Opinion
G054227
11-15-2017
JOHN MARZOLINO, Plaintiff and Appellant, v. RICK NAVARETTE et al., Defendants and Respondents.
Law Offices of Tina Locklear and William S. Fitch for Plaintiff and Appellant. Morrow & White, Christopher A. White and Mark S. Dove for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00790090) OPINION Appeal from a judgment of the Superior Court of Orange County, Frederick P. Aguirre, Judge. Affirmed. Law Offices of Tina Locklear and William S. Fitch for Plaintiff and Appellant. Morrow & White, Christopher A. White and Mark S. Dove for Defendants and Respondents.
John Marzolino appeals from a judgment awarding him over $16,000 on his negligence cause of action against Rick Navarette and Bedrock Restoration Stone Polishing (collectively, Navarette). Marzolino argues the trial court erred in granting's Navarette's motion in limine to exclude any reference to Marzolino's claim a contractor's license was required for the work done by Navarette, refusing to give CACI No. 1901 (concealment), and allowing an altered version of Special Verdict Form 300 (VF-300) (breach of contract) to be given to the jury.
Laura Navarette was dismissed with prejudice before the jury returned its verdict. She is not a party to this appeal.
Our ability to address the merits of Marzolino's first two contentions is limited because he neglected to include any witness testimony in the reporter's transcript. And Marzolino forfeited his third claim by failing to object to the special verdict form in the trial court. The judgment is affirmed.
FACTS
Because the reporter's transcript contains no witness testimony, our recitation of facts is limited to the hearings transcribed in the reporter's transcript, and the documents filed in the trial court and included in the cl.erk's transcript on appeal.
Marzolino and Navarette entered into an oral agreement for Navarette to place a topical coating on the concrete slab of Marzolino's house. Problems arose and Marzolino sued Navarette in May 2015. The complaint was amended twice, with the second amended complaint alleging causes of action for negligence, intentional misrepresentation, violation of Business and Professions Code section 7031, subdivision (b), breach of oral agreement, unfair business practices, and false promise.
The clerk's transcript does not contain any of the complaints. --------
Navarette filed a motion in limine to exclude any reference to the requirement of a contractor's license to perform the subject work on [Marzolino's] home," arguing expert testimony is required to determine whether a contractor's license is needed and Marzolino failed to designate any expert witness for trial. In his opposition, Marzolino asserted "the requirements for a contractor to be licensed are statutory and not opinion" and Navarette was "required, at minimum to hold a C-61 Limited Specialty License." The court granted Navarette's motion stating, "I don't find that this kind of resurfacing material being placed on top of concrete requires a contractor's license to perform that kind of work."
During discussions regarding jury instructions, Marzolino asked the trial court to give CACI No. 1901, dealing with concealment, because Navarette did not disclose the fact he was not a licensed contractor and Marzolino testified he would not have hired Navarette had he known that. The court denied the request for several reasons: "First of all, it's not clear that . . . Marzolino asked him directly if he was a licensed contractor. He couched it in terms of a compound question that had three or four elements to it. [¶] Second, I don't find . . . Navarette intentionally failed to disclose that fact. [¶] Third, . . . Marzolino could have gone to the website for the California Contractors License Board and discovered . . . [ ¶] . . . whether or not . . . Navarette was licensed or not."
The court indicated it would give special verdict form 300 (VF-300) for breach of contract. Navarette's counsel agreed to prepare the jury instructions verdict forms.
The jury was given four verdict forms: negligence, breach of contract, intentional misrepresentation, and false promise. It returned a verdict in favor of Marzolino solely on the negligence cause of action, awarding him over $16,000.
DISCUSSION
I. Motion in Limine
Marzolino argues the court erred in granting Navarette's motion in limine to exclude reference to the necessity of a contractor's license. The parties disagree on the standard of review. Marzolino contends whether a contractor's license is required is a question of law to be reviewed de novo, while Navarette asserts abuse of discretion is the correct standard. We need not decide which standard of review applies because Marzolino's claim fails under either.
According to Marzolino, the requirement of a contractor's license is a question of law and thus no expert testimony was necessary. He asserts Navarette's "manner and method used to affix this substance to [his] floor made it an installation upon real property" as well as an improvement to his home, thereby requiring Navarette to be properly licensed.
The record, however, is insufficient for us to determine what Navarette actually did. Marzolino cites no evidence to support his factual assertions. Nor can he, given his omission of any testimony in the reporter's transcript. By failing to provide an adequate record, Marzolino cannot meet his burden to show error. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 (Foust) [argument on appeal forfeited where appellant included only selected excerpts from clerk's transcript and failed to include reporter's transcript or exhibits, preventing meaningful review].) II. CACI No. 1901
Marzolino contends the court erred in refusing to instruct the jury with CACI No. 1901, the pattern instruction for concealment. Navarette correctly points out Marzolino failed to set forth the appropriate standard of review and submits the court's ruling should be reviewed for substantial evidence. The substantial evidence standard does apply, but in a manner contrary to the usual standard. A party is entitled to have the jury instructed on his theory of the case if the evidence could establish the necessary elements. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) Thus, a reviewing court must consider the evidence in the light "'most favorable to the contention that the requested instruction is applicable." (Ibid.) The problem here is that we have an inadequate record to review.
Marzolino maintains that when he asked Navarette if he was a licensed contractor, Navarette misled him by "stating he had been in business 35 years." The record, however, contains no supporting evidence regarding this claim. In his statement of the case, Marzolino cited his trial brief to support this assertion. "Citing points and authorities filed in the trial court is not appropriate support for factual assertions in a brief. Points and authorities are not presented under penalty of perjury. Matters set forth in points and authorities are not evidence. [Citation.]" (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.)
Without a reporter's transcript containing witness testimony, we have no way to assess the accuracy of Marzolino's description of the facts. To that end, the trial court questioned whether Marzolino directly asked Navarette if he was a licensed contractor, as it recalled Marzolino "couched it in terms of a compound question that had three or four elements to it." Lacking any means of review, we cannot conclude the court erred in not giving the requested instruction. (Foust, supra, 198 Cal.App.4th at pp. 186-187.) III. Special Verdict Form
Marzolino argues the special verdict form on breach of contract was incorrect because it had been altered. We agree but conclude Marzolino forfeited the error by not objecting at trial. He also failed to demonstrate prejudice.
The jury answered yes to question 1: "Did . . . Marzolino and . . . Navarette enter into a contract?" The verdict form directed the jury to answer question 2.
The jury answered yes to question 2: "Did . . . Marzolino do all, or substantially all, of the significant things that the contract required him to do[?]" The verdict form in this case directed, "If your answer to question 2 is yes, then answer question 3." (Italics added.)
The jury answered no to question 3: "Was . . . Marzolino excused from having to do all, or substantially all, of the significant things that the contract required him to do?" As directed by the verdict form, the jury did not answer the remaining questions.
Marzolino contends the instruction after question 2 should have read: "If your answer to question number 2 is yes, [skip question 3] and answer [question] 4." He is correct. (See Judicial Council of Cal. Civ. Jury Instns. (2015) CACI No. VF-300 ["If your answer to question 2 is yes, [skip question 3 and] answer question 4. If you answered no, [answer question 3 if excuse is at issue/stop here, answer no further questions, and have the presiding juror sign and date this form].])
Marzolino acknowledges he did not object to the special verdict form at trial, which ordinarily forfeits any objection on appeal. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 (Jensen).) He asserts, "waiver is not automatic, and there are many exceptions" such as "where the record indicates that the failure to object was not the result of a desire to reap a 'technical advantage' or engage in a "litigious strategy"" (Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452, 456, fn. 2), or where the verdict is fatally inconsistent. (Morris v. McCauley's Quality Transmission Service (1976) 60 Cal.App.3d 964, 972.)
Marzolino, however, makes no argument, reasoned or otherwise, and cites no legal authority showing how these exceptions apply under the facts of this case, thereby forfeiting any such claim. (People v. Stanley (1995) 10 Cal.4th 764, 793; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Absent any applicable exception, the general forfeiture rule governs. (Jensen, supra, 35 Cal.App.4th at p. 131.)
In Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1244, fn. 5 (Taylor), a "typographical error" in the special verdict's directions, similar to the mistake made here, resulted in a damage award in favor of the plaintiff on his cause of action for hostile work environment sexual harassment without answers to questions concerning two of the claim's elements. The Taylor court affirmed the trial court's conclusion the defendant employer had forfeited its claim the special verdict was fatally defective because it had failed to object before the jury was discharged. It explained, "Here,'"the alleged defect was apparent at the time the verdict was rendered and could have been corrected."' [Citation.] When the jury was polled it was clear that the jury had not answered questions five and six on whether respondent considered the work environment to be hostile or abusive and whether such an environment was a substantial factor in causing him harm. Because appellant did not object and had expressly approved the erroneous verdict form, it forfeited its claim that the special verdict is defective because the jury did not answer questions five and six. [Citations.]" (Id. at pp. 1242-1243.)
The jury in this case was similarly polled. Although the results of the poll were not included in the appellate record, a reasonable attorney would have realized then what appellate counsel now claims erroneously occurred. That is, "Having found unanimously that [Marzolino] had done all or substantially all of what the contract required the jury was then called upon to determine whether or not [his] performance was excused." As in Taylor, the special verdict error has been forfeited.
Even had the argument not been forfeited, "a defective special verdict form is subject to harmless error analysis," rather than automatic reversal. (Taylor, supra, 222 Cal.App.4th at p. 1244.) Under this standard, the judgment may be overturned only if "it is reasonably probable that a result more favorable to the [appellant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) "Under the Watson harmless error standard, it is the burden of appellants to show that it is reasonably probable that they would have received a more favorable result at trial had the error not occurred. [Citations.]" (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447.) Marzolino failed to carry his burden, as he provides no analysis or argument in this regard.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. FYBEL, J.