Café Sevilla v. OM Enterprises

Filed 6/22/06 Café Sevilla v. OM Enterprises CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

This appeal arises out of recurring disputes between a commercial tenant, plaintiff Café Sevilla, Inc. (Café Sevilla), and the commercial landlord, defendant OM Enterprises, Inc. (OM). Café Sevilla operates a restaurant, bar and nightclub in the ground floor and basement of a building owned by OM, which operates a residential hotel in the upper floors of that building. Café Sevilla brought suit against OM for breach of the lease agreement, alleging OM breached the implied covenant of quiet possession and enjoyment through its president, Mohan Bhakta, by (among other things) harassing Café Sevilla's employees and customers, interfering with vendors, and refusing to repair water leaks. OM cross-complained against Café Sevilla, alleging that Café Sevilla's loud live entertainment late at night and its unruly patrons constituted a public and private nuisance that annoyed the residents of OM's residential hotel, including Bhakta, and seeking a prohibitory and mandatory injunction requiring Café Sevilla to implement noise remediation measures. Following a bench trial and site visit, the court entered judgment in favor of Café Sevilla on its complaint, awarding it damages in the amount of $43,755 based on the court's finding that Bhakta's conduct diminished the value of the leasehold.^[1]

OM appeals, contending (1) Café Sevilla presented no evidence showing that Bhakta interfered with Café Sevilla's business; and (2) even if the evidence proved damage to the leasehold, the damages award is excessive and not supported by the evidence. We conclude that substantial evidence supports the award of damages in favor of Café Sevilla. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Café Sevilla operates a restaurant, tapas bar, and nightclub in the Gaslamp district in downtown San Diego. The restaurant and tapas bar are located on the ground floor and the nightclub is in the basement of a building owned by OM. Café Sevilla leases the space for its business operations from OM, which operates the Pacifica Hotel (the hotel), a 40-room residential hotel, in the upper floors of the same building. Bhakta is OM's president and chief operating officer, as well as the resident manager of the hotel.

A. The Lease

In the written lease agreement (the lease), the parties expressly acknowledged that Café Sevilla would operate a "restaurant, bar, theater and/or cabaret" with "recorded and/or live entertainment and/or recorded or live music . . . ." on the leased premises. The lease provided that Café Sevilla's closing time would be the "maximum allowed pursuant to then existing Alcoholic Beverage Control laws. Currently [Café Sevilla] closes at 2:00 A.M." The lease also provided that Café Sevilla would not commit any act that "would unreasonably disturb the quiet enjoyment of any other occupant of the building" and expressly recognized that "[OM] operates an SRO Hotel which provides permanent housing for the tenants and principals of [OM]."

B. Pleadings

In late 2002 Café Sevilla filed suit against OM, alleging a breach of the lease agreement. Specifically, Café Sevilla alleged that OM, through the actions of Bhakta, breached the implied covenant of quiet possession and enjoyment by preventing workers from working on Café Sevilla's signage and lighting, preventing vendors from making deliveries, filing false reports with governmental entities, and refusing to respond to, and repair, water leaks within OM's property that caused damage to Café Sevilla. A copy of the lease was attached to Café Sevilla's complaint.

In mid-2003 OM cross-complained against Café Sevilla, alleging that Café Sevilla operated a public and private nuisance on the leased premises by playing loud music and discharging crowds of unruly patrons onto the street at closing time, thereby annoying the residents of the hotel, including Bhakta. OM sued for breach of contract, declaratory relief, and abatement of the noise.

C. Trial

During a bench trial, the court heard testimony from numerous witnesses over a period of several days and conducted a site visit to the hotel and Café Sevilla's leased premises. The building was constructed about 100 years ago and was preserved more or less in its original condition. The original plumbing system appears to have undergone only modest changes, the windows of the hotel were the chief method for providing ventilation, and inadequate insulation in the ceiling of the Café Sevilla's restaurant did little to shield the upper hotel floors from the music and sounds that emanated from the restaurant and nightclub below. As a result, booming bass sounds caused Bhakta, his family, and the hotel residents to suffer sleep disturbances.

The common bathrooms of the hotel had drain pipes that ran underneath the hotel floor through the area located directly above Café Sevilla's kitchen and food preparation line. Hotel patrons had occasionally left water running in tubs and sinks, causing them to overflow. Old drain traps had failed, causing waste water from the hotel bathrooms to saturate the ceiling above Café Sevilla's kitchen and leak into the food preparation area. Café Sevilla was forced to close down its food line and discard prepared food on more than a dozen occasions over a period of several years. Café Sevilla's staff developed a drill to catch the leaking water in buckets to minimize business disruptions. As a result of OM's failure to deal with the hotel water leaks, Café Sevilla suffered financial losses.

Bhakta became increasingly frustrated with the lease. His complaints about excessive noise escalated into a campaign of harassment directed at Café Sevilla and its customers, vendors and employees. On one occasion, Bhakta intentionally scratched the side of a car belonging to Café Sevilla's chief executive officer, Eric Van Den Haute, with a sharp object.

During Café Sevilla's case-in-chief at trial, Café Sevilla's chief executive officer Van Den Haute, who had been designated as Café Sevilla's damages expert, testified regarding Café Sevilla's damages.

Café Sevilla's former officer manager, Stephani Rizo, who worked for Café Sevilla from 1999 to 2002, testified that she prepared a written incident report (the incident report) in 2000 following an incident that involved Bhakta. Rizo stated that Bhakta was usually very confrontational, and she tried to avoid him because whenever she saw him, he would start yelling and cursing at her, complaining about Van Den Haute. On one occasion, as Rizo was walking to her car after work, Bhakta chased her up the street screaming, "You motherfuckers, you better not mess with me." Rizo testified she prepared the incident report after Bhakta, who was angry, called her at the office, and, referring to himself as "Hannibal Lecter,"^[3] told her that Van Den Haute was "going to pay" and they should "watch out" and not "mess" with him. Rizo indicated that Bhakta terminated the phone call without telling her why he was angry.

D. Judgment

In its order and final judgment, the court entered judgment in favor of Café Sevilla on its complaint against OM, awarding damages in the amount of $43,755 based on its finding that Café Sevilla suffered a 10 percent diminution in the value of its leasehold interest as a result of Bhakta's behavior. In support of the damages award, the court found that (1) Bhakta failed to take reasonable steps to prevent the continued intrusion of water into the kitchen area, thereby causing substantial damage to Café Sevilla; (2) Bhakta used foul or aggressive language with Café Sevilla's personnel and vendors; (3) Bhakta, acting on behalf of OM, violated the implied covenant of quiet enjoyment of the leasehold property by failing to reasonably respond to water leak issues, directing threats and vulgarity at Café Sevilla's personnel and vendors, and misusing law enforcement as a tool of harassment. The court stated it accepted Van Den Haute's testimony that Café Sevilla was forced to hand out vouchers to patrons who were denied service and that Café Sevilla suffered significant losses of goodwill, as well as losses related to food that was tainted by wastewater from OM's hotel.

STANDARD OF REVIEW

"'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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

On appeals challenging sufficiency of evidence, appellate courts review the record under the substantial evidence rule and must affirm the trier of fact's resolution of disputed factual issues if it is supported by substantial evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)

"'Substantial evidence' is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) "'Substantial evidence is not synonymous with "any" evidence;' . . . it is '"'substantial proof of the essentials which the law requires.'"'" (Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 651.) "The focus is on the quality, rather than the quantity, of the evidence[, and] '[v]ery little solid evidence may be "substantial," while a lot of extremely weak evidence might be "insubstantial."'" (Ibid.) Although "[i]nferences may constitute substantial evidence, . . . they must be the product of logic and reason[, and] [s]peculation or conjecture alone is not substantial evidence." (Ibid.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]" (Id. at p. 652.)

"Credibility is an issue for the fact finder." (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) Appellate courts "do not reweigh evidence or reassess the credibility of witnesses. [Citation.]" (Ibid.) "Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) The testimony of a single credible witness may constitute substantial evidence sufficient to support a verdict. (In re Marriage of Mix (1975)14 Cal.3d 604, 614.) Evidence will be disregarded on appeal for credibility reasons only if it is inherently improbable, i.e., it must appear that the truth of the testimony was physically impossible or its falsity must be apparent without resorting to inferences or deductions. (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2005) ¶ 8:53, p. 8-21 (rev. #1 2004).)

DISCUSSION

OM contends that Café Sevilla presented no evidence showing that Bhakta interfered with Café Sevilla's business and, even if the evidence proved damage to the leasehold, the damages award in the amount of $43,755 is excessive and not supported by the evidence. We reject these contentions and conclude that substantial evidence supports the award of damages in favor of Café Sevilla.

A. Background

In support of its award of damages in favor of Café Sevilla, the court made the following factual findings: "While it is true that both sides knew the nature of the business with which they would be coexisting, problems have developed in cooperation and communication between the parties. While it has not been proven that the landlord and property owner, [Bhakta], intentionally caused water to leak into the Café [Sevilla] kitchen area, the Court finds that [Bhakta] failed to take reasonable steps to prevent the continued intrusion of water into the kitchen area, thereby causing substantial damage to Café [Sevilla]. Contrary to [Bhakta's] assertions that he never used foul or aggressive language with Café [Sevilla's] personnel and vendors, this Court finds the opposite is, in fact, the case. [¶] Accordingly, the Court finds that [Bhakta's] failure to reasonably respond to water leak issues, his threats and vulgarity directed to Café [Sevilla's] personnel and vendors, his misuse of law enforcement as a tool of harassment, all violate the implied covenant of quiet enjoyment of the leasehold property and as such constitute a material breach of the lease agreement. No business should be forced to operate in such an atmosphere of express intimidation. [¶] The Court accepts the testimony by [Van Den Haute] that Café [Sevilla] was forced to hand out vouchers to patrons who were denied service and that Café [Sevilla] suffered significant losses of goodwill and losses related to food which was tainted by the wastewater." (Italics added.)

Based on these factual findings, the court awarded $43,755 in damages to Café Sevilla on its complaint, stating, "[Café Sevilla] acknowledges the difficulty in ascertaining that amount of damages caused to Café [Sevilla] by [Bhakta's] conduct. The court finds the overall value of the leasehold was diminished." The Court determined that the diminution in the value of its leasehold interest was 10 percent.

B. Applicable Legal Principles

"In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. [Citations.] The covenant of quiet enjoyment 'insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenants right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]' [Citation.]" (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 (Andrews), fn. omitted.)

"The implied covenant of quiet enjoyment is partially codified in Civil Code section 1927, enacted in 1872, which provides: 'An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.' The statutory covenant 'guarantees the tenant against rightful assertion of a paramount title.' [Citation.] Beyond the statutory covenant, the landlord is bound to refrain from action which interrupts the tenants beneficial enjoyment. [Citation.]" (Andrews, supra, 125 Cal.App.4th at pp. 587-588.)

"Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. To be actionable, the landlord[']s act or omission must substantially interfere with a tenant[']s right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]" (Andrews, supra, 125 Cal.App.4th at pp. 589-590, italics added; see also Pierce v. Nash (1954) 126 Cal.App.2d 606, 614 ["landlord breached tenant's right to quiet enjoyment by installing interior building supports which unnecessarily interfered with tenant[']s billiards business"]; & Sierad v. Lilly (1962) 204 Cal.App.2d 770, 775 ["landlord breached covenant of quiet enjoyment by denying retail tenant use of adjoining parking spaces which were essential to tenant[']s use and enjoyment of the property"].)

C. Analysis

1. OM's Claim of No Evidence

We first reject OM's claim that Café Sevilla presented no evidence showing that Bhakta substantially interfered with Café Sevilla's business. Substantial evidence, some of which OM discusses in its appellant's opening brief in its selective summary of the testimony of eight of the 29 witnesses who testified at trial,^[4] supports the court's factual findings. For example, as OM acknowledges, Café Sevilla's former officer manager, Stephani Rizo, testified that she prepared an incident report documenting an angry telephone call she received from Bhakta. Rizo testified that Bhakta referred to himself as Hannibal Lecter and told her that Van Den Haute was "going to pay" and they should "watch out" and not "mess" with him. Rizo indicated that Bhakta terminated the phone call without telling her why he was angry. Rizo also testified that Bhakta was usually very confrontational, and she tried to avoid him because he would start yelling and cursing at her, complaining about Van Den Haute, whenever she saw him. Rizo also stated that on one occasion, as she was walking to her car after work, Bhakta chased her up the street screaming, "You motherfuckers, you better not mess with me."

On appeal, OM challenges Rizo's credibility by asserting that Bhakta's daughter, Rita Bhakta, testified that her father had never seen The Silence of the Lambs; that Bhakta testified he did not know "what Hannibal Lect[e]r was then"; and that his wife (Kanchan Bhakta) denied he had knowledge of that character prior to trial.

Here, OM is asking this court to reweigh the evidence, discredit Rizo's testimony, and credit the testimony of Bhakta, his wife, and his daughter. However, the trial court was the fact finder in this case, and its assessment of the credibility of the witnesses is binding on this court. (Shamblin v. Brattain, supra, 44 Cal.3d at p. 479; Johnson v. Pratt & Whitney Canada, supra, 28 Cal.App.4th at p. 622.) The court found that Rizo was a particularly credible witness, stating: "Particularly moving to me was the testimony of the young girl, and I don't remember her name, but she worked there, and [Bhakta] was after her. He said some pretty awful things. What he would do is he had a pattern of going after people who were just employees trying to make a living. He'd go after them. He would make it tough for them to get the trash picked up, to make the kitchen and do everything."

In his appellant's opening brief, OM acknowledges that Rizo was the "young girl" whose testimony moved the court. We conclude that Rizo's testimony is sufficient to support the court's finding that Bhakta substantially interfered with Café Sevilla's business operations by using threats and vulgarity directed at Café Sevilla's personnel.

OM implicitly acknowledges that Rizo's testimony was corroborated by Alejandro Chavez, the head doorman at Café Sevilla, upon whose testimony he relies. Chavez testified about an incident in which Bhakta repeatedly cursed at both Café Sevilla's customers and its doormen from a second floor window. Chavez also stated that as a result of Bhakta's cursing, the customers became angry and aggressive towards the doormen. Chavez stated he heard Bhakta curse at Café Sevilla's customers on six other occasions. Chavez also stated that he had about "half a dozen to a dozen" direct "confrontations" with Bhakta, who usually behaved in an aggressive manner. According to Chavez, Bhakta would always curse and would sometimes make a hacking sound and threaten to spit in Chavez's face. Chavez observed Bhakta behave aggressively toward Café Sevilla's employees at least a dozen times.

OM acknowledges that another Café Sevilla employee, Linda Larrauri, testified that she prepared a letter for Van Den Haute regarding "many" phone calls she received from Bhakta. In this letter, which she referred to as an incident report, she complained that Bhakta was "really rough" and aggressive during the phone calls, and he made threats against Van Den Haute and three other Café Sevilla employees. The phone calls upset her and affected her ability to work.

OM also acknowledges that Café Sevilla's corporate chef, Christian Vignes, testified that he prepared a report documenting two incidents in which Bhakta was involved in a verbal "altercation" with Café Sevilla's manager, Victor Gonzalez, and with one of Café Sevilla's vendors.

OM also refers to Gonzalez's testimony that he had prepared incident reports at the request of Café Sevilla's employees, particularly the doormen, documenting Bhakta's aggressive behavior towards them and the fact that they felt threatened and harassed. Gonzalez testified that Bhakta used foul language in front of Café Sevilla's customers, including families.

OM challenges Gonzalez's credibility by citing his testimony that he had never used the kind of obscene language that Bhakta used. OM asserts that "[i]t is truly hard to believe that someone who has worked in a nightclub for [11] years has never used profanity." However, as already discussed, credibility is an issue for the fact finder, and this court will not reweigh the evidence or reassess Gonzalez's credibility as a witness. (Johnson, supra, 28 Cal.App.4th at p. 622.)

OM refers to the testimony of David Vergara, who performs cleaning services for Café Sevilla. Vergara testified that Bhakta once told him not to do the cleaning in front of Café Sevilla. He also stated that Bhakta sometimes called him "motherfucker" and "son of a bitch," Bhakta would make a gesture with his middle finger, and he would make rude comments to other employees and people making deliveries.

OM further acknowledges the testimony of Rogelio Huidobro, one of Café Sevilla's partners, who stated he had about 10 "incidents" with Bhakta. Huidobro, testified that Bhakta would yell obscenities at him, call him a coward, and try to start a fight with him. Referring to Bhakta's use of obscenities, Huidobro stated, "I have never been called any of those names. I'm 63, and nobody call me anything even remote to that [sic]."

In sum, OM's own opening brief on appeal provides citations to substantial evidence in the record that supports the court's findings that Bhakta, acting on behalf of OM, violated the implied covenant of quiet enjoyment of the leasehold property by repeatedly directing threats and vulgarity at Café Sevilla's personnel and vendors. We reject OM's contention that Bhakta's use of vulgarities and threats, which the court found created an "atmosphere of express intimidation," was insubstantial and constitutionally protected speech that could not be the cause of a breach of the implied covenant of quiet enjoyment contained in the lease.

OM also acknowledges that Van Den Haute presented evidence showing that Café Sevilla had suffered damages as a result of the water leaks, but attempts to discredit his testimony by asserting, without any citation to the record, that Van Den Haute "'rambled' and evaded answering the leading questions posed to him with diatribes that went off into tangents." We conclude that OM has failed to meet its burden of demonstrating that no substantial evidence supports the court's additional finding that Bhakta, acting on behalf of OM, breached the implied covenant of quiet enjoyment of the leasehold property by failing to reasonably respond to water leak issues.

2. Claim of Excessive Damages

We also reject OM's contention that even if substantial evidence shows damage to Café Sevilla's leasehold interest, the award of damages in the amount of $43,755 is excessive and not supported by the evidence. In awarding those damages, the court found that the overall value of the leasehold was diminished as a result of Bhakta's behavior. The court stated that "[n]o business should be forced to operate in such an atmosphere of express initimidation" as the one created by Bhakta's conduct, it accepted Van Den Haute's testimony that Café Sevilla was forced to hand out vouchers to patrons who were denied service, and Café Sevilla suffered a significant loss of goodwill as well as losses related to food that was tainted by wastewater from OM's hotel. The court also based the award on its determination that Café Sevilla suffered a 10 percent diminution in the value of its leasehold interest.

OM does not claim that Café Sevilla's damages could not lawfully be measured under the theory (which the court employed) that Bhakta's substantial interference with Café Sevilla's business operations diminished the value of its leasehold interest. Rather, OM complains that Café Sevilla's damages expert, Van Den Haute, "was unable to identify any documents or written evidence to prove the losses suffered by [Café Sevilla] as a result of employees being distracted by Bhakta." OM asserts that Van Den Haute "could neither show evidence of losses of food . . . nor was there documented proof to support loss of guests or vendors." OM further complains that Van Den Haute "presented [a] 'damages chart' at his deposition [exhibit No. 254], ^[5] which consists only of generalizations with apparently arbitrarily designated damages." OM also maintains that "[t]here was no rational basis for the amount of damages awarded by the trial court."

The record shows that substantial evidence supports the $43,755 damages award. As already discussed, substantial evidence supports the court's finding that OM, through the misconduct of Bhakta, breached the implied covenant of quiet enjoyment of the leasehold property. With respect to the issue of damages, Café Sevilla's damages expert, Van Den Haute, opined that Café Sevilla suffered $110,000 in damages as a result of Bhakta's behavior as illustrated in exhibit No. 254, which was admitted into evidence. Van Den Haute testified at length that Bhakta's misconduct and the repeated water leaks from the hotel into Café Sevilla's kitchen and nightclub upset customers, employees, and vendors; and caused Café Sevilla to suffer damages as a result of the loss of clientele, lost sales and profits, repair costs and the cost of increased advertising to repair its reputation, loss of food, loss of employee efficiency, and increased overtime costs, among other things. Van Den Haute, however, also testified about the difficulty of documenting every item of loss shown on exhibit No. 254, particularly during those times when Café Sevilla had to shut down its kitchen and food service because of the recurring water leaks, given the pressure of the restaurant competition that exists in the Gaslamp District in downtown San Diego.

Van Den Haute testified he used a second approach in calculating Café Sevilla's damages by looking at sales during the same period of time and estimating the impacts of Bhakta's behavior and the water leak problems. He stated that Café Sevilla had approximately $20 million in sales, and opined that "[two] percent of our clientele and our sales were impacted," resulting in $400,000 in lost sales. Van Den Haute also opined that, based on Café Sevilla's 25 percent net profit margin, the loss of $400,000 in sales resulted in a loss of about $100,000 in net profit.

During closing argument, Café Sevilla's trial counsel argued that Café Sevilla's monetary damages were about $100,000 under either approach used by Van Den Haute and reminded the court of Van Den Haute's testimony concerning the difficulty of quantifying the extent of those damages.^[6] Without objection by OM, Café Sevilla's counsel argued that there was a third approach to determining Café Sevilla's damages. Referring to the lease, which was admitted into evidence, and the detailed schedule of rent contained therein, counsel stated that Café Sevilla had paid $437,555 in rent during the period from October 1998 through February 2004 when the trial in this matter started. Counsel then argued that the court could determine a "proper reduction, a proper diminution" in the value of the leasehold interest and apply it to Café Sevilla's gross lease payments of $437,555. As already discussed, the court adopted this approach and determined that Café Sevilla suffered a 10 percent diminution in the value of its leasehold interest during that period. The court awarded to Café Sevilla damages in the amount of $43,755, which is 10 percent of the $437,555 in rent payments that Café Sevilla paid under the lease during the period in question. The damages award is less than half of the amount of damages that Café Sevilla claimed at trial based on the testimony of Van Den Haute. Based on the entire record, we conclude that the damages award is supported by substantial evidence and is not excessive. Accordingly, we affirm the judgment.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

NARES, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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^[1] In rulings not at issue in this appeal, the court also found in favor of OM on its cross-complaint for injunctive relief on the ground that Café Sevilla's music was a private (but not a public) nuisance and ordered Café Sevilla to take specific sound remediation measures. We need not, and do not, further discuss this portion of the judgment or the underlying facts on which it is based.

^[2] The parties' statements of the facts are both devoid of citations to the evidentiary record and thus do not comply with the basic requirement set forth in California Rules of Court, rule 14(a)(1)(C) that each brief "[s]upport any reference to a matter in the record by a citation to a volume and page number of the record." The following underlying facts, which are largely undisputed, are taken primarily from the court's order and final judgment.

^[3] We assume that "Hannibal Lecter" is a reference to Dr. Hannibal Lecter, a character in the film The Silence of the Lambs (Orion Pictures 1991). At trial, Rizo indicated she had seen the film that involved Hannibal Lecter. During closing arguments, OM's counsel stated that his clients watched The Silence of the Lambs at his request.

^[4] In its opening brief, OM briefly and selectively summarizes those portions of the trial testimony of Café Sevilla's eight witnesses (Stephani Rizo, Alejandro Chavez, Linda Larrauri, Christian Vignes, Victor Gonzalez, David Vergara, Rogelio Huidobro, and Van Den Haute) that it claims support his arguments on appeal.

^[5] Exhibit 254, Van Den Haute's handwritten damages chart showing he estimated Café Sevilla's damages to be in the amount of $110,000 for the period from October 1998 to the time of trial (February 2004), indicates that Café Sevilla suffered $21,000 in damages as a result of "Bhakta Demeanor" toward employees, guests and vendors; plus $90,000 in damages caused by "Interruption of Business," consisting of $60,000 related to "Water P[ro]b[lem]s in the nightclub and restaurant, plus $30,000 in "Repair & Maintenance Cost[s]."

^[6] Café Sevilla's counsel stated: "Admittedly, it is difficult to quantify the extent of monetary damages suffered by Café Sevilla. [¶] I think the best response during the trial regarding that issue is from [Van Den Haute] when he offered, ['W]hat would you have me do, have a C.P.A. in the dining room asking the patrons who were leaving how many Coors Lights they intended to have that night?['] It is truly an impossible task to determine [the] loss of revenue as a result of these events."