Chavez v. Solomon
Filed 9/6/13
Chavez v. Solomon CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JUAN P. CHAVEZ et al.,
Plaintiffs
and Respondents,
v.
DAVID SOLOMON,
Defendant
and Appellant.
B240549
(Los Angeles County
Super. Ct. No. TC023412)
APPEAL from a judgment of the Superior
Court of
County, Rose A. Hom, Judge.
Affirmed.
Arthur D. Hodge for Defendant and
Appellant.
Law Offices of Ramin R. Younessi and
Gabriel J. Pimentel for Plaintiffs and Respondents.
* * * * * * * * *
Defendant and appellant David
Solomon challenges a jury award against him and in favor of plaintiffs and
respondents, a mother and her son, who lived next door to defendant’s partially
constructed house. (Defendant did not
occupy the property.) Plaintiffs alleged
defendant’s negligence in failing to prevent a fire hazard on his property
caused them damages when a fire that started on his property spread to their
property. The jury awarded a total of
$12,883 to the son and $3,400 to the mother.
Defendant’s primary contention on appeal is that the court erred in
submitting the negligence cause of action to the jury because defendant owed no
duty to prevent the harm to plaintiffs as a
Defendant contends he owed no duty of care to prevent
plaintiffs’ damages since plaintiffs did not sustain the alleged damages on
property that defendant owned or controlled, but on their own property. Defendant further argues the law does not
impose a duty to warn or protect neighbors from a fire of unknown cause that
broke out when he was absent from the property and about which he had no
notice. In particular, defendant
contends the law does not impose liability for the criminal acts of third
parties who may have started the fire while they trespassed on his property.
Contending that plaintiffs knew as well as he did that
transients sometimes loitered in his partially constructed dwelling, defendant
asserts he had no duty to warn of the risk that a trespasser might start a
fire; therefore, the trial court
prejudicially erred in refusing to instruct the jury with CACI No. 1004 in the
premises liability series of civil jury instructions concerning the absence of
a duty to warn of an open and obvious condition.
Last, defendant asserts error in the
admission of evidence to support plaintiffs’ damages claims and also contends
no substantial evidence supports the
damages award. Finding no error, we affirm the judgment.
DISCUSSION
Defendant misperceives
the scope of a landowner’s duty to prevent harm to others. California law does not hold a
landowner free of liability for any and all harm occurring off the landowner’s
property. The Supreme Court opinion in
108 (Rowland) established that the
contemporary premises liability test is whether the landowner acted as a
reasonable person in managing the property in view of the probability of injury
to others. Liability is decided by
balancing a number of considerations.
“[T]he major ones are the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury suffered, the moral
blame attached to the defendant's conduct, the policy of preventing future
harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for
breach, and the availability, cost, and prevalence of insurance for the risk
involved.†(Id.
at pp. 112-113.)
There is no free pass on
liability for injury occurring off site of the premises owned by a
defendant. (See Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478-1479 [“A
landowner’s duty of care to avoid exposing others to a risk of injury is not
limited to injuries that occur on premises owned or controlled by the
landowner. Rather, the duty of care
encompasses a duty to avoid exposing persons to risks of injury that occur off
site if the landowner’s property is maintained in such a manner as to expose
persons to an unreasonable risk of injury offsiteâ€]; McDaniel v. Sunset Manor Co.
(1990) 220 Cal.App.3d 1, 7-8 [the Rowland factors determine the scope of a duty
of care whether the risk of harm is situated on site or off site].)
We may summarily dispose of defendant’s arguments that he
had no duty to warn plaintiffs of the risk of a fire breaking out on his
property, and that the court erred in not instructing the jury with CACI No. 1004 concerning the absence of a duty to
warn of an open and obvious condition.
Plaintiffs did not allege or try to prove defendant breached the duty to
warn of a dangerous condition on his property.
Instead, plaintiffs’ case rested on defendant’s duty to
spreading to their property. As the duty
to warn was not in dispute, the trial court committed no prejudicial error in
refusing to instruct on that theory of liability.
Defendant frames his arguments regarding premises
liability as pure questions of law and presents no substantial evidence
challenge as to liability, so we need not discuss the evidence supporting the
jury’s findings that he was liable for plaintiffs’ injuries in this case.
We turn to defendant’s claims of error in
the jury’s damages award. The jury
awarded $11,683 to repair four vehicles that were damaged
in the fire.
Defendant argues the court prejudicially erred by admitting evidence of
the cost to repair the vehicles because the vehicles were total losses and the
cost of repairs exceeded their fair market value. But there was no evidence the vehicles
were total losses. The only proffered
evidence to this effect was the testimony of one of the plaintiffs that, about
two weeks after the fire, he took his cars to two different body shops, and at
one of the shops, he was told the cars were total losses. But on defendant’s hearsay objection, the
court struck this testimony.
Defendant also argues plaintiffs were only entitled to
recover the fair market value, or assessed value of the cars, not the cost to
repair them. This claim of error was
forfeited because defendant did not object at trial that evidence of the cost
to repair the vehicles was inadmissible as a matter of law or that the only
permissible measure of damages was fair market value. At an Evidence Code section 402 hearing,
defendant objected that plaintiffs’ expert lacked expertise, and thus, there
was no foundation for his testimony, and that the expert’s opinion was
irrelevant because it was based on an inspection of the cars three and a half
years after the fire. Defendant also
complained that he did not take the deposition of the expert before trial,
although plaintiffs had disclosed the identity of their expert witness and
neither party demanded an exchange of expert witness discovery.
But defendant never objected that evidence of the cost to
repair the vehicles was inadmissible on the ground that plaintiffs were only
entitled to recover the appraised or fair market value. As the objection was not preserved in the
trial court, it may not be raised for the first time on appeal. Therefore, we will not discuss the evidence
and arguments on the merits of the question whether plaintiffs could only
recover fair market value and not the cost to repair the vehicles.
Defendant also argues the $11,683 award to repair the
four vehicles was excessive because the award exceeded the fair market value of
the cars, but we will not consider that argument on appeal either because it
has no support in the evidence.
Defendant himself points out repeatedly there is no evidence in the
record of the fair market value of the vehicles. Without evidence of the fair market value of
the vehicles, there is no basis to find the cost of repair exceeded the fair
market value.
Last, defendant argues there is no substantial evidence
to support the damages award. In assessing whether substantial evidence exists, the appellate
court views all factual matters in the light most favorable to the prevailing
party, resolving all conflicts and indulging all reasonable inferences from the
evidence to support the judgment.
(
Court (1995) 9 Cal.4th 559, 571.)
Defendant did not provide a full and fair summary of the damages
evidence in the record. Worse, defendant
has distorted and misconstrued the evidence.
For example, defendant offers no citation to the reporter’s transcript
to support his argument that no evidence supported the verdict in favor of the
plaintiff mother. As another example,
defendant’s claim that no substantial evidence supported the award for cost to
repair the four vehicles rests on the argument that the vehicles were total
losses, for which there is no support in the evidence.
An appellant may not include only
favorable evidence in his brief rather than all
“significant facts†as required by the California Rules of
Court. (Rule 8.204(a)(2)(C).) An appellant’s failure to state all of the
evidence fairly in his brief waives the alleged error. (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75
Cal.App.4th 1262, 1274.) We find
defendant has waived the right to appellate review of the adequacy of the
damages evidence by failing to adequately present the record in his appellate
brief and by misrepresenting the record facts.
We briefly
address one last point. Defendant did
not frame an appellate issue regarding the improper admission of evidence of
insurance, but generally complains that the trial court should have granted his
motion for mistrial after plaintiff’s damages expert uttered the word
“insurance†one time. When defendant’s
counsel asked the expert if it was his opinion that the vehicles could have been
repaired within two weeks of the fire, the expert replied, “If an insurance
company had something to do with it, it would not have been repaired.†With the consent of counsel, the court
immediately instructed the jury with CACI No. 5001 that they must not consider
whether either party had insurance. We
agree with the trial court that this brief reference to insurance did not
warrant a mistrial or otherwise prejudice the defense. The jury likely understood the comment to
mean an insurance company would not have covered the cost to repair the
vehicles because they were a total loss, and if the jury believed that, they
would not award all the costs of repair that plaintiffs sought to recover.
The judgment is affirmed.
Respondents are awarded their costs on appeal.
GRIMES,
J.
We concur:
BIGELOW,
P. J.
RUBIN,
J.
