Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV080458
SIMONS, J.
Raymond Farley McEllen and Virginia Lee McCormick (defendants) are the upstairs neighbors of Karin J. Hern (plaintiff). A jury found that defendants intentionally inflicted emotional distress on plaintiff and that McEllen violated the Ralph Civil Rights Act of 1976 (Ralph Act) (Civ. Code, § 51.7) by committing or threatening violence against plaintiff because of her gender. On appeal, defendants contend, with respect to the Ralph Act claim, that the trial court erred in its instructions, in refusing to admit evidence that McEllen did not harbor an animus against women, and in awarding attorney fees. Defendants also contend the jury’s verdict on that claim is not supported by substantial evidence. With respect to plaintiff’s intentional infliction of emotional distress (IIED) claim, defendants contend the trial court erred in admitting certain evidence during her rebuttal, in holding defendants jointly and severally liable, and in failing to reduce the economic damages award to reflect medical insurance adjustments. They also contend the jury’s finding that McCormick aided and abetted McEllen is not supported by substantial evidence and the trial court erred in imposing restraining orders on defendants. In her cross-appeal, plaintiff contends the trial court erred in refusing an instruction she offered regarding McCormick’s liability on the Ralph Act claim and in concluding she was not entitled to damages for diminution in the value of her home due to defendants’ conduct.
All undesignated section references are to the Civil Code.
The parties agree the economic damages award must be reduced to reflect medical insurance adjustments. Otherwise, we reject the contentions on appeal and affirm.
PROCEDURAL BACKGROUND
In January 2008, plaintiff filed suit against defendants, alleging causes of action for IIED, violation of the Ralph Act, and breach of fiduciary duty. Following the presentation of evidence to the jury, the trial court granted defendants’ motion for a directed verdict on the breach of fiduciary duty claim. The jury found against defendants on the IIED claim, finding that McCormick was liable for 10 percent of plaintiff’s damages. It awarded plaintiff $480,000 in economic damages and $230,000 in noneconomic damages. It found against McEllen on the Ralph Act claim, awarding plaintiff another $230,000 in noneconomic damages. The jury also awarded plaintiff punitive damages of $9,500 against McEllen and $500 against McCormick.
Defendants moved for judgment notwithstanding the verdict and, in the alternative, for new trial. The motions were denied based on plaintiff’s agreement to accept a $415,000 reduction in the jury’s award, reflecting the damages awarded for diminution in the value of her home. In further proceedings, the trial court ruled that plaintiff’s damages should be reduced by $23,395 to reflect medical insurance adjustments accepted by plaintiff’s medical providers and that defendants are jointly and severally liable for plaintiff’s IIED damages. The court also imposed a $25,000 penalty against McEllen under section 52, subdivision (b)(2), awarded plaintiff $12,561.03 in costs, and issued permanent restraining orders against both defendants. This appeal and cross-appeal followed.
We summarize the relevant facts in the light most favorable to the jury’s findings. (See, e.g., Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606.)
Plaintiff and defendants are neighbors who live in a two-unit waterfront condominium in Tiburon. Defendants, who moved into their unit in July 2007, live in the unit above plaintiff with McCormick’s teenage son. Plaintiff, who moved into her unit in 2002, lives with her teenage son.
There is a deck outside defendants’ living room; in the middle of the deck is a large plastic skylight that allows light into plaintiff’s unit below. At trial, plaintiff testified that defendants had engaged in an 18-month campaign of harassment against her. Defendants’ most consistent conduct was repeated loud pounding and spraying water on the skylight, usually at night and in the early morning hours, and sometimes shining flashlights into plaintiff’s unit. Plaintiff’s son also testified regarding defendants’ pounding on the skylight. Others, including a Tiburon police officer, testified that they heard loud pounding noises from defendants’ unit. On one occasion the pounding started around 10:30 or 11:00 p.m. and lasted until 4:00 a.m.
Plaintiff also presented testimony regarding other conduct by defendants. For example, McCormick placed a telephone on the skylight that rang almost continuously for over four hours. McEllen followed plaintiff from the condominium building to a grocery store, blocked her car with his, and glared at her. On numerous other occasions he would emerge from his unit, glare at her, and follow her as she left her unit and walked to her car; twice she saw him trying to pry open her bathroom windows. Once, after plaintiff called the police to complain about dog noise coming from defendants’ unit, McEllen approached plaintiff outside and aggressively stated, “Hey neighbor. Nice to meet you.... I have been watching you. I know who you are. I have been watching you across the street. I am going to keep watching you.” McEllen also threw a decapitated rat on plaintiff’s deck.
Plaintiff testified that McEllen spit at her nine times. On one of those occasions, he stated to her, while she was sweeping the stairs, “Aren’t you a good girl? What a good job you are doing.... You are a good girl, Karin.” On two other occasions, McEllen also referred to plaintiff as a “girl” before or after spitting at her.
A housesitter, a handyman, a friend of plaintiff, and a police officer testified to other erratic and threatening behavior by McEllen. McCormick once told plaintiff, “If you know what’s good for you, you better apologize to [McEllen] or else.”
Defendants largely denied plaintiff’s allegations in their testimony at trial, and denied harassing or terrorizing her.
DISCUSSION
I. Plaintiff’s Claim Under the Ralph Act
Subdivision (a) of section 51.7, the Ralph Act, provides: “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.” Section 51, subdivision (b) provides, “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” A person aggrieved by a violation of the Ralph Act may bring a civil action to recover actual damages, a civil penalty of $25,000, exemplary damages, and an award of attorney fees. (§ 52, subd. (b).) “ ‘The obvious purpose of the Ralph Act is to declare unlawful, and civilly actionable, any acts of violence or intimidation by threats of violence directed against any individual because of his [or her] actual or perceived membership in a minority or similarly protected class.’ ” (D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 858, italics omitted; see also Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1446-1448.)
A. Defendants Have Not Shown the Trial Court’s Instruction Was in Error
Over defendants’ objection, the trial court instructed the jury in relevant part, using the language of CACI No. 3023, that plaintiff “claims that [defendants] subjected her to violence or threat of violence based on her gender” and the jury could impose liability if it found that “a motivating reason for [defendants’] conduct was their perception of [plaintiff’s] gender.” On appeal, defendants contend the instruction “suggests that [plaintiff] need not prove anti-woman animus, but only that appellants took action with knowledge (or perception) that [plaintiff] is a woman.”
“A court is required to instruct on the law applicable to the case, but no particular form is required; the instructions must be complete and a correct statement of the law. [Citation.] The meaning of instructions is tested by ‘whether there is a “reasonable likelihood” that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.’ [Citation.] ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” [Citation.]’ [Citation.]” (People v. Fiu (2008) 165 Cal.App.4th 360, 370; accord, Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 462.)
Defendants have not demonstrated a reasonable likelihood the jury understood the trial court’s instructions to mean that plaintiff needed only to prove that defendants acted with knowledge of her gender. Defendants’ argument ignores that the jury was instructed liability could arise from violence or threats of violence “based on” plaintiff’s gender, defined as where her gender was “a motivating reason” for the conduct. Defendants take issue with the reference to “perception of” plaintiff’s gender, but they fail to explain how any confusion arising from that phrase (seemingly unnecessary in the factual context of this case) might have led the jury to find liability based on defendants’ awareness of plaintiff’s gender. There is no reasonable likelihood the jury believed they could find liability if defendants merely acted with knowledge of plaintiff’s gender, but were not motivated to act by her gender.
Defendants suggest the instruction’s language “a motivating reason” is not equivalent to the language in the Ralph Act requiring that the violence or threats of violence be “because of” the victim’s protected characteristic. However, defendants fail to provide in their opening brief reasoned argument with citations to authority explaining why, in their view, the instruction is an erroneous statement of the law. In their reply brief, defendants appear to contend that the instruction failed adequately to explain plaintiff’s burden if the jury believed defendants had multiple motivations, citing only to plaintiff’s cases. Defendants have waived this claim of instructional error due to their failure to assert it in their opening briefs and support it with argument and authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]”]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“ ‘points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.’ ”].)
B. Substantial Evidence Supports the Jury’s Verdict on the Ralph Act Claim
Defendants contend there was insufficient evidence to support a finding that McEllen violated the Ralph Act. They contend there was insufficient evidence of violence or a threat of violence, and they contend there was insufficient evidence that any such violence or threat of violence was “because of” plaintiff’s gender.
Where the sufficiency of the evidence is challenged on appeal, our review “ ‘ “begins and ends with a determination as to whether there is any substantial evidence to support [the factual findings]; [we have] no power to judge... the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” [Citation.]’ [Citation.]” (People v. Orange County Charitable Services (1999) 73 Cal.App.4th 1054, 1071-1072, italics omitted; see also Estate of Teed (1952) 112 Cal.App.2d 638, 644 [“ ‘substantial’ ” refers to quality, not quantity; the evidence must be “reasonable in nature, credible, and of solid value”].) “[W]e are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment [citation]. All issues of credibility are likewise within the province of the trier of fact. [Citation.] ‘In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.’ [Citation.] All conflicts, therefore, must be resolved in favor of the respondent. [Citation.]” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, italics omitted; accord, Nelson v. United Technologies, supra, 74 Cal.App.4th at p. 606.)
Regarding the “violence, or intimidation by threat of violence” element of plaintiff’s Ralph Act claim, defendants assert that the only evidence supporting that element was plaintiff’s testimony that McEllen on several occasions spat in her direction. They assert that spitting is not violence within the meaning of the Ralph Act. We need not determine whether spitting alone constitutes violence within the meaning of the Ralph Act because, as plaintiff points out, the jury was not limited to consideration of the spitting in deciding whether there was violence or a threat of violence. Instead, the jury could have considered any of McEllen’s conduct, as long as it found that the conduct was engaged in because of plaintiff’s gender. In other words, the jury was not limited to consideration of McEllen’s conduct contemporaneous with his references to plaintiff’s gender if it believed that McEllen’s demeaning references to plaintiff’s gender on those occasions showed that his entire course of conduct was motivated by her gender. And there was ample evidence of other conduct by McEllen constituting “intimidation by threat of violence.” Among other things, there was evidence that McEllen followed plaintiff, warned her that he was “watching” her, and left a decapitated rat on her patio. (See Winarto v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1289-1290 (Winarto) [stating that the test is “ ‘would a reasonable [woman], standing in the shoes of the plaintiff, have been intimidated by the actions of the defendant and have perceived a threat of violence?’ ”].) Defendants do not contend this evidence of McEllen’s conduct was insufficient to satisfy the threat of violence element of the Ralph Act claim.
Regarding the “because of” element of the Ralph Act claim, defendants argue that McEllen’s use of the word “girl” while spitting at plaintiff did not constitute substantial evidence that his conduct was motivated by “anti-woman animus.” Plaintiff testified that several times McEllen spat at her while referring to her as a “girl”; she also testified that McEllen touched her and stated in an aggressive way that he was “watching” her. Although we do not hold that the causation element of the Ralph Act requires proof that the conduct would not have occurred but for the victim’s protected characteristic, in this case the jury reasonably could have inferred that McEllen would not have undertaken the threatening course of conduct demonstrated by the evidence if plaintiff had been a man. The jury reasonably could have inferred that much of McEllen’s threatening conduct—including the stalking and nighttime terrorizing—was calculated to take advantage of plaintiff’s perceived vulnerability as a single woman. The jury reasonably could have inferred that McEllen’s demeaning gender-based comments provided confirmation that plaintiff’s gender was a principal motivation for his conduct, because if her gender was irrelevant, McEllen would not have repeatedly brought it up during those threatening interactions. (See Winarto, supra, 274 F.3d at p. 1290 [in relation to Ralph Act claim, defendant’s “derisive[]” use of the term “ ‘chick’ ” supported inference that defendant targeted the plaintiff “at least partly... because she was the only woman in his group”].)
In Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162, the California Supreme Court disagreed with the Winarto decision on a different issue.
We conclude substantial evidence supports the jury’s findings on plaintiff’s Ralph Act claim.
C. We Find No Abuse of Discretion in the Trial Court’s Exclusion of Evidence That McEllen Did Not Harbor an Animus Against Women
Defendants contend the trial court erred in excluding evidence that McEllen does not bear an animus against women. In particular, defendants sought to introduce evidence in the form of testimony from coworkers that McEllen does not harbor any such animus. Defendants argue the proffered testimony was relevant to McEllen’s motive. The trial court concluded the testimony was inadmissible character evidence.
Because the jury did not find that McCormick violated the Ralph Act, it is moot whether the court should have admitted evidence that she did not harbor an anti-woman animus.
Evidence Code section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Evidence Code section 1101, subdivision (b) explains: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.”
The parties dispute whether the challenged evidence was excludable under Evidence Code section 1101, subdivision (a) or admissible as motive evidence under subdivision (b). We need not resolve this dispute because defendants failed to make a satisfactory offer of proof regarding the challenged evidence. Under Evidence Code section 354, subdivision (a), this court may not set aside the jury’s verdict due to the erroneous exclusion of evidence unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.” “An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued. [Citations.]” (People v. Schmies (1996) 44 Cal.App.4th 38, 53; see also People v. Anderson (2001) 25 Cal.4th 543, 580; Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 328-329.)
In the present case, the failure to comply with Evidence Code section 354 is significant. Defendants’ counsel sought to present testimony from some of defendants’ coworkers and neighbors and stated, “I expect [the witnesses] will testify that neither defendant has exhibited any bias toward women, any slurs toward women, any resentment of women; that they worked well with women under or over them.” Defendants have not cited to any portion of the record in which they clarified if the witnesses would testify to specific acts, to the witnesses’ opinions of the defendants, or to the defendants’ reputations in the community. Defendant’s “expect[ation], ” quoted above, seems to suggest that the evidence would have consisted of opinion or reputation evidence and not evidence of specific acts. Evidence Code section 1101, subdivision (b) expressly applies only to evidence of specific acts and not opinion or reputation evidence.
People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin) is instructive. In McAlpin, the defendant was convicted of nonviolent, lewd conduct with a child. The Supreme Court concluded the trial court had wrongly excluded defense evidence from two women who had observed the defendant with their children, had noted no unusual conduct by the defendant or by their daughters and, from these observations, had formed the opinion that he was not a person to engage in lewd conduct with children. (Id. at p. 1309.) Because the testimony did not simply consist of “prov[ing] the relevant character trait... by specific acts of ‘nonmolestation, ’ but by the witnesses’ opinion of that trait based on their long-term observation[s], ” the trial court had erred. (Id. at pp. 1309-1310.) The evidence was admissible under Evidence Code section 1102, a statutory exception to Evidence Code section 1101, subdivision (a) that is unavailable to defendants in this case because it applies only to criminal prosecutions. (Id. at pp. 1306-1310.)
The trial court also concluded the testimony would have been remote under Evidence Code section 352. In context, we understand this to mean that the court believed that, compared to its probative value, an undue amount of time would be consumed allowing witnesses to testify about specific instances in which the defendants failed to act badly, instances one might say of “nonmysoginist conduct.” Even if certain testimony of this nature might have been admissible, defendants’ failure to provide specific offers of proof renders us unable to evaluate the similarity of the circumstances to those in the present case, and therefore the probative value of the testimony. Thus we are precluded from considering the allegedly erroneous exclusion of evidence. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282).
D. Defendants Have Not Demonstrated the Trial Court Abused Its Discretion in Calculating the Attorney Fee Award
Plaintiff prevailed only on one claim entitling her to attorney fees, her Ralph Act claim against McEllen. Following trial, plaintiff requested an attorney fee award of $251,136.84 against McEllen. The trial court awarded $239,649.84 in fees, excluding the time specifically devoted to a nuisance claim that plaintiff opted not to pursue, plaintiff’s breach of fiduciary duty claim, and her unsuccessful motion for a protective order. On appeal, defendants contend the attorney fee award “should have been reduced to the actual time spent on the civil rights claim against McEllen.”
Generally, a trial court’s determination of whether a party is entitled to an award of attorney fees and the calculation of that award are reviewed for abuse of discretion. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 315; Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 790.) “The trial court is the best judge of the value of professional services rendered in its court, and while its judgment is subject to our review, we will not disturb that determination unless we are convinced that it is clearly wrong. [Citations.]” (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134 (Akins).) The legal principles relevant to this case are well-established: “When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award. [Citation.] When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required. [Citation.]” (Id. at p. 1133.)
Defendants argue that the trial court failed to apportion the attorney hours spent on the different claims and failed to award fees only for those hours spent on the Ralph Act claim against McEllen. In fashioning its fee award, the trial court rejected defendants’ assertion that plaintiff’s Ralph Act claim was a “ ‘mere appendage’ ” to her IIED claim. The trial court expressly found that the attorney hours “cannot be apportioned between the causes of action or the defendants, ” presumably because the IIED and Ralph Act claims both arose from the same series of events. Defendants have not shown that conclusion was “clearly wrong.” (Akins, supra, 79 Cal.App.4th at p. 1134.) They argue that the IIED claim was the major focus of defendants’ opening and closing arguments at trial, but they have not shown that the evidentiary presentation on that claim was irrelevant to the Ralph Act claim. As we pointed out in relation to defendants’ sufficiency of the evidence claim, the entire course of events was relevant to showing that McEllen threatened plaintiff with violence and that he was motivated by her gender in doing so.
Defendants have not shown the trial court abused its discretion in concluding that it was not possible to apportion the attorney hours spent on the IIED and Ralph Act claims.
E. The Trial Court Did Not Err in Rejecting Plaintiff’s Requested Instruction Regarding McCormick’s Liability on the Ralph Act Claim
In seeking to hold McCormick liable under the Ralph Act, plaintiff requested that the trial court instruct the jury as follows: “A person who aids, incites, or conspires with a person who has committed gender based violence or threats of violence is liable for each and every offense and for the damages that result.” In her cross-appeal, plaintiff contends that her proposed instruction is equivalent to section 52, subdivision (b), which provides that “Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition” exemplary damages, a civil penalty, and attorney fees. The trial court declined to give the proposed instruction.
We conclude the trial court did not err in refusing to give the proposed instruction because it is not a correct statement of the law. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) In particular, the language of the proposed instruction, holding liable a person who “aids, incites, or conspires with a person who has committed, ” is not equivalent to the language in section 52, subdivision (b) providing that a person is liable if he/she “aids, incites, or conspires in” the denial of a right under section 51.7. (Italics added.) The proposed instruction did not make it clear that the aiding, inciting, or conspiring must have been prior to or contemporaneous with the violence or threats of violence. Under the literal language of the proposed instruction, McCormick could have been held liable for conspiring with McEllen after his threatening conduct (perhaps by conspiring with McEllen to avoid liability under the Ralph Act), instead of conspiring with McEllen in the commission of that conduct. In other words, the jury could have read the proposed instruction as requiring liability if McCormick was, to use a concept from the criminal law, an accessory after the fact (Pen. Code, § 32), even though the plain language of section 52, subdivision (b) is not so broad as to include such liability. Because the proposed instruction was not an accurate statement of the law, we need not decide whether a trial court would be required, upon request, to supplement the standard instructions on aiding and abetting with an instruction accurately reflecting section 52, subdivision (b).
II. Plaintiff’s IIED Claim
A. Defendants Have Not Shown Any Error in Admitting Rebuttal Evidence Was Prejudicial
During plaintiff’s case-in-chief, she testified defendants frequently pounded on her skylight. She also testified she had audio and video recordings of the pounding, but she did not play the recordings for the jury during her case-in-chief. In presenting their case, defendants denied repeatedly banging on the skylight, admitting only to one instance of pounding that was witnessed by a police officer. On rebuttal, plaintiff sought to admit some of the recordings into evidence. Defendants objected, arguing that plaintiff should have sought to admit the recordings during her case-in-chief. The trial court permitted plaintiff to present the recordings as part of her rebuttal case.
On appeal, defendants contend the trial court erred in admitting the recordings during plaintiff’s rebuttal, relying on the proposition that “a party who has the affirmative may not reserve a portion of his [or her] evidence until the opposite party has exhausted his to negative that offered in the first instance.” (Lipman v. Ashburn (1951) 106 Cal.App.2d 616, 620; see also Code Civ. Proc., § 607, subd. (6).) Even if the court erred, defendants have not shown the error was prejudicial.
The erroneous admission of evidence only requires reversal where the error caused a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353; see also People v. Richardson (2008) 43 Cal.4th 959, 1001 (Richardson).) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence, ” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citations.]” (Richardson, at p. 1001.) In moving for a new trial, defendants submitted a declaration from their counsel, who averred that the defense had been prepared in light of plaintiff’s failure to play the recordings. Counsel explained that defendants decided to deny all of plaintiff’s allegations at once, and to attack her credibility and lack of supporting evidence, instead of denying each separate alleged act. Defendants’ theory of prejudice is unpersuasive. Because the jury did not believe the defendants’ blanket denial, there is little reason to believe it would have believed the more specific denials defendants claim they would have made had the recordings been played during plaintiff’s case-in-chief. In any event, the issue before us is actually whether the trial court’s purportedly erroneous decision to admit the recordings during the rebuttal was prejudicial—that is, whether it is reasonably likely the result of trial would have been different had the recordings been excluded altogether.
We conclude defendants have not shown the admission of the recordings was prejudicial. This court has reviewed the recordings, which include only a few instances of isolated banging noises. If anything, due to their poor sound quality, the recordings appear to minimize the noise and disruption caused by defendants’ conduct. Ultimately, the far stronger evidence against defendants regarding the pounding on the skylight and elsewhere was plaintiff’s own testimony, her son’s testimony, and the testimony of others, including a Tiburon police officer. Moreover, defendants’ claim that they only pounded on the skylight once was inherently dubious in light of the testimony of plaintiff’s witnesses, and defendants’ credibility was severely weakened by the evidence of their other misconduct and McEllen’s erratic behavior. Accordingly, even if the trial court had excluded the recordings from plaintiff’s rebuttal case, it is not reasonably probable the result would have been different. Any error was not a miscarriage of justice.
Neither have defendants shown that any improper rebuttal testimony regarding McEllen’s “stalking” or a “victim-witness protection program” was prejudicial.
B. Substantial Evidence Supports the Jury’s Finding That McCormick Aided and Abetted McEllen
In its initial verdict, the jury found that McCormick’s conduct was not a substantial factor in causing plaintiff’s emotional distress, but it nevertheless assigned to her 10 percent liability on the IIED claim. When asked for clarification, the jury explained, “Virginia McCormick’s conduct in and of itself was not a substantial factor, but we agreed she was guilty of aiding and abetting Mr. McEllen and thus we decided to assign her [10] percent of the responsibility.” The jury revised its verdict to find that McCormick was a substantial factor in causing plaintiff’s emotional distress.
On appeal, defendants contend there was no evidence McCormick aided and abetted McEllen because her presence during and failure to stop McEllen’s bad acts were insufficient to establish aiding and abetting liability. As we noted with respect to the Ralph Act claim, where the sufficiency of the evidence is challenged on appeal, we determine whether, viewing the evidence in the light most favorable to the judgment, there is any substantial evidence to support the jury’s findings. (Nestle v. City of Santa Monica, supra, 6 Cal.3d at pp. 925-926; People v. Orange County Charitable Services, supra, 73 Cal.App.4th at pp. 1071-1072.)
“ ‘California has adopted the common law rule for subjecting a defendant to liability for aiding and abetting a tort. “ ‘Liability may... be imposed on one who aids and abets the commission of an intentional tort if the person... knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act....’ [Citations.]” [Citation.]’ [Citations.]” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879.) “ ‘Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting. [Citation.] “As a general rule, one owes no duty to control the conduct of another....” [Citations.]’ ” (Ibid.)
Defendants do not dispute there was sufficient evidence that McCormick had knowledge of McEllen’s campaign of harassment of plaintiff. Instead, defendants argue there was insufficient evidence she gave substantial assistance or encouragement to McEllen. We disagree. Defendants concede there was “modest evidence that McCormick herself committed bad acts.” Among the evidence of McCormick’s own participation in the campaign of harassment, there was evidence that she put an almost continuously ringing telephone on the skylight at night and pounded on the skylight at night on at least one occasion. Regardless of whether those actions in themselves caused plaintiff emotional distress, the jury could reasonably have inferred they provided substantial encouragement to McEllen, or reflected substantial private encouragement she was providing to McEllen. Furthermore, plaintiff testified that McCormick told her that she “better apologize to [McEllen] or else.” Viewed in the light most favorably to the judgment, the jury could have considered those statements a threat, reflecting McCormick’s active participation in McEllen’s scheme.
Plaintiff testified that one of the nights that flashlights were shown through the skylight, “three pairs of hands and three faces came into the skylight and pounded, lots of laughter.” Because only three people lived in the upstairs unit, the jury could reasonably have inferred that one of the three persons who pounded on the skylight that evening was McCormick.
Substantial evidence supports the jury’s finding that McCormick aided and abetted McEllen for the purposes of plaintiff’s IIED claim.
C. The Trial Court Did Not Err in Holding McCormick and McEllen Jointly and Severally Liable on the IIED Claims
Defendants contend the trial court erred in imposing joint and several liability for the economic and noneconomic damages awarded by the jury on plaintiff’s IIED claim. They argue they cannot be jointly liable for the noneconomic damages because, under section 1431.2, liability for “non-economic damages shall be several only and shall not be joint.”
The Fair Responsibility Act of 1986 (§ 1431 et seq.) was adopted by an initiative measure to change the common law rule of joint and several liability of multiple tortfeasors. (Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1142 (Kesmodel).) Section 1431.2, subdivision (a) provides in pertinent part: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.”
The Kesmodel court held that two defendants liable for false imprisonment as coconspirators were jointly and severally liable for all damages despite section 1431.2, subdivision (a). (Kesmodel, supra, 119 Cal.App.4th at pp. 1134, 1142-1143.) The court reasoned: “The statute generally is inapplicable where liability is vicarious. ‘Much like the defendants within the chain of distribution of a defective product, vicariously liable defendants are viewed, for policy reasons, as a single entity.’ The statute is inapplicable because liability in this context is not based on comparative fault and for this reason there is no liability to compare. By extension, where the substantive law makes each joint actor liable for the act of each other joint actor in causing a plaintiff’s indivisible injury—as in the case of a civil conspiracy—the rule of joint and several liability is not abrogated by the provisions of Proposition 51. ‘[T]he policy of allocating losses to defendants for harm caused by the defendants’ joint enterprise justifies dispensing with the requirement that plaintiffs prove the degree of fault of each individual defendant.’ ” (Kesmodel, at pp. 1142-1143, fns. omitted.) The Kesmodel court quoted section 15 of the Restatement Third of Torts for the proposition, “ ‘When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.’ ” (Kesmodel, at p. 1143.) It also quoted a comment in the Restatement explaining, “ ‘[t]he provision for joint and several liability for persons engaged in concerted action applies regardless of the rule regarding joint and several or several liability for independent negligent tortfeasors in the jurisdiction.’ ” (Kesmodel, at p. 1143.)
Although there is no finding of civil conspiracy in this case, defendants do not explain why the result here should be any different than it was in Kesmodel. Specifically, defendants provide no argument why civil conspirators, but not aiders and abettors, should be exempt from section 1431.2. Like civil conspiracy, aiding and abetting liability is based on acting in concert with the principal tortfeasor. (Kesmodel, supra, 119 Cal.App.4th at p. 1141 [discussing both bases of liability].) “Conspiracy is a concept closely allied with aiding and abetting. A conspiracy generally requires agreement plus an overt act causing damage. [Citation.] Aiding and abetting requires not agreement, but simply assistance. The common basis for liability for both conspiracy and aiding and abetting, however, is concerted wrongful action. [Citations.]” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 78; see also People v. Lopez (1981) 116 Cal.App.3d 882, 887 [stating, in the criminal context, “[I]t is difficult to conceive of a factual situation in which mere aiding and abetting would not constitute acting in concert.”]) In contrast, section 1431.2, subdivision (a) generally applies where liability is based on independently culpable acts of multiple tortfeasors. (Henry v. Superior Court (2008) 160 Cal.App.4th 440, 459.) In this case, defendants insist the jury did not find McCormick liable based on her own conduct. Because defendants have not shown the reasoning of Kesmodel is inapplicable in this case, the trial court did not err in holding the defendants jointly and severally liable for the damages on plaintiff’s IIED claim.
D. The Trial Court Properly Concluded Plaintiff Was Not Entitled to Damages for Diminution in the Value of her Home
The jury awarded plaintiff $415,000 for the diminution in the value of her home due to the fact that she would be required, under section 1102.6, to disclose defendants’ conduct to any prospective homebuyers. Citing Agarwal v. Johnson (1979) 25 Cal.3d 932 (overruled on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4), the trial court concluded plaintiff was not entitled to recover those damages on her IIED claim because the damages were not caused by her emotional distress. Although plaintiff cites no case awarding damages for diminution of home value on an IIED claim, she contends in her cross-appeal that, under Agarwal, she is entitled to such damages as economic damages caused by defendants’ outrageous conduct. We need not decide whether, under Agarwal, economic damages must actually result from a plaintiff’s emotional distress rather than merely from the defendants’ outrageous conduct because, in any event, plaintiff is not, as a matter of law, entitled to damages for diminution in the value of her home in the circumstances of this case. (See People v. Zapien (1993) 4 Cal.4th 929, 976 [reviewing court must affirm a decision correct in law on any ground].)
The present case bears a strong resemblance to Alexander v. McKnight (1992) 7 Cal.App.4th 973 (Alexander). There, property owners brought an action against one of their neighbors, alleging that the neighbor had engaged in various “offensive and noxious activities, ” in violation of a declaration of restrictions imposed by the property developer. (Id. at pp. 975-976.) The court described the defendants as an “overtly hostile family who delights in tormenting their neighbors with unexpected noises or unending parties.” (Id. at p. 977.) The trial court enjoined the defendants from continuing their offensive activities and determined that, “because... section 1102.6 required the plaintiffs to disclose to potential buyers that the [defendants] were ‘difficult neighbors’ the value of their respective properties would be reduced by a total of $24,000 and therefore included that sum in its $28,000 award of damages.” (Id. at p. 976, fn. omitted.)
The Alexander court reversed the damages award for diminution in home value. The court agreed the plaintiffs would be required to disclose to prospective homebuyers, under section 1102.6, the “ ‘neighborhood noise problems or other nuisances’ ” caused by the defendants, provided the defendants were still living in the neighborhood at the time of a potential sale. (Alexander, supra, 7 Cal.App.4th at p. 978.) The court also agreed that such a disclosure likely would result in a lower purchase price. (Ibid.) Nevertheless, the court concluded the plaintiffs were not “entitled to the alleged diminution in value of their properties resulting from such disclosure.” (Ibid.) The court reasoned that it was required to presume that the defendants would comply with the trial court’s injunction, and “problems corrected through equitable relief may not be compensated through an award of damages. To hold otherwise permits a plaintiff to be unjustly enriched, receiving financial compensation when there is no compensable loss. Consequently, here on the assumption the [defendants] comply with the equitable terms of the judgment, the neighborhood problems will be resolved and the plaintiffs will suffer no damages.” (Ibid.; see also id. at p. 979 [“ ‘[i]f the plaintiff receives an injunction against the defendant which requires the defendant to abate the nuisance, the plaintiff can recover past and present damages, but not future damages, since the abatement order will terminate the nuisance for the future’ ”]; see Spaulding v. Cameron (1952) 38 Cal.2d 265, 269.) The court reached that conclusion despite its recognition that the history of the defendants’ offensive conduct might, in fact, cause some depreciation in the plaintiffs’ home value even if they complied with the injunction. (Alexander, at p. 980.)
Alexander pointed out that the plaintiffs had remedies available if the defendants failed to comply with the injunction. (Alexander, supra, 7 Cal.App.4th at pp. 978-979.)
Although the plaintiffs in Alexander apparently did not include a nuisance cause of action, the case is an extension of the well-established rule that diminution in home value is only recoverable for a permanent nuisance. For example, in Santa Fe Partnership v. ARCO Products Co. (1996) 46 Cal.App.4th 967, 968 (Santa Fe), the plaintiffs, owners of property contaminated by chemical pollutants, sought to recover damages for postremediation diminution in value of the property due to the continuing “stigma” from the past pollution. The court acknowledged that the assumption that “property reverts to its precontamination value once the contamination is remediated does not conform to market realities.” (Id. at p. 977) However, the court concluded it was bound by the rule that “a plaintiff-landowner cannot recover damages for future or prospective harm, including damages for diminution in value, in a case where the nuisance is deemed to be continuing and abatable.” (Id. at p. 975; see also id. at p. 976; Gehr v. Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 662-663.)
The reasoning of Alexander and Santa Fe is directly applicable here. As in those cases, the trial court here has enjoined defendants from continuing the conduct that resulted in plaintiff’s emotional distress. (See post, pt. II.F.) The conduct in this case is directly analogous to the conduct at issue in Alexander, supra, 7 Cal.App.4th 973; indeed, the plaintiffs in Alexander pled an IIED claim and the court remanded for determination of whether any of the plaintiffs were entitled to damages on the claim. (Id. at p. 980.) As in Alexander and Santa Fe, the possibility that the stigma of defendants’ presence will depress the value of plaintiff’s home—even if defendants are abiding by the trial court’s restraining orders—does not provide a basis for damages for diminution in home value. (Alexander, supra, 7 Cal.App.4th at p. 980; Santa Fe, supra, 46 Cal.App.4th at p. 977.) The “principles of fairness, public policy and judicial economy” (Santa Fe, at p. 973) that led to the rule in the nuisance context are applicable here. (See also Id. at pp. 973-975, explaining Spaulding v. Cameron, supra, 38 Cal.2d 265.) The trial court did not err in concluding plaintiff was not entitled to damages for diminution in the value of her home.
Given our ruling, it is unnecessary to address the highly speculative nature of plaintiff’s damages claim. It is, of course, unknown whether defendants will still reside in their condominium if and when plaintiff decides to sell her condominium. If defendants have departed, it seems unlikely their past misconduct would have any impact on the sales price. Neither is it necessary to address whether plaintiff was competent to testify regarding the impact of defendants’ misconduct on the value of her home.
E. The Economic Damages Award Must Be Reduced to Reflect Medical Insurance Adjustments
After trial, defendants moved to reduce the economic damages on the IIED claim by the amount of adjustments to plaintiff’s medical bills by her insurer. (See Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 306-309.) The trial court granted the motion and ordered that the economic damages be reduced by $23,395. On appeal, defendants contend the trial court failed to incorporate that ruling into the judgment and request that the court be directed to enter an amended judgment reflecting an economic damages award of $41,605. Plaintiff does not oppose defendants’ request for the $23,395 reduction. This court will direct that the judgment be amended accordingly.
The amount of $41,605 reflects the jury’s economic damages award of $480,000, minus the $415,000 awarded for diminution in the value of plaintiff’s home and the $23,395 in insurance adjustments.
The California Supreme Court is considering medical expenses and the collateral source rule in Howell v. Hamilton Meats & Provisions, Inc., review granted March 10, 2010, S179115. Because no party has challenged the trial court’s ruling on that issue, we do not reach the issue in this decision.
F. The Trial Court Did Not Err in Issuing Restraining Orders Against Defendants
The trial court entered restraining orders against defendants under Code of Civil Procedure section 527.6, which authorizes a person who has suffered harassment, including threats of violence or a course of conduct causing substantial emotional distress, to seek an injunction prohibiting the harassment. Defendants raise various contentions of error, none of which have merit.
Because the restraining orders were not issued under the Ralph Act, we do not address defendants’ arguments about the propriety of the orders under that act.
Defendants contend plaintiff was required to file a new action in order to obtain restraining orders under Code of Civil Procedure section 527.6. However, although that section authorizes a person to file a petition seeking an injunction, defendants do not point to any language in the statute prohibiting a court from issuing an injunction in an ongoing proceeding, or any other authority for that proposition. In plaintiff’s written request for restraining orders, she attached completed copies of the forms developed by the Judicial Council of California for the purpose of requesting orders to stop harassment.
Defendants contend they did not receive the five days’ notice of hearing required by Code of Civil Procedure section 527.6, subdivision (g). However, Code of Civil Procedure section 527.6, subdivision (g) also provides that “The court may for good cause, on motion of the plaintiff or on its own motion, shorten the time for service on the defendant.” By letter dated March 12, 2009, plaintiff’s counsel informed the trial court and opposing counsel that plaintiff intended to seek protective orders and, at a hearing on March 26, 2009, plaintiff’s counsel advised the trial court that he had filed plaintiff’s application for the orders. The court responded, “I don’t think we need to have another hearing. We have had the trial.” The court invited defendants to file a response and set the hearing for the following Monday, less than five days later. After seeking unsuccessfully to continue the hearing to another date, defendants’ counsel agreed to the Monday hearing date. But when plaintiff’s counsel indicated he was unavailable, defendants’ counsel asked, “What about tomorrow?” The hearing was held the next day and the court issued restraining orders directing defendants, among other things, to stay at least 15 feet away from plaintiff and not to pound, throw objects on, or wash the skylight. On this record, we conclude the trial court impliedly found good cause to shorten the notice period under Code of Civil Procedure section 527.6, subdivision (g), because the factual record had been exhaustively developed at trial. Defendants do not argue the court lacked good cause.
Finally, defendants make several additional arguments in passing. They assert the trial court denied their right to seek a restraining order against plaintiff, but they cite to no portion of the record indicating they sought to file papers supporting such a request and to no authority the court was obligated to consider the request absent a motion. (See Code Civ. Proc., § 527.6, subd. (d).) Defendants assert they were denied their right to hear and present evidence, but they agreed to submit the issue if the court accepted three additional witness declarations, and the court did so. Defendants assert the court erred in relying on the jury’s findings as a basis for injunctive relief, but the record shows that the court issued the restraining orders based on its own assessment of the evidence, not based on the jury’s findings. Defendants argue there was no substantial evidence of a current need for restraining orders to prevent the harassment of plaintiff, but the evidence at trial, as detailed elsewhere in this decision, supports a finding of an ongoing threat of harassment by both defendants.
Defendants have not shown the trial court erred in issuing restraining orders against them.
DISPOSITION
The matter is remanded and the trial court is directed to amend its judgment to specify an economic damages award of $41,605 on the IIED claim. The court’s orders and judgment are otherwise affirmed. The parties shall bear their own costs on appeal.
We concur: JONES, P. J., BRUINIERS, J.