretion.
Moreover, Zadok was sending mixed signals that reasonably caused the trial court
to be skeptical about his intentions. As the trial court observed, Zadok complained that it
took too long to get to trial and “criticized . . . the court system and the lawyer on the
other side because of the consumption of time.” Yet Zadok repeatedly asked for
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continuances to observe the Jewish holidays. The court granted one request on July 11,
and then Zadok requested several more months when he appeared before the court on
August 15. When the trial court told Zadok that he was “pulling in all directions at once”
and taking “inconsistent positions,” Zadok responded that the court was “a hundred
percent right.”3
Zadok’s reliance on Vann—which he claims is “on all fours” with his case—is
misplaced. There the trial court refused to continue the trial after granting defense
counsel’s motion to withdraw from the case on the Friday before the Monday set for trial.
On Friday, the trial court permitted the attorney to withdraw because the defendant was
dilatory in withdrawing from a settlement agreement. (Vann v. Shilleh, supra, 54
Cal.App.3d at p. 195.) On Monday, the trial court rejected both parties’ request for a
continuance. The trial court refused to continue the case because it “‘operates under the
policy of no continuance’” to avoid having its calendar become a “‘horrible mess.’” (Id.
at pp. 195-196.) The court explained that its calendar was “‘in excellent condition due to
the fact that [it has taken] a hard line on these continuances.’” (Id. at p. 196.)
In reversing, the court concluded that the trial judge did not exercise informed
judgment, but instead denied the continuance “based solely on a policy against
continuances, without considering whether the case before it justified a departure from
3 The court had this colloquy on the first day of trial on August 23, 2013, after
concluding the Friday session early to accommodate Zadok’s religious observance.
When the court ordered the parties to return on Monday, Zadok stated: “I cannot come,
your Honor. Try to understand me. This is a very, very tremendous religious holiday.”
This prompted the court to review the procedural history of the case which showed that
Zadok continued to make conflicting demands. As the trial court summarized: “[O]n the
one hand you want to have the case dealt with rapidly. On the other hand you cause
delays by stating through your attorney that the case has been settled. [Then] you want
me to postpone a hearing on an order to show cause. [Next,] you want me to get along
with it because you are dissatisfied with the extended life of the case. Then you say I’ll
finish [the trial] in one hour. Then you don’t finish in one hour. . . . Then you say you
want to stop at 3:30 [on Friday]. I say all right. Then you say . . . I can’t come here on
Monday on the 26th.”
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that salutary policy.” (Id. at p. 199.) While a party is not entitled to a continuance as a
matter of right when it seeks to change counsel on the eve of trial, “a necessary
substitution of counsel just prior to trial may justify the granting of a continuance, in
some cases.” (Id. at p. 196.) The court also faulted defense counsel for acting
unethically by withdrawing “on the very eve of trial” because he was “irked to see a
settlement that he had negotiated fail of consummation.” (Id. at p. 197.) Though aware
of these facts, the trial judge did nothing to protect the defendant from his counsel’s
“improper abandonment” but instead granted counsel’s motion to withdraw. (Ibid.)
The facts of this case are distinguishable. The trial court did not deny the trial
continuance in adherence to a policy, but rather based its decision on an assessment of the
facts—which differ markedly from those in Vann. Here, the trial court did not grant
Zadok’s counsel’s motion to withdraw right before trial and then deny a continuance
request. In fact, there was no motion to withdraw, as Zadok consented to the substitution;
and the substitution was not filed on the eve of trial, but almost two months prior. Zadok
therefore had almost two months to find counsel or prepare for trial himself.
We also reject Zadok’s argument that the trial court abused its discretion by
denying a continuance based upon a misperception of the facts and the law. He claims
that the trial court factually erred in denying the continuance based on its erroneous belief
that “everything had already been scheduled with the jury.” This statement comes from
Zadok’s declaration that became the settled statement for the August 15, 2013 hearing.
In that declaration, Zadok acknowledged that the court used “terminology [he] did not
understand, and the clerk handed out some documents.” The clerk handed out the trial
order entitled: “Order Re Non-Jury Trial Setting and Trial Preparation; Advisement Re
Pro. Per. Status.” It is clear from that “non-jury trial” order that the court knew that it
was a non-jury trial.
Zadok next claims that the trial court legally erred in denying the continuance
based on its erroneous “belief that a party’s religious constraints were not grounds for a
continuance.” Zadok cites the principle that “[t]he matters germane to the court’s ruling
[on a motion for a continuance] range all the way from the health of witnesses to the true
10
significance of religious holidays.” (Friedman v. Knecht (1967) 248 Cal. App. 2d 455,
461.) He then seizes on the trial court’s statements that “observance of the Jewish
holidays . . . is not a basis under law for postponement of any proceedings,” and that it
was “not required to accommodate any of them as a matter of law.”
Zadok reads too much into these statements. Based on the trial court’s actions, it
was clearly aware of its ability to consider a party’s religious obligations in deciding
whether to grant a continuance. The trial court “recognize[d] that [Zadok’s observance of
the Jewish holidays] is important” and accommodated Zadok’s requests on those very
grounds, continuing the July 16 hearing for Tisha B’Av, avoiding scheduling the trial
during the Jewish holidays, and ending trial early for the Sabbath. We cannot say that the
trial court abused its discretion in refusing to postpone a short and simple trial for several
months to allow Zadok to prepare for the Jewish holidays.
2. The Trial Court Did Not Violate Any Duty to Protect Zadok
Zadok next argues that the trial court failed to protect him from being abandoned
by his counsel and being misled.
In advancing this argument, Zadok relies on a general statement about a trial
court’s obligation “to see that a miscarriage of justice does not occur through
inadvertence” on the part of a self-represented litigant. (Taylor v. Bell (1971) 21
Cal. App. 3d 1002, 1008.) The Taylor court went on to explain, however, that despite this
general duty, a trial court “is not required to act as counsel for that party.” (Id. at
p. 1008.) “A trial judge presiding over a case initiated by [a] . . . self-represented plaintiff
. . . faces a significant challenge in balancing his or her obligations to facilitate the ability
of the self-represented litigant to be fairly heard, on the one hand, and to refrain from
assuming the role of advocate, on the other. Canon 3B(8) of the California Code of
Judicial Ethics requires a judge to ‘dispose of all judicial matters fairly, promptly, and
efficiently’ and to ‘manage the courtroom in a manner that provides all litigants the
opportunity to have their matters fairly adjudicated in accordance with the law.’ The
Advisory Committee Commentary to this canon provides, in part, ‘The obligation of a
judge to dispose of matters promptly and efficiently must not take precedence over the
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judge’s obligation to dispose of the matters fairly and with patience. For example, when
a litigant is self-represented, a judge has the discretion to take reasonable steps,
appropriate under the circumstances and consistent with the law and the canons, to enable
the litigant to be heard.’ (See ABA Model Code of Jud. Conduct, canon 2, rule 2.2, com.
[4] [‘[i]t is not a violation of the Rule [regarding impartiality and fairness] for a judge to
make reasonable accommodations to ensure pro se litigants the opportunity to have their
matters fairly heard’].) The canons and commentary thus provide a path to ensure a self-
represented litigant can be fairly heard on the merits while the court maintains its
impartiality and does not assume (or appear to assume) the role of advocate or partisan.
(See Cal. Code Jud. Ethics, canon 3 [‘[a] judge shall perform the duties of judicial office
impartially, competently, and diligently’].)” (Holloway v. Quetel (2015) 242 Cal. App. 4th
1425, 1433-1434.) The court did not violate its obligations here.
First, Zadok claims that the trial court failed to protect him from being misled
about whether he would be representing himself beyond the ex parte hearing on July 11,
2013, when he sought and obtained a continuance. At that hearing, Zadok stated that he
did not believe he could represent himself because he is not an attorney and does not
speak English well, and that Shalhoub and another attorney “[m]ost likely” would
represent him. Zadok claims that the trial court had a duty, in light of this statement, to
explore the “obvious discrepancy between [his] solo appearance in court and his oral
comments . . . that he was not acting as his own counsel. . . . A few questions from the
judge would have revealed an improper abandonment by [his] trial counsel.”
We fail to see an “obvious discrepancy” that required further inquiry to avoid a
miscarriage of justice. Zadok informed the court that he did not intend to represent
himself in the future, but instead expected that Shalhoub and another attorney “[m]ost
likely” would represent him. This expression of future expectation is hardly inconsistent
with his self-represented status at the hearing. Zadok did not say anything to suggest that
he believed that Shalhoub was still representing him other than for this one hearing. On
the contrary, he expressed a likelihood—not a certainty—of future representation. The
trial court was not obligated to inquire further in these circumstances.
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Second, Zadok contends that the Judicial Council’s substitution of attorney form is
so confusing that it deprived him of his right to a fair trial by failing to protect him from
being inadvertently misled. The form purportedly misled him to believe that the
substitution was for the July 11 hearing only, because it did not disclose that the
substitution was permanent.
The Judicial Council form is not confusing. There is nothing in the form—or in
the concept of “substitution of attorney”—that suggests anything other than permanency.
Indeed, the form refers to “former” and “new” legal representatives, terms that convey a
more permanent status. The form that Zadok signed lists Shalhoub as his “[f]ormer legal
representative” and identifies himself as his “[n]ew legal representative.”
Nor is there anything in the record suggesting that Zadok was genuinely confused. In his
declaration for the July 11th hearing, he made clear that he was representing himself in
the case (and not simply for a single proceeding): “I . . . filed a substitution of attorney
form with the court. I am now representing myself in this case.” And when asked about
self-representation at the hearing, Zadok did not say that Shalhoub was still his lawyer
but only that he likely would be in the future. On this record, we cannot find that Zadok
was misled.4
Third, Zadok asserts that the duty to protect self-represented litigants from being
misled required the trial court to timely advise him that he would be treated just like an
attorney. Assuming that such an advisal is required in civil cases, the trial court advised
Zadok about self-representation at the August 15, 2013 hearing in preparation for trial.
4 The record would appear to support a finding of manipulation rather than
confusion. Zadok offered conflicting information about his intentions. Although he
consented to Shalhoub’s withdrawal from the case, he requested a trial continuance in
part because “[his] attorney,” Shalhoub, was on vacation. Yet Shalhoub had not
substituted back into the case or provided notice of any intent to do so. Then after the
court denied the lengthy continuance request for religious preparations, Zadok sought
more time to find another lawyer—despite having claimed that Shalhoub was
representing him and would soon return from vacation. As the trial court would later
observe, Zadok appeared to be “pulling in all directions at once.”
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This was the next appearance after the July 11 proceeding when he first appeared
representing himself. We cannot say the advisement was untimely, and Zadok has not
shown that any delay was prejudicial. (Jade Fashion & Co., Inc. v. Harkham Industries,
Inc. (2014) 229 Cal. App. 4th 635, 655 [no reversal absent showing of prejudice].)
B. THE INTERPRETATION OF THE LEASE
The Lease authorizes the towing of any “improperly parked” vehicle without
notice. Zadok contends that his car was not “improperly parked” as described in the
Lease.
In construing a contract, a court must determine the mutual intent of the parties at
the time of contracting, using an objective standard. (Civ. Code, § 1636; see Ramos v.
Westlake Services LLC (2015) 242 Cal. App. 4th 674, 685.) Where, as here, “a contract is
reduced to writing, the intention of the parties is to be ascertained from the writing alone,
if possible.” (Civ. Code, § 1639; see also id. at § 1638 [“The language of a contract is to
govern its interpretation, if the language is clear and explicit, and does not involve an
absurdity.”].) A court need not look beyond the written instrument if the contract
language is clear and contains no patent or latent ambiguity. (Dore v. Arnold Worldwide,
Inc. (2006) 39 Cal. 4th 384, 391.) While a court should consider competent extrinsic
evidence to determine the existence of any latent ambiguity, extrinsic evidence that
contradicts the express terms of a written contract should be disregarded. (Wagner v.
Columbia Pictures Industries, Inc. (2007) 146 Cal. App. 4th 586, 592.)
Paragraph 2 of the Lease addendum provides: “A current vehicle registration, in
the name of the Lessee, is required for any vehicle using the assigned parking space.
[¶] . . . [¶] Lessee acknowledges enforcement of these rules is by towing, and storage.
[¶] Vehicles improperly parked on the property (with or without a valid permit) will be
towed immediately without prior warning notice. [¶] . . . [¶] If the registered owner
does not timely claim the vehicle, it may be sold pursuant to California State lien sale
laws. [¶] Vehicle owner(s) are responsible for the cost of towing, storage, and lien sale
fees, and will hold the property owner, employees and authorized towing company
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harmless from same.” Paragraph 2 then lists nine restrictions described in the following
lettered subparagraphs:
(a) “[v]isitor designated parking spaces are reserved for visitors”;
(b) “[l]essee is not allowed to park in visitor, future resident, office,
employee or other restricted areas or spaces”;
(c) “[v]ehicle (including motorcycles) repairs may not be performed on
premises” and “[f]lat tires must be repaired within 24 hours”;
(d) “[v]ehicle washing is not permitted on the premises at any time”;
(e) “[v]ehicles may not be double parked, parked in non-approved areas
or fire lanes”;
(f) “[v]ehicle displaying expired, forged, invalid or voided permit is not
allowed to park on the property”;
(g) “[n]o trailer, boat, or vehicle other that [sic] passenger cars or
motorcycles may be parked in the parking areas without the written
consent of management”;
(h) “[v]ehicles are to be parked ‘Head-in’ only”; and
(i) “[s]peed limit within the community is 5 mph or less.”
Zadok argues that a vehicle is “improperly parked” only if it falls with the “five
instances of improper parking” contained within subparagraphs (a), (b), (e), (g), and (h).
He relies on the principle of ejusdem generis, which provides that “where specific words
follow general words in a contract, ‘the general words are construed to embrace only
things similar in nature to those enumerated by the specific words.’ [Citations.]”
(Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027, 1045, fn. omitted.) But
even if we were to interpret paragraph 2 as containing an exhaustive list of towing
violations, Zadok would still not prevail. The Caprice was “improperly parked” within
the meaning of that paragraph because it violated the first provision of paragraph 2 that
“[a] current vehicle registration, in the name of the Lessee, is required for any vehicle
using the assigned parking space.” This requirement is consistent with the admonition
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elsewhere in the Lease that “[p]arking spaces . . . are for operable vehicles only, not for
storage of personal property.”
Moreover, Zadok’s argument does not address a separate ground for the trial
court’s finding against him. The trial court also concluded that the Caprice could be
towed because Zadok did not move it after being notified that the parking area would be
steam cleaned. Paragraph 4 of the Lease addendum provides that “[v]ehicles may be
towed pursuant to prior warning notice by management for construction or maintenance
affecting structures, carport, and parking or driveway areas.” The trial court found that
G&K notified Zadok that he had to move the Caprice so that it could clean the parking
area, and that Zadok failed to do so. Under the Lease, G&K could have the car towed in
this circumstance.5
C. THE COURT’S EVIDENTIARY RULINGS
Zadok challenges a number of the trial court’s evidentiary rulings. None of the
challenges has merit.
1. Exclusion of the Original Lease
Zadok contends that the trial court incorrectly excluded the introduction of the
original lease agreement between the parties (i.e., the 1994 lease). Because Zadok never
properly moved to admit the original lease, the contention is meritless.
Before a trial court can be said to have excluded evidence, a party must first move
for its admission. (People v. Thuss (2003) 107 Cal. App. 4th 221, 233.) Zadok did not do
so here. Recognizing this omission, Zadok suggests that he tried to introduce the
document, but the trial court prevented him from doing so. This suggestion is based on a
distorted reading of the record and a misunderstanding of the rules of evidence. Zadok
points to his response to a question on direct examination in the defense case, where he
5 Our conclusion that the Caprice was towed lawfully under the express provisions
of the Lease disposes of Zadok’s arguments that Tarzana Springs violated an implied
contractual duty to inquire whether Zadok intended to abandon the car before towing it
and that Tarzana Springs acted negligently in failing to make such an inquiry.
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was being asked about the Lease and responded that he was “not interested” in that
document or in G&K’s “tricks” and instead wanted to discuss the original lease. Of
course, Zadok had no right to ignore the questions asked and to introduce evidence
during defense counsel’s examination of him. The trial court’s ruling, striking Zadok’s
response as nonresponsive, was correct.6 (Evid. Code, § 766; Collins v. Navistar, Inc.
(2013) 214 Cal. App. 4th 1486, 1518.)
If Zadok wished to introduce the original lease, he should have attempted to do so
when he testified in his case, or during his examination of a witness who could properly
introduce the evidence in the defense case. It is not enough to bring the “original lease to
the trial court’s attention” while being examined by his adversary or to present the
original lease as part of a packet of documents for “the trial judge [to] review” before
trial.7 Having failed to properly introduce this evidence, there is no adverse ruling for us
to review. (People v. Thuss, supra, 107 Cal.App.4th at p. 233 [“Because defendant’s trial
counsel never offered the [documents] in evidence, and received no ruling on their
admissibility, there is no ruling for this court to review, and defendant’s contention of
error may not be sustained.”].)
2. Failure to Rule on the Admissibility of the Tool Receipts
Zadok next argues that the trial court committed prejudicial error by not ruling on
the admissibility of receipts for the tools he claimed were stolen from his car. He claims
that he presented these receipts in the same “packet of evidence” that contained the
original lease, and that the trial court implied that it would rule on them. As discussed
above, this is not a proper way to introduce evidence. Indeed, the court could not have
admitted the evidence without testimony, or a stipulation, that provided an adequate
6 Zadok’s testimony was frequently nonresponsive and argumentative, causing the
court to grant numerous motions to strike.
7 While the trial court could have inquired as to Zadok’s intentions, or clarified the
necessary procedures, under the circumstances presented in this case we see no abuse of
discretion in failing to do so.
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foundation. (See, e.g., Evid. Code, § 1401 [authentication required].) Zadok had every
opportunity to submit the receipts during his testimony in his case and cannot blame the
trial court for his omission.
3. Admission of the Carfax Printout
The trial court found that the Caprice was worth no more than $450 on the day it
was towed. Zadok contends that there was insufficient evidence to support that valuation
because the trial court improperly relied on an inadmissible printout from Carfax.com.
Zadok has forfeited any challenge to the admission of this evidence by failing to object in
the trial court. (People v. Hajek and Vo (2014) 58 Cal. 4th 1144, 1214.) Moreover, the
Carfax.com printout was not the only evidence supporting the $450 valuation. Garcia
testified that he delivered the Caprice to a wrecking yard and received $450 for it after
unsuccessfully attempting to sell it in an auction. Thus, the trial court’s finding is amply
supported.
D. THE ISSUES RAISED FOR THE FIRST TIME ON APPEAL8
Zadok raises numerous issues on appeal that were not presented to the trial court.
It is well established that an appellate court generally will not review such issues. (In re
S.B. (2004) 32 Cal. 4th 1287, 1293.) This rule encourages the parties to give the trial
court an opportunity to correct any errors, thus serving the fundamental goals of judicial
economy, party fairness, and appellate review of a developed record. (Ibid.) To
accomplish these objectives a party must raise the issue before the trial court and must do
so in more than a cursory or “‘passing’” fashion. (Schultz v. Workers’ Comp. Appeals
Bd. (2015) 232 Cal. App. 4th 1126, 1134.) The issue must be actually litigated in the trial
8 In addition to raising issues for the first time on appeal, Zadok seeks to introduce
evidence for the first time on appeal. He argues that TNT alleged in its cross-complaint
that Zadok refused to pay towing and storage fees for his car and “‘the contents therein.’”
This purportedly is a “momentous” judicial admission that supports his conversion claim
because the “‘contents’” obviously referred to his valuable tools, contrary to Garcia’s
testimony at trial that there were no tools inside. We are not at liberty to consider, or
weigh the impact of, new evidence on appeal. (Vons Companies, Inc. v. Seabest Foods,
Inc. (1996) 14 Cal. 4th 434, 472.)
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court. (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal. App. 4th
997, 1011.) While “the forfeiture rule is not automatic,” the California Supreme Court
has cautioned that an “appellate court’s discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal issue.” (In re S.B., supra,
at p. 1293.)
We apply the forfeiture rule to, and decline to consider the merits of, the following
issues:
1. Whether the Lease violated the Los Angeles City rent control
ordinance (L.A. Mun. Code, § 151.09(A)(2)(c)) because Zadok did not
“knowingly consent, without threat or coercion, to each change in the
terms of the tenancy” (ibid.);9
2. Whether the Lease was unenforceable for lack of consideration;
3. Whether Tarzana Springs and G & K waived the right to tow the
Caprice for failing to have current registration “[b]y ignoring the issue
for years”; and
4. Whether Zadok’s objection to the sale of his car in compliance with
applicable law (i.e., Veh. Code, § 22851.8) precluded a finding that
defendants acted properly and that he failed to mitigate damages.
The parties filed a joint statement of the issues to be determined at trial, and Zadok
filed a detailed trial brief. None of the above issues was raised in these filings or at trial.
We therefore will not consider them for the first time on appeal.
E. THE JUDGMENT ON TNT’S CROSS-COMPLAINT
The trial court found Zadok liable under TNT’s cross-complaint for towing and
storage fees in the amount of $2,350. Zadok contends that this finding was erroneous
9 While Zadok gave testimony that he did not agree to the change in lease terms, he
did not allege in his first amended complaint that the Lease violated the rent control
ordinance, he did not raise that theory in any detail at trial, and he did not introduce any
evidence of the changes made to that lease. On appeal, he asserts without any record
support that the parking provisions in the Lease are “new.”
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because TNT did not have counsel at trial and thus could not obtain affirmative relief.
Zadok also contends that the evidence would not support an award of damages under a
breach of contract theory, even if TNT were eligible to seek relief. We agree that the
judgment against Zadok on the cross-complaint cannot stand.
Before trial, counsel for TNT substituted out of the case with the consent of
Garcia. When Garcia attempted to examine a witness at trial, the court precluded him
from doing so because Garcia, a non-attorney, could not represent the company. This
ruling was correct because “a corporation cannot represent itself in a court of record
either in propria persona or through an officer or agent who is not an attorney.” (Caressa
Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal. App. 4th 1094,
1101.) While recognizing this prohibition, the trial court incorrectly awarded damages to
TNT—a corporation that did not appear at trial. (Merco Constr. Engineers, Inc. v.
Municipal Court (1978) 21 Cal. 3d 724, 730 [“To presume . . . that a corporation can act
without representation, is a fiction we cannot accept.”]; see Van Gundy v. Camelot
Resorts, Inc. (1983) 152 Cal. App. Supp. 3d 29, 32 [holding that a court should either
continue the case for a corporation to obtain counsel or enter a default against the
corporation for nonappearance].)
We therefore reverse the award of damages in favor of TNT on the grounds that
this corporate party failed to appear at trial.10
10 Although we reverse the grant of affirmative relief, we do not disturb the trial
court’s finding in favor of all defendants, including TNT, on the conversion claim.
Zadok has not raised this issue on appeal. In any event, the trial court found that there
were no tools in the car when it was towed, and thus Zadok could not prove any loss.
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DISPOSITION
The judgment in affirmed in part and reversed in part. The trial court is directed to
enter judgment for Zadok on the cross-complaint. Tarzana Springs and G&K are to
recover their costs on appeal.
BLUMENFELD, J.*
We concur:
ZELON, Acting P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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