Adams
Filed 7/16/13 Adams v. Kaplan
CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
MICHAEL
ADAMS et al.,
Plaintiffs and Respondents,
v.
MORRIS
KAPLAN,
Defendant and Appellant.
A136602
(Mendocino
County
Super. Ct.
No.
SCUK-CVPT-11-57534)
This
appeal arises from an occupancy dispute over a cabin in
County owned by appellant Morris Kaplan.
cabin by Michael Adams and Katherine Sontag (collectively Plaintiffs)
constituted a tenancy at will and that Kaplan failed to provide Plaintiffs a
30-day notice of his intent to terminate the tenancy as required by Civil Code
section 789. The trial court awarded
“nominal†damages in the amount of $250 and the costs of suit in an amount
subject to proof. Kaplan, appearing in
of damages in any amount was error because, inter alia, the occupancy was not a
tenancy at will and Plaintiffs had acted with unclean hands. We find that Kaplan has forfeited any
argument that the trial court’s findings are unsupported by substantial
evidence, and that the trial court did not err in rejecting Kaplan’s equitable
defense, but we conclude that $250 is in excess of the amount that can legally
constitute nominal damages. We will
modify the judgment accordingly, but otherwise affirm.
I. Background
Kaplan claimed in his trial brief that Plaintiffs worked
on various organic farms and gardens in Northern California
during the summer of 2010, and the parties met at a farmer’s market in Willits
sometime in August of that year. Kaplan
agreed that Plaintiffs could reside in a small 10’ x 10’ “cabin†on his
property in exchange for “work[] together on a gardening project that would be
mutually beneficial, [and] the residence was part of that project.†The cabin was not winterized, lacked indoor
plumbing, and had only a wood stove for heating and cooking. Kaplan lived in a building located on a
separate adjacent parcel, but both the cabin and Kaplan’s home were accessed by
a single gated driveway. Kaplan
maintained that Plaintiffs were away from the property more than half of the
time and that he made minimal work demands on them.
Conflicts regarding Plaintiffs’ occupancy of the cabin
began sometime in October 2010, with disagreements about noise associated
with Plaintiffs’ return to the property at late hours and their use of Kaplan’s
bicycles and internet service. On or
about December 19, after confrontations about internet access, Kaplan had a
letter delivered to Sontag stating, “I want [Adams] and
his truck and camper out of here ASAP today or at the latest tomorrow by
sunset.†Plaintiffs did not immediately
vacate the premises. Tensions escalated
with confrontations over ingress/egress from the property and use of laundry
facilities, culminating with Kaplan’s admitted decision to “engage in self
help†and call a building code enforcement officer to “tag†the cabin as unfit
for human habitation on December 30,
2010. Kaplan claimed that he
subsequently notified Plaintiffs that they could no longer inhabit the building
and that they could collect their belongings on January 4, 2011.
Plaintiffs sought a temporary restraining order and commenced the
present litigation seeking damages and attorney fees for Kaplan’s alleged
violations of landlord-tenant law (e.g., Civil Code, §§ 789.3, 1940.2,
1942.4).
A three-day bench trial was conducted on October 17 and
November 7–8, 2011, and the court issued its tentative decision on December 28.
requests for a statement of decision on four issues. Three issues were submitted by
Plaintiffs. First, in regard to one or
more incidents where Kaplan changed the lock on the driveway gate, the court
found no credible evidence that Kaplan had acted with an intent to terminate
Plaintiffs’ occupancy in violation of Civil Code section 789.3, subdivision
(b)(1). Second, the court found that
Kaplan had not violated habitability requirements of Civil Code section 1941
because the evidence demonstrated that Plaintiffs were clearly aware of the
cabin’s inadequacies prior to moving in and had agreed that their work in lieu
of rent included repairs or renovations to the cabin. Finally, the court recited evidence supporting
an inference that on December 21–22, 2010, Adams parked his vehicle in a
position which he knew or should have known would block Kaplan’s habitual route
for ingress and egress from his property.
Accordingly, the court found that Adams intentionally sought to provoke
a confrontation with Kaplan and had interfered with Kaplan’s quiet enjoyment of
his property.
Kaplan requested a statement of decision regarding only
whether the nominal damages award was proper.
Specifically, the trial court related Kaplan’s request as follows: “Whether nominal damages can be awarded based
on the service of the notice to terminate tenancy [sic].â€
provided in relevant part:
“a) Factual
basis for decision:
“Plaintiffs contended they suffered thousands
of dollars in damages as a result of [Kaplan] requesting that Adams vacate the
property in December, 2010 upon 24 hours notice. The court analyzed Plaintiffs’ damage claims
and concluded that Plaintiffs had not established a legal or factual basis for
most of the damages they claimed. [¶] However, the court also found that
[Kaplan] breached his statutory duty to provide each Plaintiff 30 days notice
of his intent to terminate Plaintiff’s tenancy at will. [Kaplan] did not provide Adams 30 days
notice. Instead, on or about December
19, 2010, [Kaplan] demanded that Adams leave ‘ASAP. Today or at the latest tomorrow by sunset.’ [Citation.]
“b) Legal
basis for decision:
“Civil Code 789 requires a landowner to give
a tenant at will at least 30 days notice of his intent to terminate the
tenancy at will.[
name="_ftnref6" title="">[6]] The remedy for breach of a statutory duty is
typically an award of compensatory damages [citation]. As the court found that Plaintiffs did not
prove entitlement to actual damages by a preponderance of the evidence, an
award of nominal damages for Defendant’s breach of this statutory duty appeared
to be the appropriate legal remedy.â€
No motions to correct deficiencies in the statement of
decision were filed prior to the court’s April 2012 entry of judgment
wherein it denied Plaintiffs’ complaint for attorney fees and “actual,
compensatory, punitive, and statutory damages.â€
The judgment further ordered that “Plaintiffs are awarded nominal
damages of $250 based on landlord [Kaplan’s] failure to provide 30 days notice
of his intent to terminate Plaintiffs’ tenancy at will on his property†and
awarded Plaintiffs the costs of suit in an amount subject to proof. Kaplan’s timely
II. Discussion
An appealed judgment or order is
presumed to be correct and a reviewing court does not reweigh the trial
evidence. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (
accept as true all evidence and all reasonable inferences from the evidence
tending to establish the correctness of the trial court’s findings and
decision, resolving every conflict in favor of the judgmentâ€].) The appellant has the burden of demonstrating
error on the part of the trial court. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1140–1141.) An appellant’s burden to affirmatively
demonstrate prejudicial error is not diminished by a respondent’s failure to file
a brief. (Cal. Rules of Court,
rule 8.220(a)(2); Kennedy v.
Eldridge, supra, 201 Cal.App.4th at p. 1203.)
Kaplan’s opening brief demonstrates
a multitude of defects, the most glaring of which are minimal citation to the
record below, citing to documents not in the appellate record, and his
statement of only facts and inferences most favorable to him. “An appellant asserting lack of substantial
evidence must fairly state all the evidence, not just the evidence favorable to
the appellant. [Citation.]†(Chicago
Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401,
415.) Further, “[i]t is incumbent upon
the parties to an appeal to cite the particular portion of the record
supporting each assertion made. It should
be apparent that a reviewing court has no duty to search through the record to
find evidence in support of a party’s position.†(Williams v. Williams (1971)
14 Cal.App.3d 560, 565.) Kaplan is
not exempt from the rules because he is representing himself on appeal in
propria persona. “ ‘[S]uch a party
is to be treated like any other party and is entitled to the same, but no
greater consideration than other litigants and attorneys. [Citation.]’
[Citation.]†(
1229, 1246–1247.) Kaplan has forfeited
his substantial evidence arguments by presenting a deficient opening
brief. (Id. at p. 1247 [deficiencies in pro. per. appellant’s
opening brief resulted in waiver of issues on appeal].) We therefore do not address the trial court’s
decision on the nature of the tenancy.
A. Unclean Hands
Kaplan argues that “the tenancy
issue . . . is moot in face of the proof provided that [P]laintiffs’
have unclean hands,†and so “no award no matter how nominal is
appropriate!†He relies on conflicting
testimony regarding the December 21–22, 2010 incident in which Adams
blocked Kaplan’s egress from his property as conclusive evidence that
Plaintiffs “perjured themselves in a not so well planned effort to defraud
[him] and that they therefore cannot be rewarded for their criminal
conduct.†Thus, Kaplan posits that the
trial court’s “ruling in this case is not based upon the evidence but upon some
hidden agenda†(i.e., the nominal damage award only can be the result of judicial
bias). As with the nature of the tenancy,
Kaplan has likewise forfeited any substantial
evidence argument on this issue. (
122 Cal.App.4th at p. 1247.)
In any event, unclean hands is an
equitable doctrine that may provide a complete defense where the trial court,
in its sound discretion, finds that a plaintiff is “tainted with
inequitableness or bad faith relative to the matter in which he seeks relief,
however improper may have been the behavior of the defendant.†(Precision
Co. v. Automotive Co. (1945) 324 U.S. 806, 814–815; see also
9 Cal.4th 738, 750 [indicating availability of unclean hands defense in
landlord-tenant context].) We do not
disturb a discretionary trial court ruling absent a showing of “ ‘ “a
clear case of abuse†’ †and “ ‘ “a miscarriage of
justice.†’ †(
311, 331; Denham,
The trial court presided over three
days of trial and the statement of decision reflects that the court explicitly
and carefully considered witness credibility in rejecting most of Plaintiffs’
claims. (Stephens v. Baker & Baker Roofing Co. (1955)
130 Cal.App.2d 765, 774 [“we must presume the regularity of the trial
court’s actions, in the absence of evidence to the contraryâ€].) As noted ante,
we do not retry a case. (
Cal.App.4th at p. 631.) It is the
exclusive province of the trial judge to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends. (Fuentes
v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1233.) On this record, we cannot say the court
abused its discretion in its implicit rejection of an unclean hands defense in
awarding nominal damages to Plaintiffs.
B. Nominal Damage Award
The April 10, 2012 judgment orders
that “Plaintiffs are awarded nominal damages of $250 based on [Kaplan’s]
failure to provide 30 days notice of his intent to terminate Plaintiffs’
tenancy at will on his property.†The
statement of decision elaborated that nominal damages for Kaplan’s breach of
the statutory duty appeared to be the appropriate legal remedy because
“Plaintiffs did not prove entitlement to actual damages by a preponderance of
the evidence.â€
title="">[8] “Because the trial court expressly found the
damages awarded were nominal, as
distinguished from actual or punitive, our inquiry is thereby restricted to
determining if [the amount awarded] is in excess of the amount that may be
legally awarded as nominal damages.†(
28 Cal.App.3d at p. 1088, italics added.)
In the ordinary case,
“ ‘nominal damages . . . mean[s] some trifling sum, as a penny,
one cent, six cents, etc.
[Citation.]’ †(
28 Cal.App.3d at p. 1089 [citing
an “unbroken line of cases hold[ing] that nominal damages are limited to an
amount of a few cents or a dollarâ€]; Broads
v. Mead and Cook (1911) 159 Cal. 765, 769 [although plaintiff may be
entitled to costs of suit, “[o]ne dollar is the amount usually adjudged where
only nominal damages are allowedâ€].)
“The rule rests upon the elemental concept that an award of damages, as
in other findings, must rest upon substantial legal evidence; to award other
than a token or trifling sum in the absence of such evidence is a judgment not
supported by the evidence. Moreover, to
permit the award of significant damages in the absence of such evidence would
authorize capricious damage awards and the proliferation of litigation for
small, technical legal wrongs where no actual damages are suffered.†(Avina
v. Spurlock, at p. 1089.) Deviation
from this rule appears warranted only in cases where actual damages are not
amenable to proof. (See, e.g.,
Cal.App.3d 850, 859 [using the minimum statutory damage amount provided by an
analogous statute where that “statute’s obvious purpose was to specify an
amount for nominal damages in situations where actual damages are impossible to
assessâ€].)
Here, the trial court clearly
considered evidence from Plaintiffs that “they suffered thousands of dollars in
damages,†but found that they “had not established a legal or factual basis for
most of the damages they claimed†and “did not prove entitlement to actual
damages by a preponderance of the evidence.â€
There was no indication that the damages in this case were not
was a failure of proof. Thus, we find the award of $250 as nominal
damages is not supported by the evidence.
(Avina v. Spurlock, supra, 28
Cal.App.3d at p. 1088 [a court can award no more than a trivial amount
when proof of actual or punitive damages fails].)
III. Disposition
The April 10, 2012 judgment is
modified by striking the award of $250 as nominal damages and substituting
therefor the sum of $1.00 as nominal damages and, as so modified, the judgment
is affirmed. Because of Kaplan’s
disregard of the Rules of Court, and the numerous patent defects in his brief,
we decline to award costs on appeal.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Needham, J.
testified that his full name is “The Honorable, formerly Venerable, Dr.
Professor Ping-Pong also known as Morris Kaplan,†that he is a “Doctor of
Oriental Medicine,†and professor of “The University of Earth.†The trial court references appellant in her
statement of decision as “PPP.†Because his trial attorney represented that “Professor
Ping Pong†is an assumed name, we shall refer to appellant by what appears to
be his legal last name.
respondents’ brief; therefore, this appeal is decided solely on the limited
record designated by Kaplan, his opening brief and oral argument. (Cal. Rules of Court, rules 8.200(a)(2),
8.220(a)(2); see Kennedy v. Eldridge
(2011) 201 Cal.App.4th 1197, 1203 [“we do not treat the failure to file a
respondent’s brief as a ‘default’ (i.e., an admission of error) but
independently examine the record and reverse only if prejudicial error is
foundâ€].)
