Bryant v. Watt Communities
Filed 2/21/13 Bryant v. Watt Communities CA2/4
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 FOUR
DANNY
BRYANT et al.,
Plaintiffs and Appellants,
v.
WATT
COMMUNITIES, INC.,
Defendant and Respondent.
B234454
(Los Angeles County
Super. Ct. No. BC423346)
APPEAL from a judgment of the Superior Court of
County, Joanne O’Donnell, Judge. Affirmed.
Law Offices of Ollie P. Manago, Ollie
P. Manago and Greta S. Curtis for Plaintiffs and Appellants.
Wood, Smith, Henning & Berman,
Daniel A. Berman, Victoria L. Ersoff, and Nicholas M. Gedo for Defendant and
Respondent.
Danny and Zelda Bryant
appeal from the judgment entered following a jury trial on their
respondent Watt Communities, Inc. (Watt).
We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
In late 2004, appellants were looking
for a new home, so they visited a residential community being built by Watt in Inglewood, California, called Traditions at
Renaissance. Zelda met with Ada Wolfe, a
representative in Watt’s sales office, numerous times between May and October
2005 and explained that appellants wanted a home large enough for Zelda’s
mother to live with them. Wolfe gave
them an options list to choose options such as cabinetry and appliances for the
home.
Zelda testified that Wolfe told them
they could purchase Lot
20 for $540,000, but they had to wait for it to come up for sale. Zelda offered to make a deposit on the house,
but Wolfe said she could not accept it.
Appellants chose the options they wanted and returned the options list
to Watt in May 2005, writing “Lot 20†on the list.
Wolfe subsequently told Zelda that Lot 20 had been sold because appellants
had not returned Wolfe’s phone call when she called to tell them the house was
available. Zelda testified that when she
expressed her disappointment to Wolfe, Wolfe promised to get her another house
for the same price.
On October 13,
2005,
appellants met with Wolfe and signed a purchase and sales agreement for Lot 92, priced at $685,000. Zelda testified that they asked Wolfe about
the price, and she reassured them she would get the price changed for
them. However, Wolfe testified that she
told them she did not have the authority to reduce the sales price. According to Zelda, Wolfe explained that the
agreement contained an arbitration clause they could rely on if there were any
problems with the price.
Appellants did not receive a copy of
the purchase agreement because Watt’s copy machine was broken. They asked when they could receive a copy,
and Wolfe told them to return in a few days to see another sales
representative, Barbara Harrison. Appellants
gave Wolfe a $10,000 check as an earnest money deposit.
Appellants discussed the options they
had chosen, and Wolfe said she had the list they provided in May. Wolfe told appellants to complete the form
and return it to Harrison, but she never asked them to leave a deposit for the options.
Zelda returned to Watt’s sales office
a few days later to get a copy of the purchase agreement, but Harrison did not give it to her. Harrison gave Zelda another option list and had her complete
it. Zelda asked if she needed to place a
deposit for the options, but Harrison said no. Danny
testified that Harrison told appellants that Webb Parker, former vice president of sales for
Watt, had instructed her not to give them a copy of the purchase
agreement.
Wolfe testified that Danny became
belligerent on the telephone with her on October 29, 2005, claiming that she had overcharged
him for the house. Danny asked for
arbitration to settle the price dispute with Watt and sent a letter the
following day requesting arbitration.
In November 2005, appellants attempted
to place money in escrow for the house, but the escrow company, Chicago Title
Escrow, said that Parker and Watt’s general counsel, Christopher Chase, had
instructed Chicago Title to cancel escrow because there was no contract.
Chase testified that when Watt
received appellants’ October 2005 request for arbitration, Parker told Chase he
did not want to sell the property to appellants because “[t]his looks like it’s
a powder keg ready to go off.†Chase
thought that appellants’ request for arbitration indicated uncertainty about
whether appellants would honor the purchase agreement. Chase also thought that, even though
appellants and Parker had signed the agreement, if Watt could “recall the
contract . . . before it was released to [appellants],†no contract
would have been formed. Watt asked the
escrow company to return the documents to Watt instead of releasing them to
appellants, but the company stated that it could not do that.
Chase sent a letter to appellants on November
9, 2005,
telling them that arbitration was not appropriate because an arbitrator could
not make any decisions regarding the purchase price, and asking for
clarification as to whether appellants intended to pay the purchase price. Appellants never confirmed that the purchase
price was acceptable, so Chase sent another letter to appellants on November
29, 2005,
stating that Watt was going to terminate the purchase agreement.
Watt did not cancel the contract; in
February 2006, Chase began corresponding with appellants’ counsel, Ollie
Manago. Chase reiterated to Manago that
the purchase price was not arbitrable and offered appellants the opportunity to
terminate the contract and receive their deposit back. Manago replied that appellants would honor
the terms of the agreement.
On February 16,
2006, Parker
told appellants that Watt was now moving forward with the transaction, but that
the options appellants had requested were not available because the house was
completely finished. Zelda testified
that Parker admitted during the telephone call that he had prevented appellants
from paying for and selecting options in October 2005.
In October 2009, appellants filed a
complaint alleging two causes of action for breach of written contract by
Watt. In the first cause of action, the
complaint alleged that Watt breached the written contract by refusing to allow
appellants to select improvements, use their own loan broker, pay cash for the
property, and resolve a problem with flies and manure. The second cause of action alleged that Watt
breached the written contract by refusing to allow appellants to purchase Lot
20, “which was an amendment to the contract based on the parol statements of
WOLFE.â€
A first amended complaint, filed on
April 1, 2010, asserted only one cause of action. The amended complaint retained the first
cause of action, alleging that Watt breached the written contract by refusing
to allow appellants to select improvements, use their own loan broker, pay cash
for the property, and resolve a problem with flies and manure, but the second
cause of action regarding Lot 20 was removed.
Following a jury trial, judgment was
entered in favor of Watt and against appellants. Appellants filed this appeal.
DISCUSSION
Appellants challenge the judgment on
numerous grounds. We find their claims
unmeritorious and so affirm.
I. Ineffective
Assistance of Counsel
Appellants’ first claim, ineffective
assistance of prior counsel, fails because the right to effective assistance of
counsel is a right guaranteed to criminal defendants “[u]nder both the Sixth
Amendment to the United States Constitution and article I, section 15, of the
California Constitution.†(
215; see also Cuyler v. Sullivan
(1980) 446 U.S. 335, 344-345.) The
principle does not apply in the civil context.
II. Extension
of Discovery
Appellants’ second claim is that the
trial court abused its discretion in denying their ex parte application for an
extension of the discovery cutoff. “The
standard of review for a discovery order is abuse of discretion. [Citation.]
‘The appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two
or more inferences can reasonably be deduced from the facts, the reviewing
court has no authority to substitute its decision for that of the trial
court.’ [Citation.]†(Bank
of America, N.A. v. Superior Court of Orange County (2013) 212 Cal.App.4th
1076, 1089.)
On December 2, 2010, appellants’
former counsel filed a motion to withdraw as attorney of record based on an
“irremedial breakdown in the attorney-client relationship.†Appellants’ new counsel, Brandon Tesser,
filed a substitution of attorney form on February 28, 2011.
On March 8, 2011, Tesser filed an ex
parte application to change the date of the hearing on Watt’s summary judgment
motion and to extend the March 28, 2011 discovery cutoff date. Tesser asserted that prior counsel had
conducted no discovery, so he needed to conduct discovery and take depositions
from former employees such as Wolfe and Parker.
The trial court denied appellants’ ex
parte application to extend the discovery cutoff in a March 8, 2011 minute
order. The court found that Tesser’s
claim that appellants’ former counsel did not conduct adequate discovery did
not constitute good cause to extend the date, in particular because the case
had been pending since October 2009.
The court’s reasoning is sound and
supported by the record. That no
discovery had been performed for more than a year was not good cause to extend
the discovery cutoff. In any event,
appellants fail to articulate precisely how they were prejudiced by the failure
to extend discovery other than to assert they were denied a fair trial. Such a bare assertion is insufficient in
itself to show prejudice.
III. Motion
in Limine Number 2
Appellants’ third claim is that the
trial court abused its discretion in granting Watt’s motion in limine number
2. We review the trial court’s ruling on
a motion in limine for abuse of discretion.
(Piedra v. Dugan (2004) 123
Cal.App.4th 1483, 1493.) A trial court
does not abuse its discretion unless it acts in an arbitrary, capricious or
patently absurd manner. (
Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139
Cal.App.4th 1356, 1419.)
Watt filed 11 motions in limine. The motion challenged by appellants sought to
exclude any evidence regarding appellants’ alleged attempt to purchase Lot
20. However, appellants state that
Watt’s counsel subsequently waived the ruling on the motion in limine in order
to examine witnesses about the dispute regarding Lot 20.
The record indicates that Zelda did
testify about the dispute regarding Lot 20.
She testified that she and Danny told Wolfe they wanted Lot 20 and were
disappointed when it was sold to someone else, and that Wolfe promised to give
them a comparable house at the same price.
Although appellants contend that relevant evidence should not have been
excluded, they do not indicate what evidence regarding Lot 20 they were not
allowed to present.
Appellants’ contention that they were
not allowed to testify about “price, fraud, misrepresentations, puffing, and
many other violations†is not supported by the record. As stated above, Zelda testified about Wolfe’s
alleged promises regarding the purchase price and her alleged failure to follow
through with those promises. Appellants
have not pointed to any specific evidence they were not allowed to present.
ruling on the motion in limine prejudiced their case finds no support in the
record.
IV.
Appellants challenge the jury
instructions on two grounds. They
contend that the trial court erred in failing to include an instruction about
the failure to arbitrate and an instruction on
A. Instruction
on Arbitration
“‘“The propriety of jury instructions
is a question of law that we review de novo.
[Citation.]†[Citation.]’ [Citation.]â€
(Mize-Kurzman v. Marin Community
College Dist. (2012) 202 Cal.App.4th 832, 845.)
“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.’ [Citation.]
. . . [¶] Instructional error in a civil case is
prejudicial ‘where it seems probable’ that the error ‘prejudicially affected
the verdict.’ [Citations.] Of course, that determination depends heavily
on the particular nature of the error, including its natural and probable
effect on a party’s ability to place his full case before the jury.
“But the analysis cannot stop
there. Actual prejudice must be assessed
in the context of the individual trial record. . . . Thus, when deciding whether an error of
instructional omission was prejudicial, the court must also evaluate (1) the
state of the evidence, (2) the effect of other instructions, (3) the effect of
counsel’s arguments, and (4) any indications by the jury itself that it was
misled.†(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581.)
“‘With respect to our review of issues
relating to [the failure to give requested jury instructions], as well as the
question of their prejudicial impact, we do not view the evidence in the light
most favorable to the successful [party] and draw all inferences in favor of
the judgment. Rather, we must assume
that the jury, had it been given proper instructions, might have drawn
different inferences more favorable to the losing [party] and rendered a
verdict in [that party’s] favor on those issues as to which it was
misdirected. [Citations.]’ [Citation.]â€
(Whiteley v. Philip Morris, Inc.
(2004) 117 Cal.App.4th 635, 655.)
Appellants contend the trial court
should have allowed a jury instruction on whether the right to arbitration was
a contract term and whether Watt’s failure to arbitrate constituted a breach of
contract.
of contract instruction, which stated, in part, that Watt breached the contract
by “[r]efusing to arbitrate the dispute with [appellants] regarding the price
of the real property.†The court stated
that, although appellants may have requested arbitration, “that’s not what this
trial has been about, and . . . the request for arbitration didn’t have
anything to do with the breach of the contract.â€
The trial court did not err in
refusing appellants’ arbitration instruction.
There was evidence presented at trial regarding the arbitration clause,
appellants’ requests for arbitration and Watt’s alleged refusal to
arbitrate. However, the amended
complaint alleged that Watt “denied [appellants] arbitration,†but only in the
context of alleging that appellants did not waive their claims by refusing to
rescind the contract because they sought but were refused arbitration. The complaint did not allege that Watt
breached the contract by refusing arbitration but “by refusing to allow the
selection of improvements by [appellants], refusing to allow [appellants] to
use their own loan broker, refusing to allow [appellants] to pay cash for the
property, and refusing to resolve the flies and manure problem.†The trial court therefore correctly denied
appellants’ request for a jury instruction regarding Watt’s alleged refusal to
arbitrate.
B.
Appellants also contend that the trial
court erred by failing to instruct the jury on anticipatory breach. Appellants submitted a jury instruction on anticipatory
breach, but the transcript appellants cite to support the contention that the
court erred indicates that appellants did not object to the court’s decision to
exclude an instruction on anticipatory breach.
In fact, it was counsel for Watt who agreed to delete the instruction
when the court questioned the propriety of the anticipatory breach
instruction. After Watt’s counsel agreed
to delete the reference to anticipatory breach, the court asked appellants’
counsel if he had any other concerns about the jury instructions, but he did
not.
Appellants do not contend the
instructions were erroneous other than the failure to include these two
instructions. “‘A failure to object to
civil jury instructions will not be deemed a waiver where the instruction is
prejudicially erroneous as given, that is, which is an incorrect statement of
the law. On the other hand, a jury
instruction which is incomplete or too general must be accompanied by an
objection or qualifying instruction to avoid the doctrine of waiver.
[Citation.]’ [Citation.]†(Carrau
v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 296-297.) Appellants neither objected to the trial
court’s decision not to give the anticipatory breach instruction nor offered
their own such instruction. Therefore,
they have forfeited the issue.
V. Judicial
Bias
Appellants’ final contention is that
the trial judge was biased against them.
Appellants’ judicial bias claim is based on the contention that the
judge “was in a hurry to have the trial over,†was “impatient with Appellants
and their counsel,†and “injected her own objections.†As an example of the court’s impatience,
appellants point to the court’s comment that the trial was “taking too long. It’s too repetitive, and we are not going to
hear all this again from Mrs. Bryant.â€
The court also told appellants’ counsel not to spend so much time on
testimony about arbitration. In
addition, the court told appellants’ counsel, “I’m hoping there’s not going to
be a rebuttal case. . . . I’ll need to
hear pretty good arguments for why it’s necessary. There’s been a lot of evidence.†Appellants also cite as an example of
judicial bias the court’s ruling disallowing them to call attorney Ollie Manago
as a rebuttal witness to allegedly improper expert testimony by Chase.
The trial court has the duty to
exercise “reasonable control of the trial.
[Citations.]†(
1108.) The trial judge’s alleged
“impatience†was more accurately simply an attempt to maintain control of the
proceedings. This case does not present
a record in which “‘the appearance of judicial bias and unfairness colors the
entire record.’†(Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994,
1008.)
Appellants have not demonstrated that
the judge engaged in “any judicial misconduct or bias, let alone misconduct or
bias that was so prejudicial†as to deprive them of a fair trial. (People
v. Farley (2009) 46 Cal.4th 1053, 1110.)
We therefore reject their claim of judicial bias.
DISPOSITION
The
judgment is affirmed. Respondent is
entitled to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We
concur:
EPSTEIN,
P. J. MANELLA, J.
name="_ftn1" title="">[1] Without intending disrespect, we will
refer to them by their first names when needed to differentiate between them,
but refer to them collectively as appellants.
name="_ftn2" title="">[2] In addition to the fact that
appellants have not indicated what evidence they were not allowed to present,
we note that appellants removed the allegations regarding Lot 20 when they
amended their complaint.
