APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa Hart Cole, Judge. Affirmed in part and reversed in part. (Los Angeles County Super. Ct. No. SC089233).
The opinion of the court was delivered by: Chaney, J.
CERTIFIED FOR PUBLICATION
The City of Santa Monica, on behalf of the People of the State of California, filed this civil action against defendant Isaac Gabriel, a landlord, under Business and Professions Code section 17200 et seq. It alleged Gabriel sexually harassed a tenant, entered tenants' units without permission, and rented uninhabitable space as living quarters. After a trial to the court, Gabriel was enjoined from having direct contact with tenants for five years, assessed a civil penalty, and ordered to pay plaintiff's attorney fees. On appeal, Gabriel contends sexual harassment is not a business practice, the trial court erred in admitting evidence of past bad acts, and no authority supports the award of attorney fees.
We reverse the attorney fees award but otherwise affirm.
Gabriel bought two multi-unit residential properties in Santa Monica in 1995. In 1998 he was convicted for unlawfully taking a tenant's personal property and changing the locks. He was ordered to perform 100 hours of community service. In 2004, a civil judgment in the amount of $81,690 plus attorney fees was obtained by tenants against him for illegal rent collection. In 2006, the City of Santa Monica, on behalf of the People, obtained a civil judgment for unfair practices committed from 2002 to 2004. Gabriel was assessed $40,000 in civil penalties and $43,000 in attorney fees.
In the current action, the People asserted one cause of action under the unfair competition laws. (UCL; Bus. & Prof. Code, § 17200 et seq.) They alleged that on numerous occasions in 2005 and 2006, Gabriel sexually harassed a tenant, a violation of Santa Monica Municipal Code (SMMC) part 4.56.020(j), Penal Code section 243.4, subdivision (e)(1), and Civil Code section 51.9. The People further alleged Gabriel made unlawful entries into tenants' units, in violation of SMMC part 4.56.020(d) and (l), and received payments for renting a utility closet as living quarters, a violation of SMMC part 8.96.050(a)(3). The People sought an injunction, appointment of a receiver to manage Gabriel's multi-unit, residential properties, civil penalties, costs of suit, and attorney fees pursuant to SMMC part 4.56.040(d). At trial, the court heard testimony from a tenant that Gabriel gave her unwanted hugs and kisses on several occasions while accepting her tenancy application and collecting the rent. She testified he was "always with a hug, and always some sort of a mouth near my mouth, whether that was with the hands positioning my head or my body. There was always a physical way of touching me." "[H]e would push himself into my immediate area and attempt to try to kiss me on the lips sometimes using [his] hands to position me . . . ."
The trial court heard testimony from three other tenants about additional, uncharged acts that occurred in 1995, 1997 and 1998. Melina Boudov testified Gabriel took a piece of wood tabletop from her without permission, assaulted her when she tried to retrieve it, and was nearby when there was a suspicious oil leak under her car. Mitchel Resnick testified that in 1995 Gabriel changed the lock on his garage in an attempt to force him to move and in 1998 smirked at him when he noticed someone had scratched the paint of his car with a key. He further testified that during the 1998 criminal trial someone slashed Gabriel's victim's tires in the courthouse parking lot. The implication was that Gabriel keyed the car and slashed the tires. Faith Foss testified that in 1997 Gabriel gave her an unwanted hug, grabbed or touched her breast, tried to kiss her, asked if she was a virgin, entered her apartment five to ten times without permission, and without permission removed an end table to have it appraised.
Gabriel repeatedly objected to these latter lines of testimony, arguing they were irrelevant and unduly prejudicial. The People argued Gabriel's remote acts were probative of the need for injunctive relief. The trial court overruled Gabriel's objections.
The trial court took judicial notice that on August 8, 2008, Gabriel was found guilty in an unrelated criminal matter of four misdemeanors, including obstructing an officer and resisting arrest in connection with a traffic stop.
The court found Gabriel rented uninhabitable space as living quarters, entered tenants' units unlawfully, and sexually harassed a tenant. It imposed a $7,500 civil penalty ($2,500 for each unfair practice) and enjoined Gabriel from interacting with tenants, setting forth its reasoning in a statement of decision filed on January 15, 2009: "Considering the nature and seriousness of the above described conduct, the persistence of the conduct, the defendant's past history of both civil and criminal violations and his complete lack of understanding of the nature and consequences of his conduct, the court enjoins the defendant from having any management role at any of his rental properties for a period of five years. The defendant is required to retain a management company approved by the City of Santa Monica, and the court, to perform all management duties ordinarily associated with rental property. The defendant is to have no contact with any past, present or future tenants. He is not to initiate or pursue any litigation, as a plaintiff, against any past, present or future tenant without the express authorization and supervision of a legal representative of the management company. He is not to enter any rental unit, either occupied or vacant, unless accompanied by a member of the management company and with good cause. Such good cause is within the sole discretion of the management representative. [¶] . . . [¶] The court is cognizant of the draconian nature of this injunction. However, the defendant has evidenced a long history of willful disobedience to previous warnings and orders. He does not appreciate the offensive and criminal nature of his conduct toward his tenants and others."
A. Admission of Evidence of Prior Acts
Gabriel argues admission of evidence regarding acts committed in 1995, 1997 and 1998 was improper under Evidence Code section 352, violated the four year limitations period set forth in Business and Professions Code section 17208, was barred by the doctrine of res judicata, and violated his constitutional right to due process. (Business and Professions Code section 17208 and the doctrine of res judicata are inapposite, as neither bars admission of evidence of remote acts.) A judgment may be set aside on the ground of improper admission of evidence only if the error complained of was prejudicial. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) "Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred." (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) ...