Opinion
A151315
07-16-2018
JAMES KARIM MUHAMMAD, Plaintiff and Appellant, v. EDEN HOUSING MANAGEMENT, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. C08-00943)
This is the fourth appeal we have considered in this matter. Plaintiff James Karim Muhammad, acting in pro. per., sued the manager of his apartment complex, defendant Eden Housing Management, Inc. (Eden) and two of its employees in connection with an alleged assault by one of its employees. A jury found in favor of Muhammad on his negligent supervision claim against Eden and awarded him $10,000 in noneconomic damages.
In this appeal, Muhammad asserts Eden's denial of certain allegations in its verified answer filed in November 2008 amounted to perjury. He contends the trial court abused its discretion by refusing to instruct the jury on perjury and not allowing the jury to determine whether Eden committed perjury. Muhammad asserts other claims of error, including that the trial court improperly denied various motions to strike Eden's answer. We conclude all of Muhammad's contentions lack merit, and accordingly, affirm the judgment.
I. BACKGROUND
We set forth only the facts relevant to this appeal. We incorporate by reference our nonpublished opinions in Muhammad's three prior appeals: Muhammad v. Eden Housing Management, Inc. (Aug. 27, 2009, A123321) (Eden Housing I) (affirming trial court's order vacating default judgment against Eden); Muhammad v. Eden Housing Management, Inc. (June 24, 2013, A134508) (Eden Housing II) (reversing judgment following bench trial and remanding for jury trial); and Muhammad v. Eden Housing Management, Inc. (June 26, 2015, A141997) (Eden Housing III) (reversing grant of summary judgment in Eden's favor after prior summary judgment motion on same facts and causes of action had been denied).
In April 2008, Muhammad filed a complaint against defendants Eden, Toni Cummings, and Mary Louise Green-King, alleging causes of action for negligent failure to supervise, battery, slander, and elder abuse. The complaint alleged Cummings, while working for Eden, hit Muhammad in the head with her fist. After Eden failed to timely respond to the complaint, Muhammad moved for entry of default, which was entered by the clerk. The court subsequently entered a default judgment for $1 million plus costs against Eden.
In September 2008, Eden moved to set aside the default judgment. As part of his opposition to Eden's motion, Muhammad noticed a motion to strike Eden's proposed answer. The trial court vacated the default judgment, which order we subsequently affirmed on appeal in Eden I, supra, A123321. In its order setting aside the default judgment, the court ordered Eden to file its answer within five days. Eden filed a verified answer within the time permitted.
Approximately a month later, the trial court issued an order denying Muhammad's motion to strike Eden's answer. The court's order stated: "Defendant Eden Housing, Inc. filed its Answer to plaintiff's Verified Complaint on November 3, 2008. Plaintiff had filed his Motion to Strike in conjunction with his Opposition to Defendant's Motion for Relief from Default Judgment. Plaintiff's Motion to Strike was directed at the Proposed Answer attached to Defendant's Motion for Relief from Entry of Default Judgment. On October 28, 2008, the Court granted defendant's Motion for Relief from Entry of Default Judgment and ordered Defendant to file its Answer within five (5) days from the date of hearing. Defendant complied with the Court's order and filed its Answer to plaintiff's Verified Complaint. Plaintiff's Motion to Strike is denied."
After further proceedings and two more appeals, Muhammad's case proceeded to a three-day jury trial on damages in May 2017. The jury awarded him $10,000 in noneconomic damages.
Eden admitted liability on Muhammad's negligent supervision and battery claim.
II. DISCUSSION
A. Failure to Instruct on Perjury
Muhammad contends the trial court abused its discretion by failing to instruct the jury on perjury and not allowing the jury to determine whether Eden committed perjury in its answer to his complaint. In paragraph 3 of his verified complaint, Muhammad alleged: "Toni Cummings [according to information and belief] was a natural person, a citizen of the United States of America, doing business as a landlord in Contra Costa County[,] City of Richmond, State of California; and the said defendant, while in Contra Costa County, . . . was acting in a supervisory capacity over Eden Housing apartment and Mary Louise Green-King in Contra Costa County, City of Richmond, State of California." In paragraph 4, he alleged: "Mary Louise Green-King [according to information and belief] was a natural person, a citizen of the United States of America, doing business as apartment manager of plaintiff's residence, in Contra Costa County, City of Richmond, State of California; and while in Contra Costa County . . . did commit acts which affect the contractual rights and/or privileges affecting the plaintiff and the defendant, Eden Housing Inc [sic] mandating a determination by this Court of the rights and duties between said plaintiff and each defendant named." Eden's verified answer denied the allegations of both paragraphs 3 and 4 based on lack of information or belief. Muhammad contends Eden's denial was perjurious because Eden, through its representative, falsely stated under oath that it lacked sufficient information to determine Cummings and Green-King were natural persons.
On the first and second days of trial, the trial court denied Muhammad's request for a special verdict form on whether Eden committed perjury, stating it was not appropriate because perjury was not an element of his cause of action for negligence. The court did, however, allow Muhammad to present evidence regarding the veracity of Eden's answer for impeachment purposes as to the witness who signed the verification, Terese McNamee. During trial, Muhammad examined McNamee about her knowledge that Cummings was a real person.
After the close of evidence, Muhammad provided some proposed jury instructions to the court. The trial court rejected Muhammad's proposed instructions because they were criminal jury instructions, which the trial court stated would confuse the jury, and had "no legal application" in the case. In his closing argument, Muhammad asked the jury to consider whether McNamee was telling the truth when she said Cummings and Green-King were not real persons, arguing the issue was "the most important" issue for the jury and was relevant because had she told the truth he would have been able to serve Cummings and Green-King with the complaint in the action.
Muhammad's argument that Eden's false answer hampered his ability to serve Cummings and Green-King is not well taken, as it is irrelevant to the question of Muhammad's damages from Eden's employees' conduct—the only issue the jury was tasked with considering.
For several reasons, we reject Muhammad's claim the trial court abused its discretion by refusing to instruct the jury on perjury and denying the jury the opportunity to decide whether Eden's answer was perjury. First, Muhammad failed to include any jury instructions in the record. His opening brief lists a series of 50 CALJIC jury instruction numbers, but does not cite to any reference in the record demonstrating these were the instructions before the trial court. Accordingly, we cannot evaluate his claim. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678 (Bullock) ["An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the court's rulings on proposed instructions."].) Further, Muhammad apparently concedes the instructions were criminal jury instructions, but Muhammad's sole cause of action was a civil claim for negligence. He does not explain why any of the criminal instructions he selected would be relevant to his case. (See, e.g., Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 334 [court in civil action properly refused instructions that included Veh. Code excerpt relevant only in criminal proceedings].) Finally, we reject Muhammad's claim the trial court erred by refusing to substitute a proper jury instruction. The trial court generally has no sua sponte duty to instruct or modify a proposed instruction in a civil case. (Code Civ. Proc., § 607a; Bullock, at pp. 684-685; Conservatorship of George H. (2008) 169 Cal.App.4th 157, 162.)
Muhammad alternately states he requested 59 or 56 jury instructions but his brief enumerates only 50 separately numbered instructions.
Regardless, even if the trial court erred in refusing to instruct the jury, we may reverse only if the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Muhammad argues Eden's denials "on information and belief" were false because Eden was on "constructive notice" Cummings and Green-King were real people. While this may be true, the same paragraphs in the complaint also alleged Cummings was a "landlord" and Green-King "did commit acts which affect the contractual rights and/or privileges affecting the plaintiff and the defendant." McNamee testified she knew Cummings was a real person when she signed the answer, but denied the allegations of paragraph 3 because Cummings was not doing business as a landlord. Though a blanket denial of all allegations in the paragraphs 3 and 4 may have been inelegant pleading (see, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 6:422, p. 6-129 ["paragraph-by-paragraph denials are proper only where nothing in the paragraph is true. If any part of it is true, a specific denial is required."]), it is unlikely any juror would conclude Eden intended to deny Cummings and Green-King were real persons. Nor does Muhammad explain how McNamee's testimony about her verification of the answer was relevant to the amount of damages he suffered from being hit by Cummings. In any event, the trial court allowed Muhammad to present his evidence regarding Eden's purportedly false answer and argue the issue to the jury in closing. In light of these facts, there is no reasonable probability the jury would have reached a different conclusion but for the alleged instructional error. B. Muhammad's Other Contentions
Muhammad did not ask McNamee why she denied the allegations of paragraph 4.
Muhammad's lengthy opening and reply briefs raise a host of other purported errors and abuses of discretion by the trial court over the 10 years since he filed his complaint in this action, primarily concerning repeated denials of motions to strike Eden's answer and similar motions. Most of his contentions are conclusory arguments, unsupported by legal authority or reasoned analysis, and thus, are forfeited. (Niko v Foreman (2006) 144 Cal.App.4th 344, 368 [appellant "cannot simply say the court erred, and leave it up to the appellate court to figure out why"]; Bullock, supra, 159 Cal.App.4th at p. 685 ["An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority."].)
To the extent we can discern Muhammad's arguments, we disagree with them. He argues, for example, this court should "recall[ ], vacate[ ], and reverse[ ]" our prior opinion in Eden Housing I because of "extrinsic fraud" by the trial court. He apparently contends the trial judge committed fraud by stating, "Defendant's proposed answer and supporting papers are before the court" in its order vacating the default judgment, knowing that was not true because the proposed answer was not verified. We previously addressed Muhammad's argument regarding the validity of Eden's proposed "unverified" answer in Eden Housing I, however, and will not revisit that issue. (People v. Boyer (2006) 38 Cal.4th 412, 441 [law of the case doctrine prevents parties from seeking appellate reconsideration of an issue already decided in the same case absent significant change in circumstances]; see Eden Housing I, supra, A123321; Eden Housing III, supra, A141997.)
Muhammad also contends the trial court committed "fraud" by (1) denying his motion to strike Eden's answer without giving him notice and an opportunity to be heard; and (2) by falsely stating the court had Eden's proposed answer before it on October 28, 2008, when the actual answer was not filed until November 3, 2008, five days later. Muhammad cites no evidence he was denied notice of a hearing on his motion to strike. In addition, the record reflects Eden's proposed answer was filed with its motion to vacate the default judgment, and Eden filed its answer on November 3, 2008. Thus, we fail to see how the trial court's December 3, 2008 order stating as much "acknowledges fraud on the part of the judge."
Muhammad's motion to strike the proposed answer was filed on October 2, 2008, as part of his opposition to Eden's motion to set aside the default judgment. --------
Under a heading titled "Elder Abuse Was Improperly Stricken," Muhammad asserts the trial court abused its discretion because the trial judge failed to "judicially notice" his allegation he was physically abused by Cummings when he was 74 years of age and report the physical abuse to local law enforcement as required by Welfare and Institutions Code section "15630(b)(A)(1)." The trial judge does not, however, come within the meaning of a "mandated reporter" as defined by that section. (See Welf. & Inst. Code, § 15630, subd. (a) ["Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult . . . is a mandated reporter."].) Nor does Muhammad explain how such facts relate to an argument the trial court improperly struck his elder abuse claim.
Finally, at various points, Muhammad contends the judges who have made rulings in his case have done so only because they "didn't want to." Muhammad's assertion is unsupported by the orders he cites in the record, and other than as discussed above, he fails to explain why any of the referenced decisions constitute reversible error. In such circumstances, we treat the argument as waived. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [trial court judgments are presumed correct; appellate briefs must provide cogent legal arguments and citations to authority in support of positions taken].)
III. DISPOSITION
The judgment is affirmed. Muhammad is to bear the costs of appeal.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.