California Court of Appeal Dec 5, 2014 No. D064324Unpublished
Filed 12/5/14 Swartz v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KEVIN F. SWARTZ et al., D064324
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2009-00052744- CU-BC-NC) TYE A. SMITH et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Robert P.
Dahlquist, Judge. Affirmed.
Kevin F. Swartz and Diane E. Kocheran, in pro. per., for Plaintiffs and Appellants.
No appearance for Defendants and Respondents.
This action arises out of alleged construction defects in a residence Kevin F.
Swartz and Diane E. Kocheran (together, plaintiffs) bought from defendants Tye A.
Smith and Lori Smith (together, the Smiths), located in Vista, California. The matter
went to a jury trial and the jury found in favor of the Smiths.
Plaintiffs appeal, in propria persona, asserting (1) the court used an improper
special verdict form, (2) the court failed to answer a question concerning Tye Smith's
bankruptcy, (3) the court erred in awarding defendants' attorney fees and costs, (4) the
court allowed improper expert testimony, (5) the court improperly excluded some of
plaintiffs' exhibits, (6) the court erred by denying their counsel's request for sidebars
when it sustained objections to their counsel's questions, (7) the court violated the
bankruptcy stay order in Tye Smith's bankruptcy proceedings, and (8) the evidence was
insufficient to support the verdict. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Construction and Sale of the Residences
In 2003 the defendants (the Smiths) purchased two undeveloped lots. After they
closed escrow and began the permitting process for developing the first parcel, they
learned they were subject to a covenant of improvement, requiring them to construct a
paved access road and sewer system prior to commencing construction. The Smiths sued
the sellers of the property and a title insurance company for nondisclosure. The Smiths
ultimately settled those claims.
The Smiths constructed the road and sewer system and obtained the County's
approval to build. The Smiths constructed a single family residence, on one parcel, in
which they resided, and thereafter built a residence on the adjacent property, located at
3636 Royal Road in Vista, California (the subject property).
Plaintiffs purchased the subject property for $1,048,500. Prior to the close of
escrow the plaintiffs hired a home inspection company. The purchase agreement
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contained an attorney fees clause that provided, "[i]n any action, proceeding, or
arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer
or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing
Buyer or Seller . . . ."
B. The Lawsuit
The plaintiffs filed a lawsuit against contractors and brokers involved in the
transaction, as well as the Smiths, asserting the subject property suffered from
construction defects. As against the Smiths, they asserted claims for intentional
misrepresentation, negligent misrepresentation, concealment, and quiet title.
During the pendency of the litigation the Smiths filed for bankruptcy. They listed
the plaintiffs' claim for construction defects in the amount of $1.5 million as a debt. The
plaintiffs thereafter obtained a relief from stay, allowing them to proceed against the
Smiths on their fraud claims.
C. The Trial
The matter came on for a jury trial in March 2013. Following trial, the jury
returned a special verdict form. As against the Smiths the verdict identified causes of
action for negligence, concealment, and intentional misrepresentation. As to the cause of
action for intentional misrepresentation against the Smiths, the jury found that plaintiffs
failed to prove one element of that claim, that the Smiths intended that plaintiffs rely on
their representations. As to the cause of action for concealment, the jury found the
Smiths did not intentionally fail to disclose an important fact the plaintiffs did not know
and could not reasonably discover.
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However, the jury did find that the Smiths were negligent in connection with the
real estate transaction. The jury found Tye Smith to be 20 percent liable for plaintiffs'
harm and Lori Smith to be 15 percent liable. The jury awarded damages against Tye
Smith in the amount of $44,285 and against Lori Smith in the amount of $33,215. The
court reduced those awards to $0, presumably because the relief from stay order only
allowed the plaintiffs to pursue their fraud claims against the Smiths, and the jury found
in their favor on those claims. The court also found the Smiths to be the prevailing
parties, and therefore they could recover their costs of suit.
D. Motion for Attorney Fees
Thereafter, the Smiths brought a motion for attorney fees and costs. Their former
counsel,1 Gregory S. Day, submitted a declaration, stating that for "an extended period of
time" he acted as counsel for the Smiths. He declared the "[t]he litigation was waged
aggressively by the plaintiffs and their counsel, resulting in significant attorney fees and
costs." Attorney Day stated that the Smiths incurred $94,940 in attorney fees and costs in
the amount of $8,594.44. The court granted the motion.
DISCUSSION
A. Special Verdict Form
1. Background
The special verdict form and jury instructions were discussed with counsel during
the trial. Thereafter, the court discussed the jury instructions with the jury, a well as a
1 Although the Smiths appeared in propria persona at trial, for a period of time during the pendency of this litigation they were represented by counsel. 4
clerical error in the special verdict form. The special verdict form asked the jury to
determine plaintiffs' damages suffered as a result of the Smiths' actions.
2. Analysis
Plaintiffs assert the special verdict form was defective because it did not specify
that on their claims for intentional misrepresentation and concealment they were entitled
to recover the diminution in value of the subject property as well as amounts actually and
reasonably expended in reliance on the fraud, under Civil Code section 3343. This
contention is unavailing.
As noted, ante, the special verdict form asked the jury to determine plaintiffs'
damages suffered as a result of the Smiths' actions. More importantly, the court
instructed the jury that the damages recoverable against the Smiths were "[t]he difference
between the amount that plaintiffs paid for the property and the fair market value of the
property at the time of the sale" and "amounts of money that plaintiffs claim to have
reasonably spent in reliance on defendants' conduct." Because we presume the jury
followed the trial court's instructions and nothing in the record shows otherwise, we
conclude the jury followed the trial court's instructions and applied the correct law
During deliberations the jury sent the court a note stating: "Will you be
instructing the jury how [sic] the impact of the Smiths' bankrupt[c]y has on the ability to
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sue for construction defects?" Although the record reflects that the court responded to
several other juror notes, it does not show the court responded to that note.
2. Analysis
Plaintiffs assert that "because the effect of the bankruptcy was not explained to the
jury, they were not aware that the [plaintiffs] could not recover on any non-fraud related
claim" which made the special verdict inconsistent and ambiguous, and "highly
prejudiced [plaintiffs'] case." We reject this contention.
Plaintiffs do not explain how the court's failure to inform the jury about the effect
of the bankruptcy made the jury verdict inconsistent or how it prejudiced their case. As
we have explained, the plaintiffs were granted a relief from stay to pursue their fraud
claims, and the special verdict form contained those claims. The jury found in favor of
the Smiths on those claims. Therefore, the failure to explain the effect of the bankruptcy
proceeding is of no moment.
C. Award of Costs
1. Background
After the Smiths prevailed on their fraud claims, they sought to recover their costs
as prevailing parties. The court granted the motion.
2. Analysis
Plaintiffs assert that the court erred in awarding the Smiths the costs they incurred
in defending this action because in their bankruptcy filing "they did not list the possibility
of receiving any fund as a result of the trial." This contention is unavailing.
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Unless otherwise provided by statute, a "prevailing party" is entitled to recover
costs in any action or proceeding "as a matter of right." (Code Civ. Proc., § 1032, subd.
(b).) "Prevailing party" for purposes of section 1032, subdivision (a)(4) of the Code of
Civil Procedure is defined as including: "[1] the party with a net monetary recovery, [2]
a defendant in whose favor a dismissal is entered, [3] a defendant where neither plaintiff
nor defendant obtains any relief, and [4] a defendant as against those plaintiffs who do
not recover any relief against that defendant."
As we have discussed, the plaintiffs were granted a relief from stay and allowed to
pursue their fraud claims. As such, the Smiths had to defend against those claims and, as
prevailing parties, were entitled to recover their costs in defending the action.
D. Evidentiary Rulings By Court
1. "Cumulative" objections
Plaintiffs assert the court erred in sustaining multiple objections that testimony
was cumulative. However, plaintiffs do not explain how the subject questions were not
cumulative. Therefore, this claim of error is forfeited.
2. Expert testimony by Richard Snyder
Plaintiffs assert that that the court erred in denying their objections to the
testimony of the Smiths' expert, Richard Snyder, as going beyond the scope of his
testimony at his deposition. We reject this contention.
In support of this contention, plaintiffs cite Easterby v. Clark (2009) 171
Cal.App.4th 772, 780, which held: "[A] party's expert may not offer testimony at trial
that exceeds the scope of his deposition testimony if the opposing party has no notice or
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expectation that the expert will offer the new testimony, or if notice of the new testimony
comes at a time when deposing the expert is unreasonably difficult." (Original italics.)
However, plaintiffs do not explain how Snyder's testimony exceeded the scope of
his deposition. Moreover, in the portion of the testimony quoted by plaintiffs in their
opening brief, it is clear that Snyder was responding to the testimony of plaintiffs'
witness. Thus, the plaintiffs were on notice that Snyder would give that testimony.
3. Evidentiary rulings on plaintiffs' exhibits
Plaintiffs assert that the court erred in excluding exhibits offered during the direct
examination of their expert, Timothy Delise. Specifically, plaintiffs assert that the court
erred in excluding exhibits identified as "Delise detailed invoices and statements,"
"Delise Stearman costs," and "Delise FINAL Cost of Repair."
However, plaintiffs do not provide the basis for the court's ruling. They also do
not explain why that ruling was erroneous. California Rules of Court, rule 8.204(a)(1)(C)
requires that briefs "[s]upport any reference to a matter in the record by a citation to the
volume and page number of the record where the matter appears." "'When an appellant's
brief makes no reference to the pages of the record where a point can be found, an
appellate court need not search through the record in an effort to discover the point
purportedly made. [Citations.] We can simply deem the contention to lack foundation
and, thus, to be forfeited.'" (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th
771, 800.) Further, although plaintiffs are litigants in propria persona, they are to be
treated to "the same, but no greater consideration than other litigants and attorneys."
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(Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
Therefore, they cannot assert this contention on appeal.
4. Requests for sidebars
Plaintiffs also assert that the court erred in denying their counsel's request for a
sidebar when the court sustained objections to his questions. This contention is
unavailing.
"Sidebar conferences. The judge rarely calls the attorneys to the sidebar or grants
requests for a sidebar conference. Such requests must be made only if absolutely
necessary. Possible problems must be anticipated and discussed at the trial management
conference, so as not to interrupt the flow of testimony and to keep the jurors waiting.
Sidebar conferences are not reported. An attorney who wishes to place any matter on the
record will have the opportunity to do so at the next break in the trial." (Thomas, Cal.
Civil Courtroom Handbook and Desktop Reference (2014 ed.) Trial Management
Conference, § 28:10, p. 1076.)
Thus, plaintiffs cannot show the court erred in failing to allow sidebars after
sustaining objections to counsel's questions.
D. Sufficiency of the Evidence
Last, plaintiffs assert that the evidence was insufficient to support the verdict.
This contention is unavailing.
1. Standard of review
When a challenge is made to the sufficiency of the evidence, we must review the
entire record and view all factual matters in the light most favorable to the prevailing
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party and the judgment. (Washington v. Farlice (1991) 1 Cal.App.4th 766, 771-772;
Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) We
do not reweigh the evidence or resolve conflicts in the evidence or in the reasonable
inferences that may be drawn from the evidence. (White v. Inbound Aviation (1999) 69
Cal.App.4th 910, 927.) "'All of the evidence most favorable to the respondent must be
accepted as true, and that unfavorable discarded as not having sufficient verity, to be
accepted by the trier of fact.'" (Buehler v. Sbardellati (1995) 34 Cal.App.4th 1527, 1542,
italics omitted.) When the record contains substantial evidence, "no matter how slight it
may appear in comparison with the contradictory evidence, the judgment must be
upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) "Credibility, or
lack thereof, is for the factfinder, not the reviewing court, to determine." (Wilson v. State
Personnel Bd. (1976) 58 Cal.App.3d 865, 877.)
2. Analysis
In asserting there is insufficient evidence to support the verdict, plaintiffs cite
excerpts from the evidence favorable to their position. They also cite evidence related to
parties that are not part of their appeal. Because we must review the record in the light
most favorable to the judgment, and plaintiffs have not acknowledged any of that
evidence, their claim that the evidence is insufficient fails.
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DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment in favor of the defendants, finding no error in the trial court's jury instructions, evidentiary rulings, or the award of costs to the prevailing defendants. The court held that the plaintiffs failed to demonstrate that the special verdict form was defective or that the jury's verdict was unsupported by the evidence.
Issues
Did the trial court err in its use of a special verdict form or in its instructions regarding damages?
Did the trial court err by failing to address a jury inquiry regarding the impact of the defendants' bankruptcy?
Did the trial court err in awarding attorney fees and costs to the defendants as the prevailing parties?
Did the trial court commit reversible error in its evidentiary rulings or in denying requests for sidebar conferences?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because we presume the jury followed the trial court's instructions and nothing in the record shows otherwise, we conclude the jury followed the trial court's instructions and applied the correct law concerning plaintiffs' damages.”