Filed 9/26/18 Boston v. Barry CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed. Motion to dismiss is denied.

Valerie B. Boston, in pro. per., for Plaintiff and Appellant.

Gates, O’Doherty, Gonter & Guy, K. Robert Gonter, Jr., and Thomas A. Scutti, for Defendant and Respondent.

Valerie B. Boston appeals from a judgment after the trial court held a bench trial and entered judgment in favor of her daughter, Rosey Barry, as trustee of her grandmother’s (Boston’s mother’s) trust, the Rosalyn Binning Recoverable Trust (the Trust). Boston’s appellate briefs are undecipherable and violate the California Rules of Court in many respects. Consequently, Barry filed a motion to dismiss the appeal, in addition to her respondent’s brief. As we explain below, none of Boston’s contentions, as best we can discern them, have any merit, and we affirm the judgment. We deny Barry’s motion to dismiss Boston’s appeal.

FACTS

I. Substantive History

Binning has owned a duplex (the Property) since the early 1970’s. Boston and her two daughters, including Barry, resided in Unit A for over 30 years, including many years in which Binning charged her no rent. Binning rented out Unit B.

In March 2013, Binning served Boston, and the Unit B tenant, with a

60-day notice to vacate because she wanted to sell the Property. When Boston refused to leave the Property, Binning filed an unlawful detainer action. Boston claimed she owned the Property because Binning gave it to her as a wedding gift. Binning denied she gifted the Property to Boston but instead offered her “a set dollar amount” for a down payment on a house. A more detailed account of the dispute may be found in our prior nonpublished opinion, Boston v. Binning (Oct. 14, 2014, G049362).

The trial court ruled Binning owned the Property and issued a writ of possession. (Binning v. Boston (Super. Ct. Orange County, 2013, No. 30-2013-00653779).) The Appellate Division of the Orange County Superior Court affirmed. (Binning v. Boston (App. Div. Super. Ct. Orange County, 2013, No. 2013-00674318).)

After the Unit B tenant moved out, Boston broke into that unit and lived there. Law enforcement officers removed Boston from Unit B, and Binning boarded the duplex and changed the locks. Boston left personal belongings in both units. Binning’s legal representatives sent Boston numerous letters advising her to collect her belongings or they would be sold at auction. Boston failed to collect her personal belongings, and Binning auctioned them; Binning purchased the personal property.

II. Procedural History

In May 2013, Boston filed a verified complaint against Binning, individually and as trustee of the Trust, asserting causes of action for quiet title, declaratory relief, and injunctive relief. The theory of the complaint was Boston owned the Property. The following month, Boston filed an first amended verified complaint against Binning alleging the same causes of action.

Binning filed a special motion to strike (Code Civ. Proc., § 425.16). The trial court denied Binning’s special motion to strike. Binning filed a demurrer. The trial court sustained the demurrer to all three causes of action with leave to amend.

Binning filed an appeal from the trial court’s denial of her special motion to strike. Ten months later, this court affirmed. (Boston v. Binning (Oct. 14, 2014, G049362) [nonpub. opn.].)

Boston filed a second amended verified complaint against Binning alleging the same causes of action. Binning filed a motion for summary judgment/summary adjudication to three causes of action. Boston opposed the motion for summary judgment/summary adjudication. The trial court granted Binning’s motion for summary adjudication as to the quiet title cause of action. However, the court granted Boston leave to amend the complaint to state any legal claim for damages that did not include title or ownership of the real property.

Boston filed a third amended verified complaint against Binning alleging the following eight cause of action: personal injury; warranty of habitability; negligence; fraud, intentional misrepresentation; punitive damages; injunctive relief; and compensatory damages. Binning filed a demurrer and motion to strike portions of the complaint. The trial court sustained the demurrer to the entire complaint with leave to amend rendering the motion to strike moot.

Boston filed a fourth amended verified complaint against Binning alleging the following six causes of action: personal injury; warranty of habitability[1]; negligence; fraud and deceit; intentional/negligent misrepresentation; and extortion. Binning filed a demurrer and motion to strike portions of the complaint. The trial court ruled on the demurrer as follows: sustained without leave to amend the personal injury, fraud and deceit, and negligent misrepresentation causes of action; sustained with leave to amend the negligence cause of action; and struck the extortion cause of action.[2]

Boston filed a fifth amended verified complaint (FAC) against Binning alleging the following five causes of action: personal injury; warranty of habitability; negligence, fraud and deceit, and intentional misrepresentation. Binning filed a demurrer, motion to strike portions of the FAC, and a special motion to strike the personal injury cause of action. The trial court overruled the demurrer to the personal injury, warranty of habitability, and negligence causes of action; the court denied the special motion to strike the personal injury cause of action. The court granted the motion to strike the fraud and deceit, and intentional misrepresentation causes of action because it had previously sustained demurrers to these claims without leave to amend.

In December 2015, the trial court denied Boston’s motion to file a sixth amended verified complaint. Binning filed a verified answer to the FAC. Barry, as trustee of the Trust, applied for an order substituting her as defendant, in place of Binning, who passed away. The trial court granted the application.

III. Bench Trial

In summer 2016, a bench trial commenced on the two remaining causes of action, personal injury and conversion. Before trial, Barry filed many motions in limine, including one to prohibit Boston from calling any expert witnesses or treating physicians because she failed to timely designate experts (Code Civ. Proc., § 2034.260). The trial court granted Barry’s motion.

Following opening statements, Boston presented her case. Boston offered the testimony of two witnesses who testified generally about the Property over various periods of time. On a couple of occasions, the trial court advised Boston she should focus on presenting evidence concerning the two causes of action. Additionally, the court went to great pains to educate Boston about how to properly question a witness. But in the end, neither of Boston’s percipient witnesses had personal knowledge of any facts relevant to the two causes of action.

Boston took the stand. The majority of Boston’s testimony concerned the Property’s condition at various points over her 30-year occupancy. However, she never testified those conditions made her sick. Additionally, she never testified Binning stole her property. The court again reminded Boston to focus on her injuries and the alleged conversion of personal property, not the ownership issue that had long been adjudicated. Boston stated William Dahlin, Binning’s attorney, had to pay to acquire her property. She also testified concerning numerous items that went missing. She said Binning purchased the items at auction and later disposed of them.

Barry offered Dahlin’s testimony. Dahlin authenticated numerous letters his firm wrote to Boston concerning her personal property. Dahlin testified that on multiple occasions he notified Boston that she needed to remove her personal property from the Property. He stated Boston agreed to pick up her personal property and they arranged for her to do so on a specific date, but she did not appear. Dahlin also testified he notified Boston they would sell her abandoned property at a public auction. Dahlin explained that on multiple occasions he was at the Property when Boston retrieved some of her personal property. He said that on one occasion she retrieved some property but left two garages full of property. Dahlin testified he did everything possible to get Boston to retrieve her abandoned property. He stated Binning presented a winning credit bid of $500 at the public auction.

Barry offered the testimony of Dr. Steven Weinstein, an allergist. Weinstein tested Boston’s blood, which revealed she was not allergic to anything. Weinstein explained Boston was not allergic to five molds he tested.

Finally, Barry testified Boston never complained about mold at the Property until Binning filed the unlawful detainer action. Barry stated Binning never refused to perform any repairs at the Property.

After hearing closing arguments, the trial court entered judgment for Barry and against Boston because Boston did not satisfy her evidentiary burden. The court concluded Boston did not offer any evidence the Property caused her personal injury. Additionally, the court stated the evidence demonstrated Dahlin provided Boston multiple notices to retrieve her personal property, but she failed to do so. The very next day Boston filed her notice of appeal. The following month, the trial court entered judgment for Barry.[3]

DISCUSSION

I. Self-Represented Litigants & Appellate Rules of Court

A self-represented litigant is not exempt from the requirements of the law. A self-represented “party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.) Thus, Boston’s burden to establish reversible error is not changed by the fact she is proceeding without an attorney. (State Farm Fire & Casualty Co. v. Pietak (2001)

90 Cal.App.4th 600, 610 [appellant carries burden of demonstrating reversible error].)

Here, Boston’s brief does not comply with many of the California Rules of Court’s requirements for appellate briefs. It does not have a table of contents. (Cal. Rules of Court, rule 8.204(a)(1)(A).) It does not provide a summary of the significant substantive and procedural facts. (Cal. Rules of Court, rule 8.204(a)(2)(C).) It does not state each argument and support each argument with reasoned analysis. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Nonetheless, we disregard the noncompliance (Cal. Rules of Court, rule 8.204(e)(2)(C)), and we deny Barry’s motion to dismiss the appeal.

Boston’s opening brief does not clearly identify the legal errors she alleges requires reversal. Her brief starts with a list of abbreviations, proceeds to a detailed list of authorities, many of which are not relevant to these proceedings, and moves on to a statement of facts that contains much information that was not relevant to her two causes of action. At this stage of the proceedings, the only issue before us is whether the trial court’s judgment for Barry was legally correct. That’s it. Boston’s brief includes a number of headings that have no relevance to these proceedings, i.e., “ATEMPTED [sic] MURDER” and “AMEARICAN [sic] DISABILITY ACT,” to cite just two. She also complains about a loan against the Property, her arrest, and stolen mail. We will do our best to discern some of the issues that Boston does make.

First, Boston asserts she owned the Property, and not Binning or Barry, or Barry’s husband John Barry (John) (we will refer to Barry and John collectively as the Barrys). Boston does not provide any reasoned analysis as to why res judicata and collateral estoppel do not prohibit relitigation of this issue and cause of action. Thus, we decline to consider this issue further. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) [when appellant raises issue “but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; see also Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [not proper function of appellate court to search the record on behalf of appellants or serve as “backup appellate counsel”]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court not required to consider points not supported by citation to authorities or record].)

Nevertheless, the issue of ownership of the Property is not before us. The issue was litigated in the 2013 unlawful detainer action and resolved against Barry here in Binning’s March 2015 summary judgment motion. The issue of the ownership of the Property is identical to the issue decided in the unlawful detainer proceeding. The unlawful detainer decision is final, and the parties are the same. Thus, res judicata and collateral estoppel bar relitigation of this issue and cause of action. (See Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1326.)

Second, on a couple of occasions, Boston does state the trial court erred. For example, she claims, “The Judge made a MISTAKE. He failed because [she] failed to have the [sic] all of the facts. Because Binning and Barry lied.” She also claims there was “voluminous amounts of evidence . . . NO COURT has ever seen[.]” It was Boston’s burden to present her evidence on her two causes of action, and she could have deposed Binning and called other witnesses to testify. (Evid. Code, § 500 [party burden to present facts essential to cause of action]; see Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 201-202 [plaintiff’s burden to present evidence].) Additionally, Boston had the opportunity to cross-examine Barry, highlight any inconsistencies in her testimony, and challenge her credibility. (In re Marriage of Swain (2018) 21 Cal.App.5th 830, 841-842 [fundamental fairness of proceedings requires right to cross-examine to test witness’s credibility].)

Third, Boston raises a number of issues that simply have no relevance to the bench trial or the court’s judgment. Boston alleges the following: Boston managed the Property for over 38 years without pay; Binning paid John to manage the Property; Boston is disabled under the American with Disabilities Act; the Barry’s lawyer and the insurance company improperly benefitted from her 38 years of rent payments; the Barrys committed fraud to eliminate Boston from the Trust so Boston could not afford to purchase the natural products that helped her wage a 14-year battle against cancer; and relying on In re Jessup’s Estate (1889) 80 Cal. 625 [employment of counsel in will dispute], she argues the trial court made a mistake in law regarding the trust documents. None of these alleged issues were relevant to whether Boston suffered personal injury because of hazardous conditions at the Property or whether Binning or the Barrys converted her personal property. We will not discuss them further.

Fourth, Boston mentions a number of Barry’s in limine motions but does not provide any reasoned argument concerning the trial court’s rulings. Because she failed to support any claim with reasoned argument, we treat the point as waived. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)

Finally, for the first time in her reply brief, Boston alleges her civil rights (42 U.S.C. 1985), and First Amendment right to freedom of speech and freedom of religion were violated. We do not address arguments made for the first time in a reply brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [refusing to entertain argument raised for first time in reply brief].) And again, these alleged issues were not relevant to her two causes of action. We will now do our best to discern any arguments Boston does raise that are relevant to the two causes of action litigated at the bench trial.

II. Sufficiency of the Evidence

A. Personal Injury

Boston’s theory was the Property’s mold and asbestos caused her physical injuries. The elements of a premises liability claim are the following: (1) The defendant owned, leased, occupied, or controlled the property; (2) The defendant was negligent in the use or maintenance of the property; (3) The plaintiff was harmed; and (4) The defendant’s negligence was a substantial factor in causing the plaintiff’s harm. (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 832; Civ. Code, § 1714, subd. (a); see CACI No. 1000.)

Boston claims “Barry” released black mold and asbestos in the Property. Boston appears to use “Barry” interchangeably for her daughter, Rosey, and her

son-in-law, John. Based on a comprehensive reading of her briefs, it appears Boston accuses John of polluting the Property and not Rosey. She states the black mold and asbestos were so bad, they were blowing through the heating vents, she had to move into the garden. She states this was part of a “workable design” to scientifically “erase [her] life for a price” and constituted elder abuse (Welf. & Inst. Code, § 15610.07, subd. (a)(1)).

Boston also claims the trial court erred when it ordered her to have blood taken to test her allergies. On a related note, she said Weinstein perjured himself and the test results are inaccurate because she had not been in the toxic Property in some time and she spends four to seven hours at the beach “surrounded by generating NEGATIVE IONS which induce healing.”

Boston failed to present any evidence she suffered from any physical illnesses as a result of the Property. For reasons we will explain below, she was prohibited from presenting any expert testimony demonstrating mold or asbestos in the Property caused her personal injury. Additionally, Barry presented expert testimony Boston suffered from no allergies, including any allergies to mold. Simply put, the record includes no evidence the Property caused Boston to be ill. Thus, the court properly entered judgment for Barry on Boston’s personal injury cause of action.

B. Conversion

Boston’s theory was the personal property she left at the Property was wrongfully taken from her. The elements of a conversion claim are the following:

(1) the plaintiff’s ownership or right to possess the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240; see CACI No. 2100.)

Boston alleges the Barrys converted a “fortune in GEMS.” Boston also alleges a non-party to this action stole Binning’s diamond and sapphire ring. Boston asserts “Barry discarded all of [her] belonging [sic] including all of the records in her files in [her] garage,” some of which was government property.

Boston testified generally concerning her missing property, but she presented no specific testimony concerning items that Binning or the Barrys converted. To the contrary, Barry presented testimony Dahlin repeatedly advised Boston to retrieve her belongings from the Property. Dahlin also testified he arranged to meet Boston at the Property and she either failed to appear or appeared and retrieved only a few items, leaving behind two garages full of belongings. Finally, Dahlin testified he warned Boston that if she did not retrieve her personal property, it would be auctioned off; it was. Therefore, the trial court properly entered judgment for Barry on Boston’s conversion cause of action.

III. Expert Witnesses

As we explain above, one of Boston’s two remaining causes of action was for personal injury because mold and asbestos at the Property allegedly caused her physical injuries. To support such a claim, a party would normally present expert testimony from medical professionals that the plaintiff suffered physical illness and it was the expert’s opinion the conditions at the property caused the illness.

Code of Civil Procedure section 2034.260, subdivision (a), requires “[a]ll parties who have appeared in the action” to “exchange information concerning expert witnesses in writing on or before the date of exchange” indicated in a demand for exchange of such information. Code of Civil Procedure section 2034.260, subdivision (b), states, “[t]he exchange of expert witness information shall include” either “[a] list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial.”

Boston contends the trial court erred because “[t]he record reflects [she] had many [q]ualified [w]itnesses that were [n]ever [h]eard.” As support for her claim, Boston cites to her witness and expert witness list she filed with the court. But Boston did not comply with the Code of Civil Procedure’s requirements for the presentation of expert testimony. Thus, the court did not err by ruling Boston could not offer any expert testimony.

DISPOSITION

The judgment is affirmed. Respondent is awarded her costs on appeal.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.