Sarkany v. West CA1/2 ( 2022 )

Filed 8/30/22 Sarkany v. West CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JENNIFER SARKANY et al.,
Plaintiffs and Appellants,
A160573
v.
CHRISTIE WEST et al., (San Francisco County
Super. Ct. No. CGC-18-571355)
Defendants and Appellants.
Four residential tenants sued their landlord, Christie West (Christie),
and her son, Timothy West (Timothy), whose name was on the deed of the
rented premises during part of plaintiffs’ tenancy.1
Judgment was entered for plaintiffs after a weeks-long jury trial. The
trial court subsequently granted a new trial for Timothy based on the fact
that a document that the trial court had excluded from evidence somehow
made its way into the exhibit binders that went into the jury room when the
jury was excused to deliberate. The court denied a new trial for Christie,
This is the first of three opinions we file today arising from the
1
underlying dispute. (See Sarkany v. West (Aug. 30, 2022, A161728) [nonpub.
opn.]; Sarkany v. West (Aug. 30, 2022, A162441).) Because the defendants
have the same last name, we refer to them by their first names. We intend
no disrespect.
1
denied Timothy’s motion for JNOV, and denied defendants’ motion for
terminating sanctions.
Defendants now appeal from the judgment and the orders denying
Christie’s new trial motion, Timothy’s motion for JNOV, and their motion for
terminating sanctions. Plaintiffs cross-appeal from the order granting
Timothy’s new trial motion. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the First Amended Complaint, plaintiffs Jennifer
Sarkany, Ramsey Abouremeleh, Sandra Fierro, and Nina Robin (collectively,
plaintiffs) signed one-year residential lease agreements with Christie to rent
part of a single-family house in San Francisco (the property) starting
February 1, 2018. Christie managed the property and lived there as well.2
According to the complaint, Christie owned the property when plaintiffs
signed the leases, but a few months later transferred the property to her son
Timothy. Plaintiffs alleged that although the deed was in Timothy’s name,
Christie claimed that she had given title to Timothy for convenience and that
she was the true owner of the property.
Plaintiffs alleged that Christie negligently operated the premises, that
Christie was Timothy’s agent, and that Timothy negligently allowed her to
rent and manage the property. They alleged that the space they occupied
suffered from defective plumbing, rodent infestation, rotted windows, water
intrusion, faulty appliances, and faulty electrical outlets, and that the
common areas and yard were not maintained. They alleged that defendants
2 Our discussion of the factual background draws on the complaint
because the parties’ briefs do not include adequate summaries of the evidence
produced at trial. In their brief, plaintiffs represent that they rented an
apartment consisting of the top two floors of the house, and that Christie
lived in an in-law apartment on the ground floor.
2
failed to make repairs to the property after repeated requests from plaintiffs,
delayed repairs, and failed to complete repairs after they were started.
Plaintiffs alleged they were forced to pay utility bills for the entire
property, including the space that Christie occupied. They alleged that
Christie harassed and intimidated them to force them to vacate the premises
before the end of their leases; that she took steps to jeopardize their careers;
that she entered their space without notice or cause; that because of her
actions they lived in a state of constant fear and worry; and that they vacated
the premises at the end of October 2018 because of her interference. They
also alleged that defendants acted in bad faith by withholding their security
deposits.
Plaintiffs brought claims for declaratory relief, negligence, constructive
eviction, breach of the implied covenant of quiet enjoyment, breach of the
implied warranty of habitability, and violations of the Civil Code and the San
Francisco Rent Stabilization and Arbitration Ordinance (SFRO), and sought
compensatory and punitive damages. Just before trial, plaintiffs dismissed
without prejudice their causes of action for declaratory relief and for breach
of the covenants of quiet enjoyment and warranty of habitability.
The case was tried to a jury over several weeks in December 2019 and
January 2020, with the Honorable Kathleen A. Kelly presiding.
In the first phase of the trial, with witness testimony alone lasting 16
court days, the jury heard testimony from more than 30 witnesses (including
the parties, non-party fact witnesses, and experts), reviewed hundreds of
exhibits, and ultimately returned verdicts for the plaintiffs. The jury found
each defendant liable to each plaintiff for multiple violations of SFRO section
37.10B, entitled “Tenant Harassment”; found that each defendant acted in
bad faith and in knowing violation or reckless disregard of the ordinance;
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found that each defendant violated section 37.10B with malice, oppression, or
fraud; and awarded each plaintiff damages on that cause of action from each
defendant. The jury found Christie liable to Abouremeleh for violating
section 37.9 of the SFRO, entitled “Evictions,” found that she acted in
reckless or knowing disregard of the ordinance, and awarded him damages on
that cause of action. The jury found each defendant liable to each plaintiff for
violating Civil Code section 1942.4, which prohibits a landlord from
demanding or collecting rent for a substandard dwelling in certain
circumstances, and awarded each plaintiff damages from each defendant on
that cause of action. The jury found each defendant liable to each plaintiff for
violating Civil Code section 1950.5, which governs security deposits paid by
residential tenants; found that the defendants withheld the security deposits
in bad faith; and awarded damages to each defendant on that cause of action,
but only from Christie. The jury found Timothy liable to each plaintiff for
negligence but awarded no damages on that cause of action. And the jury
found Christie liable to Fierro and Robin (but not Abouremeleh or Sarkany)
for constructive eviction and awarded Fierro and Robin damages on that
cause of action.
In the second phase of the trial, which lasted two days, the jury
awarded each plaintiff punitive damages in various amounts from each
defendant for the violations of SFRO section 37.10B. The jury found that
Timothy’s liability for punitive damages arose from his liability as a principal
for the actions of his agent, Christie, and not from his own actions.
After judgment on the verdicts was entered, defendants moved for new
trial and/or terminating sanctions and moved for JNOV as to Timothy. Of
particular importance for this appeal, defendants argued that a new trial was
required because a document that the trial court had excluded from evidence
4
as more prejudicial than probative (the Cochrane complaint) was
nevertheless included in the jury’s exhibit binders and considered by the
jurors during their deliberation. The court determined that the jury’s
consideration of the Cochrane complaint was the result of court error, and
that the error was so prejudicial as to Timothy West as to require a new trial
for him. The court concluded that the error did not warrant a new trial for
Christie West, and rejected the defendants’ other new trial arguments, as
well as their motion for terminating sanctions.
Accordingly, the trial court issued an order denying Christie’s motion
for new trial; granting Timothy’s motion for new trial; and denying the
defendants’ terminating sanctions.3 The court also denied Timothy’s motion
for JNOV as moot in light of its grant of his new trial motion. Defendants
appealed, and plaintiffs cross-appealed.
DISCUSSION
We begin by summarizing some basic principles of appellate review.
Next, we address the parties’ challenges to the trial court’s new trial rulings,
focusing first on the jury’s consideration of the Cochrane complaint, which
underlies arguments in plaintiffs’ cross-appeal of the grant of a new trial to
Timothy and in defendants’ appeal of the denial of a new trial to Christie.
We then address other arguments made by defendants in connection with
denial of a new trial to Christie. Finally, we turn to defendants’ arguments
3 In ruling on Christie West’s new trial motion, the trial court found
that the punitive damages award against her was excessive in light of her
ability to pay. The denial of her new trial motion was therefore conditioned
on a remittitur as to punitive damages, to which plaintiffs consented. (See
Code Civ. Proc., § 657, subd. (5) [authorizing grant of new trial where
excessive or inadequate damages have been awarded].)
5
regarding the request for terminating sanctions and Timothy’s motion for
JNOV.
A. Principles of Appellate Review
An order challenged on appeal is presumed to be correct, and it is the
burden of the appellant, or cross-appellant, as the case may be, to
affirmatively show that the trial court erred. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) An appellant must “support claims of error with
meaningful argument and citation to authority. [Citations.] When legal
argument with citation to authority is not furnished on a particular point, we
may treat the point as forfeited and pass it without consideration.” (Allen v.
City of Sacramento (2015) 234 Cal.App.4th 41, 52 (Allen).) We disregard
purported incorporations by reference of arguments made in submissions to
the trial court. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
294, fn. 20 (Soukup); see also Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2021) ¶ 9:30.1 [incorporation of such
arguments is “entirely inappropriate”].)
Appellants must support their arguments by appropriate reference to
the appellate record. (Air Couriers International v. Employment Development
Dept. (2007) 150 Cal.App.4th 923, 928 (Air Couriers).) This requires citation
to “the particular portion of the record supporting each assertion made.”
(Williams v. Williams (1971) 14 Cal.App.3d 560, 565; see Cal. Rules of Court,
rule 8.204(a)(1)(C) & (a)(2)(C) [appellant’s opening brief must include a
summary of significant facts limited to matters in the record, with any
reference to a matter in the record supported by a citation to the volume and
page number of the record].) We are not required to search the record for
evidence, and we may disregard unsupported factual assertions. (Air
Couriers, supra, 150 Cal.App.4th at p. 928.) Failure to provide adequate
6
record citations forfeits a contention of error. (Duarte v. Chino Community
Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).) This principle is
particularly important in light of the voluminous record in this case.4
Notably, neither plaintiffs nor defendants have provided this court with a
summary of the evidence that was produced at the lengthy trial. As a result,
we are essentially bystanders to a long-standing dispute between the parties,
left to glean bits and pieces of the underlying case from briefs that assume we
have more knowledge of the facts than the parties have set forth.
We review challenges to findings of fact for substantial evidence, which
means we examine the evidence in the light most favorable to the prevailing
party, drawing all reasonable inferences and resolving all conflicts in its
favor. (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171
Cal.App.4th 1549, 1567.) In any substantial evidence challenge, appellants
must “ ‘set forth in their brief all the material evidence on the point and not
merely their own evidence. Unless this is done the error is deemed to be
waived.’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881
(Foreman & Clark).)
Finally, it is the burden of the appellant to show prejudice from any
error. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963
(Century Surety Co.).) The California Constitution permits reversal only if
“the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13.) The Code of Civil Procedure provides that we may
reverse judgments and orders only if the record shows that an error was
“prejudicial” and caused appellant “substantial injury,” and only if, absent
4 The reporter’s transcript is over 4,700 pages long. The clerk’s
transcript is over 9,000 pages, and a supplemental clerk’s transcript is over
2,800 pages. In addition, there are seven volumes of trial exhibits, totaling
over 1,000 pages.
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the error, “a different result would have been probable.” (Code. Civ. Proc.,
§ 475.5) To show prejudice, appellants must do more than simply state that
they were prejudiced and contend that absent the error, they could
reasonably expect to have obtained a more favorable outcome. (See Century
Surety Co., supra, 139 Cal.App.4th at p. 963 [appellant must provide legal
argument as to how the error was prejudicial].)
B. New Trial Motions
1. Applicable Law and Standard of Review
Section 657 of the Code of Civil Procedure provides in relevant part:
“The verdict may be vacated . . . in whole or in part, and a new or further
trial granted on all or part of the issues, on the application of the party
aggrieved, for any of the following causes, materially affecting the substantial
rights of such party: [¶] 1. Irregularity in the proceedings of the court, jury
or adverse party, or any order of the court or abuse of discretion by which
either party was prevented from having a fair trial. [¶] 2. Misconduct of the
jury . . . .” [¶] 3. Accident or surprise, which ordinary prudence could not
have guarded against.” (Code Civ. Proc., § 657.)
We review a trial court ruling on a new trial motion for abuse of
discretion. (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387
(Jiminez).) “The determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears. This is
particularly true when the discretion is exercised in favor of awarding a new
trial, for this action does not finally dispose of the matter. So long as a
5Further unspecified statutory references are to the Code of Civil
Procedure.
8
reasonable or even fairly debatable justification under the law is shown for
the order granting the new trial, the order will not be set aside.” (Ibid.)
2. Additional Background on the Cochrane Complaint
The trial court granted a pretrial motion by defendants under Evidence
Code section 352 to exclude evidence of prior lawsuits filed against the
defendants by former tenants. Among the evidence the court excluded was
the Cochrane complaint, which had been filed against Christie and Timothy
by different former tenants. The Cochrane complaint alleged substantially
similar claims to those at issue in plaintiffs’ case and was settled and
dismissed without any findings or admissions of liability.
In its order granting Timothy a new trial, the trial court described how
the exhibit mix-up came to light: “At the conclusion of the trial, counsel met
with a number of jurors. Upon meeting with the jurors, counsel, and later
the Court, were apprised for the first time that the Cochrane complaint had
inexplicably been mislabeled as Exhibit 152 and went into the jury room with
properly admitted exhibits . . . [and] was considered by the jury. The
Cochrane complaint was initially identified by Plaintiffs as Plaintiffs’ Exhibit
153 for identification. [Citation.] The substance of the Cochrane complaint
was not discussed by the Court and counsel in the presence of the jury and
was never admitted. In fact, the Court recorded Exhibit 152—not as the
Cochrane complaint—but as a police report . . ., which was admitted into
evidence. [Citation.]
“Significantly, . . . during jury deliberations, the jury sent a note to the
Court asking: ‘Was this supposed to be in evidence? We don’t recall this [sic]
be reviewed. Exhibit 152.’ ”
The record reflects that a copy of Exhibit 152 was not included with the
written jury note asking about its bona fides. The court reviewed the jury
9
question with counsel, who apparently raised no concerns about the exhibit.
On the basis of the deputy clerk’s notes identifying the marked and admitted
exhibits, the court believed Exhibit 152 to be a police report, and, with the
agreement of counsel, responded to the jury question: “Yes. Exhibit 152 is in
evidence.”
With their new trial motion, defendants submitted four juror
declarations indicating that the jury had considered the Cochrane complaint.
The trial court concluded that it was “inexplicable . . . how the Cochrane
complaint was mismarked and went into the jury room.” The court wrote
that throughout the trial it had ordered counsel to meet and confer to review
admitted exhibits and verify the accuracy of the compilation of admitted
exhibits. The court recounted the finger-pointing between counsel:
defendants asserted plaintiffs were responsible for the error, and plaintiffs
denied the accusation. In the end, the court treated the mismarking of the
Cochrane exhibit and its inclusion in the exhibits provided to the jury during
deliberation as court error, rejecting defendants’ argument that the jury’s
consideration of the Cochrane complaint constituted juror misconduct under
Code of Civil Procedure section 657.
Citing People v. Gamache (2010) 48 Cal.4th 347, 398 (Gamache), the
court noted that in the absence of juror misconduct, which gives rise to a
presumption of prejudice that must be rebutted, it remained for defendants to
show prejudice from the jury’s consideration of the Cochrane complaint. The
court concluded that defendants had met their burden of showing prejudice
with respect to Timothy, and granted Timothy a new trial under section 657,
subdivisions (1) (irregularity in proceedings) and (3) (accident or surprise).
The court denied the motion for new trial as to Christie.
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The court reasoned that the evidence at trial against Christie—as
opposed to the evidence against Timothy—“was so overwhelming” that there
was no reasonable possibility that the outcome of the case would have been
different as to her if the jury had not seen the Cochrane complaint. The court
found that plaintiffs had presented “considerable evidence as to prior
complaints and notice of [Christie’s] conduct,” and there was “considerably
less direct evidence as to [Timothy], which makes the juror declarations and
the admission of the Cochrane complaint so material and prejudicial as to
him.” The court explained that the testimony the jury heard from other
tenants who had previously resided at the property, “some positive, some
negative, was focused primarily on [Christie], and was subject to thorough
cross examination,” unlike the Cochrane complaint, which inexplicably made
its way into the jury room and was never the subject of any testimony, let
alone cross-examination.
3. Plaintiffs’ Challenge to Grant of New Trial for Timothy
Plaintiffs raise three challenges to the trial court’s grant of a new trial
as to Timothy on account of the Cochrane complaint. We consider the
arguments in turn.
a. Juror Declarations
First, plaintiffs argue that the new trial order improperly relied on
inadmissible juror declarations describing the jurors’ mental processes. The
argument is unpersuasive.
Under Evidence Code section 1150, subdivision (a), juror declarations
are admissible to show overt conduct that is “ ‘ “open to sight, hearing, and
the other senses and thus subject to corroboration.” ’ ”6 (People v. Engstrom
6 Evidence Code section 1150 provides that “[u]on an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to
11
(2011) 201 Cal.App.4th 174, 183.) But juror declarations are inadmissible to
the extent they purport to show the significance that jurors attached to the
evidence. (People v. Collins (2010) 49 Cal.4th 175, 250.) When juror
declarations contain both admissible and inadmissible statements, the
admissible portions may be considered by the trial court. (Lankster v. Alpha
Beta Co. (1993) 15 Cal.App.4th 678, 681, fn. 1.)
Here, the trial court admitted into evidence the four juror declarations
that defendants submitted with their new trial motion. Plaintiffs point to
inadmissible statements in the declarations. For example, one juror declared
that the Cochrane complaint “was a significant reason we awarded damages
against [Timothy] in both phases of the trial.” Another declared that the
Cochrane complaint made him more confident in finding for plaintiffs, and
also described why he did not believe that consideration of the Cochrane
complaint had “much effect” on his decision regarding damages. Even if
these portions of the declarations are inadmissible, plaintiffs are incorrect
that eliminating the portions of the declarations that describe the jurors’
mental processes leaves nothing to support the new trial order. Although one
of the declarations simply describes the effect of the Cochrane complaint on
that juror’s verdict (and is inadmissible on that basis), the other three
declarations state that when the Cochrane complaint came to the jury’s
attention, the jurors sent a note to the court about it because the jurors did
not recognize it or recall any discussion of it at trial, and when the court
statements made, or conduct, conditions, or events occurring, either within or
without the jury room, of such a character as is likely to have influenced the
verdict improperly. No evidence is admissible to show the effect of such
statement, conduct, condition, or event upon a juror either in influencing him
to assent to or dissent from the verdict or concerning the mental processes by
which it was determined.” (Evid. Code, § 1150, subd. (a).)
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responded that the document had been properly included as an exhibit, the
jurors considered the complaint in connection with their verdict. The fact of
the jurors’ review or consideration of the complaint—that is, did they or did
they not consider it upon receiving the court’s response to their question—is
conduct open to the senses.
b. Alleged Negligence of Defendants’ Counsel
Plaintiffs contend that the motion for new trial should have been
denied because defendants’ counsel were negligent in failing to comply with
the trial court’s order to review the trial exhibits and in failing to look at the
actual exhibit at issue when the jury asked the court about “Exhibit 152.”
Plaintiffs argue that ordinary prudence on the part of defense counsel would
have kept the jury from reviewing the Cochrane complaint, and that
defendants’ failure to act prudently bars a new trial order under section 657,
subdivision (3), which authorizes a new trial in the event of “[a]ccident or
surprise, which ordinary prudence could not have guarded against.”
Leaving aside plaintiffs’ apparent refusal to accept any of the
responsibility for including an exhibit that was plainly marked “Plaintiff’s
Exhibit 152,” while attempting to blame the error entirely on the defendants,
the argument lacks any merit. In granting a new trial under section 657,
subdivision (3), the trial court implicitly found that defendants’ counsel acted
with ordinary prudence under the circumstances. Plaintiffs’ conclusory
statement that the trial court could not have made this implicit finding is
unpersuasive. Further plaintiffs cite no authority holding that a finding of
prudence on the part of defendants’ counsel is required when a trial court
grants a new trial under section 657, subdivision (1) on the basis of an
irregularity in proceedings that the court finds has resulted from court error.
Nor is plaintiffs’ argument advanced by their citation of Slemons v. Paterson
13
(1939) 14 Cal.2d 612 for the proposition that section 657 “makes no provision
for a new trial on account of mistake of law of a party or his attorney.” (Id. at
p. 615.) No mistake of law is at issue here.
c. Prejudicial Effect of Cochrane Complaint
Plaintiffs argue that the trial court used the wrong legal standard in
determining whether the jury’s consideration of the Cochrane complaint was
prejudicial as to Timothy, and that if the correct standard had been used, the
trial court would have denied the new trial motion.
We reject this argument because plaintiffs have not shown that the
motion would have been denied under the correct standard.
Once the trial court determined that the jury had reviewed the
Cochrane complaint, defendants had to establish that it was reasonably
probable the jury would have reached a more favorable verdict if the
complaint had not been reviewed. (Pedeferri v. Seidner Enterprises (2013)
216 Cal.App.4th 359, 375-376.) In the new trial order granting Timothy the
extraordinary remedy of a new trial, the trial court correctly recognized that
here, in the absence of a finding of juror misconduct, defendants were
required to demonstrate prejudice under the usual standard for ordinary trial
error, and the trial court correctly enunciated the standard (that defendants
were required to show a reasonable probability of a more favorable verdict if
the excluded evidence had not been considered) with citations to two
California Supreme Court Cases (People v. Cooper (1991) 53 Cal.3d 771 and
People v. Clair (1992) 2 Cal.4th 629). But in that same order, the court
wrote, “There is certainly a reasonable possibility the error affected the
verdict as to him.” (Italics added.)
Reading the order as a whole, and bearing in mind that the existence of
a reasonable possibility does not preclude the existence of a reasonable
14
probability, it is not clear to us that the trial court applied the wrong legal
standard. But even if the court had erred in that respect, plaintiffs have not
demonstrated the “manifest and unmistakable abuse of discretion” (Jiminez,
supra, 4 Cal.3d at p. 387) that would lead us to reverse the new trial order.
That is because plaintiffs fail to show that the trial court erred when it
determined that the jury’s review of the Cochrane complaint was so
prejudicial as to warrant a new trial for Timothy. Although plaintiffs claim
to show that “it is not reasonably probable that a result more favorable to
[Timothy] would have been obtained absent the error,” they have forfeited
this argument by their failure to fairly summarize the relevant evidence.
Plaintiffs assert that the Cochrane complaint mentions Timothy in just two
paragraphs, one stating that he owned the property and one stating that
Christie made representations on his behalf. Plaintiffs contend that because
those allegations were not disputed and because the Cochrane complaint
concerned events that “took place many years before [defendants’] tenancy,”
the Cochrane complaint “did not impact the analysis of what took place
during [defendants’] tenancy.” And that is all plaintiffs have to say about the
Cochrane complaint—a document that the trial court (which had heard all
the testimony and reviewed all the evidence that was produced in the course
of a 17-day trial) concluded was “so material and prejudicial” as to Timothy.
Plaintiffs mischaracterize the record. It is true that Timothy’s name
appears in just two paragraphs of the 13-page Cochrane complaint, apart
from the caption. But those are not the only allegations in the complaint
pertaining to Timothy. The Cochrane complaint alleged that all the named
defendants, thus including Timothy, refused to make repairs to the property
despite having actual and constructive notice of particular habitability
defects that were set forth in some detail. The Cochrane complaint alleged
15
that all the defendants attempted to recover possession of the property by
failing to make repairs and by harassing the plaintiffs, and that the plaintiffs
left the property involuntarily because of the defendants’ actions.
Further, although plaintiffs purport to summarize evidence admitted at
trial that “directly implicated” Timothy, their summary, which jumps from
topic to topic, is nearly impossible to follow, and citations to the voluminous
record are lacking in key places. This significantly restricts our ability to
review the record.
Because plaintiffs fail to discuss the substance of the Cochrane
complaint and the substance of the other evidence against Timothy, we
disregard their conclusory contention that “when viewing all of the evidence
against Timothy West, it is not reasonably probable that the admission of the
Cochrane complaint had any effect on the outcome.”
This is a case in which a most experienced trial judge determined that
the jury’s review of a prejudicial document necessitated a new trial for
Timothy. An order granting a new trial is not made lightly, particularly after
a 17-day trial with numerous witnesses and hundreds of exhibits. Plaintiffs
fail to show that the trial court abused its discretion here.
4. Defendants’ Challenge to Denial of New Trial for Christie
a. Consideration of the Cochrane Complaint
Defendants argue that in denying Christie a new trial, the court erred
by declining to find that the review of the Cochrane complaint was juror
misconduct. The argument is confusing; as best we understand it, defendants
argue that the presentation of prejudicial out-of-court evidence or testimony
(such as the Cochrane complaint here), is enough to show juror misconduct.
Gamache is to the contrary: when extrinsic evidence, including
evidence that has been excluded by the court as unduly prejudicial, “finds its
16
way into the jury room through party or court error” there is no juror
misconduct. (Gamache, supra, 48 Cal.4th at pp. 397-398.) The juror
misconduct cases cited by defendants are distinguishable. In McDonald v.
Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, the juror
misconduct consisted of a juror making comments during deliberation that
amounted to providing his own expert opinion, as a professional
transportation consultant, concerning the placement of gates at a grade
crossing. (Id. at pp. 263-264.) And in Smith v. Covell (1980) 100 Cal.App.3d
947, the juror misconduct consisted of a juror concealing his biases on voir
dire and communicating to the jury, both before and during deliberation,
information about his personal experience of back injury. (Id. at pp. 952-
953.) Neither of those cases is anything like the case here.
Defendants further contend that even if the jury’s consideration of the
Cochrane complaint was not juror misconduct, the complaint was so
prejudicial as to require a new trial for Christie. But defendants do not even
attempt to show how the outcome of the trial would have been different as to
Christie if the jury had not considered the Cochrane complaint. (See
Gamache, supra, 48 Cal.4th at pp. 397, 399 [in the absence of juror
misconduct, no presumption of prejudice arises from juror’s consideration of
excluded evidence; injured party must demonstrate error].) Defendants do
not address the trial court’s finding that the evidence about Christie that was
properly before the jury “was so overwhelming” that there was no reasonable
possibility that the Cochrane complaint made any difference to the verdict
against her. By failing to discuss any of the evidence pertaining to Christie
that was presented at trial, defendants have forfeited any claim that Christie
was prejudiced by the trial court’s denial of her new trial motion.
17
b. Evidence of Disputed Title Issues
Apart from issues arising from the Cochrane complaint, defendants
argue that Christie is entitled to a new trial because the trial court admitted
evidence of disputed title issues that confused the jury and resulted in
inconsistent verdicts in the two phases of the trial. We are not persuaded.
As an initial matter, defendants fail to explain how there is any
inconsistency between the jury finding that Timothy owned the property
during the plaintiffs’ 2018 tenancy (a finding that underlies the verdict in the
first phase of the trial) and the finding that as of January 2020 Christie
owned the property (a finding that underlies the verdict in the second phase
of the trial).
Regardless, the argument has been forfeited because defendants fail to
provide record citations to support the underlying facts. (Duarte, supra, 72
Cal.App.4th at p. 856.) The argument refers to “numerous confusing
exhibits” about title to the property that were admitted at trial, but does not
provide citations to any of them. It is not enough for defendants to assert
that the attorney’s testimony was confusing to the jury: defendants must
point us to the potentially confusing testimony, explain why it was confusing,
and provide evidence to show how the jury verdict reflects that confusion.
Apart from the lack of appropriate citation to the record, we disregard the
argument because the contention is not supported by reasoned legal
argument or citations to authority. (Allen, supra, 234 Cal.App.4th at p. 52.)
Defendants’ failure to do so forfeits the argument.
c. Elizondo Testimony
Defendants further argue that Christie should have been granted a
new trial because she was prejudiced by the trial court’s erroneous decision to
18
allow testimony from Paul Elizondo, a psychiatrist retained by plaintiffs as
an expert. This argument is forfeited.
First, defendants fail to present legal argument that Dr. Elizondo’s
testimony should have been excluded. Instead, they simply refer to their
motion in limine concerning his testimony, and say they “stand by” the
argument made there. We disregard this purported incorporation by
reference of argument presented below. (Soukup, supra, 39 Cal.4th at p. 294,
fn. 20.)
Further, defendants fail to describe and provide citations to Dr.
Elizondo’s testimony before the jury. And although defendants contend that
Dr. Elizondo’s testimony was cumulative to plaintiffs’ extensive testimony
about emotional distress, they do not describe the plaintiffs’ testimony,
either, or provide record citations. It is not enough for defendants to simply
state that Dr. Elizondo’s testimony was “cumulative, unnecessary, an[d]
improper”: they must show how they could have expected a more favorable
outcome absent his testimony, which they fail to do. (Century Surety Co.,
supra, 139 Cal.App.4th at p. 963.)
Even if defendants had shown that Dr. Elizondo’s testimony was been
erroneously admitted, their failure to set forth or support the facts
underlying their claim and their failure to support their claim with reasoned
legal argument or citations to authority means that they have forfeited any
argument that his testimony required the trial court to grant their new trial
motion. (Air Couriers, supra, 150 Cal.App.4th at p. 928 [forfeiture from
unsupported factual assertions]; (Allen, supra, 234 Cal.App.4th at p. 52
[forfeiture from lack of reasoned legal argument or citations to authority].)
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C. Motions for Terminating Sanctions
Defendants argue that plaintiffs’ abusive discovery tactics and trial
misconduct justified the imposition of terminating sanctions.
Defendants point out that they brought two motions for terminating
sanctions, both of which were denied. But, as we shall explain, they do not
demonstrate that the denial of either motion amounted to reversible error.
1. Pretrial Motion for Terminating Sanctions
Defendants brought a pretrial motion for terminating sanctions that
was heard by the Honorable Charles F. Haines. In that motion, defendants
sought terminating sanctions against one of the plaintiffs (Ramsey
Abouremeleh) on the grounds that plaintiffs’ counsel intimidated a witness to
prevent that witness from testifying, in violation of Penal Code section 136.1.
The court declined to grant terminating sanctions, but imposed monetary
sanctions and an issue preclusion sanction. In his written order, Judge
Haines suggested that CACI instruction No. 204 on the willful suppression of
evidence “may be modified to inform a jury plaintiff intentionally suppressed
defense efforts to obtain evidence on Abouremeleh’s truthfulness, as well as
evidence which would bolster [a witness’s] credibility,” but he stated that
“[t]his is merely a suggestion for the trial judge.”
Defendants do not present any argument that Judge Haines erred in
denying their motion for terminating sanctions. Instead, they contend that
they submitted numerous CACI No. 204 instructions that were rejected by
Judge Kelly, who presided over the trial, and that the court’s refusal to give
such an instruction is an additional ground for a new trial.
However, rather than citing to specific pages of the record showing the
instructions that were proposed and the trial court’s rejection of those
proposals, defendants provide an undifferentiated citation to “CT Vol 21 5953
20
– Vol 26 7449,” representing almost 1,500 pages of the Clerk’s Transcript.
Nor do defendants point us to the instructions that were actually given to the
jury. We therefore disregard defendants’ contentions concerning their
proposed instructions. (Air Couriers, supra, 150 Cal.App.4th at p. 928; Cal.
Rules of Court, rule 8.204(a)(1)(C) & (a)2)(C).)
Further, defendants provide no legal argument or authority to support
a claim that it was error for the trial court to reject their proposed
instructions. (Allen, supra, 234 Cal.App.4th at p. 52.) Nor do they show any
prejudice from the trial court’s refusal to give their proposed instructions.
(Century Surety Co., supra, 139 Cal.App.4th at p. 963.) Instead, they simply
state that it is impossible to know whether the verdict against Christie West
would have been different if an instruction had been given.
In short, defendants have forfeited any argument concerning jury
instructions.
2. Posttrial Motion for Terminating Sanctions
After the trial, defendants filed a renewed motion for terminating
sanctions, which the trial court denied. Defendants contend that the
evidence they submitted in support of that motion would support an award of
terminating sanctions, but they provide no argument that it was error for the
trial court to deny the motion. We will not supply one for them. (Allen,
supra, 234 Cal.App.4th at p. 52 [appellate court is “not required to examine
undeveloped claims or to supply arguments for the litigants”].)
Defendants note that although they requested a statement of decision
as to their motion for terminating sanctions, the trial court declined to
provide one. Defendants suggest this is reversible error, citing Triple A
Management Co., Inc. v. Frisone (1999) 69 Cal.App.4th 520 where the Court
of Appeal noted that “[f]ailure to determine a material issue in a statement of
21
decision can, in some circumstances, be reversible error if there is evidence
that would support a finding in the opposing party’s favor.” (Id. at p. 536,
italics added.) That case does not help the defendants, because they fail to
show that the trial court’s failure to provide a statement of decision in the
circumstances here was error.
D. Timothy’s Motion for JNOV
We review a ruling on a motion for JNOV “ ‘us[ing] the same standard
the trial court uses in ruling on the motion, by determining whether it
appears from the record, viewed most favorably to the party securing the
verdict, that any substantial evidence supports the verdict.’ ” (Pacific
Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 309.) If
there is any substantial evidence, or if there are reasonable inferences to be
drawn from the evidence, in support of the verdict, a motion for JNOV should
be denied. (Ibid.)
The trial court concluded that because it had granted Timothy a new
trial, his motion for JNOV was moot. This was error. There is no
inconsistency in granting a new trial while denying a motion for JNOV on the
merits (Jones v. Evans (1970) 4 Cal.App.3d 115, 121), nor in granting both a
new trial motion and a motion for JNOV. (Rosenbaum v. Security Pacific
Corp. (1996) 43 Cal.App.4th 1084, 1086, fn. 1.)
To show prejudice from the trial court’s error in denying the JNOV
motion as moot, defendants must show that the motion for JNOV should
have been granted. This requires a showing that no substantial evidence
supports the verdict, which requires discussion of all the evidence at issue.
But there is no such discussion in defendants’ opening brief: defendants’
repeated contention that there is no substantial evidence to support the
verdict against Timothy does not substitute for discussion of the evidence at
22
issue. By failing to set forth all the material evidence pertaining to Timothy’s
liability, defendants have forfeited their challenge to the denial of the JNOV
motion. (Foreman & Clark, supra, 3 Cal.3d at p. 881.)
DISPOSITION
The judgment and challenged orders are affirmed. The parties shall
bear their own costs on appeal.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, Acting P.J.
_________________________
Mayfield, J.*
A160573, Sarkany et al. v. West et al.
Judge of the Mendocino Superior Court, assigned by the Chief Justice
*
pursuant to article VI, section 6 of the California Constitution.
24