Quintero v. Weinkauf ( 2022 )

Filed 3/3/22; Modified and certified for partial publication 4/1/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ADRIANA J. QUINTERO,
Plaintiff and Respondent, A159812, A162688
v. (San Mateo County
STEVEN A. WEINKAUF, Super. Ct. No. 18-CIV-05383)
Defendant and Appellant.
Plaintiff Adriana J. Quintero sued defendant Steven A. Weinkauf for
stalking, assault, intentional infliction of emotional distress (IIED), and
domestic violence. The jury found in favor of Quintero on her stalking, IIED,
and domestic violence claims, awarding her compensatory and punitive
damages. Judgment was entered in Quintero’s favor for $1.3 million. The
trial court then awarded Quintero approximately $850,000 in attorney fees
and $60,000 in costs. A supplemental judgment was entered in Quintero’s
favor for a total of $2.2 million.
In this consolidated appeal, Weinkauf claims that reversal of the
judgment is required due to numerous evidentiary, instructional, and other
errors. He also claims that reversal of the judgment requires reversal of the
supplemental judgment, as Quintero would no longer be the prevailing party
entitled to attorney fees and costs. We affirm.
1
I. BACKGROUND 1
Quintero filed a lawsuit against Weinkauf asserting four causes of
action: (1) the tort of stalking, (2) assault, (3) IIED, and (4) the tort of
domestic violence. The complaint alleged that after Quintero and Weinkauf
ended their romantic relationship, Weinkauf shot arrows and discharged a
firearm through the windows of Quintero’s business. It further alleged that
Weinkauf committed these acts in disguise and under cover of darkness, but
Quintero was ultimately able to identify him as the perpetrator. This civil
action was preceded by a criminal action, in which Weinkauf pled guilty to
stalking (Pen. Code, § 646.9) with an enhancement for personal use of a
dangerous and deadly weapon (Pen. Code, § 12022, subd. (b)(1)) and a
criminal protective order was entered. Weinkauf moved for summary
judgment or adjudication on each cause of action. The motion was denied.
The trial proceeded in three phases: (1) jury trial on the issues of
liability and compensatory damages, (2) bench trial on the issue of
Weinkauf ’s net worth, and (3) jury determination on the amount of punitive
damages. During the first phase, Quintero testified that she met Weinkauf
when they worked together as attorneys for the Public Administrator and
Public Guardian of San Francisco County, and they subsequently started a
romantic relationship that ended in December 2013.
In April, June, and August 2015, crossbow arrows were shot through
the windows of Quintero’s law office building. Quintero then installed
surveillance video cameras on the building. On January 3, 2017, there was
another shooting that cracked a window of Quintero’s building—this time
1 The following is a brief summary of some of the factual and
procedural background in this case, which we set out to provide context to the
issues raised on appeal. Additional facts are included in our legal discussion.
2
with some other weapon. Quintero reviewed the surveillance video footage
and saw someone in a red Jeep fire a gunshot. She was unable, however, to
identify the individual. On January 8, 2017, there was another shooting at
her building. Upon reviewing the surveillance video footage, Quintero saw
the same Jeep circling her office and identified Weinkauf shooting a
crossbow.
Weinkauf proceeded at trial in propria persona. He conceded that he
had shot a crossbow at Quintero’s building window once, but denied any
involvement in the other shootings. The jury found in favor of Quintero on
the stalking, IIED, and domestic violence claims and in favor of Weinkauf on
the assault claim. The jury awarded Quintero $1.3 million in compensatory
damages. It also found by clear and convincing evidence that Weinkauf had
engaged in conduct with malice, oppression, or fraud.
In the second phase of the trial, the court determined Weinkauf ’s net
worth to be $1.5 million. The jury returned for the third phase and awarded
Quintero $6,000 in punitive damages. Judgment was entered in Quintero’s
favor for $1,306,000. Weinkauf moved for a new trial, claiming various
evidentiary and instructional errors and challenging the compensatory
damages award as excessive. The court denied the motion.
Quintero filed a memorandum of costs, as well as a motion for attorney
fees under Code of Civil Procedure section 1021.4. The court awarded
Quintero $869,688.79 in attorney fees and $60,565.25 in costs. A
supplemental judgment was entered in Quintero’s favor for a total of
$2,236,254.04.
II. DISCUSSION
A. No Evidentiary Error
Weinkauf argues that the court made evidentiary errors in admitting
(1) audio clips from a pretext telephone call between Quintero and Weinkauf
3
recorded by police; and (2) video clips of the surveillance footage from the
January 2017 shootings. We review the court’s evidentiary rulings for abuse
of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196–197.)
1. Pretext Telephone Recording
Weinkauf moved in limine to exclude the pretext telephone call on the
grounds that he had not consented to the recording, that his right to counsel
was violated because the call was recorded after his arrest in the criminal
prosecution, and that his statements during the call were an attempt to
negotiate a settlement with Quintero and, thus, inadmissible under Evidence
Code section 1152. The court granted the motion in part, ruling that the
recording could only be used for impeachment purposes and reserving other
issues for determination after an Evidence Code section 402 hearing (402
hearing).
At the 402 hearing, Quintero testified that Police Detective Robert
Branch asked her to come to the police station and make a pretext call to
Weinkauf because crossbows had been recovered at his residence, but that
police were still looking for the gun. She handed her phone to a technician,
who used a machine to place the call on speaker while Detective Branch was
sitting in the room. She later reviewed the recording of the call, confirming
that she recognized the voices and that it included the same content from the
call. The audio clips were played for the court. Detective Branch also
testified that he had asked Quintero to make the call because he was
concerned there was a firearm outstanding. He identified the computer
system used to place the call, and that either he or his partner had burned a
copy of the audio onto a DVD. The court stated that, after hearing the
testimony on foundation, it would adhere to its previous ruling on the motion
in limine.
4
At trial, Weinkauf testified on his own behalf that he had his car towed
on January 2, 2017, and received a receipt for the towing and storage of the
car from January 2 to January 5, 2017. He sought to have the receipt
admitted into evidence. On cross-examination, counsel for Quintero asked if
Weinkauf was denying that he shot a gun at the building on January 3, 2017.
Weinkauf objected that the question was beyond the scope of direct. The
court overruled the objection. Weinkauf refused to answer the question.
Counsel for Quintero then proceeded to play five audio clips from the pretext
call related to the gunshot. The receipt was later admitted into evidence.
On appeal, Weinkauf challenges the trial court’s rulings that (1) the
audio clips could be used for impeachment purposes; (2) there was proper
foundation and authentication of the audio clips; and (3) Weinkauf ’s
introduction of the towing receipt and related testimony allowed use of the
audio clips for impeachment. We reject these arguments.
First, the trial court did not abuse its discretion in allowing the audio
clips to be used for impeachment purposes. Penal Code section 632 provides
that an electronic recording of a confidential communication is “not
admissible in any judicial, administrative, legislative, or other proceeding”
unless all parties to that communication had consented to the recording.
(Pen. Code, § 632, subds. (a) & (d).) The statute, however, does not prohibit
the use of such recording to impeach a witness making statements
inconsistent with those conversations. (Frio v. Superior Court (1988)
203 Cal.App.3d 1480, 1496–1497; People v. Crow (1994) 28 Cal.App.4th 440,
452 [“Evidence of confidential conversations obtained by . . . recording in
violation of [Penal Code] section 632 is generally inadmissible . . . but can be
used to impeach inconsistent testimony by those seeking to exclude the
evidence”].) The rationale for this exception is simple: Penal Code
5
section 632 “cannot be construed so as to confer upon a testifying witness the
right to commit perjury.” (Frio, supra, at p. 1497.) This rationale has been
applied beyond Penal Code section 632 to reject other arguments similar to
those Weinkauf raises here that the recording violated his right to counsel as
a criminal defendant and that his statements during the call revealed
settlement negotiations protected by Evidence Code section 1152. Crow
explained that where a statement is obtained in violation of a criminal
defendant’s constitutional rights, or is made during the course of
negotiations, there is a “significant” distinction between use of such
statements by the prosecution in its case-in-chief, versus use “only to impeach
the defendant’s credibility after he had first made contrary statements on
direct examination in the defense’s case-in-chief.” (Crow, supra, at pp. 450–
451.) Use of these statements for impeachment purposes is permissible
because, otherwise, such protections could be “ ‘perverted into a license to use
perjury by way of a defense, free from the risk of confrontation with prior
inconsistent utterances.’ ” (Id. at p. 451.) So too here.
Second, the trial court did not abuse its discretion in determining there
was sufficient foundation to authenticate the audio clips. For evidentiary
purposes, a tape recording is a “writing” and must be authenticated before it
can be received into evidence. (Evid. Code, §§ 250, 1401, subd. (a).) To
authenticate a writing, its proponent must introduce “evidence sufficient to
sustain a finding that it is the writing that the proponent of the evidence
claims it is.” (Evid. Code, § 1400.) Here, Quintero testified that she
recognized the voices on the audio recording and that it matched the content
from the call. Moreover, Quintero and Detective Branch testified about the
set up for making the call, the computer system used for the recording, and
the copying of the audio to a DVD. This testimony was sufficient. (People v.
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Williams (1997) 16 Cal.4th 635, 662 [foundation for tape recording laid when
witness “testified that the tape was a record of his conversation”]; People v.
Spencer (1963) 60 Cal.2d 64, 77–78 [testimony detailing manner in which
tapes were recorded was sufficient foundation on the issue of authenticity].)
Third, the trial court did not abuse its discretion in allowing the audio
clips to be used to impeach Weinkauf. Weinkauf sought to have the towing
receipt admitted into evidence and testified that the receipt included
payment for storage of his car during the time period when the January 3,
2017 shooting occurred. By taking the stand and seeking to admit the
receipt, which contradicted surveillance video footage and related testimony
identifying his car at the scene—in effect, giving himself an alibi—Weinkauf
opened the door to cross-examination about whether he denied involvement
in the shooting. (See People v. Walters (1961) 189 Cal.App.2d 334, 335–336
[evidence that clearly contradicted alibi testimony was properly admitted to
impeach the witness].) When Weinkauf refused to answer the question, it
was not improper to permit the playing of the audio clips related to the
gunshot.
Weinkauf insists that the admission of a recording taken in violation of
Penal Code section 632 violated his Fifth Amendment right to remain silent
and his Sixth Amendment right to counsel. We need not address these
alleged constitutional violations. Even assuming Weinkauf were correct,
admission of the recorded statements for impeachment purposes was still
proper. Putting to one side the fact that nothing in this civil trial had the
potential to incriminate him, “ ‘[w]hile the privilege against self-
incrimination does assure an accused of the right to remain silent at his trial,
it does not . . . encompass a right of an accused to lie in his own behalf at
trial.’ ” (People v. Macias (1997) 16 Cal.4th 739, 749; People v. Coleman
7
(1975) 13 Cal.3d 867, 892.) The same is true for alleged Sixth Amendment
violations. (People v. May (1988) 44 Cal.3d 309, 319.)
In sum, we conclude the trial court did not abuse its discretion in
admitting the audio clips from the pretext telephone conversation. 2
2. Surveillance Video Footage
The court held a 402 hearing on the admissibility of the surveillance
video footage from the January 2017 incidents. At the hearing, Quintero
testified that she had the video cameras installed after the incidents in 2015
because she was trying to deter future damage and identify the perpetrator.
She testified regarding the streets that each of the three exterior cameras
captured, and that her recording system preserved video for three weeks.
She testified that she had been trained on the use of the system and was the
sole custodian with access to the system. She testified that she watched the
footage of the January 2017 incidents with police, provided the police with a
thumb drive of the video, and later provided them access to retrieve the video
directly from the machine. The court ruled that the footage was admissible.
Police Officer Lane Matsui testified at trial that he received the footage
from Quintero and reviewed it first with Quintero at her office and then
again by himself at the police station. The clips were played for the jury.
Officer Matsui testified that the surveillance video showed the suspect
vehicle from the January 2017 shootings was a red Jeep with paper plates,
not DMV-issued plates. He testified that he sent a police officer to
Weinkauf ’s residence to determine whether Weinkauf had a red Jeep, and
that the officer saw the vehicle there.
2 Given our conclusion, we need not address Weinkauf ’s argument that
the court committed “further error” by instructing the jury with “Statements
of a Party Opponent” and “Adoptive Admissions.”
8
During this testimony, a juror submitted the following questions:
“When Pacifica PD verified that the defendant had a red Jeep, did his Jeep
have DMV Plates? And when was that?” Officer Matsui testified that the
other officer told him what the status of the license plate was on the vehicle
at Weinkauf ’s residence. When asked what the other officer said, Weinkauf
objected on hearsay grounds. The court overruled the objection, but allowed
the testimony “only for the fact that the statement was made and not for the
truth of the content.” Officer Matsui testified that the other officer told him
the vehicle had paper plates.
On appeal, Weinkauf argues that the trial court erred in (1) admitting
the surveillance video footage clips without proper foundation and
authentication; and (2) overruling his hearsay objection.
First, the trial court did not abuse its discretion in determining there
was sufficient foundation to authenticate the video clips. Like tape recording,
a video recording with imprinted data constitutes a “writing” that must be
authenticated. (Evid. Code, §§ 250, 1401, subd. (a).) Here, Quintero testified
that even though she did not know the specific internal mechanisms of the
video system, she knew how to run it and provided details about what it
captured and how it preserved footage. She also testified regarding how she
provided the video footage to police. That is sufficient. (See People v.
Goldsmith (2014) 59 Cal.4th 258, 271 [given witness testimony about
operation of camera system and location of cameras, it can be reasonably
inferred that the system automatically and contemporaneously recorded the
images of the intersection and the data imprinted on the photographs when it
was triggered].)
Without citing any authority, Weinkauf argues that this testimony was
insufficient because there was no evidence on the “operating perimeters,
9
protocols and reliability of the operating recording system” and that no
experts were called to opine on the foundation or authentication of the videos.
As a preliminary matter, courts have rejected such a standard for
admissibility. (See, e.g., People v. Lugashi (1988) 205 Cal.App.3d 632, 638
[declining to require testimony on acceptability and reliability of particular
hardware and software, or internal maintenance and accuracy checks, as a
prerequisite to admissibility of computer evidence].) Moreover, the fact that
“conflicting inferences can be drawn regarding authenticity goes to the
document’s weight as evidence, not its admissibility.” (Jazayeri v. Mao (2009)
174 Cal.App.4th 301, 321.) Weinkauf had ample opportunity to cross-
examine both Quintero and Officer Matsui on any issues regarding the
accuracy or reliability of the video recordings.
Second, Weinkauf contends that Officer Matsui’s testimony on the
other officer’s statement regarding the red Jeep was improper hearsay
evidence. While the trial court admitted the testimony “not for the truth of
the content,” Weinkauf argues it was not relevant for any nonhearsay
purpose. Even assuming the trial court abused its discretion in admitting the
testimony, we conclude that any such error was harmless. (People v. Duarte
(2000) 24 Cal.4th 603, 618–619, citing People v. Watson (1956) 46 Cal.2d 818,
836 [Watson standard applies to the erroneous admission of hearsay].) It is
not “reasonably probable” that Weinkauf would have reached a more
favorable result in the absence of such error (Watson, supra, at p. 836), given
the overwhelming evidence that Weinkauf committed the shootings as
alleged by Quintero. That evidence included Weinkauf ’s own admissions in
the pretext recorded phone conversation; deposition testimony from
Weinkauf ’s brother identifying Weinkauf in the surveillance video footage;
photographs and police testimony of crossbow arrows found in Quintero’s
10
window; and photographs and police testimony of the crossbow, arrows, and
helmet found at Weinkauf ’s residence.
In sum, we conclude the trial court did not abuse its discretion in
determining there was sufficient foundation for the admission of the video
clips from the surveillance footage, and even assuming it was error to
overrule Weinkauf ’s hearsay objection to Officer Matsui’s statement about
what another officer told him concerning the red Jeep, any such error was
harmless.
B. No Instructional Error
Weinkauf argues that the court made various instructional errors in
(1) opening instructions; (2) closing instructions specific to the stalking cause
of action; (3) closing instructions specific to the assault cause of action;
(4) closing instructions specific to the IIED cause of action; and (5) other
closing instructions.
We review claims of instructional error de novo. (Ted Jacob
Engineering Group, Inc. v. The Ratcliff Architects (2010) 187 Cal.App.4th 945,
961.) “[T]here is no rule of automatic reversal or ‘inherent’ prejudice
applicable to any category of civil instructional error, whether of commission
or omission. A judgment may not be reversed for instructional error in a civil
case ‘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.’ ” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
580 (Soule).) “Instructional error in a civil case is prejudicial ‘where it seems
probable’ that the error ‘prejudicially affected the verdict.’ ” (Ibid.) “Thus,
when deciding whether an error of instructional omission was prejudicial, 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.)
11
1. Opening Instructions
The statement of the case read to the jury included, in relevant part,
that Quintero “alleges that Mr. Weinkauf shot into her offices multiple times
between April 2015 and January of 2017, using a crossbow and gun.
Mr. Weinkauf admits that he fired a crossbow at Ms. Quintero’s offices one
time and broke a window but denies that he did so multiple times. He admits
following her on some occasions. He asserts that his actions are not as
serious as Ms. Quintero believes, and that she’s overstating the extent of her
claims that are made in this case.” Both parties had agreed this was a
“reasonably fair statement of what the case is about that ought to be given.”
The opening instructions to the jury included “Overview of Trial.” The
instruction stated, in relevant part: “As you heard in the Statement of the
Case earlier read to you, Plaintiff Adriana Quintero alleges that Defendant
Steven Weinkauf, committed the civil wrongs of Stalking, Assault,
Intentional Infliction of Emotional Distress and Domestic Violence against
her. With certain exceptions, Mr. Weinkauf contends Ms. Quintero is
overstating the extent of her tort claims that are made in this case.
Mr. Weinkauf also asserts affirmative defense.”
Weinkauf argues that this overview of trial instruction was in error
because it did not tell the jury that he denied the alleged acts supporting the
claims. As a preliminary matter, Weinkauf ’s argument is flawed because he
conceded that he committed one of these acts by shooting a crossbow into
Quintero’s building window. Moreover, the instruction explicitly referred to
the statement of the case, which made clear that Weinkauf denied the other
acts. Finally, Weinkauf repeatedly presented his defense to the jury that he
shot a crossbow into Quintero’s building window once, but did not commit the
other shootings. For these reasons, we cannot conclude that this overview of
trial instruction left the jury with a false impression of Weinkauf ’s defense.
12
2. Closing Instructions—Stalking
The jury instruction on stalking outlined four elements that Quintero
was required to prove to establish the claim. On the first element, it
instructed the jury that Weinkauf must have “engaged in a pattern of
conduct the intent of which was to follow, alarm, place under surveillance, or
harass Ms. Quintero.” On the fourth element, it instructed the jury that
Quintero “must have, on at least one occasion, clearly and definitely
demanded that Steven Weinkauf cease and abate his pattern of conduct, and
Mr. Weinkauf persisted in his pattern of conduct unless exigent
circumstances made Ms. Quintero’s communication of the demand
impractical or unsafe.”
Weinkauf argues that the first element in this instruction omitted the
requirement from Civil Code section 1708.7, subdivision (a)(1) that a plaintiff
“support his or her allegations with independent corroborating evidence” to
establish the element. Even if such an omission was error, we conclude it
was not prejudicial. There was ample independent corroborating evidence
that Weinkauf committed the shootings. As detailed above, such evidence
included Weinkauf ’s admissions, the surveillance footage, the identification
of Weinkauf by his brother, and the recovery of the crossbow, arrows, and
helmet at Weinkauf ’s residence. It is not probable that any error on the
instruction for this element prejudicially affected the verdict. (Soule, supra,8 Cal.4th at p. 580.)
The court also provided other instructions related to the stalking claim.
First, it instructed the jury with the following definition of exigent
circumstances: “ ‘Exigent Circumstances’ means a situation that demands
unusual or immediate action and that may allow people to circumvent usual
procedures. ‘Exigent Circumstances’ may exist if a person’s life or safety is
threatened. [¶] ‘Exigent Circumstances’ has also been defined as an
13
emergency, something arising suddenly out of the current events, any event
or occasional combination of circumstances calling for immediate action or
remedy; a pressing necessity; sudden and unexpected happening or an
unforeseen occurrence or condition.” Weinkauf argues that the second
sentence of this instruction was an inaccurate statement of the law. We
deem the argument forfeited, as this definition was included in Weinkauf ’s
proposed jury instructions. (People v. Whalen (2013) 56 Cal.4th 1, 84 [claim
forfeited where defendant proposed version of instruction that was given].)
Second, the court instructed the jury that “[t]he law does not require
impossible acts. Therefore, if it was impossible for Ms. Quintero to demand
that Steven Weinkauf cease and abate his pattern of conduct, then she was
not required to do so.” It also instructed the jury that “[t]he law does not
permit someone to profit from their own wrongful acts. Therefore, if the
wrongful acts of Steven Weinkauf prevented Ms. Quintero from being able to
demand that Mr. Weinkauf cease and abate his pattern of conduct, then she
was not required to do so.” Weinkauf argues that these instructions
incorrectly qualified the fourth element of stalking that Quintero demand
Weinkauf cease and abate his pattern of conduct. We disagree, as these
instructions are consistent with the provision in Civil Code section 1708.7,
subdivision (a)(3)(A) that no demand is required where exigent circumstances
make communication of a demand “impractical or unsafe.” (Italics added.)
Any conduct by Weinkauf that rendered Quintero entirely unable to make a
demand satisfies this “exigent circumstances” exception.
3. Closing Instructions—Assault
The court instructed the jury that “Steven A. Weinkauf acted
intentionally if he intended to assault Adriana J. Quintero, or if he was
substantially certain that the assault would result from his conduct.” The
court added the following modification to the instruction: “This element of
14
intent may be satisfied if the evidence shows defendant acted with a willful
disregard of the plaintiff ’s rights.”
Weinkauf argues that this modification was an incorrect statement of
law as applied to Quintero’s other claims for stalking and IIED. The plain
language of the instruction, however, made clear that it pertained to the
intent element of Quintero’s assault claim. “ ‘ “In determining whether error
has been committed in giving or not giving jury instructions, we must
consider the instructions as a whole . . . [and] assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given.” ’ ” (People v. Ramos (2008) 163 Cal.App.4th
1082, 1088 (Ramos).) Nothing in the record suggests that the jury conflated
the standards for each cause of action or expressed any confusion.
Accordingly, we reject the argument.
4. Closing Instructions—IIED
The jury instruction on IIED outlined four elements that Quintero was
required to prove to establish the claim. On the second element, it instructed
the jury that Weinkauf must have “intended to cause Ms. Quintero emotional
distress.” Weinkauf argues that the instruction failed to provide an
alternative listed in the standard CACI No. 1600 instruction for this element
that a defendant either intended to cause emotional distress or “acted with
reckless disregard of the probability” that his conduct would cause emotional
distress. The directions for use of CACI No. 1600, however, state that
“[d]epending on the facts of the case, a plaintiff could choose one or both of
the bracketed choices in element 2.” Here, the record is clear that Quintero
opted to proceed on her IIED claim under the theory that Weinkauf intended
to cause her emotional distress by shooting crossbow arrows and a gun into
her law offices. We conclude there was no error on this instruction.
15
5. Other Closing Instructions
Weinkauf raises five other claims of error in the closing instructions to
the jury. First, the court instructed the jury: “If a party failed to explain or
deny evidence against him when he could reasonably be expected to have
done so, based on what he knew, you may consider his failure to explain or
deny in evaluating that evidence. [¶] It is up to you to decide the meaning
and importance of the failure to explain or deny evidence against the party.”
When reading the instructions to the jury, the trial court continued: “And I
said ‘he,’ but that also applies to Ms. Quintero, to her as well.” Weinkauf
claims that the oral statement did not correct the error to the written
instruction provided to the jury, and that the error was prejudicial because
Quintero “could not explain why a window was not broke or a bullet found on
the occasions she claimed a gun was shot into her windows.” Although the
written instruction contained a technical error, we conclude that it was not
prejudicial. (People v. Wilson (2008) 44 Cal.4th 758, 804.) The court orally
instructed the jury with the correct instruction. “Although this court gives
priority to the written version of an instruction when a conflict exists
between the written and oral versions, the jury is not informed of this rule. It
is thus possible the jury followed the oral instruction.” (Ibid.) There was also
“no indication the jury was aware of the slight difference between the written
and oral versions of the instructions, as it asked no questions about this
point.” (Ibid.) The jury sent no questions to the judge asking about the
conflict, and Quintero’s counsel did not seek to exploit it in closing argument.
In any event, as described above, there was ample evidence beyond
Quintero’s testimony that Weinkauf committed the January 3, 2017 gun
shooting. For these reasons, it is not probable that any error on the
instruction for this element prejudicially affected the verdict. (Soule, supra,8 Cal.4th at p. 580.)
16
Second, the court instructed the jury on the presumption of Evidence
Code section 634. It provided: “Regarding the towing receipt in this case, [a]
person in possession of an order on himself for the payment of money or
delivery of a thing is presumed to have paid the money or delivered the thing
accordingly. [¶] This is what is called a rebuttable presumption. The effect of
the presumption here is that the purported towing receipt in evidence is to be
taken to require you to assume the facts recited in the receipt to be true
unless and until the plaintiff here presents evidence that you should not rely
on the receipt to establish those assumed facts.” (Italics added.) Weinkauf
argues that the last phrase regarding the rebuttable presumption was a
misstatement of the law. He contends the jury should have been instructed
to assume facts “unless and until evidence is introduced which would support
a finding of its nonexistence.” (Evid. Code, § 604.) Again, we conclude it is
not probable that any slight modification on the definition of “rebuttable
presumption” prejudicially affected the verdict. (Soule, supra, 8 Cal.4th at
p. 580.) There was ample evidence that supported a finding that Weinkauf
did not have his car stored during the January 3, 2007 shooting. That
evidence included surveillance footage and related testimony from Quintero
and police identifying Weinkauf ’s vehicle at the scene of the January 2007
shootings, as well as testimony from Weinkauf that he had no receipts to
show that his vehicle stayed at the towing company and underwent repairs.
Third, the court instructed the jury with “Duties of a Person That
Charges For Towing or Storage, or Both.” The instruction stated that such
duties include the provision of an itemized invoice and defined “itemized
invoice” pursuant to Vehicle Code section 22651.07 to require, among other
things, the address, phone number, and carrier identification number of the
person that is charging for towing and storage, as well as a description of the
17
vehicle. Weinkauf argues there was “no evidence, presumption or any
reasonable or logical inference that supported the making of the instruction.”
We disagree. On cross-examination, Weinkauf testified that there was no
address, telephone number, or business license number for the towing
company and no vehicle license number on the receipt. There was sufficient
evidence to support the reading of the instruction. (People v. Romo (1990)
220 Cal.App.3d 514, 517 [“It is equally well settled a trial court must give a
requested instruction when there is sufficient evidence to support it, that is,
when there is evidence from which reasonable jurors could conclude the facts
underlying the instruction exist”].)
Fourth, the court instructed the jury with “Unusually Susceptible
Plaintiff.” The instruction directed the jury to decide the amount of money
that would “reasonably and fairly” compensate Quintero for all damages
caused by Weinkauf, “even if Ms. Quintero was more susceptible to injury
than a normally healthy person would have been, and even if a normally
healthy person would not have suffered similar injury.” Weinkauf argues
that this instruction on damages was in error because it was “in conflict” with
the standard for the second element of the stalking claim that Quintero
either reasonably feared for her safety, or suffered substantial emotional
distress and the “pattern of conduct would cause a reasonable person to
suffer substantial emotional distress.” (Civ. Code, § 1708.7, subd. (a)(2).) We
reject this argument, as the plain language of the instruction made clear that
it pertained to damages, and the court correctly instructed the jury on the
second element of the stalking claim. As explained above, we must assume
the jurors were capable of correlating the instructions, and there is nothing in
the record to suggest otherwise. (Ramos, supra, 163 Cal.App.4th at p. 1088.)
18
Fifth, the court instructed the jury with “Highly Probable—Clear and
Convincing Proof.” It defined clear and convincing evidence and then stated:
“In the Verdict Form in this case you are called upon to make a finding as to
whether or not any liability that you may impose on Defendant Steven A.
Weinkauf rises to the level of Fraud, Malice, or Oppression. [¶] If you reach
that issue, that fact must be proved by Clear and Convincing Evidence.”
Weinkauf argues that this instruction was in error because it failed to include
definitions of fraud, malice, or oppression. As a preliminary matter, we note
that Weinkauf only submitted proposed jury instructions defining malice and
oppression and to support his argument on appeal, Weinkauf offers no
authority that the trial court was required to define these terms. (Cf.
Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376[“oppression” and “malice” have well-established meanings, and the word
“fraud” may “technically refer to a number of different legal problems” but is
“a word of common usage and has a commonly accepted meaning”].) In any
event, we again reject the argument as we must assume that the jurors
understood the instruction as given and there is nothing in the record to
suggest any confusion about the terms. (Ramos, supra, 163 Cal.App.4th at
p. 1088.)
C. No Other Error
Beyond his claims of evidentiary and instructional error, Weinkauf
argues there are several other categories of error that necessitate reversal of
the judgment. We address and reject each in turn.
1. Modification of Protective Order
Shortly before trial, Weinkauf moved to modify the criminal protective
order so that he could take Quintero’s deposition. The court denied the
motion because discovery had closed. Weinkauf argues that the court
committed error because it did not “make any concession” allowing Weinkauf
19
to take Quintero’s deposition. We disagree. Trial courts “have broad
discretion in controlling the course of discovery and in making the various
decisions necessitated by discovery proceedings.” (Obregon v. Superior Court
(1998) 67 Cal.App.4th 424, 431.) Here, Weinkauf did not seek to reopen
discovery or provide any explanation for his lack of diligence in raising the
issue of Quintero’s deposition earlier. (See Code Civ. Proc., § 2024.) The trial
court did not abuse its discretion in denying the motion.
2. Summary Judgment Standard
Weinkauf argues that the court improperly “shifted the burden” to him
to establish exigent circumstances for stalking. To support this position,
Weinkauf cites the court’s summary judgment ruling that he had “not
demonstrated that the undisputed facts establish that no exigent
circumstance existed which would have made communication of a demand for
defendant to cease and desist his pattern of conduct unsafe.” There is no
evidence that the court relied on this summary judgment standard at trial; to
the contrary, the court correctly instructed the jury that Quintero bore the
burden to prove her claims.
3. Motions on Evidence of Offsets
Quintero moved in limine to exclude any evidence regarding
(1) Weinkauf ’s payment of restitution in the criminal proceedings;
(2) Weinkauf ’s affirmative defense for money had and received offset,
alleging Weinkauf had received $4,000 as payment of legal fees related to
Quintero’s family trust but had returned it upon her request; and
(3) Weinkauf ’s two affirmative defenses for emotional distress offset, based
on Quintero’s alleged refusal to return a file of Weinkauf ’s minimum
continuing legal education (MCLE) records and alleged access of another
attorney’s probate file without permission. Quintero also moved for judgment
on the pleadings on this last affirmative defense. On the restitution and the
20
money had and received offset, the court granted the motions in limine
without prejudice to the issue of allocation being tried separately by the court
after the jury verdict. On the emotional distress offsets, the court granted
the motion in limine related to the MCLE records and granted the motion for
judgment on the pleadings (MJOP) related to the other attorney’s file.
Weinkauf argues that these rulings were in error. We are not
persuaded. First, Weinkauf offers no argument or authority that he was
entitled to a jury trial on the offset of either the restitution ordered in the
criminal proceedings or the money had and received. (Cf. Kim v. Yi (2006)
139 Cal.App.4th 543, 549–550 [apportionment of damages is equitable and is
a special proceeding for which there is no right to jury trial].) Second, the
trial court did not abuse its discretion in concluding that any minimal
relevance of evidence related to Weinkauf ’s MCLE file would be outweighed
by confusion and undue consumption of time, especially as Weinkauf did not
appear to identify any problems with the State Bar created by his missing
MCLE file. (Evid. Code, § 352.) Third, the trial court did not err in granting
the MJOP as to Weinkauf ’s affirmative defense for an IIED offset related to
Quintero’s alleged access of another attorney’s probate file. (Angelucci v.
Century Supper Club (2007) 41 Cal.4th 160, 166 [trial court’s grant of MJOP
is reviewed de novo].) Weinkauf argued that he had referred an heir finder to
Quintero on that case, and Quintero’s alleged conduct was “stressful” because
he “could have gotten in a lot of trouble if things had come to light.” But
Weinkauf did not state facts sufficient to support tort liability for IIED—
namely, that Quintero had engaged in extreme and outrageous conduct with
the intent to cause, or reckless disregard of the probability of causing,
extreme emotional distress for Weinkauf. (Hughes v. Pair (2009) 46 Cal.4th
1035, 1050–1051.)
21
4. Quintero’s Attorneys
During the motion in limine hearing, Weinkauf objected that
Quintero’s two attorneys were presenting argument simultaneously. The
court responded that Quintero’s second counsel had only “stepped in
temporarily,” but instructed counsel that they would be required to elect
responsibilities during the trial. On appeal, Weinkauf argues that he was
denied a fair trial due to the conduct of the two attorneys. “[I]t is not enough
for a party to show attorney misconduct. In order to justify a new trial, the
party must demonstrate that the misconduct was prejudicial.” (Garcia v.
ConMed (2012) 204 Cal.App.4th 144, 149.) To support his claim, Weinkauf
cites only to brief insertions by the second counsel during the motions in
limine and to the discussion between counsel and the court to confirm
particular dates or times, or to confirm they had heeded the court’s direction
and divided up the witnesses for trial. Weinkauf has not demonstrated
prejudicial misconduct here.
5. Opening Statements
Before trial, the parties discussed the admissibility of the towing
receipt. Counsel for Quintero requested a 402 hearing and an opportunity to
investigate details related to the receipt. The court admitted the document,
subject to further reconsideration “depending on the outcome of the
investigation.” Noting the issue would not be reached until Weinkauf ’s
defense case and there was a jury panel available to draw, the court ordered
that neither party could discuss the receipt during opening statements.
Weinkauf argues that this restriction denied him a fair trial and due process.
We reject the argument.
The trial court is vested with broad discretion to control opening
statements and does not abuse this discretion by restricting argument during
opening statements where parties have ample opportunity to argue all points
22
in the course of trial. (People v. Clark (1951) 104 Cal.App.2d 634, 637; People
v. Bezy (1885) 67 Cal. 223, 224.) Here, Weinkauf presented argument during
opening on his defense related to the receipt that his car “wasn’t available”
during one of the alleged shootings because it was “in the storage facility
where my car had been towed to be worked on.” Moreover, he was able to
testify regarding the receipt during his defense case and the receipt was
admitted into evidence. No abuse of discretion occurred here.
6. Witness Testimony
Weinkauf moved to continue the trial on the grounds that three
witnesses had not been disclosed in discovery: John Aguirre, Glenn Daggs,
and Monique Doryland. The court denied the motion. Aguirre was identified
on Quintero’s responses to the third set of special interrogatories propounded
by Weinkauf. Daggs was identified on Quintero’s responses to the form
interrogatories propounded by Weinkauf. Counsel for Quintero conceded that
Doryland had not been disclosed in discovery, but the parties agreed that
Weinkauf would interview her before trial.
On appeal, Weinkauf argues that he was prejudiced by these “surprise
witnesses” not disclosed in discovery. We disagree. Aguirre and Daggs were
disclosed in written discovery responses, and the court remedied any
potential unfair surprise from Doryland’s testimony by affording Weinkauf
the opportunity to interview her. (See Caryl Richards, Inc. v. Superior Court
(1961) 188 Cal.App.2d 300, 303–304 [explaining that the trial court “has a
wide discretion in granting discovery” and may impose sanctions “suitable
and necessary to enable the party seeking discovery to obtain the objects of
the discovery he seeks”].)
7. Sufficiency of Evidence
Weinkauf argues that there was no evidence at trial from which a
reasonable trier of fact could find “exigent circumstances” to excuse the
23
requirement for stalking under Civil Code section 1708.7, subdivision (a)(3)(A)
that Quintero have demanded Weinkauf cease and abate his pattern of
conduct.
“ ‘We generally apply the familiar substantial evidence test when the
sufficiency of the evidence is at issue on appeal.’ ” (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) In
applying this test, we review the evidence in the light most favorable to the
prevailing party and “presume in support of the judgment the existence of
every fact the jury could reasonably have deduced from the evidence.”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) Reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’ ” the jury
verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
As a preliminary matter, we note that Quintero presented evidence
that she did make a demand to Weinkauf. Quintero testified that she called
Weinkauf after the three shootings in 2015 to discuss a legal issue. As she
had not yet identified Weinkauf as the shooter, she told him that “somebody
was shooting crossbow arrows through [her] building” and that “it needed to
stop.” Reviewing this evidence in the light most favorable to Quintero, we
conclude that the jury could have reasonably determined that Quintero had
demanded Weinkauf cease and abate his pattern of conduct. (Civ. Code,
§ 1708.7, subd. (a)(3)(A).)
We similarly conclude there was substantial evidence supporting an
alternative determination by the jury that there were “exigent
circumstances” excusing the demand requirement. (Civ. Code, § 1708.7,
subd. (a)(3)(A).) Photographs, surveillance video footage, and testimony
showed that Weinkauf had shot both a crossbow and a gun into Quintero’s
24
building. Indeed, a witness familiar with “Bloodsport” arrows—the type of
arrow used in the shootings—testified that he would not shoot that type of
arrow at a person or at a building where people work because it could be a
deadly weapon. Given this evidence, the jury could have reasonably
determined there were exigent circumstances that rendered Quintero’s
communication of the demand to Weinkauf “impractical or unsafe.” (Civ.
Code, § 1708.7, subd. (a)(3)(A).)
8. Jury Questions
Weinkauf argues that the court erred in its response to two jury
questions sent during deliberations. First, the jury asked, “With respect to
these charges, can you provide a definition of ‘imminent’ under the definition
of ‘abuse’ under domestic violence. Is ‘imminent’ unspecified timing in
future? Or is ‘imminent’ immediate (e.g. right now) like I have a gun & will
shoot you dead right now[?]” The court and the parties found a definition
submitted in Weinkauf ’s motion for summary judgment papers, researched
the definition, and sent the following response to the jury: “One requested
definition of ‘imminent’ is ‘near at hand; mediate rather than immediate;
close rather than touching; impending on the point of happening;
threatening; menacing; perilous.’ (Black’s Law Dictionary) The perception of
imminent danger is to be viewed from the perspective of the threatened
person.” After the response was sent to the jury, Weinkauf stated that he
disagreed with the definition. The trial court stated that Weinkauf had not
objected to the definition at the time it was drafted and the response had
already gone to the jury. Accordingly, we deem the argument forfeited.
(People v. Loza (2012) 207 Cal.App.4th 332, 350.)
Second, Weinkauf argues that the court also erred in responding to a
jury question during deliberations in the third phase of trial. Weinkauf
represents that the only reference to the question in the record is the court’s
25
minute order indicating a note was received from the jury. The record does
not include the question, any associated discussion between the parties and
the court, or the response sent to the jury. These omissions render the record
inadequate to review Weinkauf ’s claim. (Vo v. Las Virgenes Municipal Water
Dist. (2000) 79 Cal.App.4th 440, 447 [appellant has “an affirmative obligation
to provide an adequate record so that we may assess whether the trial court
abused its discretion”].)
9. Verdict Form
Weinkauf submitted a special verdict form, but the court rejected it “in
favor of the shorter, more concise” general verdict form offered by Quintero.
Weinkauf argues that the court erred in refusing his special verdict form.
“The trial court has discretion to determine whether or not to request the jury
to return special findings in addition to a general verdict, and its decision will
not be reversed except upon a showing of abuse of discretion.” (Gherman v.
Colburn (1977) 72 Cal.App.3d 544, 590.) None of Weinkauf ’s arguments
regarding the general verdict form demonstrates an abuse of discretion here.
Weinkauf contends it is “impossible to ascertain” whether the jury found each
element of Quintero’s tort claims had been established, and whether the
damages award included lost income or medical costs. The court, however,
fully instructed the jury on the elements required for each tort claim.
Contrary to Weinkauf ’s representation, the court also instructed the jury
that Quintero was seeking both economic and non-economic damages, and
that those economic damages included lost past earnings as well as past and
future medical expenses. The court “did not abuse its discretion by not
repeating those instructions as questions in the special verdict form.” (J.P. v.
Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 340.)
Weinkauf also contends that the verdict is “inconsistent” because the
jury found in favor of Quintero on the domestic violence claim, but in favor of
26
Weinkauf on the assault claim, despite the fact that both claims require
“apprehension of either immediate or imminent contact.” This argument not
only mischaracterizes the elements of the domestic violence claim (Pen. Code,
§ 13700, subd. (b) [defining “abuse” to include intentionally or recklessly
causing or attempting to cause bodily injury, or placing another in reasonable
apprehension of imminent injury]), but ignores the possibility that the jury
found in favor of Weinkauf on the assault claim because it concluded
Quintero had not established some other element of assault.
10. Second Phase of Trial
Weinkauf argues that the trial court erred in its determination of his
net worth during the second phase of trial. Specifically, Weinkauf contends
that the trial court (1) improperly considered the “income tax ramifications”
of the compensatory damages award; (2) improperly included the value of his
home and adjoining lot, which had been placed in an irrevocable trust; and
(3) failed to consider capital gains taxes that would result from a sale of the
properties to satisfy the judgment, and improperly instructed the jury on the
issue.
First, Weinkauf does not provide any citation to the record to show that
the court actually considered any “income tax ramifications,” in violation of
California Rules of Court, rule 8.204(a)(1)(C). Indeed, the court’s calculation
explicitly excluded Weinkauf ’s income. Nor does Weinkauf provide any
authority for his argument, in violation of California Rules of Court,
rule 8.204(a)(1)(B). Because the argument is not properly presented or
sufficiently developed to be cognizable, we must treat it as waived. (People v.
Stanley (1995) 10 Cal.4th 764, 793.)
Second, the trial court did not err in including Weinkauf ’s home and lot
in its net worth determination. Here, Weinkauf did not dispute that he
resided in the home without paying rent, and had used the property as
27
collateral to secure his bail in the criminal proceedings. As Weinkauf
retained interests in these assets, they can be reached to satisfy a judgment
against him. (Nelson v. California Trust Co. (1949) 33 Cal.2d 501 [“It is
against public policy to permit a man to tie up his property in such a way
that he can enjoy it but prevent his creditors from reaching it”]; McColgan v.
Magee, Inc. (1916) 172 Cal. 182, 186 [“[O]ne cannot by any disposition of his
own property put the same or the income thereof beyond the reach of his
creditors, so long as he himself retains the right to receive and use it”].)
Moreover, Weinkauf did not record deeds placing these properties into the
trust until shortly before the trial in this action. Even if that recording
perfected the status of the deeds, it was proper to include the properties in
Weinkauf ’s net worth under the doctrine of unclean hands. (See McDougall
v. O’Hara (1954) 129 Cal.App.2d 12, 14 [recording of declaration of
homestead month before entry of judgment did not allow party to quiet title
against judgment lien because “[t]o permit him to do so would be to afford
him the aid of equity to profit from his own misconduct”].)
Third, Weinkauf offers no authority for his argument that the trial
court was required to consider the possibility of future capital gains taxes
from a sale of Weinkauf ’s residence. As the trial court observed, “there
would be no capital gain recognition on any resale if it was reinvested in
another primary residence, but we don’t know what would happen with that,
whether it would be reinvested in that way.” A determination of net worth
cannot be based on speculation. (Adams v. Murakami (1991) 54 Cal.3d 105,
114; see Rufo v. Simpson (2001) 86 Cal.App.4th 573, 620–622.) Weinkauf
similarly offers no authority for his argument that the trial court erred in
instructing the jury that “if you were to sell your primary residence, that you
have 18 months—if you buy another primary residence with those proceeds,
28
you have 18 months to do that, and then there’s no capital gains of
appreciation of the house that you sold.” The instruction correctly stated the
law and was relevant to issues developed in the case. (See Rev. & Tax Code,
§ 121.)
D. Supplemental Judgment
Weinkauf argues that if his appeal is successful in reversing the
judgment, the supplemental judgment must also be reversed because
Quintero would no longer be the “prevailing party” entitled to attorney fees
and costs. (Code Civ. Proc., §§ 1021.4, 1032, 1033.5.) Given we affirm the
judgment for the reasons described above, we reject this argument.
III. DISPOSITION
The judgment and supplemental judgment are affirmed. Respondent to
recover costs on appeal.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
ROSS, J. *
*Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
29
Filed 4/1/22
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ADRIANA J. QUINTERO, A159812, A162688
Plaintiff and Respondent, (San Mateo County
Super. Ct. No. 18-CIV-05383)
v.
ORDER GRANTING IN PART
STEVEN A. WEINKAUF, REQUEST TO CERTIFY
Defendant and Appellant. OPINION FOR PUBLICATION,
MODIFYING OPINION AND
DENYING REHEARING;
NO CHANGE IN JUDGMENT
THE COURT *:
The opinion in the above-entitled matter filed on March 3, 2022, was
not certified for publication in the Official Reports. The Family
Violence Appellate Project has filed a request that the opinion be
published. For good cause it now appears that the opinion should
be partially published 3 in the Official Reports and it is so ordered.
The petition for rehearing filed on March 15, 2022, by appellant
Steven A. Weinkauf is denied, subject to the following modification
of the opinion filed in this appeal on March 3, 2022:
*Pollak, P. J., Streeter, J., Ross, J. (Judge of the Superior Court of
California, County of San Francisco, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution).
3Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, the
opinion filed on March 3, 2022, is certified for publication with the exception
of parts II.A.–B., II.C.1.–6., II.C.8.–10., and II.D.
1
1. On page 1, at the end of the second paragraph which concludes,
“We affirm.” add the following language continuing within the
same paragraph:
We also grant, in part, a request from the Family Violence
Appellate Project (FVAP) for publication of the unpublished
opinion in this case filed March 3, 2022.
2. On page 20, in the first paragraph under part II.C.3. “Motions on
Evidence of Offsets” in the first sentence, item number (3), change
the word “minimum” to “mandatory” in the phrase preceding
“(MCLE)” so that the passage reads:
(3) Weinkauf ’s two affirmative defenses for emotional distress
offset, based on Quintero’s alleged refusal to return a file of
Weinkauf ’s mandatory continuing legal education (MCLE)
records and alleged access of another attorney’s probate file
without permission.
3. On page 23, in the first paragraph under part II.C.7. “Sufficiency of
Evidence” insert the following language immediately before the
first sentence which begins, “Weinkauf argues . . .” so that the
paragraph begins:
Our unpublished opinion in this case rejected all of Weinkauf’s
many claims of error, but we agree with FVAP that our
discussion of one of his arguments—his sufficiency of the
evidence attack on the stalking verdict—is worthy of
publication.
4. On page 23, delete the subheading for part II.C.7. (“7. Sufficiency
of Evidence”) but retain all of the text under that subheading
which will comprise the entire published portion under
part II. (Discussion).
5. On page 29, in the asterisked footnote, delete the words, “City and”
so that the footnote reads:
* Judge of the Superior Court of California, County of San
Francisco, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
The modifications effect no change in the judgment.
Dated: April 1, 2022 STREETER, J.
2
Trial Court: Superior Court of California, County of San Mateo
Trial Judge: Hon. Gerald J. Buchwald
Counsel: Steven A. Weinkauf, in pro. per., for Defendant and Appellant.
Law Office of Alison J. Mannwieler and Alison J. Mannwieler,
for Plaintiff and Respondent.
Quintero v. Weinkauf A159812, A162688