Winslow v. King's Townhouses Homeowners Assoc. CA2/5

Filed 2/17/16 Winslow v. King’s Townhouses Homeowners Assoc. CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

GREGORY WINSLOW, B263104

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC493053) v.

KING’S TOWNHOUSES HOMEOWNERS ASSOCIATION,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven J. Kleifield, Judge. Affirmed. Melvin Teitelbaum for Plaintiff and Appellant. Slaughter, Reagan & Cole, Barry J. Reagan and Gabriele M. Lashly for Defendant and Respondent.

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Plaintiff Greg Winslow appeals from the judgment entered in favor of defendant King’s Townhouses Homeowners Association (the Homeowners Association),1 in his action for negligence, violation of the California Common Interest Development Law, and breach of fiduciary duty. Winslow argues the trial court committed reversible error by ruling inadmissible the reports of plaintiff’s expert, Dr. Kaye Kilburn, and omitting a finding of liability as to damage to plaintiff’s property. Due to the absence of a reporter’s transcript of the trial and motion proceedings, or a suitable substitute such as a settled or agreed statement, Winslow has not established error or prejudice. We therefore affirm.

PROCEDURAL BACKGROUND

Winslow’s operative first amended complaint alleged he is a resident of a condominium project in Granada Hills. Defendants are the Homeowners Association and board members, directors, and officers of the association. Winslow alleged that defendants failed and refused to protect his residential unit from water damage. Injury resulted from mold, diminution of property value, loss of use, and property damage. The mold contamination caused personal injury to Winslow, including neurological and physical injuries. Defendants’ conduct violated statutory duties under the California Common Interest Development Law (Civ. Code, § 1365 et seq.) and breached their fiduciary duties to Winslow. Defendants filed an answer. Defendants filed six motions in limine prior to a bench trial. In limine motion No. 3 sought to exclude any reference to the reports or opinions of Dr. Kilburn, on the grounds Dr. Kilburn was unavailable to testify at trial due to his death, he had not been made available for deposition and had not been subjected to cross-examination, and any reference to his reports or opinions would be highly prejudicial. Winslow filed an opposition, arguing that Dr. Wu, another one of his witnesses, testified at deposition that