Opinion
B221027
11-16-2011
GARY JENSEN et al., Plaintiffs and Respondents, v. BARBARA CARSON, Defendant and Appellant.
Law Offices of Nate G. Kraut, Nate G. Kraut; Zakari Law, Raymond Zakari for Defendant and Appellant. Travis R. Jack for Plaintiffs 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC357476)
APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph Kalin, Judge. Reversed.
Law Offices of Nate G. Kraut, Nate G. Kraut; Zakari Law, Raymond Zakari for Defendant and Appellant.
Travis R. Jack for Plaintiffs and Respondents.
Barbara Carson, as successor in interest to Kit E. (Corky) Carson and as trustee of the Carson Family Trust (the Trust) appeals the judgment entered in favor of plaintiffs Gary and Lorraine Jensen which granted the Jensens a life estate in a 19-acre parcel of real property owned by the Trust, and awarded the Jensens a $111,000 money judgment against Mr. Carson, who is now deceased.
Appellant maintains that the judgment must be reversed due to the dismissal of the Trust during the pleading stage of this action, improper and prejudicial instructions given to the jury, and the grant of a remedy - conveyance of a life estate in real property - which was neither alleged in the complaint nor supported by the evidence. Because we conclude that the latter two contentions are well-taken, we reverse the judgment.
SUMMARY OF THE CASE
The Carsons leased land (the Premises) adjoining their residence to their good friends the Jensens for $500 a month. The Jensens made improvements to the Premises. A dispute arose concerning the terms of the oral lease, specifically, its duration and the acreage included in the leasehold. Although the Jensens never vacated the Premises but continued to pay rent and reside there throughout this lawsuit, they sued the Carsons for breach of the lease, seeking damages or, in the alternative, specific performance of the lease.
When the lease dispute arose, the relationship between the parties became acrimonious. The Jensens accused Mr. Carson of engaging in malicious conduct for the purpose of harassing them. Shortly after filing suit, the Jensens secured a restraining order; some months later, they amended their complaint to include a cause of action for intentional infliction of emotional distress, and sought punitive damages based on this conduct.
The case was tried to a jury, which found that the parties entered into an oral lifetime lease; the Carsons breached the lease; the Jensens were harmed by the Carsons' breach, but suffered no damages on account of it; and Mr. Carson intentionally inflicted emotional distress on both Mr. and Mrs. Jensen. The jury found compensatory tort damages of $40,000 for Mr. Jensen, and $60,000 for Mrs. Jensen. The jury also assessed punitive damages on the intentional infliction of emotional distress claim of $5,500 as to each of the Jensens, for a total monetary award of $111,000.
Following the dismissal of the jury, the Jensens sought equitable relief from the court: a permanent injunction restraining Mr. Carson from harassing them and from entering the Premises, and specific performance of the lease agreement. The trial court denied the permanent injunction but granted each of the Jensens a life estate in the Premises.
The Carsons timely appealed. While the appeal was pending, Mr. Carson passed away, and Mrs. Carson filed a motion to be substituted in place of her deceased husband, which motion was granted.
MOTION TO DISMISS
On September 30, 2010, the Jensens filed a motion to dismiss this appeal, claiming that the notice of appeal, signed by Mrs. Carson, was invalid. This was so, according to the Jensens, because Mrs. Carson was not authorized to sign the notice on behalf of the trust because she is not an attorney, nor on her own behalf, because she was not personally aggrieved by the judgment. The motion is not well-taken and is therefore denied.
"California Rules of Court, rule 8.100(a)(1) provides that the 'appellant or the appellant's attorney must sign the notice [of appeal].' This language has been construed, however, to allow 'any person, attorney or not, who is empowered to act on appellant's behalf,' to sign the notice of appeal. (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853.) . . . Moreover, '[t]he notice of appeal must be liberally construed. . . .'" (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1216.)
The Jensens cite Paradise v. Nowlin (1948) 86 Cal.App.2d 897, to argue that Mrs. Carson could not sign the notice of appeal on behalf of the trust. In the cited case, the Court of Appeal held that a corporation lacked the power to represent itself: As "an artificial entity created by law . . . it can neither practice law nor appear or act in person." (Id. at p. 898.) We note that the continued validity of this holding has been called into doubt by the First District Court of Appeal in CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1147.) And in any event, a corporation and a trust are not analogous constructs. "'In contrast to a corporation which is a "'. . . distinct legal entity separate from its stockholder and from its officers, [citation]' (Merco Constr. Engineers, Inc. v. Municipal Court [(1978)] 21 Cal.3d [724,] 729) and deemed a person within many legal constructs (Code Civ. Proc., § 17), a ". . . trust is not a person but rather 'a fiduciary relationship with respect to property.' [Citations.] Indeed, '"'an ordinary express trust is not an entity separate from its trustees'"' [citation]." (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1132, fn. 3; Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 753; see also Evid. Code, § 951.)' (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 548.)" (Presta v. Tepper (2009) 179 Cal.App.4th 909, 914.) As trustee of the Trust, Mrs. Carson was authorized to appeal the judgment entered against the Trust.
Mrs. Carson was also authorized to sign the notice of appeal on behalf of her husband, so long as he authorized her to do so. (Seeley v. Seymour, supra, at p. 853.) "[I]n the absence of a clear and satisfactory showing that such authority was lacking" (ibid.), we must conclude that Mrs. Carson signed the notice of appeal with her husband's knowledge and consent.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2005, Barbara and Corky Carson lived in a small house on a large parcel of land in a rural mountainous area off of Angeles Forest Highway, outside of Acton. The Carsons owned this property as trustees of the Carson Family Trust. Mr. Carson operated a water delivery business. Their son, who had lived in an old trailer on the property, had recently vacated the Premises.
The Jensens had recently sold their residence and were not happy with their new living arrangements. They also owned a large number of horses. Mr. Jensen's friend Mr. Carson suggested that the Jensens could live in the vacated trailer on his property, and keep the horses there, for $800 a month rent. The existing trailer was in a state of disrepair, so the Jensens proposed that, for a reduced rent of $500 per month, they would dispose of the existing trailer and install an updated replacement, which they would leave in place when they moved out. The Jensens also agreed to purchase water for use on the Premises from Mr. Carson's business.
In March of 2005, pursuant to this oral agreement, the Jensens took possession of the Premises; they removed the old trailer and replaced it some months later with a new manufactured home, installed pipe corrals for the horses, and made other improvements to the Premises. The total sum which they expended in connection with the property, including the improvements thereon, was $211,000. Approximately 18 months after entering into the lease, Mrs. Jensen became concerned that, without a written lease, the Carsons could sell the property and the Jensens would lose their investment in the improvements; she therefore wrote "lifetime lease" on the August 15, 2006 rent check. This infuriated Mr. Carson who, according to the Jensens, began a "reign of terror" directed at them.
The Jensens filed their complaint nine days later on August 24, 2006, naming Kit and Barbara Carson and Does 1 to 25 as defendants. Shortly thereafter, the Jensens moved ex parte for a restraining order against Mr. Carson, based on his threats to harm Mrs. Jensen and the Jensens' house in response to learning that Mrs. Jensen had written "lifetime lease" on the August rent check. A restraining order was issued on September 21, 2006.
The Jensens claimed that Mr. Carson engaged in a "reign of terror" subsequent to the issuance of the restraining order by engaging in the following conduct, most of which no one directly witnessed but which the Jensens attributed to Mr. Carson: Mr. Carson and his son honked the horn on their trucks to scare the horses in the Jensens' corrals; the Jensens' water tank was empty within hours of being filled; gasoline was poured in a diesel vehicle and water was poured into a gas engine; two horses died, purportedly of poison, shortly after having been transported to Colorado; nails were scattered on the driveway causing flat tires; Mrs. Jensen heard someone cough outside her window late one night; and the corrals were opened late at night resulting in loose horses. On April 1, 2008, the Jensens filed another ex parte application for further restraining orders, and requested issuance of an order to show cause re contempt. Judge Carlos Baker found that Mr. Carson violated the restraining order by harassing the Jensens "on multiple occasions by honking the horn on his water truck and/or his pickup truck next to the corrals where the plaintiffs' horses were kept with the intent of, and actually causing, panic and injury to plaintiffs' horses." The court further found that this conduct "was a knowing and willful course of conduct directed at [] Gary and Lorraine Jensen which seriously alarmed, annoyed, or harassed Gary & Lorraine Jensen, and which served no legitimate purpose such as would cause a reasonable person to suffer substantial emotional distress and said conduct caused plaintiff Gary Jensen and Lorraine Jensen to suffer substantial emotional distress."
On May 1, 2008, plaintiffs filed a "Doe Amendment" naming "Kit Eugene Carson & Barbara Jean Ann Carson, trustees of the Carson Family Trust for the benefit of Kit Eugene Carson and Barbara Jean Ann Carson and their issue under instrument date February 21, 2001" as Doe defendants. On July 22, 2008, before the Carsons answered the complaint, the Jensens filed a first amended complaint which named the Carsons only as individuals, not as trustees of the Trust. The Jensens subsequently filed an ex parte application seeking leave to file an amended complaint which named the Carsons as defendants in their representative capacities, but abandoned the application. The Carsons answered the operative complaint as individuals only.
CONTENTIONS
Appellant challenges the judgment entered with respect to both the breach of contract and intentional infliction of emotional distress causes of action. With respect to the lease, appellant maintains both that the Trust was not a party to the litigation, so that the trial court was without jurisdiction to enter judgment against the Trust, and that the trial court awarded a remedy - conveyance of a life estate - which the Jensens neither pleaded nor proved. Additionally, appellant contends that the trial court prejudicially erred when it included in the jury instructions on the claim for intentional infliction of emotional distress the findings of fact, conclusions of law and order issued by Judge Baker in the contempt proceedings.
DISCUSSION
1. Absence of indispensable parties
Appellant contends that "the Carsons (as trustees) were indispensable parties to an action which sought a transfer of an interest in real property owned by the Carson Family Trust. Because the Jensens failed to join these indispensable parties, the trial court lacked subject matter jurisdiction to order specific performance regarding real property owned by the trust." In our view, the holding in Galdjie v. Darwish (2003) 113 Cal.App.4th 1331 (Galdjie) fully refutes this contention.
In Galdjie, the Darwishes were the settlors, trustees, and beneficiaries of a revocable living trust. As trustees, they contracted with the plaintiff for the sale of real property owned by the trust. The plaintiff sued the Darwishes in their individual capacities, seeking specific performance of the purchase and sale agreement. The trial court entered judgment ordering the Darwishes, as individuals, to transfer the property to plaintiff. The Darwishes appealed, arguing that because they were not sued in their capacity as trustees, the judgment was against the wrong party and could not be enforced.
After surveying the development of the law of trusts from the common law through the adoption of Probate Code section 18000 et seq. in 1986 (Cal. Stats. Ch. 820, § 7, p. 2730), the Court of Appeal held that "the proper procedure for one who wishes to ensure that trust property will be available to satisfy a judgment, whether for damages for breach of contract or for specific performance, [is to] sue the trustee in his or her representative capacity." (Galdjie, supra, 113 Cal.App.4th at p. 1349.) The court continued: "We do not believe, however, that this results in an ineffectual judgment due to the specific facts of the case before us. The judgment did not give respondent the right to attach property owned by appellants as individuals; it entitled him to receive a piece of real property owned by the Trust by obtaining appellants' signatures on a deed. . . . [¶] . . . [¶] The evidence before us establishes that the Trust is a revocable inter vivos trust, that appellants are the sole trustees, and that as beneficiaries, they have the power during their lifetimes to direct the sale of the real property owned by the trust." (Id. at pp. 1349-1350.) Consequently, the court found that the individuals properly before the court could convey good title from the Trust.
Like the Darwishes in Galdjie, the Carsons were the settlers, trustees and beneficiaries of the revocable inter vivos trust which held title to the subject property. In her reply brief, Mrs. Carson acknowledges that she and her husband, as trustees, had authority to enter into a lease of the Premises. Consequently, the Jensens' failure to properly name and serve the Carsons in their representative capacities did not deprive the court of jurisdiction to enter a decree of specific performance with respect to the property.
Appellant contends that the fact that the Carsons' children were successor beneficiaries of the Trust distinguishes this case from Galdjie. However, the Galdjie court's analysis was not based on the common identity of trustees and beneficiaries, but upon the authority of the trustee to enter into the contract which was sought to be specifically enforced.
2. Order to convey life estate
The trial court ordered specific performance of the parties' oral lease by ordering the Trust to convey to the Jensens a life estate in the 19-acre parcel. Appellant maintains that this was error, as the Jensens did not plead or prove that the Carsons granted them a life estate in the Premises, but alleged in the complaint, and asked the jury to find, only that the parties entered into a lifetime lease.
"'The landlord-tenant relationship is created by a contract between the parties. This contract, known by a variety of names, may be oral or written and express or implied. [Citations.] The contract must show (expressly or from the facts) that the parties intend to create a landlord-tenant relationship [citations] and must contain the following: a designation of the parties, a description of the premises, the rent to be paid, the time and manner of payment, and the term for which the tenant will rent the property.'" (Cal. Residential Landlord-Tenant Practice (Cont.Ed.Bar 1986) § 1.1, p. 3.)
Here, all parties agreed that the Carsons as landlords and the Jensens as tenants entered into an oral contract for the lease of real property, at a monthly rental of $500, payable on the 15th of each month. The parties disagreed about the precise premises leased (the Carsons maintained that the lease was of four acres, while the Jensens asserted that it covered 19 acres), and the duration of the lease (a month-to-month tenancy versus the lifetime of the Jensens). The jury determined that the leased property consisted of 19 acres, and that the agreed duration of the lease was the lifetime of the Jensens. Based on the jury's findings, the trial court ordered that the Carsons convey to the Jensens a life estate in the 19-acre parcel. In this the court erred.
A life estate is not the same thing as a "lifetime lease." The holder of a life estate - the "life tenant" - has "the same right of possession as an owner in fee simple, subject to the remainder holder's privilege to protect his or her rights; e.g., to enter to see if waste is being committed. (Rest., Property § 117.)" (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 24, p. 78; see also Civ. Code, § 818.) "The life tenant is also entitled to make reasonable use of the land, and to receive the issues and profits." (Ibid.) Thus, absent a provision to the contrary, the holder of a life estate may erect buildings on the property, convey or assign the rights in the property to third parties, and sell or mortgage the life estate. Moreover, "[t]he life tenant must pay taxes and other current charges and 'a just proportion of extraordinary assessments benefiting the whole inheritance.'" (12 Witkin, Summary of Cal. Law, supra, § 30 at p. 83; see also Civ. Code, § 840; Rest., Property, § 129 et seq.)
Relying on the "strikingly similar" case of Manning v. Franklin (1889) 81 Cal. 205, the Jensens argue that the Carsons granted them a life estate in the Premises. In Manning, the plaintiff, who "was solitary, old, and infirm," proposed to the defendant that if he would build a house on part of plaintiff's lot, pay for one-half of the property taxes and water, and care for plaintiff in his sickness, he could live in the house he had built for the rest of the plaintiff's life. After the defendant built the house, the plaintiff sued to evict him. The defendant maintained that he was not subject to eviction, as he held a life estate. In response to plaintiff's contention that the parties had entered into a (void) lease, the appellate court stated: "This is in no sense a lease of the property, but a sale of a life estate therein." (Id. at p. 207.)
Manning is readily distinguishable from the facts before us. There, the landowner did not purport to lease property to the defendant, but authorized him to use the land to build a permanent structure on it. The life tenant agreed to pay his share of taxes, but there was no provision for monthly rent. As the appellate court found, the transaction had none of the earmarks of a lease.
Here, by contrast, the Jensens sued the Carsons for breach of an oral lease, not for quiet title or interference with a life estate. The evidence presented at trial established an oral lease in the Premises; there was no evidence that the Carsons intended to convey a life estate to the Jensens, or to give them any interest in the Premises beyond a right of personal occupancy. The Jensens were not obligated to pay property taxes on the Premises. Most telling, the Jensens' agreement to pay rent is wholly inconsistent with a life estate, for one who owns a life estate in real property is not required to pay rent, but rather is entitled to collect it. In short, the record is devoid of evidence that the Carsons granted the Jensens a life estate in the Premises.
3. Specific performance of lifetime lease
This court requested briefing on the issue of the propriety of an award of specific performance under the facts of this case. In response to that request, appellant argues that specific performance was not an appropriate remedy in this case because the Jensens failed to satisfy the prerequisites to this remedy.
"The equitable remedy of specific performance of agreements for the sale of lands rests largely in judicial discretion, directed and regulated by defined rules. Well settled elements and incidents are requisite to granting relief; but whether relief shall be granted depends upon an equitable consideration of the particular circumstances of each case. The contract must be just, fair, and reasonable; must not have originated in mistake, or surprise, or violation of confidence, or breach of trust, or advantage of condition, nor been obtained by any unconscientious or unfair methods; must be reasonably certain in respect to the subject-matter, the terms, and stipulations; must be founded on a valuable consideration, and its performance not work hardship or injustice." (25 Williston on Contracts (4th ed. 2002) § 67:1.)
"To obtain specific performance after a breach of contract, a plaintiff must generally show: '(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. [Citations.]' (Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575; see Henderson v. Fisher (1965) 236 Cal.App.2d 468, 473; Civ. Code, §§ 3384, 3386, 3390, 3391.) A grant or denial of specific performance is reviewed under an abuse of discretion standard. (Petersen v. Hartell (1985) 40 Cal.3d 102, 110.)" (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)
Appellant maintains that two prerequisites to the application of specific performance are absent in this case, rendering the remedy unavailable: the Jensens failed to plead and prove both that the Carsons' obligation to lease the property to the Jensens for their lifetime was supported by adequate consideration, and that the terms of the contract were just and reasonable as to the Carsons. In this regard, appellant cites Civil Code section 3381, subdivision 1, which provides that specific performance will not be granted against a party who "has not received an adequate consideration for the contract," as well as subdivision 2 of the same section which prohibits specific performance against a party to a contract "[i]f it is not, as to him, just and reasonable . . . ." Appellant relies on Mayer v. Beondo (1948) 83 Cal.App.2d 665 for the proposition that failure to plead and prove these two elements precluded the trial court from ordering specific performance in this case.
In Mayer v. Beondo, supra, the plaintiff sought to specifically enforce an option to purchase real property. The complaint did not allege that the consideration paid was adequate, or that the contract was just and reasonable as to the defendant, and plaintiff closed his case-in-chief without presenting evidence on these subjects. When the defendant pointed out the deficiencies in both pleading and proof, the trial court permitted the plaintiff to reopen his case and present evidence on these issues. The trial court entered a decree of specific performance of the option contract.
The appellate court held that this was error: "The complaint fails to state facts sufficient to constitute a cause of action for the reason that it contains no allegation that the consideration was adequate or that the contract was just and reasonable as to defendant, and there are no allegations of fact from which conclusions to that effect may be drawn." (Mayer v. Beondo, supra, 83 Cal.App.2d at p. 668.) This principle has long been a feature of the law of specific performance in California. (See, e.g., Haddock v. Knapp (1915) 171 Cal. 59, 62 ["The burden of alleging and proving the adequacy of the consideration is upon the party seeking the relief"]; Petersen v. Hartell, supra, 40 Cal.3d at pp. 109-110; 12 Miller & Starr, Cal. Real Estate (3d ed. 2008) § 34:21.)
In Mayer, the appellate court also held that it was prejudicial error to permit the plaintiff to reopen his case in order to present evidence on matters not within the pleadings. (Mayer v. Beondo, supra, 83 Cal.App.2d at p. 668.) As the court explained, "[d]efendant had a right to go to trial relying on the allegations which he found in the complaint as being the only matters on which he would be required to produce evidence. The record indicates that he was ready to meet such allegations but was not prepared as to matters not set forth in the complaint. If he had had previous warning that the value of the property, the adequacy of the consideration, or the justness and reasonableness of the contract would be tried he would have had the opportunity to produce witnesses whose testimony on those subjects might have required the court to render judgment in his favor." (Id. at pp. 669-670.)
Here, the Jensens alleged in the operative complaint for breach of contract that Mr. Carson and Mr. Jensen agreed that the Jensens "could live at the real property located at 31115 Angeles Forest Highway, Palmdale, California (the 'Property') until such time as both Gary and Lorraine are dead, on condition that Gary and Lorraine (1) clear all debris from the Property, including a dilapidated structure; (2) cause a new manufactured home to be placed on the Property which would become the property of Defendants upon the death of Gary or Lorraine, whichever died last; (3) pay $500 per month rent to Defendants and (4) purchase water for the property from Defendants, who own and operate a water company. This agreement is referred to herein as the 'Oral Lease.'" After alleging damages of $275,000, the complaint states: "In the alternative to monetary damages, plaintiffs also seek to specifically enforce the Oral Lease."
The complaint does not allege that the consideration for the oral lease was adequate and that the contract was just and reasonable to the defendants. Even if it had, appellant maintains that the record on appeal is devoid of any evidence to support the trial court's implied findings on these issues.
"[I]n examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding." (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142.)
The Jensens did not proffer evidence regarding the adequacy of consideration and the reasonableness of the contract. To the contrary, Mr. Jensen testified to his incredulity concerning the Carsons' generosity. Mr. Jensen recalled that, upon being offered a lifetime lease, he "was like in awe. I couldn't believe that he [Mr. Carson] would do that. And I couldn't believe it. I went back to the house in Canyon Country, and I told my wife what happened. And she - she got all upset, she . . . thought that was the greatest thing ever, and it was. It was a great thing that he did for us." Similarly, Daryl Sutliff, a building contractor who testified for the Jensens, stated that when he learned that Mr. Jensen was leasing the property "for 500 bucks a month for as long as he wanted to stay there [he] kind of chuckled and said 'that's a great deal, how did that happen?'"
Indeed, the consideration of $500 a month for the right to reside on 19 acres of real property, and to maintain upwards of 40 or more horses on the land, for the remainder of the life of the last to die of Mr. and Mrs. Jensen, without any adjustment in the monthly rent was, by any measure, inadequate. In 2005, when they entered into the lease, Mrs. Jensen was 49 years old, with a life expectancy of well over 30 years. Cost of living adjustments in long term leases are to be expected. (See, Shaver v. Clanton (1994) 26 Cal.App.4th 568, 575.) The absence of an increase in rent over a period of 30 years can only be described as a gift. While a gift does not require adequate consideration, a decree of specific performance does.
The Jensens respond that they were obligated to leave the replacement home on the Premises at the lease's end. We do not see that this establishes adequacy of consideration. First, all of the parties agreed that the original terms of the lease required the Jensens to remove the existing 12 foot by 54 or 60 foot trailer with wheels, and replace it with a similar vehicle, not with the substantially larger, new manufactured home with upgraded amenities in which the Jensens reside. In addition, while the Jensens have repeated throughout these proceedings that they put $211,000 into the Premises, there is no evidence that that amount went towards permanent improvements to the Premises which would increase the fair market value of the Carsons' property 30 years hence, or would otherwise redound to the Carsons' benefit.
Indeed, the Jensens' original complaint specifically described the replacement living quarters as a "mobile home." No evidence was presented to the effect that the lease obligated the Jensens to purchase a new vehicle as opposed to a used one; in fact the evidence was that the Jensens initially sought to acquire a used replacement trailer.
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Additional factors which would give us pause in affirming the award of specific performance in this case include the fact that the award essentially orders hostile parties to be neighbors, and gives the Jensens the right to occupy the Premises for the remainder of their lives, but does not give the Carsons the reciprocal right to collect rent for the lifetime of the Jensens, but only so long as the Jensens choose to rent the Premises. In this, the lease lacked mutuality of obligation, making specific performance unavailable. (See, e.g., Kennecott Corp. v. Union Oil Co. (1987) 196 Cal.App.3d 1179, 1187, fn. 7.)
In sum, because the record contains no substantial evidence that the Carsons received adequate consideration for the lease or that the lease was fair and equitable as to them, the award of specific performance must be reversed.
4. Jury instructions on claim for intentional infliction of emotional distress
Over Mr. Carson's objection, the trial court instructed the jury as follows:
"The court has taken judicial notice of the fact that Judge Carlos Baker made the following findings of fact as a result of the contempt proceedings brought against Kit Carson in this case and they are based upon the evidence submitted.
"The court finds beyond a reasonable doubt that Kit Carson harassed plaintiffs Gary Jensen and Lorraine Jensen on multiple occasions by honking the horn on his water truck and/or his pickup truck next to the corrals where plaintiffs' horses were kept with the intent of and actually causing panic and injury to plaintiffs' horses.
"The court finds beyond a reasonable doubt that Gary Jensen, Earl Williams, Cheyenne Watson, Jason Davis and Lorraine Jensen all observed Kit E. Carson harassing plaintiff in this matter.
"The court finds beyond a reasonable doubt that Kit E. Carson honked his horn and panicked plaintiffs' horses on six to 10 occasions in the Spring of 2007. And on February 6th, 8th, 11th, 26th, and 29th, 2008. March 4th, 6th, 11th and 13th, 2008.
"Judge Baker made the following findings of fact, which are not binding upon you, but you may consider these findings, along with all of the evidence you consider in reaching a verdict.
"The court takes judicial notice of the fact that Judge Carlos Baker issued the following conclusions of law, as a result of the contempt proceedings brought in this case.
"The court further finds beyond a reasonable doubt that Kit E. Carson's conduct was a knowing and willful course of conduct directed at Gary and Lorraine Jensen, which seriously alarmed and annoyed or harassed Gary and Lorraine Jensen. And which served no legitimate purpose, such as would cause a reasonable person to suffer substantial emotional distress.
"And said conduct caused plaintiffs Gary Jensen and Lorraine Jensen to suffer substantial emotional distress.
"Based upon the foregoing, the court finds beyond a reasonable doubt that Kit E. Carson violated the court's restraining order dated September 1st, 2006, and Kit E. Carson is therefore in contempt of court.
"Now it is therefore ordered that Kit E. Carson pay a fine to this court in the sum of $1,000 within 60 days of the service of the order.
"It is further ordered that Kit Carson pay Gary and Lorraine Jensen the sum of $4,000 [] for plaintiffs' attorneys' fees and $240 in costs for a total of $4,240 within 60 days of the service of the order.
"Judge Baker's findings are not binding upon you but may be considered by you, along with all of the other evidence you can consider in order to render a verdict."
Appellant maintains that the trial court erred in taking judicial notice of Judge Baker's findings, and in instructing the jury on the contents of those findings. We agree.
"'Judicial notice substitutes for formal proof only because the matters judicially noticed are not reasonably subject to dispute.' (2 Jefferson, supra, at § 47.2, p. 1758.)" (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1568.) Thus, for example, the fact that Judge Baker found Mr. Carson in contempt of court is not reasonably subject to dispute, and his order to that effect would be subject to judicial notice if it were an issue in this case. It was not.
Rather, Mr. Carson's conduct was at issue. In order to establish a cause of action for intentional infliction of emotional distress, the Jensens were required to prove "'(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)" (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 129.) Judge Baker's factual findings in the contempt proceeding may not substitute as proof of the foregoing elements. "[N]either a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding. As we have noted, '[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.' (1 Witkin, Cal. Evidence (3d ed. 1986) § 80.) Taking judicial notice of the truth of a judge's factual finding would appear to us to be tantamount to taking judicial notice that the judge's factual finding must necessarily have been correct and that the judge is therefore infallible." (Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1568.)
In short, the trial court erred in taking judicial notice of Judge Baker's findings of fact and conclusions of law. Moreover, we find the error to be prejudicial. "[J]urors are eager to find and quick to follow any supposed hint of the judge as to how they should decide the case." (People v. Cole (1952) 113 Cal.App.2d 253, 261.) Where, as here, the proof of the Jensen's claim rested entirely on testimonial evidence, and the evidence presented by the Jensens was flatly contradicted by Mr. Carson, the jury was presented with the discrete issue of the witnesses' credibility. To be instructed that a judicial officer had resolved this issue in a particular way, believing one side over the other, cannot but have influenced the jury's assessment of the witnesses' credibility. Moreover, Judge Baker's findings expressly resolved the factual issues of whether Mr. Carsons' conduct was "such as would cause a reasonable person to suffer substantial emotional distress," whether the Jensen's distress was "substantial," and whether Mr. Carson's conduct was the cause of the Jensens' emotional distress, all findings which the jury was required to make in order to return a verdict for the Jensens. A reasonable juror could perceive the challenged instruction as a "hint of the judge as to how they should decide" the intentional infliction of emotional distress claim. Because we cannot say that the jury would have returned the same verdict in the absence of the error (People v. Watson (1956) 46 Cal.2d 818; Cassim v. Allstate Insurance Company (2004) 33 Cal.4th 780, 799-801), we must conclude that the error was prejudicial, and reverse the judgment against Mr. Carson.
DISPOSITION
The judgment is reversed. Appellant is to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J. We concur:
TURNER, P. J.
KRIEGLER, J.