Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CC08950, Corey S. Cramin, Judge.
Spainhour Law Group, Kevin A. Spainhour and Shawn M. Olson for defendant, Cross-defendant, and Appellant, Jose Ochoa.
William G. Bissell for Plaintiff and Respondent, Pamela Ploutz-Barone.
Pamela Abbott Moore and Thomas H. Wolfsen for Defendant, Cross-complainant, and Respondent, Wilshire Westmont Homeowners Association.
OPINION
O’LEARY, ACTING P. J.
Jose Ochoa appeals from a judgment after a bench trial in which the trial court ruled in favor of Pamela Ploutz-Barone on her causes of action for nuisance, trespass, and enforcement of an equitable servitude, and in favor of Wilshire Westmont Homeowners Association (Wilshire) on its cross-complaint for implied contractual indemnity and declaratory relief. Ochoa argues the trial court erroneously allowed and admitted testimony concerning mediation discussions and admitted into evidence a mediated settlement agreement. As we explain below, we find no merit in his contentions and affirm the judgment.
FACTS
Ploutz-Barone owned unit B9 at the Wilshire-Westmont Condominiums at 278 North Wilshire Avenue in Anaheim. In October 2004, there was a heavy rain storm that resulted in flooding to her unit from the unit directly above, unit B29, which Ochoa owned. Ploutz-Barone notified Wilshire and the property manager of the flooding and tried to obtain contact information for Ochoa, who did not live there. When Ploutz-Barone’s husband spoke with him, Ochoa consented to whatever measures were necessary to stop the water from pouring into their unit. Over the next several days, Ploutz-Barone called two clean-up services to help restore her unit. One of the services installed a tarp from unit B29’s roof down past its deck to divert the water from Ploutz-Barone’s unit and prevent additional flooding. Six months later, Ochoa removed the tarp because of complaints from his tenant, and subsequent rain storms caused additional flooding to Ploutz-Barone’s property.
In August 2005, the hot water heater in Ochoa’s unit leaked and flooded areas of Ploutz-Barone’s unit that had avoided damage from the previous flooding. Ochoa never compensated Ploutz-Barone for the damage to her unit from either the October 2004 or August 2005 floodings.
Although the record does not include all the following documents, we refer to the register of actions report to provide a complete procedural history. Ploutz-Barone filed a complaint against Ochoa, Wilshire, Gary Prideaux, and Harold Walker. Ochoa and Wilshire answered. Ploutz-Barone filed a first amended complaint against Ochoa, Wilshire, Prideaux, and Walker for nuisance, trespass, breach of fiduciary duty, and enforcement of an equitable servitude. Wilshire filed a cross-complaint against Ochoa for implied contractual indemnity and declaratory relief. Ochoa answered the cross-complaint.
The parties participated in a voluntary mediation. On May 17, 2006, Ploutz-Barone and Wilshire executed a Settlement Agreement (Agreement) requiring Wilshire to pay Ploutz-Barone $38,500 and repair Ochoa’s deck. The trial court approved the Agreement.
Ploutz-Barone’s lawsuit against Ochoa, and Wilshire’s cross-complaint against Ochoa proceeded to trial. At a bench trial, the trial court considered the parties’ written submissions and heard witness testimony. Ploutz-Barone testified she suffered economic loss as a result of damage to her condominium. She also suffered from anxiety, depression, high blood pressure, and sleep disorders. A contractor who specialized in roofing, water proofing, and home improvement testified it was her opinion “the water that inundated unit B9 filtered down [a] depression . . . on the deck of unit B29[.]”
The trial court ruled in favor of Ploutz-Barone on the first, second, and fourth causes of action. The court awarded her $66,215.42 in economic damages and $15,000 in noneconomic damages. The court ruled in favor of Wilshire on its cross-complaint and awarded it $38,500, the amount of its pretrial settlement with Ploutz-Barone. The court calculated a set off of $29,485.17 to Ochoa’s damages—the amount of the pretrial agreement amount less attorney fees. The court entered judgment and denied Ochoa’s motion to vacate the judgment and for a new trial. Ochoa appealed.
DISCUSSION
A. General Principles
Code of Civil Procedure section 657, in relevant part, states: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.”
Evidence Code section 1128, provides: “Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial for the purposes of [s]ection 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.” (Italics added.)
B. Settlement Testimony
Relying on Evidence Code section 1119, Ochoa argues the trial court erroneously allowed and admitted confidential mediation discussions to establish the amount of Ploutz-Barone’s damages. We disagree.
Evidence Code section 1119 states: “Except as otherwise provided in this chapter: [¶] (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. [¶] . . . [¶] (c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”
In making his claim, Ochoa relies on the following portions of the reporter’s transcript to support his claim the trial court erroneously allowed and admitted confidential mediation discussions.
During Ploutz-Barone’s counsel’s examination of his client, counsel stated, “Your honor, if I could take a brief break and in the questioning, there’s been, as the briefs indicated, a settlement, a partial settlement arrived at with the homeowners association in this matter and there’s been allocation of funds. [¶] The brief lays out the allocation of funds, how the settlement funds were allocated. I could go through the exercise with . . . [Ploutz-]Barone or is the indication in the brief sufficient?”
During Wilshire’s counsel’s examination of Walker, the trial court asked counsel whether there was contractual indemnity to reimburse Wilshire for repairs that had been made. Counsel responded, “We are entitled to indemnification. We paid $38,000 to . . . [Ploutz-]Barone for the damage. [¶] . . . [¶] It’s all work performed on behalf of the owner. This is the owner’s responsibility, the resulting damage.” After a brief discussion concerning the scope of the Agreement, the court stated, “It’s going to be incumbent upon you to establish, through evidence, that $38,500 that was paid to [Ploutz-Barone] compensated [her] for recoverable damages. [¶] How are you going to do that?” After counsel attempted to explain the basis for the amount, the trial court stated counsel was going to have to establish with evidence what the $38,500 compensated Ploutz-Barone for and that the testimony to that point did not establish $38,500 in damages.
When Ploutz-Barone’s counsel contended the defendant had the burden of establishing the amount of damages to demonstrate its liability, Wilshire’s counsel responded, “They were seeking joint and several responsibility against us and we settled. That’s what they were contending and so we settled. [¶] They did not settle. We entered into a good faith settlement[.] Based upon the damages that were presented at the time of mediation, which also included mold and additional damage that may not even be covered in here if additional mold is discovered during the repair process and everything else. . . . [¶] . . . [¶] The potential for damage was extraordinary and that’s why we did the application for good faith settlement because we did feel [$38,500] was a good amount in light of the damages that were being presented.”
When Wilshire’s counsel returned to examining Walker, the following colloquy occurred:
“[Wilshire’s counsel]: [W]ere you present for the mediation that was entered into between the parties in May of this year?
“[Walker]: Yes.
“[Wilshire’s counsel]: And was a settlement reached on that date?
“[Walker]: Yes.
“[Wilshire’s counsel]: And is exhibit 18 a true and correct copy of the settlement agreement that was reached on that date?
“[Walker]: Yes. [¶] . . .[¶]
“[Wilshire’s counsel]: And pursuant to this settlement, was [Wilshire] paying $38,500 to [Ploutz-]Barone?
“[Walker]: Yes.
“[Wilshire’s counsel]: And that settlement, was it for damage incurred as a result of flooding and water damage from the deck of unit B29?
“[Walker]: Yes. [¶] . . . [¶]
“[Wilshire’s counsel]: And did the settlement agreement exclude damage from flooding from the water heater?
“[Walker]: Yes.
“[Wilshire’s counsel]: In making a determination on the settlement, did [Wilshire] pay $2[,]616.34 to reimburse . . . [Ploutz-]Barone for her emergency cost[s]?
“[Walker]: Yes. [¶] . . . [¶]
“[Wilshire’s counsel]: Did [Wilshire] agree to pay $17,868.83 for repair costs?
“[Walker]: Yes.
“[Wilshire’s counsel]: Were those repair costs for damage sustained as a result of the deck leak?
“[Walker]: Yes.
“[Wilshire’s counsel]: Did [Wilshire] agree to pay $9,000 for loss of use of the condominium through July . . . 2005?
“[Walker]: Yes. [¶] . . . [¶]
“[Wilshire’s counsel]: Did [Wilshire] agree to pay 50 percent of . . . [Ploutz-]Barone’s legal fees incurred through May 17, 2005, which was $9,014.83?
“[Walker]: Yes. [¶] . . . [¶]
“[Wilshire’s counsel]: And so the total amount paid was $38,500, correct?
“[Walker]: Yes.
“[Wilshire’s counsel]: [¶] . . . [¶] This was all for damages, loss of use and attorney’s fees relating to the leak from the balcony; is that correct?
“[Walker]: Yes.”
During Wilshire’s cross-examination of Ploutz-Barone, counsel asked her whether she accepted the following amounts from Wilshire: $2,616.34 for emergency repairs; $17,868.83 for interior damage; $9,000 for the loss of use of the property; and $9,014.83 for one-half of attorney fees. She responded, “Yes” to each question.
During closing argument, Ploutz-Barone’s counsel stated Ochoa was entitled to a credit for damages only, and not attorney fees. And, Wilshire’s counsel similarly argued Wilshire filed an application for good faith settlement and there was no opposition, and there was evidence that itemized the basis for the settlement.
The trial court ruled, in relevant part, “that . . . Ochoa created a condition that was harmful to [Ploutz-Barone], that that condition interfered with [Ploutz-Barone’s] use and enjoyment of her land, that [Ploutz-Barone] did not consent to . . . Ochoa’s conduct, that an ordinary person would have been reasonably annoyed and disturbed by . . . Ochoa’s conduct and . . . Ochoa’s conduct was a substantial factor in causing harm to [Ploutz-Barone] and that the seriousness of the harm outweighed the public benefit of . . . Ochoa’s conduct.”
Later the court stated, “I need to also address the issue of the set-off or offset. [Ochoa] claims he is entitled to an adjustment to the award and I do have evidence of a mediated settlement and the court previously making a finding of good faith settlement that I’ve taken judicial notice of and the parties in that settlement made an allocation of those damages to the deck. [¶] That allocation appeared to be reasonable, but I think it was unnecessary in that the court finds that all of the moneys paid by [Wilshire] to [Ploutz-Barone] would qualify as a set-off to . . . Ochoa’s damages, except for the attorney’s fees, which was $9,014.83. That portion is not going to be used as a set-off to the damages awarded.”
Ochoa now complains the trial court erroneously allowed and admitted the above testimony, but he does not cite to anywhere in the record where he objected to the testimony. Wilshire notes Ochoa’s counsel did raise the issue near the end of his cross-examination of Ploutz-Barone. Counsel stated, “Your honor, for safety purposes, any of the discussion, reserve the right to strike that testimony as to the mediation.” However, Ochoa’s counsel never objected to or moved to strike any of the above cited testimony or any other testimony concerning confidential mediation discussions. A party’s failure to object to the admission of even inadmissible evidence waives the objection. (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260-1261 (Platzer).)
Additionally, Ochoa himself raised the issue of the mediation and the Agreement in his own trial brief filed with the trial court. Ochoa stated, “[Wilshire] has settled as to [Ploutz-Barone] and has been dismissed.” Later, he said, “[Ploutz-Barone] has already been fully compensated for the harm she suffered. In her deposition, [Ploutz-Barone] testified that the damage to her unit was ‘about $40,000 . . . . [Wilshire] has already paid $38,500 as compensation for the damages.” In arguing Wilshire was solely responsible for Ploutz-Barone’s damages, Ochoa raised the issue of the mediation to support its defense Wilshire was liable for the damages and Ploutz-Barone had already been compensated for her loss. He cannot now complain.
Finally, even assuming the trial court erroneously admitted the above-mentioned testimony, Ochoa has not demonstrated his substantial rights were materially affected. On appeal, the substance of Ochoa’s complaint is the trial court erroneously relied on the above-mentioned testimony when allocating damages. In allocating damages, the trial court explained Wilshire settled with Ploutz-Barone for $38,500 and credited him with that amount less attorney fees—$29,485.17. He was enriched by the trial court’s consideration of the Agreement.
C. Trial Court Bias
Without citing to any authority, or providing any reasoned argument, Ochoa appears to claim the trial court was biased as evidenced by its cross-examination of Ochoa and its ruling. We disagree.
Ploutz-Barone called Ochoa as a witness pursuant to Evidence Code
section 776. During the examination, the following colloquy occurred:
“[Trial court]: Did you send out any licensed contractor yourself during this period to evaluate any water problems?
“[Ochoa]: We sent
“[Trial court]: ‘Yes’ or ‘no.’
“[Ochoa]: No.
“[Trial court]: Why not?
“[Ochoa]: Well, what happened on there is the person
“[Trial court]: Why didn’t you send out a contractor to evaluate it yourself?
“[Ochoa]: Okay. When . . . [Ploutz-Barone] went on and called me up there she said she had already sent somebody out there and they had already fixed the, apparently the hole crack or whatever it is that she said
“[Trial court]: No, but you just testified at the meeting there was still some leaking coming through. While you are saying it wasn’t as much, you testified there was still some water coming through. [¶] That’s the time period I’m asking did you send a contractor out.
“[Ochoa]: No. What happened, when I’m talking about water on there
“[Trial court]: Yes.
“[Ochoa]: I always told [Ploutz-Barone] on there that it had to be coming from somewhere else.
“[Trial court]: Right. You’ve said that. You’ve made that conclusion. I’m wondering if you derived that conclusion -- we’ve already set forth you’ve said you weren’t out there, you didn’t personally inspect it, so I’m wondering if you sent out a contractor to inspect it or are you simply relying on information you received from [Ploutz-Barone] and Carmen?
“[Ochoa]: I was going by the information that was given to me by Carmen which is the person I sent out there, also by the information that [Ploutz-Barone] ha[d] also given me
“[Trial court]: That’s what I just said.
“[Ochoa]: Yes.
“[Trial court]: You got information from Carmen and [Ploutz-]Barone, you’ve got information it’s still leaking even though there was the mastic Henry’s put on there. [¶] The question is why -- you’ve already said you didn’t after that send out a licensed contractor to evaluate it -- why didn’t you send a licensed contractor?
“[Ochoa]: We were trying to go ahead and get [Wilshire] to fix it. [¶] At the meeting, sir, what happened on there is -- and she was there when we were telling this -- I told the people on there, they were saying it was my responsibility to go ahead and get the thing fixed. [¶] I told them on there, okay, basically if it was my responsibility, you guys should have told me from the beginning so I could send somebody out there if I was responsible for it. [¶] She said, no, as a matter of fact it was [Ploutz-Barone] on there who says, you cannot do any fixing without our permission.
“[Trial court]: I didn’t say fixing, I said send a contractor just to look at it, to evaluate it, to back-up your conclusion that it wasn’t coming from any of your area. Why didn’t you send a contractor out? [¶] It wouldn’t have cost you any money, would it?
“[Ochoa]: No. I was waiting for [Wilshire] to check [to] see what they were going to go ahead and do.
“[Trial court]: All right. Go ahead.”
As to the trial court’s cross-examination of Ochoa, Evidence Code section 775 authorizes the trial court, on its motion or a party’s motion, to call witnesses and interrogate them. “Inherent within Evidence Code section 775, then, is the judge’s authority to interrogate witnesses called by the parties.” (People v. Hawkins (1995) 10 Cal.4th 920, 947, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101.) It is clear the trial court has the authority to question a witness, which the court did here. Assessing the trial court’s tone or demeanor based on a cold trial court transcript is nearly impossible, but we conclude any shortness or frustration on the part of the trial judge was based on Ochoa’s failure to answer the court’s questions. It does not per se evince bias.
The trial court ruled, in relevant part, “that . . . Ochoa created a condition that was harmful to [Ploutz-Barone], that that condition interfered with [Ploutz-Barone’s] use and enjoyment of her land, that [Ploutz-Barone] did not consent to . . . Ochoa’s conduct, that an ordinary person would have been reasonably annoyed and disturbed by . . . Ochoa’s conduct and . . . Ochoa’s conduct was a substantial factor in causing harm to [Ploutz-Barone] and that the seriousness of the harm outweighed the public benefit of . . . Ochoa’s conduct.”
With respect to the trial court’s ruling, it does not demonstrate a bias against Ochoa. The court’s ruling reveals it considered the evidence, weighed its probative value, and concluded Ochoa created a nuisance. Ochoa offers no reasoned argument to support his contention the trial court was bias against him. If we were to accept Ochoa’s contention, every ruling against the losing party would demonstrate bias. Ochoa’s contention the trial court somehow ignored his expert’s testimony is similarly unpersuasive. The trial court examined Ochoa’s expert throughout his testimony. The court considered the expert’s testimony, weighed it, and found it unpersausive.
D. Agreement
Relying on Evidence Code section 1123, Ochoa contends the trial court erroneously admitted the Agreement into evidence. Not so.
Evidence Code section 1123 provides: “A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: [¶] (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. [¶] (b) The agreement provides that it is enforceable or binding or words to that effect. [¶] (c) All parties to the agreement expressly agree in writing, or orally in accordance with [s]ection 1118, to its disclosure. [¶] (d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.”
Before trial, Wilshire filed an Application for Determination of Good Faith Settlement, which included a copy of the Agreement as an exhibit. At trial, Wilshire’s counsel questioned Walker, one of Wilshire’s directors, concerning the Agreement, and Ochoa’s counsel objected pursuant to Evidence Code section 1152. Wilshire’s counsel asked the trial court to take judicial notice of the Agreement, and Ochoa’s counsel said, “It’s making me uncomfortable[.]” The trial court responded, “It makes me uncomfortable, too, but I don’t know the answer. I will reserve admitting this into evidence, but you are going to have to explain it to me whether it’s admissible and whether it’s relevant for purpose of indemnification, how that works.” When Wilshire’s counsel stated mediation discussions in court, the court stated, “That’s all confidential.” The court reserved ruling pending further research and argument.
Later, before her closing argument, Wilshire’s counsel moved to admit the Agreement into evidence. The trial court stated, “I found cases on that also. I will admit [the Agreement], along with the evidence regarding the testimony concerning the allocation of at least the party’s attempted allocation of the proposed settlement and I’ll take judicial notice of the court’s order finding good faith settlement.” Ochoa’s counsel did not renew his objection.
Although Ochoa’s counsel initially objected to the trial court taking judicial notice of the Agreement, counsel did not object further when Wilshire’s counsel moved to admit the Agreement into evidence. Our review of the record discloses no other instance where Ochoa objected to admission of the Agreement. As we explain above, a party’s failure to object to the admission of even inadmissible evidence waives the objection. (Platzer, supra, 104 Cal.App.4th at pp. 1260-1261.)
Additionally, as we explain above, Ochoa raised the issue of the mediation and the Agreement in his own trial brief. Ochoa raised the issue of the mediation to support its defense Wilshire was liable for the damages and Ploutz-Barone had already been compensated for her loss. Ochoa cannot now complain on appeal the court should not have considered it.
Moreover, the Agreement does not provide any additional information regarding the amount of damages Ploutz-Barone suffered that Ochoa himself did not raise before the trial court in his brief. The Agreement states, in relevant part, “Wilshire . . . to pay . . . [Ploutz-] Barone within 30 days the sum of $38,500. All of said sum to be allocated to damages incurred by . . . [Ploutz-]Barone . . . as a result of flooding and water damage from the deck of unit B29 of the Wilshire Westmont Condominiums. None of said sum to be allocated to flooding and water damage caused by flooding from or the failure of the water heating unit of unit B29 which occurred on or about August 8, 2005. [Wilshire] to effect repairs to the deck of unit B29 so as to prevent further flooding into the [Ploutz-] Barone unit (unit B9).” Ochoa, in his trial brief, informed the trial court Wilshire had paid Ploutz-Barone $38,500 as compensation for her damages.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: ARONSON, J., FYBEL, J.