Filed 3/24/20 Miller v. Feiner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

KATE MILLER,

Plaintiff and Respondent,

v.

MICHAEL FEINER,

Defendant and Appellant.

A156002

(Sonoma County

Super. Ct. No. SCV-261646)

Michael Feiner, representing himself, appeals from a judgment after a one-day court trial finding him liable for damages to his former tenant Kate Miller for breach of the implied warranty of habitability and for negligently failing to maintain the rental premises. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the pertinent facts from the trial court’s judgment.

“The Court is asked to decide whether defendant Feiner is liable for damages to Plaintiff for alleged breaches of the implied warranty of inhabitability [sic] pursuant to Civil Code 1941, et seq. for failure to maintain a rental leased to Plaintiff from May 1, 2014 through December 5, 2016. Plaintiff also seeks damages in her 2nd Cause of Action for various statutory violations for negligently failing to maintain the rental premises ‘in a safe and habitable condition.’

“The Court finds that these Causes of Action (1 & 2) are the pertinent allegations. The evidence admitted at trial, specifically exhibits 1-2, 4-9, 11-34, as well as the testimony of Mr. Peacock sufficiently demonstrated by the standard of proof required by law that there were a number of problems in existence as listed in Plaintiff’s complaint and supported by the listings in exhibits 4 through 8. Most specifically, on page 1 of exhibit 8, items 1-7 where the County Permit and Resource Management Department found substandard conditions. These items as well as other conditions portrayed in the photographs support a finding that Causes of Action 1 & 2 are true.

“The major arguments raised by the Defendant are: [¶] 1. A letter from Plaintiff’s previous Legal Aid attorney, which was accidentally mailed to him. It contains a hearsay reference to a statement made by the Permit and Resource Department that the home was not substandard. [¶] This letter is found to be a privileged attorney-client communication and will not be considered. There has been no showing of any intention to waive the privilege, which is required [citation]. [¶] 2. Defendant presented evidence of his attempts to make repairs on the premises, but failed because of problems that arose because of restrictions on access to the residence caused by arranging mutually agreeable times and Plaintiff’s husband’s physical and emotional issues causing Plaintiff to forbid him to enter at various times.

“As a result, nothing got done to ameliorate the problems. What resulted was a deteriorating situation that led to Plaintiff withholding rent and the Defendant attempting to evict her.

“As will be further explained below, the Court will take into consideration that there were attempts made to correct problems, but in the end not much was accomplished. The Court questions the motivation on both parties’ parts to resolve the issues regarding corrections given Plaintiff’s having an attorney and Defendant’s actions to try to evict Plaintiff from the premises. However, Plaintiff, in her favor, did make complaints long before she had representation.

“The real issue in this matter is what amount of damages is Plaintiff entitled to receive, as a result of the Court finding the allegations of Causes of Action 1 & 2 proven and valid.

“Plaintiff’s counsel has suggested that the Court adopt the methodology used in Green v. Superior Court (1974) 10 [Cal.3d] 616, 638, the so-called percentage reduction of use. The Court will adopt that procedure.

“Plaintiff paid or owed rent for 30 months at $1400 per month = $42,000 plus $560 for September 2016. The $2100 security deposit will not be part of the sanction calculation since there was no rent paid after September.

“The Court believes that under the totality of the circumstances a 33.3% rebate is reasonable and appropriate. The alleged substandard problems listed in exhibits 7 and 9 range from moderate to severe. However, Plaintiff was there for two and a half years and the Court does not know the exact time that each of the more serious issues started. Thus, calculated the award amount is 33% of $42560 = $14,172.00.

“The Court finds that the allegations in Causes of Action 3 & 4 have not been satisfactorily proven. The Court believes that the eviction was not made in retaliation for the complaints made. Defendant had an honest belief that the attempts at eviction were justified. Cause of Action 4 is found to be inapplicable to the facts.”

The court then awarded Miller $5,000 in attorney fees, after giving Feiner an offset of $2,100 for unpaid rents. The court wrote: “First, and foremost, there was no evidence adduced at trial regarding any other recoverable offsets. Second, the Court considered all the mitigating factors which were properly brought out by the evidence in fixing the reimbursement percentage at 33.3% instead of a higher percentage.”

DISCUSSION

Before we address Feiner’s argument, we summarize some pertinent principles of appellate practice, which apply to appeals where parties represent themselves, as well as to appeals where parties are represented by counsel. (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628 (Cassidy).)

On appeal, we must presume the trial court’s judgment is correct. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) An appellant “ ‘ “must affirmatively show error by an adequate record . . . .Error is never presumed.” ’ ” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639.) An appellant must provide the court with an adequate record for review, and failure to do so requires us to resolve issues against him. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) An appellant must cite the particular portion of the record supporting each of his assertions; we may disregard assertions and arguments that lack a reference to the record or citations to legal authority. (Cassidy, supra, 220 Cal.App.4th at p. 628.) “ ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.’ [Citations.]” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

An appellant must present argument and legal authority on each point raised, which requires more than merely stating a ruling is erroneous and leaving it to the appellate court to figure out why. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) “It is the responsibility of the appellant . . . to support claims of error with meaningful argument and citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.]” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)

A.

Feiner’s legal argument on appeal is less than clear. The statement of facts is difficult to follow and does not paint a complete picture of the evidence in support of the judgment. The clerk’s transcript on appeal is scant and does not include the underlying civil complaint.

The heading of his first enumerated legal argument (minus capital letters) is that Feiner “has sufficiently and consistently requested access to the property from March 2016 until vacated by the plaintiff for inspections and repairs and each time was denied. Therefore, no duty on the part of the landlord to repair a dilapidation shall arise under Section 1941 or 1942. (1 RT 134, 1 RT 143-144).” Feiner then makes three points, all on one page.

First, he argues that Miller’s “refusal to permit access is a clear violation of Section 1941.2 (a).” He recites the text of this subdivision of section 1941.2 verbatim but provides no analysis. Nothing in the text of section 1941.2 addresses a tenant’s refusal to permit access.

Feiner then asserts, without record cite, that Miller “further obstructed the defendant from gaining access through the use of Threats on multiple occasions, both Electronically Texted and Verbally at the property.” He cites to an inconclusive portion of Miller’s testimony about the sheriff coming out to the property once “because of a complaint,” a complaint that Feiner implies was about him, and another time because of “violence at the home” not involving Feiner. From this, Feiner argues that Miller “confirmed the violent environment” that was directed at him to keep him from gaining access to the rental property.

Finally, Feiner concludes this argument with the unsupported statement that “The tenant must allow a reasonable amount of time to make repairs to be made after giving notice to the landlord of the alleged defects.” Even if this were true as a general proposition, Feiner does not make a meaningful argument with citation to authority. We do not consider this point further. (See Cal. Rules of Court, rule 8.204(a)(1); Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.) Thus, Feiner’s apparent attempt to make an argument on appeal that he had “no duty . . . to repair” fails.

Even if we assume that Feiner is attempting to argue that the evidence was insufficient to support the judgment (although he does not use that terminology), Feiner’s brief is insufficient. A party who contends that a particular finding is not supported by substantial evidence is obligated to set forth in his brief all the material evidence on the point and not merely his own evidence. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1657-1659.) Facts must be presented in the light most favorable to the judgment. (Id. at pp. 1657-1658; see Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must support any reference to a matter in the record with a citation to the record]; rule 8.204(a)(2)(C) [appellant’s opening brief must “[p]rovide a summary of the significant facts limited to matters in the record”].) The appellant waives a claim of lack of substantial evidence to support a finding by failing to set forth, discuss and analyze all the evidence on that point. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [error is deemed to be waived].)

B.

Feiner’s second argument on appeal (minus capital letters) is headed “Michael Feiner confirmed with the plaintiff’s witness, Mr. Peacock, stating that the complaint to code enforcement was closed August 9, 2016 because there was no evidence that an enforcement action for substandard conditions was warranted.” In the four short paragraphs that follow (identified as paragraphs a. through d.), Feiner quotes from legal authority on the implied warranty of habitability but does not link any of this authority to the facts of this case, let alone the heading of the second argument. In paragraph e., he cites to the definition of substantial breach within the meaning of Code of Civil Procedure section 1174.2, subdivision (c), and then states that “Mr. Peacock, witness for the Plaintiff and an employee of Sonoma County Code Enforcement confirms that there was nothing considered dangerous at this particular property,” citing a page from the record. If this single sentence is an unstated argument that there was insufficient evidence to support the judgment, it does not succeed, for the same reasons we set forth above.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Miller.

 

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

A156002, Miller v. Feiner