Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 154747
NICHOLSON, J.
Plaintiff sued her neighbor for damages suffered from distress allegedly caused by the neighbor’s dogs, his loud parties, and his noisy household. A jury ruled unanimously against plaintiff, and judgment was entered against her. She appeals, claiming the evidence does not support the verdict and alleging misconduct by both the trial court and defense counsel. We affirm the judgment.
FACTS
The first meeting between plaintiff Sandra Oswald and her new neighbors, defendant Shane Joseph Clark and his live-in girlfriend, Cassi Reynolds, did not go well. Representing herself at trial, Oswald explained that as she pulled into her driveway, she was greeted by two pit bull dogs. She got out of her car and walked towards her hose spigot. As she did, one of the dogs charged her. Screaming, she squirted the dog with the hose. She heard someone calling the dogs, and they left her yard.
Oswald saw it was her new neighbor. She asked Reynolds if the dogs were hers. Reynolds said they were and that they were friendly. Oswald disagreed, saying they had tried to attack her. She also told Reynolds she did not want the dogs in her yard.
A few hours later, Oswald heard extremely loud music coming from Clark’s house. The music had “nasty” lyrics, including “kill the old bitch.” Mortified because she had guests coming over for dinner, Oswald called the police. A few days later, Oswald sent a letter to Clark intimating she would sue if the problems could not be resolved.
Oswald claimed that over the next few years, she suffered distress due to the manner in which Clark maintained his dogs and conducted his life at his home. She asserted Clark allowed his dogs to bark incessantly throughout the day and night. They had escaped on occasion, and she feared being attacked.
The dogs were not Oswald’s only complaint. She claimed Clark had loud, late-night parties. Clark would also rev up his car late at night and speed through the neighborhood. She also asserted the swamp cooler on Clark’s home made a loud clanking noise. It was her belief Clark took these actions and did not fix his cooler because he intended to annoy her.
Oswald stated Clark verbally harassed her. He would heckle and taunt her as she walked by, including calling out profanities. She stated he called her once in the early morning hours and threatened her to come outside and fight him. On another occasion, Clark called the police on her. He stood outside her house screaming that she was crazy, this was his neighborhood, and she should go back from where she came.
Clark’s actions caused Oswald stress, fear and exhaustion. She claimed the stress caused her to suffer an increasing number of ear infections and colds because it wore down her immune system. It also prevented her from functioning, reading, and concentrating, and in particular from writing poetry and preparing herself to attend law school someday. However, since Clark removed the dogs from his home approximately a year before trial, her health has improved “quite a bit.”
Wayne Campbell, Oswald’s live-in boyfriend, corroborated Oswald’s testimony. His problems with Clark were “chronic” dog barking for years, loud parties, revving of engines, and derogatory statements made against him.
Two neighbors from across the street, Raven and George Yeltatzie, also supported some of Oswald’s claims. Both had heard the dogs barking and had seen them on occasion running at large. Once, Raven approached Clark and Reynolds to address the neighborhood situation. Clark expressed his belief they were not doing anything wrong, and that Oswald and Campbell could move back from where they came. George had “certainly” heard the dogs barking at night, but he would not say he had heard them “frequently.”
Clark saw the situation differently than Oswald. He stated his dogs never attacked and never bit anyone. Even though he and Reynolds had an infant son, he was never concerned about the dogs around his child. They barked on occasion and got out of the yard exactly five times.
On some occasions, the dogs would bark and wake up the baby. When that happened, Clark would get up and see what was bothering the dogs. Frequently, there were disruptions happening in the street or cars peeling out around the corner. There were some drug problems in the neighborhood at that time that caused quite a bit of traffic.
On at least three other occasions, once a little after midnight, once at 2:00 a.m., and once at 4:30 a.m., Clark awoke to find the dogs barking at Oswald, who was in her yard watering down her trees and watering the pavement in front of her house.
Animal control officers visited Clark’s house on many occasions based on complaints lodged by Oswald. Oftentimes, those visits occurred at late hours of the night. They listened for the dogs to bark, but they heard nothing. The officers refused to sign the citations lodged by Oswald because they never observed any noise violations.
Clark noted there were numerous occasions when animal control would arrive with a barking complaint, and the dogs would not even be at the house. He would leave the dogs at his parents’ house for a few days at a time, and animal control would still get complaints.
Clark owns a 1967 Mustang that he rebuilt and displays at car shows. He works on it in his garage, but he never works on it after 10:00 p.m. He does not rev his engine in a deliberate attempt to aggravate Oswald. He will rev it when he is tuning the motor, but he does that work during the day.
Oswald’s live-in boyfriend, Campbell, drove a Harley Davidson motorcycle which Clark heard all of the time. The only time Campbell’s motorcycle bothered Clark was when Campbell for one month drove by Clark’s house at about the same time each night and dropped the clutch and revved the motor. Almost every time, it would wake up Clark’s baby. Another neighbor across the street, Scott Humphers, asked Campbell to stop revving his motorcycle when he drove by because it was bothering Humphers and his family. When Humphers asked Campbell why he was doing it, Campbell replied, “To bug the little punk over there.” Clark has never spoken with Campbell.
Clark’s swamp cooler sits on the home’s roof. Had it been making excessive noise, enough to wake him or his son up, he would have fixed it. He stated his cooler has never clinked or clanged or banged.
Clark claimed he did not have loud parties at his home. He had a birthday party on his son’s first birthday, but he did not have other parties at his home, nor did he enlist other neighbors to have parties to cause Oswald distress. Clark’s neighbor to the other side, Jarrod Donovan, often had parties at his house.
Clark denied calling Oswald in the early morning hours to threaten her. He was awakened by the police that morning at 5:00 a.m. investigating the call. Clark also denied standing across the street from Oswald’s home and yelling at her.
Clark stated he had not had any direct conversations with Oswald. He probably called her a bitch once or twice. However, Oswald also called him names. He recalled one occasion when Oswald said, “If you don’t shut your F-ing dogs up right F-ing now, I’m going to come over there and slash their throats and yours.”
Other neighbors agreed with Clark’s perspective on the matter. Scott Humphers, mentioned above, was at home on disability. He stated Clark’s dogs did not bark incessantly or continuously except during thunderstorms or 4th of July fireworks. He did not keep his two-year-old daughter away from the dogs because it was not necessary. Also, the only party Humphers saw at Clark’s house was the birthday party for his one-year-old son.
Lawrence and Marlene Wolf also testified that they had not heard Clark’s dogs barking continuously or excessively, nor had they heard loud music or disruptive parties coming from Clark’s house.
After this case was fully briefed, Oswald filed with our court an “Application to take into consideration” certain items of evidence. She was concerned that evidence introduced, or attempted to be introduced, at trial had not been transmitted to our court for our review. The evidence that was admitted at trial has been submitted to, and reviewed by us. That evidence consists of three video cassette tapes and one enlarged map of Oswald’s neighborhood.
PROCEDURAL HISTORY
At trial, Oswald elected to proceed solely on her causes of action for negligent and intentional infliction of emotional distress. The jury returned a general verdict against Oswald, and the trial court entered judgment in favor of Clark. Oswald moved for new trial and for judgment notwithstanding the verdict. The trial court denied both motions. Oswald filed notices of appeal from both the judgment and the order denying her motion for judgment notwithstanding the verdict.
Oswald also named as defendants Jack and Sharon Clark, Shane Oswald’s parents, who owned the home where Shane lived. For convenience, we refer to defendants collectively as Clark.
Oswald represents herself in this appeal. She raises over 50 separately-headed arguments in her opening brief. However, all of them can be consolidated into one of the following assertions of error: (1) substantial evidence does not support the judgment; (2) the trial court erred on numerous evidentiary rulings; and (3) defense counsel committed misconduct.
DISCUSSION
I
Substantial Evidence
Oswald in effect asks us to reweigh the evidence and determine she proved her case. This is not the role of an appellate court. When an appellant claims that the available evidence does not support the verdict, we are limited to determining whether there is any substantial evidence that supports the judgment.
The substantial evidence standard of review also applies to Oswald’s appeal from the denial of her motion for judgment notwithstanding the verdict. (Pusateri v. E. F. Hutton & Co. (1986) 180 Cal.App.3d 247, 250.)
“‘“When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.”’ [Citations, italics in original.] ‘“[W]e have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.”’ [Citations.] Our role is limited to determining whether the evidence before the trier of fact supports its findings. [Citation.]” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
The test is not whether there is substantial conflict, or even whether the evidence against the judgment greatly preponderates. Rather the test is whether there is substantial evidence in favor of the respondent. “If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed. In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing. ‘Of course, all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.’ (Estate of Teel (1944) 25 Cal.2d 520, 527.)” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 370, pp. 427-428.)
“As long as there is such evidence, and it is ‘substantial’ -- that is, of ‘ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value’ -- we are bound to uphold the judgment. [Citations.]” (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 507.) With this standard in mind, we review the record to determine if substantial evidence supports the verdicts against Oswald’s two causes of action.
A. Intentional infliction of emotional distress
“The elements of the tort of intentional infliction of emotional distress are: ‘“(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 . . . .” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
Substantial evidence in the record supports the jury’s rejection of Oswald’s claim for intentional infliction of emotional distress. As stated above, witnesses testified without objection that Clark’s dogs did not bark continuously or excessively; Clark did not host loud, late-night parties; his swamp cooler did not clank loudly; and he did not rev his engine at night. Even though Oswald disagrees with this evidence, it is nonetheless valid, credible evidence that is sufficient to support the judgment.
B. Negligent infliction of emotional distress
“‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . .’ [Citation, italics in original.] ‘The traditional elements of duty, breach of duty, causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’ [Citation.]” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)
Two variants of this theory have been identified: one for recovering when the plaintiff sees another person injured due to defendant’s negligence, and another for recovering when the plaintiff herself is injured by defendant’s actions. (Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1037-1038.) The latter, known as the “direct victim” theory, is what Oswald pursued in this action.
“‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff. ‘[T]he label “direct victim” arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” [Citation.] . . . [W]ell-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.’ [Citation.]” (Wooden v. Raveling, supra, 61 Cal.App.4th at p. 1038.)
The California Supreme Court has allowed plaintiffs to bring negligent infliction of emotional distress actions as “direct victims” in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court, supra, 54 Cal.3d at p. 879); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923); and (3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076).
To the extent Oswald could have recovered for negligent infliction of emotional distress, she had to establish at trial that Clark breached a duty arising out of a preexisting consensual relationship. “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery [for negligent infliction of emotional distress] is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)
No evidence in the record establishes this requirement. There is no evidence indicating Clark had agreed to any kind of consensual relationship with Oswald. Thus, Oswald could recover on this cause of action only if Clark had breached some other duty. Substantial evidence in the record supports the jury’s determination that Clark breached no duty. Thus, we must sustain the verdict against Oswald on her claim of negligent infliction of emotional distress.
II
Evidentiary Rulings
Oswald challenges numerous rulings made by the trial court. We reject each of her challenges.
A. Defense claim that what Oswald said was not evidence
During his opening statement, defense counsel told the jury: “You’ve got to remember one thing: Everything said is not evidence. Everything I say is not evidence. You’ve heard no evidence. So just because somebody says it doesn’t mean it’s evidence. We cannot create evidence.”
Oswald objected: “Objection, your honor. Only when we’re giving opening statements. When I’m up there, that’s evidence.” The trial court overruled the objection.
There was no error. The court overruled the objection because defense counsel’s statement was a correct statement as made in the context of opening statements. Moreover, the court made it clear to the jury that Oswald was testifying as a witness when she did so, and it instructed the jury that evidence can be the testimony of a witness.
B. Evidence of collateral issue raised by defense
Oswald believed defense counsel had raised a number of issues in his opening statement to which she wanted to respond on her case-in-chief. The trial court refused to allow her to do so because none of the issues went to establishing the elements of her causes of action. The court committed no error in limiting testimony to the issues raised by Oswald’s complaint.
C. Judicial notice of laws and alleged prior conviction
Oswald asked the trial court to take judicial notice of various California decisional and legislative law, including section 7.04.080 of the Redding Municipal Code, an ordinance defining what types of noises constitute a public nuisance. Oswald also asked the court to take judicial notice of the court record of a conviction against Clark pursuant to a no contest plea for violating Redding Municipal Code section 7.04.080 and Penal Code section 415, the misdemeanor offense of maliciously and willfully disturbing another person by loud and unreasonable noise. (Pen. Code, § 415, subd. (2).)
The court denied Oswald’s request for judicial notice of elements of California law, as it did not need to take judicial notice of California law. The court’s ruling makes no mention of her request to take notice of the prior conviction. However, during her opening statement, Oswald attempted to inform the jury of prior convictions. Defense counsel objected, and the trial court agreed the reference was not permissible. Oswald directs us to no place in the record where she attempted to introduce evidence of a prior conviction or where she objected to the court’s exclusion of evidence of a prior conviction.
When the parties met to discuss jury instructions, the court refused Oswald’s request to instruct the jury on the noise ordinance and Penal Code section 415. It did so because the definitions in those legislative acts were different than the established California law regarding noise as a factor of emotional distress.
Oswald’s failure to object to the court’s omission on her request for notice of the prior conviction forfeits her ability to raise the claim here. (See People v. Raviart (2001) 93 Cal.App.4th 258, 269.)
The court also did not abuse its discretion in refusing to take judicial notice of California decisional and statutory law. Those matters were already deemed admitted without the need of a motion for judicial notice.
D. Disclosure that Oswald was a “cancer survivor”
The trial court granted defense counsel’s motion in limine to exclude any evidence that disclosed Oswald had previously suffered from cancer or was a “cancer survivor.” The court did not abuse its discretion in doing so. The fact that Oswald had previously suffered from cancer was irrelevant to her condition at the time the alleged tortious activity took place. The court also had discretion to exclude the evidence under Evidence Code section 352 to keep the evidence from being used to secure the jurors’ sympathies prejudicially.
III
Misconduct by Defense Counsel
Oswald alleges acts of misconduct by defense counsel. After reviewing each, we conclude no misconduct occurred.
A. False statements and insinuations in opening statement
Oswald claims defense counsel made false statements, inferences, and insinuations about her in his opening statement. She does not direct us to anywhere in the record where such statements occurred. Moreover, Oswald did not object to defense counsel’s statements except as noted above. In his opening statement, defense counsel argued in good faith what he thought the evidence would show in opposition to Oswald’s claims. He also attempted to place the proposed evidence in context, stating that Clark’s actions were “nothing compared to what [Oswald] did to that neighborhood.” Oswald calls this statement slanderous, but it is not. Her disagreement with this statement did not make it slanderous or evidence of misconduct.
B. Failure to call witnesses and prove affirmative defenses
Oswald faults defense counsel for submitting an extensive list of proposed witnesses and then deciding not to call most of them. She also claims this resulted in Clark not satisfying his burden of proving her injury was not caused by his negligence. This is not misconduct. Attorneys can proceed with their cases however they see fit. Moreover, Clark did not bear any burden to prove he was not negligent. Oswald bore the burden of proving Clark was negligent. The existence of possible affirmative defenses did not alter Oswald’s burden.
C. Selection of court reporter
Oswald claims a “defense selected court reporter” transcribed the second and third days of trial, and that the reporter deleted certain passages of dialogue from the trial. Oswald does not cite to anywhere in the record noting defense counsel selected the court reporter, or noting Oswald objected to the court reporter or the transcript the reporter prepared. There is thus no evidence of misconduct on this point.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a).)
We concur: SIMS, Acting P. J., HULL, J.
One item of evidence not admitted at trial but included in Oswald’s “Application” was a transcript of a deposition given by Oswald’s osteopath, Jolene Kingsley. Although Oswald attempted to give the transcript to the trial court clerk, there is no evidence it was ever introduced or admitted into evidence at trial. It thus is not part of the appellate record, and we may not consider it.