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Kashay v. Pifalo

California Court of Appeals, Fourth District, First Division
Jun 27, 2024
No. D081709 (Cal. Ct. App. Jun. 27, 2024)

Opinion

D081709

06-27-2024

LYNN KASHAY, Plaintiff and Appellant, v. JAMES PIFALO, Defendant and Respondent.

Lynn Kashay, in pro. per., for Plaintiff and Appellant. James Pifalo, in pro. per., for Defendant and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2020-00040076-CU-BC-NC Robert P. Dahlquist, Judge. Affirmed.

Lynn Kashay, in pro. per., for Plaintiff and Appellant.

James Pifalo, in pro. per., for Defendant and Respondent.

MEMORANDUM OPINION

This case is appropriate for resolution by memorandum opinion because it raises "no substantial issues of law or fact." (Cal. Stds. Jud. Admin., § 8.1; see People v. Garcia (2002) 97 Cal.App.4th 847.)

DO, J.

Lynn Kashay appeals from a judgment entered in favor of James Pifalo following a two-day jury trial on her claims that Pifalo concealed material defects about a mobile home he sold her, and from the trial court's order denying her motion for new trial. Kashay raises a litany of grievances. We affirm because Kashay has failed to show any error in the record.

I.

Background

Kashay purchased a mobile home from Pifalo on August 20, 2019. She visited the home before buying it. She alleged Pifalo "concealed, misrepresented and withheld material facts about the home's condition." She further alleged Pifalo failed to disclose certain aspects of the mobile home community, such as the homeowners association board and its property manager were "hostile, abusive, and severely negligent"; and that her neighbors were a "nuisance . . . who repeatedly threaten[ ] neighbors with bodily harm." Kashay asserted Pifalo failed to provide her with a "Transfer Disclosure Statement" informing her of all these facts that materially affect the condition of the property.

In November 2020, Kashay filed a verified complaint asserting four causes of action against Pifalo: (1) breach of contract; (2) violation of Civil Code section 1102 et seq.; (3) fraud by concealment; and (4) breach of fiduciary duties. She sought compensatory damages in excess of $50,000 and punitive damages of $100,000. In December 2020, Pifalo filed an answer and a cross-complaint.

Further undesignated statutory references are to the Civil Code. Section 1102 et seq., commonly known as the Transfer Disclosure Law (TDL), requires sellers of any single-family residential property, including manufactured homes and mobile homes, to provide a real estate "transfer disclosure statement" (TDS) to the buyer before the transfer of title. (§§ 1102, subd. (a), 1102.3a.) The exact form of the TDS is set forth in detail in section 1102.6, subdivision (a). It requires the seller to disclose, for example, any known "significant defects/malfunctions" in the property; substances, materials, or products which may be "an environmental hazard"; encroachments, easements, or similar matters; and "[n]eighborhood noise problems or other nuisances." (Ibid.)

Pifalo's answer and cross-complaint were not included in the record on appeal. According to the jury's verdicts, it appears Pifalo asserted causes of action against Kashay for breach of contract, money had and received, and fraud.

A two-day jury trial commenced on November 28, 2022, with both Kashay and Pifalo representing themselves. The trial was not reported. According to the trial court's minute orders, Kashay called a person named Tamara Bond and Pifalo to testify, offered five exhibits (consisting of an escrow document and repair estimates), and played a video to the jury. Pifalo, for his part, offered numerous exhibits (consisting, for example, of photographs of the mobile home, repair invoices, and an escrow closing statement).

A minute order shows that after both parties rested on November 29, 2022, the trial court found the evidence failed to show Pifalo owed Kashay a fiduciary duty. We assume the court granted Pifalo judgment of nonsuit on Kashay's fourth cause of action for breach of fiduciary duty (Code Civ. Proc., § 581c); the minute order is silent as to the specific resolution. The parties presented their closing arguments and the jury was instructed on the law. During deliberations the jury asked three questions and, later that afternoon, returned verdicts.

As to Kashay's complaint, the jury found for Kashay on her claim that Pifalo violated the TDL, and in favor of Pifalo on her claims for breach of contract and concealment. As to Pifalo's cross-complaint, the jury found for Pifalo on his claim for breach of contract and for Kashay on his claims for money had/received and fraud. It awarded Kashay damages of $5,000 and Pifalo damages of $5,000 plus payment of $20,000 on the promissory note.

On December 2, 2022, the trial court found offset of the two jury awards to be appropriate and entered judgment accordingly. It ordered that Kashay shall recover nothing from Pifalo, and Pifalo shall recover $20,000 from Kashay.

On December 12, 2022, Kashay filed a motion for new trial on the basis of six of the seven grounds enumerated in Code of Civil Procedure section 657, including irregularity in the proceedings (id., subd. (1)); accident or surprise (id., subd. (3)); newly discovered evidence (id., subd. (4)); excessive or inadequate damages (id., subd. (5)); insufficiency of the evidence (id., subd. (6)); and error in the law (id., subd. (7)). Broadly, Kashay complained about the trial court rushing the proceedings; yelling, admonishing, and cutting her off and exhibiting bias against her; refusing to permit her to admit "evidence pertaining to the law"; not allowing her to see the final version of the jury verdict form; finding she failed to present evidence to prove Pifalo owed her a fiduciary duty; not allowing her to discuss mediation attempts; and repeatedly telling the jury they are" 'probably bored'" and "the proceedings were 'disorganized.'" She asserted the jury was confused and submitted questions "that had nothing to do with the case and were shockingly out in 'left field.'" She claimed Pifalo lied "excessive[ly]"; repeatedly confused the jurors and caused undue consumption of time by misinforming them on the TDL; and got "the last word" by yelling out to the jurors as they went into deliberation that Kashay falsified evidence.

The trial court denied the motion for new trial. In its tentative ruling, the court stated it did not find there was any irregularity in the proceedings: any accident or surprise; any newly discovered evidence; or inadequate or excessive damages. The court also did not find the evidence insufficient to justify the jury's verdict or that there was any error in law. In particular, the court found "many" of Kashay's sworn statements in her supporting declaration and the unsworn statements in her moving papers to be "inaccurate." The court confirmed its tentative ruling and denied the motion for new trial on January 27, 2023.

II.

The Requirement of an Adequate Record on Appeal

It is a "cardinal rule of appellate review that a judgment or order of the trial court is presumed correct." (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust), citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Unless we are shown otherwise in the record, all intendments and presumptions are indulged to support the judgment or order on matters as to which the record is silent, and error must be affirmatively shown. (Denham, at p. 564; Foust, at p. 187.) As the party seeking reversal, appellant has the burden to affirmatively demonstrate prejudicial error. (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) Consequently, she also has the burden of providing an adequate record. (Foust, at p. 187.) The "[f]ailure to provide an adequate record on an issue requires that the issue be resolved against appellant. Without a record, either by transcript or settled statement, a reviewing court must make all presumptions in favor of the validity of the judgment." (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 [cleaned up]; accord Foust, at p. 187; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [" 'if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed' "].)

Neither the jury trial nor the hearing on Kashay's motion for new trial were reported. However, California Rules of Court, rule 8.137 provides an appellant may elect in her notice designating the record on appeal to use a settled statement as the record of the oral proceedings in the superior court, instead of a reporter's transcript. (Cal. Rules of Court, rule 8.137(a).) "A settled statement is a summary of the superior court proceedings approved by the superior court." (Ibid., italics added.) Here, in her notice designating the record on appeal, Kashay checked the box requesting a settled statement under rule 8.137. But she failed to follow the rest of the instructions, including "fill[ing] out the settled statement section (item 6)" to indicate which proceedings are to be included in the settled statement, and she did not file a proposed statement with the superior court for its approval, as required by rule 8.137, subdivision (c). "These provisions-much like the entire network of rules governing matter properly included in the appellate record-are intended to ensure that the record transmitted to the reviewing court preserves and conforms to the proceedings actually undertaken in the trial court." (People v. Tuilaepa (1992) 4 Cal.4th 569, 585, italics added.) As we explain next, Kashay's failure to provide us with an adequate record on appeal, specifically a settled statement, is fatal to her claims on appeal.

III.

Kashay Has Failed to Affirmatively Demonstrate Error in Either the Judgment or Order Denying Her Motion for New Trial

Kashay's opening brief on appeal is difficult to understand, as it does not always comply with the applicable rules of appellate practice. Because California Rules of Court, rule 8.204(a)(1)(B) requires an appellant to "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority," we do not address any contention that is not in compliance with this rule. (See Tukes v. Richard (2022) 81 Cal.App.5th 1, 12, fn. 5 ["A contention not appropriately raised in the opening brief under a separate argument heading may be deemed forfeited."].)

Kashay also fails to present cogent legal discussion, with citation to legal authority, to support the litany of grievances she raises in her appellate brief. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 (Keyes) ["It is the appellant's responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant's behalf."].) It is not our role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. Thus, we deem any matters not properly raised or that are lacking in adequate legal discussion to be forfeited. (Ibid.) Further still, many of Kashay's arguments are attempts to have us reweigh the evidence or reassess the credibility of witnesses, which we do not do. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246 (Babick) [On appeal, "[w]e do not reweigh evidence or reassess the credibility of witnesses."].) We are duty bound to defer to the judge or jury's resolution of factual issues as they have had the benefit of observing the demeanor of the witnesses and are therefore in a better position to assess credibility. (Johnson v. Pratt &Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.)

With these principles in mind, we turn to Kashay's arguments, as best we can discern.

1. The Jurors Were Confused on the Transfer Disclosure Law

Kashay asserts the jurors were confused on the TDL because Pifalo misled the jurors by falsely telling them, among other statements, that a TDS is not required for a mobile home that has an axel; that is 50 years old; that "goes through HUD," is registered through "HCD," or is in a "CID";[ that is in a park with more than four units; or that is a travel trailer. She further asserts the trial court denied her request to "admit the actual law into evidence" and failed to "clarify the law with the jurors." She argues the jury's confusion on the law was evident in the jury's first note, in which it asked: "Are 1102 disclosures applicable under the law for: [1] mobile homes not attached to real property (on wheels and registered with HCD), and [2] unit dated 1964." We reject these arguments.

Kashay fails to explain what any of these acronyms are.

We cannot evaluate Kashay's claim as to what transpired at trial because she has not provided us with any record of the oral proceedings. Consequently, we resolve the issue against her. (Foust, supra, 198 Cal.App.4th at p. 187.) Moreover, the trial court in denying her motion for new trial found "many" of Kashay's assertions of what happened at trial to be "inaccurate." From the limited record we do have, we see no error in the trial court's instructions on the law to the jury. In response to the jury's note, the court instructed that a TDS is required for the sale of "any used mobile home . . . regardless of the age of the mobile home or any other factors." (Italics added.) The court also repeated the previously given instruction on section 1102 in its entirety. The instruction is consistent with the TDL and Kashay has raised no claim of instructional error.

2. The Trial Court Erred by Taking Away Kashay's Breach of Contract Claim

Kashay contends the trial court, by its response to the jury's second note, essentially "took [her] breach of contract claim away" and "told the jury that [only] Pifalo had a contract." (Boldface and capitalization omitted.) She has misconstrued the jury's question and thereby misconstrued the court's response.

The jury's second note asked, "#4: Jury Verdict Form [¶] Does the breach of contract refer to the sale of the property, or the security agreement for personal property for $20,000? [¶] (Promissory Note.)" (Italics added, some capitalization omitted.) In response the trial court told the jury: "Question #4 on the verdict form pertains to Mr. Pifalo's claim against Ms. Kashay for breach of contract. Mr. Pifalo is claiming that Ms. Kashay owes him $20,000 under the promissory note that has been provided to you. It is up to you to determine if Mr. Pifalo has proven this claim." (Italics added.) It is clear the jury was asking for clarification on question number 4 on the jury verdict form, which asked them to decide, "On cross-complainant James Pifalo's claim for breach of contract," whether they find for Pifalo or Kashay. The trial court appropriately responded to the jury's question.

3. The Jury's Third Note Was "So Wrong"

The jury's third note asked, "#5 - Claim for $ Had & Received [¶] . . . [¶] Question: Is the money received referring to the value of the mobile home, mother's home in Ohio, or cash-in-hand?" (Some capitalization omitted.) In response, the trial court instructed the jury, "Your note poses a question about the facts of the case. I am not able to answer questions about the facts of the case. I can only answer questions about the law. I am sorry that I am not able to give you a better answer."

Kashay contends this jury note was "so wrong"; the trial court did not understand it; Pifalo "took advantage of this and nodded his head and agreed that yes, . . . Kashay received money"; Kashay "had to forcefully speak up and assert herself that this entire jury note was wrong, on all levels"; "[o]nly then did [the court] and Pifalo (begrudgingly) agree that the [j]ury was confused." She further contends the trial court dismissed her objection to its proposed response to the jury's third note, stating "Well you won, so it doesn't matter."

Again, we cannot evaluate Kashay's claim as to what transpired at trial because she has not provided us with any record of the oral proceedings. Consequently, we resolve the issue against her. (Foust, supra, 198 Cal.App.4th at p. 187.) And although the trial court's response to the jury's question was entirely appropriate, it also did not prejudice Kashay since the jury found in her favor on Pifalo's cross-claim for money had and received.

4. Pifalo Falsely Accused Kashay of Doctoring the Video Evidence in Front of the Jury

Kashay asserts that "[a]s jurors were walking into deliberation, Pifalo yelled out: Kashay put a hose under the mobile home to fake water pouring through the floors." She claims she objected to this statement by Pifalo but her objection was ignored, and the trial court failed to "correct the record in the minds of the jurors." Because of the "untrue, unfounded, and malicious accusations" by Pifalo, she contends, the jury awarded her inadequate damages and excessive damages to Pifalo. Again, we resolve this issue against Kashay because she has failed to provide us with an adequate record to meaningfully assess what transpired at trial. (Foust, supra, 198 Cal.App.4th at p. 187.) We, again, note that the trial court in denying the motion for new trial found "many" of Kashay's assertions of what happened at trial to be "inaccurate."

5. The Jury's Award of Damages to Kashay Was Insufficient and Its Award of Damages to Pifalo Excessive

Kashay broadly asserts the jury's award of damages to her was insufficient, while its award of damages to Pifalo was excessive. But rather than presenting legal arguments, with citation to authority, to support her challenge to damages, Kashay simply rehashes what she believes the evidence at trial did or did not show. She argues she had "abundant evidence," including her repair estimates, to support her claim for damages. She asserts Pifalo "was not telling the truth" and caused an undue consumption of time at trial "going off on long and confusing diatribes that included false information." We reject these arguments because it is not our role to reweigh the evidence or reassess credibility. (Babick, supra, 229 Cal.App.4th at p. 1246.) Moreover, the minute orders show witnesses testified and exhibits were admitted, but we do not know what the testimony consisted of and what the exhibits showed. The record on appeal does not contain any of the actual exhibits admitted at trial. Kashay's failure to provide an adequate record on appeal precludes any assessment of her sufficiency of the evidence claim. We therefore presume the correctness of the jury's verdicts, including its award on damages.

6. The Trial Court Changed the Jury Verdict Form Without Providing Kashay an Opportunity to Review It

Kashay asserts the trial court "read [its] own Jury Verdict form" to the jury without providing her an opportunity to first review it. She further contends the court changed her proposed verdict forms. We, again, conclude Kashay has failed to affirmatively demonstrate any error in the record and has also not articulated any legal error. We have independently reviewed the jury verdict form and see no legal defect.

7. The Trial Court Demonstrated Bias Against Kashay in Its Tentative Ruling Denying Her Motion for New Trial and in the Rushed Nature of the Proceedings

Kashay asserts the trial court's tentative ruling denying her motion for new trial demonstrates bias against her. She does not explain how it shows bias but merely asserts "[t]he [c]ourt should have clearly reached a different verdict or decision." The claim is without merit. "The mere fact that the trial court issued rulings adverse to [Kashay] on several matters in this case, even assuming one or more of those rulings were erroneous, does not indicate an appearance of bias, much less demonstrate actual bias." (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 674.) Kashay also asserts the trial court exhibited bias against her for requesting a jury trial and then "rushed and hurried proceedings," including requiring the parties to share counsel table with parties from another case. Again, we cannot assess Kashay's claims because we do not have an adequate record on appeal to determine what transpired during the oral proceedings. We thus presume the correctness of the judgment and the court's rulings.

8. The Trial Court's Order Denying Kashay's Motion for New Trial

Although Kashay indicated in her notice of appeal that she is challenging the trial court's January 27, 2023 order denying her motion for new trial, she did not present any developed discussion or legal argument pertaining to any error in the court's order. We thus deem the challenge abandoned and forfeited. (See Keyes, supra, 189 Cal.App.4th at pp. 655-656.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: IRION, Acting P. J. BUCHANAN, J.


Summaries of

Kashay v. Pifalo

California Court of Appeals, Fourth District, First Division
Jun 27, 2024
No. D081709 (Cal. Ct. App. Jun. 27, 2024)
Case details for

Kashay v. Pifalo

Case Details

Full title:LYNN KASHAY, Plaintiff and Appellant, v. JAMES PIFALO, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jun 27, 2024

Citations

No. D081709 (Cal. Ct. App. Jun. 27, 2024)