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Glasser v. Fessler

Court of Appeals of California, Fourth Appellate District, Division Three.
Nov 26, 2003
G031401 (Cal. Ct. App. Nov. 26, 2003)

Opinion

G031401.

11-26-2003

ALEC GLASSER, as Trustee, etc., Cross-complainant and Respondent, v. THOMAS FESSLER, Cross-defendant and Appellant.

Boyd S. Lemon for Cross-defendant and Appellant. Battaile & Hargrave and Frank W. Battaile for Cross-complainant and Respondent.


Cross-defendant Thomas Fessler (defendant) appeals from a $555,000 judgment in favor of cross-complainant Alec Glasser as Trustee of the Glasser Family Trust (plaintiff) for breach of oral contract. Defendant contends the court erred in refusing to dismiss a juror, failing to give jury instructions as to the statute of frauds, lack of consideration and the burden of proof, and denying a motion for judgment on the pleadings. He also challenges denial of his motion for new trial, arguing the damages were excessive. We find no error and affirm.

FACTS

Defendant owns two houses with views in a hillside area of Laguna Beach; he resides in one and formerly leased the other to Jeffrey Welshans and Bonnie Zepf. In early 1998, plaintiff became interested in purchasing two undeveloped lots, immediately across the street from defendants residence and adjacent to the house Welshans and Zepf leased. Plaintiff entered into agreements to purchase the lots with a 60-day contingency period. Plaintiff wanted sufficient time to complete soils tests and to "reach some kind of an understanding and agreement with [defendant]" about building on the property.

During escrow, plaintiff had several conversations with defendant about his construction plans; defendant was concerned that his view not be blocked. Ultimately, defendant agreed that if plaintiff did not propose to build higher than 12 feet above the street level, defendant would not oppose the design. Plaintiff then closed escrow.

Plaintiff submitted plans with the 12-foot limit, but defendant opposed the project anyway. After five design review board hearings, plaintiffs application was denied. Plaintiff appealed to the city council and finally received approval after three public hearings. Defendant then filed a petition for writ of mandate seeking to overturn the approval. Plaintiff filed the instant cross-complaint for damages for breach of contract, fraud, and negligence. After the two latter causes of action were dismissed, a jury trial proceeded on the breach of oral contract claim. The jury, by a 9 to 3 vote, awarded plaintiff judgment in the amount of $550,000.

DISCUSSION

Motion to Dismiss Juror

Defendant contends the court erred in failing to dismiss juror number four, John Ackerman. During the course of the trial, Ackerman reported to the court he had overheard part of a conversation between Welshans, defendants tenant, and another neighbor in the hallway during a recess. At the time he thought nothing of it. However, he became concerned once Welshans began to testify. Welshans testified he and Zepf had an option to purchase the property they were leasing from defendant. They "were thinking that was going to be our home for the rest of our lives . . ." and were worried plaintiffs house would block their view. They "had grave concerns over the pending project . . . ." At the same time they were also considering moving to Palm Springs.

Ackerman heard Welshans tell the neighbor he had purchased a house in Palm Springs. When asked why, Welshans said something inaudible "and I was short $900,000." Ackerman told the court that he questioned whether Welshanss concern about the impact of the construction was due to his lease option, stating, "[I]n my mind, the value of the lease option means nothing if hes short $900,000 . . . ."

When the court asked: "Are you suggesting from your perception Mr. Welshans has perjured himself," the juror responded, "Yes, sir." Later during the colloquy he volunteered, "And I want you to know, it has not caused me to form an opinion, but it has caused me to ask a question." In response to a question from plaintiffs counsel, he stated he did not "think what [he] heard would impact [his] ability to weigh all the evidence for each side[]."

Defendant moved to dismiss Ackerman, but the court denied the motion, stating: "[W]hat we have heard from Mr. Ackerman is that he continues to keep an open mind, although he has felt that Mr. Welshans had perjured himself. What is different is that Mr. Ackerman disclosed the information to the court and has already assured us he would not use that information during deliberations."

When a juror obtains extrajudicial information, even unintentionally, it is deemed juror misconduct, and it creates a presumption of prejudice. (People v. Andrews (1983) 149 Cal.App.3d 358, 363.) Juror misconduct is not reversible per se (id. at p. 365); but if the presumption is not rebutted and the juror is not excused, the objecting party is entitled to a new trial. (Id. at p. 363.) "What constitutes `actual bias of a juror varies according to the circumstances of the case. [Citation.]" (People v. Nesler (1997) 16 Cal.4th 561, 580 (plur. opn. of George, C. J).) "An impartial juror is someone `capable and willing to decide the case solely on the evidence presented at trial. [Citations.]" (Id. at p. 581 (plur. opn. of George, C. J.).) The trial court determines whether there is good cause to excuse a juror who voluntarily advises the court and parties that he or she inadvertently received information about the case outside the courtroom; we will not disturb its exercise of discretion if it is supported by sufficient evidence. (People v. Zapien (1993) 4 Cal.4th 929, 997.)

Here, the court did not abuse its discretion in refusing to excuse Ackerman. He represented to the judge he would not base his decision on the conversation but would decide after considering the evidence. The judge had the opportunity to evaluate Ackermans demeanor and credibility. (People v. Zapien, supra, 4 Cal.4th at p. 994.) Further, although the record does not reveal whether it was given, both parties requested BAJI No. 1.00.5, and we have no reason to believe the trial court refused it, especially in light of this incident. That instruction limits jurors to consider only evidence received at trial and nothing extraneous. We presume jurors follow instructions. (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 395.)

People v. Andrews, supra, 149 Cal.App.3d 358, on which defendant relies, is distinguishable. There, during the trial, a local newspaper ran an article that the defendants wife had pleaded guilty to charges arising out of the same crime with which the defendant was charged. The court denied the defendants motion to question the jurors to see if any had read the article, but admonished them to disregard the story and not to read any articles about the trial. Subsequently, the court learned several exhibits which had not been introduced into evidence had erroneously been sent to the jury room; one of them was the newspaper article. The court did not question the jury and denied a motion for mistrial; it merely admonished the jurors not to consider the article. After conviction, six of ten jurors who responded to a questionnaire admitted they had read the article.

On appeal, the People argued that juror affidavits stating they had complied with the courts admonition were sufficient to rebut the presumption of prejudice. The court disagreed, in part because the trial judge had not questioned the jurors when the article was first published or after it went to the jury room. (People v. Andrews, supra, 149 Cal.App.3d at pp. 365-366.) Thus, the trial court did not have sufficient knowledge of the jurors states of mind. Here, the court did discuss the matter with the juror and was satisfied with his explanation.

Moreover, the subject matter of the hallway conversation is only peripherally related to the substance of the case, if that. The real issue centers on the oral agreement and damages resulting from defendants breach. Whether Welshans moved to Palm Springs because he genuinely was concerned about the impact of plaintiffs project or because he did not have $900,000 is of no moment. The court did not err in retaining juror number four.

Statute of Frauds

Defendant contends the agreement was unenforceable based on the statute of frauds. He claims the court erred by denying his motion for judgment on the pleadings on that ground and by refusing to give a jury instruction on the subject. We are not persuaded.

Defendant incorrectly concludes that "[a]ny restriction on the use of ones [sic] property must be in writing under the statute of frauds." Plainly, that is not the law, and the authorities on which defendant relies do not so hold. Rather, the statute of frauds applies to an agreement "for the sale of real property, or of an interest therein . . . ." (Civ. Code, § 1624, subd. (a)(3).) Assuming plaintiffs promise to limit the height of the residence he constructed fell within the statute, plaintiff still has the right to recover for defendants breach.

Pollyanna Homes, Inc. v. Berney (1961) 56 Cal.2d 676 is instructive. There, the defendant orally agreed to transfer title to real property to the plaintiff; he also agreed to make improvements on property adjacent to the transferred parcel. Although the defendant transferred title, he failed to install the improvements. The court held the plaintiff had the right to file an action on the contract because the promise to install offsite improvements did not fall within the statute of frauds and "was divisible from the promise for the sale of the land . . . ." (Id. at p. 679.) It stated, "When all promises that would be invalid because of the statute of frauds have been performed, leaving for performance only those that would be valid standing alone, these remaining promises may be enforced. [Citations.]" (Id. at pp. 678-679.)

Here, the only promise arguably falling within the statute of frauds is plaintiffs to limit the height of his project. That was fully performed. Defendants promise not to oppose plaintiffs design, not an agreement for the sale of real property or an interest in it, does not fall within the statute and thus may be enforced.

Defendants reliance on Triangle Ranch, Inc. v. Union Oil Co. (1955) 135 Cal.App.2d 428 is misplaced. There, the plaintiff alleged it sold real property to the defendant, retaining oil and gas rights. At about the same time, it agreed in writing to support the defendants applications for permits to conduct the drilling. The plaintiff claimed that at the time it was negotiating to sell the property to the defendant, the parties entered into a "` . . . "contemporaneous oral agreement . . ." . . . [that] substantially limited the use of the drilling site." (Id. at p. 431.) But the alleged oral agreement was not mentioned in the deed transferring the property or in the written agreement about drilling rights.

Citing the sections dealing with a transfer of real property (Civ. Code, § 1091; Code Civ. Proc., § 1971), the court held the statute of frauds barred enforcement of the alleged oral agreement. (Triangle Ranch, Inc. v. Union Oil Co., supra, 135 Cal.App.2d at pp. 438-439.) It explained that when parties want to "`create mutual rights in real property of the character of those claimed here they must say so, and must say it in the only place where it can be given legal effect, namely, in the written instruments exchanged between them . . . ." (Id. at p. 439.)

Here, there was no agreement to "create mutual rights in real property." More importantly, the promise the plaintiff in Triangle sought to enforce dealt with restrictions on use of the property, a promise falling within the statute of frauds. In our case, the promise defendant breached did not. It concerned defendants consideration for the restriction on plaintiffs property, i.e., the promise not to oppose his design. As in Pollyanna, this promise did not fall within the statute of frauds and was therefore enforceable.

At oral argument, defendant raised an issue admittedly not discussed in his briefs. He contends the decision as to the applicability of the statute of frauds was erroneously left to the jury when in fact the court should have made that determination. By failing to argue this in the briefs, defendant waived the issue. (Stevenson v. Baum (1998) 65 Cal.App.4th 159, 167, fn. 8.) Even on the merits, however, since we have ruled the statute of frauds did not bar plaintiffs recovery, the claim is moot.

Consideration

Defendant asserts the oral agreement failed for lack of consideration. We disagree.

Contrary to defendants claim, non-compliance with the statute of frauds is not the equivalent of lack of consideration. Even had the agreement here been subject to the statute of frauds, it would not have been void, only voidable. (Civ. Code, § 1624; Masin v. Drain (1984) 150 Cal.App.3d 714, 717-718.) "The statute is said to relate to the remedy only and not to affect the validity of the oral contract. [Citations.]" (Ibid. )

Likewise, we reject defendants contention that plaintiffs agreement to limit the height of his proposed construction to 12 feet did not constitute consideration. Defendant asserts the 12-foot limitation was imposed by law; therefore plaintiff suffered no detriment. But based on the height ordinance, and the configuration and elevation of the property, plaintiff was required to obtain a variance because to strictly comply, the roof of the garage would have been only two feet above the street level. That was physically impossible and would not have been approved.

In addition, there is evidence plaintiff could have obtained a variance to build higher than 12 feet. The record also reflects that limiting the height to 12 feet was not optimum; the garage would be smaller than normal, the driveway would have a negative slope, and an elevator between the house and the garage would be required. Further, there is evidence that plaintiff did not seek approval to build over 12 feet based on the agreement with defendant. Therefore, defendant obtained the benefit and plaintiff suffered the detriment of the 12-foot limit. This was sufficient consideration. (Civ. Code, § 1605; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 208, p. 217.)

Waiver of Constitutional Rights

Defendant contends that the jury instruction as to plaintiffs burden of proof was insufficient. He proposed a modified instruction (BAJI NO. 2.60) that plaintiff had "the burden of proving by clear and convincing evidence all of the facts necessary to establish the essential elements of [breach of contract]." On plaintiffs objection, the trial court modified the instruction to read that "plaintiff has the burden of proving by clear and convincing evidence any waiver of constitutional rights," and had to prove all other facts necessary by a preponderance of the evidence.

Defendant argues "the waiver was the oral agreement." We have no quarrel with this statement, but the instruction was consistent. It required proof by clear and convincing evidence of defendants agreement not to appear and challenge plaintiffs proposal. It instructed the jury to use a preponderance of the evidence for all other elements of a breach of contract claim, i.e., breach and damages. The instruction was proper.

Damages

Defendant challenges the damages awarded, contending they are "excessive and not supported by law." (Bold and capitalization omitted.) We are not persuaded.

Defendant claims the damages due to delay in construction cannot be attributed solely to him because other neighbors opposed plaintiffs project as well. But the record reflects that other opposition was early in the process, and was soon dispelled.

Further, plaintiffs expert witnesses, his architect, his contractor, and his realtor, testified that defendants continued objection was the cause of the delay. The design review board continued to request modifications that otherwise would not have been required. Plaintiffs architect testified the project would have been approved at the third design review hearing instead of taking five design review hearings and three city council hearings. These changes and delays added to the cost of construction. Plaintiffs architect opined the cost increased by about 30 percent over the original estimate.

Defendant contends the opinions of plaintiffs experts were "strained" and "[flew] in the face of actual proof, logic and common sense." However, this is just an attack on the sufficiency of the evidence. Our review is limited to whether there is substantial evidence in the record to support the judgment, which we presume to be correct. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Here there is sufficient evidence. Likewise, we reject defendants argument that most of the items constituting damages "would have been incurred" even without his continued opposition. We will not usurp the jurys function and reweigh the evidence. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623.)

We also disagree with defendants claims that "attributing a specific amount of damage to [him] is highly speculative . . .," and that damages are not clearly ascertainable. "[W]here the fact of damage has been established, the precise amount of the damage need not be calculated with absolute certainty." (DuBarry Internat., Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552, 562.) There is no question that plaintiff sustained damage. If there is any speculation, it is defendants. He points to no evidence to support his argument that the city "would have entertained serious reservations" about the proposed residence, with or without his opposition, or that the city "undoubtedly acted on its own initiative to some extent."

Defendant argues it was improper to award plaintiff attorney fees he incurred in defending against defendants action for writ of mandamus challenging the citys approval of the project. He incorrectly likens the award to attorney fees incurred in defense of a malicious prosecution action, where probable cause and malice must be proved. The fees incurred here were part of "the detriment proximately caused" by defendants breach and nothing more. (Civ. Code, § 3300.)

Nor are we persuaded that the award included improper tort damages. The testimony that the delay prevented plaintiffs mother from living in the new home and that it "rearranged [plaintiffs] family plans" does not support defendants speculation the jury awarded emotional distress damages.

Finally, we need not spend any time discussing defendants contention that the increased costs due to delay "were more than offset" (bold omitted) by the increase in plaintiffs property value during the same time period.

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on appeal.

WE CONCUR: OLEARY, J., MOORE, J.


Summaries of

Glasser v. Fessler

Court of Appeals of California, Fourth Appellate District, Division Three.
Nov 26, 2003
G031401 (Cal. Ct. App. Nov. 26, 2003)
Case details for

Glasser v. Fessler

Case Details

Full title:ALEC GLASSER, as Trustee, etc., Cross-complainant and Respondent, v…

Court:Court of Appeals of California, Fourth Appellate District, Division Three.

Date published: Nov 26, 2003

Citations

G031401 (Cal. Ct. App. Nov. 26, 2003)