Boer and Sons v. Gomes CA5 ( 2023 )

Filed 3/15/23 Boer and Sons v. Gomes CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
BOER AND SONS, INC., et al.,
F082403, F083110
Plaintiff, Cross-Defendants and
Respondent, (Super. Ct. No. 2019054)
v.
OPINION
ROBERT W. GOMES,
Defendant, Cross-Complainant and
Appellant.
APPEALS from a judgment and an order of the Superior Court of Stanislaus
County. Sonny S. Sandhu, Judge.
Law Office of Kathleen P. Clack and Kathleen P. Clack for Defendant, Cross-
Complainant and Appellant.
Clapp Moroney Vucinich Beeman & Scheley, Kory L. Phillips and Andrew K.
Murphy, for Plaintiff, Cross-Defendants and Respondent.
-ooOoo-
An owner of ranchland, Robert W. Gomes, wanted to convert his land to an
almond orchard. He leased the land to a family-owned farming corporation, Boer and
Sons, Inc. (“Boer”), to plant the orchard.1 A few years into the lease, the relationship
between Gomes and Boers soured. Boer sued Gomes, alleging many causes of action,
most of which related to Gomes’s numerous alleged violations of Boer’s contractual right
to the quiet use and enjoyment of the leased property (“Premises”). Gomes cross-
complained, also alleging several causes of action, relating mainly to Boer’s alleged
failure to control water run-off and soil erosion which caused the Premises to fall into
disrepair.
The trial court bifurcated the complaint and cross-complaint and the cross-
complaint only was tried before a jury.2 The jury returned a complete defense verdict for
Boer, finding Boer not liable on any cause of action. After the court entered a judgment
for Boer on the cross-complaint, Boer moved for attorney fees and costs. The court
awarded fees but denied costs.
Gomes separately appeals from the judgment and the order awarding attorney fees.
We ordered the two appeals consolidated for purposes of opinion only. We conclude
Gomes has not shown any reversible error in the judgment or order appealed from. As
we will explain, most of the issues Gomes raises were forfeited.
We affirm the judgment and order.
STATEMENT OF THE CASE
In March 2016, Boer filed a complaint against Gomes, both in his individual
capacity and in his capacity as trustee of the Robert W. Gomes Trust, for breach of the
lease, trespass, nuisance, injunctive relief, declaratory relief, and specific performance.
The complaint alleged Gomes violated the right of first refusal granted to Boer by the
lease. It also alleged Gomes erected a shooting structure on the Premises and shot high-
1 While the corporation will be referred to as “Boer,” members of the Boer family
will be referred to by their first and last names.
2 It appears that Boer’s complaint was dismissed on April 8, 2021.
2.
powered rifles on the Premises while Boer’s employees and independent contractors were
working.
In December 2019, Gomes filed his fourth amended cross-complaint against Boer
and John Boer III, the president of the corporation. The cross-complaint was for breach
of the lease, elder abuse, negligence, nuisance, trespass, intentional infliction of
emotional distress, injunctive relief, and specific performance. Gomes alleged that
Boer’s farming practices resulted in soil slippage, erosion, drainage issues, and
obstruction of safe ingress and egress to and from his property;3 that Boer committed
Water Code violations; that Gomes was pressured into signing the lease; that Boer
engaged in wrongful conduct to interfere with Gomes’s use and enjoyment of his land to
induce him to sell his property to Boer; that Gomes was deprived of his safety and free
use of his property; and that Gomes’s mental and physical health were compromised as a
result of Boer’s actions.
John Boer III died in 2019 and his wife, Marcia Boer, in her capacity as his
personal representative, was substituted in as a cross-defendant in 2020.
Both the complaint and cross-complaint were initially set to be tried before a jury.
After the jury was empaneled and given preliminary instructions, but before opening
statements, the court bifurcated the action and only the cross-complaint was tried before
the jury.
After the close of evidence, the trial court granted Boer’s nonsuit motion on the
emotional distress cause of action. The rest of the claims were submitted to the jury, and
the jury returned a verdict finding Boer not liable on any cause of action.
The court entered judgment for Boer on the cross-complaint. Boer later moved for
contractual attorney fees and costs, and Gomes opposed the motion. The court awarded
3 The Premises were part of a larger piece of property where Gomes lived.
3.
attorney fees but not for the full amount claimed. The court did not award any costs,
holding that the motion was untimely as to the request for costs.
FACTS
I. Principal facts
Gomes purchased property in Stanislaus County in 1973 to raise cattle to sell. At
that time, he owned a trucking business hauling sand and gravel. He sold his trucking
business when he turned 65 and began raising cattle full time. He stopped raising cattle
when he turned 73 and saw his neighbors were converting their pasturelands into almond
orchards. He decided to also convert his own pastureland into an almond orchard. At
least three individuals or entities, one of which was Boer, approached Gomes to attempt
to lease his property for an almond orchard.
Around 2008 or 2009, Gomes and Boer began negotiating the terms of a lease.
Gomes spent considerable time reviewing the proposed lease agreement. He reviewed
the proposed lease with several people he knew. He made notes as to revisions he
wanted made to the lease and provided those revisions to Boer. Boer accepted all the
changes Gomes requested.
Gomes and Boer signed the lease on July 28, 2010. The initial term was 20 years,
with Boer having two 5-year extension options. The Premises comprised 50 acres on
which Boer was to plant an almond orchard.
Gomes testified that on July 27, 2010, John Boer III called Gomes and told him
that if the lease was not signed immediately, Boer would be unable to order the trees to
plant on the Premises and would lose a year of production. Gomes testified that John
Boer III told Gomes that he needed to come to John’s lawyer’s office the next day to sign
the lease. Gomes brought a copy of the lease with him to Boer’s lawyer’s office.
Gomes’s copy was about six pages long, but he was given a document to sign that was
17—18 pages long. Gomes chose to sign the lease without reading the new document.
Gomes testified as follows regarding the lease negotiations:
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“[BOER’S COUNSEL]: Did Boer and Sons or anyone from
the Boers have any power or any rights to give you any sort
of orders or have control over you in any way?
“[GOMES]: No. Would you ask that question of a 30-year-
old? No. I have not needed their help in any way
whatsoever.
“[BOER’S COUNSEL]: They had no ability to make
decisions for you or—
“[GOMES]: No. They don’t do that. They can’t—they
can’t.”
Of particular importance to this litigation is the lease provision that requires Boer,
at its own expense, to keep and maintain the Premises “in good order and repair and in as
safe and clean a condition as when received, reasonable wear and tear excepted[.]”
Boer developed the Premises into an almond orchard. The development work
included earth moving, installing a well and pump station, and installing an irrigation
structure. Boer then planted over 4,400 almond trees less than a year after the lease was
executed.
The orchard was uphill from Gomes’s home, and Boer took measures to protect
Gomes’s home from downhill water run-off and soil erosion. Boer purchased straw bales
and straw wattles in 2010 to stop water and mud intrusion and built berms in 2011. The
wattles were replaced every year, and the bales were replaced every two years. Boer also
dug a V-ditch to channel water away from Gomes’s home. Boer had a weather station set
up on Gomes’s property so that Boer would receive storm alerts and be better able to
protect the property when it rained. Boer employees were on standby at all times of the
day and night during rainy seasons to get to work to protect the property from water run-
off and erosion.
Marcia Boer testified that developing property for agriculture disturbs the soil and
requires remedial work to be done every year. She testified that if any mud slippage went
into Gomes’s driveway, it would be remedied “within a day.” John Boer IV testified that
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water got into Gomes’s garage one time and that Boer helped Gomes get the water out of
the garage. Marcia Boer testified that Gomes did not bring any issues to Boer’s attention
regarding Boer’s water and soil control measures until 2013.
II. Gomes’s expert witness
John Minney, a licensed civil and geotechnical engineer, testified as an expert
witness for Gomes. Minney visited Gomes’s property twice in 2019, once in May and
again in December. During his May visit, he found “some erosion issues” on the
Premises. He saw multiple areas where there was what he would consider “excessive
erosion.” It appeared to him the Premises were “just not being maintained.”
Minney described the V-ditch Boer dug as “a rather large erosion channel” in the
soil which was “causing dirt to be moved around in places it’s not supposed to be.” He
stated the hay bales and wattles were ineffective at stopping the soil run-off. He saw dirt
build-up in Gomes’s backyard that “could conceivably run water over into the house.”
He said the backyard was not draining properly anymore. He also stated there was
erosion on one of the roadways on the Premises that “drastically impact[ed]” the ability
to drive on it.
In his December visit, he observed that sandbags had been installed at the V-ditch,
which he said would slow the water down; however, the ditch was still expanding. He
testified the erosion control measures being employed were not curtailing all of the
erosion on the Premises.
Minney recommended certain water and erosion control measures to employ on
the Premises. The cost to install these measures would be $224,630. These measures
included putting a “repair fabric” along 240 feet of one of the berms Boer built, installing
a channel pipe to carry water off the Premises, and installing an “interceptor trench.” He
also testified that extra water control measures may need to be implemented depending
on the chemical content of the water run-off from the Premises. He explained that state
water regulations would require a water reservoir system to be built on the Premises that
6.
would keep run-off water contained onsite if the run-off water contained sufficient
concentrations of certain chemicals. He stated the cost of installing this reservoir system
could be another $200,000. The trial court, however, sustained Boer’s objection to the
testimony about the potential chemical run-off and the associated costs with building the
reservoir system as speculative.
III. Boer’s expert witness
Boer called its own expert witness, Phillip Brumley, an almond and walnut farmer
who also owns his own consulting firm. Brumley visited the Premises four times. He
visited for the first time in September 2019 after Boer called him to examine the Premises
after a period of heavy rain. During his first visit, he observed the Premises to be “well
farmed and taken care of.” In his opinion, the erosion control system in place was
“working the way that it had been intended.” The system appeared to be handling the
rainfall well. Brumley testified that more water control work had been done on the
Premises than on other farms he had seen in the area.
Brumley explained that downhill erosion would be expected on the Premises
during periods of heavy rainfall. When he returned for his second visit in December
2019, he saw that new water control features had been installed and that they appeared to
be functioning as intended. They appeared to still be functioning adequately during his
third visit in January 2020. He visited a fourth time in October 2020.
Brumley reviewed Minney’s proposed scope of repairs for the Premises. It
appeared to Brumley that Minney was recommending a “French drain system,” which
involves installing a slotted pipe embedded in rock to help drain water away. The pipe
would be sleeved with a cloth material that would allow water to pass into the pipe but
not silt. Brumley explained the problem with that would be the silt would build up on top
of the pipe and create a seal such that water could not penetrate the pipe; that is, the
French drain system would clog. In contrast, an open trench that uses sandbags to control
7.
erosion, as what currently existed, would hold soil back and is easier to clean out with
either a tractor or shovel.
Brumley also disagreed with Minney’s idea to place metal plates over the open
trench so that farm equipment could be driven over the trench. Brumley did not think
there was enough room at the edge of the orchard to properly install steel plates of that
kind. He would also be concerned about the equipment slipping on the plates.4
IV. Gomes’s alleged breaches of the lease
The lease provided that Boer was entitled to “quiet possession and enjoyment” of
the Premises during the lease term. Boer presented evidence that tended to show Gomes
did several things that breached this lease provision.
Around 2014, Gomes began constructing a shooting range on the Premises within
the orchard without informing Boer. There had been a shooting bench on the Premises
that Boer took down while they were developing the Premises into an orchard. Boer’s
insurance company advised Boer that there would be no liability coverage if the shooting
structure remained on the Premises. There were also times when Boer’s employees were
working on the Premises and were interrupted by sounds of gunfire. One worker hired to
remove almonds from trees refused to work on the Premises because of the shooting.
Gomes also allowed others to travel over the Premises. Gomes sold a portion of
other property he owned—not part of the Premises —to another person. Gomes gave that
other person permission to cut the fence bordering the Premises and drive through the
Boer’s orchard with a tractor and disk. Gomes also drove his ATV through the orchards,
leaving tracks in the ground. One time, Gomes drove by one of Boer’s workers on his
4California Rules of Court, rule 8.204(a)(2)(C) requires that an appellant’s
opening brief “[p]rovide a summary of the significant facts limited to matters in the
record.” Gomes’s opening brief summarizes Minney’s testimony and heavily relies on it
to support his arguments. But he does not even so much as mention Brumley, let alone
summarize his testimony, despite that Brumley contradicted much of Minney’s
testimony.
8.
ATV, slowed down, glared at the worker, patted the gun scabbard on his ATV, and drove
away. As of the time of trial, Gomes continued to drive his ATV on the Premises, but
only when no one from Boer was there.
DISCUSSION
I. Irrelevant evidence
Gomes claims the admission of four categories of irrelevant evidence prejudiced
him. He complains of evidence about (1) the right of first refusal; (2) the shooting range
and shooting activities at the orchard; (3) Gomes’s driving through the orchard on an
ATV, including the incident where he patted his scabbard; and (4) Gomes’s allowing the
fence to be cut, allowing a person to drive through the orchard. He contends all this
evidence was relevant only to the causes of action asserted in Boer’s complaint and not to
any of the causes of action of Gomes’s cross-complaint which were being tried to the
jury. Though he does not state in his opening briefing which cause of action the
prejudice from this alleged error affected, we perceive from his briefing that he claims he
was prejudiced with respect to his breach of contract claim.
Gomes objected only to the admission of evidence about the right of first refusal.
He objected when Boer’s counsel began to discuss the right of first refusal during
opening statements, contending that evidence is not relevant to any issues in the cross-
complaint. The trial court overruled the objection. At the same time, Gomes failed to
object to the other three categories of evidence he now complains of and has forfeited any
challenge to the admissibility of any of that evidence. (Evid. Code, § 353.)5
We conclude that even if evidence of the right of first refusal were irrelevant,
Gomes has not shown how he was prejudiced by its admission.
5 All statutory references are to the Evidence Code unless otherwise stated.
9.
A. Applicable law
“As a general matter, evidence may be admitted if relevant (Evid. Code, § 350),
and ‘ “[r]elevant evidence” means evidence ... having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action’ (id.,
§ 210).” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1213.) “However, even as a trial
court has broad discretion in determining the relevance of evidence [citation], it lacks
discretion to admit irrelevant evidence [citation].” (Rose v. County of San Benito (2022)
77 Cal.App.5th 688, 710.)
A judgment will not be reversed because of erroneously admitted evidence unless
the appellant can show that the error resulted in a miscarriage of justice. (§ 353,
subd. (b); see also Code of Civ. Proc., § 475.) “ ‘In civil cases, a miscarriage of justice
should be declared only when ... it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.’ [Citation.]
Prejudice from error is never presumed but must be affirmatively demonstrated by the
appellant.” (Paige v. Safeway, Inc. (2022) 74 Cal.App.5th 1108, 1127.)
B. Analysis
During Boer’s opening statement, counsel stated:
“[BOER’S COUNSEL]: A few years into the lease—and this
was around 2013—two things happened. The first was that
the Boers discovered in January 2013 that Gomes had
transferred the property to a trust. This is not in dispute.
“And you are asking, why is that important?
“If you have ever entered into any sort of a business or
commercial type of a lease there is—
“[GOMES’S COUNSEL]: Objection, Your Honor. Not
relevant. Not relevant to the cross-complaint.
“THE COURT: I’m going to overrule at this time based on
what was discussed prior to our hearing. So overruled.
10.
“[BOER’S COUNSEL]: Thank you.
“Contained typically in commercial leases is a provision
called a Right of First Refusal.
“What this means is that the business or person who is leasing
a property has an option to buy the property in the event the
landowner decides to sell the property….
“As I said before, most commercial leases allow for tenant
leasing the property the right of first refusal. The lease
between the Boers and Gomes is no different. The lease
allowed for a right of first refusal to Boer and Sons.
“Gomes didn’t honor that clause. He transferred the property
without giving Boer the right of first refusal.
“Keep that in mind throughout the trial because it becomes
important later in this case.
“When Gomes is attempting to show that the Boers breached
their contract with him, one of the elements that Mr. Gomes
needs to prove himself is that he did not breach that contract.
This will become more clear when we talk to you again
during our closing statements.”
Boer’s closing argument was not requested to be included in the appellate record.
In fact, only part of Gomes’s closing argument is included in the reporter’s transcript.
Gomes’s counsel began her closing argument in the morning, and then the trial broke for
lunch. The rest of the trial after that lunch break was not requested to be part of the
reporter’s transcript on appeal. We therefore do not know if Boer’s counsel mentioned
the right of first refusal during closing argument. However, there was some evidence
presented at trial regarding the right of first refusal, but a relatively minor amount.
Gomes contends the evidence of the right of first refusal was irrelevant to any
cause of action being tried on Gomes’s cross-complaint. He asserts that evidence was
relevant only to the breach of contract claim that Boer pleaded in its complaint, which
was not being tried to the jury, and which concerned Gomes’s alleged failure to honor the
right of first refusal. Boer counters that this evidence was relevant to Gomes’s breach of
11.
contract claim because, as the jury was instructed, one of the elements for that claim was
that Gomes did all, or substantially all, of the significant things that the lease required
him to do. Boer’s briefing implies that the failure to honor the right of first refusal was a
significant breach of the lease that precludes Gomes from recovering for Boer’s alleged
breach. Contrarily, Gomes’s briefing implies it would be a misapplication of the law to
find that his breach of the right of first refusal provision precludes him from recovering
from Boer’s breach of the lease. Thus, Gomes contends that he was prejudiced by Boer’s
statement to the jury during opening statements that Gomes could not recover for breach
of contract if he breached the contract himself.
We need not determine whether evidence about the right of first refusal was
irrelevant because even if it were, the record does not show that Gomes was prejudiced
by its admission with respect to the breach of contract cause of action. First, the court
instructed the jurors during closing instructions that they were to follow the law as the
court instructed and that they were to disregard any contrary statements from the
attorneys as to what the law is. “ ‘Absent some contrary indication in the record, we
presume the jury follows its instructions [citations] “and that its verdict reflects the legal
limitations those instructions imposed.” ’ ” (Burchell v. Faculty Physicians & Surgeons
of Loma Linda University School of Medicine (2020) 54 Cal.App.5th 515, 531.) There is
no indication in this record that the jury did not follow the court’s instructions.
Relatedly, there is also nothing in the record showing that Boer’s counsel mentioned the
right of first refusal at all during closing argument.
Additionally, the judgment, which contains the questions and answers for the
special verdict for the breach of contract claim, shows that Gomes’s alleged breach of the
right of first refusal provision of the lease did not influence the jury’s verdict. The
judgment reads:
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“VF 300. Breach of Contract
“1. Did Robert Gomes and Boer & Sons, Inc. enter into a
contract? Yes
“2. Did all the conditions that were required for Boer &
Sons, Inc.’s performance occur? Yes.
“3. Did Boer & Sons, Inc. fail to do something that the
contract required it to do? No.”
The answer to question 3 shows Gomes’s alleged breach of the lease did not
influence the verdict. Gomes is concerned that the jury believed it could find for Boer
(the defendant) on the breach of contract claim, even if the jury found that Boer had
breached, as long as the jury also found that Gomes had breached for failing to honor the
right of first refusal. But the answer to question 3 shows that the jury found that Boer
was not in breach, and therefore any breach by Gomes would have been inconsequential.
Gomes has not shown a miscarriage of justice from any alleged erroneous
admission of the evidence about the right of first refusal. (§ 353, subd. (b); see also Code
of Civ. Proc., § 475.) We therefore will not disturb the verdict as to the breach of
contract cause of action.
II. Gomes’s claim that jury was insufficiently instructed
The trial court ordered Boer’s complaint and Gomes’s cross-complaint bifurcated
after the jury received preliminary instructions but before opening statements. The court
informed the jury during preliminary instructions of the nature of the causes of action of
both the complaint and cross-complaint. After bifurcating the case, the court and parties
acknowledged the jury should be informed of the bifurcation. The court asked the parties
for input on how it should inform the jury about the bifurcation:
“THE COURT: Did counsel want to give any type of joint
statement or work on a joint statement for me to read to the
jury as to whether or not there’s any confusion as to why
Mr. Sodhi’s case has been bifurcated, or did counsel want the
Court to just give a brief statement?
13.
“[GOMES’S COUNSEL]: I would be happy if you did it.
“[BOER’S COUNSEL]: Yeah. I’m happy if you did it. I
think that’s appropriate.”
The court then fashioned a statement about the complaint having been bifurcated
and delivered it orally to the jurors when they returned to court. The court told the jury
the complaint had been bifurcated from the cross-complaint, and that the jury trial would
involve only the cross-complaint. The statement involved telling the jury that Boer’s
complaint would not be proceeding before it and recapped the statement of the case for
Gomes’s cross-complaint. Neither party objected to the court’s statement related to
bifurcation.
Now, on appeal, Gomes contends the trial court erred by insufficiently instructing
the jury that the complaint and cross-complaint had been bifurcated. Boer argues Gomes
forfeited this instructional issue by failing to raise it below. We agree with Boer.
“ ‘[A] party may not argue on appeal that the court failed to give a specific
instruction when that party did not request such instruction [citations].’ ” (Hurley v.
Department of Parks & Recreation (2018) 20 Cal.App.5th 634, 655.) Here, Gomes’s
counsel forfeited any issue about the bifurcation instructions by not objecting below.
What is more, the court solicited input from both sides regarding the bifurcation
instruction, and Gomes’s counsel expressly declined to offer any, choosing instead to
defer to the court on how best to instruct the jury that the complaint had been bifurcated.
The verdict cannot be disturbed on the ground the jury was insufficiently
instructed in regard to the bifurcation.
III. Exclusion of expert testimony
Gomes claims the court erred in sustaining Boer’s objection to Minney’s
testimony about chemical run-off from the orchard and the potential associated costs with
addressing it. He has not shown error.
14.
Boer’s counsel objected to the testimony and moved to exclude it as based
impermissibly on speculation. The trial court agreed with Boer and excluded the
testimony on that basis. Though Gomes contends the trial court erroneously excluded
this testimony, he does not even begin to properly demonstrate reversible error. That is,
he does not set forth the standard of review for the exclusion of expert testimony and
does not try to explain how the court erroneously determined the testimony was
speculative. All he does is explain how the testimony would have helped his case, but
evidence is not admissible just because it would help the party offering it. (See Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770
[“ ‘expert opinion based on speculation … is inadmissible’ ”].) We therefore reject this
unsupported claim.
IV. Conduct of trial
Gomes raises two issues about how the trial was conducted. He complains of how
the jurors were seated in the courtroom, and of how the trial was audio streamed online
but not video streamed. Both claims are forfeited for failing to raise them below.
The trial took place from October to December 2020, during the COVID-19
pandemic. Gomes states in his briefing that the jurors were not all seated in the jury box
together; instead, only three were seated in the jury box, and the rest were seated
throughout the audience gallery. This was done presumably because of social distancing
protocols aimed at reducing the spread of the virus. But there is nothing in the record of
where exactly the jurors were seated. Even so, Gomes contends, in conclusory fashion,
that the three jurors seated in the jury box were the only ones “who saw the full trial.”
Gomes raised no issue below regarding the seating of jurors or about their ability to
properly see or hear.
Also, due to the pandemic and social distancing protocols, the courtroom was
closed to the public. Only the parties, counsel, jurors, and court staff were allowed
inside. But the court ordered that the trial be audio streamed live on YouTube so that
15.
anyone from the public could listen in. There was no video feed of the trial. Gomes did
not raise any issue about public access to the trial, yet he argues on appeal that his
constitutional right to a public trial was violated because the trial was not video streamed.
He does not identify the constitutional provision, state or federal, upon which he bases his
claim.
Both these contentions are forfeited because Gomes did not raise them in the trial
court. “ ‘[I]t is fundamental that a reviewing court will ordinarily not consider claims
made for the first time on appeal which could have been but were not presented to the
trial court.’ [Citation.] ‘Appellate courts are loath to reverse a judgment on grounds that
the opposing party did not have an opportunity to argue and the trial court did not have an
opportunity to consider.’ ” (Wu v. Public Employment Relations Board (2022)
87 Cal.App.5th 715, 698.)6
Forfeiture aside, Gomes alleges multiple acts of misconduct that are not supported
by the record. First, Gomes asserts in one sentence of his briefing that one of Boer’s
attorneys made disruptive body movements during trial. Gomes does not specify what
the attorney did, but we have examined the record citation Gomes provides. Gomes is
referring to a point in the trial when one of Boer’s attorneys laughed at an answer Gomes
gave.
Gomes was asked a question by his own counsel during direct examination, he
answered, and his counsel asked him to repeat the answer more loudly. Gomes
responded with, “Oh, I’m sorry. I thought I was the one that couldn’t hear,” before
repeating his answer. At the next break, when the jury left the courtroom, Gomes’s
6
Moreover, there is nothing in the record about where the jurors were seated in
the courtroom. Gomes asserts in his briefing, for instance, that only three jurors were
seated in the jury box and the rest in the audience gallery, but there is no proof of that.
Nor is there proof of Gomes’s bald assertion that most of the jurors could not properly
view or hear the trial. Thus, even were this issue preserved, Gomes would have great
difficulty in proving error and prejudice with the record undeveloped on the point.
16.
counsel objected that one of Boer’s attorneys was “making faces” and “rolling his eyes”
while Gomes was testifying. The accused attorney explained that he laughed when
Gomes said he thought he was the only one who couldn’t hear because he found it funny.
The court then asked that attorney to refrain from any such “nonverbal [cues],” and then
said that the court had not seen any unprofessional conduct from any attorney so far. The
court stated it had been “keep[ing] an eye out on counsel as well as the jurors.” Gomes’s
counsel then thanked the court, and the court brought the jury back in and trial resumed.
Our review of the record shows that Gomes’s statement that he thought he was the
only one who could not hear was an attempt at humor, and that a smile or some laughter
from someone in the courtroom would have been natural. There is nothing from the
context of Boer’s attorney’s laughter to suggest that he was trying to disparage Gomes or
make him look silly. We also note that Gomes’s counsel did not make a mistrial motion
on this basis or request any kind of sanction, nor did counsel request a jury instruction
about Boer’s counsel’s behavior. Instead, Gomes’s counsel accepted the trial court’s
admonition given to all counsel and proceeded with trial.
Next, Gomes’s attorney asserted during appellate oral argument that Gomes
experienced bullying and elder abuse inside the courtroom. Gomes did not assert this in
his briefing yet his counsel discussed it a great deal during argument. His counsel was
apparently referencing the point in the trial where she objected to the way Boer’s counsel
was making evidentiary objections during Gomes’s direct examination. Gomes’s counsel
stated, outside the jury’s presence, that Boer’s counsel was lodging objections in a
manner that was “deliberately interrupting [Gomes] excessively” and “ruin[ing]
[Gomes’s] train of thought.” Up to that point in Gomes’s direct examination, we note
that Boer’s counsel made at least 26 objections either to Gomes’s counsel’s questions or
to Gomes’s answers and that 22 of those objections were sustained. Indeed, the court
noted that “many of” counsel’s objections were sustained. The court also said it saw no
abusive conduct from Boer’s legal team and instead observed that their objections
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followed the Evidence Code. Our review of the record shows no bullying or
unprofessional conduct. And once again, we note that Gomes’s counsel made no mistrial
motion, requested no sanctions, and requested no admonition.
Finally, Gomes’s counsel also during oral argument referred to Gomes’s hearing
difficulties during trial, though again gave no attention to them in the briefing. She
alleged there were many times during trial when Gomes had difficulty hearing, but the
trial court reacted with indifference The record does not bear this out. There were indeed
several times when either Gomes, who wears hearing aids, or his counsel told the court
that Gomes could not hear the proceedings, and each time the court responded with
proper concern. For example, Gomes’s counsel told the court Gomes had a hearing issue
during the first witness’s testimony, at which point the court said: “If we could have all
parties speak directly into the microphone…. [I]f anyone has issues seeing the witness,
hearing the witness, or seeing or hearing any of us, please raise your hand.” The court
also said then that Gomes has a right to hear the proceedings. Later that day during a
break, the court checked to make sure the issue with Gomes’s hearing device had been
resolved. And later still that same day, Gomes’s attorney told the court that neither
Gomes’s listening device nor his hearing aids were working, and the court adjourned the
trial until the next court day because Gomes could not hear.
There were at least two other times when the court temporarily stopped the trial
because Gomes’s listening device stopped working. The court never expressed
frustration or impatience with Gomes’s hearing troubles. Instead, the record shows the
court was attentive and responsive to the problem. There are several instances of the
court showing concern for Gomes’s hearing without anyone raising the issue. One time,
the court told Boer’s counsel to state his objections louder into the microphone so that
Gomes could hear. Another time, the court even reminded Gomes’s own counsel to
speak into the microphone so her client could hear. The court also instructed most of the
witnesses when they took the stand to speak into the microphone, and the court
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throughout the trial reminded witnesses and attorneys to either speak louder or into the
microphone. The record does not reflect that the court ever became upset; instead, it
shows the court was concerned about everyone’s ability to hear well and would do
whatever was necessary, including adjourn early, to ensure everyone could hear the
whole trial. Gomes’s counsel’s argument that the court was somehow indifferent to
Gomes’s hearing disability is not supported by the record.
V. The evidence does not compel a verdict in Gomes’s favor
Gomes contends the jury’s verdict on the breach of contract, negligence, private
nuisance, and trespass causes of action is inconsistent with the evidence presented at trial.
We disagree.
Gomes asserts the evidence establishes Boer’s liability on each of these four
claims. But besides a short assertion that the standard of review is de novo, Gomes does
not offer any kind of legal framework for us to analyze his claims of an inconsistent
verdict. Moreover, the standard of review is not de novo.
In a case such as this one, “ ‘where the trier of fact has expressly or implicitly
concluded that the party with the burden of proof did not carry the burden and that party
appeals, … [¶] … the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically,
the question becomes whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.” ’ ” (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465—466 (Sonic).)
Gomes does not attempt to show how his evidence was (1) uncontradicted and
unimpeached and (2) of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding in his favor. (Sonic, supra,
196 Cal.App.4th at p. 465.) Because he has not even identified the correct standard of
review, his argument is thus not tailored to it, and for that reason he has forfeited the
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issue. (Jameson v. Desta (2018) 5 Cal.5th 594, 608—609 [it is appellant’s burden to
establish error]; Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948
[failure to acknowledge proper scope of review is a concession of lack of merit].)
We also find this issue forfeited because Gomes discussed none of the evidence in
support of the verdict, most especially Brumley’s testimony. “ ‘In every appeal, “the
appellant has the duty to fairly summarize all of the facts in the light most favorable to
the judgment. [Citation.] Further, the burden to provide a fair summary of the evidence
‘grows with the complexity of the record. [Citation.]’ ” ’ [Citations.] When, as in this
case, an appellant fails to fulfill this duty the claim is forfeited.” (Oak Valley Hospital
District v. State Department of Health Care Services (2020) 53 Cal.App.5th 212, 237.)
Gomes cites and discusses only evidence that would tend to support findings in his
favor on the breach of contract, negligence, private nuisance, and trespass claims. He
does not cite or discuss Brumley’s testimony anywhere in his briefing. Indeed, he does
not even mention that Boer called an expert witness, even though Brumley contradicted
Minney’s testimony about the condition of the Premises and the adequacy of Boer’s
water and erosion control measures. The condition of the premises and the adequacy of
Boer’s control measures were relevant to the breach of contract, negligence, private
nuisance, and trespass claims. Gomes’s theory, as explained in his brief, is that Boer’s
failure to properly maintain the Premises constituted a breach of contract and negligence,
and the resulting run-off and erosion constituted a nuisance and trespass. Brumley’s
testimony was relevant to these theories of recovery.
We see no reason why the jury was not entitled to credit Brumley’s testimony over
Minney’s. The failure to discuss Brumley’s testimony constitutes a failure by Gomes to
fairly summarize the relevant evidence, which results in forfeiture of the issue.
VI. Attorney fees
The judgment entered upon the jury’s verdict did not award attorney fees or costs.
Boer then filed a motion for attorney fees and costs, requesting $488,998.87 in fees and
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$112,219.77 in costs, under the lease provision providing the prevailing party a right to
reasonable attorney fees and costs in any litigation to enforce the terms of the lease.
Gomes opposed the motion. Following argument, in a detailed written order, the court
awarded Boer $403,222.62 in attorney fees and no costs. Gomes filed a separate notice
of appeal from the order awarding fees.
Gomes begins his opening brief in the second, parallel appeal by rearguing his
grounds for reversing the judgment, which is unnecessary, before turning to his
contention that the attorney fees award should be modified downward. The section of his
opening brief addressing modification of the fee award contains almost no citation to any
substantive law. It does not cite a standard of review for an attorney fees award. He cites
only one statute, Code of Civil Procedure section 1033.5, subdivision (c), which sets
forth four guiding factors for trial courts to determine cost awards. This statute, however,
says nothing about appellate standards of review, and is irrelevant because Boer was not
awarded any costs.
Gomes argues the fees award should be reduced essentially because he cannot
afford to pay it. He states that Boer had too many lawyers staffed to the case, that it
retained unnecessary expert witnesses, and that its lawyers were unnecessarily litigious in
that they raised many irrelevant issues in the trial court. None of these contentions are
supported by citations to the record or any controlling law. Gomes contends the fee
award should be reduced to one-sixth of the total amount awarded because only one of
the six causes of action of the cross-complaint was for breach of the lease, while the rest
sounded in tort law, and the lease provision authorizing the fee award states that fees
would be recoverable in an to enforce the lease terms. Gomes reads this lease provision
restrictively, claiming that since the other five causes of action sounded in tort, Boer
should not be entitled to recover fees for legal services provided in connection with those
causes of action. But again, Gomes offers no legal support for this argument.
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In sum, Gomes cites just one irrelevant statute in the section of his brief devoted to
the attorney fees award. For his failure to cite the record or any relevant legal authority,
this argument is forfeited. (Arega v. Bay Area Rapid Transit Dist. (2022) 83 Cal.App.5th
308, 318; Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003,
1021—1022.) We therefore will not disturb the attorney fees award.
DISPOSITION
The judgment and the order awarding attorney fees are affirmed. Respondent is
awarded its costs in both appeals.
SNAUFFER, J.
WE CONCUR:
MEEHAN, Acting P. J.
DE SANTOS, J.
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