Opinion
A144036
03-27-2018
CATHEDRAL HILL TOWER CONDOMINIUM ASSOCIATION, Plaintiff, Cross-defendant and Respondent, v. LARISA GARBAR et al., Defendants, Cross-complainants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-04-432068)
This is the latest appeal in litigation spanning over a decade between condominium unit owners, appellants Larisa Garbar and Michael Rabichev (hereinafter, property owners) and the condominium project's governing body, respondent Cathedral Hill Tower Condominium Association (hereinafter, Association). In the present appeal, property owners, a married couple, challenge the trial court's grant of judgment notwithstanding the verdict in favor of the Association after the jury found by special verdict that, one, the Association had created or permitted to exist a condition harmful to health or obstructive to the free use of property so as to interfere with property owners' use or enjoyment of their condominium unit; two, the Association's conduct was a substantial factor in causing personal injuries to property owners; and three, property owners were therefore entitled to a total of $280,000 in personal injury damages. Property owners also challenge the trial court's conclusion that the Association successfully defended against their breach of contract cause of action by establishing that its actions to maintain and repair the common area were within the board's authority under the governing covenants, conditions and restrictions (CC&R's), taken after reasonable investigation, and made in good faith and in the best interest of the Association. (See Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (Lamden).) And finally, property owners challenge the trial court's posttrial finding that the Association is the "prevailing party" for purposes of this litigation and, as such, may recover $707,117 in attorney fees and costs.
The relational structure between, as here, a condominium unit owner and a condominium association has been well described by our appellate colleagues in the Second District: "Under California law, a 'condominium project' is a form of common interest development. A 'condominium' is 'an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit . . . .' [Citation.] Unless the governing documents provide otherwise, the common area of a condominium project is owned by the owners of the separate interests as tenants in common. In addition to the combined ownership of the two estates enumerated above, the major characteristics of a condominium include an agreement among the unit owners regulating the administration and maintenance of the property. The agreement is reflected in the governing documents of the association which includes the declaration and any other documents, such as bylaws, operating rules of the association, and articles of incorporation which govern the operation of the common interest development. [Citation.] The development's restrictions should be contained in its recorded declaration, but may also be contained in an association's internal rules or bylaws. [Citations.] The CC&R's bind all owners of separate interests in the development." (Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 118, fns. omitted (Ritter & Ritter).)
"After its creation, a common interest development is managed by an association (also known as homeowners association). [Citation.] Associations are responsible for the maintenance of the development's common areas. An association can be unincorporated or incorporated. [Citation.] . . . The association is governed by a board of directors and the powers of the directors are enumerated in the development's governing documents. State and federal statutes as well as common law impose obligations on the directors." (Ritter & Ritter, supra, at p. 118.)
For reasons that follow, we conclude the trial court's judgment in favor of the Association on property owners' nuisance cause of action, as well as its subsequent attorney fee award to the Association, cannot stand. We thus reverse the judgment in part, affirm in part, and remand the matter for further proceedings in light of the opinions reached herein.
FACTUAL AND PROCEDURAL BACKGROUND
This is the third time this litigation has been before us on appeal. In our most recent decision, A124711, a nonpublished decision filed June 29, 2012, we reversed the trial court's grant of the Association's demurrer and subsequent dismissal of the third amended cross-complaint (cross-complaint). (Cathedral Hill II, at p. 36.) We reasoned that the allegations in the cross-complaint, "liberally construed, may support either a claim that the Association violated a discretionary duty of maintenance and repair under the CC&Rs, which Lamden precludes, or claims—to which Lamden does not apply—that the Association breached duties otherwise imposed upon it by the common law." (Id. at p. 11.) Nonetheless, we ultimately concluded it was not necessary to decide whether property owners' allegations were sufficient to state causes of action under the common law because: "First, to the extent defendants are required to specifically allege a breach of particular common law duties, leave to amend their cross-complaint to add such allegations is appropriate. Second, the cross-complaint includes specific facts supporting an allegation that the Board [of the Association] acted in bad faith and not to further the interests of [other condominium project] residents." (Id. at pp. 11-12.) Based on these conclusions, we then reversed the attorney fee award to the Association, given that it no longer qualified as the prevailing party on the cross-complaint. (Id. at p. 36.)
For purposes of the present appeal, in the name of judicial efficiency, we limit our discussion of the factual and procedural background to those facts relevant to the issues raised herein, while referring readers interested in a more complete recitation of facts to our previous opinions in this matter. (See Cathedral Hill Tower Condominium Assn. v. Garbar (June 29, 2012, A124711 [nonpub. opn.] (Cathedral Hill II) and (May 31, 2006, A110379) [nonpub. opn.].)
With respect to the Association's cross-appeal, we then affirmed the trial court's findings that property owner Garbar encroached into the Cathedral Hill Towers common area when removing a sheetrock ceiling in their condominium unit during renovations, and violated the CC&R's by failing to obtain prior board approval for her renovations. (Cathedral Hill II, supra, at p. 5.) We also affirmed the trial court's denial of the Association's request for an injunction compelling property owners to restore the original ceiling; its grant to the Association of the right to utilize the area above the preexisting sheetrock ceiling for maintenance, repair and other necessary work; and its order that property owners would be responsible for any damage arising from their unauthorized use of the space. (Id. at pp. 5-6.)
Finally, we affirmed the trial court's grant of summary adjudication in favor of the Association on its first cause of action, such that property owners remained permanently enjoined from installing tile or other materials on the surface of their condominium unit's balcony. (Cathedral Hill II, supra, at p. 17.)
Following our decision, property owners filed the operative complaint—to wit, the fifth amended cross-complaint—asserting causes of action for (1) nuisance, (2) negligence, (3) invasion of privacy, (4) intentional infliction of emotional distress, and (5) breach of contract. As before, the Association raised as an affirmative defense to the breach of contract cause of action the holding of Lamden, which mandates deferential judicial review of discretionary decisions made by a duly constituted community association board regarding the maintenance and repair of the property development's common areas that fall within the scope of the governing CC&R's. (See pp. 6-11, post.)
Following a hearing on the parties' motions in limine, the matter was set for trial. This trial by jury began September 24, 2014, lasted several weeks, and involved extensive presentations of evidence by both parties.
On October 14, 2014, the jury returned its special verdict form that included the following findings. First, with respect to the nuisance cause of action, the jury found by special verdict that: (1) the Association, by acting or failing to act, created or permitted to exist a condition harmful to health or obstructive to the free use of property, so as to interfere with property owners' use or enjoyment of their condominium unit; (2) an ordinary person would be reasonably annoyed or disturbed by this condition; (3) the condition created or permitted to exist by the acts of, or failures to act by, the Association were a substantial factor in causing personal injuries to property owners, and, as a result; (4) property owners sustained personal injury damages in the total amount of $300,000 (to wit, $175,000 as to Garbar and $125,000 as to Rabichev); and (5) of these amounts, $10,000 per property owner was due to the owner's failure to take reasonable steps to minimize and mitigate harm to his or her person.
Next, with respect to property owners' claims for violations of the CC&R's, the jury found by special verdict that: (1) property owners failed to do all or substantially all of the significant things required of them under the CC&R's; (2) property owners were not excused from doing all the significant things required of them under the CC&R's; (3) the Association's actions in maintaining the common area of Cathedral Hill Tower were within the scope of the board's authority; (4) the Association's actions in this regard were made after reasonable investigation in selecting among alternative means for discharging an obligation to maintain this common area; and (5) the Association's actions in maintaining the mechanical room were made in good faith and with regard for the Association's best interests.
On November 10, 2014, the trial court entered judgment in favor of property owners on their nuisance cause of action and awarded them collectively $280,000 in personal injury damages. However, the Association then moved for judgment notwithstanding the verdict (JNOV), arguing, inter alia, that the jury's acceptance of its Lamden defense requires judgment in its favor as to all causes of action and vacation of the personal injury damages awards. Property owners, in turn, moved for JNOV as to the jury's findings in the Association's favor on their breach of contract cause of action. Following a hearing, the trial court granted the Association's motion and denied property owners' motion. Accordingly, the court vacated the jury's nuisance findings and subsequent award of $280,000 in personal injury damages to property owners and ordered judgment in favor of the Association on all causes of action.
On December 18, 2014, the trial court heard the Association's motion for attorney fees, after which it deemed the Association the prevailing party for purposes of Civil Code section 5975, and awarded it $707,117 in attorney fees and costs. This timely appeal followed.
DISCUSSION
Property owners raise the following issues for our review. First, property owners contend the trial court erred in granting JNOV in favor of the Association because: (1) the jury properly found the Association liable for nuisance based upon its breach of a common law duty of care; (2) the jury properly found by special verdict that the Association was negligent; (3) the jury's finding that they failed to perform all or substantially all that was required of them under the CC&R's is based on erroneous special verdict questions; and (4) the evidence fails to establish the Association's affirmative defense to breach of contract under Lamden. Second, property owners contend the trial court erred in subsequently finding the Association to be the "prevailing party" for purposes of recovering attorney fees and costs. We address these issues in turn below.
I. Grant of JNOV in the Association's Favor.
A. Nuisance: Lamden Defense.
The jury found the Association had created, or permitted to exist, a condition harmful to health or obstructive to the free use of property so as to interfere with property owners' use or enjoyment of their property, entitling them to $280,000 in damages. The trial court disagreed, and granted JNOV in favor of the Association as to property owners' nuisance claim. In doing so, the trial court reasoned that, "because [property owners'] claim for nuisance arises from a claim that the Association violated a discretionary duty of maintenance and repair under the CC&Rs, the Lamden decision precludes these claims."
On appeal, property owners challenge the trial court's conclusions and seek reinstatement of the jury's nuisance verdict. Specifically, they contend the trial court prejudicially erred in finding the nuisance allegations in their complaint fatally flawed, noting that we expressed no concerns in this regard in our 2012 opinion. Additionally, property owners contend the trial court lacked authority to reverse the jury's verdict in their favor—reached after a two-week trial and supported by substantial evidence—on the basis of a purported pleading defect that did not mislead the Association and, in any event, could have been remedied before trial. (See Buxbom v. Smith (1944) 23 Cal.2d 535, 543 ["the matter of pleading becomes unimportant when a case is fairly tried upon the merits and under circumstances which indicate that nothing in the pleadings misled the unsuccessful litigant to his injury"].)
The following legal principles apply to our review. " '[A] special verdict is that by which the jury find the facts only, leaving the judgment to the Court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.' ([Code Civ. Proc.,] § 624.)" (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 92-93.)
Thus, a trial court may remove the issue of fact from the jury by directed verdict only if there is no evidence tending to prove the case of the party opposing the motion. (McCoy v. Gustafson, supra, 180 Cal.App.4th at pp. 83-84.) "As the California Supreme Court has explained in Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 . . . : 'A trial court must render judgment notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted. (Code Civ. Proc., § 629.) A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.] [¶] The moving party may appeal from the judgment or from the order denying the motion for judgment notwithstanding the verdict, or both. (Code Civ. Proc., § 904.1, subd. (a)(4) [making such an order appealable].) As in the trial court, the standard of review is whether any substantial evidence—contradicted or uncontradicted—supports the jury's conclusion. (Ibid.; [citation].)' " (Ibid.)
Here, the trial court found that, notwithstanding the jury's special verdict findings, property owners' nuisance cause of action was barred in light of, first, property owners' failure to adequately allege a common law duty to not create or permit to exist a nuisance and, second, the jury's findings under Lamden that the Association's actions in maintaining the common area of Cathedral Hill Tower were within the scope of the board's authority, were made after reasonable investigation in selecting among means for discharging an obligation to maintain this common area, and, with respect to the mechanical room, were made in good faith and with regard for the Association's best interests. We agree with property owners the trial court's reasoning was flawed.
As an initial matter, we agree with property owners that, at this stage of the proceedings, the trial court was improperly focused on the adequacy of their pleading rather than on the jury's special verdict findings. (Johnson v. Tago, Inc. (1986) 188 Cal.App.3d 507, 513 [" 'the matter of pleading becomes unimportant when a case is fairly tried upon the merits and under circumstances which indicate that nothing in the pleadings misled the unsuccessful litigant to his injury.' (Buxbom v. Smith (1944) 23 Cal.2d 535, 542-543"]; 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§ 442, 445, 446, pp. 576-581.) And more importantly, we agree with property owners that the trial court misread Lamden as it relates to their nuisance claim. We begin with a closer look at nuisance law.
"In California, a broad statutory definition of nuisance appears to embrace nearly any type of interference with the enjoyment of property." (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 585.) Indeed, "[a]nything which is injurious to health, . . . indecent or offensive to the senses, or an obstruction to the free use of property" is a nuisance. (Civ. Code, § 3479; see also Code Civ. Proc., § 731 ["any person whose property is injuriously affected, or whose personal enjoyment is lessened" may sue for nuisance].) " ' "Damages recoverable in a successful nuisance action for injuries to real property include not only diminution in market value but also damages for annoyance, inconvenience, and discomfort . . . ." [Citations.]' " (Lew v. Superior Court (1993) 20 Cal.App.4th 866, 874.)
To establish a nuisance claim, the plaintiff therefore must allege and prove: (1) an interference with the plaintiff's use and enjoyment of his or her property; (2) the interference was substantial, that is, it caused substantial actual damage; and (3) the interference was unreasonable. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937-938.) Here, the jury, by special verdict, found that property owners had established each of these elements. (See pp. 4-5, ante [finding, inter alia, that: (1) the Association, by acting or failing to act, created or permitted to exist a condition harmful to health or obstructive to the free use of property, so as to interfere with property owners' use or enjoyment of their condominium unit; (2) an ordinary person would be reasonably annoyed or disturbed by this condition; and (3) the condition created or permitted to exist by the acts of, or failures to act by, the Association were a substantial factor in causing personal injuries to property owners].) The trial court, however, concluded on the Association's JNOV motion that, notwithstanding this evidentiary showing, the nuisance claim was barred by Lamden. We disagree.
Lamden holds that, where, as here, "a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise." (Lamden, supra, at p. 265.)
As the California Supreme Court explained, the Lamden defense "affords homeowners, community associations, courts and advocates a clear standard for judicial review of discretionary economic decisions by community association boards, mandating a degree of deference to the latter's business judgments sufficient to discourage meritless litigation, yet at the same time without either eviscerating the long-established duty to guard against unreasonable risks to residents' personal safety owed by associations that 'function as a landlord in maintaining the common areas' (Frances T. [v. Village Green Owners Assn. (1986)] 42 Cal.3d [490,] 499) or modifying the enforceability of a common interest developments CC&R's [citations]. [¶] Common sense suggests that judicial deference in such cases as this is appropriate, in view of the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments. A deferential standard will, by minimizing the likelihood of unproductive litigation over their governing associations' discretionary economic decisions, foster stability, certainty and predictability in the governance and management of common interest developments. Beneficial corollaries include enhancement of the incentives for essential voluntary owner participation in common interest development governance and conservation of scarce judicial resources." (Lamden, supra, at pp. 270-271.)
Thus, as property owners strenuously argue, Lamden insulates certain discretionary decisions by community association boards that are economic in nature, not those related to the health or safety of the residents. And in this case, property owners' nuisance claim—which the jury found true—was not based merely on damages arising from the Association's economic decisionmaking. Rather, as set forth above, property owners alleged and the jury found that the Association created or permitted to exist a condition harmful to health or obstructive to the free use of property, so as to interfere with property owners' use or enjoyment of their condominium unit; that an ordinary person would be reasonably annoyed or disturbed by this condition; and that the condition created or permitted to exist by the Association was a substantial factor in causing personal injuries to property owners. These facts, we conclude, preclude the Association from defending against property owners' nuisance claim by way of Lamden's protective shield. (See Ritter & Ritter, supra, at p. 122 ["Lamden . . . was restricted to 'ordinary' decisions involving repair and maintenance actions that were clearly 'within the board's discretion under the development's governing instruments. The case gives no direction as to what standards courts should apply when faced with a challenge to a board action involving an extraordinary situation (e.g., major damage from an earthquake) or one not pertaining to repair and maintenance actions, e.g., a decision to deny approval to an improvement project desired by an owner.' [Citation.] The Lamden court also noted that the rule of judicial deference to board decisionmaking can be limited in certain circumstances (e.g., by the association's governing documents, when the association has failed to enforce the provisions of the CC&R's)"].)
Accordingly, we conclude the trial court's grant of JNOV in the Association's favor on property owners' nuisance cause of action must be reversed and the jury's special verdict findings in this regard reinstated.
B. Negligence.
Property owners next contend the trial court prejudicially erred by entering judgment in favor of the Association on their negligence cause of action. In doing so, property owners concede the jury was not asked in the special verdict form—and thus did not make any findings—on the specific issue of whether the Association was negligent in this case. Property owners nonetheless argue that, one, the jury's special verdict responses suffice to support both nuisance and negligence findings; and, two, the Association should be estopped from claiming otherwise because it was the Association rather than property owners that requested and prepared the special verdict form, and thereby invited any confusion or ambiguity within it. We disagree.
"To prevail on their negligence claim, plaintiffs must show that [defendant] owed them a legal duty, that it breached the duty, and that the breach was a proximate or legal cause of their injuries." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) The existence and scope of duty are legal questions for the court. (Ibid.)
Here, the trial court entered judgment in favor of the Association on property owners' negligence cause of action "because the jury made no factual findings regarding negligence or causation. Without such findings, there can be no judgment based on negligence." The trial court is correct that we cannot merely assume the jury accepted property owners' negligence claim in the absence of any actual findings. Nor can property owners avoid this result by shifting blame to the Association for the jury's lack of findings based upon its acceptance of the special verdict form as given. Property owners, as the party claiming negligence and challenging the trial court's judgment against them on appeal, had the burden to prove the existence of each of the requisite legal elements; to ensure that the special verdict form provided to the jury was in proper form; and, on appeal, to affirmatively prove error. Having done none of these things, property owners' challenge on appeal fails. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-264 [" 'Failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected,' " italics omitted]; accord, Behr v. Redmond (2011) 193 Cal.App.4th 517, 530 ["As, at least, a codrafter of the [special verdict] form, [appellant] clearly had the opportunity to include questions regarding the [issue] that he now considers 'crucial.' Not only did he not do so, he failed to seek any correction or clarification of the verdict at any time, even though the jury was polled regarding the verdict and was not discharged until after the verdict was returned on the punitive damages phase two days later. In light of [appellant's] purported interest in the omitted questions, his counsel's involvement in drafting the verdict, and his failure to clarify or correct the verdict despite ample opportunity to do so, we conclude he has waived any objection to the failure of the verdict form to [include the desired questions]"].)
In fact, the record reflects that the Association moved to withdraw the negligence instruction (CACI 400) in open court, and that, while property owners subsequently sought and obtained reinstatement of this instruction, they at no point challenged the special verdict form based upon its failure to set forth questions specific to their negligence cause of action. To the contrary, their counsel advised the trial court: "I don't disagree with the special verdict form."
In reaching this conclusion, we also reject property owners' related contention that the jury's nuisance findings "necessarily include a finding of [the Association's] negligence." The law provides otherwise: A trier of fact may, as here, find that a private nuisance was created or existed without necessarily finding negligence. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100 ["Although the central idea of nuisance is the unreasonable invasion of this interest and not the particular type of conduct subjecting the actor to liability, liability nevertheless depends on some sort of conduct that either directly and unreasonably interferes with it or creates a condition that does so. (Rest.2d [Torts], § 822, com. a, p. 109; see 7 Witkin, [Summary of Cal. Law (8th ed. 1974) Equity], § 91, p. 5314; [9] Powell [on Real Property (1987) Nuisance], § 704[2], pp. 64-64(9); 66 C.J.S. [Nuisances], § 1, p. 729; 3 Miller & Starr, Current Law of Cal. Real Estate (1977) § 21.3, p. 513 . . . .) 'The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the defendant may be liable"].)
Finally, property owners argue in the alternative that the Association's "code violation with respect to the heat/ventilation issue gives rise to a presumption of negligence." Yet, as the Association points out, property owners did not plead or request jury instructions on negligence per se. Such a claim, in any event, requires findings, not merely of a code violation, but also of a substantial probability that the plaintiff's injury was caused by said code violation. (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371 [" '[I]n negligence per se actions, the plaintiff must produce evidence of a violation of a statute and a substantial probability that the plaintiff's injury was caused by the violation of the statute before the burden of proof shifts to the defendant to prove the violation of the statute did not cause the plaintiff's injury' "].) Here, the jury did not make these requisite findings.
Under these circumstances, we reject property owners' arguments and affirm the trial court's negligence ruling.
C. Breach of Contract: Lamden Defense.
Property owners next challenge the sufficiency of the evidence supporting the trial court's conclusion that the Association's Lamden defense is a complete bar to the breach of contract cause of action. Having reviewed the record in accordance with the governing standard of review, we conclude otherwise.
Where, as here, a party challenges the sufficiency of evidence on appeal, "we 'review the record to determine whether the trial court's findings are supported by substantial evidence. [Citations.]' [Citation.] We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court's. [Citation.] We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings." (Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 659.)
Here, the Association presented the following evidence to support its affirmative defense under Lamden. Board member Don Mariacher testified at length regarding the Association's consideration of property owners' maintenance complaints and steps taken to address them. For example, as property owners acknowledge, the Association, among other things: (1) installed a ventilation louver to address the heating and ventilation issues (August 2002); (2) hired expert George Wilson to evaluate and report on noise and vibration-related concerns (August 2002); (3) authorized Wilson to meet with Rabichev to discuss heating and ventilation issues (on July 22, 2003); (4) reinstalled ("properly") the ventilation louver, thereby resolving the excessive heat issue (September 2003); (5) authorized, per recommendations in Wilson's August 2003 report, vibration isolation work (2003); (6) authorized Wilson to meet with Dick Glumac, property owners' expert, to discuss possible solutions to their noise concerns; (7) authorized Wilson to order replacement springs for the pumps to ameliorate noise and vibration concerns (May 2004) ; (8) replaced pumps (2005) ; (9) had the elevator company visit the property to assess and ameliorate noise levels; and (10) responded to noise complaints from Rabichev following elevator upgrades in 2009 by delegating the matter to board president George Naganuma, who ultimately found no excessive noise.
Wilson wrote several reports between September 2002 and May 2004, in which he proposed various solutions before recommending addressing property owners' noise complaints by implementing vibration isolation work in phases (which the Association ultimately endorsed). Property owners complain these reports were not disclosed until the eve of trial without actually challenging the trial court's ruling to admit them.
This evidence, we conclude, is indeed substantial evidence supporting the Association's Lamden defense. Property owners describe the actions by the Association in response to their complaints as "sporadic," "ineffectual," hostile, made without reasoned decisionmaking, and self-interested. However, the evidence set forth above, reasonably interpreted, supports the contrary conclusion—that the Association acted after a reasonable investigation, in good faith and in the best interests of all residents. And while property owners continue to complain that at least "some" of the noise, heat, and leaking window issues were "never remedied" and that the Association failed to communicate with them, even assuming for the sake of argument there is support for their assertions, the Lamden standard is nonetheless met on this record. As explained above, this court does not reweigh evidence on appeal, nor substitute its judgment for that of the jury where, as here, substantial evidence supports the verdict. (Yordamlis v. Zolin, supra, 11 Cal.App.4th at p. 659.)
In so concluding, we reject property owners' suggestion that certain evidence relevant to the Association's Lamden defense was either erroneously admitted or excluded by the trial court when ruling on the parties' in-limine motions. Specifically, property owners contend the trial court erroneously admitted Wilson's expert report, excluded evidence of noise complaints from prior tenants, and admitted a copy of the trial court's 2008 judgment in favor of the Association. We do not further address property owners' claims because they are not supported by reasoned legal arguments or by citations to relevant legal authority. To the contrary, these claims are set forth in the section of property owners' opening brief entitled, "III. Statement of the Case . . . B. Factual Statement," rather than the section entitled, "IV. Argument." As such, they have been forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [appellant has burden to provide reasoned arguments based on relevant legal authority and supported by proper record citation demonstrating the presumably correct court orders are subject to reversal]; see ibid. [in the appellate courts, "conclusory claims of error will fail"]; Cal. Rules of Court, rule 8.204(a)(1)(B), (C) [appellate briefs must "support each point by argument and, if possible, by citation of authority"].)
Thus, in light of the substantial evidence in the record supporting the Association's Lamden defense, we affirm the trial court's judgment against property owners on their breach of contract claim.
Given our conclusion that the Association established a complete defense to the breach of contract cause of action, we need not address property owners' arguments regarding their own performance under the contract or the Association's purported breaches.
II. Attorney Fee Award and Prevailing Party Determination.
Lastly, given our reversal of the trial court's judgment as to property owners' nuisance cause of action, we further conclude the trial court's prevailing party determination is no longer valid. We thus vacate the trial court's finding and subsequent award of attorney fees and costs in favor of the Association, and remand the matter for reconsideration in light of the opinions reached herein.
DISPOSITION
The judgment in favor of the Association on property owners' nuisance cause of action is reversed and the jury's underlying findings reinstated. The attorney fee award, including the trial court's prevailing party determination, is also reversed and the matter remanded for further proceedings in light of the opinions reached herein. The judgment is otherwise affirmed as modified. The parties shall bear their own costs on appeal.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------