Filed 6/15/22 Pennypacker v. Yuen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Tenant Matthew Pennypacker sued landlord Dennis Yuen and his mother Amy Yuen (a previous co-owner of the property who had also assisted with leasing), asserting causes of action that included negligence, breach of implied warranty of habitability, breach of warranty of quiet enjoyment, violation of section 37.10B of the San Francisco Administrative Code,[1] and violation of California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200). Prior to trial, the parties agreed to bifurcate and adjudicate the UCL claim in a subsequent bench trial. The Yuens[2] also made an offer to compromise for $15,000 and other terms pursuant to Code of Civil Procedure section 998.

After the close of evidence, the trial court granted the Yuens’ motion for directed verdict on the section 37.10B claim. The jury subsequently found in favor of Pennypacker on the remaining three claims and awarded him $13,000 in damages for rent overpayment and emotional distress. On the UCL claim, the trial court denied Pennypacker’s request for full restitution on all rents paid. As the jury award was less favorable to Pennypacker than the $15,000 Code of Civil Procedure section 998 offer, the trial court concluded that the Yuens were entitled to recover $51,507.04 in costs. On July 1, 2019, the trial court entered judgment in favor of the Yuens and against Pennypacker for a total of $48,002.76: $51,507.04 in costs plus $9,495.72 in attorney fees[3] awarded to the Yuens, minus the $13,000 in damages awarded to Pennypacker.

Pennypacker now argues that the judgment should be reversed and the award of costs should be stricken and set aside. He contends that the trial court (1) abused its discretion by excluding certain evidence and expert testimony; (2) erred in declining to provide a negligence per se instruction to the jury; (3) erred in granting a directed verdict on the section 37.10B claim; (4) did not afford Pennypacker a fair trial on his UCL claim; and (5) erred in awarding costs to the Yuens. We agree that the trial court erred in granting a directed verdict on the section 37.10B claim based on an overly narrow reading of the intent requirement in section 37.10B, subdivision (a). We thus reverse the judgment entered upon the order granting a directed verdict as to the section 37.10B claim. Having reversed the judgment as to the section 37.10B claim, we also reverse the judgment as to the award of $51,507.04 in costs to the Yuens. We affirm the judgment in all other respects.

BACKGROUND

In 2015, Pennypacker owned a house in Concord, but was looking for a place to rent in San Francisco while he took classes at a nearby vocational school. Pennypacker heard about an available unit from an acquaintance who was moving out of the space. Pennypacker contacted Amy and walked through the unit twice, first with his acquaintance and then later with Amy. Amy was a realtor and had purchased the property with her son in 2005 and renovated the property to add two rental units. Amy transferred exclusive ownership to her son a few years after the purchase, but continued to help with the leasing of the property. In June 2015, Pennypacker signed a lease and moved into one of these units. The rent was $1,000 a month. Pennypacker paid $15,900 in rent from June 2015 to September 2016.

1. Complaint and Discovery

In November 2016, Pennypacker filed an action against the Yuens. The operative complaint asserted various causes of action, including (1) negligence; (2) breach of implied warranty of habitability; (3) breach of warranty of quiet enjoyment; (4) fraud; (5) violation of section 37.10B; and (6) violation of the UCL. The complaint alleged that the unit was built illegally without a permit or a certificate of final completion and occupancy,[4] and that the Yuens had defrauded Pennypacker by representing to him that it was a legal unit. It alleged that the space contained “defective” and “hazardous” conditions, including inadequate ventilation, lack of heating, and vermin. It also alleged that on September 22, 2016, Pennypacker was “going down a flight of stairs in the hallway that leads to the backyard and fell down the stairs after tripping on grip tape that was negligently applied to the stairs.”

During discovery, the Yuens propounded a special interrogatory asking Pennypacker to state with specificity how his fall down the stairs had occurred. Pennypacker responded that he “tripped on a strip of weathered nonskid tape which was sticking up on a step toward the top of the stairs and fell forward down the stairs to the bottom where he was unconscious and woke up several minutes later.”

While Pennypacker filed the action in November 2016, he did not return the keys to the unit until July 2017.

2. Offer to Compromise

In April 2017, the Yuens made a $15,000 offer to compromise pursuant to Code of Civil Procedure section 998. The offer included an attachment titled “Release and Settlement Agreement” (release). Pennypacker did not accept the offer.[5]

3. Deposition Testimony

At his deposition, Pennypacker was asked whether Amy or Dennis had told him the unit was legal. He responded: “No.” When asked whether the Yuens had made “any sort of comment . . . one way or the other as to whether the unit was legal,” Pennypacker responded: “No.” Pennypacker was also asked how he fell on September 22, 2016. He responded: “I tripped on a—on—my tread caught on the strip of nonskid tape that was weathered and sticking up there, had like a loop on it.”[6]

4. Motion in Limine on Certificate and Permits

Before trial, the Yuens moved in limine under Evidence Code section 352 to preclude introduction of and reference to their alleged failure to procure a certificate of final completion and occupancy for the rental unit occupied by Pennypacker. At the hearing on the motion, counsel for Pennypacker argued that the certificate was relevant to the September 22, 2016 fall because the stair risers varied in height and “[h]ad the City inspected this—so if they had followed the proper course and got permits and got a certificate of occupancy, the City would have been out there and inspected and would have seen the stairs.” In other words, Pennypacker “never would have been there in the first place because if the City came and inspected, they would have never approved this situation.” The trial court concluded that the theory was “speculative,” and contrary to the evidence that Pennypacker had tripped on the grip tape (not because the stairs varied in height).

Pennypacker’s counsel argued the evidence was also relevant to the fraud claim because the Yuens had “represented to [Pennypacker] it was a legal unit.” Defense counsel cited Pennypacker’s deposition testimony that the Yuens had never made any such representations. The trial court granted the motion. It also confirmed that the ruling would apply not only to the certificate, but also to evidence regarding whether the Yuens had construction permits for the unit and the stairs.

5. Trial Testimony

Pennypacker testified at trial that he was “hesitant” to bring up property issues to the Yuens because the previous tenant had “led [him] to believe that . . . all of the former tenants had been Asian.” He continued: “I felt like I wanted to keep things to a low roll as far as complaints and whatnot.” For example, Pennypacker never complained to the Yuens about the lack of heat, but instead got space heaters. He testified that he did tell Dennis about ventilation issues in the unit and rat droppings in the garage next to his unit.

In response to Pennypacker’s complaint about rat droppings in the garage, Dennis testified that he asked the other tenants to clean up their respective storage areas. He subsequently checked the space and after seeing no evidence of rats, communicated his findings to Pennypacker and concluded no further action was needed. Dennis was unaware of any ventilation issue in the unit. Amy testified that there was no window in the apartment itself and she had never researched ventilation. Amy never inspected the unit to determine whether it had a heat source.

Pennypacker testified that he retained counsel on September 13, 2016 to sue the Yuens. Then, on September 22, 2016, Pennypacker was holding laundry in his hands when he tripped and fell down the stairs. When asked if the laundry impeded his ability to use the handrail on the stairs, Pennypacker responded: “No. I could have used the handrail.” When asked what he believed caused his fall, Pennypacker responded: “I believe it was—which is not in that photo now. Obviously, there’s some remnants of it, but some nonskid tape which was weathered. I don’t know how long it had been there, but it was not adhering anymore in the center. [¶] It was actually sticking up and I believe that my—the tread on my shoe must have gotten stuck in it. I’m not entirely sure, but it must of contributed to my losing my balance and falling down the stairs.” Pennypacker went to the emergency room. The medical record contained the following note: “ ‘Patient states he lives a few blocks away and fell down about seven to ten stairs after tripping and getting foot stuck on some tape.’ ”

6. Motion in Limine on Expert Testimony

Following Pennypacker’s testimony, the trial court heard the Yuens’ motion in limine to preclude certain testimony from Pennypacker’s construction expert, general contractor Kevin Kearney. The trial court held a hearing under Evidence Code section 402 on the issue. At the section 402 hearing, Kearney testified that the nonstick tape on the stairs combined with a three-quarter inch differential in the stair risers had caused Pennypacker to fall. Kearney reached this opinion after reviewing Pennypacker’s deposition transcript. When asked how he was familiar with the effect of stair riser differentials, Kearney responded: “Well, I’ve been walking up and downs [sic] stairs for a very long time. I’ve built stairs and I understand the mechanics of stair building.”

The trial court concluded that Kearney did not have “any of the expertise to opine other than the tape. . . . He’s not an expert in how the brain works at all. He’s not an expert in engineering, biomechanics. And moreover, his testimony in the voir dire was, ‘well, I walked up and down stairs.’ That then doesn’t qualify as expert testimony because all of us walk up and down stairs almost every day.” Kearney could testify about the grip tape and any related building code requirements, but not about the risers or permits for the stairs. The trial court explained that such testimony was “missing the causation.” It continued: “There should have been a causation expert. There wasn’t. And the court’s left with the facts in this case and your expert’s limitation on his testimony, but I certainly will allow him to talk about the nonstick tape.”

Kearney subsequently testified at trial that the stairs had not been properly maintained, and that there was an area of tape “curling at the corners” as well as missing tape that had not been replaced. He explained that, while there is no building code section that requires grip tape on stairs, the California Building Code requires stairs be “nonslip and resistant.” Kearney also testified that “[t]here is no light and ventilation in this unit as required by the San Francisco Building Code.” Kearney noted that the only window in the apartment was too small and opened into the garage, which itself was not ventilated, in violation of the building code. Additionally, the apartment lacked a required emergency egress.

7. Withdrawal of Claims

On the first day of trial, Pennypacker dismissed causes of action for

nuisance, intentional infliction of emotional distress, and violation of section 37.9. After the close of evidence, Pennypacker withdrew his fraud claim. He proceeded with the negligence and section 37.10B claims (as to both Dennis and Amy), as well as the habitability and quiet enjoyment claims (only as to Dennis).

8. Motion for Directed Verdict

The Yuens filed a motion for directed verdict on Pennypacker’s section 37.10B claim, which is sometimes referred to as “Proposition M” based on its enacting initiative. Pennypacker opposed the motion, arguing that the jury should be allowed to decide whether the Yuens had violated section 37.10B, subdivision (a)(1), (2), or (10) based on the evidence presented.

Section 37.10B, subdivision (a) provides: “No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith[.]” It then lists 15 subdivisions, including: Section 37.10B, subdivision (a)(1), “nterrupt, terminate or fail to provide housing services required by contract or by State, County or local housing, health or safety laws[.]”; (a)(2), “[f]ail to perform repairs and maintenance required by contract or by State, County or local housing, health or safety laws”; and (a)(10), “[i]nterfere with a tenant’s right to quiet use and enjoyment of a rental housing unit as that right is defined by California law[.]”

1. [i]Jury Verdict

The jury found in favor of Pennypacker on his negligence, habitability, and quiet enjoyment claims. It awarded Pennypacker $13,000 in total damages: $8,000 for rent overpayment and $5,000 for emotional distress related to his leased space. It awarded zero damages for Pennypacker’s claimed noneconomic losses related to his fall down the stairs.[7]

10. Adjudication of UCL Claim

After the jury verdict, the trial court held a hearing to determine whether the UCL claim should proceed to a bench trial. The trial court concluded that the UCL claim was “moot” because it sought restitution for rents paid, and the jury had already decided that issue in awarding $8,000 in rent overpayment on Pennypacker’s habitability claim.

Pennypacker then moved for a new trial on various grounds, including that the trial court had erred in declaring his UCL claim moot. He argued that the UCL claim was distinguishable from the habitability claim because it was based on the alleged unlawful business practice of renting the unpermitted unit without a certificate of occupancy in violation of the building code. The court granted Pennypacker’s new trial motion on this ground, affording him an opportunity to present the UCL claim to the court. It stated: Pennypacker “may provide the court with a transcript of the trial and any additional evidence he wishes the court to consider, namely the fact that no certificate of occupancy was ever issued for the apartment and the limitations of the permit.” The court rejected Pennypacker’s initial request for additional testimony from Amy regarding the permit as irrelevant and unnecessary, but explained that if Pennypacker “wishes to provide the court with an offer of proof addressing both of these issues, the court will reconsider its ruling and if necessary, set a time for Ms. Yuen’s testimony.”

Pennypacker submitted an evidentiary brief in support of his UCL claim, attaching (1) the Yuens’ building application for the 2005 renovation, which did not identify the additional rental units; and (2) the certificate of occupancy showing only one dwelling unit on the property. As for the additional testimony from Amy, Pennypacker argued that he should be permitted to examine her on the theory that she intentionally deceived the city by submitting a false application that omitted the rental units. The trial court found that such testimony would not add anything more to the record from the jury trial and the briefing.

The trial court subsequently concluded that Pennypacker was unable to prove causation for his UCL claim because there was no evidence of any fraudulent representation made by the Yuens regarding the legality of the unit. Even assuming there was such evidence, the court identified “numerous factors” weighing against an award of restitution for all rents paid, including that (1) the jury award reflected its assessment that the unit afforded Pennypacker some housing value, and (2) Pennypacker made use of the unit and paid no rent for 10 months after he discovered it was not permitted.

11. Yuens’ Memorandum of Costs and Motion for Attorney Fees

The Yuens filed a memorandum of costs seeking $51,507.04. Over Pennypacker’s objection, the trial court concluded that the Yuens’ Code of Civil Procedure section 998 offer for $15,000 made in April 2017 was valid because the release included with the settlement offer was “clearly tethered to the claims from the ‘action’ ” and thus not overbroad. As the $13,000 award at trial was less favorable to Pennypacker than the $15,000 offer, the trial court concluded that the Yuens were entitled to recover costs under section 998. The Yuens also filed a motion for attorney fees related to the defense of Pennypacker’s section 37.9 claim, which he dismissed on the first day of trial. On June 14, 2019, the trial court issued an order awarding $51,507.04 in costs and $9,495.72 in attorney fees to the Yuens.

DISCUSSION

In this appeal, Pennypacker argues that the trial court (1) abused its discretion by excluding certain evidence and expert testimony; (2) erred in declining to provide a negligence per se instruction to the jury; (3) erred in granting a directed verdict on the section 37.10B claim; (4) did not afford Pennypacker a fair trial on his UCL claim; and (5) erred in awarding costs to the Yuens. We address each argument in turn.[8]

1. Exclusion of Evidence and Expert Testimony

Pennypacker contends that the trial court abused its discretion in excluding evidence and expert testimony related to the lack of certificate of occupancy, construction permits, and building code violations regarding the stair height. Evidence Code section 352 vests the trial court with discretion to exclude otherwise relevant evidence if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review rulings on admissibility of evidence and expert testimony for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717; Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)

Pennypacker offers three arguments to support his position that the evidentiary rulings constituted an abuse of discretion here. First, he argues that the excluded evidence and testimony was necessary to prove his negligence cause of action, and that the trial court improperly relied on Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209 (Gravelin) for its ruling. We are not persuaded.

In Gravelin, a satellite dish installer was injured while trying to access the roof of a residence by stepping on a small roof extension between the house and carport. (Gravelin, supra, 200 Cal.App.4th at pp. 1211–1212.) The homeowners had built the extension, but did not obtain a building permit to do so. (Id. at pp. 1212–1213.) As the installer stepped off the ladder and onto the extension, it collapsed. (Id. at p. 1213.) The installer sued the homeowners, arguing that they were negligent in failing to obtain a permit. (Id. at p. 1218.) Gravelin affirmed summary judgment for the homeowners. (Id. at p. 1211.) It explained: “Plaintiff was injured when the roof extension collapsed. His injury did not result from the absence of a building permit but from applying too much weight to a small roof extension. It is true, as plaintiff argues, that obtaining a permit would have subjected the roof extension to a county inspection for compliance with building regulations. But that process becomes important only if the roof extension was noncompliant with building regulations specifying structural requirements like standards for minimum weight-bearing capacity. It is compliance with building regulations setting forth specific structural requirements—not the permit process itself—that is relevant here.” (Id. at p. 1219.) Gravelin also concluded that there was no causal connection between any failure to obtain a permit and the resulting injury. (Id. at p. 1218.) “It was plaintiff’s unfortunate miscalculation of an appropriate access route, not any negligence by defendants, that led to his injury. (Ibid.)

While we acknowledge that Gravelin involved somewhat different facts (namely, that the plaintiff was a contractor with site survey training and used the roof extension in a manner outside its intended purpose), its principles apply with equal force: that the conditions of the property, not the status of its paperwork, is the relevant inquiry for negligence and that the conditions are relevant if they are connected to the injury. (Gravelin, supra, 200 Cal.App.4th at pp. 1217–1219.) Here, Pennypacker alleged that he “fell down the stairs after tripping on grip tape that was negligently applied to the stairs.” His discovery responses, medical records, and deposition testimony confirmed that he tripped on the tape. There was no evidence connecting his fall to the lack of certificate of occupancy, construction permits, or alleged building code violations.

Markley v. Beagle (1967) 66 Cal.2d 951 further supports our conclusion. In Markley, an independent contractor was injured in a building when the mezzanine railing gave way and he fell to the floor below. (Id. at p. 955.) Markley concluded that the evidence was sufficient to support the verdict in favor of the contractor. (Ibid.) The contractor was using the railing for support while walking, and there was evidence it had failed because the owners had removed bins previously built around the railing that provided necessary support. (Id. at pp. 955, 961.) Markley supports the same principle that a claim for negligence can be based on evidence of conditions causing the injury. (Id. at p. 961.) As explained above, there is nothing here to connect Pennypacker’s fall to any conditions beyond the grip tape.

Second, Pennypacker argues that the trial court erred in excluding this evidence and testimony based on Pennypacker’s pretrial deposition testimony. During oral argument on appeal, however, counsel conceded that the deposition testimony was not equivocal on this issue. Pennypacker clearly identified the tape as the cause of his fall: “I tripped on a—on—my tread caught on the strip of nonskid tape that was weathered and sticking up there, had like a loop on it.” This excerpt undermines Pennypacker’s reliance on Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659 (Kelly). In Kelly, the plaintiff was injured in a building with two elevators and had testified at deposition that she had “ ‘no idea’ ” and “ ‘no way of remembering’ ” which one had caused her injuries. (Id. at p. 665.) Kelly concluded that the trial court had abused its discretion in excluding evidence regarding one of the two elevators. (Id. at p. 671.) Unlike the plaintiff in Kelly, the record here shows Pennypacker testified that the grip tape caused his fall and offered no other alternate explanation.

Moreover, we note that the trial court limited the scope of expert testimony after Pennypacker testified at trial that the grip tape caused his fall. “ ‘[W]hile expert criticism of the defendant’s security measures may establish abstract negligence, an expert’s speculative and conjectural conclusion that different measures might have prevented an injury cannot be relied upon to establish causation.’ ” (Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 433.)

Pennypacker cites Kaney v. Custance (2022) 74 Cal.App.5th 201 to argue that the expert testimony should have been admitted because Pennypacker testified at trial that he was “not entirely sure” that the tape caused his fall. In Kaney, a slip-and-fall plaintiff testified that she did not remember falling, but only being on the stairs and then waking up on the floor in pain. (Id. at p. 220.) Kaney reversed summary judgment granted for the landlord because a reasonable and probable inference could be drawn that a dangerous condition of the stairs, including the absence of a handrail, caused her fall. (Ibid.) Here, unlike Kaney, Pennypacker testified at deposition and trial that he tripped on the tape, and believed that the tape caused his fall. His testimony did not support a conclusion that the lack of permits or the irregular height of the stair risers caused his fall. Nor was there any accident reconstruction on which to base these other theories. We thus agree with the trial court that Kearney’s proposed expert testimony on the permits and stair risers lacked the necessary causation.

Third, Pennypacker argues that these evidentiary rulings deprived him of a fair trial by not only undermining his negligence claim, but also forcing the dismissal of his fraud claim. As to the negligence claim, the right to a fair trial does not confer “ ‘a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 684.) The proffered evidence lacked probative value and its exclusion did not deprive Pennypacker of a meaningful opportunity to present a defense or his right to a fair trial. (Id. at p. 685.) As to the fraud claim, we are not persuaded by Pennypacker’s argument that he would have achieved a more favorable result had the proffered evidence been admitted. The fraud claim was based on the allegation that the Yuens had represented to Pennypacker that the space he rented was a legal unit. Pennypacker testified that neither Amy nor Dennis had ever told him the unit was legal. Nor had the Yuens advertised the unit to Pennypacker. Indeed, Pennypacker initiated contact with Amy after hearing from the former tenant that the space was available. There was no evidence of any fraudulent representation to prove the fraud cause of action.[9]

In sum, we conclude that the trial court did not abuse its discretion in excluding evidence and expert testimony related to the lack of certificate of occupancy, construction permits, and stair riser building code violations.

2. Negligence Per Se Instruction

Pennypacker argues that the trial court erred in declining to provide a negligence per se instruction to the jury. We review claims of instructional error de novo. (Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects (2010) 187 Cal.App.4th 945, 961.) “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Judgment in a civil case may not be reversed for instructional error, however, “ ‘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.’ ” (Id. at p. 580.)

Evidence Code section 669 “codifies the common law doctrine of negligence per se” and “allows proof of a statutory violation to create a presumption of negligence in specified circumstances.” (Elsner v. Uveges

(2004) 34 Cal.4th 915, 927.) Evidence Code section 669, subdivision (a) provides that the failure of a person to exercise due cause is presumed if: “(1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.”

Pennypacker presents an argument on this instructional issue that is similar to his argument on the evidentiary issue: that there was substantial evidence of causation to satisfy the requirements of Evidence Code section 669 and instruct the jury on negligence per se. We reject this argument for the same reasons. Pennypacker’s complaint, discovery responses, medical records, deposition, and trial testimony all identified the grip tape as the cause of his fall. There was no evidence that the lack of certificate of occupancy, construction permits, or alleged building code violations were factors that caused or contributed to his fall.

None of the cases cited by Pennypacker alter this conclusion. In Hopper v. Bulaich (1945) 27 Cal.2d 431, the plaintiff was injured after falling into an uncovered ditch. (Id. at p. 432.) The permit for the excavation required the defendant to cover the ditch at night pursuant to local ordinance. (Id. at p. 433.) Hopper concluded that it was prejudicial error to refuse the plaintiff’s proposed jury instruction on the ordinance and instead instruct the jury that there was no regulatory standard. (Id. at p. 436.) It explained that the permit and ordinance “formulated a standard of conduct which the [trial] court should have adopted in submitting to the jury the question of defendant’s civil liability.” (Id. at p. 434.) Hopper did not, however, dispose of the causation requirement for negligence per se. Indeed, the plaintiff’s proposed jury instruction contained “a proviso that the violation would be of no consequence unless it was the proximate cause of the plaintiff’s injury.” (Id. at p. 433.)

In Jones v. Awad (2019) 39 Cal.App.5th 1200, the plaintiff sued defendant homeowners after she tripped on a step in their garage. (Id. at p. 1203.) She appealed the grant of summary judgment, arguing that the doctrine of negligence per se should have been applied. (Ibid.) Jones affirmed, declining to apply the doctrine given that the homeowners purchased the home many years after it was built and thus “did not take part in any aspect of the design or construction of the garage step area.” (Id. at p. 1212.) While we are not convinced that the Yuens were equally removed from the renovations made to the property here, we agree with the conclusion in Jones that “the presence of a building code violation does not automatically render defendants at fault.” (Ibid.) A plaintiff must satisfy all of the elements for application of negligence per se, including causation.

In Krusi v. S.J. Amoroso Construction Co. (2000) 81 Cal.App.4th 995, commercial building owners sued the architects and contractors after being advised by consultants that damage to the building had been sustained due to deficiencies in its design and construction. (Id. at p. 998.) Krusi cited to our decision in Huang v. Garner (1984) 157 Cal.App.3d 404, where evidence was presented that defective building plans and specifications had led to insufficient fire retardation walls, shear walls and structure. (Id. at p. 411.) Huang reversed a nonsuit upon concluding there was sufficient evidence against the building designer and engineer “to allow the case to go to the jury upon an instruction as to negligence per se.” (Id. at p. 412.) Here, unlike Krusi and Huang, there was insufficient evidence of causation to trigger the provision of a negligence per se jury instruction.

In sum, we conclude that the trial court did not err in declining to provide a negligence per se instruction to the jury.

3. Directed Verdict on Section 37.10B Claim

Pennypacker argues that the trial court erred in directing a verdict in favor of the Yuens on his section 37.10B claim based on its conclusion that he was required to prove the Yuens acted or failed to act with the intent to cause him to vacate the rental unit in order to establish “bad faith” under section 37.10B, subdivision (a). The trial court’s ruling on a motion for directed verdict is reviewed de novo where, as here, it “raises legal issues, such as the application of law to undisputed facts or the interpretation of a statute.” (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 946–947.)

“In interpreting municipal ordinances, we exercise our independent judgment as we would when construing a statute.” (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 896.) That process may involve up to three steps. (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082.) First, we look to the words of the ordinance themselves as “chosen language is the most reliable indicator of its intent.” (Ibid.) “If the statutory language is clear and unambiguous, our task is at an end, for there is no need for judicial construction.” (Id. at p. 1083.) When the plain meaning of the text does not resolve the question, we proceed to the second step and turn to maxims of construction and extrinsic aids, including legislative history materials. (Ibid.) If ambiguity remains, we “must cautiously take the third and final step” and “apply ‘reason, practicality, and common sense to the language at hand.’ ” (Id. at p. 1084.)

We conclude that the plain language of the section 37.10B is clear: a landlord, and his agents, employees and contractors are prohibited from engaging in any of the 15 categories of acts or omissions enumerated in subdivision (a) “in bad faith.” (§ 37.10B, subd. (a), italics added.) In construing this ordinance, our charge is “simply to ascertain and declare” what it contains, “not to change its scope by reading into it language it does not contain or by reading out of it language it does.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.) “Our task, however, does not encompass working out a comprehensive definition of bad faith” in this context. (See, e.g., Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 763 [discussing “bad faith” definition in the context of employment contracts].) “It requires only that we determine whether the definition [determined by the trial court] was an erroneous statement of the law” and thus undermined Pennypacker’s right to present his section 37.10B cause of action to the jury. (Ibid.)

We find nothing in the ordinance which supports the trial court’s conclusion that the language of section 37.10B, subdivision (a)(15) should be imported into the rest of subdivision (a). Section 37.10B, subdivision (a)(15) is a catch-all provision that prohibits “repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit that cause, are likely to cause, or are intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy.” (Italics added.) We cannot read subdivision (a)(15) of section 37.10B in isolation, but instead “must apply the general principle of statutory construction that statutes are to be read in order to harmonize the statutory scheme and not to produce absurd results.” (In re Catalano (1981) 29 Cal.3d 1, 11.) The repeated acts or omissions prohibited by section 37.10B, subdivision (a)(15) are merely one example of landlord acts or omissions which, when performed in bad faith, constitute “tenant harassment” in violation of section 37.10B, subdivision (a). Proof that a landlord acted with the intent to cause a lawful occupant to vacate is not a requirement of subdivision (a) as a whole.

Given our conclusion that the plain language of section 37.10B is clear and unambiguous, we need not proceed with any additional steps to construe the ordinance. (MacIsaac v. Waste Management Collection & Recycling, Inc., supra, 134 Cal.App.4th at p. 1083.) Even if an examination of extrinsic evidence was necessary, the legislative history materials cited by the Yuens do not convince us that “bad faith” within the meaning of section 37.10B, subdivision (a) can only be established with evidence of a landlord “harassing tenants so that they can get them out and raise the rent.”

The Rent Ordinance was first adopted in 1979, “necessitated by what the Board of Supervisors perceived as a housing crisis in the City and County of San Francisco.” (Golden Gateway Center v. San Francisco Residential Rent Stabilization & Arbitration Bd. (1999) 73 Cal.App.4th 1204, 1211.) “The crisis was caused by uncontrolled rent increases which had the effect of either displacing tenants who could not pay increased rents or forcing tenants to expend less on other of life’s necessities in order to pay increased rents.” (Ibid.) “The essential purpose of the ordinance was to regulate rents, so that tenants would not be subjected to excessive rent increases.” (Ibid.) “As a safeguard against furtive tactics, the ordinance defined rent increases to include not only additional amounts requested for rent, but also ‘any reduction in housing services without a corresponding reduction in the monies demanded or paid for rent[.]’ ” (Ibid.)

In 2008, San Francisco voters approved Proposition M, an initiative measure that amended the Rent Ordinance. (Larson v. City & County of San Francisco (2011) 192 Cal.App.4th 1263, 1271.) Proposition M “augmented the antiharassment provisions of the ordinance by expanding the definition of ‘decrease in [housing] services’ to include a list of ‘bad faith’ acts by landlords and their agents.” (Id. at p. 1272.) Proposition M posed the following question to voters: “Shall the City’s Residential Rent Ordinance be amended to prohibit specific acts of tenant harassment by landlords and to provide for enforcement by means of court orders, rent reduction, monetary awards or criminal penalties?” (Italics added.) The digest by the Ballot Simplification Committee stated that Proposition M “would amend the City’s Residential Rent Ordinance to prohibit harassment of tenants by landlords.” The proponent argument authorized by the board of supervisors stated that Proposition M would “stop landlords from harassing tenants or pressuring them to leave so that the rent can be raised.” (Italics added.) These descriptions suggest that the protections of section 37.10B were intended to protect against harassment more broadly, not just harassment intended to force a tenant out and increase the rent.

This intent is reflected in the plain language of section 37.10B, subdivision (a), which prohibits certain categories of acts or omissions made in “bad faith.” Had section 37.10B, subdivision (a) been intended to limit liability only to such acts or omissions made with intent to recover possession and increase rent, it could have been written to do so. “We may not rewrite the statute to conform to an assumed intention that does not appear in its language.” (Vasquez v. State of California, supra, 45 Cal.4th at p. 253.) We thus conclude that section 37.10B, subdivision (a) requires proof that landlords, and their agents, employees and contractors engaged in the defined categories of acts or omissions in “bad faith,” and reject a construction which requires tenants to prove in all instances that the acts or omissions were undertaken to cause the tenant to vacate in order to raise the rent.

Because Pennypacker sought to establish a violation of section 37.10B, subdivisions (a)(1), (2) or (10), none of which required proof that the Yuens acted with the intent that he vacate the unit, we conclude that the trial court erred in granting a directed verdict on Pennypacker’s section 37.10B claim.

4. Adjudication of UCL Claim

Pennypacker does not challenge the merits of the trial court’s determination on his UCL claim denying full restitution on all rents paid. Instead, he argues that the trial court denied him a fair trial on the claim by refusing to permit additional witness testimony and evidence.

As an initial matter, the Yuens respond that (1) the UCL claim was improper as a matter of law because it was a duplicate of Pennypacker’s habitability claim, which does not involve an “unlawful” practice under the UCL; and (2) Pennypacker had already received an adequate legal remedy from the jury’s award. We disagree. The operative complaint makes clear that the UCL claim was not based on habitability of the unit, but instead, on the allegation that the Yuens “fraudulently represented that the apartment rented by [Pennypacker] was legal when in fact the apartment was not a legal apartment.” Nor had Pennypacker already received an “adequate legal remedy” in the jury trial. The UCL makes clear that its remedies are “cumulative to each other and to the remedies or penalties available under all other laws of this state.” (Bus. & Prof. Code, § 17205.) While the jury awarded Pennypacker $8,000 in rent overpayment, there was still bandwidth for an award of restitution on his UCL claim as Pennypacker had paid $15,900 in total rent.

Returning to Pennypacker’s argument, however, we are not persuaded that the adjudication of his UCL claim suffered from “structural error” requiring automatic reversal. An error that “ ‘erroneously adds to or subtracts from the record’ ” is subject to harmless error analysis because it can be “ ‘ “quantitatively assessed in the context of other evidence presented . . . .” ’ ” (People v. Anzalone (2013) 56 Cal.4th 545, 554.) “ ‘In contrast, structural errors not susceptible to harmless error analysis are those that go to the very construction of the trial mechanism—a biased judge, total absence of counsel, the failure of a jury to reach any verdict on an essential element.’ ” (Ibid.) The purported evidentiary error that Pennypacker claims here falls under the first category.

In any event, we see no error in the trial court’s evidentiary procedure for the UCL claim. It permitted Pennypacker to provide trial transcripts and “any additional evidence he wishes the court to consider.” Indeed, Pennypacker submitted the building application and certificate of occupancy with his brief. The trial court also permitted Pennypacker to make an offer of proof regarding additional testimony from Amy that it previously deemed irrelevant and unnecessary. After receiving his offer of proof, the trial court concluded that the proposed additional testimony would not “add anything more to what this court heard and what is in the record from trial and from this briefing.”

Even assuming the trial court erred in excluding the additional evidence, any such error was harmless. The trial court rejected Pennypacker’s UCL claim on causation because there was no evidence that the Yuens made any fraudulent representation regarding the legality of the unit. We thus conclude there was no error that deprived Pennypacker of a fair trial on his UCL claim or requires reversal of the judgment on that claim.

5. Award of Costs

Code of Civil Procedure section 998, subdivision (c)(1) provides that if the plaintiff does not accept a written offer to compromise and then fails to obtain a more favorable judgment, the plaintiff cannot recover his postoffer costs and must pay the defendant’s costs incurred after the offer. (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019.) Pennypacker argues that the trial court erred in awarding the Yuens $51,507.04 in costs based on their section 998 offer because the terms contained in the attached release rendered the offer invalid.

We do not reach this issue, and therefore do not decide whether the Code of Civil Procedure section 998 offer was valid. Having reversed the judgment as to the section 37.10B claim, we must also reverse the award of $51,507.04 in costs to the Yuens. “ ‘An order awarding costs falls with a reversal of the judgment on which it is based.’ ” (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.) This is true even where, as here, the judgment is reversed as to fewer than all causes of action. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018,1021 [reversing order on costs where judgment reversed as to only one of three causes of action].)

We affirm the cost order, however, to the extent it awarded $9,495.72 in attorney fees to the Yuens as the prevailing party on Pennypacker’s dismissed claim under section 37.9. That award was not challenged on appeal and is not disturbed by our reversal of the judgment as to the section 37.10B claim.

DISPOSITION

The July 1, 2019 judgment entered on the trial court’s directed verdict is reversed as to Pennypacker’s section 37.10B claim[10] and the award of $51,507.04 in costs to the Yuens. The judgment is otherwise affirmed. We remand for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.

_________________________

Mayfield, J.*

We concur:

_________________________

Richman, Acting P.J.

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Miller, J.

Pennypacker v. Yuen et al. (A157680, A157985)

*Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Further undesignated code references are to the San Francisco Administrative Code. The applicable provisions of the Administrative Code are referred to as the San Francisco Residential Rent Stabilization and Arbitration Ordinance (Rent Ordinance).

[2] We sometimes refer to the Yuens by their first names for clarity and intend no disrespect.

[3] The trial court awarded $9,495 in attorney fees to the Yuens as the prevailing party on Pennypacker’s claim for violation of section 37.9, which he dismissed on the first day of trial. Pennypacker does not challenge this award on appeal.

[4] A certificate of final completion and occupancy is issued by the San Francisco Department of Building Inspection for changes to building use, construction of new buildings or new additions, and construction of new habitable space in existing buildings. (S.F. Build. Code, § 109A.)

[5] The Yuens made a second Code of Civil Procedure section 998 offer in January 2018, which the trial court subsequently found to be invalid and is not at issue here.

[6] The quotation is taken from the videotaped deposition excerpt played at trial. The record does not contain the full Pennypacker deposition transcript, but only certain excerpts submitted with the Yuens’ various trial filings.

[7] The jury was not asked to determine whether Pennypacker incurred any economic losses related to his fall. The trial court granted the Yuens’ in limine motion to exclude evidence of Pennypacker’s medical billing records from the San Francisco Veteran’s Administration Hospital because the records were produced after the discovery cutoff. The trial court also indicated there was no evidence that Pennypacker was responsible for medical bills because he had veteran’s benefits.

[8] We need not address the Yuens’ argument in their responding brief regarding jury misconduct, as Pennypacker does not challenge the judgment on this basis.

[9] During oral argument on appeal, counsel for Pennypacker presented an argument not explicit in his briefing: that the cause of action for fraud included a claim for fraudulent concealment, which was similarly prejudiced by these evidentiary rulings. As a preliminary matter, Pennypacker offers no argument or authority that a singular reference in the operative complaint to his alleged reliance on an “omission” is sufficient to constitute a claim for fraudulent concealment. In any event, we are not persuaded that Pennypacker would have achieved a more favorable result on such a claim, as there was no evidence that the Yuens “ ‘ “intentionally concealed or suppressed” ’ ” the permit status of the unit “ ‘ “with the intent to defraud” ’ ” Pennypacker. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

[10] Our decision affirms the trial court’s ruling excluding evidence of the building permit and the certificate of occupancy for the rental unit in connection with Pennypacker’s causes of action for negligence and fraud. It should not be read as an indication of whether such evidence would be admissible in a trial of Pennypacker’s section 37.10B claim on remand.