Roshan v. Konop CA2/7

Filed 7/16/21 Roshan v. Konop CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KAVEH ROSHAN, B283908
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC562586)
v.
ROBERT C. KONOP et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, J. Stephen Czuleger, Judge. Affirmed.
SW Smyth and Andrew Smyth for Plaintiff and Appellant.
Hanger, Steinberg, Shapiro, & Ash, Jody Steinberg, and
Lisa Mead for Defendants and Respondents Brian Shields and
Brian Shields Plumbing, Inc.
Adams Stirling and Ronald M. St. Marie for Defendants
and Respondents Robert C. Konop, Jamie Button, Paul
Monczynski, and Villas Del Rey Condominiums Community
Association.
INTRODUCTION
Kaveh Roshan, owner of a condominium unit in a complex
governed by the Villas Del Rey Condominiums Community
Association, filed this action against Villas Del Rey and others,
alleging the improper installation of a water pipe in his building
caused flooding that damaged his personal property. A jury
found the defendants were not liable, and the trial court issued
an injunction, requested by Villas Del Rey in a cross-complaint,
directing Roshan to, among other things, comply with Villas Del
Rey’s declaration of covenants, conditions, and restrictions
(CC&Rs). Roshan appealed, contending the trial court erred in
excluding certain categories of evidence, admonishing Roshan
before the jury, and issuing the injunction. None of these
contentions has merit. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Roshan Files This Action
In October 2014 Roshan filed this action against Villas Del
Rey and its board members Robert C. Konop, Paul Monczynksi,
and Jamie Button (collectively, the Villas Del Rey defendants), as
well as Brian Shields and Brian Shields Plumbing, Inc.
(collectively and interchangeably, Shields). In the operative
second amended complaint, filed in January 2016, Roshan
asserted causes of action for negligence, negligent
misrepresentation, and fraud and deceit against all defendants;
breach of fiduciary duty and negligent interference with
prospective economic relations against the Villas Del Rey
2
defendants; and declaratory relief and breach of the CC&Rs
against Villas Del Rey.
Roshan alleged that on the morning of November 2, 2012
he received a frantic telephone call from Villas Del Rey’s on-site
manager, José Cañas, alerting him to a problem with a water
pipe recently installed above Roshan’s private storage area, or
“kennel,” located in his building’s garage. On arriving at the
scene, Roshan met Konop and Shields, the plumber who had
installed the pipe. Roshan saw that his kennel was “showered”
and flooded and that the pipe had “failed” in two places: a
“cracked” section near where the pipe connected to the original
plumbing, and a place where it appeared—at least to Konop and
Shields—someone had intentionally cut the pipe. The contents of
Roshan’s kennel, which included a “fully populated server rack”
of high-performance computer servers, were destroyed. At the
direction of Konop, Cañas filed a vandalism report with the
police.
Roshan alleged that as a result of his investigation,
however, he learned Shields had installed the water pipe without
using hangers to help support the pipe from the ceiling. An
“advisor plumber” told Roshan that, without the hangers, “there’s
absolutely no way this could have passed inspection.” Roshan
contacted the Los Angeles Department of Building and Safety
(LADBS), which “preliminarily determined no prior LA City
permit(s) were obtained by any of the Defendants” and initiated
an investigation. In the meantime, an engineering firm Roshan
hired opined the lack of ceiling hangers “was the inevitable cause
of the failed plumbing.” Roshan also filed a building permit
violation referral with the California Contractors State License
Board against Shields. Roshan alleged his referral resulted in a
3
finding Shields violated Business and Professions Code section
7110, which provides that a “[w]illful or deliberate disregard and
violation of the building laws of the state . . . constitutes a cause
for disciplinary action” against a licensed contractor.
Roshan alleged the defendants, in particular Monczynski,
continued to attempt to deceive him about what caused the pipe
to fail, insisting it was vandalism, and to lie to him that the
installation was properly permitted. Monczynski also told
Roshan that Roshan could not file a claim for damages to his
property under Villas Del Rey’s insurance policy because the
policy did not cover acts of vandalism. Meanwhile, according to
Roshan’s allegations, the defendants ignored his requests to
preserve evidence pending further investigation and, instead,
removed and replaced the pipe. Even so, Roshan alleged, when
LADBS inspectors visited the scene, they cited and fined Villas
Del Rey for failing to obtain the requisite permits to install the
water pipe and for more than a dozen other “‘repair’ violations”
throughout the garage.
Roshan alleged Villas Del Rey’s insurer denied his claim for
coverage of the damaged property in his kennel after the insurer
received instructions from Button “to deny all claims based on
Villas Del Rey’s rule that all residents store personal property in
their kennels at their own risk, including ‘water leaks’ from
common area plumbing.” When, in further discussions, Roshan
informed the insurance carrier that the “‘water leaks’” resulted
from “unpermitted plumbing,” the carrier told Roshan it was
denying his claim based on the evidence it received from Villas
Del Rey, which included photographs of the “‘severed’” portion of
the pipe only.
4
Finally, Roshan alleged Villas Del Rey retaliated against
him for notifying the association’s insurer of the unpermitted
water pipe by fining him $500 per day for supposed “architectural
violations” he committed in remodeling his condominium. He
alleged that Villas Del Rey had previously approved the
modifications and that these fines caused him to lose a
prospective buyer who was prepared to purchase his unit. In
addition to seeking $400,000 in damages, Roshan sought a
declaration that Villas Del Rey invalidly imposed the $500 daily
fine.
B. Villas Del Rey Files a Cross-complaint Against
Roshan
In April 2015 Villas Del Rey filed a cross-complaint against
Roshan for breach of the CC&Rs, nuisance, and declaratory
relief. Villas Del Rey alleged Roshan committed numerous
violations of its governing documents, including making
unauthorized modifications to his condominium unit and the
adjacent common area, for which he owed $37,000 in fines. Villas
Del Rey also alleged Roshan continued to obstruct its efforts to
make repairs to address problems caused by his modifications.
Villas Del Rey sought, among other things, monetary damages,
an “order compelling [Roshan] to immediately comply with [Villas
Del Rey’s] governing documents,”1 a judicial declaration that
those governing documents were enforceable against Roshan and
that he breached them, and “such other and further relief as the
court deems just and proper.”
1 The cross-complaint defined “governing documents” to
include Villas Del Rey’s “CC&R[s], By-Laws, and Rules and
Regulations.”
5
C. The Defendants File Motions in Limine To Exclude
Evidence of Insurance, LADBS Citations, and the
Lack of Permitting for the Water Pipe
Before trial, the Villas Del Rey defendants filed a motion in
limine to exclude evidence of Villas Del Rey’s insurance, arguing
such evidence was irrelevant, inadmissible under Evidence Code
section 1155, and unduly prejudicial under Evidence Code section
352. In his opposition to the motion, Roshan agreed he would
“not mention insurance to prove negligence.” “However,” he
argued, “one of the main reasons for Defendants’ retaliation
against [him] is because Defendants did not want [him] to file a
claim with [Villas Del Rey’s] insurance policy providing coverage
for property damage.” Roshan argued evidence of Villas Del
Rey’s insurance was therefore “crucial” to show why the Villas
Del Rey defendants “acted in bad faith and retaliated against”
him, and he stated he would “only . . . mention insurance for this
purpose.” The trial court granted the motion.
Shields filed a similar motion in limine to exclude evidence
of his insurance under Evidence Code sections 1155 and 352. In
his opposition, Roshan again agreed he would “not mention
insurance to prove negligence,” but only to show “why Defendants
have acted in bad faith and retaliated against” him. Shields also
filed a motion in limine to exclude evidence of any
communications between him and his insurer under, among
other authority, Evidence Code section 352. Roshan’s
“opposition” to this motion was a statement that he agreed “to
[the] exclusion of such communication.” Apparently, these two
motions by Shields were “withdrawn by stipulation” without the
trial court ruling on them.
6
The Villas Del Rey defendants also filed a motion in limine
to exclude evidence of any LADBS citations against them,
arguing such evidence was irrelevant and unduly prejudicial
under Evidence Code section 352, which the trial court granted.
Shields moved in limine on the same grounds to exclude evidence
regarding any “violation warnings or notices” to him from the
Contractors State License Board, in particular those concerning
the “failure to obtain permit[s],” which the court also granted. In
another motion in limine, based on the same grounds, Shields
sought to exclude evidence of the “lack of permitting” and “the
lack of ceiling hangers” for the water pipe he installed. The court
granted this motion with regard to the lack of permitting, but
denied it with regard to the lack of ceiling hangers. The court
denied an ex parte application by Roshan to reconsider the order
granting the motion with regard to the lack of permitting.
D. A Jury Finds the Defendants Are Not Liable, and the
Trial Court Issues an Injunction
The evidence and argument at the jury trial relevant to this
appeal centered on competing versions of what caused the pipe to
flood Roshan’s kennel. Roshan argued that Shields’s failure to
support the pipe with ceiling hangers caused the pipe to oscillate,
or “waggle,” during use, that this caused the pipe to crack near
where it joined the original plumbing, and that this crack was the
source of the “leak” that damaged Roshan’s servers. Roshan did
not dispute the pipe was also intentionally cut and “yanked”
down at an angle, but argued this happened after the pipe was
“depressurized” by the “spraying” from the crack. In fact, he
argued that Cañas, Konop, or Shields, or some combination of
them, on initially discovering the flooding and wanting to
7
disguise its true cause, broke into Roshan’s kennel and cut the
pipe before he arrived.
Shields and the Villas Del Rey defendants argued that,
when Cañas arrived on the scene of the flooded kennel (the first
person to do so), the pipe inside Roshan’s kennel was already cut
and pulled down at an angle toward Roshan’s servers. They
noted that the kennel was indisputably still locked when Roshan
arrived and that there was no evidence the lock had been
tampered with. They suggested Roshan, who admitted he was at
the kennel the night before, was “the only one with motive,
opportunity, and means” to cut the pipe and intentionally
damage his servers, whose value, they argued, he grossly
exaggerated.2 They acknowledged Shields “should have done the
job [of installing the pipe] better,” but insisted “[t]he cutting of
the pipe is what caused this loss.”
At the close of evidence and argument, the following causes
of action remained for the jury: Roshan’s causes of action for
negligence and negligent misrepresentation against Villas Del
Rey, Konop, and Shields; Roshan’s cause of action for breach of
fiduciary duty against Villas Del Rey and Konop; Roshan’s cause
of action for breach of the CC&Rs against Villas Del Rey; and
2 The trial court instructed the jury Roshan had “admitted to
removing and replacing key components of his servers after the
incident but before defendants had an opportunity to inspect
them,” “admitted not recording, logging, or providing
[defendants] access to the pieces removed,” and “admitted that
none of the components had identifying marking, thus making it[
] impossible to determine the alterations to these servers.” “As
such,” the court continued, “the court has found that these
intentional acts of destruction of evidence . . . severely prejudiced
defendants in defense of their case.”
8
Villas Del Rey’s causes of action for nuisance and breach of the
CC&Rs against Roshan. On all of Roshan’s causes of action, the
jury found the defendants were not liable. On the cause of action
for negligence, in particular, the jury found that Villas Del Rey
and Shields (but not Konop) were negligent, but that their
negligence was not a substantial factor in causing Roshan’s
property damage. The jury found in favor of Roshan on Villas
Del Rey’s cause of action for nuisance and in favor of Villas Del
Rey on its cause of action for breach of the CC&Rs, awarding
Villas Del Rey $1,000 in damages.
In a separate proceeding, the trial court ruled on the
parties’ causes of action for equitable relief. On what the court
described as “competing causes of action” for declaratory relief, it
ruled that Villas Del Rey’s governing documents were enforceable
against Roshan and that he breached the CC&Rs, but that Villas
Del Rey’s fines against Roshan were not enforceable because
Villas Del Rey had not complied with applicable notice
requirements. On Villas Del Rey’s “causes of action for injunctive
relief,” the court issued a permanent injunction ordering Roshan
to, among other things, return the common area associated with
his unit to its previous, unmodified condition. The court also
enjoined Roshan from violating the CC&Rs in specified ways,
including by making unapproved changes to common areas of his
building, interfering with Villas Del Rey’s right of inspection, or
threatening or harassing Konop, Button, Monczynski or other
board members. Roshan timely appealed.
9
DISCUSSION
We agree with the respondents that, because Roshan’s
opening brief is so disorganized, confusing, and procedurally
deficient, it is difficult to discern the number and nature of his
contentions. (See, e.g., Cal. Rules of Court, rule 8.204(a)(1)(B)-(C)
[an appellate brief must state each point under a separate
heading or subheading, supporting each by argument and
citation to authority, and must “[s]upport any reference to a
matter in the record by a citation to the volume and page number
of the record where the matter appears”].) Guided by some of the
headings in his brief and its “statement of issues presented,” we
have identified the issues that follow. Any others are forfeited.
(See Dinslage v. City & County of San Francisco (2016)
5 Cal.App.5th 368, 377, fn. 3 [“‘we do not consider all of the loose
and disparate arguments that are not clearly set out in a heading
and supported by reasoned legal argument’”]; Roe v. McDonald’s
Corp. (2005) 129 Cal.App.4th 1107, 1114 [where “there is no
separate argument heading or analysis of the issue,” that “alone
is grounds to deem the argument” forfeited, and “‘[a]n issue
merely raised by a party without any argument or authority is
deemed to be without foundation and requires no discussion’”].)
A. The Trial Court Did Not Err in Excluding Evidence of
Insurance
Roshan contends the trial court committed “reversible error
by excluding all evidence of [i]nsurance.” He acknowledges that
“[u]sually evidence of insurance is excluded for good reasons,” but
argues that the trial court should not have excluded it here
because it was necessary to prove “‘negligence’ was the cause of
10
the water damages” to his property. More specifically (sort of), he
argues Monczynski’s “mistaken belief that vandalism was not
covered was a motive for . . . Monczynski to make the intentional
cut after the failure caused by negligence.”3 Roshan’s contention
is meritless.
As a preliminary matter, Roshan does not adequately cite
or identify the supposedly erroneous rulings he challenges,
referring instead merely to “rulings of the trial [court] prior to the
start of trial.” “‘It is the appellant’s burden to demonstrate the
existence of reversible error. [Citation.]’ [Citation.] As part of
that burden, the appellant must identify each order that he
asserts is erroneous, cite to the particular portion of the record
wherein that ruling is contained, and identify what particular
legal authorities show error with respect to each challenged
order.” (County of Orange v. Smith (2005) 132 Cal.App.4th 1434,
1443.) Roshan has not satisfied these basic requirements; for
that reason alone he has failed to demonstrate any error by the
trial court in excluding evidence of insurance. (See Lafferty v.
Wells Fargo Bank, N.A. (2018) 25 Cal.App.5th 398, 427 [“an
undeveloped argument that is unsupported by any record
citations” is forfeited]; Kalnoki v. First American Trustee
Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 44
[disregarding an argument for which the appellant did not
provide citations to the record].)
In any event, our review of the record turns up only one
pretrial ruling excluding evidence of insurance—the trial court’s
3 Wait—Monczynski? Yep, even though, as far as we can
tell, there was never any allegation, evidence, or argument at
trial that Monczynski was present at the scene of the incident at
the time Roshan claimed someone cut the pipe.
11
order granting the Villas Del Rey defendants’ motion in limine to
exclude evidence of Villas Del Rey’s insurance—and to the extent
that ruling erroneously excluded evidence of insurance to prove
negligence, Roshan invited the error. “‘Under the doctrine of
invited error, when a party by its own conduct induces the
commission of error, it may not claim on appeal that the
judgment should be reversed because of that error. [Citations.]’
[Citation.] As one court has explained invited error: ‘[W]here a
deliberate trial strategy results in an outcome disappointing to
the advocate, the lawyer may not use that tactical decision as the
basis to claim prejudicial error.’” (Baxter v. State Teachers’
Retirement System (2017) 18 Cal.App.5th 340, 377-378 (Baxter);
see Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001)
92 Cal.App.4th 1159, 1166-1167.) In his opposition to the Villas
Del Rey defendants’ motion in limine to exclude evidence of
insurance (as well as in his oppositions to similar motions by
Shields, which the court never ruled on), Roshan insisted he was
not seeking, and would not seek, to mention evidence of
insurance to prove negligence. Having taken that strategic
position at trial, he cannot take the opposite position on appeal to
claim error.
Roshan also suggests that, during trial, counsel for
“Appellees” (he doesn’t say which) “opened the door” to admitting
evidence of insurance by asking certain questions of Roshan
during cross-examination. But, again, Roshan does not cite or
identify any ruling by the trial court on this issue. He has
therefore again failed to demonstrate any error.
12
B. The Trial Court Did Not Err in Excluding Evidence of
Building Code Citations
Roshan also contends the trial court “commit[ted]
reversible error by excluding evidence of building code citations.”
Specifically, he argues the trial court erred in granting the Villas
Del Rey defendants’ motion to exclude evidence of LADBS
citations, granting Shields’s motions in limine to exclude evidence
of violation warnings or notices from the Contractors State
License Board and evidence of the lack of permitting for the
water pipe Shields installed, and denying Roshan’s ex parte
application to reconsider the order granting Shields’s motion to
exclude the lack of permitting.4
“We review a trial court’s evidentiary rulings for abuse of
discretion.” (Shaw v. County of Santa Cruz (2008)
170 Cal.App.4th 229, 281; see Unzueta v. Akopyan (2019)
42 Cal.App.5th 199, 220.) To obtain a reversal, an appellant
must also demonstrate “the error or errors complained of resulted
in a miscarriage of justice.” (Evid. Code, § 354; see Shaw, at
p. 281.) “Prejudice or a miscarriage of justice exists when there is
‘a reasonable probability that in the absence of the error, a result
more favorable to the appealing party would have been reached.’”
(Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109,
132.)
4 As a supposedly separate contention, Roshan suggests the
trial court also erred in, as Roshan puts it, “ruling that failure to
get permits was irrelevant (i.e., of no moment).” But the “ruling”
Roshan cites is merely a statement the court made to explain
why it was denying Roshan’s ex parte application. As we will
explain, any error in that ruling was harmless.
13
We need not decide whether the trial court abused its
discretion in making the rulings Roshan identifies because, even
if it did, Roshan has not demonstrated these rulings prejudiced
him. He argues the excluded evidence would have entitled him
“to a jury instruction that ‘negligence per se’ had been
established.” However, “‘[t]he doctrine of negligence per se is not
a separate cause of action, but creates an evidentiary
presumption that affects the standard of care in a cause of action
for negligence.’” (Johnson v. Honeywell Internat. Inc. (2009)
179 Cal.App.4th 549, 555.) “The plaintiff still has the burden of
proving causation” on that cause of action. (Id. at p. 558.) As the
verdict on the cause of action for negligence here suggests and
Roshan concedes: “The Jury decision was based on the jury
believing that Mr. Roshan cut the pipe. The Jury found
‘negligence’ but no causation. . . . Therefore, the jury believed the
pipe was installed negligently but that it was the intentional
cutting of the pipe that caused the damages.” Roshan does not
explain how an instruction that Shields, Villas Del Rey, and
Konop (the three defendants remaining on the cause of action for
negligence) were negligent per se (or otherwise) would have made
it reasonably probable the jury would have found their
negligence, rather than his intentionally cutting the pipe,
damaged his property.5
As with his challenge to the exclusion of evidence of
insurance, Roshan suggests “Appellees ‘opened the door’” to
evidence of building code citations by not objecting at certain
5 Although the jury did not find Konop negligent, Roshan
does not suggest a contrary finding would have provided him a
more favorable result. As stated, Roshan argues the jury
believed he cut the pipe and damaged his own property.
14
points to the trial testimony of Roshan’s expert on construction
management. But, once again, Roshan does not cite or identify
any ruling by the trial court on this issue, and therefore he has
not demonstrated any error.
C. The Trial Court Did Not Err in Admonishing Roshan
Roshan contends the trial court “committed reversible
error when it harshly admonished [him] in the presence of the
jury” for continuing to refer to, or attempt to refer to, previously
excluded evidence while he was testifying. He does not, however,
provide a citation to the record to support this contention or
otherwise identify the admonition he suggests was erroneous.
Therefore, his contention fails. (See Kalnoki v. First American
Trustee Servicing Solutions, LLC, supra, 8 Cal.App.5th at p. 44;
Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th
620, 628 [“[w]e disregard assertions and arguments that lack
record references”].)
From a reference elsewhere in his opening brief, however, it
appears Roshan may have in mind statements by the trial court
ordering Roshan to stop referring to the excluded evidence of
insurance by making comments about the “elephant” in the room
and urging that Roshan “not test” the court on this point and
“[p]lease . . . not push it.” The record reflects that the trial court’s
handling of this incident was appropriate.6 But in any event, to
6 “‘A court has inherent power to exercise reasonable control
over all proceedings connected with the litigation before it . . .
and maintain “the dignity and authority of the court” . . . , and to
summarily punish for acts committed in the immediate view and
presence of the court when they impede, embarrass or obstruct it
in the discharge of its duties.’” (Aljabban v. Fontana Indoor
Swap Meet, Inc. (2020) 54 Cal.App.5th 482, 512.)
15
the extent Roshan contends these comments constituted
reversible error, the contention fails for the additional reason
that Roshan did not raise the point in the trial court or take any
steps to cure the supposed error. (See People v. Seumanu (2015)
61 Cal.4th 1293, 1320 [“As a general rule, a specific and timely
objection to judicial misconduct is required to preserve the claim
for appellate review.”]; People v. Sanders (1995) 11 Cal.4th 475,
531 [argument the trial court engaged in judicial misconduct was
barred on appeal where the appellant did not make an objection
to the court’s comments that “‘would have permitted the court to
clarify any possible misunderstanding resulting from the
comments’”]; Aljabban v. Fontana Indoor Swap Meet, Inc. (2020)
54 Cal.App.5th 482, 512 [“‘“An appellate court will ordinarily not
consider procedural defects or erroneous rulings, in connection
with relief sought or defenses asserted, where an objection could
have been but was not presented to the lower court by some
appropriate method.”’”].)
D. The Trial Court Did Not Err in Issuing the Injunction
Against Roshan
Finally, Roshan contends “the trial court committed
reversable [sic] error when it granted permanent injunctive relief
against [Roshan] on [Villas Del Rey’s] cross-complaint in favor of
persons who were not parties to the cross-complaint and with
regard to alleged violations that were not pleaded.” Expanding
(slightly) on this contention, Roshan asserts that “[t]his relief was
granted under section 8.02 of the CC&RS,” which, according to
him, was not “alleged, mentioned[,] or pleaded in the cross-
complaint.” He also argues “the permanent injunction was void
16
because the trial court required no undertaking prior to issuing
the permanent injunction.”
Again, however, Roshan cites no legal authority to support
any of these arguments, and for that reason he has not
demonstrated any reversible error. (See County of Orange v.
Smith, supra, 132 Cal.App.4th at p. 1443; see also Carbajal v.
CWPSC, Inc. (2016) 245 Cal.App.4th 227, 250 [although “Code of
Civil Procedure section 529 requires a party seeking a
preliminary injunction to post a bond or other undertaking to
cover any damages the enjoined party may suffer if it later is
determined the injunction was erroneously granted,” a “bond is
not required to obtain a permanent injunction following a
judgment on the merits”]; Griffin v. Lima (1954) 124 Cal.App.2d
697, 699 [“a preliminary injunction does not become operative
until a bond is furnished, and . . . such a bond is expressly
required” (italics added)].) Moreover, Roshan cites nothing in the
record suggesting he objected to any of these purported errors or
raised any of these arguments in the trial court, and therefore he
has forfeited these contentions as well. (See Aljabban v. Fontana
Indoor Swap Meet, Inc., supra, 54 Cal.App.5th at p. 512; Baxter,
supra, 18 Cal.App.5th at p. 378.)
17
DISPOSITION
The judgment is affirmed. Respondents are to recover their
costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
18