Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-07-465900.
RUVOLO, P. J.
I.
Introduction
This action was brought by two elderly tenants, Mercedes Recto and Elsa Burgess (plaintiffs), who shared a large house in San Francisco’s Mission District with numerous other tenants, against the property’s owner, Villa Jacinto (defendant). Plaintiffs filed suit against defendant on August 7, 2007, alleging multiple causes of action including breach of the warranty of habitability, constructive eviction, negligent maintenance of the premises, and negligent and intentional infliction of emotional distress. In essence, plaintiffs claimed that they were subjected to substandard living conditions during their entire five-year tenancy. Furthermore, plaintiffs claimed that in 2007, defendant commenced a construction project that made the residence so uninhabitable that they were forced to leave the premises for their own health and safety. After a jury trial, judgment was entered on the jury’s special verdict in defendant’s favor on the two causes of action submitted to the jury––breach of the implied warranty of habitability and wrongful collection of rent for an uninhabitable dwelling.
On appeal, plaintiffs claim the “trial was riddled with prejudicial error including nonsuiting of numerous claims that had sufficient evidentiary support, improper jury instructions, an ambiguous jury verdict form, evidentiary rulings that improperly excluded a large quantity of admissible evidence, a discovery sanction imposed on plaintiffs’ counsel that lack[ed] a basis in both law and fact, and a due process denial of fair hearing... due to the court’s unwillingness to continue the trial or grant a mistrial due to [plaintiff Recto’s] counsel’s illness. In addition, the record contains instance after instance of misconduct by defendant’s counsel, not the least of which is his falsified fee application.” We reject these claims and affirm the judgment entered on the jury’s verdict.
II.
Facts and Procedural History
California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant’s opening brief shall “[p]rovide a summary of the significant facts....” And a leading California appellate practice guide instructs appellants about this: “Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias, and likewise as to the applicable law. [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly ‘undo’ an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case! [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 9:27, p. 9-8 (rev. #1 2010), italics omitted.) Ignoring this sage advice, one can read plaintiffs’ appellate briefing and never learn that there was any evidence supporting the jury’s findings or any rationale supporting the trial court’s rulings.
In short, plaintiffs’ briefs ignore the precept that all evidence must be viewed in support of the judgment. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) What plaintiffs attempt here is merely to argue the facts as they would have them, an argumentative presentation that not only violates the rules noted above, but also disregards the admonition that appellants are not to merely “re-argue on appeal those factual issues decided adversely to [them] at the trial level, contrary to established precepts of appellate review.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) Consequently, the following brief summary of facts is taken from our independent review of the extensive trial court record, and is amplified later where relevant to the discussion of specific issues.
Defendant, who was 67 years old at the time of trial, owned and operated a boarding/rooming house located at 49 Oliver Street in San Francisco, California. The two-story house had approximately 4, 000 square feet and numerous bedrooms. There were individual rented rooms on each floor of the house and shared common areas such as bathrooms, a kitchen, a backyard patio, and a dining room. Defendant rented primarily to people from the Philippines. Defendant also lived at 49 Oliver Street and shared the same facilities as her tenants.
Plaintiff Burgess, who was 64 years old at the time of trial, lived at 49 Oliver Street on two separate occasions, originally from 1992 to 1995 and then again from August 2002 to November 2007. During her more recent tenancy, plaintiff Burgess rented a bedroom for $500 a month.
Plaintiff Recto, who was 89 years old at the time of trial, also resided at the property from August 2002 until November 2007. For a short time, plaintiff Burgess and plaintiff Recto, who were good friends, shared a room. Eventually, plaintiff Recto rented a separate bedroom for $250 a month. In addition to these two tenants, there were approximately six other tenants renting rooms in the house.
At trial, plaintiffs claimed that from the time they moved into the premises in 2002, until they moved out in 2007, their tenancy was plagued with conditions that posed severe health and safety hazards, including a lack of heat, rodent infestation, inadequate electrical outlets, exposure to dangerous electrical wiring and extension cords, mold accumulating on the walls, no lighting in the stairwell at night, no hand rail on the staircase, and no smoke detectors. They claimed that from the beginning of their tenancies, they continually complained to defendant about their living conditions, but defendant ignored their complaints.
On March 26, 2007, defendant served all of her tenants, not just plaintiffs, with a 90-day notice to vacate, with a move-out deadline of June 30, 2007. In the letter, defendant explained that she planned to make major renovations so that she could convert the house into a senior care facility. Defendant testified that she had been planning this conversion for years, and that prior to 2006, she had informed plaintiffs about her future plans for the residence. At trial, plaintiffs attempted to prove that the defendant never intended to convert her house to a senior care facility and that she issued the notice as a pretext to wrongfully evict plaintiffs.
According to defendant’s version of the facts, she and plaintiffs were all good friends before the relationship became strained because of the remodeling. According to defendant, neither plaintiff had ever complained about the condition of the property until after they received the March 2007 notice indicating that she was terminating their tenancy. Plaintiffs did not want to move, and did everything possible to obstruct the renovation so that they would not have to do so.
Shortly after she served her tenants with the March 2007 notice terminating their tenancy, defendant testified that she changed her mind about converting her house into a senior care facility. She realized she did not have the money to carry out her original plans, and she decided to simply remodel the dining room and kitchen and upgrade the electrical system and heating on the second floor instead. Once defendant’s plans for the residence changed, there was no further discussion of the tenants moving out, and all of defendant’s tenants understood they did not have to move out.
The issue of habitability was hotly contested at trial, as well as who was to blame for some of the conditions cited by plaintiffs. Defendant claimed she offered low-income housing that was habitable, functionally adequate, in good repair, and with adequate sanitary facilities. Numerous tenants who resided at 49 Oliver Street at the same time as plaintiffs testified that they never observed or experienced the deplorable conditions plaintiffs claimed existed. Defendant presented expert testimony from a real estate appraiser indicating his belief that before the construction commenced, plaintiffs were paying below market value for their rooms.
Whatever the condition of the property before defendant served her tenants with the notice terminating their tenancy, the undisputed evidence (including photographs) showed that shortly after the notice was served, defendant began a major demolition project on the second floor of the house, tearing the plaster from the dining room walls and ceiling, and the kitchen. Plaintiffs claimed that from early April 2007 until late in November 2007, when they decided to vacate the premises, the premises were in an “unlivable condition.”
Specifically, plaintiffs claimed there was dust everywhere, broken plaster on the floor, no insulation in the walls, exposed defective electrical wiring, and there was almost no floor space to walk because of the debris. The kitchen became impossible to cook in. The lack of heat was compounded by the lack of dry wall and insulation and a large vent left open to the outside. Plaintiffs claimed that defendant was extremely slow in making the repairs, and when she did, she failed to obtain the necessary building permits and used unlicensed contractors to perform the work. During the entire time that plaintiffs lived in these conditions, defendant continued to charge and accept the full monthly rent from them. Plaintiffs had very little income and claimed they were unable to move because they were not given relocation money by defendant, as required by the San Francisco Administrative Code, Residential Rent Stabilization and Arbitration Ordinance. section 37.9C.
The San Francisco Residential Rent Stabilization and Arbitration Ordinance is codified at Chapter 37 of the San Francisco Administrative Code, and shall hereafter be referred to simply as the “Rent Ordinance.”
Plaintiffs sought advice as to their legal rights, and with assistance, they complained to various government agencies about their living conditions. Specifically, they complained to the San Francisco Residential Rent Stabilization and Arbitration Board, the San Francisco Department of Public Health, the San Francisco Fire Department, the San Francisco City Attorney’s Office, the San Francisco Department of Building Inspection, and the San Francisco Human Rights Commission, alleging a long history of problems such as mold, rodent infestation, and lack of heat at the house.
On or about June 19, 2007, defendant was served a “Notice of Violation” from the San Francisco Department of Building Inspection outlining violations, which included removing plaster from the kitchen and dining room walls and ceiling without a permit, failing to provide heat to all of the habitable rooms, requiring the removal of electrical extension cords, and requiring the removal of all kitchen appliances such as hot plates and a refrigerator in the hall.
Although all of the violations were eventually remedied, they were not abated within 35 days after the date of the issuance of the notice, as legally required. Plaintiffs claimed the delay was without good cause. They claimed that defendant did not take any meaningful steps to repair any of the substandard conditions existing on the property until September 2007, when she hired a professional contractor to correct some of the property’s deficiencies.
According to defendant, she was as solicitous of her tenants’ well being as she could be, given her circumstances. She cited a lack of money as the reason she delayed correction of the defective conditions or completing her remodel in a more timely fashion. The demolition work on the second floor was performed by defendant, her brother, and another tenant in order to save money. They put up dust protection (plastic across the dining room doorways), and cleaned up the debris regularly. Defendant also advised plaintiffs that while the kitchen was being remodeled, they could cook downstairs.
Instead, plaintiffs breached the plastic-protected doorway coverings, entering the renovation area. They continued to store their personal property in the hallway and prepared food using small appliances, such as a toaster and microwave. Plaintiffs also intentionally obstructed the workmen’s access to the area and denied workmen entry to the house.
As for the problem with rodents, defendant claimed that plaintiff Recto helped create the conditions that attracted rodents because she stored large quantities of food in her room and on the floor. Also, defendant promptly hired Clark Pest Control in response to the Notice of Violation. The magnitude of the rodent problem was called into question by evidence that after setting out approximately 10 traps for two months, only five mice were caught.
Defendant also testified that after she sent out the March 2007 notice to vacate, she offered plaintiff Recto, whose room was right next to the construction, temporary accommodations in a room downstairs while the renovations were in progress upstairs. Plaintiff Recto refused. Instead of having plaintiffs legally evicted in an unlawful detainer action for obstruction of her renovations, she decided instead to attempt to renovate her house around plaintiffs.
Defendant presented expert testimony from a real estate appraiser assessing the situation as follows: “[Defendant] has not had any complaints from the City or any issues over the 14 or 15 years she’s owned the house until 2007 when... she’s flooded with notice of violations... but she complied with all of them and I think she was industrious in trying to get every one of those resolved and ha[s] managed to resolve every one of them. From that standpoint, ... she’s been good at that, but definitely is not up to professional standards in [property] management.” He testified about the condition of the property after the construction was completed: “It’s in very nice shape. It’s a very pleasant place to live. And I think she’s done a good job....”
In November 2007, while the construction was still ongoing, both plaintiffs moved out of 49 Oliver Street. Since plaintiffs were unable to locate a place that they could both afford to move in together, each moved to a different location. Within 10 days of the move, Recto suffered a stroke. She then moved to Minneapolis to live with her daughter. Plaintiff Burgess moved into a house in mid-November 2007 and paid $500 a month for her room and shared facilities, the same amount she had been paying to defendant.
In August 2007, plaintiffs filed a complaint against defendant, alleging multiple causes of action, including breach of the implied warranty of habitability, wrongful collection of rent, constructive eviction, and intentional and negligent infliction of emotional distress. Jury trial began on June 1, 2009. After plaintiffs presented their case, the trial court granted nonsuit for defendant on all but two of plaintiffs’ causes of action—breach of the implied warranty of habitability and wrongful collection of rent for an uninhabitable dwelling.
On June 23, 2009, after 22 days of trial, the jury returned a verdict finding that plaintiffs would take nothing from the defendant. Specifically, by special verdict, the jury found that defendant had not breached the warranty of habitability based on its findings that (1) while there was a substantially defective condition to the rental property affecting plaintiffs’ health and safety, (2) the substantially defective condition was “caused by [plaintiffs] breaching their affirmative obligations to the landlord[.]”
As for the second cause of action, wrongful collection of rent, the jury returned a special verdict in which they answered four questions as follows: (1) between August 2005 and November 2007, the rental property lacked one of the requirements of Civil Code section 1941.1; (2) between August 2005 and November 2007, a public officer or employee who was responsible for the enforcement of any housing law, after inspecting the rental property, did notify defendant in writing of her obligation to abate the nuisance or repair the substandard conditions; (3) the substandard conditions existed without being abated 35 days beyond the date of the service of the notification in writing; and (4) there existed good cause for the delay in repairing the substandard conditions.
After the judgment on special verdict was entered, the court entered an amended judgment on October 28, 2009, awarding defendant $178,801.50 in attorney fees and $61,432.62 in costs, for a total award of $240,234.12. After their motion for a new trial was denied, plaintiffs each filed an appeal, which we ordered consolidated for purposes of briefing, oral argument, and decision.
We have taken the liberty of substantially reordering the issues on appeal to reflect the progression of this case from pretrial rulings to posttrial motions.
III.
Discussion
A. Discovery Sanction
Plaintiffs claim “the discovery commissioner made an erroneous order limiting the evidence that the plaintiffs could introduce at trial....” The background facts underlying this contention are as follows: On or about January 19, 2008, plaintiffs’ attorney served defendant with plaintiffs’ responses to several sets of interrogatories and responses to a request to produce certain documents. After the lines for plaintiffs’ signatures was a notation reading, “verification to follow.”
At the time, both plaintiffs were represented by attorney Mercedes Gavin, who later represented only plaintiff Recto.
On November 10, 2008, when the matter was called for trial, defendant’s counsel advised plaintiffs’ counsel that he could not find the verifications. Plaintiffs’ counsel advised defendant’s counsel that the verifications had never been obtained. The November 10, 2008 trial date was continued. In December 2008, defendant’s attorney requested that plaintiffs stipulate to another trial continuance. Plaintiffs’ counsel agreed but only if discovery remained closed. Defendant’s attorney agreed. Trial was continued to March 9, 2009.
On February 4, 2009, defendant filed a “Notice of Motion to Compel Responses to Discovery” because plaintiffs had failed to provide the promised verifications. On February 10, 2009, Commissioner Chan granted defendant’s motion to compel verified responses to discovery. Commissioner Chan’s order required plaintiffs to serve “full and complete verified responses without objection by February 20, 2009.” The court went on to find “that counsel for plaintiff made evasive responses to discovery by stating that verification would be provided and then subsequently refusing to honor said representation.” The court ordered monetary sanctions against plaintiffs’ counsel personally in the amount of $1,120.
Pursuant to the court’s order, plaintiffs served verified discovery responses on February 20, 2009. After comparing the responses provided on February 20, 2009, with the original unverified responses provided on January 19, 2008, it was clear that plaintiffs had substantially modified their original responses, with new claims and new witnesses.
On March 3, 2009, defendant filed an “Ex Parte Application for Issue, Evidence and Monetary Sanctions.” At the hearing before Commissioner Paul Slavit, defendant’s counsel spelled out its case for imposing an evidentiary sanction: By filing new discovery responses, plaintiffs’ counsel “has unilaterally reopened discovery and provided new witnesses, new contentions, new information when she was originally arguing––and the Court agreed––that discovery was closed. So now the defense is severely prejudiced by representations that have never been brought before, any witnesses that have not been brought forward.” Counsel claimed “the defense is essentially being sandbagged by this new discovery.”
On March 6, 2009, Commissioner Slavit granted defendant’s ex parte application by striking plaintiffs’ February 2009 discovery responses and by deeming plaintiffs’ January 2008 unverified responses binding on plaintiffs and by barring plaintiffs from presenting any evidence at trial that contradicted the contents of plaintiffs’ original discovery responses. On March 16, 2009, plaintiffs filed a motion for reconsideration based upon new circumstances that the March 9, 2009 trial date was continued and defendant would have time to conduct additional discovery. Defendant opposed the motion. On April 8, 2009, the court denied plaintiffs’ motion for reconsideration.
The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious or whimsical action. (R.S. Creative, Inc. v. Creative Cotton Ltd. (1999) 75 Cal.App.4th 486, 496.) Plaintiffs claim that this is such a case, arguing that “to the extent that the court’s grant of evidentiary sanctions was punitive in nature, or was in excess of what was needed to compel compliance with its discovery orders, it was a reversible abuse of discretion.”
Under the circumstances presented here, the court clearly had the authority to prohibit plaintiffs from introducing designated matters into evidence as a consequence of discovery abuse. Plaintiffs’ initial unsigned discovery responses failed to comply with Code of Civil Procedure sections 2030.210, subdivision (a), and 2030.250, subdivision (a), requiring responses to be “under oath.” “Unverified responses ‘are tantamount to no responses at all.’ [Citation.]” (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 817, fn. 4.) After plaintiffs failed to respond to requests to provide verifications in a timely fashion, the court ordered plaintiffs to remedy this omission. However, instead of providing verification to the original discovery responses, thereby creating sworn testimony that could be used to narrow the issues for trial, plaintiffs’ counsel substituted completely new discovery responses, adding new witnesses (not disclosed in the original discovery), and new claims (not made in earlier discovery). Plaintiffs in effect reopened discovery right before trial, at a time when discovery had been cut off for months. It is patently obvious that plaintiffs’ prolonged delay in providing verifications to the original discovery and attempt to replace previous discovery responses with new claims and new witnesses on the eve of trial seriously inhibited the principal aim of discovery procedures, which is to assist counsel in preparing for trial. (Guzman v. General Motors Corporation (1984) 154 Cal.App.3d 438, 442.) The trial court was well within its discretion in finding plaintiffs’ conduct fell under the provisions of Code of Civil Procedure section 2023.010 (misuse of the discovery process).
Plaintiffs claim that the court’s order, binding them to their original discovery responses, was inconsistent with a party’s “absolute right” to alter responses to interrogatories at any time without leave of court. Plaintiffs are presumably referring to Code of Civil Procedure section 2030.310, subdivision (a), which states in relevant part: “Without leave of court, a party may serve an amended answer to any interrogatory that contains information subsequently discovered, inadvertently omitted, or mistakenly stated in the initial interrogatory.” Ostensibly, plaintiffs argue that because they can amend their original interrogatory answers (albeit where there is “subsequently discovered, inadvertently omitted, or mistakenly stated” information), they had the right to do so, at any time, under any circumstances. Even the plain language of Code of Civil Procedure section 2030.310, subdivision (b), which provides a procedure by which the party who receives an amended answer may bind the amending party to their original answer, refutes this position. Therefore, plaintiffs’ argument on this point is meritless.
Even if we were to find the court erred in imposing this discovery sanction, plaintiffs have not established that the error was prejudicial. While plaintiffs assert “the exclusion of this massive amount of evidence... deprived [them] of a fair trial, ” we have searched plaintiffs’ briefs in vain for a description of the excluded evidence which, had it come to the jury’s attention, would have made it reasonably probable that plaintiffs would have obtained a more favorable outcome. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).)
An appellate court cannot and will not accept general assurances, such as those advanced by plaintiffs here, that excluded evidence was critical to the outcome of a case. Nor will an appellate court do the work for the appellant and comb the record in order to determine whether or not any such a conclusory assertion is valid. Rather, it was up to plaintiffs here, with complete and accurate citations to the law and the record, to explain precisely how each challenged ruling of the trial court operated to plaintiffs’ legal prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [the appellate court’s duty to assess the prejudicial impact of an error only arises when the appellant has first fulfilled his or her duty to tender a proper prejudice argument; that is, the appellant bears the duty of spelling out in his or her brief exactly how the error caused a miscarriage of justice].) Plaintiffs have not done so.
B. Exclusion of Documents from Evidence
Plaintiffs list approximately 20 documents that they claim the court erred in excluding from evidence. For the most part, these documents relate to plaintiffs’ complaints to various city agencies about the conditions at 49 Oliver Street, the outstanding violations of the city’s building and housing codes, and defendant’s attempts to bring the property into compliance. The trial court ruled that since the documents had multiple levels of hearsay within them, and further, since witnesses from the various city agencies were being called to testify, no beneficial purpose was served by admitting the documents at issue. Plaintiffs claim this ruling was an abuse of the court’s discretion because the court engaged in the “wholesale exclusion of the official writings” of various city agencies, such as “the San Francisco Building Inspection Department and the San Francisco Human Rights Commission, even though the defendant did not present a scintilla of evidence that these documents were untrustworthy.”
The trial court has very broad discretion in admitting or excluding evidence. (Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.) Both case law and constitutional authority provide that prejudice is not presumed and must be affirmatively shown. (Ibid.) A judgment will not be reversed unless it can be said that a different result would have occurred had asserted error not been made. (Ibid.)
Plaintiffs claim that Evidence Code section 1280, which pertains to writings by public employees, exempted these documents from the normal rule against hearsay. But the so-called “public” nature of the documents does not automatically make them admissible. These documents were admissible only if the “sources of information and method of time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1280, subd. (c).) (See Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 52 [even if report is admissible as an official record, matters in the report that are not based on the author’s personal observation are inadmissible].) When the matter was argued below, defendant claimed that these documents did not meet the criteria of Evidence Code section 1280 because the reports were “filled with hearsay statements [and] expert conclusions, where none of the building officials were disclosed as non[-]retained experts.” (See Windigo Mills v. Unemployment Ins. Appeals Bd.(1979) 92 Cal.App.3d 586, 598-599 [investigator’s report which contained statements by third parties was inadmissible as double hearsay].)
Consequently, the court could foresee that the admission of these documents would open up a whole Pandora’s box of collateral issues––e.g., what was the basis for the documents’ conclusions; what sources of information were relied upon; how reliable were those sources, and what was the nature of the investigatory and regulatory process. The trial court certainly acted within its broad discretion in determining that the admission of these documents would unnecessarily prolong and complicate an already lengthy trial, especially when witnesses from the respective city agencies appeared and testified extensively in person.
Specifically, as part of plaintiffs’ case-in-chief, they called Edward Illumen (Human Rights), Yasuhara Morikawa (San Francisco Department of Building Inspection), David Herring (San Francisco Department of Building Inspection), Larry Wong (San Francisco Public Health Department) and Joe Cuff (San Francisco Fire Department).
While plaintiffs claim they were “severely prejudiced” by virtue of the exclusion of these documents, the jury’s special verdict does not support plaintiffs’ argument. The jury found that between August 2005 and November 2007 there was a substantially defective condition to the plaintiffs’ rental property affecting plaintiffs’ health and safety. Nevertheless, the jury found the condition was caused by plaintiffs themselves breaching their affirmative obligations to defendant. The jury also found that between August 2005 and November 2007, a public officer or employee who was responsible for housing law enforcement, after inspecting the rental property, notified defendant in writing of her obligations to abate the nuisance or repair the substandard conditions, but that defendant had good cause for the delay in completing the repairs within the 35-day timeframe. The jury’s resolution of these issues shows that plaintiffs were successful in proving that the property was out of compliance with government-mandated health and safety standards and that defendant was obligated to rectify the substandard conditions. The excluded documents were cumulative evidence on these points.
Therefore, it is not reasonably probable that the admission of these approximately 20 documents would have had any bearing on the critical issues in this case or would have persuaded the jury to make other findings. Since plaintiffs have failed to show prejudice, any error complained of is necessarily harmless.
For this same reason, plaintiffs have failed to show prejudicial error from the court’s exclusion of Ray Moser’s testimony. Ray Moser was a lay advocate who assisted plaintiffs in getting the appropriate City agencies involved in investigating the conditions at 49 Oliver Street. Ray Moser’s photos of the premises, which showed the condition of the property after defendant commenced her demolition activities, were received into evidence pursuant to stipulation. For the reasons described earlier, evidence of this sort was largely cumulative.
C. Refusal to Continue Trial Because of Counsel’s Illness
Plaintiff Recto claims she was denied a fair trial because the trial should have been continued due to her counsel’s illness. As a result of counsel Mercedes Gavin’s illness, she did not attend trial on June 17, 18, and 19, 2009. Nonetheless, the trial proceeded without her. During Ms. Gavin’s absence, the defense was putting on witnesses and they were crossed-examined by coplaintiff Burgess’s counsel, Nick Reckas. However, Mr. Reckas had substituted into the case approximately one week before trial due to a potential conflict, and he believed he was not as prepared as Ms. Gavin to conduct this examination.
Ms. Gavin returned to court on Monday, June 22, 2009. She made a motion for mistrial, alleging that plaintiff Recto’s case was prejudiced by the court not stopping the trial in her absence. The trial court denied the motion, stating in part: “Ms Gavin just failed to appear in court and left a message with my clerk saying she was sick. My clerk tried repeatedly throughout the day to contact Ms. Gavin. There was no response. I had no choice but to continue with the trial. [¶] Frankly, in my entire time on the bench I have never seen anything like it that in the middle of a jury trial an attorney would simply fail to appear and then be unavailable for contact by the Court. I then had to make a decision on a day by day basis to continue the trial.”
A trial court’s discretion in granting or denying a continuance is broad and will not be overturned on appeal unless the parties were denied a “full and fair hearing.” (Cade v. Mid-City Hosp. Corp. (1975) 45 Cal.App.3d 589, 599.) “ ‘ “The trial judge must exercise his [or her] discretion with due regard to all interests involved, and the refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error. [Citations.]” ’...” (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, quoting In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.)
The trial court’s exercise of discretion is guided by California Rules of Court, rule 3.1332, which provides in pertinent part: “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm.” (Cal. Rules of Court, rule 3.1332(a).) “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Id. at rule 3.1332(c).) A party seeking a continuance must make the request by a noticed motion or an ex parte application, with supporting declarations, as soon as reasonably practical once the need for the continuance is discovered. (Id. at rule 3.1332(b).) The unavailability of trial counsel because of death, illness, or other excusable circumstances, may indicate good cause for a continuance. (Id. at rule 3.1332(c)(3).)
This record provides no basis for reversing the order denying the requested continuance. After Ms. Gavin failed to appear for trial on June 17, she left a message with the clerk saying she was sick, without giving any more detail. There is no evidence in the record that she filed the requisite motion supported by a declaration documenting her health problems (Cal. Rules of Court, rule 3.1332(b)), or otherwise explaining why such a motion could not be filed, or should be excused. After the judge’s clerk was unable to contact Ms. Gavin after repeated attempts throughout the day, Judge Bolanos indicated she “had no choice but to continue with the trial.”
The next day, June 18, Ms. Gavin faxed a written motion to the court saying she was ill, once again with no elaboration, and asking for a continuance until June 22, 2009. As before, there was no declaration, nor did counsel offer any information about the severity or duration of her illness. The transcript for that day also reveals that counsel for coplaintiff Burgess joined defendant in opposing the request for a continuance, stating “[w]e want to finish the trial.” With only that meager showing before it, and in light of the remaining parties’ objections to the continuance, the trial court did not abuse its discretion in refusing to continue the hearing.
The first description of Ms. Gavin’s medical impairment came the next day, June 19, when Ms. Gavin filed a declaration explaining that she had a virus and had been advised by her medical provider to “stay close to the toilet and don’t go anywhere.”
“There is no policy in this state of indulgence or liberality in favor of parties seeking continuances. Rather, the granting of continuances is not favored and the party seeking a continuance must make a proper showing of good cause. [Citations.]” (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) In this case, good cause for the continuance was not shown, nor has plaintiff Recto demonstrated an abuse of discretion in denying the request.
Ms. Gavin cites us to a very detailed declaration, supported by numerous medical documents, which she claims proves she was “seriously ill” when she failed to appear for trial. That declaration and accompanying documentation were proffered in connection with a motion for new trial, and were not before the court on June 17, 18, and 19, 2009, when the court denied Ms. Gavin’s request for a continuance. Thus, Ms. Gavin’s declaration cannot supply the required showing of good cause that is missing here.
Moreover, plaintiff Recto has failed to show how her case was prejudiced by the three-day absence of her counsel. As noted, coplaintiff Burgess’s attorney was present at trial and was available to cross-examine defendant’s witnesses. There has been no showing by plaintiff Recto that this examination was inadequate, or what other examination would have been pursued by Ms. Gavin if a continuance had been granted and she were present during this portion of the defense case.
D. Motion for Nonsuit
At the close of plaintiffs’ evidence, defendant filed a motion for nonsuit requesting the court to strike all of plaintiffs’ causes of action, except two––breach of the warranty of habitability (first cause of action), and wrongful collection of rent for an uninhabitable dwelling in violation of Civil Code section 1942.4 (ninth cause of action). Defendant claimed those were “the only two causes of action where the Plaintiffs have managed to even make a prima facie case.” The court granted defendant’s motion, striking over 15 causes of action because plaintiffs had not submitted any proposed jury instructions for some of these causes of action, and in other cases had failed to introduce sufficient evidence to support these claims. Plaintiffs argue that the court’s refusal to submit these theories to the jury contravened the duty of the court to instruct the jury on all legal theories raised in plaintiffs’ pleadings and emerging from the evidence, and that the court’s grant of nonsuit resulted in prejudicial error requiring a new trial.
Specifically, the court granted nonsuit as to the following causes of action alleged in plaintiffs’ complaint: negligent maintenance of premises (second cause of action), maintenance of a nuisance (third cause of action), intentional and negligent infliction of emotional distress (fourth and thirteenth cause of action), constructive eviction (fifth cause of action), duplicative causes of action for breach of the implied covenant of quiet enjoyment (sixth and twelfth causes of action), excessive rent charges in violation of San Francisco Administrative Code, Residential Rent Stabilization and Arbitration Ordinance, section 37.11A (seventh cause of action); unfair business practices in violation of Business and Professions Code sections 17200 et seq. (eighth cause of action); issuing a defective notice terminating tenancy in violation of the Rent Ordinance, section 37.9(c) (tenth cause of action); and retaliation (eleventh cause of action) The court agreed with defendant that the only causes of action that should go to the jury were breach of the implied warranty of habitability (first cause of action) and wrongful collection of rent for an uninhabitable dwelling in violation of Civil Code section 1942.4 (ninth cause of action).
Plaintiffs point out for the first time in their reply brief that there was an additional cause of action alleged in their complaint claiming elder abuse and elder financial abuse (fourteenth cause of action), and that this cause of action was “ignored both by the trial court and [defendant] who did not move for a non-suit as to these claims.” Plaintiffs claim the court was obligated to address these theories of liability “in some manner, ” and the failure to do so was reversible per se. However, plaintiffs have raised this issue for the first time in their reply brief, and we conclude that this issue is waived on appeal. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
In addition, the court granted nonsuit as to four causes of action for which plaintiffs proposed jury instructions, but which were not pleaded in plaintiffs’ complaint. These causes of action are menace, threats and intimidation in violation of Civil Code section 1940.2, subdivision (a)(3), double letting in violation of Civil Code section 1950, tenant harassment in violation of the Rent Ordinance, section 37.10(B), and unauthorized entry by a landlord in violation of Civil Code section 1954.
The court in Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 444-445, set out the law regarding the grant of nonsuit: “ ‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit [the trier of fact] to find in his favor. [Citation.] “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintiff[’s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor.’ ” [Citation.] A mere “scintilla of evidence” does not create a conflict...; “there must be substantial evidence to create the necessary conflict.” [Citation.]
“ ‘In reviewing a grant of nonsuit, we are “guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.” [Citation.] We will not sustain the judgment “ ‘unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” [Citation.]’ [Citations.]
“Further, matters presenting pure questions of law are subject to our independent or de novo review. [Citations.]” (Original italics.) With these principles in mind, we turn to the nonsuited causes of action.
First of all, plaintiffs have no basis from which to appeal the court’s granting of nonsuit as to their seventh cause of action alleging excessive rent charges (breach of the Rent Ordinance, section 37.11A). Despite having ample opportunity, and despite the court’s repeated requests, the record shows that plaintiffs failed to propose any jury instructions for this cause of action.
Defendant makes the claim that plaintiffs never submitted jury instructions for their causes of action alleging nuisance, constructive eviction, or retaliation (breach of Civ. Code, § 1942.5). However, the record shows plaintiffs did submit jury instructions covering these theories.
In a civil case, if a party fails to request a particular instruction, our Supreme Court has found that the trial court has no duty to instruct the jury on these issues. (Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 701-702; Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951, overruled on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) It is not the duty of the trial judge to sift evidence and research the law in order to determine every possible theory the pleadings or evidence of each party might suggest and to compose instructions to cover them. That duty rests on the attorneys in civil cases. (Hyde v. Avalon Air Transport, Inc. (1966) 243 Cal.App.2d 88, 93.) Under the circumstances of the present case, we see no valid reason to require the trial judge to have drafted instructions on this cause of action for plaintiffs’ benefit.
Furthermore, the record before us shows that plaintiffs did not give defendant fair notice of their intent to pursue several causes of action that were not pleaded in their original complaint, but for which they did propose jury instructions. The causes of action not originally alleged in plaintiffs’ complaint are menace, threats and intimidation in violation of Civil Code section 1940.2, subdivision (a)(3), double letting in violation of Civil Code section 1950, tenant harassment in violation of the Rent Ordinance, section 37.10(B), and unauthorized entry by a landlord in violation of Civil Code section 1954. Plaintiffs did not move to amend their complaint to allege these new theories of liability following their presentation of evidence presumably supporting these new causes of action.
In granting nonsuit to these new causes of action, the trial court could reasonably determine that to allow plaintiffs to deviate from their pleadings by asserting new theories midtrial would unjustly subject defendant to surprise and prejudice by requiring her to defend against factual issues that were not raised by plaintiffs’ complaint. “It is the well established rule that the allegations of a complaint and the proof thereof must be in agreement. This rule is based upon the fundamental proposition that a party must recover, if at all, according to his pleadings, rather than upon some other or different cause which may have been developed by the proof. When such is the case there is presented a material variance, and the defendant is properly entitled to a nonsuit even though the objection might have been obviated by amendment. [Citations.]” (Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 431.) Consequently, the trial court exercised reasonable discretion in ruling that defendant did not have to address plaintiffs’ late-asserted theories as they were not properly before the court. (Hayutin v. Weintraub (1962) 207 Cal.App.2d 497, 508-509 [denial of amendment to add new theories not an abuse of discretion where motion made on day of trial, amendments involved wholly new facts, discovery would have to be redone, substantial inconvenience to witnesses would result, and no excuse for delay].)
This leaves us with the causes of action that were plead in plaintiffs’ complaint and for which plaintiffs submitted instructions. These are the second cause of action alleging negligent maintenance of the premises, the third cause of action alleging maintenance of a nuisance, the fourth cause of action alleging intentional infliction of emotional distress, the fifth cause of action alleging constructive eviction; the sixth and twelfth causes of action alleging breach of the implied covenant of quiet enjoyment (duplicate); the tenth cause of action alleging issuance of a defective notice terminating tenancy in violation of the Rent Ordinance, section 37.9(a)); the eleventh cause of action alleging retaliation, and the thirteenth cause of action alleging negligent infliction of emotional distress.
We begin with the observation that all of the causes of action that were subject to the court’s grant of nonsuit were, for the most part, duplicative or, if not duplicative, ancillary to the two causes of action that were submitted to the jury. Secondly, we observe that all of the facts that would form the basis for liability under the nonsuited causes of action were fully presented at trial. With respect to the two causes of action that were submitted to the jury, the jury’s special verdict seized on the critical aspects of the controversy, and spelled out what it thought was missing from plaintiffs’ case. In finding that the defendant had not breached the warranty of habitability, the jury found that it was plaintiffs themselves, and not defendant, who had caused the substantially defective conditions on the property affecting health and safety. The jury also found that while defendant had failed to make timely repairs after she was notified in writing of her obligation to “abate the nuisance or repair the substandard conditions, ” there was good cause for the delay.
Plaintiffs fail to acknowledge that even were we to reverse the judgment of nonsuit and remand the action for a retrial, plaintiffs would be collaterally estopped from relitigating these issues. These matters were fully litigated by plaintiffs and, by this opinion, will be finally determined adversely to them. Our state’s high court has made it clear that collateral estoppel precludes “a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828, original italics; In re Joshua J. (1995) 39 Cal.App.4th 984, 993 [“Under collateral estoppel, the litigation and determination of an issue by final judgment is conclusive upon the parties or their privies in a subsequent suit on a different cause of action”].)
“The whole philosophy behind the doctrine of collateral estoppel is that issues that have already been litigated should not be relitigated.” (Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668, 685.) Although the jury was not specifically instructed on negligent maintenance of the premises, maintenance of a nuisance, and breach of the covenant of quiet enjoyment, if the jury’s verdict necessarily resolved any of the necessary elements of these causes of action adversely to plaintiffs, we can safely conclude that the plaintiffs were not prejudiced by the grant of nonsuit. (See, e.g., Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1390 [error in granting nonsuit on punitive damages claim was harmless, where plaintiff failed to meet his burden of proof on the underlying causes of action].)
Plaintiffs’ causes of action for negligent maintenance of the premises (second cause of action), maintenance of a nuisance (third cause of action) and duplicative causes of action for breach of the implied covenant of quiet enjoyment (sixth and twelfth causes of action) all hinged on defendant’s liability in failing to “comply with those applicable building and housing code standards that materially affect the health and safety of the tenant” and defendant’s “failure to repair the defective and dangerous conditions.” Consequently, all of these causes of action were inextricably linked to their claim for breach of the implied warranty of habitability (first cause of action). However, the jury’s verdict fully exonerated defendant based on the jury’s conclusion that the defective and dangerous conditions were not caused by defendant at all, but by plaintiffs themselves; and that any delay in making the required repairs was justified. Having rejected the underlying factual basis for plaintiffs’ claim that defendant breached the warranty of habitability, any error in granting nonsuit on these duplicative causes of action was necessarily harmless.
Plaintiffs make no effort to show they were prejudiced by the court’s ruling granting nonsuit as to these causes of action, even though reversal is unwarranted absent prejudicial error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475 [“No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial... and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed.”]); Paterno v. State of California (1999) 74 Cal.App.4th 68, 107.)
Similarly, we also find that plaintiffs cannot show prejudice from the trial court’s grant of nonsuit for their causes of action alleging negligent and intentional infliction of emotional distress (fourth and thirteenth causes of action). Liability for intentional infliction of emotional distress exists only if defendant’s conduct has been so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 (Trerice); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1122, disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.) “Liability ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ [Citation.]” (Ibid.) It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous that recovery is permissible. (Trerice, supra, 209 Cal.App.3d at p. 883.)
Here, defendant’s allegedly extreme and outrageous conduct of which plaintiffs complain is (1) failing to “put the premises into a condition fit for human occupation, ” and (2) “repeated failure to repair the defects or to have them repaired.” Even if this conduct could be deemed extreme and outrageous as defined above, the jury explicitly, or at least implicitly, rejected the assertions which would have been required to be proved to support the right to a claim for emotional distress.
As for the thirteenth cause of action, California law does not recognize an independent tort of negligent infliction of emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984-985.) The tort is subsumed within negligence, a cause of action in which a duty to the plaintiff is an essential element. (Ibid.) In the instant case, plaintiffs proffered evidence that they were tenants on the property owned by defendant. Proof of that status gives rise to certain legal duties on defendants’ part, imposed by law. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1047.)
In claiming negligent infliction of emotional distress, plaintiffs alleged, and attempted to prove, that defendant acted negligently by breaching her duty “to provide a safe and habitable place for Plaintiffs to live” and by failing “to exercise the due care required by failing to correct defects of said premises in wanton and reckless disregards [sic] of the consequences to Plaintiffs....” However, after being given a full and fair opportunity to litigate the matter, plaintiffs failed to prove these allegations and, as such, there is no underpinning of negligence to which plaintiffs can attach a negligent emotional distress claim against defendant.
We next consider plaintiffs’ fifth cause of action for constructive eviction and the eleventh cause of action for retaliation. Whether plaintiffs’ action is for constructive or retaliatory eviction, it is apparent that recovery was being sought on the same general set of facts. Plaintiffs claimed they were served with a notice terminating their tenancy in March 2007 in retaliation for “asserting their right to habitable and safe premises.” They further claim that they were constructively evicted when defendant commenced construction on the premises in a manner calculated to cause maximum disruption to plaintiffs, causing them to eventually vacate the premises. Specifically, plaintiffs claim that “between April 1, 2007 until late November 2007 when plaintiffs vacated the premises, they were deprived of essential services by [defendant]. The rented premises lacked heat, had inadequate lighting and were overrun by rodents. In addition, plaintiffs lost use of the dining room and kitchen. During that time plaintiffs were plagued by the noise and dust created by [defendant’s] demolition/construction activities. Based on this evidence, plaintiffs were constructively evicted as a matter of law.”
Plaintiffs’ cause of action for retaliation is supported by California law that embodies the principle that when a tenant complains about the landlord’s failure to maintain the rental premises, the landlord cannot respond by evicting the tenant in retaliation for the tenant’s assertion of rights. (Barela v. Superior Court (1981) 30 Cal.3d 244, 249.) As to their claim for constructive eviction, “[a] constructive eviction occurs when the... landlord, [by act or omission] renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.” (Groh v. Kover’s Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 614; Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 925-926.) Indeed, in their appellate briefing, plaintiffs recognize that in order to prevail on these causes of action, plaintiffs had to prove that “after they made an oral complaint to [defendant] regarding the tenantability of their residence [defendant] retaliated against them by seeking either to actually or constructively evict them....”
But, the undisputed evidence showed that plaintiffs were never evicted, actually or constructively, in response to the notice of eviction. Defendant rescinded the eviction notice shortly after its issuance when she cancelled her plans to turn the residence into a senior care facility. All of defendant’s tenants understood that their tenancies were no longer being terminated, and no tangible harm flowed from the issuance of the notice.
Moreover, while the plaintiffs attempted to prove that they were constructively evicted when their living spaces were rendered uninhabitable by the deplorable conditions created by defendant’s ensuing renovation of the common areas, causing them to eventually vacate the premises, this argument is but a repeat of the claims made with regard to their cause of action alleging breach of the warranty of habitability. In finding for defendant on that cause of action, the jury rejected plaintiffs’ view of the evidence and found that that the habitability issues were caused by plaintiffs themselves. Having defeated plaintiffs’ cause of action for the breach of the warranty of habitability by failing to prove the necessary element of fault on the landlord’s part, plaintiffs cannot maintain their cause of action for constructive eviction based on the same set of facts. In this situation, as we have noted, collateral estoppel operates to “preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case.” (Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 828, original italics; Smith v. Exxon Mobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1414.)
For these same reasons, we also find that plaintiffs cannot show prejudice from the trial court’s grant of nonsuit to their eighth cause of action alleging a violation of Business and Professions Code sections 17200 et seq. This legislation provides consumers with equitable remedies for any unlawful, unfair, or fraudulent business practice. (See Bondanza v. Peninsula Hospital & Medical Center (1979) 23 Cal.3d 260, 265.) The only forms of economic relief recoverable by a private party plaintiff under Business and Professions Code section 17200 are the equitable remedies of disgorgement or restitution. (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 126-127; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [action is equitable in nature; damages cannot be recovered].
Plaintiffs’ allegations under this separate, equitable cause of action are duplicative of their allegations under their cause of action for breach of the implied warranty of habitability. As we have seen, plaintiffs have failed to prove these predicate acts. Moreover, as a matter of statutory interpretation, we seriously doubt whether the conduct in question was a “business practice” and thus actionable under Business and Professions Code section 17200.
The only cause of action remaining is the tenth cause of action claiming defendant violated the Rent Ordinance. In this regard, plaintiffs claim that the notice terminating their tenancy issued by defendant in March 2007 was defective because, among other things, it failed to inform the tenants that “ ‘advice regarding the notice to vacate is available from the Residential Rent Stabilization and Arbitration Board, ’ ” and failed to offer to pay plaintiffs’ relocation expenses which defendant was required to pay under section 37.9C(e) of the Rent Ordinance.
In response, defendant directs our attention to section 37.9(b) of the Rent Ordinance, which states: “A landlord who resides in the same rental unit with his or her tenant may evict said tenant without just cause as required under Section 37.9(a) [specifying specific grounds for eviction]....” Plaintiffs question whether or not this section is applicable. We need not settle this disagreement.
Even if defendant’s efforts to recover possession of 49 Oliver Street in March 2007 did not comply with the procedural requirements of section 37.9 of the Rent Ordinance, the evidence is undisputed that the notice was rescinded; plaintiffs did not vacate the premises in response to the notice; and as such, did not suffer any damages arising out of the allegedly improper notice.
In conclusion, key elements that were determinative of defendant’s liability were addressed at trial, and decided adversely to plaintiffs. In light of this fact, and the inescapable conclusion that plaintiffs would be collaterally estopped from relitigating these issues in any future litigation, plaintiffs have failed to show that they were prejudiced by the trial court’s grant of nonsuit, if in fact, it erred in doing so.
E. Insufficient Time to Try the Case
Plaintiffs next argue that they were not allowed sufficient time to put on their case. Initially, after the jury was selected, the parties estimated that the matter could be tried in 8 to 12 days. Plaintiffs argue that there were multiple unforeseen delaying forces (all caused by defendant) that made this estimate unrealistic: “As a result of defense counsel’s misrepresentations as to the number of witnesses the defense intended to call and the alleged need for the defendant and several defense witnesses to testify through an interpreter, plaintiffs were mislead in giving [a] low estimate as to the number of days it would take` to try the case. Had plaintiffs known the true facts they would have estimated that it would take five to six weeks to try the case.” (Original italics & bolding.)
Despite the delays that plaintiffs attribute to the defense, the trial court strictly adhered to the original time estimate and repeatedly told the parties and the jury that the case, which began with jury selection on June 1, 2009, would be concluded by June 23, 2009. As a result, plaintiffs claim they “did not have a fair opportunity to present their evidence. Plaintiff Burgess’[s] testimony was curtailed, she was ordered to rest before she was ready and did not have the opportunity to present any rebuttal evidence.”
At the outset, we observe that reading the trial transcript gives an entirely different picture of which actions and events in the course of this trial actually resulted in delays and who was responsible for them. After the trial was concluded, plaintiff Burgess’s counsel complained to the court that he did not have sufficient time to “call all our witnesses.” The court responded as follows: “First of all, both sides had time limits imposed on them from the very outset of this trial, and I am not responsible for your mismanagement of your time. You chose to use your time however you chose to use it, but it was very clear at the outset that both sides had time limits. And frankly, you exceeded your time limit, and I gave you an extra day and a half and took it out of the defense time. [¶] So you have no complaint with regard to time limits.”
Other excerpts from the record reflect that the trial court’s patience was worn thin by what she believed were the dilatory tactics of plaintiffs’ attorneys. On June 15, 2009, with plaintiffs lagging behind on completing their case, the court admonished plaintiffs as follows: “[Y]ou need to figure out a way to finish your case. This case was sent to this courtroom on June 1st. We picked a jury that week and we started with opening statements on June 8th. At the outset of the trial, I gave you an ending date of June 23rd, which is a very lengthy number of days for a case with these sorts of claims in it. This is much longer than any other wrongful eviction case that I have ever seen. Wrongful eviction cases with these sorts of claims two plaintiffs in a boarding house, it should have taken one week. [¶] Frankly, it amazes me that we have gone on for this long.”
Later, the court again admonished plaintiffs’ counsel for their “delaying tactics”: “At the outset of this case, I advised the jury that the trial would be concluded by tomorrow Tuesday June 23. I did that based on estimates given by counsel and based on my assessment of the claims in this case. Frankly, I assumed this case would be done and concluded by June 19th and I factored in an extra couple of days just as a cushion. [¶] Counsel engaged in significant delaying tactics and wasted tremendous amounts of time. I nonetheless gave plaintiffs[’] counsel a day and a half extra beyond the initial time estimate that I had allotted to their case.”
Code of Civil Procedure section 128 provides in pertinent part: “(a) Every court shall have the power to do all of the following: [¶]... (3) To provide for the orderly conduct of proceedings before it, or its officers [and][¶]... [¶] (5) To control in furtherance of justice, the conduct of... all... persons in any manner connected with a judicial proceeding....” This statute confers broad discretion on the trial court over the conduct of the litigation before it. (Hays v. Superior Court (1940) 16 Cal.2d 260, 264; Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230.)
The trial judge unquestionably had the authority under Code of Civil Procedure section 128 to set a firm number of days for this action to be tried and to hold the parties to this deadline all the way to the trial’s conclusion. (Santandrea v. Siltec Corp. (1976) 56 Cal.App.3d 525, 529, disapproved on another point by Bauguess v. Paine (1978) 22 Cal.3d 626, 639, fn. 8 [“Every court has inherent power to regulate the proceedings of the matters before it and to effect an orderly disposition of the issues presented.”].)
Given the reality of crowded court dockets, trials often must be scheduled for weeks or months in the future; and it is essential that a firm end date be adhered to so that a courtroom will be available for the next case. Also, a firm date gives counsel an incentive to prioritize their evidence and to keep the trial moving along in an expeditious fashion. The fact that on repeated occasions, the court rebuked plaintiffs counsel for dilatory tactics, further buttresses our conclusion that the trial court acted appropriately in invoking its inherent power in setting a firm deadline for the end of trial.
As an example of the “endless and painstaking cumulative and duplicative questioning conducted” by plaintiffs, defendant points out that plaintiffs called defendant Villa Jacinto as their own witness in their case-in-chief and had her on the stand for five days.
F. Instructional Error
Plaintiffs claim “[t]here are two problems with the given jury instructions. First, the court violated Code of Civil Procedure [section] 607a by not holding a conference with the parties to advise them of the instructions it intended to give. Consequently, the plaintiffs had no opportunity to object to these instructions before they were read to the jury. Second, had the plaintiffs had the opportunity to object, they would have pointed out to the court numerous material misstatements of the law in these instructions.”
Plaintiffs’ first argument is disingenuous, given the fact that they failed to fulfill their obligations under Code of Civil Procedure section 607a. That section states, in relevant part, as follows: “In every case which is being tried before the court with a jury, it shall be the duty of counsel for the respective parties, before the first witness is sworn, to deliver to the judge presiding at the trial and serve upon opposing counsel, all proposed instructions to the jury covering the law as disclosed by the pleadings....” (Italics added.)
The record reveals this statutory deadline came and went with plaintiffs not submitting proposed instructions until shortly before they rested their case. The defendant had also submitted a set of proposed instructions. The record reveals the trial judge repeatedly requested that the parties meet and confer and come up with a joint set of jury instructions, indicating at one point, “[t]here should be very little in dispute. I don’t understand why there is so much in dispute on the jury instructions.” Although each party blames the other for an unwillingness to meet and confer, the one thing that is clear is that the parties were never able to meet and/or agree on any instructional language. After the evidentiary phase of trial was concluded, a clearly exasperated court stated: “All right. Now once again, I want to make it very clear for the record that I have been asking you, on a daily basis for the last week, beginning last Tuesday, to meet and confer and submit a set of joint jury instructions along with separate jury instructions so the Court could review them in a timely fashion. And day by day by day I failed to receive anything from the parties on jury instructions. [¶] So the only choice I had was that, on the day before jury instructions were to be given... I did the best I could with the submissions that I was given.”
Thus, the record reveals the court undertook to act as the jury instruction scrivener, attempting to fulfill its obligation “to instruct the jury on the controlling legal principles applicable to the case so that the jury w[ill] have a complete understanding of the law applicable to the facts;...” (Lysick v. Walcom (1968) 258 Cal.App.2d 136, 157-158.)
Under these circumstances, the following principles apply: If a trial court “gives a jury instruction which is correct as far as it goes but which is too general or is incomplete for the state of the evidence, a failure to request an additional or a qualifying instruction will waive a party’s right to later complain on appeal about the instruction which was given. [Citation.]” (Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 9; accord, Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1010-1011.) However, when a trial court gives a jury instruction which is prejudicially erroneous as given, i.e., which is an incorrect statement of the law, the party harmed by that instruction need not have objected to the instruction or proposed a correct instruction of his own in order to preserve the right to complain of the erroneous instruction on appeal. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 841.)
Plaintiffs claim the jury instructions misstated the law on the implied warranty of habitability. “[T]he standards of ‘tenantability’ set out in Civil Code section 1941.1, though not strictly applicable in this context of their own force, may provide some helpful guidance in determining whether a landlord has satisfied the common law warranty of habitability.” (Green v. Superior Court (1974) 10 Cal.3d 616, 637-638, fn. 23.)
The instructions on the warranty of habitability contained a synopsis of Civil Code section 1941.1, but plaintiffs claim the instruction was misleading because it provided an incomplete list of the statute’s specific requirements. Specifically, plaintiffs claim the instructions given to the jury “omitted key requirements of the statute which are highlighted in bold..., ” to wit:
“A dwelling shall be deemed untenantable for purposes of Civil Code section 1941 if it substantially lacks any of the following affirmative standard characteristics:
“(a) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
“(b) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.
“(c) Heating facilities which conformed with applicable law at the time of installation, maintained in good working order.
“(d) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order....” (Original bolding.)
Plaintiffs claim the omission of the bolded language prejudiced them because the jury did not have a complete definition of the conditions affecting habitability. We find this argument to be largely academic given the fact that the jury found defendant had failed to maintain the property in a safe and habitable condition. Specifically, by special verdict, the jury found that during the lease period “there [was] a substantially defective condition to the rental property of [plaintiffs] affecting health and safety.” However, the jury absolved defendant of all responsibility for the breach of the implied warranty of habitability based on its finding that the defective condition was caused by plaintiffs’ own breaches of their affirmative obligations to defendant. Therefore, the special verdict itself confirms that the finding for defendant was not based on the jury’s lack of knowledge of the conditions which make premises uninhabitable; and any omission in the instructional language which went to this issue was manifestly harmless. (Soule, supra, 8 Cal.4th at p. 580 [instructional error in a civil case is prejudicial only where it seems probable that the error prejudicially affected the verdict].)
For this same reason, we also reject plaintiffs’ argument that the court erred in failing to instruct the jury on the standards for habitability set forth in Health and Safety Code section 17920.3, pertaining to dangerous conditions on a rental property.
Next, and more importantly, plaintiffs argue the court gave the jury erroneous instructions on their affirmative obligations as tenants. The law provides that a landlord’s duty to make the premises habitable does not arise if the tenant violates certain obligations referring to the proper use and maintenance of the dwelling, as required by Civil Code section 1941.2.
Civil Code section 1941.2, subdivision (a) states that the landlord’s statutory duty to repair does not arise if the tenant is in substantial violation of any of certain specified affirmative obligations and that violation “contributes substantially to the existence of the dilapidation or interferes substantially with the landlord’s obligation... to effect the necessary repairs.” These obligations include (1) keeping that part of the premises which the tenant occupies as clean and sanitary as the condition of the premises permits; (2) disposing from the tenant’s dwelling unit of all rubbish, garbage, and other waste in a clean and sanitary manner; (3) using and operating all electrical, gas, and plumbing; fixtures properly and keeping them as clean and sanitary as their condition permits and (4) occupying the premises as the tenant’s abode, and only using those areas of the premises for living, sleeping, cooking, and dining which were designed or intended for such uses. (Civ. Code, § 1941.2.)
In their opening brief, plaintiffs claim that Civil Code section 1941.2 is an affirmative defense and that the jury should have been instructed that defendant had the burden of proof on this issue. However, plaintiffs fail to support this assertion with any pertinent argument or authority, and we are entitled to reject it on that ground. (Cal. Rules of Court, rules 8.4, 8.204(a)(1)(B), (C).)).) Moreover, in spite of the fact that this court never requested post-oral argument supplemental briefing, the clerk’s office has received, but not filed, plaintiffs’ supplemental briefing on this issue. At the conclusion of oral argument, this case was submitted, which unequivocally means that “the time has expired to file all briefs and papers, including any supplemental brief permitted by the court.” (Cal. Rules of Court, rule 8.256(d)(1).) Consequently, we will not consider this unsolicited supplemental briefing when the issue should have been, but was not, properly addressed in plaintiffs’ appellate briefing.
Plaintiffs claim the instruction given to the jury paraphrasing Civil Code section 1941.2 “completely misstates the requirements of the statute.” Plaintiffs emphasize that “it is not enough for the landlord to show the plaintiffs violated one of their affirmative obligations.” They point out that in order for the landlord to be excused by the tenant’s nonperformance of one of these affirmative obligations, the tenant’s violation must contribute substantially to the existence of the dilapidation or interfere substantially with the landlord’s obligation to effect the necessary repairs. (Civ. Code, § 1941.2.) They claim this last requirement was omitted from the instruction given to the jury.
The challenged instruction lists six affirmative obligations of the tenant in accordance with the language of Civil Code section 1941.2 and provides, in substance, that “[n]o duty on the part of the landlord to repair [the] dilapidation shall rise [sic] if the tenant” is in violation of any of the listed affirmative obligations. The last obligation listed is “Or if the tenant’s violation contributes substantially to the existence of a dilapidation or interferes substantially with the landlord’s obligation to effect the necessary repairs.” (Italics added.) Plaintiffs claim the “Or” was a mistake and that it should have been replaced by “And” to signify that, in all cases, the tenant must contribute to the dilapidation or substantially interfere with the landlord’s obligation to effect the necessary repair.
Reversible error cannot be shown by failure to give a particular instruction where the point is covered adequately by other instructions given. (See Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343; Traxler v. Varady (1993) 12 Cal.App.4th 1321, 1332-1333.) The causation point raised by plaintiffs was adequately covered by the special verdict form. The special verdict indicated that in order to be relieved of the obligation to make necessary repairs, “the substantially defective condition to the rental property” must be “caused by [plaintiffs] breaching their affirmative obligations to the landlord.” Therefore, the jury could not have exonerated defendant for failing to correct a defect or deficiency unless it found that plaintiffs’ wrongful conduct substantially contributed to the existence of the defective condition. (Civ. Code, § 1941.2.) Consequently, we reject plaintiffs’ argument that the instruction given to the jury was misleading on this point.
G. Special Verdict Form
Plaintiffs next complain that the special verdict form used by the jury to find defendant not liable for breach of the implied warranty of habitability was defective. Question A2 in the special verdict was phrased as follows: “A2. Between August 2005 and November 2007 was the substantially defective condition to the rental property of MERCEDES RECTO AND ELSA BURGESS caused by MERCEDES RECTO or ELSA BURGESS breaching their affirmative obligations to the landlord?” The jury was given the option of answering “Yes” or “No, ” and the jury answered “Yes.”
When the motion for a new trial was argued, plaintiff Recto’s counsel pointed out that the special verdict used the disjunctive “or” in asking whether “MERCEDES RECTO or ELSA BURGESS breached their affirmative obligations to the landlord?” (Italics added.) She argued as follows: “The way the form should have read was––it should have separated each plaintiff out, and should have just dealt with Mercedes Recto in one verdict form and Elsa Burgess in another verdict form. And then separately it should have addressed that––that each of the substantially defective conditions to the rental property were caused by each....” In short, plaintiffs claim the liability of each plaintiff should have been evaluated individually.
But, plaintiffs did not raise this concern before the jury was instructed, nor did they ask to have the jury correct or clarify the verdict before the jury was discharged. Instead they waited to object to the form of the special verdict in their motion for a new trial. (See Code Civ. Proc., § 619 [“When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.”].) “[I]f the form of a verdict is defective, the complaining party must object or risk waiver on appeal of any such defect. [Citations.]” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1093, fn. 6; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [objection to a special verdict form must be made before the jury is discharged or it is waived].) Thus, plaintiffs have waived any challenge to the form of the verdict or its questions by failing to object before the jury was discharged.
H. Misconduct of Counsel
In the next argument, plaintiffs claim they were denied the right to a fair trial due to repeated instances of “serious misconduct” by defense counsel including “(a) using improper methods to appeal to the jury’s sympathy; (b) making speaking objections to put plaintiffs’ counsel in a false light in the jury’s eye; (c) engaging in improper argument; (d) continually using leading questions; and (e) engaging in other misconduct.” In response, defendant counters that if there was misconduct, it “came directly from Plaintiffs’ counsel.” In order to reinforce this point, defendant cites to instances where the court sought to call a halt to objectionable conduct by admonishing plaintiff Burgess’s counsel.
Courts have long recognized that “ ‘accusations of misconduct of counsel read out of context, frequently exaggerate its seriousness.’ [Citation.]” (Arrieta v. Payne, Webber, Jackson & Curtis, Inc. (1976) 59 Cal.App.3d 322, 328.) It is only the record as a whole that can reveal the nature and effect of allegedly improper conduct. (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 317-318.)
In light of the length of the trial, and the thousands of questions which were asked and answered, it was inevitable that some of defense counsel’s questions might have been objectionable and comments deemed improper. However, the few instances in which this occurred cannot be characterized as a pervasive course of misconduct. While defense counsel’s conduct in this trial was far from perfect, the record indicates that plaintiffs’ counsel engaged in their fair share of objectionable conduct. The trial judge did a commendable job in a case where the bickering among lawyers seemed constant. The judge did not permit the trial to degenerate into a free-for-all, made prompt rulings on objections, and admonished counsel when necessary. Considering defense counsel’s conduct in the context of the trial as a whole, we conclude that plaintiffs’ contention that defense misconduct denied them a fair trial to be specious.
At one point, a clearly exasperated court admonished plaintiff Burgess’s counsel: “[Y]ou have enough experience. You should be able to abide by the rules of evidence and the court’s rulings. There’s really no excuse for your continued disregard for the rules and the court’s rulings... [and] I frankly am perplexed.”
I. Judicial Impartiality
Plaintiffs next contend that they were deprived of a fair trial because the trial court’s bias and animosity toward them infected the proceedings. Plaintiffs argue “[t]he trial court’s misconduct was not limited to her completely improper reprimands of attorney Reckas. It also includes (a) not giving Recto a short continuance or declaring a mistrial when her counsel became ill; (b) nonsuiting almost all of [plaintiffs’] claims in a perfunctory hearing; (c) blocking Burgess from presenting clearly admissible and relevant evidence...; (d) displaying hostility throughout the trial to [plaintiffs’] counsel and their case; and (e) making inconsistent rulings which favored [defendant].”
When reviewing a claim of bias, “... ‘the litigants’ necessarily partisan views should not provide the applicable frame of reference. [Citations.]’ [Citation.]” (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724 (Roitz).) Rather, we view the trial court’s conduct under an objective standard to determine whether a reasonable person would entertain doubts about the court’s impartiality. (Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247, disapproved on anther ground in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4.) Bias and prejudice must be clearly established: “Neither strained relations between a judge and an attorney for a party nor ‘[e]xpressions of opinion uttered by a judge, in what he [or she] conceived to be a discharge of his [or her] official duties, are... evidence of bias or prejudice. [Citation.]’ [Citation.]” (Roitz, supra, at p. 724; see also People v. McWhorter (2009) 47 Cal.4th 318, 373 [“ ‘[i]t is well within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improper or delaying behavior.’ [Citation.]”].) We also emphasize that “erroneous rulings, especially those that are subject to review, do not establish a charge of judicial bias. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1112, citing Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796.)
Utilizing these standards, plaintiffs have shown nothing that would call into question the trial judge’s impartiality in this matter. The examples of alleged bias cited by plaintiffs amount to nothing more than plaintiffs’ difference of opinion with the manner in which the judge administered the courtroom, and plaintiffs’ disagreement with various rulings made by the court during the course of this case that are currently challenged on appeal. We can find no basis for concluding that a reasonable, neutral observer would question the trial judge’s impartiality.
J. Attorney Fees and Costs
Plaintiffs do not challenge defendant’s entitlement to attorney fees and costs as the prevailing party in this matter. However, they claim the amount of attorney fees and costs awarded to defendant was excessive.
The court entered an amended judgment on October 28, 2009, awarding defendant $178,801.50 in attorney fees and $61,432.62 in costs, for a total award of $240,234.12. Plaintiffs claim defendant inflated her request for expert fees by approximately $23,000 and her attorney fee request by $3,249.50. Plaintiffs contend this court should strike defendant’s cost bill in its entirety due to counsel’s “unclean hands.”
As our Supreme Court has observed, the “ ‘ “experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
Defendant met her initial burden of presenting prima facie evidence that the services subject to a fees and costs motion were necessarily incurred by presenting a voluminous itemized statement of such services. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) The burden thus fell on plaintiffs to challenge specific items as unwarranted or not recoverable. (See, e.g., Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 (Premier Medical) [“General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”]; Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015-1016, [mere claim fees unrecoverable insufficient; duty to present contrary evidence and explain why].) Meeting this burden required submission of evidence challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits.
Only plaintiff Recto brought a motion to tax costs. Consequently, plaintiff Burgess’s failure to file a motion to tax costs waives her right to object to them now. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290 [failure to file motion to tax costs constitutes waiver].) Similarly, there is no indication in plaintiff Recto’s briefing that the specific items challenged on appeal as “fraudulent time entries” were ever brought to the trial court’s attention below. Thus, both plaintiffs have waived the right to contest these items on appeal for the first time. (Premier Medical, supra, 163 Cal.App.4th at p. 564 [“failure to raise specific challenges in the trial court forfeits the claim on appeal.”]
IV.
Disposition
The judgment is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.