Wise v. Drulias CA2/4 ( 2023 )

Filed 8/3/23 Wise v. Drulias CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ELIZABETH SCOTT WISE B316975
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. 19LBCV00372
DEAN W. DRULIAS, as
Administrator, etc.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Affirmed.
Michel, Miller, Park, Allen L. Michel and Won M. Park for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Elizabeth Scott Wise sued Robert E. Long for damages
stemming from Long’s exclusion of Wise from her home, which
she co-owned with Long and her former spouse, Alfred Wise, Jr.
(Alfred). A jury found in Wise’s favor on her claims for negligence,
negligent infliction of emotional distress, and conversion.
Following entry of judgment, Long moved for judgment
notwithstanding the verdict (JNOV) and a new trial. At a hearing
on his post-trial motions, the trial court effectively denied the
JNOV motion, but ruled Long’s motion for a new trial would be
granted unless Wise accepted a remittitur reducing her damages
from $516,050 to $344,950. Subsequently, Wise accepted the
remittitur, and an amended judgment reflecting her reduced
damages award was entered in her favor. Long appealed.
While this appeal was pending, Long died. Subsequently,
Dean W. Drulias was appointed the administrator of Long’s
estate and substituted for Long as the appellant in this appeal.
On appeal, Drulias contends Long’s JNOV motion should
have been granted or, in the alternative, a new trial should have
been granted because: (1) Wise’s negligence claims failed as a
matter of law; and (2) Wise was not entitled to emotional distress
damages on her negligence claims. For the reasons discussed
below, we reject Drulias’s arguments. Accordingly, we affirm.
2
BACKGROUND
I. Factual Background1
In March 2016, Long purchased a single-family home in
Signal Hill for Alfred and Wise to live in. Alfred and Wise moved
into the property soon after it was purchased. Long never resided
at the property. Later, by way of a quitclaim deed signed and
recorded in June 2016, Long conveyed equal ownership interests
in the property to himself, Alfred, and Wise.
In November 2016, Alfred moved out of the property and
filed for divorce from Wise. Wise continued to reside at the home.
In early September 2018, Wise agreed to work as a live-in
nanny for her grandchildren in Connecticut. Her employment
contract stated her position would begin on September 14, 2018,
and terminate on June 30, 2019. While working as a nanny, Wise
kept furniture at her home, maintained her own bedroom, and
returned to the property at least once per month, for as long as a
week at a time.
In February 2019, Wise agreed to lease a bedroom in the
home to Edouard Knighton2 beginning March 1, 2019. That same
1 The following undisputed facts are taken from: (1) the
settled statement prepared by Long and certified by the trial
court pursuant to California Rules of Court rule 8.137; (2) the
exhibits admitted into evidence at trial included in the
appellant’s appendix filed in this case; (3) the declaration of
Edwin Fahlen in support of Long’s post-trial motions; and (4) the
declaration of J. Owen Murrin in support of Wise’s opposition to
Long’s post-trial motions.
2 Knighton was a plaintiff in the underlying lawsuit and a
respondent to this appeal. The parties settled the appeal with
respect to Knighton on March 13, 2023. Subsequently, however,
3
month, Long agreed to rent the home exclusively to Daniel Reyes.
Sometime before February 28, 2019, while Wise was not at the
property, Long changed the locks to the property, and Reyes
began residing at the home.
When Knighton went to the home on February 28, 2019, to
move in, he discovered the keys provided by Wise did not work.
Knighton also observed a broken door lock on the ground. At the
time, Wise had numerous personal items, including furniture,
kitchenware, bedding, rugs, towels, and appliances, inside the
home.
In March or April 2019, Wise learned Reyes was residing at
the home pursuant to a lease agreement with Long. On April 6,
2019, Wise attempted to enter the property, but was unable to do
so due to Reyes’s presence. Wise did not regain possession of the
property until January 25, 2020, after prevailing in an unlawful
detainer action against Reyes.
II. Procedural Background
In June 2019, Wise sued Long for the following ten causes
of action: trespass (first cause of action); conversion (second cause
of action); negligence (third cause of action); violation of Civil
Code section 789.3, subdivision (b) (fourth cause of action);
intentional or negligent infliction of emotional distress (fifth
cause of action); wrongful eviction (sixth cause of action);
negligent supervision, hiring, and retention (seventh cause of
the parties did not file a request for dismissal or notice of
abandonment in the time required by California Rules of Court,
rule 8.244(a)(3). Therefore, on May 15, 2023, we dismissed the
appeal with respect to Knighton as abandoned and directed each
side to bear their own costs on appeal under California Rules of
Court, rule 8.244(a)(4).
4
action); breach of contract (eighth cause of action); specific
performance and/or injunctive relief (ninth cause of action); and
declaratory relief/partition (tenth cause of action).3
The jury trial in this case began on August 10, 2021. Two
days later, Wise rested and Long moved for nonsuit. The trial
court granted the motion with respect to Wise’s first, fourth,
sixth, seventh, and ninth causes of action. It also granted the
motion with respect to Wise’s claim for punitive damages.
Sometime before deliberations, Wise abandoned her tenth cause
of action, as she did not include the claim on the general verdict
form agreed to by the parties and provided to the court.
The jury reached a verdict on August 13, 2021, finding in
favor of Wise and against Long on Wise’s claims for negligence,
negligent infliction of emotional distress, and conversion. It found
against Wise and in favor of Long on her claims for breach of
contract and intentional infliction of emotional distress. The
verdict form reflects the jury awarded Wise $115,900 in past
economic damages, $55,200 in future economic damages,
$289,750 for past noneconomic loss, including physical pain and
mental suffering, and $55,200 for future noneconomic loss,
including physical pain and mental suffering. The sum of these
amounts is $516,050. However, on the final line at the bottom of
the verdict form labeled “TOTAL[,]” the amount listed by the jury
was $344,950.
On August 26, 2021, the trial court entered judgment on
the verdict. The judgment recounted the jury’s findings of
liability set forth on the verdict form and awarded Wise $516,050
3 Wise also asserted her first, second, third, and fourth
causes of action against Reyes. At some point prior to entry of
judgment, Wise settled her claims with respect to Reyes.
5
in damages, i.e., the accurate sum of the four line items of
damages listed on the verdict form.
On September 10, 2021, Long moved for JNOV and for a
new trial. At the hearing on the motions held on October 19,
2021, the trial court rejected Long’s contentions disputing his
liability for negligence, as well as his argument challenging
Wise’s entitlement to damages for emotional distress, and
effectively denied the JNOV motion. The court ruled, however,
that due to the confusing nature of the jury’s responses on the
general verdict form relating to Wise’s total damages, it would
grant Long’s motion for a new trial unless, by October 29, 2021,
Wise accepted a remittitur reducing her total damages to
$344,950.
On October 27, 2021, Wise filed a document accepting the
trial court’s remittitur and consenting to its reduction of her
damages award. The next day, the court set aside the prior
judgment entered in August 2021 and entered an amended
judgment awarding $344,950 in damages to Wise. Long appealed
from the amended judgment.
In June 2022, while this appeal was pending, this court
was informed Long had passed away. Subsequently, in
September 2022, Drulias was appointed as administrator of
Long’s estate and moved to substitute himself as the appellant in
this appeal. This court granted Drulias’s motion for substitution
in October 2022.
DISCUSSION
I. Standards of Review
“The trial court’s power to grant a motion for judgment
notwithstanding the verdict is the same as its power to grant a
6
directed verdict. [Citation.] ‘A motion for judgment
notwithstanding the verdict may be granted only if it appears
from the evidence, viewed in the light most favorable to the party
securing the verdict, that there is no substantial evidence in
support.’ [Citations.] On appeal from the denial of a motion for
judgment notwithstanding the verdict, we determine whether
there is any substantial evidence, contradicted or uncontradicted,
supporting the jury’s verdict. [Citation.] If there is, we must
affirm the denial of the motion. [Citations.] If the appeal
challenging the denial of the motion for judgment
notwithstanding the verdict raises purely legal questions,
however, our review is de novo.” (Wolf v. Walt Disney Pictures &
Television (2008) 162 Cal.App.4th 1107, 1138.)
Although not entirely clear, in asserting Long’s motion for a
new trial should have been granted, Drulias appears to rely on
Code of Civil Procedure, section 657, subdivision (6), which
permits a new trial where “the verdict . . . is against law.” “The
jury’s verdict was ‘against law’ only if it was ‘unsupported by any
substantial evidence, i.e., [if] the entire evidence [was] such as
would justify a directed verdict against the part[y] in whose favor
the verdict [was] returned.’” (Sanchez-Corea v. Bank of America
(1985) 38 Cal.3d 892, 906.) Consequently, when evaluating
whether the trial court correctly concluded the verdict is not
“against law[,]” the appellate court employs the same standard
applicable to review of an order denying a motion for JNOV. (See
id. at pp. 906-907.) In addition, “legal challenges which may be
brought by way of section 657, subdivision 6 . . . are not limited to
those raised before verdict or judgment.” (Hoffman-Haag v.
Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15.)
7
II. Analysis
Drulias contends the trial court should have granted Long’s
motion for JNOV or, alternatively, granted a new trial. In
support of his position, Drulias argues: (1) Wise’s claims for
negligence and negligent infliction of emotional distress fail as a
matter of law; and (2) Wise was not entitled to “personal injury
damages[ ]” on her negligence claims. We address each argument
in turn below.
A. Liability for Negligence
Preliminarily, to provide context for Drulias’s arguments
disputing Long’s negligence liability, we discuss the relevant
principles governing the rights and duties of cotenants of real
property. “‘Cotenancy’ is the legal term commonly used to
designate ownership by several persons of undivided interests in
real property, as opposed to ownership in ‘severalty,’ which
designates ownership by individuals of separate parcels or
portions of parcels. The cotenants own the property by one joint
title and in one right, and thus have one common freehold.” (4
Miller & Starr, Cal. Real Estate (4th ed. 2023) § 11:1, fns.
omitted.)
In general, cotenants each “ha[ve] an equal right to
possession of the entire property, and no cotenant has a right to
the exclusive possession of the property as against another
cotenant.” (4 Miller & Starr, Cal. Real Estate, supra, § 11.2, fns.
omitted.) Therefore, “[a]s between the cotenants, each has the
right to enter on and to occupy the entire property, and no
cotenant has the right to exclude another cotenant from any
portion of the property.” (Ibid, fns. omitted.) “Regardless of the
general rule that precludes exclusive possession by one cotenant,
8
a cotenant may become a tenant of the other cotenants by
agreement.” (4 Miller & Starr, Cal. Real Estate, supra, § 11:4,
fns. omitted.)
In addition to having an equal right to possession of the
entire property, “[e]ach cotenant may lease or license his or her
right to occupy and use the common property to a third person to
the same extent that it could be occupied and used by the lessor
cotenant. However, a cotenant who does not join in a lease is not
bound by its terms conferring the right of exclusive possession to
the lessee. [¶] The other cotenants cannot cancel the lease or
license; nor can they recover exclusive possession of the entire
property. They are only entitled to the enjoyment of possession
with the lessee or licensee, and if they dispossess the lessee, they
may themselves be liable for trespass.” (4 Miller & Starr, Cal.
Real Estate, supra, § 11.3, fns. omitted.)
With these principles in mind, we direct our attention to
Drulias’s arguments challenging Long’s liability for negligence.
1. Statutory Claim of Ouster as Exclusive
Means of Recovering Damages
Drulias first contends Wise’s negligence claims fail because
a cotenant of property who has been excluded therefrom by
another cotenant can only recover damages arising from the
exclusion by asserting a claim of ouster under Civil Code section
843, subdivision (c), against the excluding cotenant. He therefore
asserts a claim for negligence “is unavailable as a matter of law
in [these] circumstances.” In support of his contention, Drulias
relies primarily on an excerpt of Miller and Starr’s treatise on
California Real Estate and Locke v. Peters (1884) 65 Cal. 161.
Drulias’s argument is unavailing because it is not
supported by the authorities cited. With respect to the Miller and
9
Starr treatise, Drulias correctly observes that section 11.4 states,
in relevant part: “A cotenant who is not in possession [of the
property] may only recover the rents and profits, or the value of
possession, from the cotenant in possession when there has been
an ouster excluding the cotenant from possession, or when the
other cotenant’s occupancy was pursuant to an agreement to
share the rents and profits from their property. Absent an
agreement or an ouster, a cotenant out of possession has no right
to recover the rental value of the property from a cotenant in
possession.” (4 Miller & Starr, Cal. Real Estate, supra, § 11.4, fns.
omitted.) In so doing, the treatise clarifies when a cotenant who
is not in possession of the property may recover rents and profits
from a cotenant in possession. (See ibid.) Nothing in that section
states or otherwise suggests that a claim for ouster is a cotenant’s
sole means of obtaining monetary relief when he or she has been
excluded from the property by another cotenant. (See ibid.) In
addition, Drulias does not cite—and we could not locate—any
other portion of the treatise stating a cotenant may not assert a
negligence claim against another cotenant where the latter has
excluded the former from the property.
Locke v. Peters, supra, 65 Cal. 161, likewise does not
support Drulias’s argument. There, our Supreme Court held that
a plaintiff asserting a claim for ejectment4 may only recover
4 “The action of ejectment is a possessory action in which the
plaintiff must show himself entitled to the present possession,
and that he has been deprived thereof.” (Montgomery v. Santa
Ana & W.R. Co. (1894) 104 Cal. 186, 197.) “Despite the simplicity
of the action of ejectment, it has been largely superseded by two
other remedies[,]” namely, statutory actions for quiet title and
unlawful detainer. (5 Witkin, Cal. Procedure (6th ed. 2023)
Pleading, § 636.)
10
damages where he or she has obtained “a judgment for recovery
of the possession of the demanded premises.” (Locke v. Peters,
supra, at pp. 162-163; see also Nathan v. Dierrsen (1913) 164 Cal.
607, 609-610 [citing Locke v. Peters, among other cases, to show
“the established rule at common law that an action against a
wrongful disseisor [(i.e., someone who wrongfully dispossesses
another of his or her real property)] for mesne profits could not be
maintained except by a plaintiff who[,] . . . at least, had recovered
a judgment in ejectment”].) Accordingly, the court reversed the
judgment awarding the plaintiff $500 in damages (Locke v.
Peters, supra, at pp. 162-163), as the jury’s verdict did not reflect
“adjudication of the plaintiff’s right of possession, or with
reference to the ouster, or as to [the] defendant’s alleged
withholding of the possession.” (Id. at p. 162, original italics.) The
court did not address whether a cotenant is limited solely to a
claim of ouster to recover damages for injuries allegedly
stemming from his or her exclusion from the property by another
cotenant. (See id. at pp. 161-163.) It did not address the
availability of a negligence claim. (See ibid.)
Having concluded Drulias’s argument is unsupported by
the authorities on which he relies, we turn to the policy argument
raised in support of his position. On this point, Drulias asserts
that if a cotenant “is permitted to sue [his or] her cotenant for
negligence, the latter’s otherwise absolute right to concurrent
possession (which includes the right to lease without the consent
of the other [cotenant] . . . ) could be stripped away completely
without compensation. Rather than exercise the right freely, the
owner of it would never be certain if he or she might be subject to
a suit for negligence merely by leasing the property to a third
11
person, even though the [ownership interest] expressly allows
such conduct regardless of the consent of the other [cotenant].”
Drulias’s argument is meritless because it misconstrues the
nature of the wrong on which Wise’s negligence claims are based.
Wise did not—as Drulias suggests—allege Long was negligent
simply because he leased the property to Reyes without her
consent. Instead, the record reflects that throughout the
underlying case, Wise asserted Long was negligent because he
dispossessed her of her home, from February 2019 to January
2020, by changing the locks and promising Reyes the right of
exclusive possession of the premises for the duration of his lease.
Because Wise does not seek to impose liability based solely on
Long’s exercise of his right to lease the property to a tenant of his
choosing, we are not persuaded that permitting a negligence
claim on the facts in this case will essentially “strip[ ] away” that
right from other co-owners of property, as Drulias contends.
Accordingly, we reject as unsupported Drulias’s contention
that, as a matter of law, Wise could not assert a negligence claim
against Long on the facts in this case.
2. Whether Wise Proved the Essential
Elements of Duty and Breach
Next, Drulias argues that even if Wise is not prohibited
from proceeding on a theory of negligence against Long, her
claims fail because she did not establish a prima facie case for
negligence. Specifically, Drulias asserts Wise failed to satisfy the
elements of duty and breach. (See Peredia v. HR Mobile Services,
Inc. (2018) 25 Cal.App.5th 680, 687 [“The elements of any
negligence cause of action are duty, breach of duty, proximate
cause, and damages”].)
12
a. Duty
Although not entirely clear, Drulias appears to contend
Wise cannot satisfy the element of duty because, as a matter of
law, a cotenant of property does not owe a duty of care to other
cotenants when exercising his or her right to lease the property to
a third-party. As discussed below, we reject this argument for
three reasons.
First, the argument has been forfeited because it was not
adequately presented and/or developed in the trial court. In
addressing whether cotenants of property owe a duty of care to
one another in his motion for JNOV, Long perfunctorily asserted:
“[W]hile co-owners of property may have duties to one another, a
duty of care (i.e., to not act negligently) is not one recognized in
case law.” (Italics omitted.) In support of this point, Long cited
Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja), but did not
explain how that case or any other authorities applied to support
his contention. Similarly, in his motion for a new trial, Long
made a brief, conclusory assertion he did not owe a duty of care to
Wise, and cited to the pages in his JNOV motion discussing the
matter. On this record, we conclude Long “did not adequately
raise this issue in the trial court and therefore forfeited the issue
on appeal.” (Carpenter & Zuckerman, LLP v. Cohen (2011) 195
Cal.App.4th 373, 384 fn. 6; see also Bently Reserve LP v.
Papaliolios (2013) 218 Cal.App.4th 418, 435-436 [conclusory two-
sentence argument asserted in the trial court was insufficient to
preserve an issue on appeal].)
Second, even if the duty issue had been sufficiently raised
in the trial court, Drulias’s argument is unavailing because it
does not address the issue at the heart of the question of whether
a person owes a duty of care to another. He contends Biakanja,
13
supra, 49 Cal.2d 647, sets forth “the traditional balancing test for
determining if one person owes a duty of care to another[,]”and
that straightforward application of that test “requires a finding
there is no duty of due care[ ]” between cotenants seeking to lease
their jointly-owned property to different tenants. This argument,
however, misstates and grossly oversimplifies the legal principles
governing the existence of duty in California.
In Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764(Cabral), our Supreme Court set forth the principles governing
the element of duty in the context of negligence. It stated:
“The general rule in California is that ‘[e]veryone is
responsible . . . for an injury occasioned to another by his or her
want of ordinary care or skill in the management of his or her
property or person . . . .’ (Civ. Code, § 1714, subd. (a).) In other
words, ‘each person has a duty to use ordinary care and is “liable
for injuries caused by his failure to exercise reasonable care in
the circumstances . . . .”’ [Citations.] In [Rowland v. Christian
(1968) 69 Cal.2d 108 (Rowland)], this court identified several
considerations that, when balanced together, may justify a
departure from the fundamental principle embodied in Civil Code
section 1714: ‘the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness
of the connection between the defendants’ conduct and the injury
suffered, the moral blame attached to the defendant’s conduct,
the policy of preventing future harm, the extent of the burden to
the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.’ [Citations.] As we have also explained, however, in the
absence of a statutory provision establishing an exception to the
14
general rule of Civil Code section 1714, courts should create one
only where ‘clearly supported by public policy.’” (Cabral, supra, at
p. 771.)
The Cabral court then clarified how the Rowland factors
should be applied. On this point, the Supreme Court stated:
“[T]he Rowland factors are evaluated at a broad level of factual
generality. Thus, as to foreseeability, we have explained that the
court’s task in determining duty ‘is not to decide whether a
particular plaintiff’s injury was reasonably foreseeable in light of
a particular defendant’s conduct, but rather to evaluate more
generally whether the category of negligent conduct at issue is
sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed . . . .’ [Citations.] [¶] In
applying the other Rowland factors, as well, we have asked not
whether they support an exception to the general duty of
reasonable care on the facts of the particular case before us, but
whether carving out an entire category of cases from that general
duty rule is justified by clear considerations of policy.” (Cabral,
supra, 51 Cal.4th at p. 772, italics omitted.)
We acknowledge that, by relying on Biakanja,5 Drulias
briefly discusses some—but not all—of the Rowland factors,
namely, the foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct,
and the policy of preventing future harm. In so doing, however,
5 In articulating the considerations that may warrant a
departure from Civil Code section 1714, the Rowland court cited
Biakanja, supra, 49 Cal.2d 647, among numerous other
authorities. (Rowland, supra, 69 Cal.2d at pp. 112-113.)
15
Drulias does not couch his analysis of those factors in the context
of the overarching framework set forth in Cabral, supra, 51
Cal.4th at pp. 771-772. Specifically, Drulias does not clearly
explain how, on balance, the factors he has discussed justify a
categorical “exception[ ] to Civil Code section 1714’s general duty
of ordinary care” based on “foreseeability and policy
considerations[.]” (Cabral, supra, at p. 772.)
Finally, Drulias’s duty argument is meritless because it
misconstrues the dispute giving rise to this case and the wrong
on which Wise’s negligence claims are based. Drulias’s argument
rests on his view that this case simply concerns “a . . . situation
involving co-owners where one has leased the property to a third
party, and the other co-owner wishes to lease or has leased the
property to a different party.” Wise’s claims, however, are not
based on a mere disagreement between her and Long over to
whom to rent their property. Instead, as discussed above, her
claims seek redress for Long’s dispossession of Wise of the
property for 11 months.
In sum, for the reasons discussed above, we are not
persuaded by Drulias’s contention that Long did not owe a duty
of care to Wise. We therefore conclude Drulias has not shown
Long was entitled to JNOV or a new trial based on Wise’s failure
to satisfy the first element of a prima facie case for negligence.
b. Breach
Drulias also contends Wise failed to provide sufficient
evidence of breach. Relying primarily on Miller v. Los Angeles
County Flood Control Dist. (1973) 8 Cal.3d 689 (Miller) and
Truman v. Vargas (1969) 275 Cal.App.2d 976 (Truman), he
argues expert testimony was required to show Long’s actions fell
below the standard of care, as “[t]he proper way for co-owners of
16
real property to behave toward one another when both have
exercised the right to lease co-owned property to a third party is
not a matter of common knowledge.” Drulias therefore argues
that because Wise did not present expert testimony on the issue
of breach, she did not establish a prima facie case of negligence.
Drulias’s argument is without merit because the cases on
which it relies are factually distinguishable from this case. In
Miller, the appellate court considered whether the plaintiffs were
required to present expert testimony showing the defendant, a
contractor, failed to exercise due care in building the plaintiffs’
home. (Miller, supra, 8 Cal.3d at pp. 701-702.) In so doing, the
court first observed “it is necessary for the plaintiff to introduce
expert opinion evidence in order to establish a prima face case[ ]”
when “the matter in issue is one within the knowledge of experts
only and not within the common knowledge of laymen[.]” (Id. at
p. 702, italics omitted.) Applying this principle, the appellate
court held “nonsuit was justified[ ]” on the plaintiffs’ negligence
claim because “the jury could not determine from common
experience whether [the contractor] had acted negligently . . . .”
(Id. at p. 704.) It reasoned: “Building homes is a complicated
activity. The average layman has neither training nor experience
in the construction industry and ordinarily cannot determine
whether a particular building has been built with the requisite
skill and in accordance with the standards prescribed by law or
prevailing in the industry.” (Id. at pp. 702-703, fn. omitted.)
In Truman, the appellate court addressed whether expert
testimony was required to establish a car passenger’s failure to
wear a seatbelt was the proximate cause of the injuries he
sustained in an accident. (Truman, supra, 275 Cal.App.2d at pp.
980, 982.) The court held that, on the facts before it, expert
17
testimony was necessary because “it was not for nonexpert minds
to determine what the consequences to [the passenger] would
have been if he had been using a seat belt.” (Id. at p. 982.) In
support of this conclusion, the appellate court explained that a
“nonexpert could only guess[ ]” about “what would have been the
effects upon [the passenger’s] body . . . had [he] been wearing the
seat belt[ ]” during the car collision giving rise to the case. (Id. at
p. 983)
As should be obvious, in the cases cited by Drulias, the
appellate courts did not determine whether expert testimony was
required to establish the element of breach in factual
circumstances similar to those presented in this case. They do not
address the existence or extent of a duty of care between
cotenants. Consequently, we are unpersuaded these cases
support Drulias’s contention of error. (See McGee v. Superior
Court (1985) 176 Cal.App.3d 221, 226 [“The holding of a decision
is limited by the facts of the case being decided, notwithstanding
the use of overly broad language by the court in stating the issue
before it or its holding or in its reasoning”].)
In addition, we reject Drulias’s argument because, once
again, it rests on an incorrect view of the wrong underlying
Wise’s negligence claims. According to Drulias, expert testimony
was required because a layperson cannot determine whether a
cotenant violates the standard of care by leasing the property to a
tenant without the consent of his or her cotenant. As discussed
above, however, Wise did not—as Drulias suggests—assert Long
breached his duty of care simply because he rented the property
to Reyes without her approval. Instead, Wise argued Long was
negligent because he excluded her from her home for nearly a
year by changing the locks to the property, and promising Reyes
18
the exclusive right to reside in the home, without her prior
knowledge or consent. Under these circumstances, we are not
persuaded that the jury required knowledge of the assertedly
complex doctrines governing co-ownership of property to
ascertain whether Long’s actions fell below the “standard of care
. . . of a reasonably prudent person under like circumstances.”
(Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.) On the
contrary, given the facts in this case, we conclude the jury could
determine from common experience whether Long had acted
negligently.
Therefore, for the reasons discussed above, we reject
Drulias’s contention that Wise did not prove the element of
breach. We therefore conclude Drulias has not shown Long was
entitled to JNOV or a new trial based on Wise’s failure to satisfy
the second element of a prima facie case for negligence.
B. Entitlement to “Personal Injury” Damages
Drulias argues the trial court should have granted one of
his post-trial motions because the jury erroneously awarded Wise
“personal injury damages” on her negligence claims. Specifically,
relying on Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220and Erlich v. Menezes (1999) 21 Cal.4th 543 (Erlich), Drulias
contends Wise was not entitled to emotional distress damages
because “[t]here was no evidence that Long had assumed a duty
to Wise in which her emotional tranquility was an object[,]” and
because Long’s conduct did not result in or create a risk of
physical injury. Once again, we are not persuaded by Drulias’s
argument.
We begin our analysis by noting emotional distress
damages are not always available in an action for negligence.
(Erlich, supra, 21 Cal.4th at p. 554.) In general, “‘unless the
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defendant has assumed a duty to [the] plaintiff in which the
emotional condition of the plaintiff is an object, recovery [of
emotional distress damages] is available only if the emotional
distress arises out of the defendant’s breach of some other legal
duty and the emotional distress is proximately caused by [breach
of the independent duty]. Even then, with rare exceptions, a
breach of the duty must threaten physical injury, not simply
damage to property or financial interests.’” (Id. at p. 555.)
“However, the limits imposed with respect to recovery for
emotional distress caused by a defendant’s negligence do not
apply when distress is the result of a defendant’s commission of
the distinct torts of trespass, nuisance or conversion.” (Gonzalez
v. Personal Storage, Inc., (1997) 56 Cal.App.4th 464, 475
(Gonzalez).) Therefore, even if a plaintiff may not recover
emotional distress damages as part of a negligence claim, he or
she may still recover those damages as part of a conversion claim.
(Id. at p. 477 [“notwithstanding further developments in the law
of negligence, damages for emotional distress growing out of a
defendant’s conversion of personal property are recoverable”].)
Applying these principles, here, the jury found in Wise’s
favor on her conversion claim, as well as her negligence claims.
Although the general verdict form provided by the parties asked
the jury to specify Wise’s economic and noneconomic damages,
both past and present, it did not ask the jury to apportion the
damages awarded to Wise for each of the claims on which she
prevailed. Nothing in the record reflects Long objected to the
verdict form, or proposed an alternative form apportioning Wise’s
damages. Under these circumstances, and assuming the jury
included emotional distress damages in its award of noneconomic
damages for pain and suffering, we cannot conclude the jury
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awarded those damages to Wise solely as part of her negligence
claims. Therefore, because Wise prevailed on her conversion
claim and could recover emotional distress damages on that claim
(Gonzalez, supra, 56 Cal.App.4th at p. 477), we discern no error
in the trial court’s denial of Long’s post-trial motions based on the
propriety of Wise’s damages.6
6 In his motion for JNOV, Long relied on Civil Code section
3336 and Lint v. Chisholm (1981) 121 Cal.App.3d 615 to assert
“[e]motional distress damages are not included[ ]” on a conversion
claim. We need not consider this argument because Drulias did
not raise it in his appellate brief. (Aptos Council v. County of
Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not
raised in the appellant’s opening brief are deemed waived or
abandoned”].) In any event, even if the argument had been raised
on appeal, we would have rejected it. The authorities cited by
Long merely set forth the presumed measure of damages for
conversion, and do not prohibit an award of emotional distress
damages. (See Civ. Code, § 3336; see also Lint v. Chisholm,
supra, at pp. 624-625.) Further, as discussed above, the Gonzalez
court “conclude[d] that notwithstanding further developments in
the law of negligence, damages for emotional distress growing out
of a defendant’s conversion of personal property are recoverable.”
(Gonzalez, supra, 56 Cal.App.4th at p. 477.)
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DISPOSITION
The judgment is affirmed. Appellant shall bear his own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
ZUKIN, J.
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