Opinion
F071881
02-22-2017
STEVE HARRISON, Plaintiff and Appellant, v. KEN SMALL et al., Defendants and Respondents.
Roger Richard Grass for Plaintiff and Appellant. Clifford & Brown, Arnold J. Anchordoquy, John R. Szewczyk and T. Mark Smith for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV-277077)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Roger Richard Grass for Plaintiff and Appellant. Clifford & Brown, Arnold J. Anchordoquy, John R. Szewczyk and T. Mark Smith for Defendants and Respondents.
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After the foreclosure sale of a duplex apartment (the duplex), the new owners cleaned out and disposed of the remaining property items in one of the apartment units, unit A, which appeared to have been abandoned and formerly used by someone as a marijuana grow. Plaintiff Steve Harrison, purportedly the tenant of unit A, returned to find that his possessions were gone. He sued the new owners, Glenda and Ken Small, and their alleged agent, Don Martin (together defendants), because their actions were taken without providing notice of eviction to plaintiff. Plaintiff sued for negligence and intentional tort, and the case was eventually tried by a jury. The jury returned a defense verdict, and a judgment for defendants was entered. Plaintiff appeals, claiming that the trial court prejudicially erred by incorrectly instructing the jury on the issue of plaintiff's tenancy. Defendants respond that if there was any instructional error on that issue, it was invited by plaintiff. We agree with defendants and, accordingly, affirm the judgment of the trial court.
The duplex is sometimes referred to herein by its address at ... Orrick Court, Bakersfield, California.
FACTS AND PROCEDURAL HISTORY
Foreclosure Purchase and the Condition of Duplex
Glenda and Ken Small were aware that a duplex located near their condominium in the northern Bakersfield-Oildale area had become an eyesore in that neighborhood. On July 27, 2011, when Glenda learned that the duplex was going to be sold at a foreclosure auction, she went with a family friend (Don Martin) and purchased the duplex. The duplex had previously been owned by Judy Lai, who had allowed it to go into foreclosure several months prior.
Plaintiff testified that he rented unit A of the duplex from Judy Lai, and he had moved in sometime in December 2010. Plaintiff admitted to turning the apartment into an indoor marijuana farm, hastening to add that the marijuana was intended for medical purposes. In the furtherance of his marijuana cultivation activities in unit A, plaintiff had altered the air conditioning system, brought in high-powered lighting, placed plywood boards over the bedroom windows, and modified the shower and plumbing with attached hoses to provide water to the marijuana plants. Plaintiff could not recall the exact date he had harvested the marijuana crop in unit A, but he thought that a review of the electric bills would show a dramatic reduction in power usage right after the marijuana was harvested. The utility bills were very high in January and February 2011, with a considerable drop in electrical usage indicated by April 2011. As was noted in defendants' brief herein, plaintiff's candid admissions at trial regarding his marijuana growing activities in unit A "sharply contrasted [to] his purported lack of recollection on the subject" at his prior deposition.
After the Smalls purchased the duplex in the foreclosure sale, an employee of Ken's, William Hubble, was sent to the duplex to clean it out. Hubble spoke to the tenant in unit B, who told him that no one was living in unit A. The screen door on unit A was broken, the front door was unlocked, and the deadbolt locks were missing. Hubble opened the door and entered unit A. There was no electricity in the apartment. The bathroom was not usable; the toilet was taken apart, and there were plastic hoses in the bathtub. There were no items of clothing, and no dishes or silverware in unit A. In the bedrooms, there were no beds, but Hubble found what he suspected were boxes "to grow dope," along with a number of lights. The air conditioning vents had been altered. Other items in unit A included a small "dorm" refrigerator, lights, plugs, a small table and a sectional couch. After first checking with law enforcement, the property items were removed by Hubble from the apartment and taken to a dumpster.
Hubble testified the sectional sofa was temporarily placed outside the unit, but it disappeared from that location before he could haul it away.
When Hubble first saw evidence that the apartment may have been used to grow marijuana, he called Sergeant Walt Reed of the Kern County Sheriff's Department. Reed arrived at unit A, at which time he confirmed that the apartment had been used for a marijuana grow, but he concluded there was no evidence of any ongoing marijuana operations. After describing the apartment in detail, Reed testified there was no sign of anyone living there, and it appeared to him that the former grow and the remaining property had been abandoned.
Don Martin was a friend of the Smalls, a real estate agent and a retired police officer. He had gone with Glenda to the foreclosure auction, and he had also inspected the duplex both before and after it was purchased at the foreclosure auction. He spoke with the tenant in unit B, who told him there was no one living in unit A. Based on Martin's visits to the property, he believed that unit A was abandoned. From outside unit A, he observed in one of his inspections that there was a lock on the water meter and the gas meter, and the electric meter was not turning at all. He noticed there was plywood covering the windows from the inside. When he had an opportunity to go inside, he did not see any stove, food or dishes; nor any toiletries, towels, wash rags or soap; there were no beds, clothing or carpeting, and the air conditioning vents were modified such that it could not be utilized in the unbearable summer heat. He also saw what was left of some of the marijuana trays or black tubs, electrical cord, and piping in the bathroom, along with some plant stems on the concrete floor. Martin's inspection of the inside of unit A was while Hubble was already there. He was not told by Hubble whether some of the property items may have already been removed.
David Horsley, the tenant who lived in unit B, took the stand and denied that he ever told anyone that no one lived in unit A. Rather, he testified that he told Don Martin it looked like someone did live there. An eviction notice was served on Horsley in unit B shortly after the Smalls purchased the property in foreclosure.
Plaintiff's Return to the Duplex
According to Don Martin, on August 4, 2011, he was in unit A of the duplex with Glenda and another helper, Terry Sherrill. They were all busy "dismantling" the inside of the apartment, including taking down plywood, removing old kitchen cabinets, removing bathroom plumbing and the shower stall, and removing miscellaneous trash. While they were working inside unit A, plaintiff arrived on the scene with another individual, Roger Lawrence. Martin initially heard "a commotion, someone talking loud." Martin did not know of plaintiff's identity at the time, but plaintiff was obviously "very upset," "yelling and screaming profanities" directed at Glenda. Plaintiff was mainly yelling about "property and a cat." A search was made for the cat, and they found it hiding in a gap underneath a cabinet base, or under the sink, in the kitchen. Plaintiff was able to coax and retrieve the scared cat. Martin told plaintiff he could go look in the dumpster for his possessions, by which Martin meant the black tubes, plywood and the plastic.
Glenda testified that when plaintiff arrived at the duplex on August 4, 2011, she identified herself as the new owner. Plaintiff proceeded to cuss and yell at her and then followed her into unit A. When plaintiff claimed to live there, Glenda asked him for a rent receipt or a document. She did not believe that plaintiff lived in unit A.
Plaintiff testified at trial that he had gone on a trip for a few days to Northern California. He came back on July 31, 2011, finding the locks had been changed and he could not get in. In a case management conference statement, plaintiff had previously asserted that on July 31, 2011, he found the door open and almost all of his belongings gone. On August 4, 2011, plaintiff again returned to unit A with his friend, Roger Lawrence, who was Judy Lai's (the former owner's) husband. Plaintiff testified that when he arrived at unit A on August 4, 2011, he asked "where is all my stuff? I live here," to which Martin responded, "nobody live[s] here. This place was abandoned." Plaintiff then told Martin about his cat and mentioned the litter box as proof that he was in fact the tenant there. Plaintiff also mentioned that he had seen some of his property in the dumpster. Plaintiff testified that, at that point in the conversation, Martin became agitated, and, with crowbar in hand, told plaintiff he had better get out or else. According to plaintiff, Martin also told plaintiff that he was free to dig through the dumpster for his possessions. Plaintiff stated he checked the garage and the dumpster, and was able to retrieve only a few items.
Plaintiff's Alleged Tenancy
Plaintiff claimed that he rented unit A of the duplex from the prior owner, Judy Lai. The rent was allegedly $750 per month, but plaintiff admitted he never paid that amount. He "had other arrangements." He would pay a portion in cash some months, then barter his carpet cleaning services to cover the rest. Plaintiff had been doing the carpet cleaning and repair on the owner's rental properties for many years, so there was a willingness for this trade or barter to take place. He did not keep receipts regarding this arrangement, and he did not produce any financial records to confirm he had ever paid rent. Similarly, Judy Lai testified that the rent charged to plaintiff was supposed to be paid in cash, but "if he did any work for us, ... we would just deduct it from his rent." Plaintiff had been the carpet cleaner for Lai and her husband for about 15 years. Judy Lai failed to produce any records at her deposition or at trial to confirm that plaintiff ever paid any rent for unit A, claiming she could not find them.
Judy Lai's husband, Roger Lawrence, was a friend of plaintiff's. Lawrence admitted that he and plaintiff were in a medical marijuana cooperative with one other person, and that plaintiff had provided him with medical marijuana in the past. Lawrence was aware that plaintiff was using unit A to grow marijuana.
Plaintiff presented a written document purporting to be a month-to-month lease agreement with Judy Lai. Because it was not an original, and because the dates on it had apparently been altered, defense counsel questioned its authenticity in closing argument.
In fact, the dates on the form appear to have been September 2011, after the Smalls purchased the property in foreclosure.
Pleadings, Trial and Jury Instructions
Plaintiff filed his complaint against defendants on July 6, 2012. The two causes of action were labeled general negligence and intentional tort. The gist of the complaint was that plaintiff was the tenant in unit A of the duplex, and defendants removed plaintiff's personal property from the premises without giving plaintiff any eviction notice or any other form of notice. On August 27, 2012, defendants filed their answer to the complaint, generally denying the allegations and setting forth several affirmative defenses.
The action proceeded to trial by jury on March 30, 2015. After the completion of the evidentiary portion of the trial, the trial court and both counsel held a conference outside the presence of the jury to review the wording of the proposed jury instructions. There was apparently a dispute between the parties over the extent to which landlord-tenant notification requirements applied in the situation of a foreclosed property. Each party had submitted a "pocket" brief to the trial court in support of its position.
Plaintiff's brief regarding jury instructions pointed out that under California and federal legislation enacted during the recent foreclosure crisis, advance notice to quit the premises must be provided before a new owner acquiring property by foreclosure may remove a tenant. Specifically, Code of Civil Procedure section 1161b, as originally enacted in 2008, specified that "a tenant or subtenant in possession of a rental housing unit at the time the property is sold in foreclosure shall be given 60 days' written notice to quit ... before the tenant or subtenant may be removed from the property ...." (Stats. 2008, ch. 69, § 6, p. 230 [former § 1161b, subd. (a)].) In 2009, the United States Congress passed the Protecting Tenants at Foreclosure Act of 2009 (PTFA; Pub.L. No. 111-22, div. A, tit. VII, §§ 701-704 (May 20, 2009) 123 Stat. 1660, amended in 2010 at Pub.L. No. 111-203, tit. XIV, § 1484 (July 21, 2010) 124 Stat. 2204); see Nativi, supra, 223 Cal.App.4th at p. 268.) The PTFA requires that at least 90 days' notice be given to a "bona fide tenant" by the new owner of the property pursuant to a foreclosure before the tenant may be removed. (PTFA, § 702; see Nativi, supra, at p. 275.) A tenancy is considered "bona fide" under the PTFA only if (1) the mortgagor was not the tenant, (2) the lease or tenancy was the result of an arm's length transaction, and (3) the lease or tenancy required the receipt of rent that was not substantially less than fair market rent for the property or the unit's rent was reduced or subsidized due to a federal, state or local subsidy. (Nativi, supra, at p. 275.) The PTFA preempted less protective state law, but not "any State or local law that provide[d] longer time periods or other additional protections for tenants." (PTFA, § 702, subd. (a); see Nativi, supra, at p. 285.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
The above wording was in effect at the time of the relevant events in this case. Subsequently, in 2012, the Legislature revised the wording of section 1161b. (Stats. 2012, ch. 562, § 3, eff. Jan. 1, 2013.) Among other things, the amended wording changed the notice required under subdivision (a) of the statute to 90 days, and separately addressed fixed tenancies in subdivision (b), more closely following the pattern of the federal legislation. (Stats. 2012, ch. 562, § 3; see Nativi v. Deutsche Bank National Trust. Co. (2014) 223 Cal.App.4th 261, 273-276 (Nativi).)
If there was a fixed-term lease in place, generally the bona fide tenant could remain until the end of the lease term. (Nativi, supra, 223 Cal.App.4th at p. 275.)
During the jury instruction conference, the trial court largely agreed with plaintiff's position and indicated it would read plaintiff's proposed jury instruction premised on section 1161b to the jury. However, the trial court also thought it would be helpful for the jury to be given an adequate definition of what constituted a tenancy under the applicable law. Defendants proposed a special instruction defining "good faith tenancy" in accordance with the definition set forth in the PTFA. The trial court solicited plaintiff's response to the proposed definitional instruction, and plaintiff's counsel stated: "I have no comment ... I have seen the definition. I agree with it." (Italics added.) Upon hearing plaintiff's counsel's affirmative agreement with the content of the definitional instruction, the trial court deemed that "plaintiff's proposed [section] 1161-B instruction is satisfactory with the definition defining tenant." The two instructions were then read in tandem to the jury, in the sequence and wording detailed below.
Plaintiff's counsel at the time of trial was Barbara Harris. At the outset of the present appeal, plaintiff filed a substitution of attorney replacing Harris with Attorney Roger Grass.
First, the instruction referred to by the trial court as "plaintiff's proposed [section] 1161-B instruction" was given, which stated as follows:
"[Plaintiff] claims he was a residential tenant in Unit A at ... Orrick Court, Bakersfield, California. On or about July 27th, 2011, Glenda Susie Small purchased the property at a foreclosure auction and took title and joint tenancy with her husband, Ken Small. At that time ... Section 1161-B, enacted in 2008, entitled a bona fide tenant or subtenant in possession of a rental housing unit under a month-to-month lease or periodic tenancy at the time the property is sold in foreclosure to be given sixty days' written notice to quit before the tenant or subtenant may be removed from the property. [¶] To establish this claim [plaintiff] must prove all of the following: [¶] One, that he, [plaintiff], was a bona fide tenant in Unit A at ... Orrick Court, Bakersfield, California; [¶] Two, that [plaintiff's] tenancy was created prior to the purchase by Glenda Susie Small at the foreclosure auction; [¶] Three, that Ken Small and Glenda Small intentionally or negligently failed to make themselves aware of the duties to bona fide tenant or subtenant prior to their purchase of ... Orrick Court, Bakersfield, California; [¶] Four, that Ken Small and Glenda Small, immediately upon winning the auction, took possession and exercised control of Unit A at ... Orrick Court, Bakersfield, California, and denied [plaintiff] the use and enjoyment of the residence; [¶] Five, that Ken Small and Glenda Small failed to provide [plaintiff] with the required sixty days' written notice to quit."
Immediately after the above instruction, the trial court instructed the jury on the definition of a bona fide tenant. This definitional instruction, as proposed by defendant's counsel and affirmatively agreed to by plaintiff's counsel, stated as follows:
"In order to be considered a tenant under the provisions of the special jury instruction in dealing with ... Section 1161-B the tenant must have a bona fide tenancy or lease. [¶] A lease or tenancy shall be considered bona fide only if: [¶] One, the lease or tenancy was a result of an arm's length transaction; and [¶] Two, ... rent of the lease or tenancy was not substantially less than fair market rent for the property."
Other instructions were also given, including further instructions relating to plaintiff's claimed property losses and other alleged damages due to defendants' alleged failure to provide the required period of notice to plaintiff, as a bona fide tenant, before entering the premises and removing personal property.
After deliberating, the jury returned a verdict in favor of defendants. A judgment for defendants, based on the verdict, was duly entered by the trial court. Plaintiff timely filed a notice of appeal from the judgment.
DISCUSSION
I. Invited Error
Plaintiff's main contention on appeal is that the trial court prejudicially erred when it instructed the jury using the "good faith tenancy" definitional instruction. Defendants respond that even if error occurred, it was invited by plaintiff and cannot be exploited on appeal. As explained below, we agree with defendants.
Preliminarily, we observe that plaintiff's argument presupposes the trial court erred in instructing the jury that a "tenant in possession" under section 1161b was defined in the same way as a "good faith tenant" under the PTFA. Plaintiff's contention is that the PTFA definition should not have been used because section 1161b did not include the words "good faith tenant," but only referred to a tenant in possession. Although we do not decide that debatable issue here, we note in passing that a reasonable case may be made that the trial court got it right. At the time of the foreclosure in this case, section 1161b only provided for 60 days' notice to quit the premises, while the PTFA provided a longer period of 90 days. That being so, the PTFA may have preempted the version of section 1161b in effect at that time. As noted ante, the PTFA was intended to preempt less protective state law, but not "any State or local law that provide[d] longer time periods or other additional protections for tenants." (PTFA, § 702, subd. (a); see Nativi, supra, 223 Cal.App.4th at p. 285.) Arguably, the shorter period of time was less protective and, therefore, the PTFA applied, including its definition of a good faith tenant. In any event, it is unnecessary for us to decide that issue in this case because, even if plaintiff is correct that the instruction misstated the definition of a tenant, the doctrine of invited error precludes plaintiff's claim of instructional error.
Plaintiff argues that section 1161b may have been intended to protect a broader array of tenants than bona fide tenants and, therefore, was arguably more protective than the PTFA. The argument is not adequately supported with legal authority and cogent legal discussion. In any event, we find it unnecessary to determine that question in light of the clear applicability of the doctrine of invited error.
"Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.) The doctrine of invited error is founded on the principle of estoppel; that is, a party may not mislead the trial court and then attempt to exploit the alleged error in the appellate court. (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 (Transport); Munoz v. City of Union City (2007) 148 Cal.App.4th 173, 178; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 389, p. 447.)
"It has been said that the invited error doctrine 'applies "with particular force in the area of jury instructions...."' [citation], and numerous cases have held that a party who requests, or acquiesces in, a particular jury instruction cannot appeal the giving of that instruction. (See, e.g., Nevis v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 626, 629-630; Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856-857 and cases cited; Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567 [jointly-proposed instruction].)" (Transport, supra, 202 Cal.App.4th at p. 1000.) In Transport, after an extensive jury instruction conference in the trial court, the appellant expressly agreed to the content of a jury instruction on the statute of limitations. When the appellant subsequently attempted to challenge the instruction on appeal because it allegedly misstated the law, the Court of Appeal held that the claim of instructional error was barred by the invited error doctrine. (Id. at pp. 999-1006.) Similarly, in Electronic Equipment Express, Inc. v. Donald H. Seiler & Co., supra, at pages 856-857, the trial court allegedly gave an incorrect and misleading definition of "appreciable" damage when instructing the jury in connection with the appellants' statute of limitations defense. On appeal, because the appellants had expressly informed the trial court that it had no objection to that particular instruction being read to the jury, the Court of Appeal held that the doctrine of invited error applied. (See Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 787 [where the appellants acquiesced in an inadequate jury instruction on the medical standard of care, they were estopped from asserting the instructional error on appeal; otherwise, they could employ the "'win-win'" gamesmanship of "wait and see what the jury did," and if the result was not to their liking, argue on appeal the jury was not properly instructed].)
On the record before us, we believe the doctrine of invited error is applicable to plaintiff's claim that the trial court incorrectly instructed the jury on the definition of a good faith tenant. The trial court informed the parties that it would use "plaintiff's proposed [section] 1161-B" special instruction. (Italics added.) According to the reporter's transcript, that instruction stated that "a bona fide tenant" was entitled to 60 days' written notice to quit at the time of a foreclosure sale, and further stated that in order to prevail on his claim, plaintiff must prove that he was a bona fide tenant. Thus, the term bona fide tenant was used in plaintiff's own proposed special instruction, albeit it lacked a definition. When the trial court advised that a further instruction should be given to define the term, defendants prepared a special instruction setting forth the definition of bona fide tenant found in the PTFA. Plaintiff, through counsel, clearly and affirmatively agreed with the contents of that definition—stating to the trial court "I have seen the definition. I agree with it." Based on this exchange, the trial court proceeded to read the above instructions to the jury. On these facts, we have no difficulty concluding that the doctrine of invited error applies and estops plaintiff from asserting the alleged instructional error.
The record on appeal furnished by plaintiff did not include plaintiff's proposed jury instructions submitted to the trial court. We were only provided with the reporter's transcript.
In an effort to persuade us otherwise, plaintiff argues that section 647 preserves his right to object on appeal to the jury instruction. Plaintiff is mistaken. Section 647 provides, in pertinent part, that a trial court's "giving an instruction, refusing to give an instruction, or modifying an instruction requested" are deemed to have been excepted to. As construed by the appellate courts, this section simply means that when it is claimed an instruction incorrectly stated the law, the failure to object or to propose a correct instruction will not bar a party from raising the error on appeal. (U.S. Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1447.) In the case before us, we are not dealing with a mere failure to object, but plaintiff's affirmative conduct of (1) actually proposing an instruction that included the term good faith tenant and (2) expressly and unequivocally agreeing to defendants' proposed definition of that term.
Plaintiff cites Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679 (Huffman) for the proposition that a party's mere acquiescence may be insufficient to establish invited error regarding jury instructions that allegedly misstate the law. In Huffman, the appellant initially objected to a proposed instruction but withdrew the objection. The Court of Appeal held that the withdrawal of the objection was not sufficient in that case to establish invited error because the doctrine of invited error requires affirmative conduct. (Huffman, supra, at p. 706.) For obvious reasons, the Huffman case is distinguishable. As explained above, in the matter before us there was affirmative conduct creating an estoppel. Because the record reflects that plaintiff included the term good faith tenant in the special instruction that he proposed, and then expressly agreed with the definitional instruction submitted by defendants, plaintiff engaged in affirmative conduct resulting in the particular instructions being given. Hence, plaintiff's conduct was more like a deliberate decision about how the case should proceed with respect to jury instructions, rather than a mere failure to raise an objection or an uncertain withdrawal of an objection. For these reasons, Huffman does not assist plaintiff.
There were confusing circumstances surrounding the withdrawal of the objection, and counsel argued that any withdrawal of the objection was inadvertent and that he would not have agreed to the proposed instruction that improperly shifted the burden of proof. (Huffman, supra, 121 Cal.App.4th at pp. 701-702, fns. 15 & 16.)
Finally, plaintiff argues in his reply brief that the record he provided on appeal "doesn't disclose the exact language of [plaintiff's proposed section] 1161b instruction." It is unclear whether plaintiff is attempting to use a sketchy appellate record to cast doubt on a fact that is otherwise apparent from the reporter's transcript—namely, that plaintiff's proposed section 1161b instruction included the term bona fide tenant. In any event, plaintiff cannot meet his burden on appeal by claiming the record that he provided regarding jury instructions was uncertain or incomplete. "An appellant has the burden to provide a record sufficient to support its claim of error. [Citation.] Absent an indication in the record that an error occurred, we must presume there was no error. [Citations.] An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the court's rulings on proposed instructions. [Citations.] If the record does not show which party requested an erroneous instruction, the reviewing court must presume that the appellant requested the instruction and therefore cannot complain of error." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678, fn. omitted.) As was stated in Pugh v. See's Candies, Inc. (1988) 203 Cal.App.3d 743 at page 759: "Although an appellant is deemed to have excepted to the instructions he has not requested or agreed to (Code Civ. Proc., § 647), a presumption of invited error may result from failure to provide the reviewing court with an adequate record."
As noted previously, the record on appeal furnished by plaintiff did not include plaintiff's proposed jury instructions that were presumably submitted to the trial court in writing. We were only provided with the reporter's transcript.
For all of the foregoing reasons, we conclude that plaintiff's claim of instructional error is barred on appeal by estoppel under the doctrine of invited error.
II. Other Issues
Although plaintiff's appeal primarily focuses on the alleged instructional error, plaintiff also makes a perfunctory argument that defendants should not have been permitted to introduce any testimony tending to show that unit A had been abandoned. Plaintiff's argument on this point fails to establish with cogent authority or legal argument why the trial court may have prejudicially abused its discretion by allowing such testimony. For this reason, we need not consider the issue and deem it forfeited on appeal. (See, e.g., Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [waiver of issue where lack of adequate legal or factual analysis in the appellant's brief]; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482 [same]; Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814-815 [same]; see also People v. Stanley (1995) 10 Cal.4th 764, 793 [issue raised in perfunctory manner is waived]; People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11 [same]; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [same].)
Nor does plaintiff demonstrate that any such objections or arguments were properly raised below, which is a further reason to disregard it on appeal. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.)
Defendants' respondents' brief offers a further reason for rejecting plaintiff's argument on this point: Namely, the evidence in question was relevant to the issue of whether any residential tenancy existed in unit A, regardless of whether defined as a bona fide tenant or a tenant in possession. Moreover, as pointed out by defendants, the jury need not have credited plaintiff's or the former owner's testimony, but rather may have reasonably inferred there was no residential tenancy at all, based on the lack of any receipts to establish payment of any rent, the lack of items in the apartment that would be expected if someone lived there (i.e., no clothes, bed, dishes or silverware), evidence that utilities were shut off or in disuse, evidence that the toilet was nonfunctional, and evidence that little remained in the apartment except a few stray items of an apparently abandoned marijuana grow, etc. (See, e.g., Everett v. Everett (1984) 150 Cal.App.3d 1053, 1063-1064 [a general verdict imports findings in favor of prevailing party on all material issues, and if evidence supports implied findings on any set of issues that will sustain the verdict, it will be assumed that the jury so found].) We agree with defendants' analysis.
Based on the foregoing discussion, this issue has been forfeited by plaintiff, but even if we were to consider it, plaintiff has failed to demonstrate any prejudicial error in regard to the admission of evidence that the apartment was abandoned. If anything, such evidence would support implied findings in favor of the general verdict.
DISPOSITION
The judgment of the trial court is affirmed. Costs on appeal are awarded to defendants.
/s/_________
KANE, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
GOMES, J.