Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and CROSS-APPEAL from orders of the Superior Court of Los Angeles County, No. BC365775, Joseph Kalin, Judge.
Law Offices of Zamos & Okojie and Jerome Zamos for Plaintiffs and Appellants.
Henry W. Bockman for Defendants and Respondents.
WOODS, Acting P. J.
SUMMARY
Two hearing-impaired plaintiffs filed a complaint against the defendant property owner and her agent for housing discrimination. One of the plaintiffs also alleged she had not been paid for her services as apartment manager. In answering the special verdict, the jury found the property owner (but not her agent) had discriminated against one of the plaintiffs and had also failed to pay her wages and awarded her damages. However, the jury found the second plaintiff was not a tenant and, as a result, proceeded no further with respect to her discrimination claims. After completion of the jury trial, the trial court ruled in favor of the defendants on a declaratory relief cause of action. Both the plaintiff and the defendant were awarded attorney fees.
The plaintiffs appeal from the judgment subsequently entered on multiple grounds. They say the trial court erred in refusing to instruct the jury regarding the applicable law, including the second plaintiff’s right to recover whether the jury found her to be a tenant or not, and both plaintiffs’ right to recover for the defendants’ retaliatory acts; in excluding evidence of the notice provided to the defendants by the Fair Housing Council; in refusing to allow the jury to determine whether punitive damages were warranted for the defendants’ discrimination; in resolving the plaintiffs’ declaratory relief cause of action by improperly reconsidering another court’s prior ruling and denying the plaintiffs a reasonable opportunity to present and argue their claims; in awarding attorney fees to the property owner by finding the second plaintiff’s claims were frivolous; and in denying the prevailing plaintiff costs to which she was entitled.
The defendants filed a cross-appeal, challenging the trial court’s award of attorney fees to the prevailing plaintiff. Except as to the cause of action for failure to pay the first plaintiff minimum wages for serving as the property manager, we find numerous prejudicial errors warrant reversal in this case. In light of this determination, the defendants’ cross-appeal challenging the attorney fee awards is moot.
FACTUAL AND PROCEDURAL SYNOPSIS
On appeal claiming jury instructional error (either that the trial court gave an erroneous instruction or improperly refused an instruction), appellate courts review the evidence in the light most favorable to the plaintiff. (Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633; Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358.) It is assumed on appeal that the jury might have believed the evidence on which the instruction favorable to the appellant was predicated and rendered a verdict in appellant’s favor on those issues as to which it was misdirected. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674; Whitely v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655.)
For more than 20 years, Sylvia Aguirre, who has been deaf since birth, lived in one of six rent-controlled bungalow apartments in North Hollywood (located at 11002 Hartsook Street). Emily Chen purchased the six-unit property in 1997. In 1999, Aguirre inquired about acting as a resident manager at the property, and Chen agreed. Aguirre’s duties included collecting the rent, remaining on call for about five hours each day, cleaning, gardening, coordinating repairs and monitoring the premises and parking lot among other responsibilities. In April 2005, someone stole cash ($2,240) from Aguirre’s apartment. She had collected this money on Chen’s behalf for rent payments. Aguirre contacted Chen and told her what had happened. Chen told Aguirre she had to repay the funds plus a $25 late fee within three days, and Aguirre did so. Chen terminated Aguirre as the property’s resident manager. After that, Chen’s nephew Henry Wang, a college student, began to help Chen manage the property.
Chen and Wang acknowledge Wang is Chen’s agent, and Chen has paid Wang’s costs and fees.
For much of her tenancy, Aguirre had roommates. In January 2006, Aguirre, along with Eddie Nicholas and Roy Olivera (who had been staying with Aguirre before that without a rent increase), signed a written lease with Chen. Rent increased to $675 a month at that time. In March or so, Olivera moved out. Nicholas moved out a couple of months later.
Paragraph 5 of the lease read: “Occupants. The premises are to be used only as a private residence for no more than 3 adults... and for no other purposes without the prior written consent of the Landlord....” Sylvia Aguirre’s name was written in as the “Tenant’s Name” and Nicholas’s and Olivera’s names were written in as the names of “All other occupants.” All three signatures were written on the signature lines for “Tenant(s)” at the end of the five-page lease agreement.
With Chen’s permission, Aguirre had a “disability dog.” The dog assisted Aguirre by alerting her if someone was knocking at the door or if there was a fire alarm as she could not hear anything. In June, Aguirre’s dog died (at the age of 13). After that, Aguirre asked Chen (by pantomiming) to install a modified doorbell-an on-off toggle switch that would turn on a light for Aguirre to see when someone was at the door since she could not hear knocking, pounding or the ringing of a standard doorbell. After that, in August or so, she asked Wang to install the modified doorbell. After requesting the modified doorbell four times without success, Aguirre installed such a doorbell herself.
Since 2005, Aguirre had also been asking Chen and later Wang numerous times to install a smoke alarm with a flashing light for the deaf because she could not hear the standard alarm, but they ignored her requests.
In November 2006, Jessica Borrell (also deaf since birth) moved in with Aguirre. She had visited Aguirre at her apartment, and Aguirre and Borrell agreed Borrell would move in. Aguirre told Wang she was “going to bring in a friend.” “[B]ecause they wanted to bring in [Borrell]” “[t]o live with [Aguirre], ” Wang prepared a new form lease, dated January 1, 2007, and specifying monthly rent in the amount of $709, which he then presented to Aguirre. Borrell was on vacation at the time. Aguirre wrote in Borrell’s full name and date of birth in the space provided for additional occupants and signed the new lease. Aguirre and Borrell had told Wang they would share the rent. Borrell would give Aguirre her share and Aguirre would get a money order for the payment. This document (like the one dated January 1, 2006) specified in paragraph 1: “Tenant agrees to pay rent each month in the form of one cashier’s check, OR one money order made out to Emily Chen.”
Beginning in November 2006 and twice more by January 2007, Borrell asked Wang to install the modified alarm as well. In addition to Aguirre’s continued efforts to gesture in this regard, Borrell wrote the requests down on a piece of paper which she then showed to Wang and waited while Wang read what she had written. Wang installed such an alarm in April 2007 (two months after Aguirre and Borrell filed this action).
Then Wang said rent would increase to $780 because of Borrell. Borrell wanted to sign the lease at the $709 amount but did not agree to $780. She felt Wang was discriminating against her and Aguirre in light of the refusal to install the doorbell and fire alarm despite repeated requests and now demanding such an increase in rent. Also, when they said they needed an interpreter, Wang brought a friend of his who did not know American Sign Language; Aguirre and Borrell could not understand her.
In January and February 2007, Aguirre and Borrell paid and Chen and Wang accepted the $709 amount. Wang told Borrell she could not stay with Aguirre; she could only visit. When Borrell said she had already paid half the rent, he said he would increase the rent.
In their respondents’ (and opening) brief, Chen and Wang note Wang testified he had checked with the Housing Authority before increasing the rent 5 percent for Aguirre alone and 10 percent to add a new tenant, but cite to the rent control provisions they had asked the trial court to judicially notice which indicate these increases were greater than permitted under rent control.
In February 2007, Aguirre and Borrell sued Chen and Wang for refusal to accommodate their disabilities in violation of state and federal fair housing and anti-discrimination laws. (Gov. Code, §§ 12955 and 12989.1 et seq; Civ. Code, §§ 51 et seq.; and 42 U.S.C. §§ 3602 and 3613(a).) With respect to the first four causes of action of their operative complaint (as amended in June), Aguirre and Borrell alleged they were hearing-impaired residents of an apartment unit owned by Chen and managed by Wang and said they required the assistance of a sign language interpreter to communicate to discuss issues relating to their occupancy. Aguirre and Borrell further alleged Chen and Wang had refused to accommodate their disabilities by failing and refusing to provide sign language interpreters to assist them during the course of important tenancy-related communications, to install and maintain an alarm system in the apartment which was appropriately designed to warn hearing-impaired individuals of potentially life-threatening conditions; and to allow Aguirre the benefit of a suitable caregiver (Borrell) to assist in the monitoring of her medical conditions.
Two others were identified as property owners and named as defendants along with Chen, but there is no further mention of either in the record.
It was further alleged Aguirre suffered from severe asthma and high blood pressure which required monitoring and Borrell assumed responsibility as Aguirre’s caregiver and became a cotenant in November 2006. However, the trial court ruled Aguirre’s “asthma and high blood pressure is not part of the case.”
In support of the fifth cause of action (for declaratory relief to determine illegality of all agreements in violation of the Los Angeles Rent Stabilization Act), Aguirre and Borrell attached as exhibits the prior lease agreements Aguirre had signed in 2002 and 2006 and said Chen and Wang had made impermissible modifications and other restrictions on the use and occupancy of the apartment which did not previously exist.
In the sixth cause of action, Aguirre sought to recover the unpaid balance of minimum wages due her under Labor Code section 1194 for the services she provided as property manager (as evidenced by the document Chen prepared which was attached as an exhibit) within the three years preceding the filing of the complaint.
Chen and Wang answered and later filed a motion for judgment on the pleadings on the fifth cause of action for declaratory relief, supported by a request for judicial notice of the Rent Stabilization Act cited in the complaint as well as the Landlord Tenant Handbook issued by the Housing Department of the City of Los Angeles. The trial court (Hon. Mary Thornton House) denied the defense motion.
The parties proceeded to trial on all causes of action except the declaratory relief claim, which the trial court (Hon. Joseph Kalin) deferred until completion of the jury trial. Borrell testified that, although she had wanted to stay, she moved out of the apartment in August 2007 because of Wang’s and Chen’s continued harassment.
The jury completed two special verdict forms. The first special verdict form related to the first four causes of action. The jury found Wang had not discriminated against Aguirre, but Chen had, this discrimination was a substantial factor in causing Aguirre harm and awarded her damages in the amount of $8,000. Asked whether Borrell was a tenant of Chen, the jury answered “no, ” and answered no further questions as to Borrell as a result. On the sixth cause of action, the jury found Chen had failed to pay Aguirre minimum wage for 224 hours of services Aguirre performed for her and awarded Aguirre damages of $1,512. The trial court ruled the prior motion for judgment on the pleadings on the declaratory relief cause of action should have been granted, and entered judgment on the special verdicts and trial court findings.
In this appeal, there is no issue raised as to the entry of judgment in Aguirre’s favor on the 6th cause of action for Chen’s failure to pay wages.
In ruling on the parties’ post-trial motions for attorney fees and costs (which we will address further in our discussion), the trial court specifically stated Borrell was not a proper party and the action on her behalf was initiated in bad faith, and entered an amended judgment on special verdict which incorporated the trial court’s awards of costs and fees.
Aguirre and Borrell appeal, and Chen and Wang cross-appeal.
DISCUSSION
Aguirre’s and Borrell’s Appeal:
Aguirre and Borrell Have Failed to Demonstrate Prejudicial Error in the Trial Court’s Refusal of their Special Instruction Nos. 1-6 and 10.
Aguirre and Borrell concede the trial court “gave several instructions which described the coverage of the state and federal statutes under which the pending action was brought, ” but argue the court “refused to give several critical instructions which defined and explain the full coverage of those statutes....” We disagree.
As stated in Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217, “‘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 [34 Cal.Rptr.2d 607, 882 P.2d 298].) However, instructional error in a civil case is not grounds for reversal unless it is probable the error prejudicially affected the verdict. (Id. at p. 580.) In determining whether instructional error was prejudicial, a reviewing court must evaluate ‘(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.’ (Id. at pp. 580-581, fn. omitted.)
“‘Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. [Citations.]’ (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718 [39 Cal.Rptr. 64].) Finally, ‘[e]rror cannot be predicated on the trial court’s refusal to give a requested instruction if the subject matter is substantially covered by the instructions given. [Citations.]’ (Id. at p. 719; see Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335 [145 Cal.Rptr. 47].)” (Major v. Western Home Ins. Co., supra, 169 Cal.App.4th at p. 1217.)
At plaintiffs’ request, the trial court instructed the jury with CACI Nos. 2541 (Disability Discrimination-Reasonable Accommodation-Essential Factual Elements (Gov. Code, § 12940, subd. (m) [modified for housing based on Civil Code § 54.1, subd. (b)(3)(B) and Gov. Code § 12927, subd. (d)])); 2542 (Disability Discrimination-“Reasonable Accommodation” Explained [modified based upon Sec. 804(f) of the Fair Housing Act (42 U.S.C. § 3604(f)), Civ. Code, § 54.1, subd. (b)(3)(B) and Gov. Code, § 12927, subd. (c)]); 3000 (Violation of Federal Civil Rights-In General-Essential Factual Elements (42 U.S.C. § 1983) [modified for Fair Housing Statutes]); and 3026 (Unruh Civil Rights Act-Damages (Civ. Code, §§ 51, 51.5, 51.6)); at Chen’s and Wang’s request, the trial court instructed the jury with CACI No. 3020 (Unruh Civil Rights Act-Essential Factual Elements (Civ. Code, §§ 51, 52)).
Aguirre and Borrell have failed to explain how the trial court’s failure to further instruct the jury with their special instructions (based on the same statutes as stated in their own proposed instructions) prejudiced them so this claim fails. (Major v. Western Home Ins. Co., supra, 169 Cal.App.4th at p. 1217, citations omitted [“‘[e]rror cannot be predicated on the trial court’s refusal to give a requested instruction if the subject matter is substantially covered by the instructions given’”].)
Aguirre’s and Borrell’s Special Instruction No. 1 (Discrimination Based on a Tenant’s Disability or Handicap), No. 2 (Prima Facie Showing of Discrimination under State and Federal Law), No. 3 (Refusal of Housing Provider to Provide Reasonable Accommodation), No. 4 (Scope of Statutory Coverage), No. 5 (Substantial Limitation on Use and Enjoyment), No. 6 (Discriminatory Intent) and No. 10 (No Requirement for Disabled Person to Request an Accommodation) were refused.
The Trial Court Committed Prejudicial Error in Instructing the Jury Borrell’s Claims Were Contingent on Whether She Was a Tenant.
The giving of an erroneous instruction justifies reversal “when it appears probable that the improper instruction misled the jury and affected the verdict.” (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213; see also Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.) If there is “merely a reasonable chance” that is “more than an abstract possibility” that the appellant would have obtained a more favorable result in the absence of the error, (Kinsman v. Unocal Corp., supra, 37 Cal.4th at p. 682, original italics), reversal is warranted. (College Hospital Inc. v. Superior Ct. (1994) 8 Cal.4th 704, 715.) Where there is a special verdict, the appellate court will not imply findings in favor of the prevailing party; the only issues reached on appeal are those expressly addressed in the special verdict. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678-679.)
Code of Civil Procedure section 647 obviates the need to assert any objection to erroneous instructions in order to be able to assert the instructional error on appeal. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7; Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 427.) Issues are preserved for appellate review despite the failure to interpose a required objection at trial where it would have been “fruitless or idle act” to object. (See City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)
Throughout the trial, the trial court repeatedly stated that Aguirre and Borrell had to establish Borrell was a tenant. Plaintiffs’ counsel maintained proving Borrell’s status as a tenant was irrelevant under the law, and in any event, she was “at worse case, a prospective tenant” which was enough for her to pursue her claims. For example, subdivision (g) of Government Code section 12927 states: “‘Aggrieved person’ includes any person who claims to have been injured by a discriminatory housing practice or believes that the person will be injured by a discriminatory housing practice that is about to occur.”
For example (in addition to the trial court’s comments disparaging plaintiffs’ counsel on several occasions), when plaintiffs’ counsel was presenting Borrell’s testimony regarding her communications with Wang about the rent, defense counsel objected on relevancy grounds, and the trial court responded that there was an “issue in this case as to whether this witness was or was not a tenant [s]o counsel, you have to establish that she is a tenant....” Later, in front of the jury, the trial court again stated: “You have to establish... if she was at any time a tenant of Mr. Wang. I think that is the issue for the jury.” When plaintiffs’ counsel asked Borrell whether she participated in the payment of rent for the apartment after February 2007, the trial court stated: “There is an issue of tenancy here. [Y]ou have to establish that she paid half the rent. Did she pay the rent half to the landlord? Did she give it to Sylvia? What did Sylvia do? Did she write a check? These are issues of fact that the jury is going to have to determine. We can’t say that she was a tenant.” The trial court “demand[ed] a special verdict form.” Plaintiffs’ counsel asked if a general verdict form could be used, and the court responded, “Not if the other side objects. If they want a special verdict form, you get [a] special verdict form.”
The trial court rejected plaintiffs’ arguments and authority. “I don’t go with the plaintiffs[’ theory] that the whole world that might be prospective tenants have a cause of action.... [S]he was or wasn’t a tenant.” As a result, the special verdict the trial court required improperly hinged on the jury’s finding Borrell was a tenant. The jury found Borrell had not proven she was a tenant (Borrell acknowledged she had opposed the $780 amount and Chen said she refused to recognize her as a tenant) and, did not proceed any further to assess whether Chen or Wang had discriminated against her in her pursuit of a cotenancy with Aguirre. In light of the trial court’s repeated comments insisting tenancy was required, defense counsel’s closing argument directed to this point, the trial court’s refusal to instruct the jury as Aguirre and Borrell requested (without requiring a determination of tenancy) and the wording of the special verdict, we conclude the trial court committed prejudicial error, and reversal is required as to Aguirre’s and Borrell’s discrimination claims (the first through fourth causes of action).
In a related argument, Aguirre and Borrell say the trial court erred in rejecting two of their tenancy-related instructions. As we agree Borrell’s claims were not contingent upon proof of tenancy, we need not resolve this further claim of error.
Aguirre and Borrell argue the trial court erred in excluding evidence of the Fair Housing Council’s letters to Wang but fail to establish prejudice as a result of this exclusion.
In Aguirre’s and Borrell’s view, the trial court erred in failing to instruct the jury on the elements of a cause of action based on retaliation for their assertion of their rights under state and federal law. However, this claim was not raised in their pleadings and Wang and Chen were not on notice of the need to defend against this claim.
As for Aguirre’s and Borrell’s claim the trial court should not have taken the question of punitive damages away from the jury by refusing to instruct the jury with their Special Instruction No. 8 as Civil Code section 3294 is inapplicable in this context, they ignore Chen’s and Wang’s authority to the contrary.
We agree with Aguirre and Borrell the trial court erred in reconsidering the prior ruling of the judge who had denied the defense motion for judgment on the pleadings as to the fifth cause of action for declaratory relief, depriving Aguirre and Borrell notice and an opportunity to be heard, after advising that consideration of these issues was simply deferred until completion of the jury trial.
For the reasons addressed in connection with the trial court’s insistence Borrell’s claims turned on her proof of tenancy, we agree with Aguirre and Borrell that the trial court’s award of attorney fees and costs to the defendants on the ground Borrell was never a proper plaintiff and pursued her claim in bad faith was error. According to Chen, regardless of any other statutory provision, the trial court’s award of attorney fees to her was authorized by Civil Code section 55 as that statute awards fees to the “prevailing party.” However, that statute expressly provides that it applies to “an action to enjoin a violation” of Civil Code sections 54 or 54.1.
Finally, Aguirre’s and Borrell’s claim of entitlement to costs for their privately paid interpreter fails as plaintiffs’ counsel expressly rejected the trial court’s proposal to contact a court interpreter.
In light of our resolution of the foregoing issues, Chen’s and Wang’s cross-appeal directed to the trial court’s cost and fee awards is moot.
DISPOSITION
The judgment is reversed as to Aguirre’s and Borrell’s first five causes of action, and this matter is remanded to the trial court for further proceedings consistent with this opinion. Chen’s cross-appeal is dismissed as moot. Aguirre and Borrell are awarded their costs of appeal.
We concur: ZELON, J., JACKSON, J.