Opinion
A159802
08-17-2021
195-205 TAMAL VISTA BOULEVARD, LLC, Plaintiff and Appellant, v. JAMES WANNINGER, Defendant and Respondent.
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CIV 1903474
KLINE, P.J.
Plaintiff 195-205 Tamal Vista Boulevard, LLC (Tamal Vista) appeals after a jury found that it had filed an unlawful detainer action against a tenant, defendant James Wanninger, to retaliate against Wanninger for refusing to pay for water damage he did not cause and/or for prevailing in a previous unlawful detainer lawsuit Tamal Vista had brought against him. On appeal, Tamal Vista contends the trial court erred when it (1) admitted evidence regarding Wanninger’s tenders of rent and Tamal Vista’s rejection of those tenders during the prior unlawful detainer action, and (2) modified a jury instruction to inform the jury of the law related to that evidence. We shall affirm the judgment.
PROCEDURAL BACKGROUND
In an earlier action between the parties, Tamal Vista served Wanninger with a three-day notice to pay rent or quit in early September 2018, and filed an unlawful detainer complaint against him on September 19, 2018, alleging that he had breached his lease by making excessive noise. On March 20, 2019, the jury in that action returned a special verdict in which it found that Wanninger had not breached his lease.
In the present matter, Tamal Vista filed an unlawful detainer complaint against Wanninger on September 11, 2019, for failure to pay rent. The complaint alleged that Tamal Vista had served a three-day notice to pay rent or quit on Wanninger on June 7, 2019, for rent due in the amount of $27,437.48.
Tamal Vista had filed a second unlawful detainer complaint in June 2019 for nonpayment of rent, but that case apparently was dismissed on September 4, 2019, on technical grounds.
In his November 25, 2019 answer to the complaint, Wanninger asserted, inter alia, the affirmative defense of retaliatory eviction.
On January 31, 2020, following a jury trial, the jury returned a special verdict in favor of Wanninger. It first found that the amount of rent due stated in the three-day notice was no more than the amount Wanninger owed and that Wanninger did not pay that amount within three days after receipt of the notice. The jury also found, however, that Wanninger had proved that Tamal Vista had brought the action to retaliate against Wanninger and that Tamal Vista had not proved that it filed the action in good faith because Wanninger did not pay rent.
On January 31, 2020, the trial court entered judgment in favor of Wanninger, in conformity with the jury’s special verdict. The court also entered notice of entry of judgment on that date.
On March 6, 2020, Tamal Vista filed a notice of appeal.
FACTUAL BACKGROUND
Tamal Vista’s Case
Ashley Daugherty, who had been the property manager at the Tamal Vista apartment complex (also known as Tam Ridge) since August 2019, testified that Wanninger lived at Tamal Vista pursuant to a lease agreement; his monthly rent was $4,000.
Tamal Vista’s records indicated that Wanninger last paid his rent for April, May, and June 2019; those rental checks were cashed. Before that, the records reflected that his most recent rent payment was in August 2018, and that there was no rent paid for seven months, from September 2018 to March 2019. Tamal Vista’s records do not indicate whether a tenant has tendered a rent check that was rejected and returned. Therefore, since Daugherty was not present at the time, she did not know whether Wanninger had tendered rent checks that were returned to him during the months showing nonpayment of rent.
Tamal Vista served Wanninger with a three-day notice to pay rent or quit on June 7, 2019, in the amount of $27,437.48, which consisted of the total amount of unpaid rent for the months of September 2018 through March 2019. The records indicated that Wanninger did not pay the balance of rent due within the three-day period following service of the notice and that he remained in his apartment. Daugherty was not yet the property manager in June 2019, when Tamal Vista served Wanninger with the three-day notice and filed the initial unlawful detainer complaint based on that three-day notice. Trivon Simmons, the previous property manager, was the person who served the three-day notice and initiated the process.
Daugherty testified that when a tenant owes past rent, Tamal Vista’s procedure is to call or email the tenant and ask for payment. If the tenant does not respond, Tamal Vista serves a three-day notice to pay rent or quit, which gives the tenant three days to pay or return the keys to the unit. If the tenant does not pay or vacate, the file is forwarded to an attorney to initiate an action for eviction. In Daugherty’s nine years in property management, she had never worked with a landlord who sued a tenant who owed back rent for money only, rather than serving a three-day notice to pay rent or quit.
Wanninger’s Case
Ray Garcia, the former maintenance supervisor for Tamal Vista, testified that he was in that role one or two years earlier, when Wanninger’s apartment had flooded the unit below. Garcia oversaw all repairs and construction related to the flooding. Wanninger, who was the first tenant to occupy his apartment, was taking a bath when the flooding occurred. Upon inspection, Garcia-a plumber for 20 years-saw that the bathtub overflow pipe had not been properly connected. Therefore, instead of going into the pipe, the tub water went into the overflow drain of the tub and leaked into the apartment below. The flooding was not a result of water spilling over the top of the tub. Garcia’s maintenance technician corrected the problem with the pipe.
Garcia told his supervisor at Tamal Vista, Trivon Simmons, about the flooding that had occurred when Wanninger was taking a bath, and also told him that it was not Wanninger’s fault. He told Simmon’s supervisor, Quinn Watson, the same thing. As a result of that flooding, the maintenance regional manager instructed him to check the overflow drain hookup in each unit at Tamal Vista.
Shortly after the flooding incident, Garcia received information from his supervisors at Tamal Vista that Wanninger was making excessive noise in his apartment. Garcia investigated and ascertained that Wanninger was not making any noise. The noise was coming from workers from a mitigation company who were repairing the leak damage to the apartment below, which included ripping out walls. Garcia told his supervisors, Simmons, and Watson, that it was not Wanninger who was making the noise; it was the crew repairing the unit below his.
On another occasion, at Simmons’s request, Garcia spoke with the tenant who lived above Wanninger about her noise complaints regarding Wanninger. She told him that she did not want anybody living below her. Garcia related this conversation to Simmons and Watson, but they both said, “we don’t care, we want him out.” They were talking about wanting to evict Wanninger.
Garcia was “let go” from his job as maintenance supervisor at Tamal Vista a couple of weeks after the flooding incident took place.
Marissa Noonan lived in the apartment directly below Wanninger’s from June 1, 2018 through August 22, 2018, before moving to another unit. Noonan testified that shortly after she moved in, Wanninger came to her apartment and introduced himself. He was friendly and gave her a card with his phone number on it and said if there were any issues, to please text him and he would respond.
A short time later, around June 16, 2018, water dripping down from Wanninger’s apartment flooded Noonan’s apartment. Approximately 75 percent of the apartment was damaged, and the walls, ceilings, and floors had to be removed. After the flooding, Noonan was still paying the full rent for her apartment. She asked Simmons, the manager, to move her, her boyfriend, and her dog to another unit. She wrote him a letter saying that her dog was eating exposed insulation and getting sick.
Noonan testified that on or about August 22, 2018, she went to Simmons’s office to ask him if there was going to be more work done on her unit or if he could move her and her boyfriend because they were very unhappy. Simmons said that as far as he knew, there would be no additional work done on her unit at that time. He added, however, that if she and her boyfriend “made a complaint against Wanninger regarding noise,” he could get them “into a different unit immediately.” Noonan did not like that she would have to lie and say that Wanninger was loud; it made her feel very uncomfortable. She refused to make a complaint, but her boyfriend agreed to do so. Simmons gave him the content of what to write, telling him to talk about Wanninger playing loud music or about hearing banging from Wanninger’s apartment. After Noonan’s boyfriend made the complaint, they were moved to a fourth-floor apartment that had a higher rent, but Simmons let them pay the same rent they had previously paid.
On one prior occasion, Noonan had heard Wanninger vacuuming in his apartment; she told him to stop, which he did. Other than that, she never interacted with Wanninger regarding loud noise coming from his apartment.
Eric Pirone testified that he became friends with Wanninger after they both moved into apartments at Tamal Vista. They would regularly get together in Wanninger’s apartment, where Wanninger would cook, and they would watch Warriors games on television. On June 3, 2018, Pirone was in Wanninger’s apartment around 5:00 or 6:00 p.m. They were watching the Warriors in the NBA playoffs and rooting for their team, though not particularly loudly, when three uniformed police officers showed up at Wanninger’s apartment saying they had received a noise complaint. Pirone found this intimidating. After that, the amount of time both he and Wanninger spent at Wanninger’s apartment “declined dramatically.”
Pirone testified that after Wanninger was served with a three-day notice to pay rent or quit in September 2018, Pirone never went into Wanninger’s apartment again. When he saw Wanninger, Wanninger seemed different; he seemed uncomfortable in his unit and in the development. Pirone believed Tamal Vista’s management behaved unprofessionally in its dealings with Wanninger. As a result of what Wanninger went through, Pirone himself did not feel safe or comfortable anymore at Tamal Vista, and had moved out six months before trial.
Wanninger’s daughter, Lillian Wanninger, testified that she was a junior in high school and her father had moved into Tamal Vista so that she could attend the local high school. She lived with Wanninger at Tamal Vista approximately eight days each month. She and Wanninger used to watch televised sports together on Sundays, cheering for their team. After the first lawsuit, their behavior changed. They kept the television volume low, had to be careful of how they walked, did not vacuum at certain hours, and did not play music. Lillian could not have friends over and Wanninger would tell her to be quieter and keep her voice down. She understood that these changes were due to complaints about noise. Since the first lawsuit, Wanninger spent less time at the apartment and seemed more “paranoid.” He was concerned about being too loud and did not want the police to show up again. He was more distant with Lillian at times, and when they hung out together, they did so away from the apartment.
Wanninger testified for the defense that he had lived in the same unit at Tamal Vista since March 2018, with a rent of $4,000 per month. He got along well with all of his neighbors and had no conflicts at Tamal Vista until police arrived at his unit on June 3, 2018, while he was watching a Warriors game on television with his friend Eric. They were “high-fiving, normal stuff,” but were not loud. When Wanninger moved into Tamal Vista, no one discussed with him rules about quiet time until he approached Trivon Simmons after being accused of being loud on a Sunday night at 6:30 p.m., while watching the Warriors. Simmons merely told him that between 10:00 p.m. and 6:00 a.m. were “quiet hours.” Wanninger wanted to find out who was complaining so that he could solve the problem himself, but Simmons would not tell him who had complained. Wanninger had been terrified when three armed police officers came to his door on a Sunday night.
A month later, on the afternoon of July 4, 2018, Wanninger was cleaning his apartment with the front door open. A police officer walked into his apartment and said police had gotten a noise complaint. The officer then said, “ ‘but this isn’t too loud,’ ” and left. Wanninger again went to see Simmons, who would not tell him who had complained. The same police officer returned again at 8:30 p.m. on the Friday night before the Labor Day weekend. Wanninger had again been cleaning his apartment before going out for the evening, and ran into the officer outside as he was taking his garbage to the dumpster. The officer said there had been another noise complaint. Wanninger invited the officer into his apartment, and the officer said that his supervisor was going to come over, and he asked Wanninger for his driver’s license. After Wanninger gave the officer his driver’s license, two other police officers arrived. The officers did not complain about loud music inside the apartment.
Prior to the second and third encounters with the police, there had been an incident with water from Wanninger’s bathtub flooding the unit below his. He was naked in his bathtub when a maintenance worker supervised by Ray Garcia walked in, followed by Garcia and a female neighbor from another unit, followed by the neighbor’s boyfriend. They yelled at him to turn off the water and get out of the bathtub because he was flooding the unit below his. He had no idea what they were talking about at the time, but it turned out that the overflow drain in the tub was not connected, so the water went into the ceiling of the unit below. The flooding occurred a second time after he was told he could not use that bathtub, and had therefore used the other bathtub in his apartment.
A day or two later, while Ray Garcia was inspecting his unit, Quinn Watson called and left Wanninger a verbally harassing voicemail message, stating that if he did not “do this and that and file with your insurance, then we’re going to call the police and have you evicted.” Wanninger, who by then had learned that the flooding resulted from a construction defect, responded that he would not file a claim with his insurance company. He never heard back from Watson about the water issue.
The only time a neighbor complained to Wanninger about noise was when Marissa Noonan, his downstairs neighbor, texted him while he was vacuuming. He texted her back and stopped vacuuming. Before the present trial, Wanninger went to the police department and learned that the police had been called to come to his apartment 11 times. He learned from the audio recordings that all of the complaints were from the neighbor who lived above him. Wanninger believed Tamal Vista’s first three-day notice and lawsuit, which ostensibly were based on excessive noise and which involved bribing a tenant, was an attempt to get him out of Tamal Vista due to his refusal to pay for the water damage or claim it on his insurance.
The noise complaints relayed to him by Tamal Vista management and the police, had caused Wanninger to feel uncomfortable in his apartment. He now stayed away from the apartment much more than previously, had stopped watching sports at home, and frequently told his daughter and her friends to be quiet, even when they were not being noisy.
Wanninger had consistently paid rent electronically until Tamal Vista filed the first lawsuit against him. After he was blocked from paying electronically, he began delivering checks to the manager’s office. He had never failed to pay rent monthly, either by check or electronically, since he moved to Tamal Vista. After he won the first lawsuit, he tried to pay electronically, but he was blocked out of the system, which also showed his previous rent payments “blocked out,” with him owing a large amount. He therefore paid the April, May, and June 2019 rent by putting checks in the front door of the management office or having his daughter drop them in the rent box.
Christopher Barrow, a real estate broker specializing in residential leasing in Marin County who was familiar with Tamal Vista, testified that a two-bedroom, two-bath apartment in that complex would be worth $4,000 to $5,000 per month in rent. However, if there were an ongoing conflict between a tenant and a landlord, that would “[a]bsolutely” affect the value of the apartment, making it “worth less. Not worth much at all, if anything.” Counsel then asked, “if there was a concerted effort by the management to force someone out and [it] did so by making false noise complaints, calling the police, accusing somebody of flooding a unit, what would your opinion [be] as to the value of that property for the purposes of rental?” between July 2019 and the present. Barrow opined, “I don’t think you could rent that property. It would be worth nothing.”
Tamal Vista’s Rebuttal
Wanninger testified that, after the conclusion of the first unlawful detainer action, he had never tried to pay the rent Tamal Vista had not accepted during that action, from September 18, 2018 to March 2019, because he thought that his rental obligation was extinguished for that period after he won the first lawsuit. He started paying rent again in April 2019, and those checks were accepted by Tamal Vista. He was confused by the three-day notice in the present case, which said that he owed all of the rent that was refused during the first case, because he believed he did not owe that rent after winning the first case, in which the jury awarded no damages to Tamal Vista. In addition, Tamal Vista management never said anything to him about owing rent for the earlier period before serving him with the three-day notice in the present case. He believed the latest three-day notice was served in retaliation for his having won the first lawsuit, and that it was also part of Tamal Vista management’s ongoing efforts to remove him from the complex.
On cross-examination, Wanninger testified that he had never failed to tender his rent on time while living at Tamal Vista, including during the present case. He had done so because he wanted to continue living there.
Wanninger agreed with the deposition testimony of Trivon Simmons, which had been videotaped and was played for the jury at trial, when he said that having Wanninger near the upstairs neighbor “was a potentially explosive combination.” Once Wanninger learned that the noise complaints had all come from his upstairs neighbor, he asked to be moved to a different unit, but Simmons refused his request.
DISCUSSION
Tamal Vista contends the court erred when it (1) admitted evidence regarding Wanninger’s tenders of rent and Tamal Vista’s rejection of those tenders during the prior unlawful detainer case, and (2) modified a jury instruction to inform the jury of the law related to that evidence.
I. Relevant Legal Principles
“Unlawful detainer actions are authorized and governed by Code of Civil Procedure section 1161 et seq. ‘The statutory scheme is intended and designed to provide an expeditious remedy for the recovery of possession of real property. [Citation.] Unlawful detainer actions are, accordingly, of limited scope, generally dealing only with the issue of right to possession and not other claims between the parties, even if related to the property.’ [Citation.] ‘Affirmative defenses may be asserted only to the extent they might defeat the landlord’s right to possession.’ [Citations.]
“Retaliatory eviction, codified at Civil Code section 1942.5, is one such defense. [Citation.] Civil Code section 1942.5 makes it unlawful for a landlord to engage in specified conduct against a tenant who is not in default on rent, including ‘bring[ing] an action to recover possession,’ because of a tenant’s lawful and peaceable exercise of any rights under the law (id., subd. (d)) or because of a tenant’s complaints regarding habitability (id., subd. (a)). However, a landlord retains the right to bring an action to recover possession ‘for any lawful cause.’ (Id., subd. (f).) To recover possession for a good faith, nonretaliatory reason, the landlord must give the tenant notice of such grounds and, if controverted, the landlord must prove the truth of the reason stated. (Id., subd. (g).)” (Coyne v. De Leo (2018) 26 Cal.App.5th 801, 805 (Coyne), fn. omitted.)
Bad faith on the part of the landlord is another equitable defense that would defeat the landlord’s right of possession in an unlawful detainer action. (Union Oil Co. v. Chandler (1970) 4 Cal.App.3d 716, 722–723, citing Strom v. Union Oil Co. (1948) 88 Cal.App.2d 78 (Strom), disapproved on other grounds in Green v. Superior Court (1974) 10 Cal.3d 616, 633, fn. 19.) Strom was the first California case denying forfeiture of a lease based on the bad faith conduct of a landlord. In that case, a landlord failed to give the tenant directions about where to pay rent and refused to accept the tenant’s registered letters in order to induce a breach of the lease. (Id. at pp. 80–82, 85; see also Bawa v. Terhune (2019) 33 Cal.App.5th Supp. 1, 9 (Bawa) [citing Strom, and holding that “when a landlord refused to accept rent that is one penny short of the required amount, without any legitimate intent other than to manufacture a default in order to evict a tenant, a tenant may assert the landlord’s bad faith as an unlawful detainer defense”].)
II. Admission of Evidence of Wanninger’s Tenders of Rent and Tamal Vista’s Rejection of those Tenders
A. Trial Court Background
At the start of trial, counsel for Tamal Vista filed a motion in limine seeking to exclude evidence that Wanninger tendered his monthly rent while the prior unlawful detainer case was pending, but that Tamal Vista rejected it. Counsel argued that evidence of Wanninger’s attempts to pay rent during the prior case was irrelevant to the issues in the present case because (1) Tamal Vista’s acceptance of the tenders of rent would have waived its right to maintain that action, and (2) Wanninger owed that back rent once the first case ended. Counsel further argued that the evidence should be excluded pursuant to Evidence Code section 352 because its probative value would be substantially outweighed by the probability of confusing or misleading the jury because the jury likely would not understand why Tamal Vista could not accept the rent money Wanninger tendered, and might be misled to believe that he had always paid his rent, when in fact he had not.
At the initial hearing on the motion, Wanninger’s counsel argued that it would be “exceptionally prejudicial for us to come before a jury and tell the jury we were retaliated against, and them saying: ‘You didn’t pay the rent. Who are you kidding,’ et cetera. ‘You made no effort.’ We made an effort.... So, this man has been right down the path doing the right thing, and the jury is never going to know because they’re going to look at him and say, ‘You’re out of here you slime bucket. You don’t want to pay the rent. Get out of here.’ That’s the prejudice.”
Wanninger’s counsel further stated that the defense would not object to an instruction and would “stipulate that [Tamal Vista] believed that they could not take the rent because it might harm their position in case one,” and that their refusal was not a basis for bad faith.
The trial court initially agreed with Tamal Vista, and found that evidence of Wanninger’s tenders of rent during the first unlawful detainer case was irrelevant to the issue of nonpayment of past-due rent in the current case and that any slight relevance to the issue of retaliation was “so clearly outweighed by the undue consumption of time and confusion of issues that it should be excluded” under Evidence Code section 352.
The following day, before any witnesses had testified, the court told the parties that it had further researched the issue and had changed its mind about the propriety of admitting evidence regarding Wanninger’s tenders of rent and Tamal Vista’s rejection of those tenders during the earlier unlawful detainer case. The court explained that its “ultimate conclusion is that those tenders and the refusal of tenders during the original [unlawful detainer] case should be admitted. There’s going to be some, I think, instruction work that needs to happen at the end of the case. Ultimately, the jury is going to have to decide if the landlord’s refusal of those tenders was in bad faith or not. Seems like an open-and-shut question to the court and my ruling up to now has been, as a matter of law, it could not have been in bad faith because the landlord was not only not required but could not accept the tenders because they were in the middle of the [unlawful detainer] case, but I think the jury gets to make this decision, whether the refusal of those tenders [was] in bad faith or not.” The court further stated that “it’s kind of a close case” as to whether to admit the evidence because it seemed “so obvious and clear that it could not be bad faith rejection of the tenders during [an unlawful detainer] case.... But I think in fairness, I want the jury to make that decision, not me. So it can come in....”
Evidence presented at trial that was relevant to the court’s ruling included the testimony of Ashley Daugherty, Tamal Vista’s property manager, that Tamal Vista’s records showed that Wanninger had paid no rent between September 2018 and March 2019. She acknowledged that Tamal Vista’s records do not indicate whether a tenant has tendered a rent check that was rejected and returned.
Wanninger testified that after he was blocked from paying his monthly rent electronically, he began delivering checks to the manager’s office, and that he had never failed to pay his monthly rent since he moved in to Tamal Vista. On cross-examination, after Wanninger testified that his rent was rejected during the prior lawsuit, Tamal Vista’s counsel asked whether he was aware that Tamal Vista “couldn’t take that money because the other lawsuit was pending,” and Wanninger answered, “No. I’m not a lawyer.”
B. Legal Analysis
Tamal Vista argues that the court erred in admitting evidence of Wanninger’s tenders of rent and Tamal Vista’s rejection of those tenders during the first unlawful detainer action because these facts were legally irrelevant and likely to confuse and mislead the jury.
“Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Id., § 210.) The trial court is permitted to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Id., § 352.) ‘Evidence which has probative value must be excluded under section 352 only if it is “undu[ly]” prejudicial despite its legitimate probative value.’ [Citation.]” (Coyne, supra, 26 Cal.App.5th at pp. 813–814.)
“We review the trial court’s ruling on admissibility of evidence for abuse of discretion, which is shown only where the ruling ‘ “exceeded the bounds of reason, all of the circumstances being considered.” ’ [Citations.]” (Frausto v. Department of California Highway Patrol (2020) 53 Cal.App.5th 973, 1001–1002.)
According to Tamal Vista, evidence of Wanninger’s tenders of rent in the first unlawful detainer case was irrelevant to any retaliatory motive Tamal Vista had in bringing the second unlawful detainer action, considering that it would have waived its legal right to continue with the first unlawful detainer case had it accepted Wanninger’s rent while that action was pending. (See EDC Associates, Ltd v. Gutierrez (1984) 153 Cal.App.3d 167, 170 [“It is a general rule that the right of a lessor to declare a forfeiture of the lease arising from some breach by the lessee is waived when the lessor, with knowledge of the breach, accepts the rent specified in the lease”]; compare Boyd v. Carter (2014) 227 Cal.App.4th Supp. 1, 4–5, 10–11 [in case relied on by Wanninger, fact that landlord had failed to accept tenant’s tender of full month’s rent following service of initial 30-day notice-but not while any unlawful detainer action was pending-did not justify filing of an unlawful detainer action after subsequent service of a three-day notice demanding payment of the rent that tenant had already tendered]; see also Evid. Code, § 350.) Tamal Vista further asserts that the challenged evidence was irrelevant to the question in the second unlawful detainer action of whether Wanninger presently owed the previously rejected rent, since that rent was now due. (See Rose v. Hecht (1949) 94 Cal.App.2d 662, 666 [tenant’s tenders of monthly rentals by personal checks without depositing in a bank the amount thereof to the lessor’s credit does not “extinguish the obligation” (see Civ. Code, § 1500), although “such tenders are sufficient to stop the running of interest” under Civ. Code, § 1512].)
Tamal Vista also argues that the evidence that Wanninger tendered his monthly rent and Tamal Vista refused those tenders during the prior unlawful detainer action likely confused and misled the jury, causing it to speculate about why the evidence was offered and to conclude that Tamal Vista had concocted an illegitimate reason for trying to evict Wanninger a second time. (See Evid. Code, § 352.)
We agree with Wanninger that admission of the challenged evidence was not an abuse of discretion. Had evidence of his attempts to pay his rent during the first unlawful detainer case been excluded, the only evidence on this question would have been the property manager’s testimony that Tamal Vista’s records showed that Wanninger had failed to pay his rent between September 2018 and March 2019, with no explanation of the underlying circumstances. The challenged evidence was both relevant to and probative of Wanninger’s defense of retaliation since, without it, evidence of Wanninger’s unexplained failure to pay rent for seven months before claiming retaliation in the present case would have been highly misleading and prejudicial to that defense. (See Evid. Code, §§ 350, 352.) As Wanninger’s counsel argued at the hearing on Tamal Vista’s in limine motion to exclude this evidence, it would be “exceptionally prejudicial for us to come before a jury and tell the jury we were retaliated against, and them saying: ‘You didn’t pay the rent. Who are you kidding,’ et cetera. ‘You made no effort.’ ”
In addition, to avoid any misleading impression the evidence might create that Tamal Vista necessarily acted improperly in refusing Wanninger’s tenders of rent during the first unlawful detainer case, the court instructed the jury with a modified version of CACI No. 4302, which stated, inter alia, that Tamal Vista “had the legal right to reject any payment offered by [Wanninger] while the previous unlawful detainer was pending,” and that, had it “accepted any of the payments offered while the previous unlawful detainer was pending, [it] would have waived its right to pursue the previous unlawful detainer.”
In part III.B., post, we will address Tamal Vista’s argument that the court erred in modifying CACI No. 4302.
The court did not abuse its discretion when it admitted evidence that Wanninger had attempted to pay his rent every month throughout his tenancy at Tamal Vista. (See Frausto v. Department of California Highway Patrol, supra, 53 Cal.App.5th at pp. 1001–1002.)
III. Modified CACI No. 4302
A. Trial Court Background
During the discussion of jury instructions following the presentation of evidence, Tamal Vista’s counsel suggested adding language to CACI No. 4302-the modified instruction at issue in this appeal-that Wanninger must show that Tamal Vista’s refusal of his rent payments during the prior lawsuit was “unreasonable,” while Wanninger’s counsel suggested adding language that the refusal “was motivated by intent to harm” Wanninger. Tamal Vista’s counsel believed that the “intent to harm” language was too broad. The court determined that a compromise was appropriate, and included both attorneys’ suggested language in the instruction.
The modified version of CACI No. 4302, with which the court instructed the jury, added the following language to the standard instruction on termination for failure to pay rent:
“The defendant claims that the plaintiff is not entitled to evict him because the plaintiff’s rejection of payments he offered to plaintiff while the previous unlawful detainer was pending was in bad faith. To succeed on this defense the defendant must prove the following:
“1. That his default in rent was not trivial or minor; and
“2. The Plaintiff’s refusal of the payments was unreasonable or was motiv[at]ed by intent to harm Defendant[.]
“While the previous unlawful detainer was pending, the defendant need not offer payment to the plaintiff and the plaintiff is not required to accept any payment offered by the defendant.
“The plaintiff had the legal right to reject any payment offered by the defendant while the previous unlawful detainer was pending. Should the plaintiff have accepted any of the payments offered while the previous unlawful detainer was pending, the plaintiff would have waived its right to pursue the previous unlawful detainer.”
In its special verdict, the jury found that Wanninger owed the amount of rent stated in the three-day notice and had not attempted to pay that amount in the three days after service of the notice. It also found, however, that Tamal Vista had brought the current lawsuit to retaliate against Wanninger and that it did not file the lawsuit in good faith because Wanninger did not pay the rent due.
B. Legal Analysis
Tamal Vista contends the court erred when it modified CACI No. 4302 to inform the jury of Wanninger’s defense that Tamal Vista’s rejection of his rent payments offered while the previous unlawful detainer was pending “was in bad faith,” and that, to succeed on this defense, Wanninger had to prove that Tamal Vista’s “refusal of the payments was unreasonable or was motiv[at]ed by intent to harm” Wanninger.
As a preliminary matter, Wanninger argues that Tamal Vista forfeited any challenge to modified CACI No. 4302 by failing to object to the instruction in the trial court. Tamal Vista, however, “argues that the instruction conveyed irrelevant prejudicial information to the jury,” which warrants review regardless of whether it objected to the instruction below. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7.) Moreover, Tamal Vista specifically objected to the language it challenges on appeal regarding Wanninger having to prove that Tamal Vista’s refusal of the tendered rent payments was motivated by its “intent to harm” Wanninger to show bad faith. We will therefore address the issue.
Tamal Vista acknowledges the legal principle “that a lessor cannot ‘manufacture a default’ and cannot act ‘without any legitimate intent’ in refusing to accept a rent payment.” (Quoting Bawa, supra, 33 Cal.App.5th Supp. at p. 9.) Thus, according to Tamal Vista, “[i]f a lessor acts unreasonably in refusing to accept a rent, such as refusing to accept rent that is merely one penny short (i.e., a de minimus default), then a tenant may assert the lessor’s bad faith as an unlawful detainer defense. [Citation.] However, it is not the law that a bad faith defense to an unlawful detainer action arises whenever a landlord’s rejection of a payment is motivated by an ‘intent to harm’ the tenant.”
We find puzzling Tamal Vista’s attempt to distinguish between a landlord’s unreasonable refusal to accept rent, which it believes would support a bad faith defense, and its rejection of a rent payment based on an intent to harm the tenant, which it claims would not support such a defense. We need not, however, decide whether the court erred in modifying CACI No. 4302 for the reasons Tamal Vista suggests because, even assuming that the court should not have included the challenged language-and also that Tamal Vista did not waive its claim by failing to address the question of prejudice in its opening brief-Tamal Vista has failed to establish that it was prejudiced by the alleged error.
“A judgment may not be reversed on appeal, even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 835.) [¶] Thus, when the jury receives an improper instruction in a civil case, prejudice will generally be found only ‘ “[w]here it seems probable that the jury’s verdict may have been based on the erroneous instruction....” ’ [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574 (Soule).)
“In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, ‘(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent’s argument to the jury may have contributed to the instruction’s misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury’s verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].’ [Citations.]” (Soule, supra,8 Cal.4th at pp. 570–571.)
First, regarding conflicts in the evidence presented at trial, there was no conflict on the crucial issue of whether Tamal Vista had filed the first unlawful detainer action because it wanted to remove Wanninger from the complex due to his refusal to take responsibility for water damage he did not cause, rather than for excessive noise. (See Soule, supra, 9 Cal.4th at pp. 581–582.)
Specifically, the evidence showed that Quinn Watson left a voicemail message for Wanninger informing him that if he did not file a claim with his insurance company for the water damage, Tamal Vista would call the police and have him evicted, and that Ray Garcia informed management that it was a construction flaw, not Wanninger, that had caused the flooding and water damage. The evidence also showed that police were called to Wanninger’s apartment on 11 occasions due to excessive noise, but the officers never in fact heard excessive noise from his apartment. Even after Garcia informed Simmons and Watson that Wanninger’s upstairs neighbor-who apparently made all of the calls to police-told him she did not want anyone living below her, they both said, “we don’t care, we want him out.” Finally, the evidence shows that Simmons attempted to induce Wanninger’s downstairs neighbor, whose apartment had suffered the water damage, to claim excessive noise on Wanninger’s part in return for moving her and her boyfriend to another unit. Although she refused to lie about Wanninger, her boyfriend provided a noise complaint, and they were moved to a more expensive apartment at the same rent they had been paying.
This evidence plainly supported the jury’s finding that the current unlawful detainer action was part of Tamal Vista’s ongoing effort to evict Wanninger, and was brought to retaliate against him for failing to pay for the water damage leading to the first unlawful detainer action and/or for prevailing in that first action. Indeed, the evidence shows that it was Trivon Simmons who served the three-day notice in the present case. The same evidence of Tamal Vista’s significant wrongdoing supports the jury’s second finding that, in addition to bringing the current action to retaliate against Wanninger, it was not filed in good faith for back payment of rent. (See Coyne, supra, 26 Cal.App.5th at p. 805 [under Civ. Code, § 1942.5, subd. (g), landlord may recover possession if it proves it brought action for “a good faith, nonretaliatory reason”].)
Tamal Vista nonetheless argues that the evidence was insufficient to show retaliation because, while evidence of Simmons’s prior statements “may constitute evidence that the on-site property manager wanted Wanninger removed as a tenant, the evidence hardly supports Wanninger’s defense that the owner filed this case because Wanninger prevailed in the first [unlawful detainer] action and/or refused to pay for the water damage....”
Tamal Vista’s effort to differentiate management’s role in filing the current action from its role in filing the first action, by referring to the decision of the “owner” to file this case, although no such owner testified at trial, is not persuasive. While there was evidence that Simmons was no longer with Tamal Vista, there was also evidence that he was the property manager when the current eviction process was initiated and that he set that process in motion when he served the three-day notice on Wanninger in June 2019. No evidence was presented about a subsequent change in management that would preclude a finding of retaliation, based on the evidence of the improper actions taken against Wanninger by at least two former members of its managerial staff. The only current member of Tamal Vista management who testified at trial in the present case was Ashley Daugherty, who was hired some two months after Simmons served the three-day notice on Wanninger in June 2019, and after another unlawful detainer complaint was filed that same month, which was dismissed on technical grounds before the current lawsuit was initiated in September 2019. Daugherty’s testimony revealed no familiarity with the motives or intent of Tamal Vista in filing any of its unlawful detainer actions against Wanninger.
Thus, the evidence fully supported the jury’s findings that Tamal Vista’s filing of the current lawsuit was both retaliatory and not brought in good faith to collect unpaid rent. (See Soule, supra, 8 Cal.4th at pp. 570–571.)
Second, as to whether the closing argument of Wanninger’s counsel could have contributed to the instruction’s misleading effect, Tamal Vista asserts only that counsel’s argument “appears to have been intended, in part, to capitalize on the trial court’s decisions to let the jury consider evidence regarding the tenders and rejections, and also its erroneous instruction regarding the ‘bad faith’ defense....” Wanninger’s attorney did argue to the jury that Wanninger had tendered his rent every month throughout the first case, but that Tamal Vista did not accept it and then sued him for it: “The jury [in the first case] came back and said, no award, and now you want $28,000 on top of everything else. Oh my God.”
Wanninger’s counsel’s closing argument was, however, primarily focused on the defense that the current lawsuit was filed to retaliate against Wanninger for refusing to pay for water damage and for prevailing in the prior lawsuit, as when counsel stated: “It’s only been approximately 18 months since that water damage and for 18 months they have not stopped in trying to get him out the door. And you’ve got to look at this. You’ve got this big multi-national company that owns 180 units here, and this little guy has the audacity to take them to court and has the audacity to say, ‘I’m not going to pay [for the water damage].’ And has the audacity to step up and say, ‘I didn’t cause any noise. I didn’t cause any water damage.’ How dare he?”
In addition, Wanninger’s counsel also discussed Tamal Vista’s need to show that, despite its retaliatory intent, it filed the present action in good faith because Wanninger did not pay rent, as when he asked, “Is this case really about rent?” and asserted that it was instead “all about what they started out on day one, we’re going to evict him.” Counsel further addressed the good faith question when he asked the jury, “ ‘Did [Tamal Vista] prove it filed this lawsuit in good faith because [Wanninger] did not pay the rent?’ I don’t think so. And the way that they haven’t proved it from day one is that 600-pound gorilla, the one that makes the decisions and calls the shots over that 180 units, and the other units, and other buildings, has testified by not being here. He can’t come in and face this jury. They haven’t proved anything in regard to their good faith. [¶]... [¶]
“And the answer is, get over it. He didn’t cause the water damage, you lost last time out, make up and stop this. Stop it. Act like an adult.”
“I’m going to suggest to you that the only expert that testified in this case is compelling. It has no value from what’s been going on there until they bury the hatchet, and yet he pays the 4,000 a month whenever they cash his check. He pays it when they cash his check.” The jury nonetheless found in its special verdict that Wanninger owed the full amount of rent for the seven-month period. Wanninger’s counsel also argued that Wanninger’s unit had little to no rental value, given Tamal Vista’s ongoing campaign to falsely blame and remove him: “What is the amount of rent owed, and what is the reasonable rental value? I think you’ve heard the expert on that, but you don't have to believe the expert-the only expert that testified on that. Think about it. Fair market value is determined by what a reasonable person would rent it for. Okay, great. If anyone that you know was to walk into that premises and know that the management is after you from day one, are you going to stay? Are you going to rent that place? Of course not.
Thus, the vast majority of Wanninger’s counsel’s argument properly addressed the jury questions of retaliation and whether Tamal Vista acted in good faith when it filed the current unlawful detainer action.
It is also notable that Tamal Vista’s counsel began his final closing argument by stating, “Okay. So, let’s just start with the verdict form. It sounds like from what [Wanninger’s counsel] just said, Number 1 and Number 2 [on the special verdict form] they’ re conceding. So the amount owed in the notice was due and owed. [¶] Number 2, did he try to pay? Did he pay within the three-day notice period? No, he didn’t do that. That’s our case, and I think it’s becoming abundantly clear that they’re not contesting that.”
It is clear that both attorneys’ closing arguments focused on the four questions the jury had to decide and, even if a few of the comments addressed the challenged language in the modified instruction, we believe it is highly unlikely that the jury would have been misled as a result. (See Soule, supra, 8 Cal.4th at pp. 570–571.)
Third, as to whether the jury requested a rereading of the erroneous instruction or related evidence, Tamal Vista states in its reply brief only that the jury “asked a question about [CACI No.] 4302 (to which the court provided an answer). [Citation.] Therefore, it would not be fair to conclude the jury did not rely on, or at least consider, the instruction in question.” This statement is misleading. The only jury questions included in the record on appeal concerned how to interpret the language in the fifth question in the unmodified portion of CACI No. 4302, which stated that Tamal Vista had to prove, inter alia, “[t]hat as of June, 7, 2019, at least the amount stated in the three-day notice was due” and the language in the corresponding first question on the special verdict form, which stated: “Was the amount due stated in the notice no more than the amount that Defendant actually owed?” These jury questions are not about or relevant to the purportedly erroneous language in the modified portion of CACI No. 4302. (See Soule, supra, 8 Cal.4th at pp. 570–571.)
“Was the amount due as of June 7, 2019, less than or equal to the amount stated in the three-day notice? “It is unlawful for a landlord to demand an amount in the three-day notice that is greater than the amount due.” After a discussion with counsel, the court responded in relevant part: “1. Q1: Please refer to instruction 4302. “2. Q2: Please refer to the 4000 et seq. series of instructions....” The jury’s questions on this topic were: “Another way to read [CACI No.] 4302-5 and special verdict form Q1 is:
Fourth, as to the closeness of the jury’s verdict, Tamal Vista states in its reply brief that “[t]he verdict was close-9 to 3-one vote short of a hung jury. [Citation.]” In fact, the verdict finding that Wanninger had proved that Tamal Vista brought the current action to retaliate against Wanninger was nine to three, while the verdict finding that Tamal Vista had not proved it had filed the current lawsuit in good faith because Wanninger did not pay rent was 12 to 0. In addition, all 12 jurors answered “yes” to the question of whether the amount due stated in the three-day notice was “no more than the amount that Defendant actually owed” and “no” to the question of whether “Defendant pa[id] or attempt[ed] to pay the amount stated in the notice within three days after services or receipt of the notice.”
Although Tamal Vista acknowledges that it is “impossible to determine” why all 12 jurors found that Tamal Vista had not proved it filed this unlawful detainer action in good faith while only nine of them found that Wanninger had proved retaliation, it speculates that “it seems likely that the evidence regarding the tenders and rejections weighed heavily on the jurors and it is at least plausible that the jurors were, as a result of the modification to [CACI] No. 4302, confused about the consequences of the tenders and rejections.”
Such speculation as to the possible meanings of the different jury findings does not assist in the analysis of whether there is a reasonable probability that in the absence of the alleged error, a result more favorable to Tamal Vista would have been reached. (See Soule, supra, 8 Cal.4th at p. 574.) First, although the retaliation verdict was not unanimous, it nonetheless shows that nine members of the jury did find that Wanninger had proved that the filing of the present action was retaliatory, regardless of whether any jurors also believed Tamal Vista intended to harm Wanninger when it refused his tenders of rent in the prior case. (See Civ. Code, § 1942.5; Coyne, supra, 26 Cal.App.5th at p. 805.) Second, CACI No. 4322, the retaliation instruction, specifically informed the jury that “[e]ven if Defendant has proved that Plaintiff filed this lawsuit with a retaliatory motive, Plaintiff is still entitled to possession of the premises if it proves that it also filed this lawsuit in good faith because the Defendant did not pay rent.” (Italics added.) The instruction thus made clear to the jury that the good faith requirement applied only to Tamal Vista’s reasons for filing this lawsuit, not its intent in refusing to accept the tenders of rent in the prior lawsuit. (See Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 808 [“We presume that [the jury] followed the trial court’s instructions and that its verdict reflects the legal limitations those instructions imposed”].)
As already discussed, most of the defense’s evidence and closing argument focused on and emphasized its theory that Tamal Vista had retaliated against Wanninger and had not acted in good faith when it filed the current unlawful detainer action, i.e., that its motive from “day one” through the present was to evict Wanninger.
Fifth, as to the effect of other instructions in remedying the error, Tamal Vista acknowledges in its reply brief that the trial court attempted “to mitigate any harm resulting from its decision to permit the jury to hear the evidence regarding the tenders and rejections” by adding the final two paragraphs to modified CACI No. 4302, which informed the jury that that Wanninger was not required to offer payment of rent and that Tamal Vista had the legal right to reject any such offers while the previous unlawful detainer was pending. Tamal Vista expresses concern, however, that the jury could have interpreted the language that Wanninger was not required to offer payment to Tamal Vista during the first unlawful detainer action “to mean that Wanninger had no obligation for the rent that accrued during this period and thus had no obligation to pay rent for this period even after the first [unlawful detainer] action was concluded, and the three-day notice was served on him.”
The jury’s answers to the first two questions on the special verdict form show that Tamal Vista’s concern is not well founded. The jury explicitly found-by a vote of 12 to 0-that the amount due stated in the three-day notice was “no more than the amount [Wanninger] actually owed” and that Wanninger “did not pay or attempt to pay the amount stated in the notice” within three days after service of the notice. Indeed, as noted, Tamal Vista’s counsel began his final closing argument at trial with the assertion that Wanninger’s counsel seemed to be conceding these two points and that it was “becoming abundantly clear that they’re not contesting that.” Hence, the language in the instruction regarding Wanninger not being required to tender and Tamal Vista not being required to accept rent payments during the first unlawful detainer action could not have prejudiced Tamal Vista. (See Soule, supra, 8 Cal.4th at pp. 570–571.)
In conclusion, because it is not reasonably probable that, absent the purported erroneous inclusion of the challenged language in modified CACI No. 4302, a result more favorable to Tamal Vista would have been reached, the judgment must be affirmed. (See Soule, supra, 8 Cal.4th at p. 574.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to James Wanninger.
WE CONCUR: RICHMAN, J., MILLER, J.