[REHEARING GRANTED December 31, 2013]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Stanislaus County No. 611455. Hurl William Johnson III, Judge.
[Copyrighted Material Omitted]
Endeman, Lincoln, Turek & Heater LLP, Henry E. Heater, James C. Allen and Linda B. Reich for Plaintiffs and Appellants.
Horvitz & Levy, Mitchell C. Tilner, Steven S. Fleischman; Robie & Matthai, Michael J. O’Neill, Craig W. Brunet; and Kenneth A. Kroot for Defendants and Respondents.
More than 70 residents of a 186-space mobilehome park sued the owner for failing to properly maintain the park’s physical improvements and common facilities, including the park’s sewer system, water pressure, electrical system, and matters related to security such as street lighting. The residents pursued claims for nuisance, breach of contract and negligence. After a 43-day jury trial, the jury found in favor of only six residents.
The losing residents filed this appeal, asserting instructional error, inconsistent special verdicts, and the erroneous exclusion of impeachment evidence.
We conclude that (1) the jury’s findings that there were substantial failures to maintain the park’s improvements, that did not affect a substantial number of people, can be reconciled with the jury’s findings that there were no breaches of contract; (2) while erroneous, the instruction regarding the elements of a public nuisance was not prejudicial; (3) the purportedly erroneous instruction on the elements of a private nuisance claim caused no harm because the jury decided the private nuisance claims without reaching the disputed elements; (4) the trial court erred by concluding the park’s rules and regulations were unambiguous and allowed the park to rent spaces to recreational vehicles; and (5) the trial court did not abuse its discretion when it prohibited the use of a questionnaire for impeachment purposes because the questionnaire had not been produced during discovery.
We therefore reverse the judgment and remand for further proceedings on the claims that the park’s owner rented spaces to recreational vehicles.
Appellant Linda Adams and over 70 other former and current residents of a mobilehome park named Colony Park Estates and located in Ceres, California (the Park) sued the owners and operators of the Park. They alleged the Park’s improvements and common facilities had not been properly maintained. Only six of the plaintiffs obtained favorable verdicts and were awarded damages.
The appellants are Linda Adams and 62 other residents who did not prevail at trial. Unless the context indicates otherwise, the appellants are referred to as the “plaintiffs.”
Equity Lifestyle Properties, Inc. is the parent company of the entities named as defendants in this lawsuit. The named defendants include: (1) MHC Colony Park Limited Partnership, doing business as Colony Park Estates; (2) MHC Colony Park, L.L.C.; (3) MHC Financing Limited Partnership Two; and (4) MHC-QRS Two, Inc. The limited partnerships are the current or former owners of the Park and the two other entities are their general partners. For purposes of the verdict, the named defendants stipulated that they could be treated as one entity. In this opinion, we will refer to these entities as “defendants” or “Colony Park.”
In this appeal, plaintiffs have not challenged the sufficiency of the evidence supporting the special verdicts or raised other issues that require a detailed description of the evidence presented at trial. Consequently, we will provide only a brief overview of the positions presented by the parties during the trial.
Plaintiffs contended that the Park was not properly maintained over the past 10 years. As to the Park’s sewer system, plaintiffs supported their position by referring to (1) citations issued by the California Department of Housing and Community Development (HCD) in 2001 through 2005; (2) testimony of an inspector for HCD whose first experience with the Park was a sewage spill in the 1990’s; and (3) the testimony of many of the plaintiffs regarding their experiences with the system. The plaintiffs also challenged defendants’ handling of abandoned mobilehomes and their maintenance of the Park’s water system, electrical system, and common areas and facilities.
Defendants’ theory of this case is that it was filed because the residents of the Park were unhappy with a rent increase. Defendants contend that after the notices of rent increase were sent in November 2005, the residents began to picket and advocate for the adoption of rent control. Defendants note the absence of written complaints about conditions at the Park before the rent increase was announced, their own policy of promptly acting on complaints by residents, and the increase in vandalism to the Park’s sewer system after the rent increase was announced.
In short, the parties held very different views about whether problems existed, the severity of the problems, and the source of some of the problems—particularly whether residents vandalized the sewer system in retaliation for the increase in rent.
Plaintiffs filed this action on December 1, 2006. The operative pleading is the first amended complaint (FAC), which included causes of action for nuisance, breach of contract, negligence, intentional interference with property rights, and various other claims. The FAC did not include claims for misrepresentation or fraud.
In the nuisance cause of action, plaintiffs alleged that defendants maintained a nuisance “by substantially failing to maintain the Park’s common areas, facilities, and physical improvements in good working order and condition.…” The alleged failures to maintain concerned the sewer system, the water system, drainage, the electrical system, the streets within the Park, lighting and other security measures, the gas delivery system, the laundry facilities, the swimming pool, and other facilities. Plaintiffs also alleged that the Park’s manager violated the Park’s rules. Based on the alleged failures to maintain and violations of the Park’s rules, plaintiffs asserted that “defendants created and maintained both a private and a public nuisance at common law and under Civil Code section 798.87.”
The lawsuit was tried before a jury in August, September and October of 2010. On Thursday, October 14, 2010, the testimony of the last witness was presented. The court directed the jury to return the following Tuesday for instructions and final arguments.
On Friday, October 15, 2010, the trial court and counsel worked on the jury instructions. That afternoon, the court went on the record and stated: “I think for the most part we’ve reached an agreement [on] how we’re going to instruct this jury.” The court stated its understanding that the plaintiffs were going to proceed on causes of action for public and private nuisance, breach of contract and negligence, which plaintiffs’ counsel confirmed.
The morning of Tuesday, October 19, 2010, prior to closing arguments, counsel for plaintiffs submitted a handwritten proposed jury instruction to the trial court regarding an implied contractual duty to maintain the Park’s facilities and improvements in good working order and condition. Additional facts relevant to the untimeliness of this proposed instruction are discussed in the unpublished portion of this opinion.
Counsel’s arguments to the jury were completed at the end of the day on Friday, October 22, 2010. The jury was directed to complete a “Special Verdict for Public Nuisance” (some capitalization omitted) and 44 special verdict forms for the claims of the individual plaintiffs for breach of contract, private nuisance and negligence.
As to the public nuisance claim, the jury found there was “a substantial failure by Colony Park to provide and maintain the physical improvements of the Park and the common facilities in good working order and condition.” However, the jury also found the substantial failure did not affect a substantial number of people at the same time. On the second basis for the public nuisance claim, the jury found there was no substantial violation by Colony Park of the Park’s rules and regulations. Therefore, plaintiffs obtained no monetary or injunctive relief under their public nuisance claim.
The special verdict forms for the claims of the individual plaintiffs contained 19 questions—three for breach of contract claims, eight for private nuisance, three for negligence, and five questions concerning damages. Only 44 special verdict forms were needed for the 72 plaintiffs because the forms addressed the claims relating to a single rental space and, in many instances, two or three plaintiffs lived together.
The jury found in favor of Joyce and Richard Avana (the Avanas) on their claim for private nuisance. Joyce Avana and her son Richard rented space 16. During closing argument, plaintiffs’ attorney asserted that the sewer records showed backup after backup in the Avanas’ home during 2004, 2005 and 2006. The attorney requested $40, 497 in damages for overpayment of rent and $16, 325 for loss of use and enjoyment. He also asserted: “To repair the home of the damage that’s been done by the park is $17, 143.” The jury awarded $10, 000 in damages for the cost of repair or replacement. No other damages were awarded.
The jury also found in favor of Erika and Alfonso Barragan (the Barragans), who rented space 61, on their claim for private nuisance. During closing argument, the attorney asserted (1) the sewer backed up into their home causing them to spend $2, 500 to replace the flooring and (2) the unit did not get sufficient amperage because of problems with the electrical pedestal connected to their unit. The jury found that the Barragans suffered $16, 275 in economic damages and that Erika Barragan suffered $15, 000 in noneconomic damages. In addition, the jury apportioned 25 percent of the fault to Erika, 25 percent to Alfonso, and 50 percent to defendants.
The jury found in favor of Milagro and Israel Cermeno (the Cermenos) on their negligence claim. The Cermenos rented space 75A. During closing
argument, plaintiffs’ attorney mentioned the problems the Cermenos had with flushing their toilet and slow drainage, though no sewage spills occurred inside their home. Counsel also mentioned problems with low water pressure and electrical service, maintenance of the laundry room, access to the fitness room, and rats infesting their home after a nearby abandoned home was demolished. The jury found the Cermenos incurred $4, 200 in economic damages and Milagro Cermenos suffered $10, 000 in noneconomic damages.
As to the claims of the remaining 64 plaintiffs, the jury found in favor of the defendants. On December 20, 2010, the trial court filed a judgment that implemented the jury’s special verdicts.
Plaintiffs then filed a timely motion for new trial or, in the alternative, for judgment notwithstanding the verdict. The motion asserted (1) instructional error regarding the elements of public nuisance; (2) inconsistent special verdicts regarding public nuisance and breach of contract; (3) inconsistency between the finding of no public nuisance and the findings of nuisance with respect to the Avanas, the Barragans and the Cermenos; and (4) insufficiency of the evidence to justify the verdict.
Following a hearing, the court filed a minute order denying plaintiffs’ motion.
In March 2011, 66 of the plaintiffs filed a notice of appeal relating to the judgment after jury trial and the order denying their motion for a new trial. Two weeks later, an amended notice of appeal was filed that listed only 63 of the plaintiffs as pursuing the appeal. The plaintiffs who won at trial—the Avanas, the Barragans and the Cermenos—are not parties to this appeal.