Filed 6/5/20 Carson v. Lindenmeyer CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

FLETCHER CARSON,

Plaintiff and Appellant,

v.

JOHN LINDENMEYER,

Defendant and Respondent.

A149691

(Marin County Super. Ct.

No. CIV 1502063)

Plaintiff Fletcher Carson appeals from the judgment in favor of defendant John Lindenmeyer. We affirm.

BACKGROUND

At the conclusion of a bench trial, the trial court filed a comprehensive 24-page Statement of Decision. The court stated the “Nature of the Case” as follows:

“Briefly stated, this action involves a dispute between landlord, Mr. Lindenmeyer, and his most recent tenant, Mr. Carson. Defendant, Mr. Lindenmeyer, has owned the residence at 7 Sea View Drive in Tiburon [sic: San Rafael], California from 2002 through this litigation. He purchased the property in February of 2002 as a newly-constructed home and immediately began leasing the home for residential purposes. . . . Mr. Lindenmeyer commenced leasing the property to Plaintiff, Fletcher Carson and his wife, Benita Price-Carson, on June 30, 2012.

“The parties’ relationship worsened over the tenancy, for reasons largely not discussed in trial. Ultimately, the disagreements culminated in an eviction proceeding resulting in Carson’s scheduled eviction from the property. On October 22, 2013, after the judgment for unlawful detention [and issuance of a writ of execution the day before] but prior to Carson vacating the property, a massive fire completely destroyed the home and all of the contents at 7 Sea View Drive. Plaintiff brought this action seeking damages for the personal property that was destroyed in the fire.”

In the early hours of October 22, neighbors noticed the house in flames and called 9-1-1. “During a two-week period after the fire, the property was cleaned, layered, measured, photographed, and processed during an ‘origin and cause’ investigation by three separate investigation units . . . . The investigation teams examined the entire structure and found multiple areas of non-communicated fire origin.”

“The totality of the burn patterns and fire damage indicated that the areas of origin were in the second floor master bedroom and the ground floor southeast bedroom. The analysis determined that the cause of the fire was incendiary in origin resulting from unknown person(s) using positively identified gasoline as an accelerant throughout numerous areas of the home, including, but not limited to, the master bedroom, master bathroom, and ground floor southeast bedroom. The presence of accelerant throughout the discovered areas of origin was confirmed through (1) hydrocarbon sampling (2) an arson canine, who, at first was overwhelmed by the large quantities of detectable substances but eventually alerted numerous times in the areas of the samples, and (3) chemical analysis of samples taken.”

The court then described plaintiff’s three causes of action:

“With regard to the Negligence cause of action, Plaintiff alleges that Defendant had a duty as a landlord to inspect and maintain the automatic fire sprinkler system that was installed in the house, and to install and maintain a key switch override system on the gate fronting the property. Plaintiff alleges that Defendant’s failures caused Plaintiff to suffer significant property damage during the fire. In Plaintiff’s . . . cause of action alleging Negligence Per Se, he alleges that the above described duties to maintain the fire sprinkler system and to install a key switch override system were also imposed upon Defendant by statute. He again alleges that Defendant’s breach of his statutory duties caused him to suffer significant property damage during the fire.

“In Plaintiff’s final cause of action, Plaintiff alleges three different theories of Fraud. He first alleges that Defendant defrauded Plaintiff by making intentional misrepresentations about the fire suppression system and Knox box or key switch override. He specifically asserts that Defendant falsely and knowingly represented that the above described systems functioned properly. He next alleges that Defendant defrauded Plaintiff by willfully and intentionally concealing the functionality of the fire sprinkler system and key switch override system. He lastly contends that Defendant defrauded Plaintiff by making a false promise relating to the fire suppression and key entry override systems.

“Plaintiff asserts that as a result of the intentional misrepresentation, concealment, and false promise regarding the fire sprinkler system and emergency override switch on the gate, Plaintiff was induced to enter into a lease with Defendant for the home, and suffered significant property damage when the above systems failed to perform as expected and represented.” (CT 41-42)

With respect to the fire suppression system, the court stated it “is designed to protect against a fire originating in a single ignition location by preventing flashover (total fire involvement) and providing a means of egress for occupants. The system, however, is not expected to control a fire with significantly higher fuel loads or an unusually high flame spread index. Additionally, because the system is designed to protect against a fire originating from a single ignition location, a multi-point ignition location or a fire accelerated with ignitable fluids could easily overwhelm the sprinkler system, causing the fire to grow in size and spread throughout. The primary purpose of the system is life-safety. Property protection is merely secondary, and not the aim or design of the system.”

The court then surveyed the evidence, including that of plaintiff’s expert Rowe, who, it was noted, “did not opine whether a properly functioning automatic fire sprinkler could have suppressed this particular fire. He agreed that the fire was intentionally set with several points of origin. [¶] Ultimately, Mr. Rowe concluded that the system was insufficient to suppress the fire. He did not persuade the court that it was the design of the system, or the maintenance of the system, that caused the inability of the system to have an effect on the fire. The weight of the evidence proves that the fire was so substantial and fast-moving, that even a flawless system would have had no effect on the fire. [¶] . . . [¶]

“Regardless of the water flow rate or water pressure, it is plainly evident that any residential 13D system [i.e., the one in the home] would have been overwhelmed, because of the accelerant used and the multiple locations where the fire started. . . . The evidence unquestionably established that no residential fire suppression system would have had any effect on the fire. The fire was a massive, intentionally set fire that overwhelmed the system.”

“Finally Plaintiff failed to prove that any design flaw, failure to inspect, or failure to maintain [the system] had any effect on the fire. This fire was designed to destroy the house with or without the sprinklers. The arsonist was undoubtedly successful in his/her endeavor.”

With respect to the “Gate Key Switch Override System,” the court concluded that “the property was lacking [such a system] for the property’s electronic gate.”

The court then moved to its “Legal Conclusions and Findings.”

As for Carson’s cause of action for negligence, “The court concludes that Plaintiff has failed to establish that Defendant owed Plaintiff any duty beyond a general landlord’s duty of ‘reasonable care’ in ensuring that 7 Sea View Drive was safe at the beginning of Plaintiff’s tenancy, and repairing any hazards learned about later. Plaintiff did not prove, or even argue, what precisely should have been done with regard to the fire suppression system. He did not prove or even suggest what maintenance was neglected by Defendant.” Thus, “The evidence is completely devoid of any specific duty a landlord has to inspect the suppression system other than perhaps a visual inspection for obvious leaking or painted sprinkler heads.” It followed that “Plaintiff has failed to prove any breach” of that duty.

Concerning causation, the court concluded: “Plaintiff failed to prove that his damages could have been avoided by any action on the part of Defendant. The evidence conclusively established that even a perfectly operational 13D fire suppression system would have done nothing. The fire here was designed to, and did, destroy this house, and overcome the fire suppression system, working or not, could have had no effect on the resulting damage. In this regard, expert Chris Vellarga testified that the fire sprinkler system’s capacity for flow or pressure was immaterial to the resulting fire damage here. Mr. Vellarga stated that a fully functioning fire sprinkler system would have failed ‘right out of the gate’ due to the nature of this fire, and the various locations where gasoline was found. . . . Vellarga testified that a residential fire suppression system would be useless to save any property in a fire such as this.” “The court finds that no further action, inspection or maintenance, by Defendant with regard to the automatic fire sprinkler system could have prevented the damage caused by the intentionally-set fire at 7 Sea View Drive. [¶] Thus, Plaintiff has failed to meet his burden of proof to establish sufficient causation based on his claim for General Negligence.”

Turning to the override system, the court concluded that “Defendant was statutorily obligated to install” such a system, and he breached that duty. However, again, “The court finds that the absence of a keyless entry system, or Knox box, was immaterial to the events of October 22, 2013.” Consequently, “Plaintiff has not proven causation.”

As for the cause of action for negligence per se, the court noted, “In order to establish liability on a theory of negligence per se, [a] plaintiff must prove (1) the defendant violated a statute; (2) the violation proximately caused the plaintiff’s injury; (3) the injury resulted from the kind of occurrence the statute was designed to prevent; and (4) the plaintiff was one of the class of persons the statute was intended to protect. [Citation.] Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to prove duty of care and standard of care, however the plaintiff still has the burden of proving causation. [Citation.]”

“The court . . . has found no legal authority to suggest Defendant violated any law or regulation with regard to the fire suppression system. [¶] More importantly, Plaintiff has not proven that the condition of the fire suppression system, or failures by Defendant relating to the system, (statutory or otherwise) proximately caused any damage. For more discussion regarding lack of causation, see the court’s above discussion related to the automatic fire sprinkler system in the first cause of action.”

The court found that Lindenmeyer did violate a county ordinance requiring a “keyless entry override switch.” “However, also as discussed above, such breach did not proximately cause any damage. Defendant is entitled to judgment on this cause of action.”

As for the cause of action for fraud, the court concluded, “Defendant did not make any misrepresentations or false promises, and did not conceal any known facts. Further, . . . Plaintiff failed to prove any damage resulting from the alleged fraudulent statements or omissions. Thus Plaintiff’s cause of action for fraud, under all three theories, fails.”

Supporting findings included:

“[T]here exists no evidence that Defendant affirmatively told Plaintiff anything about the sprinkler system or its functionality. There was simply no intentionally false representation relating to the sprinkler system.”

“Similarly, Plaintiff did not prove that Defendant falsely stated anything about the entry gate.” “Further, . . . Plaintiff did not persuade the court that even if Defendant misrepresented the condition of the gate entry system, Plaintiff would have done anything differently.” “Finally, . . . Plaintiff has not proven any causal connection between his damages and the functionality of the gate.”

“The court . . . does not agree that the evidence showed that Defendant systematically concealed the state of the house, including drains, appliances, or other systems as proffered by Plaintiff. More importantly, however, the court finds that Defendant did not conceal any know deficiencies in the sprinkler or keyless entry system.”

“Plaintiff alleges that Defendant made a false promise when he promised to install a Knox box and never did so. . . . [¶] . . . Defendant, however, testified that he went to the Fire Department to register for a fire/paramedic emergency gate opener to drill into the new gate code box. He stated that it was never installed because Plaintiff never picked out the new code opener and they did not reach an agreement on payment. Defendant’s intent to install the Knox box was also evidenced in their email communications. The court concludes that Defendant did intend to install the new Knox box, and that it simply was not installed because a new gate box was not selected. Thus, without the requisite intent to not perform on the promise, Defendant could not have made a false promise to Plaintiff, and this theory must also fail. [¶] Finally, Plaintiff did not establish any damages stemming from the alleged promise to install a Knox box.”

DISCUSSION

We begin with a few preliminary observations.

As he did at trial, Carson has chosen to represent himself. That is his right. But a person “who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.” (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009.) Moreover, “as is the case with attorneys, pro per litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)

Rule 8.204 of the California Rules of Court specifies that “Each brief must [¶] . . . [¶] Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Italics added.) It also directs that “An appellant’s opening brief must [¶] . . . [¶] Provide a summary of the significant facts limited to matters in the record.” (Italics added.) The “Procedural History” and the “Statement of Facts” in Carson’s opening brief have not a single reference to the record. There are many statements throughout Carson’s brief (and, to be fair, in Lindenmeyer’s) concerning matters that are outside the record. Those statements will be disregarded. (Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 366, fn. 8 [“ ‘Factual matters that are not a part of the appellate record will not be considered’ ”].)

The “Argument” section of the brief, which begins on page 13 and concludes on page 42, has some citations to the record, but they are few and far between. Moreover, most of the citations are to testimony and evidence that Carson advances as supportive of his position. Even when Carson points to or quotes cites to evidence favoring him, he does not provide citations to the record.

Carson’s opening brief has three pages under the heading “Causation as a Substantial Factor in Negligence was disregarded by the Court.” The pages are largely devoted to quotes from decisions and the Second Restatement of Torts. After a careful reading of the entire brief, we believe Carson means to argue that the trial court misapprehended the law of causation, specifically, that a fully functioning fire suppression system would have extinguished the fire. Ergo, since it did not, it must have been defective, for which Lindenmeyer is responsible. Such reasoning is untenable because, as noted by the trial court, the system was not designed for total fire suppression, but merely to allow occupants to opportunity to get out. Numerous witnesses so testified.

A recurring theme in the statement of decision, common to all of Carson’s causes of action, was that he failed to establish causation, that Lindenmeyer’s acts or omissions was responsible for any loss. Causation is an issue of fact. (E.g., State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 353; People v. Dawson (2009) 172 Cal.App.4th 1073, 1090, fn. 4 and authorities cited.)

Concerning the merits, the majority of the argument is under the heading “The evidence does not support the verdict.” And here, Carson is undone.

The most fundamental principle of appellate review is that “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it . . . and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) One of those presumptions is that the record has sufficient evidence to sustain the trial court’s findings of fact. (E.g., In re Marriage of Fink (1979) 25 Cal.3d 877, 881; Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 998.) And this court has held that “ ‘Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.’ ” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.)

Our Supreme Court has held that a losing defendant who challenges the sufficiency of the evidence is required “ ‘to demonstrate that there is no substantial evidence to support the challenged findings.’ [Citations.] A recitation of only defendants’ evidence is not the ‘demonstration’ contemplated under the above rule. [Citation.] Accordingly, if, as defendants here contend, ‘some particular issue of fact is not sustained, they are required to set forth all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

It is clear from what has already been said that Carson has not complied with this rule. His briefing is, again quoting from our Supreme Court, “manifestly deficient,” and can be “summarily” rejected for this reason because “It is neither practical nor appropriate for us to comb the record on [his] behalf.” (In re Marriage of Fink, supra, 25 Cal.3d at p. 881.) As this court has repeatedly held: “ ‘What [Carson] attempts here is merely to reargue the “facts” as [he] would have them, an argumentative presentation that not only violates the rules noted above, but also disregards the admonition that [he] is not to “merely reassert [his] position at . . . trial.” [Citations.] In sum, [Carson’s] brief manifests a treatment of the record that disregards the most fundamental rules of appellate review. [Citation.] As Justice Mosk well put it, such “factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to [him] at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.” [Citation.]’ [¶] And fail it does, as we deem the argument waived.” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1166, quoting In re Marriage of Davenport, supra, 194 Cal.App.4th at p. 1531.)

The same result is reached with a different approach. Another theme of the trial court’s decision was that Carson repeatedly failed to sustain his burden of proof. When an appellant, particularly a plaintiff, is held to have failed to carry the burden of proof a special rule of review applies. “ ‘[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was as (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” (Sonic Manufacturing Technologies, Inc v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.)

It should be apparent that undertaking this demonstration would place an even greater burden on an appellant to acquaint the reviewing court with the entire record.

We now turn to Carson’s remaining contentions, neither of which is addressed in Lindenmeyer’s brief.

First, under the heading “Improper designation of a witness as [an] expert during trial,” Carson argues: “ ‘Expert Chris Vellarga testified that the fire sprinkler system’s capacity for flow or pressure was immaterial to the resulting fire damage.’ [This is a quote from the statement of decision.] a. Chris Vellarga was NOT declared an expert by Defendant. He was the insurance company investigator. Plaintiff was deprived of his right to depose any of Defendant’s experts . . . they declared none. b. Mr. Rowe, Plaintiff’s witness, was the ONLY expert witness declared for the trial.”

The gist of this appears to be that Carson objects to Vellarga being treated as an expert. Because the point would not be preserved for appeal unless Carson made a specific and timely objection at trial (Evid. Code, § 353, subd. (a)), we would expect Carson to tell us in his brief that he did so, with appropriate citation. He does not, so we treat the point as waived. In any event, given that Vellarga began his testimony with testimony concerning his 32 years as a fire investigator, including being a “arson investigator” for the State Department of Forestry and having been appointed by the State Fire Marshal to “a statewide sprinkler committee,” that he referred to “the scientific methodology,” and that he rendered an opinion as to the source of the fire (“This is [sic] an incendiary fire,” “[t]his is a straight-up arson fire,”) and the impact of the fire on the sprinkler system would certainly appear to be “sufficiently beyond common experience” (Evid. Code, § 801, subd. (a)) to warrant expert testimony. We further note that at one point in Carson’s cross-examination of Vellarga, the court remarked “We’re getting far afield of his area of expertise,” (italics added), which certainly should have alerted Carson that the court was treating Vellarga as an expert.

Second, the final conclusion in Carson’s brief is that he was the victim of judicial bias. All of the particulars reiterate his objections to the tentative statement of decision. This was inadequate to preserve the point for review. The statutory scheme for dealing with alleged judicial bias requires parties to raise the issue by a timely challenge in the trial court, and, if dissatisfied, to petition this court for a writ of mandate, which is the exclusive means of review. (Code Civ. Proc., § 170.3, subd. (d); Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 588.) Carson did not pursue these remedies.

Moreover, even if the point had been preserved for review, it would fail on the merits. Carson points to nothing in the actual transcript of the trial which proves bias. It was not until the court explained its reasons for finding against Carson that he raised the issue. It is true that the court employed some language which, while within its power as the trier of fact to draw inferences, can be deemed needlessly provocative. But Carson is utterly wrong in arguing the court “create[d] evidence” against him. Carson is in effect still arguing that the evidence favored him, and that only bias can explain why he did not win. But expressions of judicial reasoning, or even erroneous rulings, are not evidence of bias. (E.g., People v. Farley (2009) 46 Cal.4th 1053, 1110; Schmidt v. Superior Court, supra, 44 Cal.App.5th at p. 589; Moulton Niguel Water Dist. v. Columbo (2003) 111 Cal.App.4th 1210, 1219.)

DISPOSITION

The judgment is affirmed.

 

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Carson v. Lindenmeyer (A149691)