Neff v. Boschee CA2/6

Filed 3/25/21 Neff v. Boschee CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BURKLEY NEFF et al., 2d Crim. No. B299670
(Super. Ct. No. 56-2015-00471260-
Plaintiffs and Respondents, CU-WE-VTA)
(Ventura County)
v.
ORDER MODIFYING OPINION
HOLLY BOSCHEE, AND DENYING REHEARING
[CHANGE IN JUDGMENT]
Defendant and Appellant;
VERE ENTERPRISES, INC. et al.,
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on March 5, 2021, be
modified as follows:
1. On page 2, the last sentence in the first paragraph, “We reject
these contentions and affirm,” is deleted and the following is
inserted in its place: “We modify the judgment as stated herein,
but otherwise affirm.”
2. On page 6, the two sentences under DISPOSITION are
deleted and the following is inserted in its place:
We modify the judgment to correct an apparent clerical
error. The jury verdict form shows that Boschee is 40
percent liable on the wrongful eviction cause of action.
The judgment erroneously states Boschee is 50 percent
liable. We correct the judgment to reflect the jury finding
that Boschee is 40 percent liable. In all other respects, we
affirm the judgment. Costs are awarded to respondents.
This modification changes the judgment.
We deny appellant’s petition for rehearing.
____________________________________________________________
Gilbert, P.J. Perren, J. Tangeman, J.
2
Filed 3/5/21 Neff v. Boschee CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BURKLEY NEFF et al., 2d Crim. No. B299670
(Super. Ct. No. 56-2015-00471260-
Plaintiffs and Respondents, CU-WE-VTA)
(Ventura County)
v.
HOLLY BOSCHEE,
Defendant and Appellant;
VERE ENTERPRISES, INC. et al.,
Defendants and Respondents.
Holly Boschee appeals a judgment entered in favor of
Burkley Neff and Renita Kay Griffin following a jury trial.
This lawsuit concerns the lock-out of Neff and Griffin from
Neff’s Fillmore home following foreclosure proceedings. Their
possessions, including sentimental personal property, were
removed from the home and damaged or destroyed when placed
in a trailer and open boat parked outside the home. Following a
jury trial, Neff and Griffin received a verdict for economic and
noneconomic damages against Boschee, real estate agent Carol
Anderson, and real estate firm Vere Enterprises, Inc., doing
business as RE/MAX of Valencia.1 Boschee appeals and raises
claims of error regarding the jury instructions and special verdict
form. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL HISTORY
On September 3, 2015, Neff filed a verified first amended
complaint alleging causes of action for wrongful eviction and
conversion, among others. Neff alleged that he was the owner of
residential real property located at 353 4th Street in Fillmore.
On June 2, 2015, Bank of America held a foreclosure sale of the
property. Neff and Griffin were then in legal possession, but
temporarily residing elsewhere, caregiving for an elderly family
member. Prior to the date of the foreclosure sale, Neff permitted
Boschee to move into the property as a caretaker.
The complaint also alleged that following the foreclosure
sale, Anderson contacted Neff and offered him “cash for keys.”
Neff refused. Anderson then contacted Boschee and made the
same offer. Boschee accepted, and then carelessly removed Neff’s
and Griffin’s possessions, placing them in a boat and trailer
parked in the driveway and exposing them to the weather.
Boschee and RE/MAX also changed the locks to the property. At
that time, Bank of America had not served Neff with a notice to
quit the premises or an unlawful detainer action. The complaint
1 To ease the reader’s task, we sometimes refer to the
parties Neff and Griffin as “Neff,” and Anderson and RE/MAX of
Valencia as “RE/MAX” except where clarity demands that we
draw a distinction. Neff was the owner of the Fillmore property
and Griffin is his fiancée.
2
attached photographs of Neff’s personal property in the open boat
and trailer.
Prior to trial, RE/MAX made a statutory offer to
compromise with Neff, pursuant to Code of Civil Procedure
section 998. RE/MAX offered Neff $27,501 in exchange for a
dismissal of the action and mutual release. RE/MAX proposed
that the parties bear their own costs, attorney fees, and expenses.
The written offer to compromise warned that if Neff failed to
obtain a more favorable judgment at trial, he could not recover
his post-offer costs and would pay RE/MAX’s costs from the time
of the statutory offer. Neff refused the statutory offer to
compromise and in mid-April 2017 the matter proceeded to trial.
Following trial, the jury completed special verdict forms
and decided in favor of Neff on causes of action for wrongful
eviction, constructive eviction, conversion, and elder abuse. The
jury apportioned fault concerning the wrongful eviction cause of
action as 50 percent for RE/MAX, 40 percent for Boschee, and 10
percent for another party not involved at trial. The jury
apportioned fault concerning the conversion cause of action at
100 percent for Boschee. It awarded $5,000 damages for
economic loss of property, $6,525 for medical expenses, and
$20,000 for noneconomic loss, including emotional distress.
Boschee then filed a motion for judgment notwithstanding
the verdict. The trial court denied the motion concerning the
wrongful eviction and conversion causes of action and decided
that the jury received proper instructions and sufficient evidence
supported its findings. The court granted the motion regarding
the constructive eviction and elder abuse causes of action due to
errors in the corresponding jury instructions and special verdict
questions.
3
On January 10, 2020, the trial court entered an amended
judgment. After adjusting for recovery of RE/MAX’s $26,888.61
costs based upon Neff’s refusal of the statutory offer to
compromise, the court ordered Neff to pay $4,613.61 to RE/MAX.
The court also ordered Boschee to pay $10,000 to Neff (50 percent
of $20,000) of the noneconomic damages.2
Boschee appeals and contends that the jury instructions
and special verdict form were erroneous. The parties have
prepared and submitted an appellate record consisting of the first
amended complaint, select jury instructions, the completed
special verdict form, select minute orders, and the amended
judgment. The appellate record does not contain a reporter’s
transcript of the trial proceedings, including any pre-trial or post-
trial proceedings.
DISCUSSION
Boschee argues that the special verdict form is erroneous
because it failed to inquire whether she committed the wrongful
acts as an agent of RE/MAX. Boschee also contends that the
special verdict form erroneously refers to “damaging/destroying”
of Neff’s personal property rather than “destroying” the property.
On appeal, we presume that a judgment is correct and an
appellant must provide an adequate record to establish
prejudicial error. (Kalta v. Fleets 101, Inc. (2019) 41 Cal.App.5th
514, 516-517.) An appellant must satisfy his burden of
establishing prejudicial error with reasoned argument and legal
authority to support his contentions. (Id. at p. 516.) We review
2RE/MAX filed a cross-complaint seeking contribution or
indemnity from Boschee. The amended judgment ordered
Boschee to pay 50 percent of the economic damages that RE/MAX
received credit for as an offset against Neff’s jury award.
4
only those contentions adequately raised and supported in the
appellant’s briefs. (Arnold v. Dignity Health (2020) 53
Cal.App.5th 412, 423.) These are long-held fundamental
principles of appellate procedure. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564; Arnold, at p. 423.)
Boschee has not provided a sufficient record indicating that
she objected to the jury instructions or requested additional
findings from the jury concerning the special verdict form.
(Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d
452, 456 [if special verdict is ambiguous, party adversely affected
should request more certain verdict]; Jensen v. BMW of North
America, Inc. (1995) 35 Cal.App.4th 112, 131 [party who fails to
object to special verdict form forfeits argument on appeal].) She
has forfeited her arguments on appeal. In any event, the jury
received proper pattern jury instructions regarding wrongful
eviction, conversion (including destruction of property), and
vicarious liability (civil conspiracy and aiding and abetting
wrongful acts). We presume the jury understood and followed the
instructions in the absence of evidence otherwise. (People v.
Myles (2012) 53 Cal.4th 1181, 1212.)
Following the filing of Boschee’s opening brief, the trial
court amended the judgment to reflect adjustments required for
RE/MAX’s offer to compromise. Boschee’s claims of error in the
judgment have been mooted by the amended judgment.
5
DISPOSITION
The judgment is affirmed. Costs are awarded to
respondents.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
6
Vincent J. O’Neill, Jr., Judge
Superior Court County of Ventura
______________________________
Larry DeSha for Defendant and Appellant.
Law Offices of Michael D. Kwasigroch, Michael D.
Kwasigroch for Plaintiffs and Respondents.
Carlson Law Group, Inc., Mark C. Carlson for Defendants
and Respondents.
7