Filed 3/27/17 Aulisio v. Bancroft CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANTHONY AULISIO, JR., as Trustee etc.,

Plaintiff and Appellant,

v.

BILL BANCROFT et al.,

Defendants and Respondents.

G052329

(Super. Ct. No. 30-2012-00573872)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.

Anthony Aulisio, Jr., in pro. per., for Plaintiff and Appellant.

Law Office of Neal C. Swensen and Neal C. Swensen for Defendants and Respondents Bill Bancroft and BLB Enterprises Inc., doing business as Patrol One.

Law Office of Brian Kindsvater and Brian Kindsvater; Law Office of Neal C. Swensen and Neal C. Swensen for Defendants and Respondents PD Transport, Inc., doing business as Southside Towing and John Vach.

Law Office of Andrew W. Macrae and Jeffrey N. Redd for Defendants and Respondents Optimum Professional Property Management, Inc., and Debra Kovach.
* * *

Anthony Aulisio, Jr., as trustee of the CAAJ Leasing Trust, (hereafter Aulisio) appeals from the defense verdict and judgment entered after a jury found the defendant homeowners association management company, security patrol company, and vehicle towing company did not wrongfully cause his Jeep automobile (Jeep) to be towed, retained in a tow yard, and converted or sold. Aulisio contends we must reverse the judgment because of judicial bias and instructional error. He also argues the trial court should not have incorporated a judgment on the pleadings when it entered judgment based on the jury’s verdict. As we explain, there is no basis for reversal, and we therefore affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal in this unusual case. In the first, we held as a matter of first impression that the “sole trustee of a revocable living trust who is also the sole settlor and beneficiary of the trust assets he or she is charged to protect” does not violate the prohibition against the unauthorized practice of law (Bus. & Prof. Code, § 6125) by appearing on behalf of the trust in a lawsuit alleging tort claims because he or she is not acting in a representative capacity. (Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519-1520.) Rather, the person properly exercises the right of self-representation because his or her interests and those of the trust are one and the same. (Id. at p. 1525.)

Because the trial court had precluded Aulisio from proceeding to trial on his claims the defendants wrongfully interfered with his interest in a Jeep belonging to the trust, we reversed and remanded for a new trial on that issue. But we upheld the jury’s verdict in the initial trial that the defendants had not converted personal property inside the Jeep that Aulisio claimed belonged to him in his personal capacity.

Following remand, the court conducted a new trial concerning the Jeep, the jury entered a special verdict finding none of the defendants individually or collectively interfered wrongfully with Aulisio’s possessory interest in the Jeep, and the trial court entered a defense verdict and judgment.

II

DISCUSSION

A. Bias

Aulisio asserts the trial court made comments in front of the jury about the prior proceedings demonstrating bias and “admitted to making facial expressions and gestures of disgust” during Aulisio’s cross-examination of a defense witness, which also allegedly showed bias. He contends the trial court’s bias invaded his constitutional right to a fair trial. (U.S. Const., 5th & 14th Amends.)

Trial judges “should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.” (People v. Zammora (1944) 66 Cal.App.2d 166, 210.) “[W]hile a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist ‘“the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.”’” (People v. Freeman (2010) 47 Cal.4th 993, 996, quoting Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868, 877.) A party claiming judicial bias bears the burden of establishing facts to support his positition. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.) The record does not support Aulisio’s bias claim.

The issue arose when Aulisio alerted the jury that there had been a previous trial by reading a witness’s prior testimony while cross-examining the witness. The trial court asked, “Wait, what are you reading from,” but did not prevent Aulisio from continuing with his cross-examination. Aulisio complains that the defense attorney on redirect examination of the witness elicited that the witness had “been through a trial regarding this tow before” and “We got a verdict in our favor,” but Aulisio did not object to this testimony. Moreover, Aulisio omits from his account on appeal that the trial court sua sponte interjected in the witness’s testimony, “But I’ll have to say, the previous trial did not involve the car [Jeep].” Defense counsel acknowledged, “It did not,” and the court added, “Yeah, [it] sounded like you were saying it did. It did not. It involved the towing of the car and the contents of the car, but not the car itself. That’s why we’re here.”

Aulisio then began his recross-examination of the witness by suggesting he had prevailed on appeal regarding the towing of the Jeep, as follows: “Mr. Bancroft, first of all, the first trial on the Jeep, that was appealed and that’s why we’re back here. And because it was remanded from — .” (Italics added.) As it had just done with defense counsel, the trial court again interjected to explain that the first trial did not involve the Jeep, stating, “That’s not true either. Want me to tell the jury?”

Aulisio answered, “No,” but the court overruled his objection and explained to the jury: “We did have a trial in this matter. Mr. Aulisio sued for the contents of the car. I, because of a technical — because of a legal issue, I would not let him present evidence with respect to the car itself, but only the contents of the car. [¶] We went through a trial. The verdict was against Mr. Aulisio for the contents of the car. [¶] There was an appeal of the issue of why I wouldn’t let the case go forward as to the car. And as it turns out, I was wrong. And I should have let that issue go forward in the previous trial. The court of appeal[] said that I made a mistake, I should have let Mr. Aulisio represent himself in that other case and that he should have an opportunity to present the evidence that he’s presenting now [regarding] the car, on behalf of the trust which owns the car, the CAAJ Trust which we haven’t talked about a lot. . . .”

“[W]e’re here because of that, because I did not allow him to present evidence with respect to whether these parties are responsible for . . . the tow of the car. All we talked about last time was for the personal property in the car. And that’s why we had this previous trial.”

Aulisio continued with his cross-examination of the witness, but in a later colloquy outside the jury’s presence, he complained that the trial court had “said that the reason for the remand was on a technical issue,” while “I thought it was a due process issue” and “You said it was a minor technical issue.” The trial court clarified, “I didn’t say it was minor. I said it was a technical issue. . . . But that doesn’t really make any difference.” Aulisio now characterizes the trial court as mocking him when the court added, “[W]hat do you want me to say, a major nontechnical error,” offering to tell the jury “it was an error of constitutional proportion that I made . . . .” At the outset of the colloquy, the trial court had proposed an admonishment to the jury, which Aulisio refused as insufficient, as follows: “I will tell them, ‘Listen, the fact that there’s a previous trial is not to be considered at all,’ except to help them understand when somebody reads testimony, where that came up.”

After the trial, the defendants sought sanctions against Aulisio under Code of Civil Procedure section 128.7 for allegedly pursuing a frivolous lawsuit, which the trial court denied. At the hearing on the motion, Aulisio raised for the first time a claim that the trial court made facial expressions or gestures of disgust during the trial. Specifically, Aulisio asserted, “I think I lost the second case because you made gesture of disgust almost on your face when you addressed the jury, saying that it was — that I had lost the first case, and you didn’t let me continue the cross-examination because it was the defendants that brought up the issue that I had lost the first case . . . .” The court responded, “I don’t know about any disgust. I show a lot of disgust. I can’t be particular about that. I doubt you lost the case because of the look on my face. If they looked at me for any 10 seconds, they would see a disgusting face generally.” Aulisio characterizes the trial court’s statement as admitting having made a facial expression revealing bias.

The record does not support Aulisio’s claims of bias. He asserts bias was evident in the trial court’s statements that Auliso lost the first trial and it was only remanded on a technicality, “poisoning the jury” against him. But Aulisio himself brought up the first trial by referring to prior testimony in his cross-examination, and made no objection when the defense witness claimed the first trial represented a victory concerning the towing of the Jeep. The trial court accurately and evenhandedly corrected both the defense and Aulisio by explaining that the previous trial did not involve the Jeep. In directing the jury’s attention away from the prior trial because it involved the vehicle’s contents, not the Jeep, the court said nothing to the jury about how those items may have disappeared from the vehicle or Aulisio’s theories of liability concerning those items. Nor did the court recite any evidence from the prior case, notify the jury of any issues considered in the case, nor state or suggest it had any bearing on the present trial, nor that it was controlling in any way.

The court was also correct that, for the lay jurors to whom it directed its comments, the reversal was of a “technical” or “legal” nature of no concern to them. Most importantly, in distinguishing the prior trial, the court properly focused the jury on the issue in the present trial, namely, “whether these parties are responsible for . . . the tow of the car.” We do not view the trial court’s self-deprecating reference to his “disgusting face” as an admission of bias, but rather an attempt at humor. Aulisio’s failure to object to any perceived negative facial expressions or alleged bias at the time of trial forfeits the issue. (People v. Seumanu (2015) 61 Cal.4th 1293, 1320 [“a specific and timely objection to judicial misconduct is required to preserve the claim for appellate review”].) This is particularly true here where Aulisio refused the trial court’s offer to admonish the jury; we must presume the jury will heed such admonitions. (People v. O’Malley (2016) 62 Cal.4th 944, 999; People v. Adcox (1988) 47 Cal.3d 207, 253.) Aulisio’s claim of bias fails.

B. Other Issues

Aulisio contends the trial court erred by “allowing defendants to submit evidence, argument and a jury instruction on the defense of failure to mitigat[e]” damages. Aulisio forfeited his challenge to any evidence that may have been admitted on this topic (he cites none) by failing to object below. (Evid. Code, § 353.) He only raised an objection as the trial court was about to instruct and submit the case to the jury, but he does not identify any particular instruction as an erroneous statement of law. Instead, he argues generally that the court improperly instructed the jury “that even if it were shown that the towing was unlawful, plaintiff had a duty to recover his property by paying the fees assessed by the tow company to comply with his duty to mitigate under Civil Code section 3336.”

Aulisio’s argument fails because the jury found the defendants did not convert or interfere with his property as he claimed. In other words, the result would have been the same whether or not the trial court gave the instruction on mitigating damages because the jury did not reach the issue of damages, determining instead in a special verdict that defendants bore no liability. The gravamen of Aulisio’s claim against defendants was that they wrongfully caused his Jeep to be towed, retained at the tow yard, and then disposed of or otherwise converted. But the trial court properly instructed the jury that liability and damages were different issues.

The court instructed the jury: “If you decide that Plaintiff . . . has proved his claim against [the defendants], you also must decide how much money will reasonably compensate Plaintiff for the harm. This compensation is called ‘damages.’” (Italics and bold added.) The court also instructed the jury, “The arguments of the attorneys are not evidence of damages. Your award must be based on your reasoned judgment applied to the testimony of the witnesses and the other evidence that has been admitted during trial.” As to mitigation in particular, the trial court instructed the jury: “If you decide any of the defendants are responsible for the original harm, Plaintiff . . . is not entitled to recover damages for harm to his property that Defendants prove Plaintiff could have avoided with reasonable efforts or expenditures.” (Italics and bold added.)

Aulisio argues a victim of conversion is not obliged to pay even a nominal sum to obtain his or her property from a person who was involved in taking it, which Aulisio compared below to holding the property “hostage.” Even assuming arguendo that Aulisio is correct, however, the issue is moot because the jury resolved liability against Aulisio. The instructions properly advised the jury to reach the issue of damages only if it concluded “any of the defendants are responsible for the original harm.” But the jury in a special verdict form specifically determined that none of the defendants “wrongfully interfer[ed] with his use o[r] possession of the Jeep vehicle [or] wrongfully refus[ed] to return the Jeep vehicle.” Absent liability, any alleged instructional error was necessarily harmless and furnishes no basis for reversal.

Finally, Aulisio asserts the trial court should not have incorporated in its entry of judgment both a judgment on the pleadings and judgment based on the jury’s verdict. The trial court’s order entering judgment states that “[b]ased upon the verdict of the jury, judgment [is entered] in favor of each of the defendants and against Anthony Aulisio, Jr., as trustee of the CAAJ Leasing Trust, on all claims.” It further states, “The court also bases this judgment on its ruling that the jury’s finding in the previous trial bars Mr. Aulisio, as trustee for the CAAJ Leasing Trust, from relitigating the present claims.”

The defendants had filed a motion before trial contending the first trial and jury verdict concerning Aulisio’s personal property in the Jeep required judgment in their favor, precluding a “retrial” based on res judicata and collateral estoppel principles. The trial court deferred ruling on the motion, but effectively denied it as to Aulisio’s claim on behalf of the trust for conversion or wrongful interference with the Jeep. It appears that was the only issue tried to the jury. Obviously, once the jury resolved that issue, the court could not also enter judgment on the same issue based on the defendants’ motion.

But Aulisio does not include his complaint in the record on appeal, nor any relevant documents from the first trial. From the defendants’ motion, it appears that the complaint filed on behalf of both Aulisio personally and on behalf of the trust included not only claims for conversion, but also trespass to chattels, extortion, intentional infliction of emotional distress, and conspiracy. It also appears the trial court sustained demurrers to those causes of action, except conversion or trespass to chattels, during the initial proceedings before the first trial. Or those issues were otherwise resolved, though it is not clear whether at the time of those rulings Aulisio was acting on behalf of the trust or whether those rulings expressly applied to the trust’s claims. In any event, it does not appear Aulisio ever asserted any of those causes of action on behalf of the trust after remand in the present proceedings now on appeal.

In light of this record and the unique procedural history of this case, we conclude the entry of judgment simply reflects that the jury’s verdict disposes of any and all claims related to the alleged conversion of the Jeep, and that the court granted judgment on the pleadings to dispose of any other claims. As Aulisio provides no record of what those claims were, their specific elements, nor that they remained viable after the jury’s verdict, or that he wanted to continue litigating them, or any basis or authority on which he was entitled to do so, we cannot say there was any error in entry of judgment on the pleadings on those claims. Construed in this light, there was no error in the judgment entered, and certainly no reversible error.

III

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.