Filed 1/30/20 Carmichael Canterbury Village etc. v. Joseph CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

CARMICHAEL CANTERBURY VILLAGE OWNERS ASSOCIATION,

Plaintiff, Cross-defendant and Respondent,

v.

MICHAEL JOSEPH,

Defendant, Cross-complainant and Appellant.

C077981

(Super. Ct. No. 34-2008-00013502-CL-OR-GDS)

Appellant Michael Joseph engaged in disputes with a homeowner’s association (HOA), the Carmichael Canterbury Village Owners Association (CCVOA), about architectural modifications he wanted to make in order to sell a home for a quick profit. The case proceeded to trial on Joseph’s cross-complaint against the HOA, after the HOA dismissed its complaint against Joseph. The jury in a special verdict found that a HOA “hearing” to discuss Joseph’s CC&R violations did not violate due process, but the HOA did breach its contract (Covenants, Conditions, and Restrictions or CC&Rs) and its fiduciary duty, and intentionally inflicted emotional distress.

The jury awarded Joseph damages for emotional distress only. Evidence of economic loss was restricted by the trial court’s exclusion of evidence of damages not presented by Joseph during discovery. The record suggests Joseph may have had difficulty in showing economic loss caused by the HOA, because Joseph got the house for free when his partner, who had supplied the funds, abandoned the project with the expectation he would receive a share of profits when Joseph sold the house, yet Joseph never sold the house and instead lost it in foreclosure due to his own nonpayment of the mortgage.

Joseph represented himself at trial but is represented by counsel in this appeal from the judgment insofar as it is unfavorable to him. Joseph contends the trial court erred by (1) refusing to instruct the jury that the HOA violated his civil due process right to a “reasonable” HOA hearing; (2) ruling in limine to exclude Joseph’s evidence of economic damages; (3) giving the jury a defective special verdict form that omitted a line to enter damages for breach of fiduciary duty; and (4) precluding punitive damages. Joseph asks that we reverse and remand for further trial on due process, damages for breach of contract and fiduciary duty, and punitive damages.

The HOA also filed an appeal but later abandoned it.

We reject Joseph’s contentions and affirm the judgment.

FACTS AND LEGAL PROCEEDINGS

We note the trial court presented Joseph’s cross-complaint to the jury as a complaint to avoid jury speculation about HOA’s lawsuit, though the parties were allowed to mention that the HOA had cited Joseph for violating the CC&Rs.

I

General Background

In 2007, Joseph — a real estate broker with experience in construction partnered with nonparty Carlton Robinson, to remodel a home and sell it for a profit. Robinson provided the money and/or investors with money, while Joseph was to deal with the HOA and oversee the improvements. Robinson bought the home at 2533 Winsford Lane in CCVOA’s Carmichael development for about $300,000. The title was in Robinson’s name, and he paid all expenses. Joseph paid nothing.

This was Joseph’s first “flip” and he expected it to go quickly — two or three months.

In February 2007, Joseph submitted to the HOA a request for architectural modifications signed by Robinson, which included turning second floor attic space into a new east bedroom with a window on the new east wall. They also wanted to install a window in the west wall of a bedroom on the first floor and make other exterior modifications.

The HOA initially approved most of the request, but approved only a smaller window in a different location on the east wall, because the proposed window would have given a view into the bathroom of the homeowner to the east, who also happened to be president of the HOA board.

In March 2007, an east window was installed that was not approved by the HOA. The HOA rescinded approval for an east window. The HOA later rescinded approval of the west window after a hole was cut in the west wall. Throughout the process there was much back-and-forth with alternate proposals and claims about Building Code requirements, and changes approved and rescinded by the HOA, and delays for which each side blamed the other, and Joseph’s asserted belief that board members were biased against him, particularly the president and vice president who were his next-door neighbors to the east and west. The details need not concern us for purposes of resolving this appeal.

On June 5, 2007, Robinson was fed up with the project and the decline in the real estate market and believed the HOA board wanted the project to fail. Robinson withdrew from the project and transferred title to the property to Joseph at no cost to Joseph. Joseph was supposed to pay the mortgage and all expenses going forward. If Joseph made a profit from selling the house, he was to pay a portion to Robinson. Joseph never paid anything to Robinson. Instead, Joseph failed to pay the mortgage and ultimately lost the home to foreclosure (apparently in December 2008).

Before the foreclosure, the HOA on August 27, 2007, held a board meeting to discuss modifications made without approval. Joseph conceded he received notice of the meeting, the issues that would be discussed, and that the HOA’s board, manager, and attorney would be present. He nevertheless complained at trial that he did not have advance notice of exactly what evidence or arguments the HOA would be using; the HOA’s attorney “grilled” him for two and a half hours at this HOA “hearing”; and he thinks the hearing was unfair because two of the decisionmakers were his neighbors to the east and west and therefore had a conflict of interest.

After the meeting, which failed to satisfy Joseph, the HOA offered mediation, but he refused.

At some point, Joseph moved into the property and rented rooms to three tenants. He did not try to sell the property, even though it passed inspection by the Building Department, because he thought the value would be diminished by the enduring dispute about windows. After Joseph eventually lost the property to foreclosure, the east and west windows were apparently removed, and the home was sold to a new owner.

In 2008, the HOA filed suit against Joseph but later dismissed it without prejudice in 2014. Meanwhile, Joseph filed his cross-complaint against the HOA in October 2010. The trial court denied the HOA’s motion for summary judgment/adjudication of the cross-complaint in September 2013.

II

Discovery

During discovery (the history of which was presented to the trial court in the motion in limine), the HOA was unable to get straight answers from Joseph about what damages he was claiming.

Joseph says he gave the HOA over 1,600 pages of documents (which were not numbered before the close of nonexpert discovery on July 14, 2014, and he produced about 400 more pages of documents by the August 11, 2014, deadline of a discovery order, for a total of 2,015 pages. Yet, on appeal, as in the trial court, he has failed to identify any document showing specific damages other than his claim for the $345,000 difference between the purchase price and the post-remodel appraisal of $700,000. This obviously did not suffice as damages caused by the HOA and sustained by Joseph; he paid nothing for the house and then defaulted on the mortgage and lost the house to foreclosure.

For example, Joseph’s interrogatory answers in February 2011 identified his property damages as “Diminution of Property Value, Obstruction of Property Improvements & Maintenance, Obstruction of Property Alienation, Interference with adherence to California Building Code, Interference with real property Health and Safety concerns, Interference with Economic advantage, Interference with Neighborhood Home values.” He claimed the amount of damages “is up to $700,000,” the amount of the October 2007 appraisal. He also said he lost future income in an amount “unknown” to be calculated by a method “unknown.” When asked to produce all documents supporting his claim for damages, he said he would but did not.

At his deposition on November 3, 2011, Joseph did not bring any documents as demanded. He recalled the original budget for the remodel being about $50,000 — all of which was to be paid by Robinson. He did not know and would not guess what expenses he incurred after taking over ownership of the property but thought it was more than $5,000. He planted ornamentals in the yard, “probably with assistance” that “may have been friends or workers,” and “[a]s a general rule, if somebody helped me, I paid them,” but “I do not recall having invoices.” He planned to “do research after I attend a class that explains how to delineate economic loss.”

At his deposition on December 16, 2011, Joseph presented a “preliminary working draft” of damages dated December 15, 2011. This is apparently the document to which Joseph refers as a “pro forma.” It listed a $355,000 purchase price in January 2007, and appraised value of $700,000 in 2007, for a difference of $345,000. It then listed categories of claimed loss with no numbers attached — loss of capital and assets, loss of profit, loss of income, loss of market timing/value, loss of equity, cost of delay, loss of business and business relationships, loss of credit, and loss of future projects/profits. Joseph says he also produced a 50-page “delta” package (with each page number appearing inside a small triangle). Other than the inadequate “preliminary working draft,” Joseph fails to point to any specific evidence of damages in those pages. As to that preliminary draft, Joseph testified at deposition that it was “not submitted as a claim for damages” but merely as a “preliminary working draft from which I will calculate damages.”

He estimated the remodel cost at $50,000. When asked what he spent on the project, Joseph said, “approximately zero to $50,000.” When asked if he paid Robinson anything for the property, Joseph did not recall. When Joseph was asked if he recalled spending any of his own money, he said, “Not at this point.” When asked if he spent his own money paying for contractors to perform work on the property, he said he did not recall but “Much of the purchase and project was financed, and through investors, and with investors.”

At deposition on January 30, 2012, Joseph showed up with a box of documents he said he had not previously produced. But he admitted he had the documents in his possession yet did not bring “dozens or hundreds of receipts” relating to the project that he had gathered but not put in order.

The HOA filed motions to compel. On December 3, 2013, the law and motion court ordered Joseph to respond to the request for production of documents, Set Two (which did not relate to damages), and imposed sanctions against him. The court said the HOA’s request for an order compelling production was premature, as the motion sought only a response, not production.

Joseph produced a list titled “DAMAGES,” as a July 25, 2014, “elaboration on preliminary working draft of 12-15-11.” This document listed a purchase price of $362,000 and an appraised resale value of $700,000, for a difference of $338,000. It also listed items such as $250,000 loss of income due to HOA’s delay and litigation, $150,000 cost of delay (additional holding costs, which Joseph did not pay, and living expenses), $200,000 loss of business, $250,000 loss of business relationships and good will, $500,000 loss of credit due to foreclosure and credit collapse, $800,000 loss of future projects for seven years, $200,000 for financial collapse, $400,000 for loss of market timing, and unspecified amounts for pain and suffering, legal costs, and punitive damages.

On July 28, 2014, the law and motion court ordered Joseph to respond to supplemental interrogatories and produce documents to Request, Set Two, by Monday, August 11, 2014 (two days before trial). The court did not impose monetary sanctions, because Joseph did not oppose the motions.

Joseph produced documents on August 11, 2014, pursuant to the court order for Set Two. He asserted they would prove damages (though Set Two did not request documents about damages). On appeal, Joseph says he produced about 400 pages on that day, but he fails to direct our attention to any specific document to prove damages.

III

The Rulings to Exclude Evidence of Damages

Trial began on Wednesday, August 13, 2014, with consideration of multiple motions in limine (MILs) filed by the HOA, including MIL No. 2 to exclude all evidence of damages and MIL No. 4 to exclude all evidence not produced in discovery. The HOA presented to the court the history of Joseph’s evasion of his discovery obligations as to what damages he claimed.

Joseph opposed the motions, arguing that, to the extent he failed to comply with discovery, it was the HOA’s fault for thwarting his project, rendering him “nearly indigent” and unable to retain a damages expert or an attorney. Joseph also pointed to the mountain of documents he did produce covering all issues (e.g., design plans for the remodel, applications to the HOA board, etc.), as if that satisfied his obligation to show calculation of damages. Although he said he discussed the appraisal in his December 2011 deposition, he did not direct the court’s attention to any such discussion.

After exhaustive argument and review of the discovery history, the trial court concluded Joseph had failed to provide meaningful responses to discovery. The court issued an initial ruling granting in part MIL No. 2, as follows: “Evidence in the form of testimony or documents not produced before the close of discovery [July 14, 2014] is excluded. However, Mr. Joseph may testify to his calculation of damages caused by the conduct of defendants, so long as that testimony is not based upon documents that were not produced before the close of discovery. To the extent that Mr. Joseph intends to testify to his calculation of damages, he must establish a foundation as to the source of his knowledge and the facts he has relied upon in making those calculations and that they are based on documents that were actually produced before the close of discovery. To the extent his testimony is inconsistent with testimony given at deposition, he can be impeached with the introduction of his prior testimony.”

The court continued to entertain Joseph’s arguments about evidence of damages throughout the trial.

After its initial ruling, the court told Joseph to present any documents he wanted to offer at trial in support of his damages claim. Joseph did so, and the HOA objected to documents — a May 2007 pro forma; a Michael Joseph business plan, and his August 2014 credit report, all of which were first produced the day before trial. The HOA sought exclusion because Joseph was not prepared to discuss any of this during discovery, and producing it at the eleventh hour left the HOA without opportunity to investigate, follow up, or retain experts.

The court questioned Joseph as to whether he produced certain documents in response to discovery requests about damages. Joseph said those documents were within the records of both parties. The court noted the problem that Joseph’s answers to interrogatories did not articulate or identify any specific claim for damages and said he had to research the matter. His response to the first request for production of documents regarding damages, served in February 2011, said he would produce documents, yet he did not produce them. He failed to supplement his interrogatory answers in May 2014, which led to a court order compelling him to do so. In his depositions, Joseph repeatedly said he did not know what damages he was claiming.

The court affirmed its in limine ruling and said that, if Joseph wanted to offer testimony based on documents, he had to show those documents were served on the HOA before the close of discovery. The court added that Joseph could testify about damages for which he did not rely on documents, but his deposition testimony could be used to impeach him. If it appeared his testimony was based upon reliance on documents not produced in discovery, the court would strike the testimony.

The court did not believe that Joseph met his discovery obligations. Even accepting his assertion that he made diligent efforts, the court said that looking at the overall time frame, Joseph’s intimate knowledge of transactions both before and after he took title to the property, “a long, long time went by before you came up with anything.”

Joseph complained he could not point to any deposition testimony about damages because he was unable to afford a copy of his deposition transcripts. The trial court gave Joseph the opportunity to review the deposition transcripts lodged with the court, but Joseph complained his time to do so during trial was limited. On appeal, he blames the trial court for not allowing him to take the transcripts home.

The trial court itself reviewed Joseph’s deposition transcripts, located discussion of the $700,000 appraisal, and said it would allow limited trial testimony about the appraisal. The trial court stated that, although Joseph had not paid the $50,000 expenses paid by Robinson, Robinson’s costs could be some evidence of a cost basis in calculating the gain anticipated from resale of the property. Yet Joseph remained unprepared to discuss damages during all of his depositions.

The court concluded, after giving the matter more thought during a recess, that Joseph did not comply with “the letter or the spirit of the California Discovery Act.” The court said its initial ruling would stand, that evidence of damages was excluded except insofar as Joseph could establish he discussed it in deposition.

The court cut off Joseph’s continuation of argument, observing the trial was already taking much longer than it should, because Joseph was “feeling your way along as we go,” and they were already going to lose one juror because of the delay.

There was almost no evidence of economic loss to Joseph at trial. Jim Baritot, a contractor who did some work on the home, testified he knew Joseph was having financial difficulties and might not have been able to pay immediately, but Baritot took the job anyway. Baritot said he was owed a significant amount of money which Joseph promised to pay if he won this lawsuit. Joseph had “already made some payments” but no amount was given.

IV

Subsequent Proceedings

After completion of testimony, the trial court denied HOA’s motion for directed verdict, noting there was some evidence of damages, or the jury could award nominal damages.

The court instructed the jurors not to speculate or guess in awarding damages, and “To recover damages for lost profit, Michael Joseph must prove that it is reasonably certain he would have earned profits but for CCVOA’s breach of the contract. [¶] To decide the amount of damages for lost profit, you must determine the gross or total amount Michael Joseph would have received if the contract had been performed and then subtract from [that] amount the cost, including the value of all expenses Michael Joseph would have had if the contract had been performed. [¶] You do not have to calculate the amount of the lost profits with mathematical precision, but there must be a reasonable basis for computing the loss.” If the HOA breached the contract but did not harm Joseph, the jury could still award him nominal damages.

The court further instructed the jury that, even if the HOA breached the contract and caused harm, “Mr. Joseph is not entitled to recover damages for harm if CCVOA proves he could have avoided [that harm] with reasonable efforts or expenditures . . . in light of the circumstances . . . .”

HOA’s counsel argued to the jury that Joseph got the property for free, never paid for anything related to it, and could have avoided losing the home by making the mortgage payments.

The parties submitted the case to the jury on special verdict forms that omitted breach of fiduciary duty entirely and offered as the only choices for damages (1) noneconomic damages for emotional distress, and (2) loss of fair market value of the home for breach of contract or violation of due process.

When the jury during deliberations asked about breach of fiduciary duty, the court provided Special Verdict 3.5 covering breach of fiduciary duty to Joseph. The jury later asked, “What type of damages apply to special verdict 3.5? (i.e., noneconomic damages for emotional distress or loss of fair market value or separate damages?)” The court responded: “Economic damages for the loss of the fair market value of the home.”

The jury returned a special verdict finding:

Special Verdict -1: HOA breached its contract causing harm.

Special Verdict – 2: HOA inflicted emotional distress, either intentionally or with reckless disregard.

Special Verdict – 3: The HOA did not convene a hearing on August 27, 2007, without reasonable notice to Joseph.

Special Verdict – 3.5: The HOA breached its fiduciary duty causing harm.

Special Verdict – 4: “[W]hat are Michael Joseph’s damages?

“1. Non-economic damages for emotional distress.

“Enter the amount below if you find that CCVOA is liable to Michael Joseph under intentional infliction of emotional distress. $100,000.00

“2. Loss of fair market value of the home if you find CCVOA is liable to Michael Joseph for breach of contract or violation of due process. $ 0.00

“Total: $100,000.00.”

The trial court denied motions for new trial by both sides. In denying Joseph a new trial, the court found his excuses about discovery “preposterous.”

DISCUSSION

I

Pro Per Status

Joseph is represented by an attorney on appeal but handled the trial in propria persona. A running theme through Joseph’s presentation in the trial court and on appeal is that any flaw in his case was due to his lack of legal expertise. Although he acknowledges pro per status does not afford him special treatment, as the court instructed the jury, Joseph has consistently implied he should get special treatment because: He is not a lawyer; he assertedly could not afford a lawyer; it was the fault of the HOA and its board members that he could not afford a lawyer; he could not afford copies of his deposition transcripts and the trial court would not let him take home the deposition transcripts lodged with the court. Our review of the record shows that the trial court displayed remarkable indulgence in allowing Joseph to belabor meritless arguments over and over again, and the court assisted Joseph by the judge himself reviewing Joseph’s deposition transcripts.

Generally, a litigant who represents himself in pro per is held to the same rules of procedure as attorneys, and pro per status affords the litigant no special treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 (Rappleyea); Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 (Kobayashi).)

Joseph misappropriates a snippet from Alan S. v. Superior Court (2009) 172 Cal.App.4th 238 (Alan), which in a different context spoke of “pro pers thrashing around in an alien environment, where a local court had . . . elevated ‘efficiency and conservation of judicial resources’ over ‘the countervailing interests of litigants as well as the interest of the public in being afforded access to justice.’ [Citation.] In each case, unfortunately, the motto ‘justice for all’ has come perilously close to ‘justice for those who can afford it.’ ” (Id. at pp. 262-263, citing Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1353.)

However, Alan involved the very different context of a child custody case governed by family law statutes that expressly declare the Legislature’s goals of assuring that “each party has access to legal representation . . . to preserve each party’s rights” (Fam. Code, § 2030, subd. (a)(1)) and that pendente lite orders for payments of money not create an imbalance in the parties’ relative financial resources to present their case adequately. (Alan, supra, 172 Cal.App.4th at pp. 241-242.) Elkins similarly involved family law and invalidated a local court rule that, for the convenience of the court, required parties in marital dissolution cases to present their case by written declarations rather than live testimony. (Elkins, supra, 41 Cal.4th at pp. 1344-1346.) Elkins did not address treatment of pro per litigants beyond mentioning that the husband, whose evidence was excluded due to his violation of the local rule, represented himself. (Id. at p. 1344.)

Rappleyea, supra, 8 Cal.4th at page 984, held the trial court abused its discretion in denying a motion by pro per defendants to set aside a clerk’s entry of default under unique circumstances where the clerk erred in misinforming the defendants as to the filing fee, and the plaintiff’s lawyer alternately lulled the defendants into believing he would stipulate to vacate the default and misinformed them they had no grounds to vacate the default. (Id. at pp. 985-986, conc. opn. by Arabian, J, joined by George, J.) The Supreme Court added, however: “[W]e make clear that mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation. Although in reaching our decision we have incidentally considered whether parties in defendants’ position [pro per Arizona residents] would reasonably have relied on advice from the clerk’s office and whether they would have understood the meaning of a default, our focus is on the clerk’s and plaintiff’s incorrect advice rather than on defendants’ ill-advised self-representation.” (Id. at pp. 984-985.) “Procedural law cannot cast a sympathetic eye on the unprepared, or it will soon fragment into a kaleidoscope of shifting rules.” (Id. at p. 979.)

Kobayashi, supra, 175 Cal.App.4th 536, indicated that the rule of professional conduct — that an attorney may not intentionally mislead a court — applies to a pro per litigant. (Id. at p. 543 [pro per vexatious litigant tried to avoid that label by falsely claiming he was a victim of mistaken identity].) “To say otherwise would be to give pro per litigants . . . an unfair advantage over parties represented by attorneys bound by that code.” (Id. at p. 543.)

We conclude Joseph’s pro per status does not afford him any special treatment in this case.

II

Due Process

The HOA meeting was held under one statutory provision (Civ. Code, § 5855) of the Davis-Stirling Act (Civ. Code, §§ 4000-5985) governing common interest developments. (Statutory section references that follow are to the Civil Code.) Section 5855 requires that “[w]hen the board is to meet to consider or impose discipline upon a member, or to impose a monetary charge as a means of reimbursing the association for costs incurred by the association in the repair of damage to common area and facilities . . . , the board shall notify the member in writing . . . at least 10 days prior to the meeting,” and “[t]he notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined or the nature of the damage to the common area and facilities for which a monetary charge may be imposed, and a statement that the member has a right to attend and may address the board at the meeting.” (§ 5855, subds. (a), (b).)

After an unreported discussion about jury instructions, Joseph stated on the record that, despite section 5855’s limited requirement for notice of the hearing, due process demanded more — substantive fairness and procedural fairness such as an unbiased decisionmaker and advance notice of specific evidence or arguments the Board planned to use. After further unreported discussion about jury instructions, the court initially instructed the jury that Joseph had to prove the HOA rescinded architectural modifications without written notice.

After further discussion between court and counsel during jury deliberations, the trial court sent to the jury room a modified due process instruction that deleted the portion about rescission of approval without notice and substituted that Joseph must prove that the HOA “intentionally convened a hearing without written notice that contained at a minimum the date, time and place of the meeting, the nature of the proceedings and that Mr. Joseph had the right to attend and address the board at the meeting.”

The jury rejected the due process claim.

On appeal, Joseph argues that his due process claim raised issues of procedural and substantive fairness (constitutional and common law) apart from the right to receive notice of the hearing, and the court erred in failing to so instruct. Procedurally, he complains he was not notified in advance of what evidence and arguments the Board might present, was not notified he could bring an attorney, and was subjected to an unfair “grill[ing]” by the HOA’s attorney. Substantively, Joseph complains that, of the three-member HOA board, two were biased due to their status as complainants/witnesses as well as decisionmakers.

Although the HOA argues Joseph forfeited his due process contention by failing to propose an appropriate jury instruction, we reject the contention on its merits.

Joseph does not dispute that the HOA satisfied section 5855’s notice requirements, or that section 5855 addresses only notice, not reasonableness of a hearing. He argues his due process right to a fair hearing is not defeated by the Legislature’s failure to include in the Act an express provision for a reasonable hearing.

However, the Davis-Stirling Act does contain express provisions for reasonable hearings — under other provisions governing dispute resolution, none of which were pursued by Joseph, and he rejected the HOA’s offers of alternative dispute resolution.

Thus, in addition to section 5855, the Act requires HOAs to provide “a fair, reasonable, and expeditious” dispute resolution procedure, at which each side may be assisted by an attorney at their own cost to explain their position. (§§ 5905, 5910.) If the HOA fails to do so, the member may request a default meet and confer procedure, for which the board shall designate one director to meet and confer, and the parties may be assisted by an attorney at their own cost. (§§ 5905, subd. (c); 5915.) Before filing a civil lawsuit, the parties must endeavor to submit their dispute to alternative dispute resolution (ADR), meaning “mediation, arbitration, conciliation, or other nonjudicial procedure that involves a neutral party in the decisionmaking process.” (§§ 5925-5930.) ADR may be requested by any party to a dispute. (§ 5935.) A failure to accept such request is deemed to be a rejection. (§ 5935, subd. (c).)

Joseph fails to show he ever availed himself of any of these procedures. That the Act allows the homeowner (but not the HOA) to decline to participate in the alternative options for dispute resolution (§ 5910, subd. (d)) does not entitle Joseph to demand a full panoply of due process rights at a section 5855 hearing, as he asserts.

Joseph fails to offer any analysis or authority that the Davis-Stirling Act as a whole is deficient in protecting a homeowner’s right to fair procedure or due process. He merely cites authority that HOAs are clothed with a public interest and have a fiduciary duty to homeowners. (E.g., Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 389 [courts will enforce CC&Rs unless they are arbitrary, violate a fundamental public policy, or impose burdens substantially outweighing benefits]; Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772 [to obtain injunctive relief against a homeowner, an HOA must show it followed its own standards and procedures and acted fairly and reasonably]; Cohen v. Kite Hill Community Association (1983) 142 Cal.App.3d 642, 646 [in reviewing a homeowner’s application for architectural modification to build a fence, the HOA owed a duty to the applicant’s neighbor to act in good faith and avoid arbitrary action].)

Joseph cites multiple cases without a discussion that would reveal them as inapposite. For example, Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, found a common law violation of fair notice when an orthodontist society denied a dentist’s application for membership without giving him an opportunity to challenge the society’s view that he violated a society rule prohibiting the delegation of orthodontic services to a dentist not educationally qualified for membership. (Id. at p. 550.)

We conclude Joseph’s due process arguments are without merit.

III

Exclusion of Evidence of Damages

Joseph claims he did his best to comply with his discovery obligations and should have been allowed to present evidence of damages at trial. Yet even on appeal he fails to explain exactly what damages he actually sustained or how he calculated them. As indicated, Joseph produced a mountain of documents covering all issues (e.g., design plans for the remodel, applications to the HOA board, etc.), as if that satisfied his obligation to show what damages he sustained and how they were calculated. It did not.

Joseph also argues the court’s exclusion of evidence of damages in a MIL elevated discovery rules over substance and deprived him of access to justice and procedural protections he would have received had the matter been decided in a different type of motion.

We have recounted in detail the discovery history and the trial court’s ongoing treatment and resolution of the HOA’s motion to exclude evidence.

We now conclude Joseph fails to show grounds for reversal.

A. Motions in Limine Generally and Standard of Review

Motions in limine are designed to facilitate management of a case by deciding difficult evidentiary issues in advance of trial, e.g., evidentiary issues where attempts to “ ‘unring the bell’ ” would be unduly prejudicial or futile. (McMillin Companies, LLC v. American Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 529 (McMillin).) In limine rulings are not binding and are subject to reconsideration upon full information at trial. (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 90, fn. 6.)

Trial courts may exercise their inherent powers to permit other uses of motions in limine, e.g., by construing such motion as a motion for judgment on the pleadings, but when used in such fashion they become substitutes for dispositive statutory motions. (McMillin, supra, 233 Cal.App.4th 529.) Dispositive motions in limine are disfavored. Motions in limine are not designed to replace the dispositive motions prescribed by the Code of Civil Procedure, such as summary judgment motions, and when used in this fashion they may circumvent procedural protections provided by the statutory motions or by a trial on the merits; they risk blindsiding the nonmoving party and could infringe on the right to a jury trial. (Blanks v. Seyfarth Shaw, LLP (2009) 171 Cal.App.4th 336, 375.) The better practice in nearly every case in which an in limine motion is brought as a substitute for a dispositive statutory motion is to afford the litigant the protections provided by trial or by the statutory processes. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530 [evidence that brokerage was disqualified from doing business as a California corporation at the time of joint venture agreement between broker and investor to develop real property was inadmissible in broker’s breach of fiduciary duty action against investor, as the evidence had little probative value and the potential of high prejudice].)

Motions in limine rulings are generally reviewed for abuse of discretion (McMillin, supra, 233 Cal.App.4th at p. 529), as are all trial court rulings on admissibility of evidence (Pellegrini, supra, 165 Cal.App.4th at p. 530). Where a motion in limine becomes a substitute for a dispositive motion — such as summary judgment, judgment on the pleadings, or nonsuit, which require a ruling as a matter of law in the first instance — we apply de novo review on appeal. (McMillin, at p. 529.)

Here, the motion in limine ruling was not dispositive, because the court said it would allow evidence of damages, as long as Joseph could show he presented it during discovery, as he claimed he did. Moreover, the court allowed Joseph to revisit and re-argue the ruling many times throughout the course of the trial. Nevertheless, it was clear and remained clear that Joseph abused the discovery process and failed to disclose evidence of any damages sustained by him.

We conclude the abuse of discretion standard applies, but even if we were to apply de novo review, we would reach the same result that the trial court properly excluded evidence of damages.

B. The Trial Court’s Evidentiary Rulings Were Proper

The trial court’s finding of discovery abuse supports the exclusion of evidence of damages. The trial court may impose “an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c).) “Misuses of the discovery process” include, but are not limited to, failing to respond or submit to an authorized method of discovery; making an unmeritorious objection without substantial justification; making an evasive response to discovery; and disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d)-(g).)

Generally, evidence sanctions for discovery abuse are imposed only after a motion to compel is made and granted, and the party to be sanctioned has failed to comply with that order. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.) However, violation of a discovery order is not a prerequisite to evidence sanctions when the offending party has engaged in a pattern of willful discovery abuse that causes the unavailability of evidence. (Ibid.) If it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent. (Ibid.)

New Albertsons held that destruction of video recordings did not support statutory or nonstatutory discovery sanctions, because (1) there was no court order compelling Albertsons to produce the video recordings, and (2) there was no failure to comply with a discovery obligation in that Albertsons had objected to the document demand and there was no timely motion challenging the objection or order compelling production. (Id. 168 Cal.App.4th at pp. 1427, 1434.)

In Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 427-428, we held that where a party objecting to expert testimony under a statute would be entitled to mandatory exclusion but for his own failure to timely comply with a discovery statute, the trial court can still sustain the objection as a matter of discretion.

Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, held that repeated conduct of failing to comply with discovery obligations justified a trial court’s finding of abuse of the discovery process and imposition of the sanction of dismissal. Failure to comply with a court order compelling discovery was a prerequisite for the ultimate sanction of dismissal, and even though the appellants argued they had complied with the court order, their responses consisted of objections, not answers. (Id. at p. 488, reversed on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.)

Here, although Joseph complied with the final discovery order compelling production by August 11, 2014, that order related to Set Two of the requests for production of documents, which did not ask for documents relating to damages. That order is nevertheless relevant because it shows Joseph’s continuing disregard of his discovery obligations which necessitated the HOA’s motion to compel as to Set Two.

Additionally, the trial court found Joseph failed to comply with the earlier order compelling him to respond to Set One, which did ask about damages. Although the law and motion judge had merely ordered a response at that point, the trial judge found Joseph’s response itself was noncompliant with the order because his response was that the HOA already had all documents. Though he said he would provide the documents again anyway, he failed to show he did so. The court recited the history of Joseph’s poor performance in response to court orders. The court ultimately found that Joseph did not make a good-faith, diligent effort to calculate his damages to comply with his discovery obligations and had not complied with “the letter or the spirit of the California Discovery Act.”

We conclude that, under either abuse of discretion or de novo review, the trial court was justified in its ruling.

An abuse of discretion standard of review is appropriate in this case, because the motion in limine eventually turned into a mini-trial rather than a quick dispositive motion, and because the court, having the opportunity to observe Joseph and determine credibility, found Joseph abused the discovery process.

Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 222, held the trial court did not abuse its discretion in granting a motion in limine to exclude evidence of economic loss due to the plaintiff’s failure to produce his personal financial documents during discovery. The appellate court was not persuaded by the plaintiff’s argument on appeal that his failure was due to a misunderstanding of a court order compelling discovery, rather than a flagrant disregard of the order. (Id. at p. 226.)

Here, the record clearly shows deliberate disregard of discovery obligations for years. Joseph views his case as distinguishable from Sauer because Joseph did not oppose the motion to compel that resulted in the order to produce documents (Set Two) by August 11, 2014, and he did produce documents by that date. Aside from the fact that he failed to show how any of those documents proved damages he actually sustained (since Set Two did not request information about damages), the trial court’s ruling was based on the entire history of Joseph’s evasive, coy nonresponses. He failed to respond to Set One of the request for documents, forcing the HOA to obtain the order to compel. He then responded with a nonresponse that he had already produced documents (among the thousand or so pages) but would provide them again anyway, which he apparently did not do, at least in any way that would allow the HOA to know what damages Joseph actually sustained. His answers to interrogatories were also evasive, and his deposition testimony was maddeningly flippant and obstructionist. Joseph argues there is no evidence that he failed to comply with the court order to provide supplemental interrogatory answers, and the HOA would certainly have pointed it out if he had failed to do so. However, all of the discovery evidence presented to the trial court by the HOA showed the same nonanswers by Joseph.

The reason for Joseph’s evasiveness is glaringly obvious. He could not show he actually sustained damages, because he did not actually sustain damages of any import. Joseph paid nothing for the house. He got it for free. He never paid any mortgage payments or other carrying costs. Most of the remodeling expenses were paid by nonparty Robinson, not by Joseph. Robinson was the money man and paid everything before bowing out. After the money man bowed out, Joseph paid very little and nothing specific, except for a single unspecified payment to Baritot, who agreed not to charge for the bulk of his work until Joseph sold the house, which never happened. And, we repeat, he lost the house and its resale value because he defaulted on the mortgage.

We conclude Joseph fails to show abuse of discretion in the trial court’s exclusion of evidence of damages.

Even if we applied de novo review, we would reach the same result, based on Joseph’s evasive, obstructionist behavior and repetition of frivolous arguments.

On appeal, Joseph complains he had little time to respond to motion in limine No. 2 because, even assuming the HOA’s motion in limine No. 2 was served seven days before trial pursuant to a local rule of the Sacramento County Superior Court, he had little opportunity to prepare for it, because it contained 173 pages of argument and exhibits and was one of 17 motions in limine sought by the HOA. However, Joseph got to revisit the matter multiple times throughout the trial.

Joseph claims the trial court erroneously precluded him from testifying to his opinion about the property’s value due to being unprepared to discuss it when deposed as an expert. He notes a property owner can express his lay opinion of the property’s value. (Evid. Code, § 813, subd. (a)(2) [value of property may be shown by opinion of owner of the property].) However, the trial court later acknowledged that any property owner can offer lay opinion about the property’s value.

Joseph blames the HOA for the foreclosure, claiming the HOA’s refusal to approve the windows he wanted brought the project to a halt. However, as the jury was instructed, Joseph was not entitled to recover damages for harm he could have avoided. He could have avoided foreclosure by paying the mortgage. Joseph cites no facts or legal authority supporting his meritless claim that the HOA was responsible for Joseph’s purported lack of financial resources to pay the mortgage. He supposes it might be allowed as punitive damages, but we reject his argument about punitive damages, post.

Although the trial court ultimately told Joseph to complete his testimony in 30 minutes, by that point the trial had gone on much longer than it should have — due to Joseph’s prolonging the trial with his inability to comprehend — or his refusal to accept — the governing legal principles. The court noted it had to spend time every day addressing Joseph’s rehashing of meritless arguments before bringing in the jury.

We conclude Joseph fails to show grounds for reversal based on exclusion of evidence of damages.

IV

Special Verdict – Breach of Fiduciary Duty

Joseph argues the special verdict form was fatally defective because it omitted express reference to damages for breach of fiduciary duty, assertedly leaving the jury no viable option for damages after finding the HOA breached its fiduciary duty and caused harm.

We conclude Joseph forfeits this contention by failing to show that he objected in the trial court before the court discharged the jury.

A. Background

The jury instructions said: “The following items of damages are recoverable only once under all of the above legal theories [including breach of fiduciary duty]: [¶] Non-economic damages for emotional distress. [¶] Loss of the value of the home.” And Joseph in closing argument asked the jury to decide on an amount for noneconomic damages for each cause of action.

The verdict form said nothing specific about damages for breach of fiduciary duty and gave only two choices for damages: Noneconomic damages for emotional distress and loss of fair market value of the home for breach of contract or violation of due process. When the jury asked what damages were recoverable for breach of fiduciary duty, the court responded: “Economic damages for the loss of the fair market value of the home.”

Joseph fails to show he objected or requested amendment of the verdict form. The court minutes show this issue was addressed on August 27, 2014. Joseph’s designation of the record for appeal omitted August 27, 2014, from its designation of the reporter’s transcript. The reporter’s transcript for that date states “No reported proceedings.”

The jury returned a verdict finding the HOA breached its fiduciary duty and harmed Joseph. The jury awarded zero for economic loss. The only money awarded by the jury was $100,000 for emotional distress.

B. Analysis

When a purported defect in a verdict form was apparent at the time the jury rendered the verdict, a party’s failure to object and request clarification or further deliberations before the court discharges the jury precludes the party from later challenging the validity of the verdict. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-265; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1242.) This rule promotes efficiency in the administration of justice and avoids gamesmanship by litigants. (Taylor, at pp. 1242-1243.)

As indicated, a litigant who represents himself in propria persona is held to the same rule of procedure as attorneys, and in pro per status affords the litigant no special treatment. (Rappleyea, supra, 8 Cal.4th at p. 985.)

Joseph claims there is no forfeiture, but he cites inapposite authority without discussion. Behr v. Redmond (2011) 193 Cal.App.4th 517, held that a verdict form’s failure to include a finding on the fact of misrepresentation was not an ambiguity that required clarification before discharging the jury. Rather, it was simply an absence of a factual finding necessary to support entry of judgment. (Id. at pp. 529-530.) This distinction was noted in Taylor, supra, 222 Cal.App.4th at pages 1242-1243.

Morris v. McCauley’s Quality Transmission Service (1976) 60 Cal.App.3d 964, held that a verdict necessarily implying negligence of the defendant was fatally inconsistent with another verdict in the same case necessarily implying the defendant was not negligent. (Id. at p. 972.) Joseph fails to support his argument that the verdict was “fatally defective in that it found liability but failed to set forth any amount for damages because the verdict form failed to provide any place for such damages to be entered.” Given the exclusion of evidence of economic loss, the verdict finding breach of fiduciary duty is not fatally inconsistent with the absence of wording about damages for that breach. The jurors knew that the cause of action allowed for economic damages, because the court told them so, and therefore presumably could have written in an amount in the line provided for economic loss despite absence of express reference to fiduciary duty. The absence of any such entry is more likely attributable to the absence of evidence of economic damages.

Joseph argues emotional damages are also recoverable for breach of fiduciary duty. However, this assertion — which Joseph raises under the heading of fatally defective verdict — does not render the verdict fatally defective.

Joseph cites Mixon v. Riverview Hospital (1967) 254 Cal.App.2d 364, 375, for the proposition that reversal is required if a verdict is hopelessly ambiguous, hopelessly inconsistent, or incomprehensible. The verdict in this case is none of those.

Joseph forfeited his claim of an inconsistent jury verdict by failing to object on this ground before the court discharged the jury.

V

Punitive Damages

Joseph asked the court to instruct the jury on punitive damages, but the court instead instructed the jury, “You must not include in your award any damages to punish or make an example of [the HOA]. Such damages would be punitive damages, and they cannot be part of your verdict.”

On appeal, Joseph argues the trial court erred in precluding a punitive damages award. However, his appellate brief acknowledges: “the discussion on the parties’ competing jury instructions was unrecorded, and the court did not put any findings on the record with respect to punitive damages.”

The HOA responds Joseph was not entitled to instruction on punitive damages, because the issue was not bifurcated and Joseph failed to offer evidence of HOA’s financial condition.

We need not address the HOA’s position, because Joseph has failed to provide an adequate record for review.

Appellate courts have refused to reach the merits of an appellant’s claim where no reporter’s transcript of a pertinent proceeding or suitable substitute was provided. (E.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judge’s ruling on a request for jury instruction].)

On appeal, the judgment is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also, Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. (Denham, supra, 2 Cal.3d at p. 564; see also, Cal. Const., art. VI, § 13 [no judgment shall be set aside or new trial granted unless reviewing court concludes error has resulted in miscarriage of justice].)

The appellant bears the burden of providing an adequate record to assess error, and where the appellant fails to produce a complete record of oral trial proceedings, it is presumed that the unreported proceedings would demonstrate the absence of error. (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324; Estate of Fain (1999) 75 Cal.App.4th 973, 987.)

Because Joseph fails to provide an adequate record on appeal, we cannot know why the trial court denied punitive damages, and we presume the unreported proceedings would demonstrate the absence of error.

We conclude Joseph fails to show grounds for reversal.

DISPOSITION

The judgment is affirmed. Respondent CCVOA shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

HULL, Acting P. J.

We concur:

BUTZ, J.

RENNER, J.