Gdowski v. Tsang CA2/8

Filed 8/28/23 Gdowski v. Tsang CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DIANA GDOWSKI, B312670, B314122
Plaintiff, Cross-defendant and (Los Angeles County
Appellant, Super. Ct. No. BC605329)
v.
WAYNE K. TSANG et al., as
Trustees, etc.,
Defendants, Cross-complainants
and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael P. Linfield, Judge. Affirmed.
Cox, Castle & Nicholson and Stanley W. Lamport for
Plaintiff, Cross-defendant and Appellant.
Hanger, Steinberg, Shapiro & Ash, Marc S. Shapiro and
Christopher G. Kerr for Defendants, Cross-complainants and
Respondents.
**********
This is the second appeal in this action involving a long-
running dispute between neighboring property owners over the
scope of a construction project. Plaintiff, cross-defendant and
appellant Diana Gdowski (plaintiff) owns property adjacent to
property owned by defendants, cross-complainants and
respondents Wayne K. Tsang and Bonni C. Ying (defendants).1
The dispute began in 2011 when defendants obtained initial
approval for a construction project on their property.
In the first appeal, we affirmed the denial of the parties’
respective anti-SLAPP motions pursuant to Code of Civil
Procedure section 425.16 (section 425.16). (Gdowski v. Tsang
(May 29, 2018, B280158) [nonpub. opn.].) We concluded that,
while both the first amended complaint and the cross-complaint
discussed at length the permit process for defendants’
construction project, those allegations were collateral to the
primary allegations of wrongdoing made by the parties. As
relevant here, the allegations of wrongdoing in the cross-
complaint focused on the postpermit construction phase of the
project, and the allegations concerning the permit process simply
provided context for the cross-claims that plaintiff thwarted the
timely completion of defendants’ project by her behavior after a
modified permit was obtained. Neither pleading arose from free
speech or petitioning activity within the meaning of
section 425.16.
Following remand, the case proceeded to a bench trial. The
court granted defendants’ motion for nonsuit on the complaint.
1 Defendants hold title to their property as trustees of The
Tsang Family Trust. We refer to Mr. Tsang, his wife Ms. Ying
and their trust collectively as defendants.
2
On the cross-complaint, the court found in favor of defendants on
their nuisance claim and awarded damages in the amount of
$128,500. Plaintiff appeals from the judgment. She contends the
trial court erred in failing to grant a nonsuit in her favor on the
cross-complaint.
We affirm.
We deny plaintiff’s request that we take judicial notice of
the briefs, the transcription of oral argument, and our tentative
opinion in the previous appeal, Gdowski, supra, B280158, as they
are irrelevant. We grant the request to take judicial notice of the
trial court’s amended judgment. On our own motion, we take
judicial notice of our filed opinion in the previous appeal,
Gdowski, supra, B280158.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and defendants are neighbors in the City of Palos
Verdes Estates (City). Plaintiff’s property is located downslope
from defendants’ larger parcel with the boundary line between
the two properties running along defendants’ rear yard. There is
a history of drainage issues between the properties dating back to
at least 1995 when plaintiff experienced flooding on her property
due, at least in part, to surface and subsurface water flows from
defendants’ property. (Gdowski, supra, B280158.)
In early 2011, defendants sought approval from the City to
proceed with a large-scale remodeling project on their property.
The project called for demolition of the existing home,
construction of a new home, and significant grading and other
changes to the rear yard, including the addition of a swimming
pool. (Gdowski, supra, B280158.)
The City gave initial approval to defendants’ project in
June 2011. The City’s Neighborhood Compatibility Ordinance
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required that plaintiff be given notice and an opportunity for
input on the project. Plaintiff, with the assistance of a civil
engineer, raised objections, both formally and informally, to
defendants and with the City, primarily focused on the impact
the project would have on the drainage problems between the
properties. (Gdowski, supra, B280158.)
After plaintiff appealed the initial approvals to the City
Council, the parties negotiated a resolution that allowed plaintiff
and her civil engineer to review and comment on the drainage
plans. In 2012, the parties agreed to and signed off on the
drainage plans, which incorporated changes requested by
plaintiff. Defendants thereafter received all necessary approvals
from the City to proceed with their project. (Gdowski, supra,
B280158.)
By 2015, most of the construction of defendants’ new home
was complete. Defendants sought and obtained a modification of
their permit. After receiving notice from the City of the approved
modification, plaintiff raised objections with defendants.
(Gdowski, supra, B280158.)
Plaintiff believed the modifications made substantial
changes to the drainage plans that had been agreed to in 2012.
Defendants asserted the changes were minor and did not
negatively impact plaintiff’s property. The parties were unable to
resolve their differences, which led to plaintiff filing this action in
December 2015. (Gdowski, supra, B280158.)
Defendants appeared in the action and filed a cross-
complaint for declaratory relief, fraud and nuisance. They
alleged their project was being completed in conformity with the
City-approved permit and the parties’ agreement, and that they
had done everything possible to address plaintiff’s concerns about
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the drainage issues. The nuisance claim was based on
allegations that plaintiff had “engaged in a calculated and
relentless campaign to harass” them and delay their project.
Defendants alleged, among other things, that plaintiff
unilaterally contacted and harassed their architect and the
construction workers, yelling at them over the backyard fence,
directing them to make changes, otherwise interfering with their
work, and regularly threatening litigation if they did not comply
with her demands. (Gdowski, supra, B280158.)
In November 2016, plaintiff and defendants filed anti-
SLAPP motions pursuant to section 425.16. After briefing and
oral argument, the court denied both motions, concluding that
neither party had met the initial movant’s burden of showing
that the claims arose from protected activity within the meaning
of section 425.16. (Gdowski, supra, B280158.)
We affirmed. With respect to defendants’ cross-complaint,
we said that while defendants recited the facts related to the
permit process in some detail, those facts were collateral to their
primary allegations of wrongdoing against plaintiff which were
based on actions she took at the property during the construction
phase of the project. (Gdowski, supra, B280158.)
On remand, the case was set for a bifurcated bench trial.
In February 2020, the court heard evidence on the complaint.
After plaintiff rested her case-in-chief, the court granted a
nonsuit in defendants’ favor.
Trial on the bifurcated cross-complaint did not occur until
February 2021 due largely to delays occasioned by the COVID-19
pandemic. The parties submitted trial briefs in lieu of opening
statements. In her brief, plaintiff argued she could not be held
liable for any conduct or statements made in connection with the
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City’s permit approval process because such conduct was
privileged under Civil Code section 47, subdivision (b). Plaintiff
also sought an in limine order limiting defendants’ proof to
statements and conduct that occurred after the final permit
modification in 2015, arguing that the doctrines of law of the case
and judicial estoppel required it. The court denied the motion,
telling plaintiff it understood her argument, but that it believed
plaintiff should make appropriate trial objections when and if
defendants offered evidence that plaintiff believed was privileged.
Three witnesses testified during the trial of the cross-
complaint: plaintiff, defendant Wayne Tsang, and defendants’
general contractor, Rick Tomaro. After defendants rested,
plaintiff made an oral motion for nonsuit pursuant to Code of
Civil Procedure section 631.8. The court granted plaintiff’s
motion on the third cause of action for fraud but denied it as to
the second cause of action for nuisance. At the conclusion of
evidence, the court heard argument and took the matter under
submission.
The next day, February 3, 2021, the court denied plaintiff’s
request for a written statement of decision on the ground that
trial on the cross-complaint had taken less than eight hours over
the course of two days. The court orally stated its ruling on the
record. Defendants voluntarily dismissed the first cause of action
for declaratory relief as moot. The court found in favor of
defendants on the nuisance claim. The court awarded damages
in the amount of $128,500. Plaintiff filed written objections to
the court’s decision, including that the court was ambiguous
about what conduct by plaintiff constituted a nuisance. The court
declined to hold a hearing on plaintiff’s objections. Judgment
was entered on March 12, 2021.
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This appeal followed.
DISCUSSION
Plaintiff contends the trial court erred in failing to grant
her request, pursuant to Code of Civil Procedure section 631.8,
for nonsuit on defendants’ nuisance cause of action. She argues
the trial court disregarded the binding effect of our decision in
Gdowski, supra, B280158 under the law of the case doctrine,
abused its discretion in failing to apply judicial estoppel to
prevent defendants from asserting a new theory at trial, and
improperly predicated her liability for nuisance on speech and
petitioning activities privileged by Civil Code section 47,
subdivision (b).
An order denying a motion for judgment pursuant to Code
of Civil Procedure section 631.8 is appealable from the judgment.
In arguing the trial court should have granted her motion for
nonsuit on the cross-complaint, plaintiff has not raised any
substantial evidence challenge. Rather, she has raised only three
legal issues which we review de novo. (Thompson v. Asimos
(2016) 6 Cal.App.5th 970, 981 [“In reviewing a judgment based
upon a statement of decision following a bench trial, we review
questions of law de novo.”].) We reject each of plaintiff’s
contentions.
1. Law of the Case
“The law of the case doctrine states that when, in deciding
an appeal, an appellate court ‘states in its opinion a principle or
rule of law necessary to the decision, that principle or rule
becomes the law of the case and must be adhered to throughout
its subsequent progress, both in the lower court and upon
subsequent appeal.’ ” (Kowis v. Howard (1992) 3 Cal.4th 888,
892-893; accord, Hotels Nevada, LLC v. L.A. Pacific Center, Inc.
7
(2012) 203 Cal.App.4th 336, 356-357; Aghaian v. Minassian
(2021) 64 Cal.App.5th 603, 612.) The doctrine applies “even
where the appeal is from a decision short of a full trial, including
a judgment on a demurrer, a nonsuit order or denial of an anti-
SLAPP motion. [Citation.] However, ‘the doctrine of law of the
case does not prevent retrial of an issue, although it does require
that the same conclusion be reached if that matter is retried on
the same evidence.’ ” (Hotels Nevada, LLC, at p. 356.)
In the first appeal, we said: “defendants’ cross-complaint
sets forth in some detail the background facts related to the
project, beginning with the initial planning phase in 2008 and
continuing through the permit proceedings from 2011 through
2015. These allegations merely provide context for the claims.
The cross-claims are based on alleged statements and
misrepresentations that plaintiff made after the modified permit
was obtained in 2015 and which allegedly thwarted the timely
completion of defendants’ project. [¶] It may be true that similar
statements were made by plaintiff during the permit proceedings,
but the cross-complaint is based on conduct occurring thereafter,
conduct and statements by plaintiff that took place at the
property during the construction. Defendants seek damages for
verbal interference with the construction work and for disturbing
their quiet enjoyment of the property; conduct which does not fall
within the anti-SLAPP statute.” (Gdowski, supra, B280158.)
Plaintiff says the law of the case doctrine strictly limited
the scope of admissible evidence on the nuisance claim to
evidence that she engaged in actionable conduct at defendants’
property after the 2015 permit modification was approved.
Plaintiff overstates the binding effect of our decision in the first
appeal. Nothing about our decision resolved any question
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regarding the admissibility of evidence during trial on the merits
nor purported to limit the scope of what evidence was
permissible. The only law of the case stated in our previous
opinion was that none of the parties’ claims arose from protected
activities under the anti-SLAPP statute.
During trial, defendants conceded they did not offer
evidence of plaintiff yelling at their contractors or otherwise
harassing them at the property, which was a significant part of
the allegations in their cross-complaint. But our decision in the
first appeal did not preclude defendants from presenting evidence
that plaintiff engaged in other unprivileged behavior, over the
entire course of the project, that thwarted and delayed its timely
completion and otherwise unreasonably interfered with
defendants’ use and enjoyment of their property. Nothing in our
prior opinion precluded them from offering such evidence to prove
up their claim.
2. Judicial Estoppel
The doctrine of judicial estoppel seeks to prevent litigants
from taking inconsistent positions on an issue at different stages
in a proceeding. (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 377.) It “serves to maintain fairness and judicial
integrity.” (Ibid.) Judicial estoppel applies when “ ‘(1) the same
party has taken two positions; (2) the positions were taken in
judicial or quasi-judicial administrative proceedings; (3) the party
was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true); (4) the two positions
are totally inconsistent; and (5) the first position was not taken
as a result of ignorance, fraud, or mistake.’ ” (Aguilar v. Lerner
(2004) 32 Cal.4th 974, 986-987.) While the doctrine serves an
important purpose, its application is discretionary. (Id. at p. 986;
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accord; Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606,
630 [doctrine of judicial estoppel is equitable in nature “ ‘and its
application, even where all necessary elements are present, is
discretionary’ ”].)
Plaintiff says the court erred by not finding that defendants
were estopped to assert a new nuisance theory at trial that was
directly at odds with the theory they argued to defeat her SLAPP
motion. She says defendants successfully argued in the trial
court, and in this court during the first appeal, that their
nuisance claim was based only on activity that occurred at
defendants’ property, like harassing the contractors, and that
allegations related to the permit process were only for context.
Therefore, plaintiff argues, defendants should have been
estopped from taking a contrary position at trial; she contends
defendants took a contrary position when they conceded they had
no evidence of plaintiff harassing anyone at the property and
rested their case on evidence of plaintiff’s lawful participation in
the permit process.
Plaintiff mischaracterizes defendants’ arguments and
evidence. Defendants did not advocate inconsistent positions.
(Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 182
[“[I]t is well established that, for the doctrine [of judicial estoppel]
to apply, the seemingly conflicting positions ‘must be clearly
inconsistent so that one necessarily excludes the other.’ ”].) And
our previous opinion did not rest on a finding that the nuisance
cause of action in the cross-complaint required proof at trial that
plaintiff made harassing demands and threats to defendants and
their contractors. We found that defendants sought damages for
interference with the construction work and for disturbing their
quiet enjoyment of the property, conduct which did not fall within
10
the anti-SLAPP statute; we made no finding that had any
estoppel effect concerning the scope of admissible evidence at
trial.
3. Litigation Privilege
The court made extensive findings of fact and conclusions
of law regarding plaintiff’s liability for nuisance in an oral
statement of decision that spanned 17 pages of reporter’s
transcript. Plaintiff argues the trial court “predicated liability on
constitutionally protected speech and activity that is privileged
under Civil Code [section] 47(b).” In her opening brief on appeal,
under the heading “The Trial Court Wrongly Found Ms. Gdowski
Liable Based on Protected Activity,” plaintiff summarizes select
portions of the court’s oral statement of decision, with citations to
only seven pages of the court’s 17-page statement of decision.
Plaintiff has forfeited this argument. “ ‘In order to demonstrate
error, an appellant must supply the reviewing court with some
cogent argument supported by legal analysis and citation to the
record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019)
36 Cal.App.5th 142, 153 (United Grand).)
At oral argument, plaintiff’s counsel asked us to consider
pages 30 through 35 of her opening brief where, under a different
topic heading, she cited additional pages of the trial court’s
statement of decision. Appellants are required to “ ‘present their
cause systematically and so arranged that those upon whom the
duty devolves of ascertaining the rule of law to apply may be
advised, as they read, of the exact question under consideration,
instead of being compelled to extricate it from the mass.’ ”
(United Grand, supra, 36 Cal.App.5th at p. 153.) We have
exercised our discretion to consider those additional citations,
even though they were not provided to us in the portion of the
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brief where she argued the trial court erred by making findings of
fact based on protected activity. We found plaintiff cited five
additional pages of reporter’s transcript on which the court made
fact findings. Thus, plaintiff, in disjointed fashion, cited to
12 pages of the court’s 17-page oral statement of decision.
Plaintiff does not provide record citations showing that she
objected to any of this evidence when it was offered at trial.
Plaintiff had filed a motion in limine to exclude evidence of any
conduct she claimed was privileged or protected activity related
to the permit process, but the court denied the motion and told
her to object to specific questions she believed called for
privileged information. Plaintiff has not demonstrated she did
so. Our review of the record reveals that plaintiff objected one
time on this basis during the testimony of Mr. Tsang. The court
overruled the objection, explaining that the testimony being
elicited did not concern any privileged conduct. Plaintiff does not
contend on appeal the court erred by overruling her single
objection to the admission of evidence she now claims was
privileged. Having failed to object to any other testimony that
was admitted without objection, plaintiff has forfeited any
contention that this evidence should have been excluded. (Evid.
Code, § 353.)
To the extent plaintiff argues that the court could consider
any of the conduct she contends was privileged for purposes of
context but that it erred by predicating her liability on it, plaintiff
has failed to present any persuasive argument with citation to
legal authorities that the conduct was in fact protected by the
litigation privilege, or more appropriately here, the official
proceeding privilege of Civil Code section 47, subdivision (b).
12
Plaintiff appears to argue that any and all conduct that
occurred from the time defendants sought their permit in 2011 to
the time of the last minor permit modification in 2015 was
cloaked with privilege, irrespective of where it occurred or
whether it could properly be deemed communicative in nature.
Plaintiff has cited no law that supports such an expansive
interpretation of the privilege. “Because the litigation privilege
protects only publications and communications, a ‘threshold issue
in determining the applicability’ of the privilege is whether the
defendant’s conduct was communicative or noncommunicative.
[Citations.] The distinction between communicative and
noncommunicative conduct hinges on the gravamen of the action.
[Citations.] That is, the key in determining whether the privilege
applies is whether the injury allegedly resulted from an act that
was communicative in its essential nature.” (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1058.) Plaintiff cites legal authorities
discussing the litigation privilege generally or for the proposition
that it is broadly applied, but she has not demonstrated with
analysis based on the law and the factual record that it was error
as a matter of law for the trial court to have admitted any of the
evidence it recited in its decision on the merits.
Plaintiff’s argument also ignores altogether the extensive
findings of fact and conclusions of law the court made in 17 pages
of reporter’s transcript, instead parsing out findings made in
portions of the transcript. Among the findings that plaintiff fails
to mention in her brief are the following: “The court recognizes
that [plaintiff’s] participation in the neighborhood compatibility
process is a protected activity.” “Certainly some of [plaintiff’s]
actions were protected. Her going before the planning
commission. Her participation in the neighborhood compatibility
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meetings. Her going before the city council. Her appealing the
planning commission’s ruling.” “The Court is not basing its
ruling today on activities or statements that [plaintiff] made
during the public accountability process or to the planning
commission or to the city council.”
For all these reasons, plaintiff forfeited her claim the court
based its finding of liability on privileged facts.
DISPOSITION
The judgment in favor of Wayne K. Tsang, Bonni C. Ying
and The Tsang Family Trust is affirmed. Wayne K. Tsang,
Bonni C. Ying and The Tsang Family Trust shall recover costs of
appeal.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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