Alkayali v. Logan

Filed 8/29/08 Alkayali v. Logan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Derek Guy Johnson, Judge. Affirmed.

James G. LeBloch and Edward F. OConnor for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Arthur J. Travieso and Alan E. Greenberg for Defendant and Respondent.

* * *

Terri and Ahmad Alkayali appeal from the judgment entered against them in the lawsuit they filed against their former landlord, Gordon Logan. The Alkayalis assert the trial court erred in refusing to allow them to introduce portions of Logans deposition testimony which are inconsistent with his trial testimony. The Alkayalis assert the deposition testimony was relevant to determining the credibility of Mr. Logan, and therefore admissible under Evidence Code section 780.

We agree the trial court erred in refusing to admit the deposition testimony. Although the portion of Logans trial testimony contradicted by his deposition actually benefitted the Alkayalis case, the inconsistency cast doubt on Logans credibility as a witness. Because Logan testified at trial on a number of other matters, Logans credibility was at issue. We conclude, however, the trial courts error does not warrant reversal because the Alkayalis failed to demonstrate prejudice. Accordingly, we affirm.

I

Factual and Procedural Background

In their complaint, the Alkayalis alleged that they had leased a home from Logan, and he failed either to disclose to them that the leased premises had problems with seeping moisture and resulting mold growth, or to remediate the problem. They alleged that as a consequence, they suffered damages from the effects of the mold. Their complaint sought recovery under a number of different causes of action, including negligence and breach of contract.^[1]

Logan testified in his deposition he could not remember any prior tenant complaining to him about a moisture or mold problem, and denied being aware of any such problems. When asked whether [p]rior to [the Alkayalis] residing there, did any tenant complain to you about any water damage or water intrusion, he answered, Not that I recall. When asked whether, Prior to [the Alkayalis], did any tenant complain to you about any mold in the home, Logan responded, No.

At trial, Logan testified differently on this issue. After hearing the rather detailed testimony of a former tenant, who described a meeting he had with Logan to discuss moisture and flooding problems in the residence, Logan acknowledged he had been aware of these problems before leasing the home to the Alkayalis. Logan was asked whether in fact you recall that [the tenant] called you, and he initially replied, Do I recall distinctly, no. But when he was then asked did you go out to the property after he notified you of the flooding, he acknowledged, I believe thats what he testified. Yes, I did.

Logan also conceded he first became aware of moisture intrusion problems during the prior tenants occupancy. He believed the heavy rains that winter caused the flooding that damaged the residence, but the problem was unlikely to recur because the City of Laguna Beach subsequently erected berms and gutters to divert the flowing rainwater. He also stated he had attempted to arrest another moisture problem by demolishing the affected wall down to [the] cinderblock, and used a commercial sealer to impede further seepage. Additionally, at the request of the former tenant, he hired a contractor to repair some plumbing located in a crawl space.

During their cross-examination of Logan at trial, the Alkayalis directed Logans attention to a portion of his deposition testimony in which he had denied knowledge of the moisture problems prior to their tenancy. Logan objected on the grounds the prior testimony was not impeachment. An unrecorded sidebar conference ensued, and upon its conclusion, the Alkayalis proceeded with cross-examination. The Alkaylais later attempt to call Logans attention to the same deposition passage was met with [s]ame objections, your honor. The court sustained the objections.

The jury returned a verdict in Logans favor. The Alkayalis now appeal.

II

Discussion

A. The Trial Court Erred in Excluding Logans Inconsistent Deposition Testimony

Code of Civil Procedure section 2025.620 provides, in relevant part: At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions: [] . . . [] (b) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing. As Logan correctly notes, the provision in Code of Civil Procedure section 2025.620, subdivision (b), that a partys deposition may be used for any purpose, is qualified by the phrase so far as admissible under the rules of evidence . . . .

The Alkayalis assert Evidence Code section 780 authorizes admission of the deposition testimony. That section provides the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to . . . [] . . . [] A statement made by him that is inconsistent with any part of his testimony at the hearing. Thus, the question we must confront is whether Logans excluded deposition testimony has any tendency in reason to prove or disprove his trial testimony. We answer in the affirmative.

The Alkayalis claimed Logan knew of moisture problems at the home before leasing it to them, but failed to either remediate the problems or disclose the problems to them. Thus, Logans admission in his trial testimony that he knew about moisture problems at the home supported the Alkayalis theory of the case. If this admission was the totality of Logans testimony, then nothing would be gained by admission of his deposition testimony to the contrary. In other words, if the only testimony Logan provided at trial supported the Alkayalis case, the Alkayalis would have no legitimate reason to attack his credibility as a witness. If this were the case, we would conclude the Alkayalis simply sought to demonstrate Logans bad character in the hope the jury would dislike him.

But Logan did not limit his trial testimony to his foreknowledge of moisture problems at the property. In defending his actions, Logan expressed to the jury his belief the moisture problems had been adequately mitigated before he leased the property to the Alkayalis by the citys erection of berms and gutters, by his partial demolishment and resealing of an affected wall, and by a contractors repairs to plumbing located in a crawl space. This testimony was fair game for impeachment by evidence casting doubt on his credibility. Unmistakably, evidence showing Logan previously claimed under oath he was unaware of moisture problems, but altered his story only after hearing the contrary testimony of a previous tenant, would have a tendency in reason to . . . disprove the truthfulness of [Logans] testimony at the hearing regarding remediation efforts and his purported belief the problem had been solved.

Nothing in Evidence Code section 780 suggests a party may not impeach a witness on one subject with a prior inconsistent statement on a different subject. To the contrary, the section provides as an example of acceptable impeachment, a statement that is inconsistent with any part of [the witnesss] testimony at the hearing. (Evid. Code, 780, subd. (h), italics added.) Indeed, jury instructions have long recognized the testimony of a witness may be rejected in its entirety based on a single willfully false statement. Specifically, BAJI No. 2.22 provides: A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars. Similarly, CACI No. 107 provides, in relevant part: [I]f you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.

Logan suggests the trial court may have determined the prejudicial effect of the proffered deposition testimony outweighed its probative value under Evidence Code section 352. Nothing in the record, however, suggests the court excluded the evidence under section 352. The only objection Logan raised to the statements was that they were not impeachment. We recognize the sidebar conference following Logans objection was unrecorded. Nonetheless, [i]f a proper objection under [Evidence Code] section 352 is raised, the record must affirmatively demonstrate that the trial court did in fact weigh prejudice against probative value. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 599.) Here, the record does not demonstrate the trial court undertook its obligation to perform Evidence Code section 352s weighing function. Presuming, as we must, the trial court did not shirk its obligations, we must conclude no objection was properly and timely made under Evidence Code section 352.

Moreover, it is unclear what undue prejudice would accrue to Logan if his depositions statements were admitted. True, the excluded evidence might have caused the jury to view Logan as a liar and perjurer. But Logans credibility as a witness was clearly at issue. As this division observed: [T]he idea that evidence should be excluded because it is highly prejudicial to a litigants case is a classic error. Often the most highly probative evidence is also highly damning, and therefore prejudicial in a superficial sense of the word. Evidence Code section 352 does not, however, allow for the exclusion of evidence merely because it is prejudicial in the sense of damaging to a litigants position. The relevant phrase from the statute is substantial danger of undue prejudice.. . . Undue prejudice springs from evidence which has very little effect on the issues. (OMary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 575, italics omitted.) Because the only prejudice potentially accruing to Logan from admission of his prior inconsistent statements pertains to his veracity, the trial court could not rely on Evidence Code section 352. We therefore conclude the trial court erred in excluding Logans inconsistent deposition testimony.

B. The Alkayalis Failed to Demonstrate Prejudice

Although we conclude the trial court erred, our analysis is not at an end. We are required to disregard any error or improper ruling which does not affect the substantial rights of the parties. (Code Civ. Proc., 475.) Thus, we may reverse only if we conclude it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citations.] Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant. (Brokopp v. Ford Motor company (1988) 71 Cal.App.3d 841, 853-854.)

The Alkayalis prejudice argument consists of the following statement: The unwarranted and restrictive approach the Court took in preventing Plaintiffs counsel from reading deposition testimony had an enormous negative impact on the trial. Plaintiffs counsel prepared the cross examination of Mr. Logan relying on his right to read the deposition testimony. The deposition testimony was the lynchpin for other cross examination questions based on other inconsistent testimony adduced earlier at the trial. Not allowing counsel to follow his cross-examination plan and read the selected deposition testimony interrupted and substantially undermined the effectiveness of the examination to the disadvantage of the Plaintiffs.

Vague, sweeping statements that the trial courts error undermined the effectiveness of the Alkayalis cross-examination fall woefully short of demonstrating prejudice. Specifically, the Alkayalis failed to explain the impact of Logans testimony in the context of the trial as a whole. Was Logans testimony the only evidence of remedial efforts taken to mitigate the moisture problems? Did other evidence demonstrate Logan believed the problems had been fixed? Did Logans attorney rely on Logans testimony during closing argument? Did the Alkayalis use other evidence to impeach Logans testimony? Because the Alkayalis have offered nothing specific on how the admission of the impeachment evidence would have made a favorable result more probable, we must presume the trial courts error in excluding Logans inconsistent deposition statements was harmless.

III

Disposition

The judgment is affirmed. Logan is awarded his costs on appeal.

ARONSON, J.

I CONCUR:

OLEARY, J.

BEDSWORTH, ACTING P. J., concurring:

I concur in the judgment. I certainly agree with my colleagues that any error in this case was harmless. I write separately only to express my chagrin that they are so eager to find error where I consider the record inadequate to support such a claim.

Logans testimony at trial was that he knew of water problems at the property. This was contrary to his deposition testimony, in which prior to hearing other witnesses testify he did have such knowledge he had denied it. But the trial testimony supported the Alkayalis theory of the case. Nonetheless, during their cross-examination of Logan at trial, the Alkayalis attempted to introduce into evidence those portions of his deposition testimony in which he had denied knowledge of the water problems prior to their tenancy.  Logan objected, and after an unrecorded sidebar discussion between the attorneys, the court sustained the objections. 

            The only objection stated in open court was that the first portion of the deposition which the Alkayalis attempted to introduce was not impeachment. That objection was followed by the unrecorded sidebar discussion, and the next attempt to introduce the deposition testimony was met with the statement same objections, your honor.  The court sustained those obviously plural objections.  However, because the sidebar discussion was not recorded, we have no way of ascertaining exactly what objections were ultimately sustained.  In light of our obligation to presume the courts rulings are correct unless proven otherwise, I feel compelled on this record to assume Logan raised appropriate objections.

            The general rule is that a trial court is presumed to have been aware of and followed the applicable law. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443 [[A]n appellate court must presume that the decision of the trial court is correct.]; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321 [An order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.]; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645 [Neither party requested findings of fact from the trial court. In the absence of such findings, an appellate court must presume that the facts would support the trial courts judgment.]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.].  (People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.)

I simply do not think error can be affirmatively shown in a case in which objections are made in a sidebar that is not recorded, the objections are sustained, and the losing party then complains they were inadequate. Its one thing to closely review the videotape and conclude the umpire erred; it seems to me to be quite another to say, Well, there is no videotape of the actual play, but based on the videotape of where the runner was a few seconds earlier and where the ball was, we conclude the call was probably incorrect when it was actually made.

Call me old-fashioned: I cannot find error without hearing what the trial court heard.

           Moreover, the majority opinion theorizes that although the Akayalis were clearly not attempting to impeach Logans trial testimony on the point where his deposition testimony conflicted with it since that trial testimony was more favorable to their case than the deposition had been that deposition testimony would still have been admissible as a means of impeaching his credibility with respect to other aspects of his trial testimony. 

The problem with that theory, however, is that it asserts an argument the Akayalis themselves never made.  Their opening brief points to no other aspects of Logans trial testimony they claim were untruthful. My colleagues have constructed a lovely argument on behalf of the Alkayalis, but it makes its first appearance in the majority opinion, and Logan will doubtless be surprised to see it.

So, on the record we have with no suggestion by the Alkayalis that the proffered impeachment would have done anything except generally dirty-up the other side the offered testimony would seem to me to be improper impeachment, just as Logan asserted in his first objection to it (the one that was reported).

I think the trial court got it right. And on this record, I certainly cannot say he got it wrong. I would affirm without resort to harmless error analysis.

BEDSWORTH, ACTING P. J.

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^[1] The Alkayalis first amended complaint included 11 causes of action, but only the negligence and breach of contract claims survived to reach the jury.