Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC358553, Joanne O’Donnell, Judge.
Kenneth H. Carlson, for Plaintiff, Cross-Defendant and Appellant.
O’Melveny & Myers, Randall W. Edwards, Matthew D. Powers, Adam L. Bloom; Munro Migliani & Jordan and Jeffrey L. Elbright, for Defendant, Cross-Plaintiff and Respondent.
ZELON, J.
INTRODUCTION
Appellant Barbara Walker filed a lawsuit against her landlord, Respondent Gabrielle Lennon, seeking $2.3 million in damages for breach of contract, trespass, intentional infliction of emotional distress and various other claims. Lennon filed a cross-claim alleging that Walker breached the parties’ lease agreement by failing to pay rent and causing damage to the property. After a three-week trial, the jury entered a unanimous verdict in favor of Lennon on all claims and awarded her approximately $33,000 in damages.
Walker appeals, arguing that: (1) the trial court erred when it vacated a settlement and dismissal in a related action; (2) the jury gave conflicting responses in the special verdict form, thereby requiring a re-trial; and (3) the trial court erred in denying numerous special jury instructions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Proceeding Filing of Barbara Walker’s Complaint
In 2004, Respondent Karen Gabrielle Lennon posted an advertisement seeking a tenant for a rental property located in Los Angeles, California. In response, Appellant Barbara Walker sent Lennon an email stating that she was interested in the rental property because she had just sold her home and was in need of housing. Walker told Lennon that she did not want to provide a credit report because “it would not be an accurate representation of her” due to a “dispute” over a “mistake” that her bank had made. Lennon believed Walker and did not pursue a credit report.
In April 2004, Walker and Lennon signed a month-to-month lease. Before moving in, Walker toured the property and asked Lennon to perform several repairs, which Lennon did. Approximately one week after moving in, Walker sent Lennon an email requesting additional repairs, including painting the inside of a bedroom closet and replacing some of the outlet fixtures. Over the next several weeks, Walker continued to send Lennon new lists of repairs, many of which Lennon did not feel were necessary.
On May 30, 2004, Walker sent a four-page letter informing Lennon that she intended to contact the L.A. Attorney’s office and file a lawsuit if Lennon did not make certain renovations to the house. Walker also threatened to contact Los Angeles housing authorities to request an inspection of a second dwelling located on the rear of the property, which was occupied by a third-party tenant. According to Walker, the second dwelling constituted an illegal tenancy and housing authorities would order Lennon to evict the third-party tenant.
After a series of additional correspondence between the parties, Lennon wrote an email stating that she did not believe Walker would ever be happy in the rental property and requested that she vacate within 30 days. Three days later, Lennon served Walker with a formal 30-day notice of termination of the tenancy.
Walker refused to vacate the property and contacted housing authorities to complain about the condition of the rental home. When a building inspector came to assess the premises, Walker pointed out numerous defects that, in her view, needed to be repaired. Walker also informed the inspector that there was a second tenant living in a unit located at the rear of the property. The inspector determined that the rear unit was not a legal dwelling and issued a Substandard Order requiring Lennon to remove the tenant and “restore the existing structure[] to its originally approved condition.” The inspector did not issue any orders regarding Walker’s dwelling.
At some point after Walker moved in, Lennon discovered that Walker had not been truthful when she said that she wanted to rent the property because she had sold her house. In fact, a bank had foreclosed on and sold Walker’s property.
B. Walker’s Civil Complaint and Lennon’s Unlawful Detainer Action
On September 17, 2004, Walker filed a complaint alleging that the property was uninhabitable and that Lennon had attempted to evict her in retaliation for complaining about the condition of the premises. The complaint, which sought $25,000 in damages, was filed as a limited civil action and assigned to Judge Michael Solner.
During the pendency of the litigation, Walker continued to live in Lennon’s rental property. In mid-2005, Walker contacted the Los Angeles Housing Department and the Health Department to request a second round of inspections. After inspecting the unit, both agencies issued reports in August of 2005 listing various housing violations, including inoperable heat, improper maintenance of electrical wiring and inoperable windows located in the bedroom.
Immediately after the reports were issued, Walker began withholding her monthly rent and making improvements to the property. Without Lennon’s knowledge or permission, Walker hired a company to replace several windows in the house. At the time of the installation, Walker told the window company that she was going to hire another party to put sealing around the windows and fix the surrounding drywall. The windows were never sealed, which eventually caused damage to the property.
In December of 2005, Lennon served Walker with a 60-day notice to terminate the month-to-month tenancy, but Walker again refused to leave. On February 14, 2006, Lennon filed an unlawful detainer action seeking possession of the property and holdover rental damages for the period that Walker remained in possession of the property beyond February 7, 2006, which was the date on which the 60-day notice to terminate expired. The unlawful detainer action was assigned to Judge Barbara Meiers.
C. Lennon’s Motion to File a Cross-Claim in Walker’s Civil Action
Walker’s civil matter, then pending before Judge Solner, was scheduled to go to trial on March 7, 2006. Several days before the trial was set to begin, Lennon filed an ex-parte motion seeking leave to file a cross-claim alleging that, as of August 2005, Walker had failed to pay rent as required under the lease (“unpaid rent damages”). The cross-claim only sought unpaid rent for the time period during which Walker remained in lawful possession. Therefore, there was no overlap with her unlawful detainer action, where Lennon was seeking “holdover” rental damages for the time period during which Walker remained in possession after expiration of the 60-day notice to terminate.
Lennon’s motion stated that she did not file a cross-claim at the time Walker initially filed her complaint (which occurred in September of 2004) because, at that time, Walker was still paying rent and had continued to do so until August of 2005. Lennon also argued that her cross-claim was compulsory and, as a result, it would likely be forfeited if the court did not grant the ex-parte motion. Judge Solner issued an order to show cause why the court should not (1) permit the cross-claim, and (2) consolidate the matter with Lennon’s pending unlawful detainer action.
At the hearing, Walker’s counsel argued that permitting Lennon’s cross-claim would delay the trial because Walker would need time to respond to the claims and conduct discovery. Walker also argued that Lennon should assert her claims for unpaid rent in the unlawful detainer action, contending that it would be more efficient to try all rent-related claims in a single action.
Lennon opposed Walker’s proposal, arguing that including unpaid rent claims in the unlawful detainer action would delay her ability to regain possession of the property. Lennon explained that she wanted to resolve the unlawful detainer case quickly because she was attempting to sell the property, which she was unable to do until she regained possession.
Lennon also expressed concern that if Walker’s civil case went forward while she was still in possession of the rental property, Walker might bring another action after judgment was entered, alleging new claims arising from her post-judgment possession of the premises.
Lennon proposed that, rather than adding an unpaid rent claim to the unlawful detainer action, she would withdraw her request for holdover damages in the unlawful detainer action and seek those damages in Walker’s civil trial:
I have an idea. In the unlawful detainer case, we can take out our claim for rental damages... Then [Lennon] can try the amount of rent that’s due and owing from the time that Ms. Walker stopped paying the rent.... That would simplify the unlawful detainer and tidy up the matter of the rent and totally eliminate [Walker’s] argument that they should all be heard in the same case.
The court agreed with Lennon’s proposal and permitted her to file the cross-claim. The court also allowed Walker 30 days to respond to the cross-claim and file an amended complaint.
On April 11, 2006, Walker answered Lennon’s cross-claim and filed an amended complaint that added numerous causes of action, including fraud, nuisance, trespass, conversion, intentional infliction of emotional distress and violation of Los Angeles Rent Control, and increased her alleged damages from $25,000 to over $2.2 million.
D. The Unlawful Detainer Settlement
In May 2006, Judge Meiers heard Lennon’s unlawful detainer action. The court stated that the action could be simplified if Lennon withdrew her claim for holdover damages, which would effectively remove any issues related to the condition of the premises. In response, Lennon’s counsel explained that she intended to withdraw her claim for “holdover” damages and assert them in Walker’s civil case:
[LENNON’S COUNSEL]: If I may address that, Your Honor. There’s another lawsuit pending between the parties resolving their various cross-claims against one another.
And in that lawsuit, I have let counsel know, or the plaintiff’s counsel, Mr. Carlson, that we’re not seeking damages in this case. Those damages in lieu of rent are reserved for the other case.
So that’s not part of this case
THE COURT: So you’re withdrawing the request for damages in the complaint; is that right?
[LENNON’S COUNSEL]: In this case, yes, Your Honor.
[WALKER’S COUNSEL]: There hasn’t been any filing or
[LENNON’S COUNSEL]: Oh, that’s true. But I made an affirmative representation in open court in front of Judge [Solner]. [Walker’s counsel] was there, so he knows I made it, and
THE COURT: Well, you’ve lost me. The complaint says fair rental value is $61.67 a day. It says damages are sought at... that given rate.
So basically what you’re seeking to do is to amend the complaint by striking the prayer for the damages in this case?
[LENNON’S COUNSEL]: That’s correct.
THE COURT: You’re not claiming you’re waiving them. You’re just not going to seek them in this U.D. case.
[LENNON’S COUNSEL]: That’s correct.
Later in the hearing, the parties informed the court they had reached a settlement, which they then put on the record. Under the terms of the settlement, Walker agreed to vacate the premises in exchange for $5,000. They further agreed that the settlement would have no impact on the claims each party had raised in Walker’s civil trial, including their respective claims for damages. As stated by the trial court, “any prior damages or anything else that’s been involved, that’s all in that other lawsuit. You’ll address it there.” The parties further agreed that they would not reference the unlawful detainer settlement in Walker’s civil action: “[t]here will be no references to the resolution of this matter in case number 04K12506, or of its pendency, ... if not already before that court. Meaning in its pendency.”
The court’s minute order summarized the terms of the unlawful detainer settlement:
There will be no reference to the resolution of this matter in case #04K12506 or of the pendency of this case (if its pendency is not already before that court.) The performances hereof will result in a waiver of all claims arising out of this action except those claims pending in 04K12506 and under security deposit laws.
The minute order further stated that if the court did not receive any “[Code of Civil Procedure, section] 664.6 motions” before August 23, 2006, the court would dismiss the action with prejudice.
Code of Civil Procedure, section 664.6 provides that, under certain conditions, the trial court may retain jurisdiction of an action “to enforce the settlement until performance in full of the terms of the settlement.”
E. Walker’s Motion to Strike Lennon’s Counter Claim in the Civil Action
Two weeks after the parties settled the unlawful detainer action, Walker filed a motion to strike Lennon’s cross-claim for unpaid rent in her civil case, arguing that the claim had been waived as part of the unlawful detainer settlement. Walker’s motion contended that “in the settlement of the unlawful detainer, damages were waived as an inducement to obtain possession, such that the money sought in this action has been waived and forfeited in the unlawful detainer action, barring the claim for said amounts in this action.” A declaration from Walker’s counsel reiterated these allegations:
The reference in the [unlawful detainer settlement] to the claims in this action was directed to Ms. Walker’s claims, and whatever additional claims beyond the waived rent that Ms. Lennon might raise in her cross-complaint. There was no intention by the parties... [t]o permit Ms. Lennon to seek... rent through this action... I understood, as did my client and the opposition that all rental damages sought in the unlawful detainer complaint were being waived.
Although Walker filed the motion to strike in July of 2006, it was not heard for several months. The delay was due to the fact that, after Walker filed her amended complaint, the action was reclassified from “limited” to “general” jurisdiction, and transferred from Judge Solner to Judge O’Donnell. While the motion to strike was pending, Judge Meiers – who was then unaware of the motion – dismissed Lennon’s unlawful detainer action with prejudice on August 23, 2006.
Judge O’Donnell heard the motion to strike on January 12, 2007. Walker’s counsel again reiterated that the unlawful detainer settlement was specifically intended to waive any claims for unpaid rent:
The stipulation in the unlawful detainer was intended to be a global settlement, except for the claims that had existed here, and the whole idea of the waiver was to waive any claim for... rent that was due and for damages – rental damages.
That was the whole point of it. That’s why we settled it. That’s why the language was there....
[¶]... [¶]
Judge Meiers drafted it, but [Lennon’s counsel] and I, who were the attorneys in that case, understood what the meaning of it was....
Judge O’Donnell, who did not have the transcript from the unlawful detainer action settlement and was working only from the language in Judge Meiers’s minute order, agreed with Walker’s counsel and entered an order stating, in part:
The stipulated judgment does not prevent Walker from raising the settlement of the UD action as a defense to Lennon’s cross-complaint. The settlement reads: “The performance hereof will result in a waiver of all other claims arising out of this action, except those claim pending in 04K12506 and under security deposit laws.” The first part of that statement clearly precludes the UD parties from trying to collect in a separate action that which they were surrendering in the UD settlement, whatever those claims might be, including rental payments. The second part of the statement indicates that Walker was not required to surrender her claims in the (then) limited jurisdiction action. The language of the settlement left open Walker’s claims in this action but foreclosed Lennon’s right to seek rent.
When Lennon moved for reconsideration, Walker again argued that “[t]he ‘waiver of all claims arising out of this action, ’ as drafted by Judge Meiers, referred to and included the rental damages.... [¶]... which she had sacrificed and waived to obtain possession.” Walker further asserted that the transcript from the unlawful detainer hearing did not contain “any direct or indirect mention of Cross-complainant’s claims for rent in this action as not being waived. Her counsel does not say that she was ‘waiving’ it there in order to claim it here, nor suggest in any way that her monetary claims for the same rent and damages sought in both actions were not being waived.” Judge O’Donnell denied the motion to reconsider.
F. Lennon’s Motion to Vacate the Settlement and Dismissal of the Unlawful Detainer Action
Shortly after Judge O’Donnell granted Walker’s motion to strike, Lennon filed a motion with Judge Meiers seeking to vacate the settlement and dismissal of the unlawful detainer action, arguing that Walker had misrepresented the nature of the settlement before Judge O’Donnell and violated the settlement’s terms by raising it as an affirmative defense to Lennon’s cross-claim.
At the beginning of the hearing, Judge Meiers expressed her frustration with Walker’s counsel, Ken Carlson, and asked him to explain his actions:
[W]e wouldn’t be doing all of this had you not behaved, in my view, in an entirely improper manner. Entirely improper.
You had no business raising anything about this case in that other pending case that was part of the settlement agreement....
[¶]... [¶]
I cannot believe what has happened up in the other court, where their pleadings have been stricken because of what you have filed up there in violation of the settlement agreement.
And the big question now is going to be: How do we get that redressed in some other court? I can’t order that court to unring the bell that they have already rung up there.... And I will hear from both of you but I am really kind of shocked and appalled at all this. I really don’t understand, Mr. Carlson, how you could have done the things you have done.
-- Maybe I’m not seeing something, so I will give you a chance to explain it to me, but I was shocked when I saw this.
In response, Carlson argued that his arguments to Judge O’Donnell reflected his interpretation of the language of the settlement, which stated that Lennon had waived “all claims arising out of [the unlawful detainer] action.” Judge Meiers disagreed, explaining that Carlson was ignoring additional language in the settlement stating that the parties would not reference the settlement in Walker’s civil action and retained their right to pursue any claims that had been alleged in that matter. Judge Meiers also stated that, in her view, there was no ambiguity in the parties’ intent at the time they settled the unlawful detainer action: “I don’t... find an ambiguity to interpret. I even remember what went on here. So there is nothing for me to interpret. There is nothing for you to argue about some ambiguous intent that was off in your mind, ” later adding “[d]on’t play games with me.... [¶]... [¶] I know exactly what this agreement meant and so do you.”
Judge Meiers concluded that the most effective way to restore Lennon’s unpaid rent claims was to vacate the dismissal and settlement of the unlawful detainer action, explaining that such actions were justified because Carlson had “intentionally and knowingly violated a settlement agreement made in front of me and then caused another court to, in my view, err in their ruling because you were not honest or candid with that court.”
After Judge Meiers restored the unlawful detainer action, Judge O’Donnell related it to Walker’s civil matter and permitted Lennon to file a first amended complaint seeking recovery for unpaid rent, holdover rent and damages that Walker allegedly caused to the property when she replaced windows located in the rental unit.
G. Events During Trial
In September 2008, the parties conducted a three week jury trial on the parties’ cross-claims for breach of the lease agreement and Walker’s related claims for trespass, conversion, nuisance and violation of Los Angeles’s rent stabilization ordinance.
During the course of the trial, the court reviewed the parties’ proposed jury instructions. Lennon requested an affirmative defense instruction stating that “Lennon claims that no contract was created because her consent was obtained by fraud.” The instruction explained that if the jury concluded that: (1) Walker had falsely represented that she was selling her home and becoming a renter, and (2) Lennon relied on that statement in renting out the premises, then it must find no contract was created. The court permitted the instruction over Walker’s objection.
The parties presented their closing arguments on September 19, 2008. Several hours later, the jury returned unanimous verdicts against Walker on all of her claims and in favor of Lennon on all of her cross-claims. The jury’s responses to the special verdict included the following findings:
Walker and Lennon did not enter into a contract
Lennon maintained the premises in a habitable condition
Lennon never retaliated against Walker for exercising her legal rights
Walker failed to make rental payments as required by the rental agreement
Walker breached the rental agreement by causing or permitting damage to the windows or walls of the premises
The jury awarded Lennon approximately $9,000 for “unpaid rent, ” $9,000 for “holdover” rent damages and $15,000 for damage Walker caused to the property. Walker timely appealed the ruling.
DISCUSSION
Walker raises three issues on appeal. First, she contends that Judge Meiers had no legal basis to vacate the settlement and dismissal of the unlawful detainer action. Second, she argues that conflicts in the jury’s responses to the special verdict form require a re trial. Third, she argues that Judge O’Donnell erred in denying numerous special jury instructions.
A. There is Substantial Evidence Supporting Judge Meiers’s Decision to Vacate the Settlement and Dismissal of the Unlawful Detainer Matter
Walker argues that Judge Meiers had no authority to vacate the dismissal of the parties’ unlawful detainer action. Specifically, Walker contends that there was no evidence supporting the judge’s finding that Walker’s counsel, Ken Carlson, fraudulently induced Judge O’Donnell to strike Lennon’s cross-claim in the civil action by intentionally misrepresenting the intended scope of the unlawful detainer settlement.
1. Legal principles and standard of review
Under Code of Civil Procedure section 473, subdivision (b), trial courts have statutory authority to vacate a judgment procured through fraud. (See Beresh v. Sovereign Life Ins. Co. (1979) 92 Cal.App.3d 547, 552; Peterson v. Peterson (1955) 135 Cal.App.2d 812, 816; Rice v. Rice (1949) 93 Cal.App.2d 646, 665.) A party seeking relief under section 473 need not establish “[a]ctual fraud.” (Davis v. Davis (1960) 185 Cal.App.2d 788, 793 (Davis).) Rather, as explained by one court, “[i]n cases where the aggrieved party is unable to make out a case of intentional fraud, the courts on motion will extend a liberal interpretation to relieve him from a judgment taken without a fair adversary hearing. [Citations.] The basis for... relief in these cases... is that which has resulted in a judgment taken under circumstances of unfairness and injustice without affording a party the opportunity to [fairly present a claim or defense to the court.]” (Id. at p. 794.)
We review a challenge to a trial court’s order to vacate a judgment on the basis of fraud for abuse of discretion. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [decision to vacate judgment on equitable grounds or under Code of Civil Procedure section 473 reviewed for abuse of discretion].) Issues of fact and credibility are matters for the trial court. (Davis, supra, 185 Cal.App.2d at p. 792.) We may not reweigh or express an independent judgment on the evidence, but must decide only whether “the trial court’s factual findings are supported by substantial evidence. [Citations.]” (County of San Diego v. Gorham (2010)186 Cal.App.4th 1215, 1230.)
2. There was substantial evidence to support the trial court’s finding of fraud
Judge Meiers concluded that when Carlson entered into the unlawful detainer settlement, he understood that the settlement was not intended to waive the cross-claim for unpaid rent that Lennon had asserted in Walker’s civil action. Judge Meiers further concluded that, despite this understanding, Carlson intentionally misled Judge O’Donnell into believing that the settlement was intended to waive the cross-claim. Those factual findings are supported by substantial evidence.
The record shows that Carlson repeatedly represented to Judge O’Donnell that “[t]here was no intention by the parties... [t]o permit Ms. Lennon to seek... rent through this action.... I understood, as did my client and the opposition that all rental damages... were being waived [as part of the settlement].” Carlson emphasized this point during oral argument, asserting that “the whole idea [of the settlement was] to waive any claim for.... rent that was due and for damages – rental damages. [¶] That was the whole point of it.” At one point, Carlson even stated that the transcript of the unlawful detainer hearing did not “suggest in any way” that Lennon intended to preserve any rent-related claim.
The record demonstrates that those assertions are false. The transcript of the unlawful detainer settlement hearing makes clear that: (1) Lennon’s counsel informed Carlson and Judge Meiers that Lennon was not waiving her claim for holdover damages, but was simply withdrawing the claim in the unlawful detainer action so that she could combine it with the unpaid rent claim that she had already asserted in Walker’s civil action; (2) the unlawful detainer settlement was not intended to have any effect on claims that had been asserted in the civil case, which included Lennon’s claim for unpaid rent; and (3) the parties were not even supposed to reference the unlawful detainer action settlement during the civil action.
The transcript of the settlement hearing amply supports Judge Meiers’s finding that Carlson knew the settlement was not intended to have any effect on the claims Lennon had previously asserted in Walker’s civil case and that the settlement was not to be mentioned in those proceedings. It is inexplicable that, if he had intended to comply with those terms, only two weeks later, Carlson filed a motion arguing that the settlement was intended to foreclose Lennon’s right to pursue the unpaid rent claim described in her cross-claim. Because there is substantial evidence that Carlson procured dismissal of the unlawful detainer action by agreeing to a settlement whose terms he did not intend to abide by, Judge Meiers was justified in vacating the dismissal. (See, e.g., Davis, supra, 185 Cal.App. 2d at pp. 790-794 [vacating judgment on grounds of fraud where plaintiff obtained judgment by violating terms of prior settlement].)
On appeal, Walker has made no attempt to explain how the statements her attorney made before Judge O’Donnell can be characterized as an accurate representation of the parties’ settlement. Instead, Walker raises several arguments that mischaracterize the record below. First, Walker argues that “there was no legal basis” for Judge Meiers to vacate the dismissal because her ruling “does not contend that Walker misled Judge O’Donnell, [it merely].... describes apparent misunderstandings by Judge O’Donnell... without identifying any misrepresentation by Walker causing such.” In fact, Judge Meiers stated on the record that she believed Ken Carlson had “intentionally and knowingly violated a settlement agreement... and then caused another court to... err in their ruling because you were not honest or candid with that court.”
Second, Walker argues that, contrary to Judge Meiers’s findings, her motion to strike Lennon’s counter-claim did not argue that “the UD settlement settled and released all of Lennon’s claims for rent, such that rent could not be sought in this action.” Again, this is demonstrably false. The portions of the record summarized and quoted at length above clearly demonstrate that Walker’s motion to strike asserted that the settlement was intended to waive any claim for unpaid rent.
In sum, the record and the briefings in this case show that Walker’s counsel misrepresented the intent of the parties’ settlement before Judge O’Donnell and has displayed a similar lack of candor before this court. Under the circumstances presented, we find no abuse of discretion in Judge Meiers’s decision to vacate the judgment entered in the unlawful detainer matter.
Walker’s motion to strike also argued that Lennon violated the “rule against splitting causes of action” by asserting a cross-claim for unpaid rent in Walker’s civil case, while simultaneously initiating an unlawful detainer action seeking possession of the rental property. However, it is well-established that a party is entitled to seek possession through an unlawful detainer action while simultaneously seeking “monetary damages [for unpaid rent in a]... subsequent litigation.” (Northrop Corp. v. Chaparral Energy, Inc. (1985) 168 Cal.App.3d 725, 729.) As explained by one court, “[t]o require the landlord to litigate rental damages in unlawful detainer could delay and frustrate the primary purpose of the proceeding, the obtaining of possession.” (Ibid.)
B. The Jury’s Special Verdict Form Responses Do Not Require a Re-trial
Walker argues that a re-trial is necessary because of purported inconsistencies in the jury’s responses to the special verdict form. Specifically, Walker argues that because the jury concluded Lennon and Walker did not enter into a rental contract, there was no basis for finding Walker liable for unpaid rent, holdover rent or for damages she caused to Lennon’s property.
1. Factual Summary
At trial, the parties introduced into evidence a written lease signed by both Walker and Lennon. Walker claimed that Lennon had breached the lease by, among other things, failing to provide a habitable dwelling. Lennon cross-claimed, arguing that Walker had breached the lease agreement by failing to pay rent, remaining in possession of the property after the tenancy had terminated and causing damage to the premises when she replaced various windows in a defective manner.
As an affirmative defense to Walker’s breach of contract claim, Lennon requested and received a jury instruction stating that “Lennon claims that no contract was created because her consent was obtained by fraud.” The instruction explained that if the jury found Walker had falsely represented to Lennon that she needed to move into a rental property because she had just sold her home, and that Lennon would not have rented the property to Walker if she knew that was untrue, then it must find no contract was created.
On the special verdict form, the jury was asked: “Did plaintiff Barbara Walker and defendant Karen Gabrielle Lennon enter into a contract?” The jury responded “no” and did not award Walker any damages on her breach of contract claim. However, in a separate section of the special verdict form, the jury found that Walker “fail[ed] to make rental payments [to Lennon]... as required by the rental agreement” and “breach[ed] her rental agreement by causing or permitting damage to the windows or walls of the premises.” The jury awarded Lennon $9,245 for Walker’s “failure to pay rent, ” $15,000 for Walker’s “breach of the rental agreement in causing damage to the premises” and an additional $9,251 for Walker’s “holdover at the premises after the expiry of the 60 Day Notice of Termination.”
2. No re-trial is warranted
Walker contends that because the jury found that she did not enter into a lease agreement with Lennon, there was no basis for finding her liable for unpaid rent or damages that she caused to the property. (See generally Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 457 [“[i]f the verdict is hopelessly ambiguous, a reversal is required”].) Lennon, disagrees, arguing that although the jury apparently deemed the rental agreement void as a result of Walker’s fraud, we may affirm the jury’s award of damages under a theory of tenancy implied by operation of law.
Walker has not appealed any issue regarding the amount of damages the jury awarded. She only argues only that there is no basis for imposing liability because the jury did not find that the parties entered into a contract.
The California Supreme Court has held that where a “theory of recovery was not advanced by plaintiffs in the trial court, it is settled that a change in theory is permitted on appeal when ‘a question of law only is presented on the facts appearing in the record....’ [Citations.]” (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) Therefore, we may uphold the jury’s award of damages under any “theory [that] does not contemplate any factual situation different from that established by the evidence in the trial court.” (Ibid.)
It is well-established that “[t]enancies in property need not necessarily be created by valid leases. One may become a tenant at will or a periodic tenant under an invalid lease, or without any lease at all, by occupancy with consent. Such tenancies carry with them the incidental obligation of rent, and the liability therefore arises not from contract but from the relationship of landlord and tenant.” (Ellingson v. Walsh, O’Connor & Barneson (1940) 15 Cal.2d 673, 675 (Ellingson); see also Schmitt v. Felix (1958) 157 Cal.App.2d 642, 647 [“[L]iability for rent arises in one of two ways, either from a contractual agreement with the property owner or by actual occupancy of the premises with the owner’s consent, ... the first provides ‘privity of contract, ’ the other provides ‘privity of estate’....”]; Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 750 [“[I]t is well established that the tenancy need not be created by a lease but may be created by occupancy by consent”].) In this case, neither party disputes that Walker occupied the premises with Lennon’s consent, at least until the expiration of the 60-Day Notice of Termination. Therefore, even in the absence of a lease, Walker was obliged “by operation of law” to pay rent and the jury concluded that she failed to do so. (Ellingson, supra, 15 Cal.2d at p. 676.)
A “tenancy implied by law” also imposes the obligation not to commit waste or nuisance. (Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009) 171 Cal.App.4th 741, 765.) Waste is generally proven through “evidence of acts which injuriously affect the market value of the property.” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 775-776.) After hearing extensive trial testimony that Walker’s defective installation of windows had lowered the market value of the property, the jury concluded that Walker had “caus[ed] or permtt[ed] damage to the windows or walls of the premises, ” which resulted in a $15,000 “Loss of Value.” Thus, regardless of whether an enforceable lease was in effect, the facts in the record demonstrate that the jury concluded Walker committed waste, and was therefore liable for her damages.
Finally, it is well-established that although there is “no contractual relationship between a holdover tenant and the landlord, ” a holdover tenant “is liable for the value of the use and occupation of the premise during the time of holding over.” (Aviel v. Ng (2008) 161 Cal.App.4th 809, 820; see also Stephens v. Perry (1982) 134 Cal.App.3d 748, 757 fn. 4 (Stephens).) The jury found that Walker owed Lennon “holdover damages at the daily rental value from the date of termination of her tenancy through until the date that Barbara Walker moved out of the premises.” Walker’s obligation to pay holdover rent did not arise as a result of the rental agreement; rather, it arose as a result of her continuing possession of the property without Lennon’s consent. (Stephens, supra, 134 Cal.App.3d at p. 757, fn. 4 [“a lessee holding over against the lessor’s consent after expiration of a lease... is regarded as a tenant at sufferance.... A tenant at sufferance has merely a naked possession [and is].... liable for the value of the use and occupation of the premises”].)
C. Walker is Not Entitled to Reversal Based on the Trial Court’s Denial of Special Jury Instructions
Walker argues that the trial court erred by refusing to give nine different special jury instructions. “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule); Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 684 (Bullock).) A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading or incomplete. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158; see also Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209 [“[i]rrelevant, confusing, incomplete or misleading instructions need not be given”].) In addition, a court may refuse an instruction when the legal point is adequately covered by other instructions given. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11.)
“The propriety of jury instructions is a question of law that we review de novo.” (Cristler v. Express Messenger Systems (2009) 171 Cal.App.4th 72, 82.) When, as here, the contention on appeal is that the trial court failed to give a requested jury instruction, we review the record in the light most favorable to the party proposing the instruction to determine whether there was substantial evidence warranting the instruction. (Soule, supra, 8 Cal.4th at p. 572; Bullock, supra, 159 Cal.App.4th at pp. 685-686.)
In the event the trial court erred, “[a] judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule, supra, 8 Cal.4th at p. 580.) “A ‘miscarriage of justice’ exists when, after examining all the evidence, we conclude ‘“‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.’”’ [Citation.]” (Weaver v. Chavez (2005) 133 Cal.App.4th 1350, 1356.)
1. “Illegal Dwelling” instruction
At trial, Walker introduced evidence that Lennon had rented out a converted structure located behind Walker’s dwelling to a third-party tenant. Walker also introduced evidence that the City of Los Angeles had issued a Substandard Order requiring Lennon to remove the third-party tenant from the rear structure and return the structure to its permitted use.
Based on that evidence, Walker requested a jury instruction stating that Lennon was not entitled to collect rent for any period of time during which the property was subject to a Substandard Order finding an illegal dwelling on the premises:
The landlord may not collect rent for rental property where the structures that occupy the lot do not match the building authorized by the City. The illegal conversion of a building from a storage unit to a dwelling, or the alteration of a dwelling to convert a garage to a bedroom, are illegal conversion unless the landlord can show official approval of those changes by a certificate of occupancy.
If the City of Los Angeles issues a Substandard Order identifying one or more structures on the property as being illegal, then any agreement renting parts of that property are also illegal and no rent is due while that condition remains.
The instruction stated that if the jury found the City had issued a Substandard Order regarding the property owned by Lennon, and that Walker occupied a dwelling on that property, then Walker did not owe rent for the period during which the Substandard Order remained unsatisfied. The trial court refused the instruction, concluding that it misstated the law
Walker contends that the proposed instruction is a correct application of Gruzen v. Henry, (1978) 84 Cal.App.3d 515, and Salazar v. Maradeaga, (1992) 10 Cal.App.4th Supp. 1. Both cases suggest that a tenant does not have an obligation to pay rent if his or her dwelling is found to be an illegal occupancy. However, neither case contains any language suggesting that if one structure on a property is found to be an illegal occupancy, the landlord is barred from collecting rent on legal tenancies located on the same piece of property. The trial court did not err.
2. Special instruction regarding Civil Code section 1942.4
Walker requested a special instruction entitled “Civil Code section 1942.4, ” which stated the following:
The landlord may not demand or collect rent or attempt to increase the rent from a tenant which would otherwise be due under the rental agreement if the premises have uninhabitable conditions for which the landlord has been cited by a government inspector, and those conditions have not been corrected within 35 days after the landlord is given that citation, without good cause for the delay.
If the landlord does demand rent after that citation, the landlord is liable to the tenant for any actual detriment caused by those condition and for an additional penalty...
Lennon’s counsel argued that the instruction was incomplete because it omitted an element of section 1942.4 requiring that the uninhabitable “conditions were not caused by an act or omission of the tenant or lessee.” (Civ. Code, § 1942.4, subd. (a)(4).) The trial court agreed. Because the proposed instruction clearly omits an element in the statute, it was incomplete and the the trial court did not err in denying it. (See Harris, supra, 70 Cal.App.4th at p. 209 [“incomplete or misleading instructions need not be given”].)
Even if Walker had been entitled to the instruction, she has failed to demonstrate that she was prejudiced by the omission. Walker’s proposed instruction states that one of the elements necessary to trigger penalties under section 1942.4 is that the premises have uninhabitable conditions. However, after having been instructed on what types of conditions render a dwelling uninhabitable, the jury found that Lennon “maintain[ed] the premises in habitable condition” during the entire course of Walker’s tenancy. Therefore, it does not appear “reasonably probable” that the instruction would have had any effect on the jury’s verdict. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 [instructional error prejudicial only if it is “‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error’”].)
The court provided the jury CACI No. 4320, which describes the warranty of habitability and is based, in part on the requirements of section 1942.4. (See Judicial Council of Cal. Civil Jury Instructions (2010) Sources and Authority for CACI No. 4320, p. 1083.)
3. Special instructions regarding “repair and deduct”
Civil Code section 1942, subdivision (a) describes the conditions under which a tenant is entitled to repair the tenancy and deduct the cost of repairs from rent. The trial court provided the jury CACI No. 4326, which explains the defense of “Repair and Deduct, ” and is specifically modeled on section 1942. (See Judicial Council of Cal. Civil Jury Instructions (2010) Sources and Authority for CACI No. 4326, pp. 1105-1106.) Walker, however, argues that she was entitled to two additional special instructions regarding the right to repair.
Civil Code section 1942, subdivision (a) states, in relevant part: “If within a reasonable time after written or oral notice to the landlord or his agent... of dilapidations rendering the premises untenantable which the landlord ought to repair, the landlord neglects to do so, the tenant may repair the same himself where the cost of such repairs does not require an expenditure more than one month’s rent of the premises and deduct the expenses of such repairs from the rent when due.
The first proposed special instruction provides a general summary of the tenant’s right to repair and deduct. The trial court denied the instruction because it was duplicative of the points addressed in CACI No. 4326. This was a sufficient basis to refuse the instruction. (See Arato, supra, 5 Cal.4th at p. 1189, fn. 11 [“a court may refuse an instruction requested by a party when the legal point is covered adequately by the instructions that are given”].)
Walker has failed to explain why CACI No. 4326 was inadequate to address the legal points raised in her proposed instruction. Indeed, Walker’s brief does not even acknowledge that the trial court gave CACI No. 4326.
The second proposed instruction regarding “repair and deduct” stated that Walker was not liable for any damage caused to the property as the result of negligent acts committed by the third-party contractor:
When a tenant properly exercises their right to repair and deduct, such as Ms. Walker did to repair the windows at the premises, the tenant is not responsible for any defect in workmanship by the company, provided that she exercised reasonable care in selecting the window company.
The window company’s neglect in failing to properly install the windows [i]s a “superseding negligence” which creates no liability for Ms. Walker unless that neglect was foreseeable.
The trial court rejected the instruction, concluding that it was argumentative. A jury instructive is argumentative if it “‘invite[s] the jury to draw inferences favorable to [a party] from specified items of evidence on a disputed question of fact, and therefore properly belongs... in the arguments of counsel to the jury.’” (People v. Flores (2007) 157 Cal.App.4th 216, 220.) The first paragraph in the proposed instruction states that Walker “acted properly” in exercising her right “to repair the windows at the premises, ” and the second paragraph states that the window company acted negligently when it installed the windows. Both of these statements assert a conclusion about a disputed factual issue and are therefore improper. As a result, the trial court properly denied the instruction.
4. Special instruction regarding “ratification”
Walker requested a special instruction entitled “ratification, ” which is purportedly predicated on Civil Code sections 1588 and 1599, and states:
An unauthorized act, such as repairing the windows, may be approved by later acceptance of the benefits from it.
If you find that Ms Lennon accepted the benefits of the window repair done by Ms. Walker, then you must conclude that Ms. Lennon consented to the repair, even if she claims is was otherwise unauthorized.
Walker contends that this instruction was warranted because there was evidence indicating Lennon inspected the windows after they were installed and gave Walker rent credits for her expenditures, “thereby accept[ing] the benefits of Walker’s work.”
There are two problems with this instruction. First, as the trial court noted, the text of the instruction is clearly argumentative; it assumes there was in fact some “benefit” that accrued to Lennon as a result of the window replacement, which was a contested factual issue.
Second, even if we assume the instruction was proper, Walker has failed to demonstrate how she was prejudiced by its omission. The jury found that Walker’s installation of the defective windows caused $15,000 in property damage. The jury’s verdict makes clear that it did not believe Walker “benefitted” from the windows, but rather was harmed by them. Therefore, there is no reason to believe the ratification instruction would have had any effect on the verdict. (Pool, supra, 42 Cal.3d at p. 1069)
5. Special instructions regarding rent control
Walker argues that the trial court erred in refusing to instruct the jury on Los Angeles’s rent control ordinance.
a. Factual summary
Walker’s complaint alleged that she had been charged excess rent under the Los Angeles rent stabilization ordinance (RSO), which does not apply to single family dwellings unless they are located on the same lot as a second dwelling unit. (See generally Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1046-1047 & fn. 5. (Carter).) The statute defines a “dwelling unit” as “‘[a] group of two or more rooms, one of which is a kitchen, designed for occupancy by one family for living and sleeping purposes.’” (Id. at p. 1047.) Walker argued that her single family dwelling was subject to the RSO because there was a second unit located on the rear of the property, which Lennon had been renting out to a third-party tenant.
The trial court concluded that the application of the RSO to Walker’s tenancy was a question of law and, as a result, the jury need not be instructed on it. However, to aid the court in resolving the legal question, the jury was asked to determine whether the rear unit contained a kitchen. The court instructed the jury that “[a] kitchen is any room or any portion of a dwelling unit, whether an enclosing subdivision thereof or otherwise, used or intended or designed to be used for cooking and preparing food.” On the special verdict form, the jury found that the rear structure did not have a kitchen. Based on that finding, the trial court concluded that the RSO did not apply to Walker’s dwelling.
b. Walker has failed to establish prejudice
Walker requested two instructions related to the Los Angeles RSO. The first instruction summarized Los Angeles’s RSO requirements and stated, in part, “If you find that the guesthouse... had an area where food was prepared... then you must conclude that the guesthouse was the second dwelling on a lot required to bring the entire property within LA rent control.”
The second proposed instruction summarized provisions of the RSO requiring the landlord to register units that are subject to the ordinance with the Los Angeles Housing Department and directed: “If you find that Ms. Lennon failed or refused to register her two-on-a-lot [properties]... then you must conclude that she is not entitled to recover any money on her cross-complaint.”
We need not determine whether Walker was entitled to these instructions because she had failed to demonstrate any prejudice resulting from their omission. The proposed instructions informed the jury that the RSO only applied if it found that “the guesthouse... had an area where food was prepared.” However, as explained above, the jury was specifically instructed that a “kitchen” included “any portion of a dwelling unit... used or intended or designed to be used for cooking and preparing food, ” and found that the back unit did not contain a kitchen. Thus, the jury’s verdict form responses indicate that, even if it had received the rent control instructions, it would have found the RSO inapplicable.
6. Special instruction on security deposit
Walker requested a special instruction regarding California’s rental security deposit procedures. (See Civ. Code, § 1950.5.) The instruction, which was purportedly based on Civil Code section § 1950.5, subdivision (f), stated, in relevant part:
When the tenant is vacating because of a 60-day notice or agreement of the parties, the landlord has the obligation to inspect the property during the last two weeks of tenancy, and hand the tenant at that time a list of proposed deductions for cleaning or repairs which the landlord intends to take out of the security deposit.... The preliminary inspection list limits the landlord to deductions on that list; any item which the landlord seeks to later deduct from the tenant’s deposit cannot be added to those in the preliminary list unless it was concealed by the tenant’s furnishings during the preliminary inspection.
The instruction also stated that if Lennon violated the security deposit procedures, Walker was entitled to recover three times the amount of the deposit.
Lennon’s counsel argued that the instruction did not accurately reflect the requirements of section 1950.5, subdivision (f) and the trial court agreed. On appeal, Walker argues that the instruction was a “correct” statement of the law.
Section 1950.5, subdivision (f) states that a landlord has an obligation to “notify the tenant in writing of his or her option to request an initial inspection.” It further states that, the “landlord shall, upon the request of the tenant, make an initial inspection of the premises” and, based on that inspection, provide a list of repairs or cleaning that are “proposed to be the basis of any deductions from the security.” The statute makes clear that “[i]f a tenant chooses not to request an initial inspection, the duties of the landlord under this subdivision are discharged.”
Walker’s proposed instruction failed to inform the jury that a landlord’s duty to conduct an initial inspection and provide a preliminary list of repairs is only triggered if the tenant requests an inspection. Therefore, the instruction contained an incomplete (and incorrect) statement of law.
In addition, Walker has cited no evidence demonstrating that she requested an initial inspection. Therefore, even if her proposed instruction had accurately described the procedures in section 1950.5, subdivision (f), there is no evidentiary basis to support the instruction. (Soule, supra, 8 Cal.4th at p. 572 [party entitled to instruction on any “theory of the case... which is supported by substantial evidence”].)
7. Special instruction on waiver
Walker requested the following special instruction on “Waiver:”
As the landlord and owner of the premises, Ms. Lennon had the primary obligation to repair defective windows, particularly when notified by Ms. Walker and a reasonable time had passed. If you find that Ms. Lennon failed to take proper action to repair the defective windows, then she gave up the right to object to the repair by Ms. Walker, and to the defects she claims from their installation. If you find that she was aware of the window installation and failed to inspect or repair any defects in the newly installed windows, then you must also conclude that she gave up her rights to object to any defects as against Ms. Walker.
At trial, Walker asserted that the instruction was based on Civil Code section 1942, which describes the defense of repair and deduct, and CACI No. 336, which is a general instruction on waiver. The court denied the instruction, stating “[t]his is just totally argumentative. Defective windows is a matter for the jury to decide. That is rejected.”
The proposed instruction repeatedly states that the windows that Walker replaced were in fact defective, which was an issue of fact disputed by the parties. The instruction was therefore argumentative and therefore properly rejected.
In addition, the instruction does not accurately reflect the principles of waiver. “Waiver is the intentional relinquishment of a known right after knowledge of the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572.) Therefore, a waiver instruction might have been proper if there was evidence Lennon knew the windows that Walker installed caused damage to the property, but then waived her right to seek recovery of those damages through some subsequent act. Walker has identified no such evidence.
DISPOSITION
The judgment is affirmed. Respondent is to recover her costs on appeal.
We concur: PERLUSS, P.J., JACKSON, J.