Adams Stirling PLC

California Court of Appeals, Third District, Mono
(November 7, 2018) UNPUBLISHED

Michael David Stein, Tisdale & Nicholson LLP, 2029 Century Park E # 900, Los Angeles, CA 90067, for Plaintiff and Appellant.

David S. Baumwohl, Attorney at Law, P.O. Box 1188, 126 Old Mammoth Road, Suite 220, Mammoth Lakes, CA 93546-1188, for Defendant and Respondent.


*1 This case started when a water heater leaked from the inside of a second-floor apartment at the Mountainback Condominiums in Mammoth Lakes. Water found its way down to the first floor, where appellants Bob and Julie Bakas owned a condominium unit. Based on the resulting damage, the Bakases sued the Mountainback Condominium Owners Association (Mountainback). The Bakases did not allege the water heater failure in the upper floor apartment was the cause of their damages. Instead, they alleged Mountainback failed to properly maintain the common area plumbing in the building where the units were where the water leak occurred. This failure to maintain the common plumbing allegedly caused the water leak.

The Bakases ended up going to trial on different theories. They argued to the jury that (1) Mountainback engaged in a breach of contract to maintain the common areas in first class condition as required by the Covenants, Conditions, and Restrictions (CC & Rs), and (2) Mountainback's deficient conduct in handling the water leak created a private nuisance suffered by the Bakases. The jury returned a defense verdict. The trial court entered judgment in favor of Mountainback and awarded $425,000 in attorney fees, paralegal fees, and costs to Mountainback.

On appeal, the Bakases contend (1) the trial court did not give “explanatory instructions” required by Wilson v. Southern California Edison(2015) 234 Cal.App.4th 123 (issued February 9, 2015) (Wilson ), (2) the defense “verdict is not supported by substantial evidence,” (3) the jury's verdict must be reversed for being inconsistent and contradictory, and (4) the trial court abused its discretion in awarding unsubstantiated and redundant attorney fees as well as paralegal costs.

We conclude the Bakases did not preserve their jury instruction claim for appeal because they did not propose the additional instructional language they contend was necessary to supplement CACI 2021. We determine substantial evidence supported the jury's verdict. The jury's verdict is consistent with disbelief of the Bakases' expert's testimony and that the Bakases did not prove their two causes of action. Finally, we are not persuaded by the Bakases that the trial court abused its discretion in awarding attorney and paralegal fees. Accordingly, we affirm.


Consistent with the standard of review, we recite the facts in the light most favorable to the judgment. (Estate of Teel (1944) 25 Cal.2d 520, 527.)

On April 16, 2009, the Mammoth Lakes Fire Protection District (Fire Department) responded to the Mountainback Condominiums. A water heater in a second-floor unit owned by Steven and Catherine Bong had failed. The captain of the Fire Department testified that “it was minimal water damage when we arrived on scene. We pretty much immediately turned off the water heater as well as water to the building.” The captain remembered that ServiceMaster arrived on the scene “pretty quick” to begin the cleanup. Rob Friedl, Mountainback's assistant manager, was also on site. Touring the building with Friedl, the captain found: “Just minimal water damage. We pretty much cleaned up with our water vacs what we could when ServiceMaster arrived on scene, and we pretty much turned the scene over to them for cleanup.” Friedl testified that “[t]here wasn't much water in [the Bakases'] condo at all.”

*2 Mountainback introduced evidence that it had no duty to maintain the Bongs' water heater. Mountainback hired ServiceMaster to begin the clean-up even before the Fire Department departed from the site. The Fire Department captain noted that in the area, “typically, ServiceMaster is the one that will help clean up because they have more advanced equipment.” Mountainback also promptly tendered the claim to its insurance carrier, State Farm.

Consistent with the “minimal water damage” observed by the Fire Department captain, Friedl called Julie Bakas – who was on her way up to Mammoth Lakes to the condominium with a group of family and friends. Friedl informed her she would be able to stay in the unit. Friedl observed, “[t]here wasn't much water in her condo at all.”

ServiceMaster ended up running dehumidifiers, vacuums, and blowers for 19 days to dry the affected areas. Mountainback and the Bakases were dissatisfied with the length of time ServiceMaster took to dry the water. However, the Bakases never named ServiceMaster as a defendant.

Mold was eventually discovered in the common areas and inside the Bakases' unit. Brian Daly, an industrial hygiene and safety engineer, testified that on other sites when he has gone into areas where mold was concentrated he has experienced “[e]ye irritation, upper respiratory tract irritation and a killer headache after about two hours.” However, when he inspected the Bakases' unit he observed that “but for that closet that had a little mold and sloughing gyp Board, clean dry, pretty, nice carpet, clean walls. Place looked great. I would rent it if I went skiing up here.” There was “no odor whatsoever,” and “[a]ll the walls were dry.” Daly's ambient air samples showed that “conditions were normal in the condo. I thought, ‘Great everyone should be happy.’ ” And common area samples revealed only “tiny” amounts of mold. Daly concluded the limited amount of mold inside the Bakases' unit was not caused by the Bongs' water heater leak. Instead, it was caused by a clothes washer's plumbing inside the Bakases' unit.

In contrast to the evidence presented by Mountainback of minimal water and mold, the Bakases presented evidence characterizing the water intrusion and mold damage as substantial. Julie testified the carpet in her unit was soaking wet. ServiceMaster had “equipment everywhere” in her unit. Julie recounted: “As soon as we hit the stairwell in the garage, you could hear the noise of the equipment. And when you got into the hallway on our floor, the equipment was all up and down the hallway, fans, I guess dehumidifiers, very loud and noisy.” Inside her unit, “[t]here was equipment everywhere. The kitchen was full of a great big box unit, which I came to find out was a dehumidifier. There were a couple of fans in there, several fans and dehumidifiers up and down the hallway, into the hallway bathroom.”ServiceMaster took 19 days to dry the water out at Mountainback. On May 19, 2009, the Bakases returned to their unit after being advised by the Mountainback manager that everything was dry in their unit. The next day, the Bakases' vacuum cleaner filled with water when they used it on the carpet.

The Bakases also had their claim for damages denied by State Farm. This proved to be a substantial point of contention as the Mountainback manager stated the Mountainback board of directors had “authorized State Farm (under the association['s] policy) to pay for the drywall and any other common area repairs in your unit.”

*3 At trial, the Bakases relied on the testimony of Joseph Spurgeon, who has a doctorate degree in environmental health and analytical chemistry. On September 10, 2009, Dr. Spurgeon inspected the Bakases' unit as well as the building in which it is located. He found visible water damage at the seams of drywall sheets, drywall dimpling due to water damage, and mold growing on the drywall inside a closet. He collected air samples from the wall cavity spaces and found elevated levels of Aspergillus/Penicillium mold spores and Stachybotrys mold spores (commonly called black mold). Swabs from the unit revealed abundant Ulocladium and major Cladosporium mold spores. Based on his findings, Dr. Spurgeon proposed a protocol to remediate the mold damage.

Bob Bakas sent the proposed remediation protocol to State Farm but did not hear anything back for more than six months. The Bakases later learned the Mountainback manager never received full authority from the board of directors to restore the damaged units to their pre-flood condition. This was due to the board of directors' desire to have the Bongs pay for the damage. The Mountainback manager testified that it “[i]s the obligation of the Board to maintain common areas in first-class condition ... if they tender the claim to the insurance company and continue to pressure them to respond ....”

Mountainback introduced rebuttal testimony by Daly that challenged the reliability of Dr. Spurgeon's testing methodology.

The jury returned a defense verdict. On the contract cause of action, the jury found Mountainback did not “fail to do something that the contract required it to do.” On the private nuisance action, the jury found that “Mountainback, by acting or failing to act, create[d] a condition or permit[ted] a condition to exist that was harmful to health or indecent or offensive to the senses or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life and property.” However, the jury concluded the seriousness of the harm did not outweigh the public benefit of Mountainback's conduct.

Notice of Appeal

The trial court entered judgment in favor of Mountainback. The Bakases filed a motion for new trial, which the trial court heard and denied. Thereafter, the Bakases filed a timely notice of appeal. The trial court also awarded $425,000 in attorney and paralegal fees to Mountainback. The Bakases filed a supplemental notice of appeal from the order granting fees and costs.



Failure to Instruct the Jury Pursuant to Wilson v. Southern California Edison

The Bakases argue the trial court erred by failing to sua sponte supplement CACI No. 2021 with “additional, explanatory instructions” required by Wilson, supra, 234 Cal.App.4th 123. Specifically, the Bakases contend the trial court should have provided additional instruction that the jury, in considering a cause of action for private nuisance, consider the extent of harm sustained; the character of the harm; the social value of the use or enjoyment of property invaded, suitability of the type of use to the character of the locality, and extent of burden on the Bakases to avoid the harm. (See generally Wilson, supra, 234 Cal.App.4th at p. 163.) However, the Bakases requested CACI No. 2021without proposing any supplemental language despite the fact Wilson was decided before the trial court instructed the jury in this case. Consequently, the Bakases have not preserved their instructional error claim for appeal.

“A civil litigant must propose complete instructions in accordance with his or her theory of the litigation and a trial court is not ‘obligated to seek out theories [a party] might have advanced, or to articulate for him [or her] that which he [or she] has left unspoken.’ [Citations.]” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653, quoting Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.) And “if a party fails to do so, the court ordinarily has no duty to instruct on its own motion.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 675.) Neither does a party have a duty to propose an instruction for the benefit of an opposing party. (Ibid.) In short, neither the trial court nor Mountainback had a duty to propose the additional instructions the Bakases now claim to have been necessary. For failure to submit the additional or explanatory instruction, the Bakases' claim has not been preserved for appeal.1

*4 At oral argument, counsel for the Bakases asserted the source of the claimed error was not instructional error but the trial court's subsequent legal analysis regarding the merits of the motion for a new trial. We reject the assertion. The motion for new trial was based on the same legal claim underlying the instructional error that has not been preserved for review. Crediting their argument would have the effect of excusing the Bakases' failure to fulfill their duty to request supplemental jury instructions. (In re Seaton (2004) 34 Cal.4th 193, 199[rejecting argument that issue not preserved for appeal should be reviewed because it would have the effect that a litigant “might choose not to object simply to gain the proverbial ‘two bites at the apple’ ”].) Accordingly, we are not persuaded by the Bakases' attempt to revive a forfeited instructional error issue by raising it for the first time after the jury returned its verdict.


Substantial Evidence

The Bakases argue the defense verdict is not supported by substantial evidence. In so arguing, they dismiss the value of Mountainback's expert witness while characterizing the testimony of their own expert witness as “uncontested” regarding mold in the walls. They also fault the work performed by ServiceMaster at the direction of Mountainback. Thus, the Bakases urge us to conclude the jury erred in finding (1) on their breach of contract cause of action that Mountainback did not “fail to do something that the contract required it to do,” and (2) on their private nuisance cause of action that “the seriousness of the harm” did not “outweigh the public benefit of Mountainback's conduct.” We reject the contentions.


The Substantial Evidence Standard of Review

We apply the substantial evidence rule when reviewing a challenge to a jury's verdict on claims of insufficient evidence. (Pope v. Babick(2014) 229 Cal.App.4th 1238, 1245–1246.) Under the substantial evidence rule, we view the record in the light most favorable to the judgment. This means we resolve all conflicts in the evidence and draw all reasonable inferences in favor of the jury's verdict. (Ibid.) “We emphasize that the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) And the testimony of a single witness, including that of a party, may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)


Contract Cause of Action

On the cause of action for breach of contract claim on failure to maintain the common area pursuant to the provisions of the CC & Rs in the first class condition, Question 3 of the special verdict asked the jury: “Did Mountainback fail to do something that the contract required it to do?” The jury answered, “No.” In ruling on the motion for new trial, the trial court reasoned: “I think that the jury found that there was no breach of contract. [¶] The contract being the CC & Rs that require them to maintain common areas in a first class manner. They found that there was no breach of contract.”

The evidence showed Mountainback was not responsible for maintaining the water heater inside the Bongs' apartment that caused the leak. Even though he was going for a run at the time, Mountainback's assistant property manager responded immediately when he saw the fire trucks arrive at the condominiums. He immediately called ServiceMaster to begin the cleanup. Mountainback was constrained in its choice because in the setting where the condominiums lie, ServiceMaster is “the only game close in town.” And the testimony showed Julie conceded the property manager responded every time she and Bob asked for anything, “bent over backwards” to communicate with them and “address all [their] concerns,” and did everything he could to get the insurer to help the Bakases receive compensation.

*5 The jury also had the prerogative to reject the Bakases' theory of the case pleaded in its operative complaint that Mountainback failed to maintain common area pipes that supplied water to the Bongs' apartment. As defense counsel pointed out in his closing argument, “[t]here was no testimony about pipes or plumbing or something in the common areas giving way.” Mountainback promptly tendered the claim to its insurer. Based on this evidence, the jury could have found Mountainback made every effort required of it to maintain the common areas in first class condition and therefore did not breach its contractual obligations under the CC&Rs.


Private Nuisance Cause of Action

For the cause of action for private nuisance, the Bakases bore the burden of proving the harm to them outweighed the public benefit of Mountainback's conduct. Question 12 of the verdict asked, “Did the seriousness of the harm outweigh the public benefit of Mountainback's conduct?” The jury answered, “No.” During the hearing on the motion for new trial, the trial court stated: “I think the jury, in answering number twelve as they did, ... said to us that the defendant created a nuisance, but that it was no big deal, in comparison to its other duties and obligations, and that they are not going to therefore give any money for it. [¶] The jury felt that the benefit outweighed the harm.” The jury could have rejected the Bakases' nuisance action premised on mold inside their unit on two separate grounds: inconsequential damage and lack of causation.

First, substantial evidence showed there was inconsequential damage to the Bakases' apartment. The jury heard expert testimony that there were only “tiny numbers” of mold counts in the common areas. Inside the Bakases' unit, Mountainback's expert found no odor, dry walls, and normal conditions. In the opinion of the expert, the Bakases' unit “looked great.” Based on this evidence, the jury could have concluded any mold inside the Bakases' unit was slight.

Second, the jury could also have found the mold inside the Bakases' unit was not caused by the water heater leak. On this point, the jury could have credited the expert's conclusion that it was caused by a different water leak within the unit. Specifically, the testimony was: “What I'm talking about is mold growth as a result of a hot water heater failure that occurred in mid 2009. And it's painfully obvious the only mold growth that anyone found in the Bakas' unit wasn't from that. It was from the laundry plumbing.” Thus, the jury had substantial evidence to conclude that while there might have been some minimal mold from the hot water leak, the mold problem in the Bakases' unit had another cause. Because Mountainback’s conduct was not the cause of any mold damage inside the Bakases’ apartment, the jury was entitled to determine the alleged nuisance was outweighed by the public benefit of Mountainback’s efforts in responding to the nuisance.

We reject the Bakases' assertions that the testimony of their expert, Dr. Spurgeon, was uncontested and therefore had to be accepted by the jury. Even if uncontested, the jury could have rejected the testimony. “So long as it does not do so arbitrarily, a jury may entirely reject the testimony of a plaintiff's expert, even where the defendant does not call any opposing expert and the expert testimony is not contradicted.” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 633.) Here, however, the jury heard from Mountainback's expert, Brian Daly, who disputed the reliability of Dr. Spurgeon's methodology and noted that even Dr. Spurgeon's numbers revealed only a tiny amount of mold in the Bakases' unit. The trial court properly instructed the jury it did not need to accept any expert's opinion. (Figarden General Partnership (2015) 238 Cal.App.4th 370, 392.) Because the jury was not compelled to accept any part of Dr. Spurgeon’s testimony, it could have concluded the mold in the unit was too minimal to outweigh the public benefit of Mountainback’s conduct.

*6 For these reasons, we reject the Bakases' substantial evidence challenges.


Whether the Jury's Verdict is Contradictory or Inconsistent

The Bakases next argue the jury's verdict must be reversed as contradictory and inconsistent. We are not persuaded.

“A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. (Zagami, Inc. v. James A. Crone, Inc.(2008) 160 Cal.App.4th 1083, 1092 (Zagami ).) [¶] On appeal, we review a special verdict de novo to determine whether its findings are inconsistent. (Zagami, supra, 160 Cal.App.4th at p. 1092.) With a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict. (Ibid.; Mendoza [v. Car Club, Inc. (2000) ] 81 Cal.App.4th [287,] 302–303.) ‘ “ ‘Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error.’ ” [Citations.]’ (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682.) ‘The appellate court is not permitted to choose between inconsistent answers. [Citations.]’ (Ibid.) The proper remedy for an inconsistent special verdict is a new trial. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344.)” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357–358.)

Here, the jury's verdicts are not contradictory as the Bakases contend. Instead, the verdicts are consistent with jury findings that Mountainback did not cause the water heater leak and that the resulting effort to address the alleged nuisance was trivial in light of the public benefit.

Regarding the contract cause of action, the jury found Mountainback did not fail to do something the contract required it to do. As we explained in part II, the evidence is consistent with a finding that Mountainback did not have a contractual obligation to maintain the Bong's water heater and that Mountainback's pipes were not shown to be the cause of the water heater failure. Thus, the jury may have found no breach of contract simply based on a failure of proof by the Bakases.

The Bakases emphasize the jury's findings on questions relating to the tort cause of action for private nuisance as being incompatible with the jury's finding there was no breach of contract. Specifically, the Bakases point out the jury found that “Mountainback, by acting or failing to act, create[d] a condition or permit[ted] a condition to exist that was harmful to health or indecent or offensive to the senses or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property ....” The jury further found “this condition” interfered with the Bakases' property, the Bakases did not consent to the conduct, an ordinary person would have been reasonably annoyed or disturbed, and Mountainback's conduct was a substantial factor in causing the harm to the Bakases' property.

However, the jury found the seriousness of the harm did not outweigh the public benefit of Mountainback's conduct. The evidence supported a jury finding that the damage from the water heater leak was slight. As we have noted, Mountainback's expert testified the Bakases' unit “looked great” and had no odor of mold. In contrast to a finding of very minimal harm supported by the evidence, the jury was entitled to find Mountainback's efforts in responding to the alleged nuisance was sufficiently important and beneficial that it outweighed the inconvenience to the Bakases.

*7 In sum, substantial evidence supports the consistency of findings by the jury that the Bakases did neither prove Mountainback breached the contract for failure to maintain the common area nor that they suffered anything other than trivial harm in the form of inconvenience.


Attorney Fees

The Bakases challenge the award of attorney fees to Mountainback on three grounds. We are not persuaded.

First, the Bakases assert Mountainback's counsel did not attach time records or billing statements to its initial request for fees. As Mountainback points out, however, its counsel submitted evidence in support of the attorney fee request to its reply. The trial court then gave the Bakases the opportunity to file a response, and the Bakases actually filed a response. The Bakases make no attempt to show prejudice resulting from the more extensive briefing procedure. (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854 [“Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant”].) Consequently, we affirm for lack of prejudice.

Second, in the trial court, the Bakases “pointed out the fact that the time sheets ... were replete with literally hundreds of hours of excessive, duplicative, unnecessary and/or non-recoverable time entries including, for example (i) pre-litigation work; (ii) block billing; (iii) time entries with generic descriptions; and (iv) non-attorney paralegal time.” (Citations omitted.) As this court has previously noted, “[t]he appellant may not simply incorporate by reference arguments made in papers filed in the trial court, rather than briefing them on appeal.” (Keyes v. Bowen(2010) 189 Cal.App.4th 647, 656.) Whatever arguments the Bakases may have presented in the trial court, they do not present a developed analysis of which of the 943 billing entries cited may have fallen into any of their four categories of objectionable line items. The undeveloped argument is deemed forfeited.

Third, the Bakases contend the trial court erred in not requiring Mountainback “to meet its evidentiary burden of proving the hours sought were reasonable and necessary, provided with hundreds of hours of time entries saying nothing more than ‘trial preparation,’ ” and by awarding paralegal fees. This contention too is forfeited for failure to develop the argument. (Central Valley Gas Storage, LLC v. Southam(2017) 11 Cal.App.5th 686, 695.)

Moreover, we note that “[i]t is well established that ‘California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. [Citations.]’ (Pearl, Cal. Attorney Fee Awards [Cont. Ed. Bar 3d ed. Mar. 2014], § 9.83, p. 9-70, and authorities cited therein; see, e.g., Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375–1376 [declarations sufficient and detailed billing records not required ...].)” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698–699, fn. omitted.) Reviewing the record, we conclude the declarations of counsel for Mountainback along with the list of time and tasks expended are sufficient records to support the trial court's fee award. Finally, we note paralegal costs have been held recoverable in a motion for attorney fees. (Id. at p. 695.)


*8 The judgment is affirmed. Mountainback Condominium Owners Association shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

We concur:

BLEASE, Acting P.J.



1. We do not address Mountainback's contention of instructional error because it neither filed a notice of appeal nor is it aggrieved by the defense verdict. (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.)

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