McKissock v. Kashfian CA2/3 ( 2021 )

Filed 7/7/21 McKissock v. Kashfian CA2/3
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8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JOHN MCKISSOCK, B303943
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. YC070587
v.
BARRY KASHFIAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ramona G. See, Judge. Affirmed.
Law Offices of Kenneth Gaugh and Kenneth Gaugh for
Defendant and Appellant.
Spierer Woodward Corbalis & Goldberg, Steven F. Sprier,
Stephen B. Goldberg and Michelle R. DeMason for Plaintiff and
Respondent.
_______________________________________
INTRODUCTION
This is the second appeal in a commercial property dispute
involving plaintiff John McKissock and defendant Barry
Kashfian. In the first appeal, we reversed the trial court’s order
issuing a preliminary injunction in McKissock’s favor. (McKissock
v. Kashfian (Apr. 25, 2018, B275929) [nonpub. opn.] (McKissock
I).) Now, Kashfian appeals from a judgment entered after a jury
found him liable for nuisance, breach of contract, and breach of
the conditions, covenants, and restrictions (CC&Rs) governing
the complex where McKissock’s former office suites and
Kashfian’s current office are located and awarded McKissock
$1.725 million in damages. Kashfian contends the court
prejudicially erred by, among other things, submitting the issue
of liability to the jury. We reject Kashfian’s arguments and affirm
the judgment.
FACTUAL BACKGROUND
1. The Property
McKissock, a plastic surgeon, leases an office in Lomita.
Around 2014, he began looking to purchase his own office. He
found adjacent suites for sale on the second floor of the Peninsula
Medical Plaza (Medical Plaza) in Torrance. Kashfian, a dentist
and prosthodontist, owns an office directly below those suites.
The Medical Plaza wasn’t designed for medical offices, but
it was later converted to that use. Consequently, many of the
building’s vacant units, including the ones McKissock found,
lacked proper drainage, sewage, and other utilities necessary to
operate his practice. Other doctors who purchased offices in the
Medical Plaza before McKissock, including Kashfian, had
2
renovated their units to install the utilities necessary for their
practices.
Before purchasing the suites, McKissock obtained and
reviewed a copy of the Medical Plaza’s CC&Rs, and he had a
contractor review the city’s original plans for the building.1
McKissock also had the contractor and an architect inspect the
suites he was considering purchasing. During his walkthrough,
McKissock’s contractor found what appeared to be sewer line
connections inside the suites. The connections sat directly above
Kashfian’s office. The city’s plans also showed a four-inch vertical
sewer pipe that originated in Kashfian’s office. According to the
plans, the pipe served Kashfian’s office, the second-floor suites
McKissock was considering purchasing, and suites on the third
floor located directly above those suites.
McKissock met with several people who owned offices in
the Medical Plaza, including Kashfian, to discuss his plans to
purchase the second-floor suites and retrofit them to
accommodate his plastic surgery practice. When McKissock spoke
to Kashfian about potentially needing to access Kashfian’s office
to install or replace utility lines necessary for McKissock’s plastic
surgery practice, Kashfian told McKissock that it would be “fine”
so long as McKissock limited the construction work inside
1 The court admitted numerous exhibits into evidence at trial,
including the city’s plans, photographs of various parts of the Medical
Plaza, and several emails related to the underlying property dispute.
Aside from the CC&Rs, Kashfian has not included any of the exhibits
as part of the record on appeal.
3
Kashfian’s office to nights and weekends and the finished product
didn’t exceed the common area2 surrounding Kashfian’s office.
In June 2014, McKissock purchased the suites. After
McKissock bought the property, he and his contractor discovered
that the four-inch sewer pipe depicted in the city’s plans “wasn’t
there anymore.” Although the pipe originally ran up through and
connected to a restroom in Kashfian’s office before connecting to
McKissock’s suites, Kashfian had since converted that restroom
into a consulting room and apparently removed the pipe. Indeed,
there was a patch on the Medical Plaza’s roof in the location
where the pipe should have terminated, indicating someone had
removed the pipe after the Medical Plaza was built. The
contractor opined that had the four-inch sewer pipe not been
removed, it would have made it “considerably easier” for
McKissock to retrofit his suites to accommodate his practice.
The contractor also found a plumbing line, a water line,
and a drain for a water fixture, the outlets for all of which had
been “stubbed out,” inside McKissock’s suites. Those connections
were located directly above Kashfian’s office, and they were
served by a main sewer line located below Kashfian’s office.
According to the contractor, the main sewer line served
McKissock’s suites.
McKissock also discovered that Kashfian filled nearly all of
the common area between the bottom side of McKissock’s floor
and the top side of Kashfian’s ceiling with wires, pipes, and duct
work, leaving little to no room for other owners to run utilities
through that space. Kashfian’s overcrowding of the common area
2The Medical Plaza’s common areas are defined by the building’s
CC&Rs, which we discuss in detail below.
4
made it difficult for McKissock to locate his other utility
connections. Kashfian also installed door frames that encroached
into the common area above his office and, in one area of his
office, he had completely eliminated the common area, taking the
dry wall of his ceiling up to the underside of the joists of
McKissock’s floor.
After purchasing the suites, McKissock approached
Kashfian again to inquire about obtaining access to Kashfian’s
office to connect McKissock’s suites to the underground sewer
line. Kashfian initially cooperated, allowing McKissock’s
contractor to inspect the interior of his office as well as the
utilities and plumbing running through the surrounding common
area. Kashfian also provided the contractor with a set of the
office’s “proposed” plumbing plans. According to McKissock, once
the contractor discovered that the main sewer line ran
underneath Kashfian’s office, Kashfian stopped cooperating.
McKissock and his contractor determined it wasn’t feasible
to complete all the construction necessary to retrofit McKissock’s
suites to accommodate his medical practice without access to
Kashfian’s office. Consequently, McKissock sold his suites in the
Medical Plaza in 2018. Between the time McKissock purchased
and sold the suites, he continued paying rent for his office in
Lomita.
2. The Medical Plaza’s CC&Rs
Each suite in the Medical Plaza is governed by CC&Rs,
which were drafted and recorded in December 2007 by LA-
Peninsula Medical, LLC, the original common owner of the
Medical Plaza. The CC&Rs set forth the respective rights and
responsibilities of the original common owner, the Medical
5
Plaza’s owners’ association, and the individual owners of suites in
the Medical Plaza.
Under the CC&Rs, a suite consists of “the space bounded
by and contained within the interior finished surfaces of the
perimeter walls, ceilings or roofs … of each unit.” The upper
boundary of a suite located on the ground or second floor is the
“interior underside of the ceiling” of such suite. The space
between exterior walls dividing separately owned suites qualifies
as a common area under the CC&Rs.
Section 2.2.b of the CC&Rs provide that “[e]ach Owner
shall have, as appurtenant to its [suite], an undivided common
ownership in the Common Area[,] … [and] [e]ach [suite] shall
have appurtenant to it nonexclusive easements for ingress, egress
and support through the Common Area.” The common areas,
which are “owned in common by each of the [o]wners,” include
“land, parking, driveway areas; trash enclosures; conduits, pipes,
plumbing, wires, and other utility installations (except the
outlets thereof when located within any [suite]) … required to
provide power, light, telephone, gas, water, sewage, drainage,
and elevator service.” The common areas also include “[t]he
plumbing, sewer, electric wiring, telephone cables, and other
utilities and services located in the floor areas of a [suite] or
inside of the perimeter walls of such [suite],” except “any wires,
pipes, conduits, cables, and the like … which connect facilities
servicing [a suite],” which are “owned, maintained, and installed
by the Owner as Restricted Common Area from the point of
connection with the common Lines to the point where the Lines
terminate in the Owner’s [suite].”
Section 2.2.b also places limitations on each owner’s use of
the common areas. Specifically, each owner may use the common
6
areas for “the purposes for which they are intended without
hindering the exercise of or encroaching upon the rights of any
other Owners.”
Section 4.6.a provides each owner of a suite in the Medical
Plaza easements over other owners’ suites to make use of utility
lines and connections installed within the Medical Plaza that
serve that particular owner’s suite. Specifically, section 4.6.a of
the CC&Rs provides: “Wherever sanitary sewer line connections,
water line connections, electricity, gas, telephone, communication
and cable television lines or drainage facilities are installed
within the [Medical Plaza], the Owners of any [suites] served by
said connections, lines or facilities shall have the right to …
easements over each Owner’s [suite] to the full extent necessary
for the full use and enjoyment of such portion of such connections
which service such [suite] … .” That section also provides that an
owner of a suite in the Medical Plaza shall also have the right “to
enter upon any [suites] owned by any other Owner, or to have
utility companies enter upon such areas, in or upon which said
connections, lines, or facilities, or any portion thereof are
situated, to repair, replace and generally maintain said
connections as and when the same may be necessary … ,
provided that such Owner or utility company shall promptly
repair any damage caused by such entry as promptly as possible
after completion of work thereon.”
Section 13.2 addresses enforcement of the CC&Rs. It
provides any owner of property in the Medical Plaza “the right to
enforce by proceedings at law or in equity all covenants,
conditions, restrictions, easements, reservations, liens and
charges … imposed by [the CC&Rs],” including the right to
“prosecute a proceeding at law or in equity against the person or
7
persons who have violated” the CC&Rs. Section 13.2.c provides
that any act, action or omission resulting in a violation of the
CC&Rs constitutes “a nuisance, and every remedy allowed by law
or equity against an Owner … shall be applicable against every
such result.”
PROCEDURAL BACKGROUND
1. The Lawsuit and Injunction
McKissock sued Kashfian and several other defendants
who owned suites in the Medical Plaza,3 claiming they violated
the Medical Plaza’s CC&Rs by denying McKissock access to their
suites to perform the construction work necessary to make his
suites usable for his medical practice. McKissock asserted claims
for (1) breach of the CC&Rs, (2) “TEMPORARY
RESTRAINING ORDER AND PRELIMINARY AND
PERMANENT INJUNCTION AND DAMAGES”; (3)
declaratory relief; (4) nuisance; and (5) breach of oral contract.4
The claims for breach of CC&Rs and nuisance arise out of
allegations that Kashfian obstructed McKissock’s access to, and
use of, the Medical Plaza’s common areas to replace necessary
utility connections for McKissock’s suites. As for the claim for
breach of oral contract, the operative complaint alleges that
before McKissock purchased his suites, Kashfian made an oral
promise, which he later broke, to allow McKissock access to
3 Although it is unclear from the record when McKissock dismissed the
other defendants, Kashfian was the only remaining defendant by the
time of trial.
4 McKissock amended his complaint at trial to add the claim for breach
of oral contract.
8
Kashfian’s office to replace utility connections in the surrounding
common areas.
Before trial, McKissock filed an application for injunctive
relief, seeking an order enjoining Kashfian from obstructing
McKissock’s access to Kashfian’s office “for the purpose of
completing construction of [McKissock’s] own medical office.”
McKissock claimed the Medical Plaza’s CC&Rs provided him a
right to enter Kashfian’s office to install utility connections in the
surrounding common areas.
The court granted McKissock’s application and issued an
injunction. The court’s order required Kashfian to allow
McKissock and his contractors to enter Kashfian’s office to install
plumbing and other utility lines underneath Kashfian’s “Back
Work-Room,” “Lecture Room,” and other areas where the
necessary connections might be found. Kashfian had to provide
McKissock a key to Kashfian’s office and could not unreasonably
obstruct McKissock’s construction efforts that fell within the
scope of the order. Among other things, the order placed
limitations on when and how McKissock could conduct his
construction and set a six-month deadline for the construction
work. Kashfian appealed that order.
2. The First Appeal
In McKissock I, we reversed the order issuing an
injunction. In the first part of the opinion’s analysis, we held the
court’s order was improper because it operated as a permanent,
rather than a preliminary, injunction and was a final
determination of the merits of McKissock’s claims. More
specifically, the order resolved a “core issue” in the lawsuit—i.e.,
whether McKissock has the right to access Kashfian’s office to
install utility connections in the surrounding common area—and
9
it granted McKissock the ultimate relief he sought—i.e., an order
authorizing McKissock to enter Kashfian’s office to install those
utility connections.
In the second part of the opinion’s analysis, we explained
that even if the injunction issued by the court wasn’t permanent
in nature, McKissock had yet to prove he had a “ ‘clearly
established’ ” right to a mandatory injunction. Specifically, we
noted that “because McKissock did not introduce into evidence
the plan he intend[ed] to follow in carrying out the construction
work authorized by the preliminary injunction, there [was] no
evidence that McKissock’s suites are currently ‘served by’ any
existing utility connections” as required by section 4.6.a of the
Medical Plaza’s CC&Rs. We also noted that other provisions of
the CC&Rs that provided owners of suites in the Medical Plaza
easements through the complex’s common areas did not, by
themselves, provide McKissock a right to enter Kashfian’s office
for construction purposes.
3. The Trial
After we issued McKissock I, Kashfian filed a motion to
bifurcate the issues of liability and damages for purposes of trial.
Kashfian argued the court, and not a jury, should decide the
issue of liability. According to Kashfian, whether McKissock’s
suites were served by a particular utility connection, and whether
Kashfian violated the Medical Plaza’s CC&Rs by refusing to
allow McKissock access to Kashfian’s office to replace a utility
connection, were entirely issues of contract interpretation,
involving no factual issues for a jury to resolve. McKissock
opposed the motion, arguing it was premature to bifurcate the
issues of liability and damages because he planned to present
10
extrinsic evidence to show the CC&Rs are susceptible to more
than one reasonable interpretation.
The court granted Kashfian’s motion in part. Quoting
Equitable Life Assurance Society v. Berry (1989) 212 Cal.App.3d
832, the court ruled it would “conduct a hearing out of the
presence of the jury and permit the parties to introduce
conditionally or subject to a motion to strike all available
evidence on the issue of the meaning of the [CC&Rs]. If the
evidence has the effect of imparting to the [CC&Rs] a meaning of
which the instrument is not reasonably susceptible, the evidence
will be stricken. The jury [will be] involved only if the court
determines that 1) the working of the [CC&Rs] is reasonably
susceptible of the interpretation contended for by the proponent
of extrinsic evidence, 2) the extrinsic evidence is relevant to prove
the proposed meaning, and 3) the credibility of the proponent’s
parol evidence is disputed.”
On the first day of trial, Kashfian requested a bifurcated
hearing on the issue of liability before the parties presented
evidence to the jury. McKissock argued that the court “did not
bifurcate on liability and damages” but instead only granted an
evidentiary hearing on the meaning of the Medical Plaza’s
CC&Rs. McKissock no longer intended to present extrinsic
evidence on the meaning of the CC&Rs. McKissock didn’t dispute
that the CC&Rs were clear and governed the parties’ dispute,
and he intended to present evidence to the jury “that shows that
[Kashfian] breached them.”
Later that day, the court held what it called a “bifurcation
hearing.” The parties didn’t introduce any evidence addressing
the meaning of the Medical Plaza’s CC&Rs. During the parties’
arguments, Kashfian asked the court to decide the issue of
11
liability without a jury, insisting it was a purely legal issue
whether he breached the CC&Rs. The court took the matter
under submission and issued its ruling on the second day of trial.
The court noted that McKissock didn’t present any extrinsic
evidence addressing the meaning of the CC&Rs and ruled that
the parties couldn’t present that type of evidence at trial. The
court also found that the CC&Rs governed “the rights and
responsibilities between” owners of property in the Medical
Plaza.
Before the parties finished selecting a jury, Kashfian asked
whether the court would make a “decision as far as the
application of the CC&Rs.” The court responded, “[t]he CC&Rs
are straightforward. They govern, and the language to me is
clear. It governs what you can do. … [¶] Now, the jury will decide
whether the language that’s there includes what [McKissock]
want[s] to do or not. But we’re not going to have a bunch of
extrinsic evidence in, in that regard, because I’ve already made
my ruling.”
On the third day of trial, after the jury was sworn and the
parties started presenting evidence, Kashfian asked whether the
court intended to instruct the jurors “regarding interpretation of
the CC&Rs.” The court responded, “I don’t have any further
instructions. Do you have something in mind[?] … You’re
supposed to provide all the instructions. You gave me a set that
said what it says. If you need something further, you better draft
it up.” The court instructed the parties to file briefs if they
wanted to raise any other issues concerning how the CC&Rs
should be interpreted.
On the fourth day of trial, Kashfian filed a “trial brief on
the respective roles of court and jury in interpretation of CC&Rs.”
12
(Capitalization and bolding removed.) Again, Kashfian urged the
court to decide the issue of liability before submitting the issue of
damages to the jury. In Kashfian’s view, McKissock I “already
concluded that because [McKissock’s suites were] not served by a
connection in [Kashfian’s office], the CC&Rs did not provide
[McKissock] any easement over, or any right to enter, [Kashfian’s
office] to gain access to a connection.” Kashfian argued that
because McKissock did not produce any extrinsic evidence
revealing an ambiguity in the CC&Rs, McKissock I conclusively
established that McKissock could not prevail on any claim arising
out of Kashfian’s alleged violation of the CC&Rs. The court
deemed Kashfian’s brief a motion for nonsuit and told the parties
it would rule on that motion once they finished presenting
evidence.
After the parties rested, the court denied Kashfian’s brief
that it had deemed a motion for nonsuit. The court explained that
Kashfian had misjudged McKissock’s theory at trial. The court
noted that while Kashfian anticipated McKissock would present
extrinsic evidence to establish an ambiguity in the CC&Rs that
would make them susceptible to a different interpretation from
what we applied in McKissock I, McKissock instead presented
evidence from which a reasonable jury could find Kashfian
violated the CC&Rs.
Before closing arguments, McKissock filed an unopposed
motion to amend his complaint to add a claim for breach of oral
contract. McKissock attached to his motion a proposed third
amended complaint and proposed jury instructions addressing
breach of the CC&Rs and breach of the alleged oral contract.
One of the proposed instructions identified two theories
under which the jury could find Kashfian breached the CC&Rs.
13
Under the first theory, Kashfian refused to give McKissock access
to the common area surrounding Kashfian’s office “so that
McKissock could perform improvements to his suites.” Under the
second theory, Kashfian made “exclusive use of certain common
area in a manner that hindered the exercise of or encroached
upon McKissock’s rights to the common area.”
The court granted McKissock’s motion to amend his
complaint and later instructed the jury with McKissock’s
proposed instructions. Kashfian didn’t request any specific
instructions addressing how the CC&Rs should be interpreted.
Before submitting the case to the jury, the parties
stipulated that they were both bound by the Medical Plaza’s
CC&Rs. The parties also agreed to allow the jury to use a general
verdict form. In the verdict form that was provided to the jury,
McKissock’s causes of action for breach of the CC&Rs and breach
of oral contract were combined into a single claim. Thus, the
verdict form included only two claims: (1) “Breach of CC&Rs –
Breach of Contract”; and (2) “Nuisance.”
After the jury started deliberating, it submitted several
questions to the court. The jury asked for a copy of CC&Rs for
each juror. Kashfian didn’t object to providing copies of the
CC&Rs to the jury. The jury also requested a definition for the
term “appurtenant,” and it asked whether “terminating
communication [is] a violation of the CC&Rs.” The parties agreed
on a definition of “appurtenant,” which the court provided to the
jury. When the court asked the parties how it should respond to
the jury’s question about terminating communication, Kashfian’s
counsel responded, “Our position is the court needs to interpret
the CC&Rs, not the jury.” Kashfian didn’t object, however, when
14
the court told the jury that terminating communication can
constitute a violation of the CC&Rs.
The jury found in McKissock’s favor on both claims
included in the verdict form. The jury awarded McKissock
$1,200,000 in economic damages and $525,000 in non-economic
damages. The court entered judgment in McKissock’s favor.
Kashfian appeals.
DISCUSSION
Kashfian raises a litany of arguments, most of which
revolve around a single premise: the court erred by allowing the
jury to decide the issue of liability on McKissock’s claims. As we
explain, Kashfian’s arguments lack merit.
1. Kashfian hasn’t demonstrated any prejudicial error
affecting the jury’s verdict on McKissock’s claim for
breach of the CC&Rs and the oral contract.
Kashfian first contends the court, and not the jury, should
have decided whether he was liable for violating section 4.6.a of
the CC&Rs. Specifically, Kashfian argues that once McKissock
decided not to present extrinsic evidence to show the CC&Rs
were reasonably susceptible to a different interpretation from the
one we applied in McKissock I, the court was bound by our
decision in that appeal to find McKissock didn’t have a right to
enter Kashfian’s office to repair, replace, or maintain utility
connections. We are not persuaded.
As a preliminary matter, Kashfian overstates our holding
in McKissock I. Nothing in that opinion states, let alone suggests,
that under a plain reading of section 4.6.a of the CC&Rs,
McKissock could never prove he had a right to enter Kashfian’s
office to repair, replace, or maintain utility connections serving
15
his suites. Rather, as we explained in that opinion, McKissock
hadn’t introduced any evidence by the time of the hearing on the
preliminary injunction to support a finding that he had a “clearly
established” right to enter Kashfian’s office. But we never held
that, as a matter of law, McKissock didn’t have that right or that
he was precluded from presenting evidence at trial to prove he
had that right.
Indeed, to read McKissock I the way Kashfian does would
turn the rationale of that opinion on its head. As we explained in
the first part of the opinion’s analysis, the challenged order was
improper because it operated as a permanent injunction that
decided the merits of McKissock’s claims at a preliminary stage
of the lawsuit. (See Yee v. American National Ins. Co. (2015) 235
Cal.App.4th 453, 457–458.) Kashfian would have our opinion do
the same thing. That is, Kashfian insists McKissock I decided the
merits of the lawsuit in his favor. Not so. It simply concluded
that, at the time the court issued the challenged order,
McKissock had not met his burden to show he was entitled to the
extraordinary relief of a mandatory injunction.
And, as we explained in McKissock I, a party seeking a
mandatory injunction faces a heightened burden of proof.
Specifically, we noted that a mandatory injunction is “rarely
granted” at a preliminary stage of a lawsuit and is subject to
stricter review on appeal than a prohibitory injunction, and
entitlement to the mandatory injunction must be “clearly
established.” (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70
Cal.App.4th 1487, 1493; Davenport v. Blue Cross of California
(1997) 52 Cal.App.4th 435, 448.) Thus, the burden for
establishing the right to a mandatory injunction at a preliminary
stage of the lawsuit is much greater than the burden for proving
16
liability for a claim of breach of contract or nuisance at trial.
(Compare CACI No. 200 [a plaintiff need only prove a necessary
fact is “more likely to be true than not true”]; and Weiner v.
Fleischman (1991) 54 Cal.3d 476, 483 [“The general rule in this
state is that ‘[i]ssues of fact in civil cases are determined by a
preponderance of testimony.’ ”]; with Davenport, at p. 446 [the
granting of a mandatory injunction before the rights of the
parties have been “ ‘definitely ascertained’ ” is not permitted
“ ‘except in extreme cases’ ”].) That we concluded McKissock
didn’t satisfy the higher burden of proof necessary to obtain a
mandatory injunction does not mean we held that he couldn’t
later prove by a preponderance of the evidence at trial that he
had a right to enter Kashfian’s office under section 4.6.a of the
Medical Plaza’s CC&Rs.
The bottom line is that by the time of trial, there were
disputed issues of fact concerning Kashfian’s potential liability
for violating section 4.6.a of the CC&Rs. Specifically, the parties
presented conflicting evidence addressing whether McKissock’s
suites were served by a utility connection and whether McKissock
had a right to enter Kashfian’s office to repair, replace, or
maintain that connection. It is well-settled that a plaintiff is
entitled to a jury trial on a claim for breach of contract. (Raedeke
v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671 [“[A]
suit to recover damages for fraud or breach of contract is an
action at law in which a right to jury trial ordinarily exists.”].)
And where, as here, the parties submit a general verdict form to
the jury, the jury is responsible for making the ultimate
determination of liability. (See Chavez v. Keat (1995) 34
Cal.App.4th 1406, 1409 [a general verdict requires the jury to not
only make findings of fact, but also to determine which party
17
prevails on a particular claim or group of claims]; see also Code
Civ. Proc., § 624 [“A general verdict is that by which [the jury]
pronounce[s] generally upon all or any of the issues, either in
favor of the plaintiff or defendant; a special verdict is that by
which the jury find[s] the facts only, leaving the judgment to the
Court.”].) Consequently, the court did not err in allowing the jury
to determine whether Kashfian breached section 4.6.a of the
CC&Rs.5
To the extent Kashfian contends the court erred by not
instructing the jury that section 4.6.a of the CC&Rs required
McKissock to prove his suites had a currently, as opposed to a
formerly, existing utility connection that required access to
Kashfian’s office to maintain, repair, or replace, he did not
preserve that argument for appeal. In a civil case, the parties are
responsible for proposing complete and comprehensive
instructions that address their theories of the case. (Metcalf v.
County of San Joaquin (2008) 42 Cal.4th 1121, 1130–1131
(Metcalf), quoting Agarwal v Johnson (1979) 25 Cal.3d 932, 950–
951.) If a party fails to provide proposed instructions addressing a
particular theory, the court has no duty to instruct on that theory
on its own motion. (Metcalf, at p. 1131.)
In the middle of trial, the court advised Kashfian that if he
wanted the court to instruct the jury with a specific
interpretation of the CC&Rs, he needed to propose an instruction
with the language he wanted the court to use. Kashfian never did
so. Nor did he object to any of the instructions the court provided
5We also note that Kashfian doesn’t develop any arguments
challenging the sufficiency of the evidence to support the jury’s finding
that he breached section 4.6.a of the CC&Rs.
18
the jury. He therefore can’t complain on appeal that the court
erred by failing to instruct the jury with an instruction he never
proposed. (Metcalf, supra, 42 Cal.4th at p. 1131 [a party’s “failure
to request any different instructions means he may not argue on
appeal the trial court should have instructed differently”].)
For similar reasons, Kashfian hasn’t preserved his
challenge to the court’s decision to tell the jury that terminating
communications is a violation of the CC&Rs. After it received the
jury’s question on that issue, the court asked Kashfian how he
wanted the court to respond. Kashfian didn’t propose any
response but instead told the court it should come up with the
answer on its own. Because Kashfian doesn’t point to any part of
the record showing he objected to the court’s response, he has
forfeited his challenge to that response on appeal. (People v.
Ross (2007) 155 Cal.App.4th 1033, 1048 [“A defendant may forfeit
an objection to the court’s response to a jury inquiry through
counsel’s consent, or invitation or tacit approval of, that
response.”].)
Kashfian also can’t complain that the court allowed the
claim for breach of oral contract to go to the jury. Kashfian never
opposed McKissock’s motion to amend the complaint to add that
claim. Nor did Kashfian ask the court to strike that claim.
Kashfian also never objected to any of the jury instructions
addressing breach of contract, nor did he propose any
instructions addressing a particular defense or theory that would
be applicable to the claim for breach of oral contract. (Metcalf,
supra, 42 Cal.4th at p. 1131) And to the extent Kashfian contends
McKissock failed to prove the existence of the oral contract,
Kashfian doesn’t develop any arguments challenging the
sufficiency of the evidence to support that claim. (Placer County
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Local Agency Formation Com. v. Nevada County Local Agency
Formation Com. (2006) 135 Cal.App.4th 793, 814 [“We need not
address points in appellate briefs that are unsupported by
adequate factual or legal analysis.”].)
In any event, Kashfian can’t show he was prejudiced by the
court’s decision to allow the jury to determine whether he
breached the oral contract or violated section 4.6.a of the CC&Rs
because he agreed to allow the jury to use a general verdict form.
When a jury returns a general verdict on multiple causes of
action or a claim involving multiple theories, we presume the jury
found in the prevailing party’s favor on each cause of action and
theory. (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1155, 1157;
Willdan v. Sialic Contractors Corp. (2007) 158 Cal.App.4th 47, 57
(Willdan).) A general verdict will be upheld if any one of the
prevailing party’s claims or defenses is (1) supported by
substantial evidence, and (2) unaffected by error, despite the
possible insufficiency of the evidence as to the party's other
claims or defenses. (Tavaglione, at p. 1157.)
The verdict form in this case combined McKissock’s causes
of action for breach of CC&Rs and breach of oral contract into a
single claim styled as “Breach of CC&Rs – Breach of Contract.”
As we explained above, the court instructed the jury that it could
find Kashfian liable for breaching the CC&Rs if it found (1)
Kashfian wrongfully denied McKissock access to Kashfian’s
office, or (2) Kashfian hindered McKissock’s use of the common
area by making exclusive use of that space. The second form of
breach is based on independent factual and legal theories from
the first. Specifically, the second form arises out of section 2.2.b of
the CC&Rs, and it is based on evidence that Kashfian encroached
on or hindered McKissock’s right to use the parties’ shared
20
common area by overcrowding that space with his own pipes,
utility lines, and duct work and eliminating part of that space by
overbuilding his office. Kashfian doesn’t develop any arguments
challenging the court’s decision to allow the jury to determine
whether he violated that provision of the CC&Rs. Nor does he
contend the jury otherwise erred in finding he breached section
2.2.b of the CC&Rs.6 Because the parties used a general verdict
form, we must presume the jury found in McKissock’s favor on
the claim for “Breach of CC&Rs – Breach of Contract” under the
theory that Kashfian violated section 2.2.b of the CC&Rs by
overcrowding, and eliminating part of, the common area he
shared with McKissock. (Willdan, supra, 158 Cal.App.4th at p.
57.)
2. Kashfian hasn’t otherwise identified any error
requiring reversal of the jury’s verdict.
Kashfian next contends the court prejudicially erred
because it did not instruct the jury that McKissock’s claim for
nuisance, as pled in the operative third amended complaint,
arose out of section 13.2.c of the CC&Rs, which defines an
actionable nuisance as a violation of any “covenant[], condition,
restriction, easement, reservation, lien or charge” contained in
the CC&Rs. Kashfian has forfeited this argument because he
never objected to the instructions provided by the court or
6Although we noted in McKissock I that section 2.2.b did not provide
McKissock a right to access Kashfian’s office, nothing in the opinion
addressed that section’s prohibition against encroaching on or
hindering another owner’s right to use the Medical Plaza’s common
areas.
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proposed any instructions addressing the nuisance claim.
(Metcalf, supra, 42 Cal.4th at p. 1131.)
We also reject Kashfian’s argument that he wasn’t liable
for nuisance because the CC&Rs didn’t impose any duty on him
to act, or refrain from acting, in a particular manner. As we
explained above, section 2.2.b of the CC&Rs prohibits an owner of
property in the Medical Plaza from “hindering the exercise of or
encroaching upon” any other owners’ rights to use the building’s
common areas. Kashfian fails to cite any authority, or otherwise
develop any cognizable argument, to support the proposition that
section 2.2.b’s language didn’t impose upon him a duty not to
hinder McKissock’s use of the Medical Plaza’s common areas.
(See Cal. Const., art. VI, § 13 [a judgment is presumed correct];
Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799
[the appellant bears the burden to show the judgment is
erroneous and, as part of that burden, must support each claim
with “reasoned argument and citations to authority”].) Because
Kashfian has not developed this argument, we need not address
it any further.
Finally, Kashfian argues McKissock’s counsel committed
misconduct while cross-examining Kashfian. Specifically,
Kashfian contends McKissock’s counsel misrepresented the
nature of the order granting the preliminary injunction that was
reversed in McKissock I. This argument is forfeited.
During cross-examination, McKissock’s counsel used a copy
of the preliminary junction order to refresh Kashfian’s
recollection about a purported agreement the parties made to
allow McKissock to perform construction in Kashfian’s office so
long as McKissock agreed to certain conditions and limitations
that Kashfian wanted to impose on the scope and nature of that
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work. McKissock’s counsel didn’t tell the jury that the document
he showed Kashfian was the reversed order, but instead he
referred to it as a “proposal” that Kashfian received from
McKissock, which had been approved by the court. McKissock’s
counsel then asked Kashfian several questions referencing the
contents of the order and about whether Kashfian agreed that the
conditions imposed by the order were the same as those he
wanted to impose on any work McKissock had intended to
perform inside Kashfian’s office.
Kashfian didn’t object during this line of questioning but
instead waited until after his cross-examination to request a
meeting at sidebar. During that meeting, Kashfian argued that
McKissock’s counsel’s questions violated a prior stipulation
between the parties not to discuss our decision in McKissock I in
front of the jury. Kashfian requested permission to refer to that
decision during his redirect examination, but he never asked the
court to strike any of the questions referring to the reversed order
or any of his testimony responding to those questions. Nor did
Kashfian ask the court to admonish the jury about the challenged
line of questioning.
The court ruled that Kashfian was “entitled to clarify for
the record” that the order granting the preliminary injunction
had been reversed. During his redirect examination, Kashfian
testified that the document McKissock’s counsel had referred to
as a “proposal” was in fact the order granting McKissock a
preliminary injunction and that the order was later “invalidated”
on appeal.
Generally, a party cannot complain on appeal that an
attorney committed misconduct at trial unless that party timely
objected to the misconduct and requested that the jury be
23
admonished. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411–
1412 (Rayii).) “The purpose of these requirements is to allow the
trial court an opportunity to remedy the misconduct and avoid
the necessity of a retrial; a timely objection may prevent further
misconduct, and an admonition to the jury to disregard the
offending matter may eliminate the potential prejudice. The
failure to timely object and request an admonition waives a claim
of error unless the misconduct was so prejudicial that it could not
be cured by an admonition [citations], an objection or request for
admonition would have been futile [citation] or the court
promptly overruled an objection and the objecting party had no
opportunity to request an admonition [citation].” (Id. at p. 1412.)
As we noted above, Kashfian never asked the court to
admonish the jury about, or to strike any portion of, the
challenged line of questioning. Instead, Kashfian accepted the
court’s ruling that he could tell the jury that the document
McKissock’s counsel characterized as a court-approved “proposal”
was in fact a prior order issued by the trial court that was later
reversed on appeal. Because Kashfian makes no effort to explain
why a request for an admonition would have been futile or why
McKissock’s counsel’s line of questioning was incurable, he has
forfeited any argument on appeal concerning that line of
questioning. (Rayii, supra, 218 Cal.App.4th at p. 1412.)
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DISPOSITION
The judgment is affirmed. McKissock shall recover his costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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