Rodriguez v. Faramarzipour

Filed 8/17/07 Rodriguez v. Faramarzipour CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

William J. Birney, Jr., Judge. Affirmed.

Carpenter & Zuckerman and John C. Carpenter for Plaintiff and Appellant.

Law Offices of Farah Faramarzi and Farah Faramarzi for Defendants and Respondents.

_______________

Plaintiff and appellant Brad Rodriguez, a minor, was injured when he fell in the kitchen of his family's apartment. Through a guardian ad litem, appellant sued Mansour Faramarzipour, whom he alleged to be the owner of the property, and Abe Maghen, the property manager, for negligence and premises liability,[1]claiming that his injuries resulted from respondents' negligence in failing to maintain the premises in a proper condition. At the close of trial testimony, the court granted Faramarzipour's motion for nonsuit and entered judgment in his favor. A jury subsequently found that respondent Maghen was not negligent and judgment was entered accordingly.

On this appeal, appellant argues that, on respondent Faramarzipour's motion for nonsuit, the court did not give adequate deference to appellant's evidence, improperly weighed evidence proffered by the defendant, and refused to allow appellant to reopen or amend his complaint. Appellant also contends that the trial court erred in declining to give the jury an instruction on negligence per se regarding the claim against Maghen. We find that no error occurred and affirm the trial court's judgments.

FACTUAL AND PROCEDURAL HISTORY

Appellant and his family moved into a one bedroom apartment in Huntington/Walnut Park after his parents signed a rental agreement dated July 18, 2001. Faramarzipour signed the rental agreement as the "lessor." Maghen (Faramarzipour's son-in-law) managed the property.

There was a history of tension between appellant and Maghen. Laura Hernandez, appellant's mother, testified that the apartment was in "bad condition" from the time the family moved in and that, although she madeverbal complaints to Maghen on several occasions, he failed to fix the problems in particular, holes in the linoleum of the kitchen floor. Disputing these claims, Maghen testified that he had replaced the kitchen floor before the family moved in, that he had not had significant complaints from Hernandez, and that he had made repairs in the unit.

On November 18, 2002, Maghen's assistant served Hernandez with a notice to quit the premises within 30 days due to overcrowding in the apartment.[2] According to Maghen, Hernandez responded that she was "going to get" them. Appellant's family did not vacate the unit and, at the end of December 2002, Maghen filed a lawsuit to evict them from the premises.[3] At some point, although she could not recall exactly when, Hernandez complained to the County of Los Angeles Department of Health about the conditions in the apartment. Maghen believed that she complained to the Department of Health as a way to retaliate against the notice to quit.[4]

On January 8, 2003, the Department of Health inspected the premises (including three additional apartments in the complex) with Maghen's cooperation. After inspecting the appellant's apartment, the environmental health specialist issued an official notice of violation, which listed ten specific repairs to be made to the unit, including an instruction to "repair or replace torn floor covering in kitchen." The notice did not cite any specific violation of the County Code and set a deadline of January 29, 2003 for the repairs. After that, a fee would be assessed.

Maghen testified as to his actions after receiving the citation. Initially, Hernandez refused to grant Maghen access to the unit. However, on January 17 and 18, 2003, Maghen returned to the unit with a right to enter letter obtained from the Department of Health and made repairs. Replacing the linoleum floor in the kitchen would have required removing all of the furniture and appliances from the room. Hernandez told Maghen that he could not move the furniture out of the apartment. Maghen testified that he would have replaced the floor that day if Hernandez had allowed him to move the furniture and appliances. Instead, a handyman repaired the "hole" or "tear" in the linoleum until the floor could be replaced entirely when the appellant's family moved out. Maghen notified the Department of Health of this plan and testified that the health inspector "verbally signed off" on the repairs when she returned to inspect the property later that month. No written confirmation was issued and Maghen testified that the health inspector told him that the Health Department would not issue a written notice. The health inspector later testified that she had no reason to believe that the repairs were not done in a proper and timely fashion.

Appellant presented evidence that, on February 5, 2003, he fell while playing with another child in the kitchen of his family's apartment. Appellant testified that he tripped on a "rip" in the kitchen floor. Two other witnesses testified that appellant tripped on a "hole" or "rip" in the kitchen floor. Appellant broke his arm and sustained a cut on his head requiring stitches. His injuries required surgery and an overnight stay in the hospital.

At the conclusion of trial testimony, Faramarzipour moved for directed verdict (referred to by the parties as a motion for nonsuit) on the theory that hedid not own the property where appellant was injured; rather, the Singer Family Trust (hereinafter the "trust"), of which he was a co-trustee, owned the property. To support this contention, he requested the court take judicial notice of a trust deed, recorded in November 2002, indicating that Maghen and his wife had conveyed the property to "Mansour Faramarzipour and Mahin Faramarzipour Trustee of the Singer Family Trust" in October 2002.[5]During his testimony at trial, Maghen stated at first that he did not know if Faramarzipour owned the property and later testified that, as far as he knew, Faramarzipour did not own the property. However, on cross-examination, appellant's counsel countered Maghen's assertions by reading into the record his prior deposition testimony, in which he said that Faramarzipour had owned the property on the day of the accident.

In response to the court's concerns, Faramarzipour's counsel represented that appellant had received a copy of the trust deed during discovery and, despite having knowledge that the trust owned the property, proceeded with the lawsuit against him. Counsel added that he did not represent the trust and that allowing appellant to amend the complaint to name the trust as a defendant at the end of trial would result in prejudice.

Faramarzipour also argued that appellant had failed to offer any evidence that Faramarzipour, acting in his capacity as trustee, was personally liable for appellant's injuries.

Appellant argued that nonsuit was inappropriate because some evidence existed to suggest that Faramarzipour did own the property. He relied on Maghen's deposition testimony that Faramarzipour owned the property and claimed that his testimony at trial had not contradicted his prior statements. Appellant argued that, when considering a motion for nonsuit, the court must make "all reasonable inferences" in favor of the plaintiff, may only consider evidence offered by the plaintiff and must "disregard[] all contrary evidence." In addition, appellant's counsel questioned the reliability of the trust deed and stated, "We believe that Mr. Faramarzipour is the owner of this property. We are relying on the sworn testimony of Mr. Maghen to that effect, and that is sufficient to bring this question to the court to decide."

The court ruled that there was no "evidence of sufficient substantiality to support a verdict in favor of the plaintiff against Mansour Faramarzipour" and granted the judgment on nonsuit. Appellant then asked to reopen and amend the complaint to include the trust as a defendant, arguing that Faramarzipour was essentially an alter ego of the trust. The court denied this request.

The case against Maghen proceeded. Appellant asked the court to instruct the jury with CACI No. 418 regarding a presumption of negligence per se, arguing that the citation from the Department of Health demonstrated that the apartment's disrepair violated Los Angeles County Municipal Code, Health and Safety Code section 11.20.160 and that its unsafe condition proximately caused the appellant's injury. The court declined to give this instruction, reasoning that there was "no specific violation attached to the very specific item of disrepair or dangerous condition, namely, the alleged hole in the linoleum. It was not specifically cited in any health report." The court explained, "it would be inappropriate and an overemphasis or a misuse of an ordinance to give this instruction in this case." However, the jury received instructions regarding negligence in general and the landlord's duty to use reasonable care to correct an unsafe condition. The jury subsequently found that Maghen was not negligent.

DISCUSSION

1.      The Court's Refusal to Instruct the Jury on Negligence Per Se

Appellant contends that the trial court prejudicially erred when it declined to instruct the jury on a presumption of negligence per se. Specifically, appellant argues that the court failed to consider the legal elements of negligence per se and, instead, focused on factual elements reserved exclusively for the jury. We disagree and find that the court properly refused to give a jury instruction on negligence per se and that, in any event, a failure to instruct could not have prejudiced appellant.

In reviewing both the trial court's refusal to provide a requested jury instruction and the question of whether such a refusal resulted in prejudice, "we do not view the evidence in the light most favorable to the successful [party] and draw all inferences in favor of the judgment. Rather, we must assume that the jury, had it been given proper instructions, might have drawn different inferences more favorable to the losing [party] and rendered a verdict in [that party's] favor on those issues as to which it was misdirected. [Citations.]" (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655, quoting, Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156, brackets included in citation.)

"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him [or her that] is supported by substantial evidence. [Citations.]" (Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1242.) "A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable [because] the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented. [Citations.]" (Ibid.)

Appellant asked the court to administer CACI No. 418, a jury instruction articulating a presumption of negligence per se, which provided the following:

"Section 11.20.160 of the Los Angeles County Health and Safety Code states:

'Every dwelling, house court, hotel, motel and apartment house shall be maintained in good repair. It is unlawful for any person to occupy or to cause or permit another person to occupy any dwelling, house court, hotel, motel and apartment house which does not comply with this section.'

If you decide:

1.      That Mansour Faramarzipour and Abe Maghen violated this law, and

2.      That the violation was a substantial factor in bringing about the harm, then you must find that Mansour Faramarzipour and Abe Maghen were negligent.

If you find that Mansour Faramarzipour and Abe Maghen did not violate this law or that the violation was not a substantial factor in bringing about the harm or if you find the violation was excused, then you must still decide whether Mansour Faramarzipour and Abe Maghen were negligent in light of the other instructions."

CACI No. 418 is derived from Evidence Code section 669, subdivision (a) which states that, "[t]he failure of a person to exercise due care is presumed if: [] (1) [h]e violated a statute, ordinance, or regulation of a public entity; [] (2) [t]he violation proximately caused death or injury to person or property; [] (3) [t]he death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [] (4) [t]he person suffering the death or injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted." (Evid. Code, 669, subd. (a).)

Because the third and fourth elements entail statutory interpretation, a court must establish as a matter of law that the requirements are met before administering a jury instruction on negligence per se. (Norman v. Life Care Centers of America, Inc., supra,107 Cal.App.4th at pp. 1246-1247 (considering BAJI No. 3.45).) Generally, the first two elements, which mirror provisions (1) and (2) in appellant's proffered jury instruction, are questions of fact for the jury to decide. (Id. at p. 1247.) However, on appeal, "we must determine whether there is substantial evidence to support factual findings" that the defendant "violated a statute, ordinance, or regulation of a public entity" and the "violation proximately caused death or injury to person or property." (Ibid.) "If there is insufficient evidence to support those possible findings, then an instruction on negligence per se is not warranted." (Ibid., see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.)

In this case, the trial court rightly found that there was insufficient evidence to support a finding of a specific violation of a specific statute. First, both the "official notice of violation" issued by the Department of Health and the testimony presented at trial failed to name a statute, ordinance or regulation that had been violated. Second, the evidence did not indicate whether "the torn floor covering in the kitchen" alone violated the requirement of "good repair" or whether the cumulative conditions in the apartment represented a violation. Defining "good repair," as it appears in Health and Safety Code section 11.20.160, necessitates statutory interpretation, a duty reserved for the court. Even if the jury were to make a factual finding that the floor was ripped at the time of appellant's injury, the legal question of whether this condition violated the requirement of "good repair" was not for the jury to decide. There simply was not enough evidence to determine that the alleged disrepair of the floor constituted a violation of the Health and Safety Code section 11.20.160 cited by appellant.

Furthermore, even if the refusal to provide the instruction in this case had been in error, "[i]n a civil case an instructional error is prejudicial reversible error only if it is reasonably probable the appellant would have received a more favorable result in the absence of the error. [Citations.]" (Norman v. Life Care Centers of America, Inc., supra, 107 Cal.App.4th at pp. 1248-1249.) A determination of prejudice rests heavily on "the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.) When determining whether instructional error resulted in prejudice, "the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Id. at pp. 580-581.)

No prejudice resulted from denying the negligence per se instruction because appellant's ability to put his full case for general negligence before the jury was not impaired and he was not likely to receive a more favorable result. Under a theory of negligence per se, appellant would have argued that the rip in the floor violated Health and Safety Code section 11.20.160, that Maghen failed to cure the violation, and that the violation contributed to appellant's injury. Under a theory of general negligence, appellant was free to argue, and a jury could have found, that there was a rip in the floor, that Maghen failed to repair the rip, and that the condition of disrepair caused appellant's injury. Because appellant contends that the rip in the floor is the violation, the argument under either theory is virtually identical. However, the jury found that Maghen was not negligent and we do not believe that a jury would have found otherwise under a theory of negligence per se.

As such, we find that the court did not err in declining to instruct the jury on negligence per se and that, at any rate, no prejudice could have resulted given that appellant did not prevail on his negligence claim and was unlikely to receive a more favorable result had the additional instruction been given.

2.      Faramarzipour's Judgment on Nonsuit

Appellant contends that the trial court committed reversible error when it granted Faramarzipour's motion,[6]because the court did not give adequate deference to appellant's evidence, improperly weighed evidence proffered by the defendant, and refused to allow appellant to reopen or amend his complaint to name the Singer Family Trust as a defendant.

It is true that, when reviewing a judgment for nonsuit, we must accept as true the evidence most favorable to the plaintiff, give the plaintiff's evidence all the value to which it is legally entitled, indulge every legitimate inference in favor of the plaintiff, and disregard conflicting evidence. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.) However, appellant bears the burden not only to show that the court erred in granting nonsuit, but also to demonstrate that the error resulted in prejudice. (Colbaugh v. Hartline (1994) 29 Cal.App.4th 1516, 1525-1526.) In Colbaugh, the Court affirmed the judgment of nonsuit, finding that, although the trial court erred in granting defendants' motion for nonsuit, the error was harmless because the plaintiffs lacked standing to sue. (Id. at p. 1525.)

In this case, we affirm the trial court's judgment for nonsuit because appellant cannot prevail on his negligence claim against Faramarzipour under either of his asserted theories. First, appellant argues that Faramarzipour, as the property owner, is liable for the negligent acts of Abe Maghen, the property manager whom he employed. However, a jury found that Maghen was not negligent. Accordingly, the owner, whether it is Faramarzipour or the Singer Family Trust, cannot be liable for Maghen's acts. Second, appellant argues that Faramarzipour, in his capacity as co-trustee of the Singer Family Trust, is personally liable for appellant's injuries. A trustee is personally liable for torts committed in the course of administration of a trust only if the trustee intentionally or negligently acted or failed to act in a manner that establishes personal fault. (Haskett v. Villas at DesertFalls (2001) 90 Cal.App.4th 864, 877-878, discussing Prob. Code, 18002.) Here, appellant offered no evidence during trial to support a finding that Faramarzipour intentionally or negligently acted or failed to act.

We also find meritless two additional arguments advanced by appellant. First, appellant claims that defense counsel "stipulated to the fact" that Faramarzipour owned the property when, during arguments regarding the nonsuit motion, he said, "the only evidence that plaintiff has put forward regarding Mansour Faramarzipour who I agree remains a mystery is the fact that Mr. Maghen said he is an owner. Okay. Fine. Let's stipulate to that fact. It happens to be wrong, and he knew it was wrong, but that's okay. Forget that." It is clear that defense counsel stipulated to the fact that Maghen made the statement, not that the statement was a fact. Second, appellant argues that the trust deed indicates that Faramarzipour owned the property in an individual capacity because it refers to a "trustee" instead of "trustees." As stated above, regardless of whether Faramarzipour or the trust owned the property, appellant cannot establish liability under either theory.

In sum, because appellant has failed to demonstrate prejudice, we affirm the judgment for nonsuit entered in favor of Faramarzipour.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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Analysis and review provided by Santee Property line Lawyers.

[1] Initially, appellant also sued Farahnaz Maghen, Abe Maghen's wife. However, she moved for nonsuit at the outset of trial and appellant agreed to dismiss her from the complaint.

[2] Hernandez admitted in her testimony that, at one point, as many as nine people lived in the apartment, despite the fact that the rental agreement limited the number of occupants to two adults and two children.

[3] An eviction judgment was entered against appellant's family on January 30, 2003 and they were removed from the premises on February 11, 2003.

[4] Maghen also pled no contest to a battery on appellant stemming from a January 11, 2003 incident.

[5] The trust deed was marked for identification during defense counsel's examination of Maghen.

[6] The motion was for directed verdict, but, perhaps because the judgment was for nonsuit, the parties brief the issue under the rubric of nonsuit. The difference is unimportant. The motions are analytically the same and are governed by the same rules. (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.)