Sullivan v. Sherlock
Filed 6/25/12 Sullivan v. Sherlock CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
BRIAN SULLIVAN,
Plaintiff and Appellant,
v.
DANIEL SHERLOCK et al.,
Defendants and Respondents.
B227274
(Los Angeles
County
Super. Ct.
No. BC375976)
APPEAL from
a judgment of the Superior Court
of
County, Debre Katz Weintraub, Judge. Affirmed.
LT Pacific
Law Group and Kenneth K. Tanji, Jr., for Plaintiff and Appellant.
Law Office
of Bruce Adelstein, Bruce Adelstein; Edward J. Horowitz and Edward J.
Horowitz for Daniel Sherlock, Jason Blaylock and Lock House Artistry LLC,
Defendants and Respondents.
_____________
Daniel
Sherlock and Jason Blaylock purchased and remodeled a home in the hills
overlooking the San Fernando Valley and then resold it
to Brian Sullivan. After moving in,
Sullivan discovered what he contended were serious, previously undisclosed
problems with the residence and sued Sherlock and Blaylock for
and concealment. The jury returned a
defense verdict, finding the sellers had not misrepresented or concealed any
important fact. On appeal from the
judgment entered after the jury’s verdict, Sullivan argues the trial court erred
in denying a special jury instruction on a seller’s statutory duty of
disclosure and committed prejudicial error with several evidentiary
rulings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1.
The Wrightwood Drive Home Remodel
Sherlock purchased a three-bedroom
home on Wrightwood Drive in
Studio City
in October 2004 for $790,000 with the intention of remodeling it with his
partner, Blaylock, and then reselling it.
(Before this project, Sherlock and Blaylock had remodeled or renovated
three other homes.) Although Sherlock
and Blaylock initially hired a general contractor to oversee all the work,
ultimately Sherlock performed that task himself as an owner-builder.
The Wrightwood
Drive home, located in the hills of the Santa
Monica Mountains
overlooking the San Fernando Valley, rests on a raised
foundation supported by wooden beams and girders. Using a number of different licensed
contractors, Sherlock and Blaylock replaced plaster walls with drywall; moved
interior walls, closets and doorways; replaced windows and doors; added two
fireplaces and a small bathroom; enclosed a catwalk on the exterior of the
building under the existing roofline; remodeled the kitchen; replaced or
upgraded both the electrical panel and the plumbing; and installed a new roof. The total cost of the remodel was
approximately $600,000.
In early February 2005 a neighbor
called the City of Los Angeles’s
Department of Building and Safety (DBS) and requested an inspection of the work
being done at the residence. On February
11, 2005, after visiting the site, DBS inspector John Hamilton issued an order
to comply (“stop orderâ€), explaining “[a] complete remodel of the dwelling is
being constructed without the required permits and approvals†and directing
Sherlock and Blaylock to obtain permits for the work being done or to remove
any unpermitted work. At about this same
time Sherlock and Blaylock fired their general contractor because of several
ongoing problems, including delays, performance of work out of order and
failure to obtain permits.
After receiving the order to
comply, Sherlock obtained specific permits for various aspects of the
remodeling work (for example, a permit to replace windows, doors, drywall,
plaster and stucco; a permit for the new electrical panel; and a permit for the
added fireplaces). Hamilton subsequently
wrote “compliance obtained†on the order to comply; and his successor, DBS
inspector Constantino Cuellar, thereafter inspected the property and on
December 29, 2005 signed off on the permits that had been obtained. Sherlock and Blaylock, however, did not
obtain permits to demolish, reconstruct or reconfigure walls, nor did they
obtain roofing permits.
Sherlock listed the property for
sale with Gail Reed Cox in 2006. Cox was
also Sullivan’s real estate agent for the sale of a house he owned. Sullivan saw the listing, visited the house
and entered into negotiations for its purchase.
On December 13, 2006 Sherlock provided Sullivan with the transfer
disclosure statement (TDS) required by Civil Code section 1102 et seq. In the section designated for disclosure of
information by the seller, Sherlock had checked “no†in response to each
question in section C, including, “Are you (seller) aware of any of the following: . . . 4. Room additions, structural
modifications, or other alterations or repairs made without necessary permitsâ€;
“5. Room additions, structural modifications, or other alterations
or repairs not in compliance with building codesâ€; and “15. Any
notices of abatement or citations against the property.â€
Sullivan ultimately agreed to buy
the home for $1,700,500. A home
inspection performed for Sullivan did not indicate any major problems with the
residence. The foundation was described
as “serviceable,†but the inspector recommended it be examined further. The inspection did not investigate any
potential permit issues. Escrow closed
on January 11, 2007.
2.
Sullivan’s Lawsuit
Sullivan moved into the Wrightwood
Drive home in March 2007 and began making repairs. In the course of this work he checked the
permit history for the property.
According to Sullivan, he learned there were four open permits for the
remodeling work and discovered numerous other problems at the residence: The floors were substantially more uneven
than had been apparent prior to the close of escrow; the roof was sagging and
leaking; the walls were curving; and the foundation beam and retaining wall
were cracked. Sullivan ultimately
received a “substandard order†from the City of Los Angeles (apparently in response
to his own requests for an inspection) finding the building deficient “due to
deteriorated or defective flooring or floor supports†and ordering Sullivan to
repair or replace the deteriorated or defective flooring or floor supports.
Sullivan filed his initial
complaint on August 15, 2007 and the operative pleading, the sixth amended
complaint, on December 31, 2008, alleging causes of action for intentional and
negligent misrepresentation against Sherlock and Blaylock. A cause of action for concealment was added
at trial. Sullivan also asserted various
claims against realtor Cox, the home inspector and his mortgage lender. Those parties all settled with Sullivan prior
to trial.
During the 15-day trial the jury
heard sharply conflicting testimony. Sherlock and Blaylock testified they
understood the notations from inspectors Hamilton (“compliance obtainedâ€) and
Cuellar (“final OKâ€) to mean they had completed all permitting requirements. Thus, any errors or omissions in the TDS with
respect to permits or code compliance were not within their personal knowledge
at the time of the sale to Sullivan. As
they explained, Hamilton or Cuellar had repeatedly inspected the house; and
Sherlock and Blaylock had successfully followed all their instructions. Hamilton, however, testified he wrote
“compliance obtained†simply to transfer the case to Cuellar, and Cuellar noted
he only inspected portions of the project covered by specific permits obtained
by the owners.
There was, of course, no dispute
permits to demolish, reconstruct or reconfigure walls had not been
obtained. Sherlock and Blaylock
testified they had told inspector Cuellar this work had been done and believed
nothing more was required from them in light of his “final OK†of the
remodeling project. Cuellar, on the
other hand, testified no such disclosure had been made to him. Additional testimony was introduced
suggesting Cuellar must have been aware that interior walls had been moved,
based on the comments he made at the time, and indicating his memory of the
details of his visits to the Wrightwood Drive residence was not entirely clear.
Sherlock and Blaylock also
testified their roofing contractor had agreed to obtain the roofing permits, a
position supported by language in their contract. However, at trial the roofing contractor
denied he had been asked to do any permitting work.
With respect to the allegedly
defective foundation, civil (structural) engineer Hovik Khanjian testified
Sullivan asked him to come to the property in 2007 to inspect the beams under
the house. Khanjian concluded the house
was old and the beams were not in perfect condition, but he saw no significant
deflection or damage or any structural defect.
Sullivan, on the other hand, testified he did not hire Khanjian to
inspect the foundation, but to prepare a statement or report that Khanjian, who
had previously done work for Sherlock and Blaylock, did not do any engineering
work on the Wrightwood Drive property.
Khanjian would not provide the requested report.
Sullivan’s engineer Charles Laines,
in contrast to Khanjian, opined the house was structurally unsound and the
entire foundation needed to be replaced.
This opinion and the supporting analysis of Sullivan’s general contractor
expert Robert McConihay were based primarily on their conclusion the remodeling
project had added 30,000 pounds to the house, a 23 percent increase in
weight, which caused the foundation to sink and break. The shifting of the foundation, in turn, led
to the increasing unevenness of the floors that Sullivan had observed. McConihay calculated the cost of the repairs
recommended by Laines to be just under $1 million.
Sherlock and Blaylock’s experts
(engineering expert Rodney Spears, geologist Wayne Schick and general
contractor expert Andrew Gillespie) offered a significantly different view of
the condition of the house. They
testified Sherlock and Blaylock had removed more weight during the remodeling
process than had been added. The
foundation of the house, they testified, had minor damage and deterioration but
was not sinking or failing. The floors
were, indeed, uneven, but not more so than at the time Sullivan inspected and
then purchased the house. The few
missing permits would be easy to obtain, and the cost of implementing Spears’s
recommended repairs would be approximately $70,000.
Sherlock and Blaylock also
introduced evidence designed to erode Sullivan’s credibility. Their presentation included testimony from
the owners of two homes rented by Sullivan after leaving the Wrightwood Drive
residence, who described numerous and, at least in their view, largely
meritless complaints Sullivan had made about the condition of their properties
and who concluded Sullivan was untrustworthy.
They also challenged Sullivan’s testimony about his prior relationship
with Sherlock and Blaylock and the reason Sullivan hired Khanjian, as well as
demonstrating various inconsistencies between Sullivan’s trial and deposition
testimony.
3.
The Jury Instructions
The jury was instructed on
intentional misrepresentation with CACI No. 1900, on concealment with CACI No.
1901, on negligent misrepresentation with CACI No. 1903 and on
nondisclosure of material fact with CACI No. 1910. As modified for this case by the trial court,
those instructions provided: “Mr. Sullivan claims that
Mr. Sherlock and/or Mr. Blaylock made a false representation that harmed
him. To establish this claim
Mr. Sullivan must prove all of the following: 1. That Mr. Sherlock and/or Mr.
Blaylock represented to Mr. Sullivan that an important fact was true;
2. That Mr. Sherlock and/or Mr. Blaylock’s representation was false;
3. That Mr. Sherlock and/or Mr. Blaylock knew that the
representation was false when they made it or that they made the representation
recklessly and without regard for its truth; 4. That Mr. Sherlock
and/or Mr. Blaylock intended that Mr. Sullivan rely on the representation;
5. That Mr. Sullivan reasonably relied on Mr. Sherlock and/or Mr.
Blaylock’s representation; 6. That Mr. Sullivan was harmed; and
7. That Mr. Sullivan’s reliance on Mr. Sherlock and/or
Mr. Blaylock’s representation was a substantial factor in causing his
harm.
“Mr.
Sullivan claims that he was harmed because Mr. Sherlock and/or
Mr. Blaylock concealed certain information. To establish this claim, Mr. Sullivan must
prove all of the following:
1. That Mr. Sherlock and/or Mr. Blaylock disclosed some facts
to Mr. Sullivan but intentionally failed to disclose other important
facts, making the disclosure deceptive, or that Mr. Sherlock and/or Mr.
Blaylock intentionally failed to disclose an important fact that was known only
to them and that Mr. Sullivan could not have discovered, or that Mr. Sherlock
and/or Mr. Blaylock actively concealed an important fact from Mr. Sullivan or
prevented him from discovering that fact; 2. That Mr. Sullivan did not
know of the concealed fact . . . .
“Mr.
Sullivan claims he was harmed because Mr. Sherlock and/or Mr. Blaylock
negligently misrepresented an important fact.
To establish this claim Mr. Sullivan must prove all of the
following: 1. That Mr.
Sherlock and/or Mr. Blaylock represented to [Mr. Sullivan] that an
important fact was true; 2. That Mr. Sherlock and/or Mr. Blaylock’s
representation was not true; 3. That although Mr. Sherlock and/or
Mr. Blaylock may have honestly believed the representation was true, Mr.
Sherlock and/or Mr. Blaylock had no reasonable grounds for believing the
representation was true when they made it . . . .â€
“Mr.
Sullivan claims that Mr. Sherlock and/or Mr. Blaylock failed to disclose
certain information and that because of this failure to disclose, Mr. Sullivan
was harmed. In order to establish this claim, Mr. Sullivan must prove all the
following: 1. That
Mr. Sullivan purchased the [Wrightwood Drive] property from Mr. Sherlock
and/or Mr. Blaylock; 2. That Mr. Sherlock and/or Mr.
Blaylock knew that certain information was not disclosed; 3. That
Mr. Sherlock and/or Mr. Blaylock did not disclose this information to Mr.
Sullivan; 4. That Mr. Sullivan did not know and could not reasonably
have discovered this information; 5. That Mr. Sherlock and/or Mr.
Blaylock knew that Mr. Sullivan did not know and could not reasonably have
discovered this information; 6. That this information significantly
affected the value or desirability of the property; 7. That Mr.
Sullivan was harmed; and 8. That Mr. Sherlock and/or Mr. Blaylock’s
failure to disclose the information was a substantial factor in Mr. Sullivan’s
harm.â€
The
jury was also instructed on the definition of an “important fact†for purposes
of Sullivan’s causes of action for misrepresentation and concealment: “A fact is important if it would influence a
reasonable person’s judgment or conduct.
A fact is also important if the person who represents or makes it knows
that the person to whom the representation is made is likely to be influenced
by it even if a reasonable person would not.â€
(See CACI No. 1905.)
Sullivan
prepared a special instruction on the statutory duty of disclosure: “A seller of a single-family residence
is obligated to provide the buyer with a Transfer Disclosure Statement on a
form provided by law. The Transfer
Disclosure Statement must contain all information regarding the subjects covered
in it which is within the personal knowledge of the seller. Each disclosure required by the form must be
made in good faith. A seller who
intentionally or negligently fails to provide the requested information which
is in his possession in good faith is liable for a buyer’s actual damages.†The court denied Sullivan’s request to give
his special instruction No. 1, ruling the CACI instructions adequately
explained the law regarding a seller’s required disclosures.
4. The
Jury’s Special Verdict and the Judgment for Sherlock and Blaylock
The
jury deliberated for less than an hour and returned its special verdict in
favor of both Sherlock and Blaylock. On
Sullivan’s cause of action for intentional misrepresentation, the jury answered
“No†to questions 1, “Did Mr. Sherlock make a false representation of an
important fact to Mr. Sullivan?†and 6, “Did Mr. Blaylock make a false
representation of an important fact to Mr. Sullivan?†On Sullivan’s cause of action for
concealment, the jury answered “No†to questions 11, “Did Mr. Sherlock intentionally
fail to disclose an important fact that Mr. Sullivan did not know and could not
reasonably [have] discovered?†and 15,
“Did Mr. Blaylock intentionally fail to disclose an important fact that
Mr. Sullivan did not know and could not reasonably have discovered?†And on Sullivan’s cause of action for
negligent misrepresentation, the jury answered “No†to questions 19, “Did Mr.
Sherlock make a false representation of an important fact to Mr. Sullivan?†and
25, “Did Mr. Blaylock make a false representation of an important fact to Mr.
Sullivan?â€
Judgment
was entered on July 19, 2010.
judgment notwithstanding the verdict were denied. Sullivan filed a timely notice of appeal.
DISCUSSION
1.
Refusal of Sullivan’s Special
Instruction No. 1 Was Not Prejudicial Error
a.
The TDS and
disclose
A transferor of residential real
estate has a statutory duty to deliver to the prospective transferee, prior to
transfer of title, a written statement set forth in a statutorily prescribed
transfer disclosure form attesting to whether the seller is aware of certain
legislatively enumerated defects, including “[r]oom additions, structural
modifications, or other alterations or repairs made without necessary permits .
. . or not in compliance with building codes†and “[a]ny notices of abatement
or citations against the property.†(See
Civ. Code, §§ 1102.3 [requiring delivery of transfer disclosure statement];
1102.6 [providing disclosure form to be used].)
disclosure form, the Legislature requires the seller to make each disclosure in
“good faith,†defined as “honesty in fact in the conduct of the transaction.†(Civ. Code, § 1102.7.) A willful or negligent violation of this
statutory duty creates liability for any actual damages suffered by the
transferee. (Civ. Code, § 1102.13.)
When establishing this statutory
duty of disclosure, effective January 1, 1987, the Legislature “did not intend
to affect the existing obligations of the parties to a real estate contract, or
their agents, to disclose any fact materially affecting the value and
desirability of the property, including, but not limited to, the physical
conditions of the property . . . .†(Civ. Code, § 1102.1, subd. (a); see
171 Cal.App.4th 153, 161 [describing seller’s common law duty of
disclosure]; Shapiro v. Sutherland
(1998) 64 Cal.App.4th 1534, 1544 [same].)
Rather, “[t]he purpose of the enactment was instead to make the required
disclosures specific and clear.†(
b. The
CACI instructions adequately covered the sellers’ duty to disclose
Sullivan’s claims of
misrepresentation, nondisclosure and concealment against Sherlock and Blaylock
were principally based on information regarding permits and potential code
violations that was omitted from, or incorrectly stated on, the TDS. He concedes the trial court’s CACI
instructions on his common law theories of liability were accurate and complete,
but insists the court erred in refusing his special instruction on the failure
to make statutory disclosures as a “separate theory of liability.â€
that the CACI instructions refer to the misrepresentation of “an important
fact†and nondisclosure of “certain information†and the jury may not have
understood those more general terms to include each specific item of disclosure
identified in the TDS. Every other
element of the common law and statutory causes of action, including intent,
causation and damage, is the same.
The trial court did not err in
rejecting Sullivan’s proposed special instruction.
The CACI instructions as given fully covered all possible types of
misrepresentation and nondisclosure at issue in this case: “A party is not entitled to have the jury
instructed in any particular fashion or phraseology, and many not complain if
the court correctly gives the substance of the applicable law.†(Thompson
Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525,
553; accord, Cristler v. Express
Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)
As discussed, the CACI instructions
informed the jury an “important fact†for purposes of Sullivan’s causes of
action was one that would influence a reasonable person’s judgment or conduct
or one the person making the representation (that is Sherlock or Blaylock) knew
was likely to influence the person to whom it was made (Sullivan). In addition, the nondisclosure of “certain
information†was expressly identified as information that “significantly
affected the value or desirability of the property.†Sullivan, of course, claimed that he relied
on the allegedly inaccurate TDS when purchasing the Wrightwood Drive home and
that the various defects of which he was unaware (and that Sherlock and
Blaylock either intentionally concealed or negligently failed to disclose)
would cost more than $1 million to repair.
Given that testimony and the prominent role the TDS played at trial,
including its admission into evidence and extended discussion of it during both
counsel’s closing arguments,
name="_ftnref5" title="">[5] the jury was properly instructed on the
substance of the applicable law. (See,
e.g., Arato v. Avedon (1993) 5
Cal.4th 1172, 1189, fn. 11 [court may refuse instruction requested by party
when legal point is adequately covered by other instructions given];
169 Cal.App.4th 1197, 1217 [rejecting claim of instructional error when
requested special instructions were duplicative of instructions given]; cf.
supra, 171 Cal.App.4th at p. 82 [instructions as given to be evaluated
as a whole, not in isolation].)
c.
Refusal to give the specially
prepared instruction was not prejudicial
In its responses to the special
verdict questions, the jury found neither Sherlock nor Blaylock had
misrepresented an important fact or intentionally failed to disclose an
important fact that Sullivan did not know or could not reasonably have
discovered. As Sherlock and Blaylock
argue on appeal, these findings necessarily include the more particular finding
that neither man intentionally or negligently made any material
misrepresentation or concealed a material fact in connection with the
TDS—either because there were no significant problems with the Wrightwood Drive
house or because, if there were, Sherlock and Blaylock did not know about them
or thought they had been corrected.
Accordingly, even if it were error to refuse Sullivan’s proposed special
instruction, any error was harmless.
(See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580
[“there is no rule of automatic reversal or ‘inherent’ prejudice applicable to
any category of civil instructional error, whether of commission or
omission. A judgment may not be reversed
for instructional error in a civil case ‘unless, after an examination of the
entire cause, including the evidence, the court shall be of the opinion that
the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)â€];
v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1094 [in reviewing the
claims of instructional error, “we must not only determine whether the trial
court committed error, but whether the error resulted in a ‘miscarriage of
justice’â€]; see also Viner v. Sweet (2004)
117 Cal.App.4th 1218, 1224.)
2. The Challenged Evidentiary Rulings Were All Within the Trial Court’s
Broad Discretion
a.
Standard of review
Sullivan challenges a series of
evidentiary rulings by the trial court.
Applying the governing, deferential abuse-of-discretion standard of
review, there was no error. (See People
v. Williams (1997) 16 Cal.4th 153, 196-197 [“In determining the
admissibility of evidence, the trial court has broad
discretion. . . . On appeal,
a trial court’s decision to admit or not admit evidence, whether made in limine
or following a hearing pursuant to Evidence Code section 402, is reviewed for
abuse of discretion.â€]; People v. Alvarez (1996) 14 Cal.4th 155, 203
[“appellate court reviews any ruling by a trial court as to the admissibility
of evidence for abuse of discretionâ€]; Zhou v. Unisource Worldwide, Inc.
(2007) 157 Cal.App.4th 1471, 1476.) “The
trial court’s error in excluding evidence is grounds for reversing a judgment
only if the party appealing demonstrates a ‘miscarriage
of justice’—that is, that a different result would have been probable if
the error had not occurred.†(
354; Code Civ. Proc., § 475.)
b. Sullivan’s
sexual orientation
Two witnesses, Rebecca Shakib, the owner of the first
home that Sullivan rented after moving from the Wrightwood Drive home, and
Donald King, Sullivan’s former roommate, gave testimony that Sullivan contends
improperly referred to his sexual orientation.
Neither witnesses’ testimony even remotely alluded to Sullivan’s sexual
orientation, and the court committed no evidentiary error.
Shakib was called as a witness by
Sherlock and Blaylock to challenge Sullivan’s credibility (based on her
interactions with him regarding various landlord-tenant issues after he moved
into the home she owned and her belief most of the complaints he had made were
not legitimate). At one point Shakib was
asked about the findings of a mold remediation company that had tested
Sullivan’s mattress in response to his complaint mold was growing on the bed
from a sewage spill. Sullivan’s counsel
objected for lack of foundation. The
court overruled the objection, explaining Shakib could answer if she knew the
results. Shakib then stated body fluids,
lubricants and some kind of animal urine had been found on Sullivan’s
mattress. The court then sustained a
belated objection for lack of relevance.
Although Sullivan’s counsel did not ask the court to strike the answer,
the court subsequently instructed the jury to disregard answers to questions to
which an objection had been sustained:
“If the witness already answered, you must ignore the answer.†Sullivan insists Shakib’s testimony was
prejudicial but identifies no purported error by the trial court.
King was called as a defense
witness to rebut Sullivan’s testimony that Sullivan and King had socialized in
the past with Sherlock and Blaylock.
(Sullivan’s testimony on this point was apparently intended to reinforce
his contention he trusted Sherlock and Blaylock and was fully justified in
relying on their representations concerning the remodeling project.) After an Evidence Code section 402 hearing,
the court overruled Sullivan’s objection to this testimony under Evidence Code
section 352 (discretion to exclude evidence if probative value substantially
outweighed by undue consumption of time or danger of undue prejudice or
confusion), restricting King’s testimony to denying that any such socializing
had taken place. King’s testimony did
not stray beyond those appropriate limits.
The court’s ruling was well within its broad discretion under Evidence
Code section 352. (See
Ersoff (2007) 153 Cal.App.4th 257, 271.)
c. Testimony
from Sullivan’s subsequent landlords
Shakib and the owner of the second
home Sullivan moved into after leaving the Wrightwood Drive residence, Art
Miller, both testified they believed Sullivan was dishonest. That opinion testimony was admissible under
Evidence Code sections 785 and 1101, subdivision (c). The court overruled Sullivan’s objections to
both witnesses’ testimony under Evidence Code section 352, rejecting his
contention the testimony was unduly prejudicial and time consuming. Sullivan then extensively cross-examined each
witness about the bases for their opinions and, as a result, elicited detailed
testimony about the various landlord-tenant problems that had occurred when
Sullivan lived in their properties.
Although there can be little doubt these matters were collateral to the
issues to be resolved by the jury, Sullivan’s decision to pursue this line of
questioning does not in any way support the conclusion the trial court abused
its discretion—that is, made a ruling that was arbitrary, capricious or
patently absurd—in allowing opinion testimony attacking Sullivan’s
credibility. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [trial court’s Evid.
Code, § 352 ruling “will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justiceâ€].)
d. Threats
to Cox
Gail Cox, the listing agent,
testified for Sherlock and Blaylock.
Asked on direct examination whether she had discussed a geological
report with Sullivan, Cox responded, “No.
I never did any of these things with Brian Sullivan. This man just stalked me in the hallway and said,
‘You’re just here as a witness,’ and something, I don’t know. He found me by room 500, and then he walked
away, and then he came back now and he said something about Keller Williams [(a
real estate firm)]. I don’t know
what. And then said, ‘You could be in
contempt of court’ and then walked away.
And I sat there and went, ‘What is he talking about?’ But he found me in the corner of
500 . . . .†At this
point Sullivan’s counsel asked for a side bar conference with the court.
At side bar Sullivan’s lawyer,
Ernest Franceschi, asserted, “This is a clear attempt by counsel to provoke a
mistrial by having this witness blurt out things. This is a witness under his control.†In response the court asked, “Did your client
talk to this woman about intimidation of the witness?†Franceschi initially replied, “Absolutely
not,†but then acknowledged he did not know what Sullivan may have said or done
prior to his own arrival at court at 10:00 a.m.
The court indicated its intention to move on with the questioning of the
witness and to inquire later about possible witness intimidation. Before doing so, however, the court asked
Sherlock and Blaylock’s lawyer, Duane Bartsch, “Were you aware of contact
between them?†Bartsch said he was and
explained, “[S]he was sitting by herself, and she said he had come and said
something about contempt and contempt of court and what did that mean. And I said I have no idea.†Franceschi complained, [T]his is all
contrivedâ€; and the court responded, “I have no reason to know whether it is or
not. Let’s go back and finish [the
witness] . . . .
We’re going to deal with it.â€
Back in the presence of the jury
Franceschi moved to strike Cox’s last comments. The court agreed, “We’re going to strike
that last question and answer at this point in time. That whole last question and answer. And then, counsel, Ask your question
again.†Cox’s direct examination was
then completed by Bartsch; and Franceschi began his cross-examination, which
continued until the noon recess.
With both counsel present
Franceschi advised the court that Sullivan had, in fact, spoken with Cox before
her testimony, but only to tell her he had no hard feelings about her being
present to testify. Franceschi again
characterized the “scurrilous allegation†as an attempt to provoke a mistrial
because, in his view, “they’re going down in flames here.†The court asked Franceschi what he wanted it
to do. Franceschi asked that the jury be
instructed to disregard the statements.
The court replied it had already done that and asked if Franceschi
wanted any other action. Franceschi
replied he wanted Bartsch admonished to instruct his witnesses not to do this
kind of thing.
For his part Bartsch repeated that
Cox told him Sullivan had approached her and said she would be found in
contempt of court. He asked for
permission to inquire about the exchange on redirect examination. The court then asked questions directly of
Sullivan, who insisted he did not say anything about contempt, and Cox, who
said he had. Bartsch again asked to be allowed to question Cox; Franceschi
argued it would be reversible error to allow that and advised the court he
would move for a mistrial if it was permitted.
The court asked, “Are you moving now for a mistrial, counsel?†Franceschi said, “I’m not moving now, but if
it goes further . . . .†The court then
recessed for its own lunch break, deferring any ruling and advising Bartsch
that, “If something like this happens again, I want to know about it
immediately. I don’t want to hear about
it later.†Following the lunch recess,
the court ruled there had been no misconduct by Bartsch, noting the statement
by Cox was a nonresponsive answer to the question. However, the court added, “better judgment
would have been to inform the court if you believed any witness or anyone has
been intimidated.†The court then
ordered Sullivan not to have any contact with witnesses during the course of
the trial without counsel being present.
Finally, the court reiterated that it had struck Cox’s comments and had
preinstructed the jury not to consider anything that may be stricken: “At this point it has been struck.†However, the court cautioned that, depending
on areas covered by Franceschi during the balance of his cross-examination, the
matter might become relevant.
On appeal Sullivan argues Cox’s
statement was unduly prejudicial and striking the testimony and instructing the
jury the testimony that had been stricken could not be considered for any
purpose was “too little, too late.†Yet
Sullivan’s trial counsel expressly declined to ask for a mistrial, and his
appellate counsel identifies no ruling (or failure to rule) by the trial court
that constitutes error.
e. Sullivan’s
claims against other parties
During cross-examination Sullivan stated his lawsuit
was “about the lack of disclosure from the start by your sellers that led me
awry of buying this home.†Sherlock and
Blaylock’s lawyer, Bartsch, asked, “It was the sellers’ fault?†Sullivan answered, “Absolutely.†Bartsch then asked, “Why did you sue
Metrocities Mortgage, your loan broker?â€
Sullivan’s counsel, Franceschi, asked for a sidebar conference and
objected to questioning about the other parties who had been named as
defendants in Sullivan’s lawsuit as “a huge [Evidence Code section] 352 issue,â€
essentially contending the nature of the claims against the other defendants, since
dismissed from the action, was irrelevant.
Bartsch, on the other hand, explained to the court the defense theory
that Sullivan simply wanted out of the deal; it was not an issue of disclosures
but of trying to recoup his investment from any party he could. The court initially ruled Bartsch could
continue with his questioning, but cautioned the lawyer to “tie it into why
it’s relevant because I don’t want to mislead the jury.†Bartsch asked several questions concerning
Sullivan’s claims against JP Morgan Chase Bank and GMAC Mortgage. Ultimately, however, the court concluded the
probative value of this evidence was outweighed by the likelihood of confusing
the jury with respect to why other individuals or entities had been sued and
what happened to those parties and precluded any further inquiry into that area
(subject to reconsideration depending on Sullivan’s testimony), but declined to
strike the brief testimony that was already in the record: “It’s already in the record. So it’s done.
Let’s move on.â€
In closing argument Bartsch argued
Sullivan no longer wanted the Wrightwood Drive home once the real estate market
crashed and he learned he could not add a second story addition and suggested
his decision to sue other parties in addition to Sherlock and Blaylock
illustrated his true motive: “Why did he
sue GMAC Finance? And why did he sue JP
Morgan Chase Bank? And if this lawsuit from
day one was always about Dan Sherlock and Jason Blaylock not disclosing, why
did he sue a company called Mortgage Electronic Registration System, whose sole
function is to service loan payments?
Because it’s a lie.†No
contemporaneous objection was made to this portion of Bartsch’s closing
argument; but a short time later, after the jury was excused for its lunch
recess, Franceschi objected that referring to other parties to the litigation
violated the court’s earlier rulings.
The court overruled the objection, explaining, “Anything that is in
evidence that was not struck or objected to, that is in evidence, can be argued
with respect to it.†The court also
confirmed it would instruct the jury to rely only on evidence presented at
trial and to disregard any testimony that had been struck.
Sullivan contends the court abused
its discretion when it allowed testimony regarding his claims against the other
defendants and then refused to strike Bartsch’s argument based on that
testimony, which, he asserts, was intended to mislead and inflame the
jury. Given Sherlock and Blaylock’s
theory of defense, there was no error in allowing brief cross-examination of
Sullivan to explore his motivation for suing parties who were not involved in
the purportedly inaccurate and incomplete disclosures regarding permitting and
code violations. Once the court
determined the area of inquiry was likely to become unduly confusing and
time-consuming, it foreclosed further questioning. Neither the decision to allow question nor
the ruling stopping it was arbitrary or fell outside the bounds of reason. (See People
v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
Bartsch’s closing argument was
properly grounded on the evidence that had been admitted by the court. “In conducting
sides have wide latitude to discuss the case.
The right of counsel to discuss the merits of a case, both as to the law
and facts, is very wide, and he has the right to state fully his views as to
what the evidence shows, and as to the conclusions to be fairly drawn
therefrom. . . . An attorney
is permitted to argue all reasonable inferences from the evidence, . . .
[citation.]. Only the most persuasive
reasons justify handcuffing attorneys in the exercise of their advocacy within
the bounds of propriety.†(
Cal.4th 780, 795 [internal quotation marks omitted].) Even if Sullivan’s counsel had timely
objected and asked the court to strike Bartsch’s remarks, the court did not err
in refusing to do so.
f.
Maloof’s testimony and report
Sami Maloof, a structural engineer,
prepared a report concerning certain beams at the Wrightwood Drive house,
apparently in response to a concern expressed by city inspector Cuellar. Sullivan objected to Maloof’s testimony and
introduction of his engineering report because he had not been designated as an
expert witness. The court ruled Maloof
could testify as a percipient witness only (to refute Sullivan’s claim Sherlock
and Blaylock had not prepared an engineering report for these beams) and his
report would be admitted for the limited purpose of showing their state of mind
(that is, their reliance on his report in preparing the TDS). The court gave a limiting instruction to that
effect, to which both attorneys had agreed.
In closing argument Bartsch simply explained Sherlock and Blaylock had
hired Maloof to come to the property to prepare a report; they gave the report
to Cuellar when he came for a further inspection and advised Cuellar they had
put in three beams as Maloof had recommended; and Cuellar had then signed off on
the work. Contrary to Sullivan’s
contention Maloof’s testimony and his report presented “back door†expert
opinion and should have been excluded as improper lay opinion, the court’s
ruling and limiting instruction were right on the mark.
g. Akers’s
testimony
Finally, citing Code of Civil
Procedure section 2034, subdivision (h) (renumbered since 2004 as section
2034.280, subdivision (a)),
name="_ftnref7" title="">[7] Sullivan contends the trial court erred in
allowing Sherlock and Blaylock to supplement their expert designation to add
Randall Akers, an expert on permitting and building codes, because they had
previously designated Andrew Gillespie, a general contractor, as their expert
on those subjects. In response to
Sullivan’s objection in the trial court, Sherlock and Blaylock’s lawyer
explained Akers had been counter-designated when they noticed Sullivan’s
designation included two experts on permitting issues, which led them to
believe they needed an additional expert with particular familiarity with
issues relating to hillside homes in the Mulholland corridor. Counsel also advised the court he had made
Akers available for a deposition following the timely filing of the
supplemental designation. After hearing
argument and reviewing the case authority cited by Sullivan in support of his
motion, the court denied the motion to strike the supplemental
designation. Pursuant to the court’s
order Sullivan took Akers’s deposition prior to his in-court testimony.
In light of Akers’s greater and
more specific expertise on hillside permitting issues, it was not an abuse of
discretion to permit the supplemental designation based on the representation
that Gillespie could not adequately address all the opinions anticipated from
the experts designated by Sullivan.
Sherlock and Blaylock were not attempting to substitute Akers for
Gillespie because they were unhappy with Gillespie’s testimony (cf.
1717, 1723 [party who has designated an expert to testify on a particular
subject may not use supplemental designation to substitute experts]), and
nothing in the record suggests they were attempting to game the discovery
process. (Cf. Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1026-1027 [defendant
intentionally refrained from participating in simultaneous exchange of expert
witnesses to gain advantage].)
name="_ftnref8" title="">[8] Moreover, Sullivan has failed to demonstrate
how he was unfairly prejudiced by the jury hearing from two, rather than one,
defense experts on the permitting and code issues, particularly since he was able
to depose both of them prior to trial.
(See Code Civ. Proc., § 475 [“[n]o 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 also by reason that such error, ruling, instruction, or
defect, the said party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been probable if
such error, ruling, instruction, or defect had not occurred or existedâ€];
City of Oakland v. Public Employees’
Retirement System (2002) 95 Cal.App.4th 29, 51-52 [prejudice will not be
presumed; burden rests with party claiming error to demonstrate not only error,
but also a resulting miscarriage of justice].)
DISPOSITION
The judgment is affirmed. Sherlock and Blaylock are to recover their
costs on appeal.
title="">[9]
PERLUSS,
P. J.
We
concur:
ZELON,
J. JACKSON,
J.
court awarded Sherlock and Blaylock costs and $348,046 in attorney fees.
seller who reasonably and in good faith believes a defect has been corrected
has no statutory duty to disclose it.
(See Pagano v. Krohn (1997) 60
Cal.App.4th 1, 11 [no statutory duty to disclose past history of water
intrusion caused by sprinkler malfunction when seller reasonably and in good
faith believed sprinkler adjustment had remedied the problem]; see also Civ.
Code, § 1102.6 [inquiring whether seller “is aware†of certain defects; not
whether certain defects existed in the past].)
