Filed 10/17/17 Warner v. Carson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JERRY WARNER et al., Plaintiffs and Respondents, v. FLETCHER CARSON, Defendant and Appellant.

H043413 (Monterey County Super. Ct. No. M133424)

Defendant Fletcher Carson appeals from a judgment after a jury trial in a residential unlawful detainer action. His landlord sued him for unlawful detainer after he failed to pay $28,000 in rent, and Carson defended by asserting that the house was uninhabitable and the eviction was in retaliation for complaints he made about the condition of the premises. The jury rejected those defenses and found in favor of the landlord. Carson contends the judgment should be reversed because the special verdict form was defective and there was insufficient evidence to support the verdict. For the reasons explained, we will affirm.

I. Background

Carson leased a house in Pebble Beach for a one-year term beginning in April 2015. The monthly rent owed under the lease was $8,000. But Carson paid only part of the rent in August, and then paid none of the rent for September, October, and November. On November 9, 2015, the landlord served him a 3-Day Notice to Pay Rent or Quit, stating the total amount of rent due was $28,000.

After the 3-day period expired and Carson had neither vacated the property nor paid the rent owed, the landlord filed an unlawful detainer lawsuit.[1] At trial, Carson stipulated that he had not paid the rent. But he asserted two affirmative defenses: breach of the implied warranty of habitability, and retaliatory eviction.

In support of those defenses, Carson called as a witness a contractor who testified he had been hired by the property manager to renovate the house, but some of the work was left unfinished. A landscaper testified that several exterior lights did not work, some door locks were missing, and he once found a rat on the property. Carson also testified that he had asked the landlord to make numerous repairs which were never made.

The jury returned a verdict finding in favor of the landlord on the cause of action for unlawful detainer, and against Carson on his affirmative defenses. The jury also awarded the landlord $20,000 in damages for the reasonable rental value of the premises during the period of unpaid rent.

II. discussion

A. The Special Verdict Form

Carson contends that the special verdict form for his affirmative defense of retaliatory eviction was defective because one of the questions posed to the jury was ambiguous. He argues that the jury misunderstood the question, and the finding that he did not establish the elements of the defense resulted from that misunderstanding.

1. The Verdict Form Issue Was Not Forfeited

The landlord asserts Carson forfeited the issue of ambiguity in the verdict form because he failed to object to the verdict form before the jury was discharged. As a general rule, “[f]ailure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected.” (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521.) That requirement allows the issue of an ambiguous verdict to be easily resolved by asking the jury to clarify its findings. (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456–457.) Even so, an argument that the verdict was ambiguous may be made for the first time on appeal if it does not appear that the failure to object was based on a desire to “reap a ‘technical advantage’ ” or engage in a “ ‘litigious strategy.’ ” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 269, citing Woodcock v. Fontana Scaffolding & Equip. Co., supra, 69 Cal.2d at 456, fn. 2.)

We find no indication in the record that Carson (who represented himself at trial) had a strategic purpose for not objecting to the verdict or requesting clarification before the jury was discharged. Carson asserts he did not see the proposed verdict form before it was provided to the jury. Consistent with that assertion, the record reflects that the special verdict form was drafted by the trial judge and was still being prepared even after the jury began deliberating. And the jury quickly returned its verdict, in just over an hour. Under the circumstances, Carson likely did not immediately point out the ambiguity he now perceives in the verdict form simply because he had not yet formulated the argument––not because he wanted to withhold the argument to gain an advantage. We will therefore address the contention on its merits.

2. The Verdict is Not Ambiguous

The correctness of a special verdict is a question of law that we review de novo. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.) “If the jury has been discharged and the verdict is ‘hopelessly ambiguous,’ the judgment must be reversed.” (Ibid.) But if the verdict is not hopelessly ambiguous, we interpret it by reading the language on the verdict form in conjunction with the pleadings, evidence, and instructions. (Ibid.)

Carson’s affirmative defense of retaliatory eviction is codified in Civil Code section 1942.5, subdivision (a), which provides: “If the lessor retaliates against the lessee because of the exercise by the lessee of his or her rights under this chapter …, and if the lessee of a dwelling is not in default as to the payment of his or her rent, the lessor may not recover possession of a dwelling in any action or proceeding… .” Retaliatory eviction occurs when a landlord terminates a residential tenancy with the motive of punishing the tenant’s exercise of the right to demand habitable premises. (Four Seas Inv. Corp. v. International Hotel Tenants’ Assn. (1978) 81 Cal.App.3d 604, 610.)

The verdict form crafted by the trial court for that affirmative defense consists of two questions: “1. Was Fletcher Carson in default of rent at the time the complaints were made? [¶]…[¶] 2. Did [the landlord] file this lawsuit in retaliation because Fletcher Carson complained about the conditions of the property to the landlord?” The jury answered “yes” to the first question, and therefore (as instructed by the form) did not answer the second. The result was a finding against Carson on his affirmative defense, since a necessary element of retaliatory eviction is that the tenant not be in default of rent when exercising the specified rights. (Civ. Code, § 1942.5, subd. (a).)

Carson argues that the verdict is ambiguous because it is not clear whether the language used in the first question––“in default of rent at the time the complaints were made”––refers to complaints he made about the condition of the premises, or the complaint filed by the landlord to initiate the unlawful detainer lawsuit. (The distinction matters because while Carson concedes he was in default of rent at the time the lawsuit was filed, he claims he was not in default when he complained about the condition of the property.) He also states that he spoke with several jurors after the trial, who told him they understood question one to refer to the landlord’s unlawful detainer complaint, not the tenant’s complaints about habitability to the landlord.

We do not find the question asking whether Carson was “in default of rent at the time the complaints were made” to be hopelessly ambiguous. We therefore interpret the verdict by reading it in conjunction with the pleadings, evidence, and instructions. In doing so, we see no reason to believe the jury was misled by the verdict form. Even standing alone, the language “at the time the complaints were made” seems most naturally to refer to when concerns were voiced to someone, not when a pleading was filed in court. When considered in the context of the pleadings, evidence, and instructions, the meaning becomes all the more apparent. The basis for Carson’s retaliatory eviction defense was the complaints he made to the landlord about necessary repairs. He testified at length about occasions when he complained to the property management about issues with the property, and he introduced into evidence e-mails reflecting such complaints. The jury was instructed that to succeed on his defense of retaliatory eviction, Carson had to prove the lawsuit was filed because he “complained about the condition of the property” to the landlord. In the context of this case, the meaning of the verdict form question regarding “the time the complaints were made” is clear.

Carson’s assertion that several jurors expressed confusion about the verdict form after trial does not strengthen his argument. To begin with, statements about what jurors told him are inadmissible hearsay, a point he concedes. But even looking past the hearsay issue, evidence of jurors’ internal thought processes cannot be used to impeach a verdict. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1125–1126.) Juror declarations are inadmissible to the extent they describe the jurors’ understanding of the questions on a verdict form. (Id. at pp. 1124–1125.) Interpreting the verdict in context and with those proscriptions in mind, we find no ambiguity. We therefore reject Carson’s argument that the retaliatory eviction verdict form was defective.

B. Sufficiency of the Evidence

Carson contends that the evidence presented at trial was insufficient to support the verdict. To resolve a substantial evidence challenge, we must consider all the evidence and view it in the light most favorable to the prevailing party. (Estate of Young (2008) 160 Cal.App.4th 62, 76.) Because of that standard, an appellant challenging the sufficiency of the evidence must provide the reviewing court with a complete record of the testimony at trial. (Taylor v. Hawley (1935) 6 Cal.App.2d 576, 581 [“n the absence of a complete record of the testimony adduced at the trial, it will be presumed the omitted evidence amply supports the determination of the court.”].) Here, Carson has not provided us with a complete record of the trial proceedings. The single volume of the reporter’s transcript he has provided reflects only the evidence presented by the defense and the testimony of a rebuttal witness called by the plaintiff. Carson is therefore precluded from arguing that the evidence was insufficient to support the verdict, because he has not made it possible for us to review all the evidence.

Even if the incomplete record did not prevent a meaningful substantial evidence review, we would find that Carson forfeited the contention by failing to set forth a legal argument to support it. ([i]Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545 [failure to present intelligible legal argument on an issue forfeits that issue]; see also In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164 [the court will not act as counsel for appellant by furnishing a legal argument as to how the trial court erred].) Carson states that the evidence was insufficient to support the verdict, but has not articulated why that is so.

Putting aside procedural deficiencies, the contention would also fail on the merits. Even the limited record we have contains adequate evidence to support the verdict, because it reflects that the parties stipulated to the amount of rent owed and that Carson had not paid it. Those factual stipulations constitute sufficient evidence to support the jury’s findings on the cause of action for unlawful detainer based on non-payment of rent. We understand the thrust of Carson’s argument that the jury was not justified in rejecting his affirmative defense of retaliatory eviction where the evidence established the elements of that defense. But “[w]e are ‘not a second trier of fact.’ ” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.) “We do not review the evidence to see if there is substantial evidence to support the losing party’s version of events, but only to see if substantial evidence exists to support the verdict in favor of the prevailing party.” (Id. at p. 1245.) The evidence was sufficient to support the verdict in favor of the landlord on the unlawful detainer cause of action.

III. disposition

The judgment is affirmed. Plaintiff Wasatch Holding, LLC shall recover costs on appeal.

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