Opinion
A164665 A164835
03-28-2024
SAFI NAIROBI, Plaintiff and Appellant, v. KIRK D. WATKINS, et al., Defendants and Respondents. KIRK D. WATKINS, et al., Cross-Appellants, v. SAFI NAIROBI, Cross-Respondents.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. RG-17-847233)
PETROU, J.
Safi Nairobi sued Kirk and Cindy Watkins related to her rental of a studio unit. Prior to trial, the Watkins made Nairobi an offer of settlement under Code of Civil Procedure section 998 (section 998 offer). Following a jury verdict in favor of Nairobi, the trial court concluded Nairobi's recovery failed to exceed the section 998 offer and reduced Nairobi's award by the amount of the Watkins' post-offer costs.
All references to "Watkins" or "the Watkins" are to both Kirk and Cindy Watkins. Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
On appeal, Nairobi contends the trial court miscalculated her prejudgment interest when it erroneously concluded her total judgment was less than the section 998 offer. She further asserts the trial court erred in denying her motion for new trial and request for attorney's fees under section 1021.5. We affirm.
Factual and Procedural Background
Fact Background
The Watkins own a property that consists of two rental units, a studio unit, and a commercial space. In July 2009, the parties entered into a lease agreement for the studio unit. Prior to 2014, Nairobi did not raise any significant concerns regarding the unit.
During the Fall of 2014, the unit experienced at least one ceiling leak, and Nairobi began complaining about a musty and/or moldy smell in the unit. In January 2015, mold abatement specialists took air samples, which indicated heightened levels of "Aspergillus/Penicillium." That company then undertook mold remediation work, which it believed resolved the outstanding mold issues.
Nairobi subsequently filed a complaint with the City of Oakland, alleging the unit was possibly unpermitted. The Oakland Building Department (OBD) determined the unit lacked a certificate of occupancy, issued a notice of violation, and ordered the Watkins to discontinue using the unit as a rental space.
The Watkins subsequently served a notice of termination of tenancy on Nairobi to regain possession of the unit to comply with the OBD notice. They did not accept any rent payments from Nairobi after receiving the notice of violation. During this same period, Nairobi filed a petition with the Oakland Rent Adjustment Program (RAP) regarding alleged habitability issues in the unit. Following a hearing and inspection, the hearing officer denied most of Nairobi's claims but awarded $1,098.10 in overpayment of rent.
Nairobi refused to vacate the unit by the date in the notice of termination of tenancy. As a result, the Watkins filed an unlawful detainer suit against Nairobi. The parties settled the unlawful detainer, with Nairobi agreeing to vacate the unit by December 31, 2015 in exchange for $6,000. Procedural Background
Approximately one year after moving out of the unit, Nairobi filed a complaint against the Watkins. She subsequently filed the operative first amended complaint, alleging premises liability, negligence, negligent misrepresentation, breach of contract, breach of warranty of habitability, intentional infliction of emotional distress, fraud, constructive fraud, and a violation of the California Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; UCL). The complaint alleged the studio unit was uninhabitable due to numerous issues, including moisture and water problems, elevated levels of mold and mildew, cracked and uneven flooring, exposed plumbing and fire sprinklers, an open bathroom shaft, inadequate ventilation, inadequate water pressure and fluctuating temperatures, low ceilings and narrow doors, was not certified for occupancy, and violated various Oakland Municipal Codes. Nairobi asserted she suffered "innumerable severe and persistent health problems" because of residing in the unit.
The court granted the Watkins' motion for summary adjudication of Nairobi's claims for negligent misrepresentation and constructive fraud.
As relevant to this appeal, Nairobi's breach of contract claim incorporated these allegations and specifically asserted the Watkins breached various provisions of the lease, including the right to quiet enjoyment and use of the premises. The complaint alleged the Watkins "fail[ed] to maintain the premises in a habitable condition," they "had been informed that defective and dangerous Defects existed around and within the Residence," and they failed to repair these conditions. As a result of the alleged breaches, the complaint asserted Nairobi sustained physical injury, emotional distress, and property damage, the exact amount of which will be established "at the time of trial." Neither the breach of contract claim nor the prayer for relief specifically mentioned disgorgement of rent.
Prior to trial, the Watkins served Nairobi with a section 998 offer for $100,001. The offer included "costs, attorneys' fees and pre-judgment interest." Nairobi did not accept the offer and the matter proceeded to trial.
During trial, Nairobi offered testimony from various medical personnel related to her alleged injuries caused by the unit. Dr. Miranda Dunlop, a UCSF internal medicine physician who served as Nairobi's primary care physician since 2007, saw Nairobi multiple times after the ceiling leak in 2014. Dr. Dunlop testified Nairobi was not immunocompromised, Nairobi did not complain of respiratory issues, chronic fatigue, or eye inflammation, and her symptoms in early 2015 were not consistent with long-term mold exposure apart from a facial rash.
An allergist, Dr. Xiao Chloe Wan, examined Nairobi in July and September 2015 and February 2016. She stated Nairobi did not complain about respiratory issues during her visits, rashes caused by mold usually present with respiratory issues, and Nairobi's rash was unlikely to have been caused by environmental allergens because she had vacated the unit prior to February 2016.
A UCSF dermatologist, Dr. Wilson Liao, testified Nairobi's rash was "stable" and generally improving during each of her medical appointments with him in 2017.
Dr. Janette Hope, a physician who examined Nairobi once in August 2017, ordered mycotoxin testing because "even after people have been removed from exposures, they still haven't totally unloaded them from their body." She testified that the mycotoxin testing failed to detect any meaningful level of toxins.
Dr. Stephanie McCarter, an internal medicine practitioner in Texas, examined Nairobi in August 2018. Dr. McCarter testified Nairobi had been experiencing fatigue, aches, rashes, respiratory issues, neurological issues, eye symptoms, rapid heart rate, gastrointestinal symptoms, hormone issues, and nasal congestion. Dr. McCarter conducted testing for molds and immune system testing, which she testified indicated Nairobi had a sensitivity to various molds and significantly low T-Cell counts. Dr. McCarter disagreed with Dr. Dunlop and testified Nairobi was "very sick."
Dr. Robin Bernhoft, a retained mold specialist, testified regarding Nairobi's symptoms and opined they were caused by mold exposure in the unit. However, he acknowledged on cross-examination that he had never examined Nairobi, the diagnosed symptoms were taken from Nairobi's subjective reporting to Dr. Hope in 2017, and his conclusions regarding mold exposure were based on a test for a different patient.
In response, the Watkins offered testimony from Dr. Andrew Saxon, an allergist and immunologist. After reviewing Nairobi's medical records, her deposition testimony, testimony from Drs. Hope and Bernhoft, and examining Nairobi, he opined that Nairobi was mildly allergic to certain molds, she did not suffer any infection or toxicity due to mold exposure, and the levels of mold in the unit were not clinically significant.
The jury returned a special verdict in favor of Nairobi on her negligence, premises liability, breach of contract, and breach of the warranty of habitability causes of action. The jury rejected her claims for fraud, intentional infliction of emotional distress, and punitive damages. The jury awarded $79,290 in past economic damages, $5,000 in future economic damages, and $9,000 in past noneconomic damages, and made no award for future noneconomic damages. Damages were not allocated between the various causes of action or categories of incurred expenses. The jury found Nairobi comparatively negligent and assessed that liability at fifteen percent.
At trial, Nairobi claimed (1) $54,290 in rent payments since July 2009, (2) $11,462.30 in rental costs for storing personal property, (3) $18,000 for damage to, or lost use of, personal property, and (4) $4,307.90 to $4,507.90 in medical expenses.
Following the verdict, the UCL claim was submitted to the trial court for decision. The court granted Nairobi's UCL claim and ordered disgorgement of all rent for the four-year period preceding filing of the complaint. However, the court did not add this amount to the verdict. The court concluded the jury verdict included a larger back rent award than it awarded under the UCL, and its award was thus subsumed in the jury's damage award. It instructed the parties to file briefing on the issue of interest.
The Watkins submitted a post-trial brief asserting that Nairobi had not demonstrated an entitlement to attorney fees under section 1021.5. They also asserted Nairobi failed to recover a judgment in excess of their section 998 offer. In reply briefing, they further argued prejudgment interest was inappropriate because Nairobi's pleaded causes of action never sought restitution of all back rent payments.
Nairobi failed to include her post-trial brief in the appellate record filed with this court.
Nairobi subsequently filed three post-trial motions. First, she filed a motion for attorney fees under section 1021.5 on the basis the litigation conferred an important benefit to the public by enforcing Oakland Municipal Code section 15.08.150 (OMC § 15.08.150), which requires landlords to obtain certificates of occupancy.
Second, Nairobi filed a motion for an order that her jury verdict exceeded the Watkins' section 998 offer. She noted the jury awarded her $79,290 in past economic damages, $5,000 in future economic damages, and $9,000 for past non-economic damages, for a total award of $93,290. She asserted that, as the prevailing party, she was entitled to pre-section 998 offer costs and prejudgment interest. She identified $3,776.35 in pre-offer costs and claimed $27,607.21 on prejudgment interest for the entirety of her back rent payments. Nairobi asserted these amounts totaled $123,323.56, a sum greater than the section 998 offer.
Third, Nairobi filed a motion for new trial on the issue of damages. She asserted insufficient evidence supported the jury's award of $9,000 in non-economic damages, and a higher award was necessitated based on the evidence and the jury's findings of liability against the Watkins.
The Watkins opposed all three motions. First, the Watkins asserted the jury award, plus pre-offer costs, did not exceed their section 998 offer. They claimed (1) the addition of prejudgment interest was inappropriate because back rent was not alleged as a measure of damages in Nairobi's complaint, (2) she cannot demonstrate what portion of the economic damage award was attributed to back rent, (3) rent, plus any alleged prejudgment interest, based on the UCL claim was subsumed in the jury award, and (4) Nairobi incorrectly limited her comparative fault to only the non-economic damage award. The Watkins thus asserted they were entitled to cost shifting under section 998.
Next, the Watkins challenged Nairobi's request for attorney fees. They asserted Nairobi failed to demonstrate she qualified for fees under section 1021.5 because the litigation was not necessary to enforce any public right and Nairobi's financial interest in the lawsuit outweighed any public interest. Finally, the Watkins asserted the evidence supported the jury's limited award of non-economic damages, and Nairobi failed to offer any evidence suggesting the jury misunderstood their instructions or were biased against her.
The court denied the motions for new trial and attorney fees. The court explained Nairobi failed to demonstrate the jury erred in providing limited non-economic damages because the jury "could reasonably have concluded that the evidence did not suggest that [Nairobi] suffered emotional distress." Nairobi "did not present as a particularly creditable or sympathetic witness," and "[c]haritably, the testimony of [her] experts can only be described as unconvincing[ ] and weak."
The court also rejected Nairobi's argument that her complaint was an enforcement action supporting Oakland rental laws, which would entitle her to attorney fees under section 1021.5. It noted the unit at issue had been removed from the rental market prior to Nairobi's lawsuit, and testimony at trial indicated the dispute involved habitability issues, not removal of the rental unit from the market. And the court highlighted that the only benefit obtained by Nairobi through her litigation was restitution to herself, and not to any other person or group.
The court initially granted Nairobi's motion for an order that the jury verdict exceeded the section 998 offer and entered judgment in favor of Nairobi in the sum of $107,131.54 based on the following analysis. In addressing the question of prejudgment interest, the court referred to is prior ruling that the Watkins' failure to obtain a certificate of occupancy precluded them from collecting rent. As such, it found the rent payments "certain, or capable of being made certain by calculation" and thus subject to prejudgment interest. It also noted its prior ruling limiting recovery of rent and interest thereon under the UCL to the four-year statute of limitations. It thus awarded Nairobi $12,271.34 in prejudgment interest. In addressing comparative liability, the court applied the 15% comparative fault to the entirety of the jury verdict other than the $42,898 attributable to past rent paid. Incorporating these items into the jury award of $93,290, the court found Nairobi entitled to a total verdict of $101,768.89. The court arrived at the sum of $107,131.54 for the initial judgment by adding interest through the date of judgment in the amount of $5,362.65 to the total verdict of $101,768.89.
The Watkins moved to vacate the judgment because the court included interest on rent payments that Nairobi did not actually pay. Specifically, the court's interest calculation included alleged rental payments for the period June 1, 2015 to June 1, 2018 but Nairobi vacated the unit in January 2016 and did not pay rent after May 2015. Nairobi opposed the motion. She acknowledged the court "does appear to include in its calculations amounts [Nairobi] did not pay in rent for dates after May of 2015," but argued the judgment was "the most equitable outcome and should not be set aside."
The court vacated the judgment and, based on the reduced calculation of prejudgment interest, concluded Nairobi's verdict did not exceed the Watkins' section 998 offer. It entered a new judgment that awarded costs to the Watkins under section 998, which resulted in a total award to Nairobi of $3,772.87. Nairobi timely appealed.
DISCUSSION
On appeal, Nairobi asserts the trial court erred by (1) concluding the jury verdict was less than the Watkins' section 998 offer, thus triggering cost shifting in their favor, (2) denying her motion for new trial, and (3) denying her request for attorney's fees. We address each argument in turn.
I. Section 998 Offer
Following trial, the court assessed whether Nairobi's recovery exceeded the Watkins' section 998 offer. The court calculated Nairobi's total award by incorporating the economic and non-economic damages awarded by the jury, the jury's comparative fault allocation, the court's award of damages and prejudgment interest on Nairobi's UCL claim, and costs incurred by Nairobi prior to the section 998 offer. When considering these components, the court concluded Nairobi's recovery was less than the section 998 offer and the Watkins were awarded their post-offer costs.
As an initial matter, it is useful to note what Nairobi is, and is not, challenging on appeal. She does not contend the jury verdict was unsupported by the evidence. Nor does she claim the jury was erroneously instructed. She also does not allege the trial court erred in applying a statute of limitations to reduce her recovery under the UCL. Instead, the only argument Nairobi raises on appeal is that the trial court erred by calculating prejudgment interest based on her UCL claim rather than her breach of contract claim. In support of her argument, she alleges (1) the jury award must be interpreted as incorporating full disgorgement of past rent because the lease was subject to rescission due to the Watkins' failure to obtain a certificate of occupancy, and (2) she is entitled to prejudgment interest on the entirety of her past rent payments.
Nairobi's argument fails for two key procedural shortcomings. First, Nairobi asks this court to presume the jury's verdict on the breach of contract claim was based on the Watkins' failure to obtain a certificate of occupancy, which resulted in rescission of the lease. Yet the record before this court does not contain any such jury findings."' "A judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." [Citations]'" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 (Gee); see also Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).) "Consequently, [appellant] has the burden of providing an adequate record." (Hernandez, at p. 502.)" 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.'" (Gee, at p. 1416.) In other words, "[w]here [appellant] fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him." (Rancho Santa Fe Ass'n v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)
Here, Nairobi has failed to include the special verdict form evidencing the jury's factual findings on the breach of contract claim. She also has failed to include the jury instructions, which would indicate the legal theories on which the jury was instructed. Without these materials, this court is unable to assess the theories of liability upon which the jury was instructed or what conclusions of fact were reached by the jury. The operative complaint, which is included in the appellate record, does not seek rescission of the lease in connection with her breach of contract claim. It also does not explicitly reference the lack of a certificate of occupancy or cite the relevant Oakland Municipal code in the breach of contract cause of action. While those issues were certainly raised at trial, multiple other alleged breaches were also asserted, including quiet enjoyment and use of the premises, and Nairobi sought general damages based on those breaches. Nairobi was entitled to pursue alternative remedies up and through trial; but she could not recover both rescission, which is predicated on a disaffirmance of the lease, and damages for breach of contract, which effectively seeks to enforce the lease. And nothing in the record indicates which theories were presented to, or adopted by, the jury in reaching its verdict. Accordingly, we cannot conclude from the record that Nairobi's breach of contract claim was premised on rescission of the lease due to the OMC § 15.08.150 violation, despite the trial court finding the lease void in connection with her UCL claim. Merely because she could have brought a breach of contract claim based on OMC § 15.08.150 does not mean she did, in fact, do so.
At oral argument, defense counsel asserted that the complaint's prayer for unjust enrichment was equivalent to seeking rescission. We disagree. Rescission is a remedy that disaffirms a contract and "requires each party to the contract to restore to the other everything of value received under the contract." (Viterbi v. Wasserman (2011) 191 Cal.App.4th 927, 935.) Unjust enrichment, however, does not necessarily focus on what has been exchanged but assesses whether, under the circumstances, it is unjust for a party to retain received benefits. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1481.)
Second, Nairobi requests that this court presume the jury award encompasses the full disgorgement of her past rent payments. Again, the record is insufficient to support Nairobi's position. As noted in the trial court's subsequent judgment, the jury found in Nairobi's favor on four causes of action and awarded a lump sum for past economic damages. But this amount was less than the total amount of back rent and other damages sought. As explained by the trial court, "[u]nder the theories pleaded and the evidence presented to the jury, the jury's verdict could have been based on either contract or tort . . . . Neither party requested a question on the special verdict to apportion damages as between the contract and tort causes of action."
Even accepting the parties' position that the award likely encompassed $42,898.00 in damages associated with rental payments, that amount is less than the total rent paid by Nairobi. Accordingly, the jury may have concluded the breach of contract was based on habitability issues rather than the certificate of occupancy, or the lack of a certificate only entitled Nairobi to damages to the extent the past rent amount exceeded the reasonable value of her use and occupancy of the unit. (See Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1047-1048; see also id. at p. 1048 ["The rule barring the enforcement of unlawful contracts is not absolute. Because the rationale for the rule is founded on deterrence the Supreme Court has made clear that courts' "should not . . . blindly extend the rule to every case where illegality appears somewhere in the transaction."' "].) Nor does Nairobi's reliance on North 7th Street Associates v. Constante (2016) 7 Cal.App.5th Supp. 1 alter our analysis. Putting aside that superior court appellate division cases are not binding authority, that case stands for the unremarkable proposition that a landlord cannot sustain an unlawful detainer action based on a three-day notice for unpaid rent on an unlawful unit. (Id. at p. 5.) Based on the record before us, any attempt to parse the jury's damages award would be pure speculation.
The absence of these materials and the lack of detail in the jury award is fatal to Nairobi's claim on appeal. "To preserve for appeal a challenge to separate components of a [ ] damage award," the appellant "must request a special verdict form that segregates the elements of damages." (Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158.) Nairobi's failure to request a special verdict delineating damages for past rental payments waives her challenge on appeal "because it is the plaintiff, as the party with the burden of proof, who has the 'responsibility for submitting a verdict form sufficient to support her causes of action.'" (See Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 545; accord Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 346.)" 'Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced, or to articulate for him that which he has left unspoken.'" (Metcalf v. Cnty. of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.)
Based on these procedural shortcomings, Nairobi's argument that section 337, subdivision (c) (section 337(c)) tolled her ability to recover prejudgment interest on all back rent must likewise fail. Section 337(c) applies a four-year statute of limitations for "[a]n action based upon the rescission of a contract in writing," but provides "[w]here the ground for rescission is fraud or mistake, the time shall not begin to run until the discovery by the aggrieved party of the facts constituting the fraud or mistake." (§ 337, subd. (c).) Nothing in the record before this court indicates Nairobi sought rescission of the lease, was awarded such relief, or that the basis for such relief was fraud or mistake. (See In re Michael D. (2002) 100 Cal.App.4th 115, 126 ["our role as an appellate court is not to make new findings of facts or second-guess the trier of fact"].)
Accordingly, Nairobi has failed to demonstrate any error in the court's application of prejudgment interest to her UCL claim rather than her breach of contract claim. Barring such error, the trial court correctly concluded Nairobi's recovery failed to exceed the Watkins' section 998 offer, and it appropriately shifted costs in favor of the Watkins.
Nairobi suggests in passing the trial court erred in denying her motion for directed verdict on the breach of contract claim. However, she fails to provide any substantive analysis of this issue and did not include the court's ruling on her motion for directed verdict in the record. Accordingly, she has waived this argument. (See, e.g., Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 ["[w]hen an appellant asserts a point but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited"].)
II. Motion for New Trial
Nairobi next asserts the trial court erred in denying her motion for new trial. She contends "it was inconsistent for the jury to award virtually all of Appellant's requested economic damages that more than accounted for all of her past and future medical bills, but awarded a significantly negligible amount for past and absolutely no future non-economic damages."
"' "A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision." A trial court has broad discretion in ruling on a new trial motion, and the court's exercise of discretion is accorded great deference on appeal. [Citation.] An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] Accordingly, we can reverse the denial of a new trial motion based on insufficiency of the evidence or [inadequate or] excessive damages only if there is no substantial conflict in the evidence and the evidence compels the conclusion that the motion should have been granted.'" (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1415-1416.)
Here, we cannot conclude the jury's award for non-economic damages is inconsistent with its economic damages award. The jury could have concluded the problems with the unit were akin to technical violations of law, and substantial evidence supports a finding that those violations did not result in significant emotional distress for Nairobi. First, the record indicates RAP conducted an inspection of the unit and denied compensation for many of the habitability issues raised by Nairobi in this matter, including mold, damaged floors, ceiling insulation, bird droppings in the bathroom flue, and poor ventilation. Air samples from 2016 did not indicate unusually high levels of mold in the unit. And Nairobi's conduct did not evidence excessive concern over these issues. Nairobi did not attempt to leave the unit, even after OBD designated it as an illegal unit. Nor did she look for alternative housing despite asserting the conditions in the unit were causing damage to her health. Rather, Nairobi testified she only began looking for housing when the Watkins obtained a permit to remove the unit from the rental market. And she only moved out of the unit after the Watkins filed an unlawful detainer action and the parties reached a monetary settlement.
The record also contained testimony from medical professionals undermining Nairobi's claim that she suffered emotionally distressing medical conditions caused by the unit. Nairobi's primary care physician, Dr. Dunlop, noted Nairobi did not have a sore throat or rash during her initial examination, and instructed her to return when she was having symptoms. When Nairobi returned with a skin rash, neither Dr. Dunlop nor a resident at UCSF's allergy and immunology clinic believed the rash was related to mold or environmental allergens. Dr. Dunlop also testified that Nairobi "did not have symptoms that would be consistent with a systemic exposure to mold," and declined to order further mold testing requested by Nairobi at a later visit. Dr. Dunlop stated Nairobi was "in good health" and "in no distress" during her physical exam. Other medical providers Nairobi saw during her tenancy likewise agreed her symptoms were mostly resolved and inconsistent with long-term mold exposure.
The testimony from medical providers who did not treat Nairobi during her tenancy contained significant weaknesses. Dr. McCarter alleged-based on only two examinations of Nairobi and a review of a single allergen test- that Nairobi's long-term medical providers at UCSF were wrong. Dr. McCarter acknowledged she did not review Nairobi's UCSF medical records and was testifying as an advocate for Nairobi rather than an independent, objective person. While Nairobi's expert witness reviewed UCSF's medical records, he acknowledged he did not conduct an examination of Nairobi and erroneously based his conclusion that Nairobi had a significant level of mold in her system on a different patient's test results.
Nairobi contends the trial court failed to consider "the substantial evidence that [she] suffered debilitative physical ailments whose impact would reasonably persist into the future." However, the court considered and discussed all of the above evidence. The court concluded a jury could reasonably find that Nairobi's emotional distress "was minimal," noted that Nairobi "did not present as a particularly credible or sympathetic witness," and described her experts as "unconvincing[ ] and weak."
Accordingly, substantial evidence supports the trial court's ruling, and we find no disconnect between the amount of the jury's economic award and its non-economic award. Nairobi has failed to demonstrate the trial court"' "clearly should have reached a different verdict or decision." '" (Rayii v. Gatica, supra, 218 Cal.App.4th at p. 1416.)
III. Attorney Fees Under Code of Civil Procedure Section 1021.5
Nairobi contends the trial court erred in concluding she did not vindicate an important public right when denying her request for attorney fees. We disagree.
"Section 1021.5, 'a codification of the "private attorney general" doctrine, recognizes that "privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." '" (McCormick v. Pub. Employees' Ret. Sys. (2023) 90 Cal.App.5th 996, 1003 (McCormick).) "Section 1021.5 authorizes a court to 'award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.' The party seeking fees has the burden' "to establish each prerequisite to an award"' under the statute." (McCormick, at pp. 1003-1004.)
The parties dispute the appropriate standard of review. "Generally, we review an award of attorney fees under section 1021.5 for an abuse of discretion. [Citation.] But the standard of review 'depends on the extent to which there were issues of fact below. If the issue is whether the criteria for an award of attorney fees and costs in this context have been satisfied, "this may be a mixed question of law and fact and, if factual questions predominate, may warrant a deferential standard of review." [Citation.] If, on the other hand, the underlying facts are largely undisputed and the issue calls for statutory construction, it is a question of law that is reviewed de novo.'" (McCormick, supra, 90 Cal.App.5th at p. 1004.) Under either standard, we conclude Nairobi's argument fails.
Nairobi first argues she conferred a public benefit via enforcement of OMC § 15.08.150, which prohibits occupancy of a unit without a certificate of occupancy. "When determining whether a lawsuit conferred a significant benefit on the general public or a large class of persons, a trial court should perform 'a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.'" (McCormick, supra, 90 Cal.App.5th at p. 1005.) While" 'the public always has a significant interest in seeing that legal strictures are properly enforced,'" " '[b]oth the statutory language ("significant" benefit) and prior case law . . . indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation.'" (Id. at p. 1006.)
Here, Nairobi's lawsuit may have involved a violation of OMC § 15.08.150, but it did not enforce that provision. Prior to her lawsuit, OBD issued a notice of violation to the Watkins stating that the unit was illegal and must be removed from the housing market. In response, the Watkins did not contest the noticed violation but rather (1) stopped accepting rent from Nairobi, (2) sought to terminate her tenancy to comply with the notice, and (3) applied for a permit to remove the unit from the rental market. Accordingly, the Watkins were not contesting OMC § 15.08.150 but rather took steps to comply with the regulation once they were informed of the violation. This litigation thus did not achieve any"' "fundamental legislative goals." '" (See Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 829.)
Nairobi next asserts her litigation was necessary to impose a financial penalty that would serve as a deterrent to other landlords. This justification fails to support her attorney fee request. "In evaluating the element of financial burden, 'the inquiry before the trial court [is] whether there were "insufficient financial incentives to justify the litigation in economic terms."' [Citation.] If the plaintiff had a 'personal financial stake' in the litigation 'sufficient to warrant [the] decision to incur significant attorney fees and costs in the vigorous prosecution' of the lawsuit, an award under section 1021.5 is inappropriate." (Millview Cnty. Water Dist. v. State Water Res. Control Bd. (2016) 4 Cal.App.5th 759, 768-769; accord McCormick, supra, 90 Cal.App.5th at p. 1006 [section 1021.5 fees "unwarranted if the right at issue is essentially economic, such as the right to be free from unconstitutional takings of private property, and 'the primary effect of the judgment' is to advance the 'plaintiffs' personal economic interests.' "].)
Nairobi's statement of damages indicates she had a significant personal economic interest to pursue the lawsuit. That statement provides that Nairobi was seeking $3,600,000 in general damages, approximately $297,000 in special damages, and $3,000,000 in punitive damages via her litigation. Accordingly, this litigation does not present a situation in which pursuit of these claims would not occur absent an attorney fee shifting provision. We thus conclude the trial court did not err in denying Nairobi's motion for attorney's fees.
DISPOSITION
The judgment is affirmed. Respondents may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
The Watkins filed a cross-appeal. In their brief, they assert this court should "reverse and remand the UCL claim should it find that [Nairobi's] appellate arguments have any merit." Because we reject Nairobi's arguments on appeal and affirm the judgment, we decline to reach the merits of the Watkins' cross-appeal.
WE CONCUR: Tucher, P. J., Rodríguez, J.