Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC075454, Bert Glennon, Jr., Judge.
Richard Menna, in pro. per., for Plaintiff and Appellant.
Law Offices of Robert A. Walker, Robert A. Walker for Defendant and Respondent.
BOREN, P.J.
INTRODUCTION
Plaintiff, Richard Menna, was a long-term tenant in an apartment building subject to rent control restrictions. Trouble arose between Menna and the defendant, Matthew Radmanesh, shortly after Radmanesh purchased the building. Radmanesh attempted to impose conditions on Menna’s use of the property, to which Menna vigorously objected.
Radmanesh and Menna entered into an agreement which purported to clarify the terms of Menna’s tenancy and which raised his rent. Unfortunately, Menna and Radmanesh’s bickering continued. More than two years after signing the agreement, Menna had a physical altercation with the property manager, and Radmanesh filed an unlawful detainer action. Menna initially enthusiastically opposed the action, but after losing several rulings he came to the conclusion that he was not getting a fair shake. He and Radmanesh entered into a settlement agreement resolving the unlawful detainer action. Menna agreed to leave the apartment within nine months, but preserved potential claims against Radmanesh.
Just before he was to vacate the apartment, Menna filed this action, asserting 13 causes of action. Radmanesh successfully moved for summary adjudication on a number of causes of action, and by the time the case was submitted to the jury only three causes of action remained. The jury found against Menna on his wrongful eviction and intentional infliction of emotional distress claims, but found that Radmanesh had imposed a rent increase that violated the applicable rent stabilization ordinance. After briefing, the trial court awarded Menna $5,545.11 in damages.
Menna makes a number of arguments on appeal, many of which do not meet the level of cogency necessary to be addressed by this court. Of the issues we do address, we find that the trial court’s rulings on summary adjudication do not compel reversal, that Menna’s argument regarding the constitutionality of the term “nuisance” is misplaced, and that the trial court did not commit reversible error in calculating the amount of damages owing to Menna. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The apartment and the parking spaces
Plaintiff and appellant Richard Menna lived in a rent-controlled three-bedroom apartment in Van Nuys since approximately 1989.
During his tenancy, Menna, a former contractor, customized the apartment in a somewhat unique manner. He paneled the walls with between 300 to 400 square feet of aromatic cedar closet lining. He added wall mirrors, track lighting, and a mural. He spent several days painting the kitchen cabinets with multiple coats of paint to give them a “custom marbleized finish.” He had a custom security system installed. And he installed over 430 linear feet of shelving to serve primarily as a “cat run” for his three cats. The “cat run” was like a miniature version of a catwalk found in a large building. It traveled from room to room high up on the walls, and passed through at least one hole that Menna cut in a wall separating the living room from the hallway. Menna testified that the cats really enjoyed the cat run.
Menna also maintained a large collection of personal items at the apartment building. In addition to his three-bedroom apartment, he utilized two and a half parking spaces to store his miscellany (the other “half” of the partial parking spot housed the apartment dumpster). In his parking spots, Menna kept an inoperable 1967 Chevy Suburban (which itself was used to store tools and kite surfing equipment), three motorcycles, a moped, several bicycles, construction equipment, a stucco mixer, auto parts, paint buckets, and several cabinets.
Menna’s lifelong friend Michael Neuhoff owned the apartment building until 2002, when he sold it to defendant and respondent Matthew Radmanesh.
Conflict between Menna and Radmanesh
In contrast to the good relationship he enjoyed with Neuhoff, Menna and Radmanesh were frequently at odds. Neuhoff testified that Radmanesh told him he wanted Menna out of the apartment. Shortly after Radmanesh purchased the building, Radmanesh instructed Menna to register and tag the Suburban and to clean up the parking spots. Menna testified that Radmanesh instituted other new rules, including restrictions on pets and new, more stringent payment requirements. Menna felt that Radmanesh was trying to force him out because Menna had a rent-controlled apartment that rented for substantially below fair market value.
Although Menna did not accede to all of Radmanesh’s rules and demands, the two did negotiate and enter into a written agreement in February 2003. The agreement provided that Menna could store possessions in his parking area and keep pets. It further provided that Menna would pay an additional $114 per month for rent (for a total of $860 beginning March 2003), that the rent could be increased in accordance with the applicable rent control ordinance, that Menna would cover his Suburban so only the wheels were visible, and that he would reduce the volume of his possessions in the parking area by 50 percent.
Unfortunately, this agreement did not put an end to the strife. Menna stated that Radmanesh’s management company had a pattern of displaying no consideration for the tenants. As examples, Menna testified that workers entered his apartment and left the door open so that his cat could have escaped; that they ignored repeated requests to fix the mailboxes and make other repairs; that they would send upsetting notices, giving 24 hours’ notice that they intended to enter his apartment; that they would leave extension cords lying across the top of the stairway or in the middle of a hallway; that they would leave wet paint without posting a sign warning tenants; that they would throw garbage in his half of the dumpster-burdened parking space; and that they would set the lawn sprinklers so they splashed on tenants’ vehicles, giving them water spots. Menna sent many letters to Radmanesh complaining about this and other behavior.
At trial, a number of property management employees testified to problems they had had with Menna at the apartment building, including loud yelling and threatening behavior.
August 2, 2005
On August 2, 2005, Jaime Rodriguez, the property supervisor in charge of the apartment building, and one of his workers, Enrique Gomez, responded to a complaint by Menna regarding the temperature of the water in his shower. Gomez initially went by himself to the apartment, but when he saw Menna waiting, he left to get Rodriguez. Anticipating problems, Menna readied a microcassette recorder. After Gomez returned with Rodriguez, the three walked to the bathroom. Rodriguez and Gomez turned on the shower and felt the water, and said it was warm enough. Menna disagreed.
At that point, Menna noticed that Rodriguez had a camera. Menna told Rodriguez there was “absolutely no way” he could take any photographs of Menna’s apartment. Menna then informed Rodriguez and Gomez that he would be taping their conversation and turned the recorder on. After arguing about whether the taping was proper, Rodriguez brushed past Menna and started walking down the hallway toward the front door. Menna followed directly behind him, with Gomez following Menna. As they walked down the hallway, Rodriguez noticed the hole in the wall for the cat run, and thinking it was strange, stopped and raised his camera to take a picture.
What happened next was a matter of dispute. Menna testified that he reached around in front of Rodriguez to block the camera and accidentally bumped into him from behind. Rodriguez testified that he felt a punch in his lower back and that Menna started pushing him, and Gomez testified that Menna used his elbow to strike Rodriguez in the lower back and pushed him.
The tape recording, which apparently included only a portion of the incident, was played for the jury. It did not shed much light on what happened.
Rodriguez then told Menna he was making a citizen’s arrest. Menna told them to get out of apartment and tried to call the police. Rodriguez and Gomez left the apartment and Rodriguez called the police himself. Police officers arrived, handcuffed Menna, and took him into custody pursuant to Rodriguez’s citizen’s arrest. After spending about seven hours in jail, Menna was released.
The unlawful detainer action
On August 17, 2005, Radmanesh filed an unlawful detainer action against Menna. The complaint, which was verified by Rodriguez, alleged that Menna had used the premises in a manner constituting a nuisance. The complaint attached a three-day notice to quit, which was served on Menna on August 8, 2005, and described the alleged nuisance as the events that occurred on August 2, 2005.
Initially, Menna vigorously opposed the unlawful detainer action, filing a motion to quash service of summons and a demurrer, and also propounding discovery to Radmanesh. After Menna lost various motions, however, he became frustrated with the process, felt that the judge was against him, and felt certain he would lose the action. So, while represented by counsel, he entered into a stipulated settlement agreement with Radmanesh.
The agreement, which was entered December 2, 2005, allowed Menna to remain in the apartment until September 2, 2006, by which date he was to vacate it. According to its terms, the agreement reflected resolution of all claims advanced in the complaint, but no other claims. Neither party admitted any liability, and no party was deemed to be the prevailing party. The agreement further provided that Menna would have the right to seek relief in a new and separate action.
Menna moved out of the apartment on approximately September 17, 2006.
The instant action
On August 9, 2006, Menna filed the original complaint in this action. The operative first amended complaint, which was filed in November 2006, contained 13 causes of action for: 1. negligence; 2. negligent infliction of emotional distress; 3. intentional infliction of emotional distress; 4. false arrest; 5. abuse of process; 6. malicious prosecution; 7. wrongful eviction; 8. wrongful eviction in violation of public policy; 9. violation of Los Angeles rent stabilization ordinance; 10. breach of contract; 11. breach of the implied covenant of good faith and fair dealing; 12. unfair competition; and 13. unfair business practice. The unfair competition and unfair business practices causes of action were effectively identical, relying on the same allegations and with the latter claim incorporating the former.
Much of the first amended complaint centered around the events of August 2, 2005, and the subsequent unlawful detainer proceeding. The first amended complaint alleged that throughout the unlawful detainer proceeding Radmanesh violated the California Rules of Court, local court rules, and the Code of Civil Procedure, and it stated that Menna was coerced into signing the stipulated settlement agreement by Radmanesh’s litigation conduct. The first amended complaint also alleged that the February 2003 agreement between Menna and Radmanesh imposed an improperly high rent increase on Menna and thereby violated the Los Angeles Rent Stabilization Ordinance.
Radmanesh did not file an anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16 or place much, if any, emphasis on the litigation privilege of Civil Code section 47, subdivision (b)(2).
Radmanesh filed a motion for summary adjudication, which was granted and which disposed of the following causes of action: 4. false arrest; 5. abuse of process; 6. malicious prosecution; 11. breach of the implied covenant of good faith and fair dealing. The trial court also ruled that Menna could not seek damages on behalf of other individuals for the unfair competition/unfair business practices claim.
Radmanesh later successfully made a motion in limine to further limit the amount of recovery that could be sought in the unfair competition/unfair business practices claim, and the entire claim was eventually withdrawn. Menna’s breach of contract claim was withdrawn as well.
Trial commenced on April 7, 2009. After plaintiff’s presentation of evidence, the defense made a motion for nonsuit. The motion was granted in part and pared down the causes of action remaining to three: 3. Intentional infliction of emotional distress; 7. Wrongful eviction; and 9. Violation of Los Angeles Rent Stabilization Ordinance. These three claims formed the content of the special verdict form jointly prepared by the parties and submitted to the jury.
The jury returned its special verdict on April 15, 2009, wherein it found in favor of Radmanesh on the wrongful eviction and intentional infliction of emotional distress claims, and in favor of Menna on the violation of Los Angeles rent stabilization ordinance claim. The parties agreed that the trial court, rather than the jury, should determine the amount to be awarded to Menna for the violation of rent stabilization ordinance claim. After briefing, the court awarded Menna $5,545.11, and a judgment on special verdict was entered on June 19, 2009.
Menna filed a motion for new trial, which was denied. He also filed a motion for attorney fees, which was denied as well. Menna’s appeal is timely.
DISCUSSION
Menna is acting in propria persona on appeal and apparently prepared his opening and reply briefs himself, which may explain their somewhat shotgun approach. The briefs refer to a host of issues that Menna feels were improper, but many of these references do not contain cogent legal argument or citations to the record or pertinent legal authority. We cannot develop appellant’s arguments for him and will not address passing references to perceived wrongs. (See First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1 [appellant’s status as appearing in propria persona does not provide a basis for preferential consideration]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.)
Menna has raised several issues which we will address, however. Menna argues that the trial court improperly granted summary adjudication in favor of Radmanesh. He also argues that the definition of “nuisance” found in Civil Code section 3479 is unconstitutional, particularly when employed in conjunction with the unlawful detainer statute at Code of Civil Procedure section 1161, subdivision 4. Menna further contends that the trial court improperly calculated the amount of damages awardable for the violation of the rent stabilization ordinance. We address each of these issues in turn.
I. The trial court’s rulings on summary adjudication do not compel reversal.
Menna argues that the trial court erred in granting summary adjudication on his fifth cause of action for abuse of process, the sixth for malicious prosecution, and the 11th for breach of the implied covenant of good faith and fair dealing. He also contends that the trial court could not properly dismiss the 12th and 13th causes of action for unfair business practices and unfair competition to the extent that these causes of action sought relief for other individuals.
As with summary judgment, we review a trial court’s rulings on summary adjudication de novo. (Marie Y. v. General Star Indemnity Co. (2003) 110 Cal.App.4th 928, 949; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Doubts are resolved in favor of the party opposing the judgment, and we are not bound by the trial court’s reasons for the summary adjudication ruling. (Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 97; M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703–704; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 85.) The issues to be addressed by a motion for summary adjudication are determined by the pleadings. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 629.)
In the trial court, a defendant moving for summary adjudication must show that one or more elements of the plaintiff’s cause of action cannot be established, or that the cause of action is subject to a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) The defendant may present affirmative evidence that negates an essential element of the plaintiff’s claim (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334), or may submit evidence that the plaintiff does not possess and cannot reasonably obtain evidence needed to establish the element. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The burden then shifts to the plaintiff to show a triable issue of fact as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2).)
Even if the appellant did not initially bear the burden on summary adjudication in the trial court, he bears the burden of showing error on appeal. (Claudio v. Regents of University of California, 134 Cal.App.4th 224, 230.) The fact that we review a summary adjudication ruling de novo does not obligate us to attempt to find triable issues on behalf of the appellant. Rather, it is the appellant’s responsibility to affirmatively demonstrate error. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
A. Abuse of Process
Menna argues that Radmanesh failed to meet his initial burden in moving for summary adjudication on the abuse of process cause of action and that, in any event, Menna established there were triable issues of material fact.
An abuse of process claim arises when the court’s process is used for a purpose other than that for which it was designed. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057.) “To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Id. at p. 1057.)
Menna’s abuse of process claim was based on an assertion that Radmanesh’s filing of the underlying unlawful detainer action was wrongful because his purposes were to circumvent rent control requirements and to harm Menna. In moving for summary adjudication, Radmanesh argued that Menna was unable to prove that Radmanesh improperly used a legal process to accomplish a purpose for which the action was not designed. In support of this argument, Radmanesh submitted evidence of the unlawful detainer action, the settlement of that action, and the fact that Radmanesh thereafter was given possession of the apartment.
Menna opposed the motion primarily by arguing that the facts in the unlawful detainer action would not have supported a judgment in favor of Radmanesh. On appeal, Menna also argues that the unlawful detainer action was used for the illegitimate objective of evicting Menna to circumvent rent control requirements and commit other wrongs.
Summary adjudication was properly granted. Menna’s argument below and on appeal demonstrates a misunderstanding of the basis for an abuse of process claim. “Although initiating a meritless claim for an improper purpose can expose a party to damages for malicious prosecution, the mere initiation of a lawsuit, even for an improper purpose, does not support a claim for abuse of process.” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 520.)
Menna’s argument that Radmanesh possessed an improper motive in initiating the unlawful detainer action was insufficient to avoid summary adjudication. The unlawful detainer action was used for the purpose for which the process was designed—recovering possession of Menna’s apartment. If Menna felt the unlawful detainer action was improper or frivolous, he had the right to oppose it. Instead of continuing to oppose the unlawful detainer action, however, Menna entered into a stipulated settlement wherein he agreed to vacate the premises, thereby effecting the purpose of a successful unlawful detainer action.
No abuse of process claim could survive given these facts, and summary adjudication was properly granted.
B. Malicious Prosecution
Menna’s malicious prosecution cause of action alleged that Radmanesh abused the legal process by wrongly and maliciously initiating the unlawful detainer action against him. In moving for summary adjudication, Radmanesh argued that Menna was unable to establish all of the required elements of malicious prosecution because the settlement of the underlying action reflected that there was not a termination of the action in Menna’s favor. Radmanesh submitted evidence showing that the underlying case was settled, giving eventual possession of the apartment to Radmanesh.
The court did not err in adjudicating this cause of action in favor of Radmanesh. Menna argues that the unlawful detainer action was resolved in his favor, despite the fact the settlement required Menna to vacate the premises by September 2006. This position is untenable. Even if we were to disregard the terms of the stipulated settlement and assume that the terms of the settlement were generally favorable to Menna, Menna has not cited to any authority for the proposition that a malicious prosecution claim would lie.
In order to prove malicious prosecution, a plaintiff must establish that the underlying case brought by the malicious prosecution defendant was: (1) pursued to legal determination in favor of the plaintiff; (2) brought with no probable cause; and (3) initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.)
“[A] dismissal resulting from negotiation, settlement or agreement is generally not deemed a favorable termination of the proceedings.” (Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335.) This is because a dismissal based on settlement generally leaves open the question of the defendant’s liability. (Id. at p. 1336.) When a termination is not substantive, but is rather technical or procedural, as is the case with nearly any dismissal from settlement, a malicious prosecution claim does not arise. (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 342.)
There was no basis to find that Menna pursued the underlying action to a termination in his favor. When we examine the terms of the stipulated settlement, it becomes even clearer that Menna could not establish a malicious prosecution claim. The settlement required Menna to vacate the apartment by September 2006 and it prohibited him from challenging Radmanesh’s right to the premises. It provided that neither party admitted any liability and, most importantly, stated “no party hereto shall be deemed for any purpose to be the prevailing party in this lawsuit.” Hence, summary adjudication was properly granted on this claim.
C. Breach of the Implied Covenant of Good Faith and Fair Dealing
Although the section of Radmanesh’s motion for summary adjudication dealing with the breach of the implied covenant of good faith and fair dealing cause of action was not a model of clarity, we find that the trial court’s summary adjudication of this cause of action does not provide a basis for reversal.
Radmanesh correctly noted that the subject of Menna’s breach of the implied covenant claim was largely identical to Menna’s separate breach of contract claim, and cited authority for the principle that, in nearly any situation outside of the insurance context, damages for breach of the implied covenant are not recoverable aside from those that arise from breach of contract. Menna’s opposition provided no basis for departing from this rule, and the trial court accordingly granted summary adjudication on the claim.
Radmanesh’s motion did not primarily rest on the premise that Menna could not establish a factual basis for the breach of implied covenant claim, but rather that the claim failed to state an independent cause of action. Since a motion for summary adjudication may be treated as a motion for judgment on the pleadings (Cordova v. 21st Century Ins. Co. (2005) 129 Cal.App.4th 89, 109; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5), this does not compel reversal.
“The covenant of good faith and fair dealing cannot impose substantive terms and conditions beyond those to which the parties actually agreed.” (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 39.) “Because the covenant of good faith and fair dealing essentially is a contract term that aims to effectuate the contractual intentions of the parties, ‘compensation for its breach has almost always been limited to contract rather than tort remedies.’ [Citations.]” (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43.) Thus, in the noninsurance context, a breach of the implied covenant claim is generally duplicative of and superfluous to a breach of contract cause of action. (See Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1344; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 352-353.)
That was the case here. Menna’s breach of the implied covenant cause of action was based on the same alleged activity as his breach of contract claim. Menna could not use the breach of the implied covenant claim to expand the scope of the terms and conditions of the alleged agreement.
In the trial court, Menna argued that Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 631, provided a basis for him to seek tort damages for a breach of the implied covenant claim. Not so. Subsequent to Rogoff, the California Supreme Court explicitly limited the types of cases in which a tortious breach of the implied covenant claim could be asserted. In Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102, the court iterated a “general rule precluding tort recovery for noninsurance contract breach, at least in the absence of violation of ‘an independent duty arising from principles of tort law’ [citation] other than the bad faith denial of the existence of, or liability under, the breached contract.” This rule established a nearly universal prohibition on tort recovery for noninsurance contract breach. Appellant has cited to no authority in which a rental agreement was found to fall within the exception to this rule, and never adequately explained how his claim was based on a violation of an independent duty arising from principles of tort law. Therefore, since Menna’s breach of the implied covenant claim was effectively duplicative of his breach of contract claim, there is no ground for reversal.
D. Unfair Business Practices/Unfair Competition
With respect to the essentially identical unfair business practices and unfair competition causes of action, Radmanesh argued that Menna could not pursue representative claims because he had not complied with Code of Civil Procedure section 382, as is required by Business and Professions Code section 17203. Radmanesh further argued that since Menna was litigating the case as a nonlawyer in propria persona, he could not represent a class of plaintiffs. The trial court agreed and granted summary adjudication on the unfair business practices/unfair competition claim to the extent it sought relief for others.
A litigant may pursue representative claims pursuant to Business and Professions Code section 17203 only if he or she “complies with Section 382 of the Code of Civil Procedure.” In order to comply with section 382, which allows for the bringing of a class action lawsuit, a plaintiff must comply with California Rules of Court rule 3.760 et seq. (See Arias v. Superior Court (2009) 46 Cal.4th 969, 977-980.) Among other requirements, a complaint in a class action must describe how the requirements for class certification are met, and a motion for class certification must be made. (Cal. Rules of Court, rules 3.761, 3.764)
As noted above, a motion for summary adjudication may be treated as a motion for judgment on the pleadings. (Cordova v. 21st Century Ins. Co., supra, 129 Cal.App.4th at p. 109; Saltarelli & Steponovich v. Douglas, supra, 40 Cal.App.4th at p. 5.) Such a motion is a proper method for disposing of invalid class allegations. (See Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1201-1202.) Up through and after the filing of Radmanesh’s motion for summary adjudication, Menna did not did not file a motion for class certification or attempt to amend his complaint to properly allege a class action. These failures prevent him from now seeking to litigate the claim on behalf of others. (See Lee v. Bank of America (1994) 27 Cal.App.4th 197, 215-216 [prior request to amend required in order to reverse to allow leave to amend].)
Even if Menna had sought to comply with the class action requirements, he would have been unsuccessful in his attempt to bring a representative claim. For much of the trial court proceedings, including at the time of filing the first amended complaint and the opposition to the motion for summary adjudication, Menna was in propria persona. It is a well established rule that, while a nonlawyer may represent himself individually, he may not represent others. (Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830; J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965.) Therefore, Menna could not bring a representative action, and the trial court did not err in granting Radmanesh’s motion.
II. Constitutionality issues.
Next, Menna asks us to declare Civil Code section 3479 unconstitutional, particularly as it may apply to Code of Civil Procedure section 1161, subdivision 4. Civil Code section 3479 provides a definition of “acts constituting nuisance” and Code of Civil Procedure section 1161, subdivision 4, outlines conditions, including nuisance, which can give rise to an unlawful detainer action.
Menna’s focus on this issue is puzzling. There was no unlawful detainer cause of action at issue in the subject litigation, and “nuisance” was not an element of any of Menna’s claims. At most, Civil Code section 3479 played only a peripheral role in the case on appeal. Indeed, Menna’s argument on this issue is primarily based on the proposition that because his previous unlawful detainer action with Radmanesh was unfair, he was forced to settle that case. Thus, Menna is essentially asking us to review the propriety of the underlying, settled unlawful detainer action, and specifically review whether the standard employed in that action was constitutional.
It would be inappropriate to decide that issue here. Menna had the opportunity to contest the unlawful detainer, and the issue of whether his conduct constituted a nuisance was precisely the question to be determined in the unlawful detainer proceedings. (Cook v. City of Buena Park (2005) 126 Cal.App.4th 1, 6.) Menna resolved the matter through a settlement agreement. Although it appears he now regrets entering into the settlement agreement, that ship sailed a long time ago. Menna did not, as he could not, file a notice of appeal in this matter that encompassed that earlier matter, and we do not have jurisdiction to review the earlier case. (Code Civ. Proc., § 906.)
To the extent that Civil Code section 3479 was implicated in the case on appeal, its incidental relationship to the issues does not rise to a level that would lead us to decide its constitutionality. This court may decline to resolve matters that are unnecessary to the appeal. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 259.) This rule has particular force when a question of constitutionality is presented. As correctly noted by Menna, the court does not decide constitutional questions when other grounds are dispositive of the issues. (California State Electronics Assn. v. Zeos Internat. Ltd. (1996) 41 Cal.App.4th 1270, 1274; Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [“It has heretofore been considered against the policy of this court (and of courts of last resort generally) to reach out and unnecessarily pronounce upon the constitutionality of any duly enacted statute]”.) This case certainly did not hinge on the constitutionality of Civil Code section 3479 or Code of Civil Procedure section 1161, subdivision 4.
Menna argues that he raised the issue of constitutionality in a motion in limine, which was denied. The usual function of a motion in limine is to exclude evidence deemed inadmissible and prejudicial. (People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670-672.) Although the scope of potential motions in limine is relatively broad, Menna has cited no authority for the proposition that a motion in limine can be brought for the purposes of declaring a statute unconstitutional. The motion in limine at issue was captioned as one to exclude evidence, which in the abstract would have been fine. However, the thrust of the motion was not to exclude evidence, but rather to have Civil Code section 3479, Code of Civil Procedure section 1161, subdivision 4, and Los Angeles Municipal Code section 151.09 declared unconstitutional. The trial court did not err in denying the motion on the basis that it was improper.
Although it is not entirely clear from the record, it appears that the definition for “nuisance” which was at issue in the underlying litigation was primarily one found in the version of Los Angeles Municipal Code section 151.09 in effect in 2005, not the one found in Civil Code section 3479.
Menna also points out that a jury instruction defining the term “nuisance” was given. “Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) The subject jury instruction contained no clear error, much less an error likely to affect the verdict. The instruction seems to have been composed of a combination of Civil Code section 3479 and the then-effective Los Angeles Municipal Code section 151.09, subdivision A.3. The record indicates that the jury instruction was jointly prepared by the parties, and there was no objection to the instruction at issue. Given that there was no clear error in the instruction, which was jointly proposed, Menna may not now raise it as a basis for reversal. (Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 296-297.)
III. The amount of damages.
The Los Angeles Rent Stabilization Ordinance is found in chapter XV of the Los Angeles Municipal Code. The ordinance provides, in pertinent part: “Any person who demands, accepts or retains any payment of rent in excess of the maximum rent or maximum adjusted rent in violation of the provisions of this chapter, or any regulations or orders promulgated hereunder, shall be liable in a civil action to the person from whom such payment is demanded, accepted or retained for damages of three times the amount by which the payment or payments demanded, accepted or retained exceed the maximum rent or maximum adjusted rent which could be lawfully demanded, accepted or retained together with reasonable attorney[] fees and costs as determined by the court.” (L.A. Mun. Code, § 151.10, subd. A.)
After the jury returned its special verdict in favor of Menna on the violation of rent stabilization ordinance claim, the parties briefed the amount of damages awardable to Menna under the Rent Stabilization Ordinance. Radmanesh argued that Menna should be awarded $5,545.11. This sum was made up of two components: (1) the amount of rent that Menna paid monthly in the year preceding the lawsuit (September 2005 to September 2006) less the amount he could have legally been charged, trebled; plus (2) the amount Menna paid monthly in the two years prior (September 2003 to August 2005) less the amount he could have been charged, untrebled. Radmanesh contended that these two separate amounts were called for by (1) Code of Civil Procedure section 340, subdivision (a), which provides a one-year statute of limitations for an “action upon a statute for a penalty or forfeiture, ” and (2) Code of Civil Procedure section 338, subdivision (a), which provides a three-year statute of limitations for an “action upon a liability created by statute, other than a penalty or forfeiture.” Menna, on the other hand, argued that the statute of limitations never began to run at all since Radmanesh “retained” all improper rent payments from March 2003, the date the rent was increased. Menna contends that the award should be for $18,162, a sum made up of the entire amount of rent that Menna paid from March 2003, less the amount he would have paid if his rent had never increased from $746 in March 2003, trebled. The trial court sided with Radmanesh and awarded $5,545.11.
On appeal, Menna first contends the trial court erred in calculating the amount of overcharged rent by subtracting the amount of rent that could have been legally charged (based upon a yearly increase commensurate with the Rent Stabilization Ordinance) from the amount that was actually charged, and then trebling that amount. The Rent Stabilization Ordinance explicitly states that damages shall be “of three times the amount by which the payment or payments demanded, accepted or retained exceed the maximum rent or maximum adjusted rent which could be lawfully demanded, accepted or retained.” (L.A. Mun. Code, § 151.10, subd. A., italics added.) Despite this seemingly clear language, Menna contends that the trial court should have arrived at its total by taking the amount of rent actually charged less a set monthly amount of $746 (the amount Menna was paying before the improper rent increase), and then trebling the total. Menna argues that no yearly rent increases could be assumed in calculating the amount that could have been lawfully charged, because in order to lawfully charge those increased amounts, Radmanesh would have had to serve notice that he was increasing the rent in a lawful amount, which he never did.
The amount that could have been charged was determined by taking the amount that Menna was paying before the initial rent increase ($746), assuming a 3 percent increase went into effect on March 1, 2003 (the date the improper increase occurred), and assuming a yearly 3 percent increase each year thereafter. Both parties contended that if yearly rate increases occurred, 3 percent was the appropriate percentage increase.
This argument has no merit. If given effect, it would completely vitiate the meaning of the phrase “which could be lawfully demanded, accepted or retained.” The approach taken by the trial court gave effect to this phrase, since it accounted for rent increases that could have lawfully occurred, had the original unlawful rent increase not occurred. The trial court did not err by calculating the amount of damages in this manner.
Menna also contends that the trial court erred by applying a statute of limitations to his violation of rent ordinance claim. Menna argues that since the ordinance targets payments “demand[ed], accept[ed] or retain[ed], ” the statute of limitations could not begin running until any improper rents that had been retained by the landlord were returned, since retaining rents is a current violation. This argument is also incorrect.
Menna’s proposed application of the ordinance would violate the purpose of the statute of limitations, which is to promote predictability and stability by creating limits on the period during which a person’s conduct may engender litigation and liability. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246.) It is well established in both contract and tort cases that the statute of limitations generally begins to run when the last fact essential to the cause of action has occurred. (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 296.) In order for the violation of the Rent Stabilization Ordinance to occur, and thus for a cause of action to accrue, Radmanesh had to demand, accept, or retain any improperly high amount of rent. Radmanesh first demanded and/or accepted an improperly high payment in approximately March 2003, and the statute of limitations for that payment began upon the acceptance or demand.
Menna never evoked the delayed discovery rule, so we need not decide whether it may have applied.
Menna’s payments were recurring. “When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.” (Hogar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th 1288, 1295.) The trial court properly accounted for this rule and allowed damages for Menna’s rent payments which did fall within the limitations period.
The trial court also did not err by applying the one-year limitations period of Code of Civil Procedure section 340, subdivision (a). This statute applies to an “action upon a statute for a penalty or forfeiture.” (Ibid.) Similar rent control ordinances which provide for trebled damages have been held subject to this same statute. (Menefee v. Ostawari (1991) 228 Cal.App.3d 239, 243-244; Sylve v. Riley (1993) 15 Cal.App.4th 23, 26.) The terms of the ordinance at issue bring it within the scope of Code of Civil Procedure section 340, subdivision (a), since nondiscretionary trebled damages of this type are a form of penalty. (Menefee, supra, at p. 244.)
In addition to finding that Code of Civil Procedure section 340, subdivision (a) allowed Menna to recover treble damages for the payments made within one year of the date the lawsuit was initiated, the trial court also allowed Menna to recover untrebled damages for rent payments exceeding the amounts that could have been charged for the prior two years pursuant to Code of Civil Procedure section 338, subdivision (a). Menna points out that the Rent Stabilization Ordinance provides only for a penalty in the form of treble damages and not for restitutionary damages. He contends the trial court thus erred by applying Code of Civil Procedure section 338, which, according to Menna, “does not apply at all.” While Menna is likely correct, the logical consequence is that the trial court should not have awarded him $2,261.16 for years two and three, and should have only awarded treble damages in the amount of $3,283.95 for the year directly preceding the lawsuit. We see no reason to grant Menna the Pyrrhic victory of reducing his own award, however. Radmanesh was the one who asserted in the trial court that Menna should receive the additional damages, and Radmanesh has not filed a notice of appeal or otherwise sought on appeal to challenge the award of these damages. For his part, Menna has not explicitly requested that his award be reduced, and therefore we will not do so.
We therefore find that the court’s calculation of Menna’s damages provides no basis for reversal.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J, CHAVEZ, J.