Filed 5/7/21 Sherwood v. Vogele CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROBERT SHERWOOD et al.,

Plaintiffs, Cross-defendants and

Appellants,

v.

EUGENE VOGELE et al.,

Defendants, Cross-complainants 

and Respondents.

 D076776

 (Super. Ct. No.

 37-2017-00012535-CU-BC-CTL)

ROBERT SHERWOOD et al., 

 Plaintiffs, Cross-defendants and

Appellants,

v.

EUGENE VOGELE,

 Defendant, Cross-complainant 

and Respondent,

CHARLES E. GILBERT et al.,

Cross-complainants and 

Respondents.

 

 D077088

 (Super. Ct. No. 

 37-2017-00012535-CU-BC-CTL)
2

CONSOLIDATED APPEALS from a judgment and postjudgment 

orders of the Superior Court of San Diego County, Kevin A. Enright, Judge. 

Affirmed.

Lokk Legal, Daryoosh Khashayar and Angela Ness, for Plaintiffs, 

Cross-defendants and Appellants, Robert Sherwood, Lazy Eye Coffee, LLC, 

and Ashley Babcock. 

Stokes Law, Bonnie Lynn Stokes and Brittany A. Salamin for 

Defendant, Cross-complainant and Respondent, Eugene Vogele and Linda 

Luckow, in her capacity as personal representative of the estate of Eugene 

Vogele. 

No appearance for Cross-complainants and Respondents, Charles 

Gilbert, Kevin Gilbert, and Linde Gilbert. 

Plaintiffs and appellants Robert Sherwood and Lazy Eye Coffee, LLC 

(collectively Sherwood) initiated litigation against defendant and respondent 

Eugene Vogele arising out of a dispute over building encroachments from 

Vogele’s property on adjacent property leased by Sherwood (the property).1 

The complaint spawned cross-complaints by Vogele against Sherwood and 

the property’s lessor, cross-defendants and respondents Charles Gilbert, 

Kevin Gilbert, and Linde Gilbert (the Gilberts); by the Gilberts against 

Sherwood; and by Sherwood against the Gilberts. Trial resulted in a

judgment on special verdicts in which a jury, assessing the parties’ efforts to 

mitigate their damages and respective percentages of fault, awarded (1) 

1 Ashley Babcock is also an appellant, as she was a cross-defendant in 

one of the cross-actions. For purposes of appeal, we refer to all three 

appellants as Sherwood as do appellants in their opening brief. Vogele died 

in December 2017, and Linda Luckow, his personal representative, took over 

the matters on behalf of his estate. We will refer to respondent as Vogele 

even though the party was Vogele’s estate. 
3

$6,000 in damages to Sherwood against Vogele and the Gilberts; (2) $50,000 

in damages to Vogele against Sherwood; and (3) $620,492 in damages to the 

Gilberts against Sherwood and Babcock. The trial court later awarded 

Sherwood $143,183.55 in attorney fees on his operative complaint; and 

awarded the Gilberts $425,125.94 in attorney fees and costs on their crosscomplaint.2 

Sherwood challenges the jury’s special verdict findings as to his 

mitigation of damages and percentage of fault, the Gilberts’ mitigation of 

their damages, and the award of damages to Vogele, on grounds the findings

lack sufficient evidence. He contends the special verdicts resulted from juror 

bias and prejudice against him, warranting a new trial on that ground as well 

as on grounds of inadequate damages and inconsistent verdicts. Sherwood 

finally challenges the attorney fee order, arguing the court abused its 

discretion by reducing his sought-after fees to an amount the court 

determined was incurred on his breach of contract claim. We affirm the

judgment and postjudgment orders.

2 This court consolidated Sherwood’s appeals from the judgment and 

postjudgment attorney fee orders. Sherwood has sought a partial dismissal 

of his attorney fee appeal as to the Gilberts, representing those issues are 

now moot as Sherwood and the Gilberts have settled their respective attorney 

fee claims. The Gilberts have since filed a “statement of non-interested 

parties” stating they are no longer parties, will not file briefing, and stipulate 

to Sherwood’s request for partial dismissal. The Gilberts have not filed a 

respondent’s brief, but their nonappearance does not absolve us from 

adjudicating the merits of Sherwood’s appeal from the judgment, in which he 

challenges the damages awarded to the Gilberts. (See In re Bryce C. (1995) 

12 Cal.4th 226, 232-233 [“if a respondent fails to file a brief, the judgment [or 

order] is not automatically reversed”]; In re Marriage of Everard (2020) 47 

Cal.App.5th 109, 111, fn. 1.) Having consolidated the appeals from the 

attorney fee order and from the judgment and based on the parties’ 

representations, we simply hold Sherwood’s challenge to the attorney fees 

awarded to the Gilberts is moot, and do not address it on that basis.
4

FACTUAL AND PROCEDURAL BACKGROUND

We state the facts and view the evidence in the light most favorable to

the jury’s special verdict, resolving all conflicts and indulging all reasonable 

inferences to support the judgment. (American Master Lease LLC v. Idanta 

Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1459, fn. 1; accord, Roby v. 

McKesson Corp. (2009) 47 Cal.4th 686, 693-694.)

In June 2016, Sherwood leased property from the Gilberts on which 

Sherwood and Babcock planned to build and operate a coffee house. The 

lease payment for the first year was $6,160 per month. The Gilberts’ 

property had a “zero lot line,” meaning it was “wall to wall” with adjacent 

property owned by Vogele. The Gilberts eventually understood that 

Sherwood’s project contemplated a second story rooftop deck, but the lease 

specified that they did not make representations about the property and 

Sherwood accepted the property “as is.” The lease also contained a hold

harmless clause by which Sherwood would represent and indemnify the 

Gilberts if he caused a claim to be filed against them. 

The project was the first time Sherwood had ever built a business from 

the “ground up.” Sherwood hired a general contractor and a designer, neither 

of whom had ever done a ground up commercial project. The designer did not 

have an architectural license, nor was she working under an architect. She 

did not have a survey done in the initial pre-design phase. After Sherwood 

entered into the lease, his contractor noticed that shed roof eaves from 

Vogele’s property were overhanging onto the Gilberts’ property and would 

impede the ability to build the project. The Gilberts did not notice the eaves 

were overhanging or perceive them an encroachment onto their property 

until it was brought to their attention. Kevin Gilbert first sought to resolve 

the matter informally and amicably with Vogele, but intended to follow up 
5

with a City of San Diego (City) code enforcement complaint if unsuccessful. 

Sherwood, on the other hand, expressed he saw “no alternative but to turn 

this over to [his] attorneys.” In late August 2016, he e-mailed Kevin Gilbert 

that it was his opinion that Vogele had “zero intention” to resolve the matter 

and “make this right.” Kevin Gilbert felt that from “day one” Sherwood did 

not believe Vogele would take down the encroachments. 

After Sherwood’s attorney demanded Vogele remove the encroaching 

eaves, Vogele and Sherwood in September 2016 entered into a written 

agreement by which Vogele would “remov[e] all existing illegal roof 

overhangs” and also remove a separate small three-window structure, which 

City had determined was a permit violation. On October 12, 2016, the day 

Vogele was to begin his work to remove the encroachment, Sherwood sent an 

e-mail copying Kevin Gilbert and others telling them that if he did not see 

Vogele’s removal work in progress, he would commence litigation “without 

further delay.” Sherwood stated he did not want to give Vogele “so much as a 

one-hour extension.” Sherwood wrote: “We will have to proceed as if the 

work [by Vogele] will not be done, which means we will have to spend 

considerably more on the build-out to accommodate the problem.” He 

continued: “For this reason I want to seek a million dollars in damages, and 

if in the end it is less, the amount can be adjusted down.” Sherwood told 

Kevin Gilbert to break off negotiations with Vogele and Gilbert did so. 

Gilbert understood that this meant Sherwood was going to spend more 

money and build the project, but proceed with litigation against Vogele for 

damages. 

In early 2017, based on communications from Sherwood and his 

designer, the Gilberts believed Sherwood was designing a “workaround” to 

the encroaching eaves, with a complete tear down of the existing building and 
6

construction of a new building. Based on that understanding and believing 

Sherwood was going to proceed with the project, the Gilberts authorized the 

demolition. In fact, Sherwood’s contractor was not asked to come up with 

alternative solutions regarding the encroaching eaves, and the final Cityapproved permit for the coffee shop showed the zero lot line without any 

mention of the encroaching eaves. Sherwood’s designer never found a 

definitive solution to design around the eaves. In February 2017, she emailed Sherwood about potential workarounds, but Sherwood wanted to 

proceed with the demolition permit, stating, “Once we begin demo[lition], it 

kind of paints a picture of Vogele that is a point of no return.” Sherwood’s 

attorney directed the designer to not submit redesigns to City for approval 

because Sherwood and his lawyer wanted a better understanding of which 

way the litigation was moving. Had the Gilberts known Sherwood was not 

proceeding with a workaround for his project, they would not have given 

permission to demolish their building because it would not make financial 

sense. 

In March 2017, Sherwood went ahead and demolished the building on 

the Gilberts’ property. Neighboring businesses complained of property 

damage as a result of the demolition. 

The following month, Sherwood, and eventually Lazy Eye Coffee, LLC,

sued Vogele for breach of Vogele’s agreement to remove the eaves, fraud 

(intentional misrepresentation), willful and negligent trespass, and nuisance. 

In that complaint, Sherwood sought a permanent injunction to compel Vogele 

to remove the encroachment from the property. Vogele filed a crosscomplaint against Sherwood and the Gilberts for, among other causes of 

action, fraud, negligence and trespass. Kevin and Linde Gilbert crosscomplained against Sherwood, Babcock and Lazy Eye Coffee, LLC for breach 
7

of lease and breach of Sherwood’s duty under the lease to indemnify and 

defend the Gilberts in connection with claims arising from Sherwood’s use of 

the premises. The Gilberts also sought judicial declarations as to Sherwood’s 

duty to defend them and his alleged agreement to accept the premises in an 

“as is” condition. 

Sherwood, however, terminated his lease with the Gilberts in 

September 2017.3 He later filed a cross-complaint against the Gilberts

alleging causes of action for fraud based on their failure to disclose what he 

alleged were unpermitted conditions existing on the property including the 

overhanging eaves, and breach of the covenant of quiet enjoyment. Sherwood 

sought a judicial declaration that by virtue of the Gilberts’ omission of 

material facts about the property, the lease with the Gilberts was invalid and 

unenforceable. 

Even after Sherwood commenced litigation, Kevin Gilbert believed 

based on attorney communications that Sherwood’s project was only on hold; 

that Sherwood still intended to build on the property. It was not until the 

summer of 2018 that Gilbert put out a sign to relet the property. He did not 

market the property in part because Vogele had placed a lis pendens upon it, 

which was a cloud on its title. At one point, the Gilberts looked into renting 

out the empty lot to food trucks, and City advised them depending on the lot 

size and whether it was paved they could put approximately three such 

trucks there. Kevin Gilbert found no interested renters, however. And the 

Gilberts did not have the income to pay for the required paving and fencing, 

3 Sherwood suggests he terminated his lease only because the trial court 

denied his application for a preliminary injunction. But the jury did not hear 

this; the record indicates the trial court in an in limine ruling precluded the 

parties from discussing the fact that Sherwood sought a preliminary 

injunction or the result of that hearing.
8

which would have cost between $15,000 and $17,000. In February 2019, 

Gilbert hired a broker to sell the property, initially listing it for $1 million but 

eventually dropping it to $950,000. The Gilberts’ trial expert found the 

current market value for the property was $700,000. 

The matters proceeded to a jury trial, where the parties presented

competing experts on damages and Sherwood’s due diligence obligations.

Vogele’s real estate economist expert Nathan Moeder testified his 

expertise was in market analysis, as well as financial and development 

advice to developers and investors on real estate projects. He explained his 

services were used to determine whether a project works or not, usually at 

the front end. Moeder explained the concept of due diligence. Understanding 

the project was a coffee house with a rooftop deck, due diligence would entail 

hiring architects and structural engineers, getting preliminary cost 

estimates, and calling City about zoning. Moeder testified this would be done 

prior to purchase or lease. His opinion was that Sherwood did not conduct 

the proper diligence before signing the lease; Sherwood committed to lease 

payments and exposed himself financially before knowing he would be able to 

build the project. Moeder also opined that Sherwood did not have the right 

team in place: his design architect was not right for the job, which 

necessitated structural changes, and Sherwood should have called a time out 

to find someone who had the proper experience. Also, Sherwood’s structural 

engineer was brought in too late, after Sherwood had committed himself 

financially to the project. According to Moeder, it was a “grave error” to tear 

down the building on the property because “in real estate development, you’re 

not going to tear down a building, unless you know you can build a new one”

and to do so without knowing whether you could build it was “wasting money 

without knowing that you can do it.” He continued: “Number two is not only 
9

if it’s torn down, but if you can’t build a new building, now you’re stuck with 

land, and that’s one of the damages here of mitigating damages is I don’t 

have a building anymore, and so that’s a loss of value.” Moeder testified that

from a developer or investor’s perspective, “I’m not going to keep . . . paying 

for things, unless I know we can build what we want to build. [¶] And if 

there is uncertainty with these eaves, what happens in real estate 

development is you call a time out, you stop everything, you address the 

eaves problem, and figure that out, and once you have resolution and if they 

do have to come down or they don’t, then you start spending money again in 

terms of how do we work around it or you haven’t wasted money, because you 

haven’t torn down a building and paid for something when you can’t build a 

new one, because the eaves don’t have to be taken down. [¶] . . . The proper 

approach would be to call a time out and address the eaves issue first.” 

Moeder also explained that due diligence included the type of lease; 

testifying it was “a whole different ballgame” when the building was 

removed. According to him, a tenant who builds a new building would want a 

lease term longer than 15 years to recoup the investment of building a brand 

new building for the landlord. Moeder testified that in Sherwood’s case, a 

new lease structure should have been considered in the due diligence process 

with a structural engineer to determine whether the building was not sound 

and had to be torn down and reconstructed from the ground up. 

Vogele’s expert in property management and real estate investing, 

Robert Griswold, testified that even in a lease situation a tenant must 

conduct due diligence as if it were a purchase, retaining experts to look at 

everything before signing the lease and making the financial commitment. 

Such diligence would entail talking to City’s development services 

department, making sure you can get a permit, and hiring engineers and 
10

construction experts. Griswold criticized Sherwood for not doing a financial 

feasibility study before signing the lease or later, when changing from a 

remodel to a complete demolition. He explained that in a commercial 

situation, and particularly where the tenant took the property “as is, where

is,” the tenant is expected to have done his/her homework and hired the right 

professionals. Griswold’s opinion was that the shed roof and overhang was 

open and obvious, and did not need to be disclosed by the Gilberts. He also 

testified the protrusions were not material or significant in that they would 

not prevent a person from redeveloping the existing building or tearing down 

and rebuilding. Griswold testified, “[Y]ou could easily build around them, 

even while you pursue legal action against the property owner.” Griswold 

testified Sherwood’s designer did not represent Sherwood well, as there was 

plenty of time to change course and exit or renegotiate the deal. 

 The jury returned special verdicts as follows: 

On Sherwood’s complaint against Vogele and the Gilberts, the jury 

found in favor of Sherwood that there was a binding contract between 

Sherwood and Vogele that Vogele breached, and that Vogele negligently 

trespassed and also maintained a private nuisance, causing Sherwood 

$1,463,745 in past and future economic damages. However, the jury found 

Sherwood could have avoided $1,433,745 in damages with reasonable efforts, 

expenditures or mitigation. It then assigned Sherwood 75 percent of 

responsibility for his own harm, with Vogele having 20 percent and the 

Gilberts five percent responsibility. 

On Vogele’s claims against Sherwood, the jury found Sherwood 

negligent, but that Sherwood did not negligently puncture Vogele’s property 

so as to cause building materials or debris to enter it. It found Vogele 
11

incurred $50,000 in damages to his property, and assigned 100 percent of the 

responsibility of the harm to Sherwood. 

On the Gilberts’ claims against Sherwood, the jury found Sherwood 

breached the contract with the Gilberts; that he failed to perform the 

requisite due diligence, the Gilberts did not fail to disclose a known defect 

regarding the property, and the Gilberts were harmed in the amount of 

$705,308 in past and future economic loss by Sherwood’s breach. The jury 

found that the Gilberts could have avoided $84,816 of those damages with 

reasonable expenditures or mitigation, leaving them a total of $620,492 in 

damages. The trial court entered judgment accordingly, ordering that 

Sherwood take nothing from the Gilberts; Sherwood recover $6,000 from 

Vogele’s estate; Vogele’s estate recover $50,000 from Sherwood; the Gilberts 

recover $620,492 from Sherwood; and Vogele’s estate recover $29,027.50 in 

costs from Sherwood.

Sherwood moved for judgment notwithstanding the verdict (JNOV) and 

for a new trial, the latter in part on grounds there was jury misconduct as a 

result of juror bias. Sherwood submitted declarations from two jurors

purporting to describe statements from “multiple jurors” about not wanting 

to give Sherwood “a penny” and stating their own belief the verdicts were 

based on bias against Sherwood. 

The trial court denied the motions, ruling, among other things, the 

juror declarations were inadmissible as speculative, containing hearsay, and 

setting forth jurors’ mental processes. The court also found sufficient 

evidence supported the jury’s verdicts and Sherwood had not shown any 

irreconcilable inconsistency in them. 

On the parties’ competing motions for prevailing party attorney fees, 

the court awarded Sherwood $143,183.55 in attorney fees. The court reached 
12

this amount by taking Sherwood’s claim for $572,730.11 in fees, calculating 

the hours spent using a reasonable hourly rate and reducing those by 75 

percent because Sherwood prevailed only on his operative complaint.4

Sherwood appeals from the judgment as well as the postjudgment new 

trial motion order and attorney fee order. 

DISCUSSION

I. Sufficiency of the Evidence

Sherwood challenges the sufficiency of the evidence as to various jury 

findings, which we discuss seriatim. The applicable standard of review is 

settled: “ ‘ “When a finding of fact is attacked on the ground that there is not 

any substantial evidence to sustain it, the power of an appellate court begins 

and ends with the determination as to whether there is any substantial 

evidence contradicted or uncontradicted which will support the finding of 

fact.” [Citations.]’ [Citation.] ‘In a substantial evidence challenge to a

judgment, the appellate court will “consider all of the evidence in the light 

4 The court found the reasonable hourly attorney rate was $322.50, the 

average hourly rate of Sherwood’s two attorneys. It found Sherwood did not 

provide a breakdown of hours spent in litigating his operative complaint’s 

claims, but explained: “The $143,183.55 amount is based on the $322.50 

reasonabl[e] hourly rate times 443.98 hours, the amount of hours the court 

determined was a reasonable amount spent on . . . litigating plaintiffs’ 

contract and tort claims against Mr. Vogele. The 443.98 hours is one-fourth 

of the 1,775.91 hours, the time the court determined plaintiffs spent in this 

entire matter ($572,730.11 / $322.50 = 1,775.91). The court, in its discretion, 

reduced the amount of hours spent in this matter (1,775.91) by 75 [percent]

because plaintiffs only prevailed on their operative complaint, which 

constituted one-fourth of the action in this matter. The other 75 [percent] of 

this matter consisted of . . . Mr. Vogele’s cross-complaint, the Gilberts’ crosscomplaint, and plaintiffs’ cross-complaint against the Gilberts, all in which 

the plaintiffs did not prevail on. Thus, the court, in its discretion, awards 

plaintiffs $143,183.55 in attorneys’ fees against the Estate.” (Some 

capitalization and emphasis omitted.) 
13

most favorable to the prevailing party, giving it the benefit of every 

reasonable inference, and resolving conflicts in support of the [findings]. 

[Citations.]” [Citation.] We may not reweigh the evidence and are bound by 

the trial court’s credibility determinations. [Citations.] Moreover, findings of 

fact are liberally construed to support the judgment.’ ” (In re Marriage of 

Wozniak (2020) 59 Cal.App.5th 120, 131.) This standard applies to a jury’s 

special verdicts. (See Mathews v. Happy Valley Conference Center, Inc. (2019) 

43 Cal.App.5th 236, 251; Frank v. County of Los Angeles (2007) 149 

Cal.App.4th 805, 816.)

“ ‘An appellant asserting lack of substantial evidence must fairly state 

all the evidence, not just the evidence favorable to the appellant. [Citation.] 

The appellant must “marshall all of the record evidence relevant to the point 

in question and affirmatively demonstrate its insufficiency to sustain the 

challenged finding.” [Citation.] A failure to state all material evidence may 

be deemed a waiver of the argument that the evidence was insufficient.’ ” 

(Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391, 1402.)

A. Sherwood’s Mitigation of Damages

Sherwood concedes that a party suffering damages from a breach of 

contract has a duty to take reasonable steps to mitigate those damages, and 

cannot recover for losses that reasonably could have been avoided. However, 

citing Seaboard Music Co. v. Germano (1972) 24 Cal.App.3d 618, he contends 

that the rule does not apply “where its effect would be to require an innocent 

party to sacrifice and surrender important and valuable rights.” Recounting 

the underlying facts surrounding his entry into the lease, Vogele’s agreement 

to remove the encroaching eaves, and purported assurances by Kevin Gilbert

that Vogele would honor his agreement, Sherwood states he relied on the 
14

agreement and assurances in proceeding with the project and demolishing 

the building. He argues his coffee house was to be a “unique” and 

“ ‘signature’ ” property, and asserts: “At no time prior to the litigation did 

Vogele communicate his intention not to honor the parties’ agreement. 

Litigation was the last resort in an effort to resolve the problem and to allow 

the coffee house to be built. The passage of time was occasioned by the 

continued assurances of [the Gilberts] that they could resolve the eaves 

problem with Vogele, and Sherwood trusted the Gilberts. All acts 

undertaken by Sherwood were with the express knowledge and consent of

[the Gilberts]. From Sherwood’s perspective, it was not until near the filing 

date of their complaint that they had knowledge that the damage and injury 

occasioned by Vogele’s failure and refusal to honor their contract had 

accrued. Therefore, it was not until near April of 2017[,] that Sherwood’s 

duty to mitigate damages arose. By this time Sherwood had previously 

entered into and become obligated to make monthly lease payments; had 

incurred costs and expenses associated with the project and construction; and 

had demolished the existing building on the subject property.” (Some 

capitalization omitted.) Sherwood maintains this evidence “was essentially 

uncontroverted.” From it, Sherwood contends no reasonable jury could have 

concluded that a near 100 percent reduction in a damage award occurred and 

it committed a “gross miscarriage of justice” as the reduction was without 

substantial evidence. 

“The doctrine of mitigation . . . is a limitation on liability for damages

. . . .” (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 789.) “The doctrine

. . . holds that ‘[a] plaintiff who suffers damage as a result of either a breach 

of contract or a tort has a duty to take reasonable steps to mitigate those 

damages and will not be able to recover for any losses which could have been 
15

thus avoided.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 

1691.) “The familiar rule requiring a plaintiff in a tort or contract action to 

mitigate damages embodies notions of fairness and socially responsible 

behavior which are fundamental to our jurisprudence. Most broadly stated, 

it precludes the recovery of damages which, through the exercise of due 

diligence, could have been avoided. Thus, in essence, it is a rule requiring 

reasonable conduct in commercial affairs.” (Parker v. Twentieth Century-Fox 

Film Corp. (1970) 3 Cal.3d 176, 185; Valle v. Oro Bank, at p. 1691 [plaintiff 

who suffers damage from breach of contract or tort “may not recover for 

damages avoidable through ordinary care and reasonable exertion”].)

Typically, “ ‘[t]he rule of [mitigation of damages] comes into play after a legal 

wrong has occurred, but while some damages may still be averted . . . .’ ” 

(Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066, quoting Prosser & 

Keeton, Torts (5th ed. 1984) § 65, p. 458; see also Clayworth, at p. 789.)

The burden of proving a plaintiff failed to mitigate damages is on the 

defendant. (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., 

U.S.A. (2013) 221 Cal.App.4th 867, 884.) Whether the defendant met that 

burden is a question of fact subject to review for substantial evidence. (Ibid.)

The adequacy of the plaintiff’s actions depends on the circumstances of the 

case, taking into consideration time, knowledge, opportunity, and expense. 

(Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 

Cal.App.3d 442, 466.) “The reasonableness of the injured party’s efforts must 

be judged in light of the situation existing at the time and not with the 

benefit of hindsight.” (State Dept. of Health Services v. Superior Court (2003) 

31 Cal.4th 1026, 1043-1044.)

Sherwood’s arguments as to the jury’s mitigation finding view the 

evidence in a light favorable to him, contrary to the principle of substantial 
16

evidence review requiring this court to view the evidence favorable to the 

jury’s finding. He does not fully recognize the evidence from which the jury 

could conclude, for example, that litigation was by no means Sherwood’s last 

resort. The evidence recounted above shows that Sherwood did not seek to 

limit his losses once he believed in October 2016 that Vogele was not going to 

act on his September 2016 agreement, but rather as of that time Sherwood 

intended to sue Vogele for a million dollars in damages and proceed with his 

project, instructing Kevin Gilbert to cut off communications with Vogele. 

“One has an obligation to avoid an unwarranted enhancement of damages 

‘through passive indifference or stubborn insistence upon a conceived legal 

right . . . .’ ” (Valle de Oro Bank v. Gamboa, supra, 26 Cal.App.4th at p.

1691.) Nor does Sherwood acknowledge the expert testimony about the 

reasonableness of his proceeding with the project and demolition of the 

existing building when faced with Vogele’s failure to remove the encroaching 

eaves. Typically the obligation to mitigate damages begins once a legal 

wrong has occurred (Valle de Oro Bank, at p. 1691), and here the evidence 

was that Sherwood went ahead with the project and demolition, even 

obtaining permits for his original plans, though by October 2016 he believed 

Vogele was not going to abide by their agreement and take steps to remove 

the encroaching eaves. The jury reasonably reached its mitigation finding in 

view of this evidence. Sherwood cites no authority convincing us that the fact 

the Gilberts knew about Sherwood’s actions—or agreed to the demolition 

believing Sherwood and his team would build around the problem—relieves

Sherwood from the obligation to mitigate his own losses.

Sherwood asserts the evidence shows in January and February 2017 

the Gilberts continued to assure him Vogele would honor his agreement to

remove the eaves, and on that basis he proceeded with demolition. He 
17

asserts that after the Gilberts’ assurances proved false, “it was agreed” 

Sherwood would commence litigation. Even if there were some relevance to 

the jury’s mitigation finding that Sherwood moved forward only because of 

Kevin Gilbert’s assurances, such circumstances are contradicted by other 

evidence that we credit in our substantial evidence review. When asked if in 

January 2017 he continued to reassure Sherwood that Vogele would remove 

the eaves, Kevin Gilbert denied he told Sherwood not to worry; he testified

that he agreed to continue to talk to Vogele to nudge him in the right 

direction as long as Sherwood wanted Gilbert to do so. Gilbert testified that 

despite this, in January 2017 Sherwood continued to say he did not believe 

Vogele would remove the eaves, which according to Gilbert was what 

Sherwood said from “day one.” Kevin Gilbert denied agreeing to or approving 

Sherwood’s lawsuit; he testified that in making complaints with City he 

intended not to be part of any litigation against Vogele and always advised 

Sherwood to let City put pressure on Vogele and exhaust administrative 

remedies rather than resort to the courts. 

Nothing about Sherwood’s cited authority, Seaboard Music Co. v. 

Germano, supra, 24 Cal.App.3d 618 convinces us to overturn the jury’s 

mitigation finding or hold Sherwood was not required to mitigate his 

damages. In Seaboard Music, the court decided whether a plaintiff, the

lessor of a jukebox and pool table, should have been required to mitigate 

damages by re-leasing the equipment it got back from a defendant after the 

defendant repudiated his lease contract for those items. (Seaboard Music, at 

p. 622.) The Court of Appeal declined to apply the mitigation rule: “We are 

not concerned here with the owner of a single house or a single piece of 

equipment who enters into a lease. Such an owner can recoup or reduce the 

loss he sustains from a breach by re-leasing the property. The evidence here 
18

shows plaintiff was engaged in the business of leasing coin-operated 

equipment; it had a warehouse full of equipment similar to that leased to [the 

defendant] from which it serviced its customers and from which it could 

service any additional leases negotiated, irrespective of whether [defendant] 

fulfilled or breached his obligation. What appellants argue is that plaintiff 

was obligated to re-lease the equipment repossessed from [defendant] to 

reduce the liability incurred by reason of the breach in preference to using its 

own equipment, or additional equipment it might purchase, to carry on its 

normal business. In effect, they assert plaintiff should mitigate its damages 

and reduce their liability by foregoing profit which it would otherwise make in 

the normal course of its business. [¶] The rule of mitigation of damages has 

no application where its effect would be to require the innocent party to 

sacrifice and surrender important and valuable rights. [Citations.] It may 

not be imposed to deprive a plaintiff of the benefit of subsequent contracts 

which would have been available to him irrespective of the original breach.” 

(Seaboard Music, at p. 623, italics added.) In Seaboard, the court reasoned 

that a business owner who leases products is not required to sacrifice 

additional leases available to it so as to re-lease repossessed equipment. It 

was in that context that the court held mitigation of damages does not apply 

“where its effect would be to require the innocent party to sacrifice and 

surrender important and valuable rights.” (Id. at p. 623.) 

The principles expressed in Seaboard Music Co. v. Germano have no 

application here to Sherwood’s obligation to avoid continuing expenditures on 

a specific project that he knew could not go forward without removal of 

Vogele’s encroaching eaves, and then on ensuing litigation. Sherwood is not 

being asked to forego business available to him irrespective of Vogele’s breach. 

(Seaboard Music Co. v. Germano, supra, 24 Cal.App.3d at p. 623.) Rather, 
19

this is a situation where Sherwood elected to not avoid damages “ ‘through 

[his] stubborn insistence upon a conceived legal right’ ” (Valle de Oro Bank v. 

Gamboa, supra, 26 Cal.App.4th at p. 1691) to force Vogele to remove the 

eaves.

In short, Sherwood provides no basis for us to overturn the jury’s 

finding as to his mitigation of damages.

B. Jury’s Allocation of 75 Percent Fault to Sherwood 

Sherwood’s challenge to the jury’s 75 percent fault allocation to him is 

cursory. Asserting “[t]he jury’s special verdict found that [he] had a 

percentage of fault for 75 [percent] for its contract damages,” he contends

that comparative fault does not apply to a breach of contract cause of action. 

He then argues: “Inasmuch as comparative negligence was not a theory that 

could have or should have been applied to Sherwood’s breach of contract 

cause of action, the jury’s determination in this regard was improper and the 

lower court’s incorporation of this finding into its judgment was contrary to 

law.” (Some capitalization omitted.)

“ ‘Under the principles of comparative fault, a person’s negligent 

conduct [is] assigned a share of fault greater than zero percent . . . when the 

conduct was a substantial factor in the causation of the pertinent injuries. 

[Citations.]’ [Citation.] ‘ “[L]iability for damage will be borne by those whose 

negligence caused it in direct proportion to their respective fault.” [Citation.]’

[Citation.] ‘The comparative fault doctrine “is designed to permit the trier of 

fact to consider all relevant criteria in apportioning liability. The doctrine ‘is 

a flexible, commonsense concept, under which a jury properly may consider 

and evaluate the relative responsibility of various parties for an injury 

(whether their responsibility for the injury rests on negligence, strict liability, 

or other theories of responsibility), in order to arrive at an “equitable 
20

apportionment or allocation of loss.” ’ [Citation.]” [Citation.]’ ” (David v. 

Hernandez (2014) 226 Cal.App.4th 578, 591-592, quoting Pfeifer v. John 

Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285, 1287 and Aidan Ming-Ho 

Leung v. Verdugo Hills Hosp. (2012) 55 Cal.4th 291, 303.)

Sherwood’s challenge is based on a misreading of the jury’s special 

verdict form, the correctness of which we assess as a matter of law. (J.P. v. 

Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 339; City of San 

Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 

678.) Reversible error occurs only where special verdicts are “hopelessly 

ambiguous.” (Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 

Cal.2d 452, 457; accord, Fuller v. Dept. of Transportion (2019) 38 Cal.App.5th 

1034, 1038.) “ ‘ “A verdict should be interpreted so as to uphold it and give it 

the effect intended by the jury . . . .” ’ [Citation.] Where special verdicts 

appear inconsistent, if any conclusions could be drawn which would explain 

the apparent conflict, the jury will be deemed to have drawn them.” 

(Wysinger v. Automobile Club of Southern Cal. (2007) 157 Cal.App.4th 413,

424.) However, this court is not permitted to choose between inconsistent 

answers in a special verdict. (Singh v. Southland Stone (2010) 186 

Cal.App.4th 338, 358.)

The parties drafted the special verdict form in six sections, five for each 

of Sherwood’s causes of action against Vogele and the Gilberts5 and the sixth 

generally labeled “damages (all parties).” (Some capitalization omitted.) As 

to negligent trespass and private nuisance, the jury found in Sherwood’s 

favor that Vogele recklessly or negligently caused the eaves to enter the 

5 Specifically, the special verdict’s sections were for Sherwood’s claims 

for breach of contract, negligent trespass, and private nuisance against 

Vogele as well his claims against the Gilberts for negligent misrepresentation 

and concealment. 
21

Gilberts’ property without Sherwood’s permission, and Vogele’s conduct was a 

substantial factor in causing Sherwood harm. The jury found that without 

Sherwood’s consent Vogele created a condition that was harmful to 

Sherwood’s use of the property, the condition interfered with Sherwood’s use 

or enjoyment of the property, an ordinary and reasonable person would have 

been annoyed or disturbed by the conduct, and the conduct was a substantial 

factor in causing Sherwood harm. It found the seriousness of the harm from 

Vogele’s conduct outweighed its public benefit, and Sherwood proved the 

harmful condition was continuing in nature. 

The damages section asked the jury to determine Sherwood’s damages 

for “past economic loss including . . . costs involved with the business and 

project, and rents”; “future economic loss including . . . costs of future rent 

owed to [the Gilberts]; and past non-economic loss including . . . mental 

anguish and annoyance.” (Some capitalization omitted.) It went on to ask 

what amount of Sherwood’s damages “could have been avoided with 

reasonable efforts or expenditures, or mitigated?” The jury assessed the 

verdict forms after considering the arguments of Vogele’s counsel, who 

emphasized Sherwood’s lack of diligence in connection with the project’s 

feasibility, and his proceeding with the project even though he believed 

Vogele was not going to remove the eaves, “push[ing] the plans through 

permitting as if the eaves don’t even exist . . . .” 

We see nothing hopelessly ambiguous about the verdict form, which 

appeared to have joint input from counsel and was finally approved by 

Sherwood’s counsel. Accordingly, we interpret it from its language 

considered in connection with the pleadings, evidence and instructions, as 

well as counsel’s arguments to the jury. (Fuller v. Department of 

Transportation, supra, 38 Cal.App.5th at p. 1038.) 
22

Doing so, we see that the structure of the verdict form did not attribute 

the comparative fault allocation to Sherwood’s breach of contract claim, as 

Sherwood maintains. The “fair import” of the special verdict (Fuller v. 

Department of Transportation, supra, 38 Cal.App.5th at p. 1038) is that the 

fault allocation question was directed at the negligence and continuing 

nuisance claims, to which principles of comparative fault are applicable. 

(Tint v. Sanborn (1989) 211 Cal.App.3d 1225, 1234, [“a trial court properly 

instructs the jury on comparative negligence principles in a nuisance action 

alleging damages to real property where . . . a defense claim is made that if a 

nuisance exists it arose because of . . . negligence”].) It was likewise 

appropriate for the jury to consider Sherwood’s mitigation of damages on the 

claims sounding in negligence. (Id. at p. 1235.) In sum, the special verdict 

form was not contrary to law as applying comparative fault principles to 

Sherwood’s breach of contract claim, as Sherwood contends.

Further, substantial evidence supports the jury’s finding of a 75 

percent fault allocation to Sherwood. As summarized above, Vogele’s experts 

Moeder and Griswold testified extensively about Sherwood’s failure early on, 

before signing the lease, to take proper and reasonable steps to ensure the 

project could actually be built and was financially feasible by hiring the right 

team of qualified professionals, contacting City, and conducting surveys. 

Griswold pointed out that particularly where the lease contained an “as is” 

provision, the burden was on Sherwood to do his homework on the property’s 

suitability for his project. The evidence was that much of Sherwood’s damage 

was caused by his own failure at the project’s outset to hire the right team 

and conduct the proper due diligence before proceeding. The evidence shows 

that even though Sherwood believed Vogele would never remove the 

encroaching eaves, he expended money on consultants, obtained a permit, 
23

and ultimately demolished the Gilberts’ building as if the project could 

proceed without the encroachments. 

C. Jury’s Verdict on The Gilberts’ Mitigation of Damages

Sherwood contends substantial evidence does not support the jury’s 

verdict reducing the Gilberts’ damages by only $84,816 for the Gilberts’ 

failure to mitigate their damages. He argues the evidence shows the “utter 

failure” of the Gilberts in mitigating their damage by failing to lease or 

advertise the property, pave it and put a surrounding fence for food trucks, 

and by pricing it for sale well above its fair market value. He states: “If one 

were to assume that it might have taken the Gilberts three (3) months to 

pave and fence and property [sic] and to secure the food truck tenants, the 

balance owed on the lease by Sherwood would have been $258,720 (42 

months x $6,160 per month).” (Some capitalization omitted.) He submits 

with that amount as mitigation, the net judgment against him should have 

been $446,588, not $620,492 as reflected in the jury’s verdict. 

We cannot say Sherwood has met his burden to show that the Gilberts 

failed to reasonably mitigate damages in this breach of lease context. (See 

Civ. Code, § 1951.2, subds. (a)(2)-(3), (c); Powerhouse Motorsports Group, Inc. 

v. Yamaha Motor Corp, U.S.A., supra, 221 Cal.App.4th at p. 884.) The 

doctrine of mitigation “does not require the injured party to take measures 

which are unreasonable or impracticable or which would involve expenditures 

disproportionate to the loss sought to be avoided or which may be beyond his 

[or her] financial means.” (Lu v. Grewal (2005) 130 Cal.App.4th 841, 850.) 

Here, Kevin Gilbert testified the Gilberts did not have the funds to 

pave their empty lot or place fencing upon it so as to satisfy City demands as 

a condition to leasing it to food truck vendors, and there were no potential 

food truck vendors seeking to lease it in any event. Further, even if there 
24

were evidence the Gilberts could have expended capital on the property to 

conduct some business there, Sherwood is “not entitled to the benefit of [the 

Gilberts’] hard work and capital in making the property productive; nor 

should [the Gilberts] be punished for bringing the abandoned property back 

to life.” (Lu v. Grewal, supra, 130 Cal.App.4th at p. 851.) In Lu, after lessees

abandoned a commercial gas station/convenience store lease, the lessors 

repaired the property and operated the business. (Id. at p. 846.) They

unsuccessfully attempted to relet or sell the property. (Ibid.) The trial court 

entered judgment for the lessees, finding the lessors had fully mitigated their 

damages by deriving a profit from the business. (Id. at p. 848.) The Court of 

Appeal reversed on grounds the court applied the wrong mitigation standard 

and burden of proof, contrary to “notions of fairness, justice and common 

sense.” (Id. at pp. 851-852.) The proper measure of mitigation was amount of 

rental loss the lessees proved could have been reasonably avoided, not the 

operational profits stemming from lessors’ hard work and capital in making 

the property productive. (Id. at pp. 850-851.) The latter is the sort of 

mitigation standard Sherwood impermissibly seeks to apply here. Sherwood 

does not otherwise challenge the jury’s damages award in the Gilberts’ favor. 

We see no reason to disturb the jury’s reduction of $84,816 as the amount of 

damages the Gilberts could have avoided in mitigation.

D. $50,000 Award to Vogele 

Sherwood contends there is no substantial evidence to support the 

jury’s $50,000 verdict in Vogele’s favor on his trespass cause of action. He 

points out the jury found he did not recklessly or negligently puncture 

Vogele’s property, and “[s]ince there could be no property damage as there 

was no trespass, the only logical conclusion to be reached is that the $50,000 

award was based on alleged emotional distress suffered by Vogele.” 
25

Sherwood argues a plaintiff may not recover emotional distress damages for a 

negligence-based property damage claim absent proof the defendant’s conduct 

caused physical injury. 

Again, this argument is based on a misreading of the jury’s special 

verdict form. The verdict form was drafted in three sections: the first for 

Vogele’s claim of negligence against Sherwood, the second for Vogele’s claim 

of trespass against Sherwood, and the third generally entitled “damages.” 

(Capitalization omitted.) In the first section, the jury found Sherwood was 

negligent and that his negligence was a substantial factor in causing Vogele 

harm. In the second section, the jury found Vogele owned his property, but 

that Sherwood did not recklessly or negligently puncture Vogele’s property 

causing building materials and/or building debris to enter it. With its “no” 

answer to that latter question, the verdict form nevertheless instructed the 

jury to proceed to the third damages section, where the jury was asked what 

amount it awarded Vogele’s estate for “past economic damages.” It awarded 

Vogele $50,000 for “damage to the Vogele property.” (Some capitalization 

omitted.)

The structure of the verdict form shows that the jury’s damages award 

pertains to Vogele’s claim of negligence, not trespass. And because the 

verdict form asked the jury to identify the amount of Vogele’s “past economic 

damages,” the award is unambiguously not an award of noneconomic, 

emotional distress damages. (See Burchell v. Faculty Physicians & Surgeons 

of Loma Linda University School of Medicine (2020) 54 Cal.App.5th 515, 526 

[noneconomic damages include pain and suffering and emotional distress]; 

Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300 [describing 

noneconomic damages as including emotional distress, pain and suffering].)
26

Sherwood does not further challenge the sufficiency of the evidence of 

the jury’s negligence finding or its $50,000 award, but we point out the award 

is supported by the testimony of Vogele’s general contractor expert John 

Thompson, who testified about the cost to fix Vogele’s building caused by the 

demolition. Among other things, he testified it would cost $50,000 to $75,000 

to reconfigure components outside of Vogele’s building (access panels for 

servicing electrical or plumbing, electrical conduit, and rain gutters) if the 

proposed project were erected next to it.6 Because Sherwood rendered the 

Gilberts’ property an empty lot and the lots were zero-lot line, the jury could 

reasonably conclude the reconfiguration of Vogele’s property would occur for 

any new construction. And this conclusion is consistent with Vogele’s 

counsel’s closing argument, in which she pointed out in connection with 

Thomson’s $50,000 to $75,000 damages assessment that the lots were zero lot 

line, and “[w]hatever someone is going to build, whether it’s this coffee or 

shop [sic] or anything else, you got to make sure you can still access 

[components such as electrical or vents].” In sum, Sherwood has provided no 

basis to disturb the jury’s $50,000 damage award to Vogele.

II. Alleged Juror Bias and Misconduct

Sherwood’s motion for new trial was based in part on the declarations 

of jurors L.M. and C.S. Both jurors averred that they disagreed with the 

jury’s verdict as to mitigation, and that the amount of awardable damages 

stemmed from Sherwood’s August 12, 2016 e-mail in which Sherwood stated 

he had entered into the lease so as to build a rooftop venue, and that he had 

already spent $30,000 on the project at that point. L.M. averred: “The 

6 Thompson also estimated the interior commercial tenant spaces 

suffered $15,000 in damages from the demolition and it would cost $162,000 

to retrofit the now-exposed masonry wall. The jury apparently rejected these 

elements of damage.
27

majority of the jury determined that Mr. Sherwood should have stopped the 

project and terminated the lease as of the date of the August 12, 2016

e[-]mail, and any damages sustained afterward could have been mitigated if 

he had done so.” L.M. continued: “At the start of our deliberations, before we 

had even examined any evidence, or examined very little evidence, multiple 

jurors expressed that ‘they were not going to give Sherwood a penny’ or 

expressed a similar sentiment. I believe they made this determination before 

examining all the evidence, as such statements were made before we had a 

chance to review the evidence and discuss it.” L.M. averred: “It is my belief 

that multiple jurors had a bias against Mr. Sherwood from the beginning and 

made their vote on the verdict forms based on that bias, not based on the law 

and evidence.” L.M. also averred: “It appeared [the jurors] came with a 

foregone conclusion and backed their way to the [v]erdict [f]orms. Some of 

the conclusions did not make sense to me, such as finding Mr. Sherwood 

should have terminated the contract in August of 2016 but giving the 

Gilberts over $600,000.00 in damages for Mr. Sherwood failing to pay rent 

after that date.” L.M. also stated the jurors discussed issues not in evidence, 

such as Sherwood’s relationship with Babcock or questioning what his “deal” 

was with “young girls.” L.M. further stated that during deliberations, “more 

than one juror mentioned a letter not in evidence” disputing the lease 

termination, though L.M. could not be sure the letter factored into any juror’s 

voting. Juror C.S. made similar averments.

Pointing to the assertions made in these declarations, Sherwood 

contends the jury’s special verdicts were the direct product of bias and 

prejudice of jurors who said they did not want to “give [him] a penny” before 

examining any or all of the evidence. He argues that none of the opposing 

juror declarations dispute that “central thesis . . . .” In his reply brief, he 
28

disputes that the declarations delved into the jurors’ mental processes. He 

says the declarations showed jurors “both expressing their actual bias, to wit, 

they were not going to award [him] ‘a dime’ and their further conduct 

implementing that bias, i.e. the [s]pecial [v]erdicts resulting in a negative 

award to [him].” 

“ ‘The right to unbiased and unprejudiced jurors is an inseparable and 

inalienable part of the right to trial by jury guaranteed by the Constitution.’ ” 

(Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110; People v. 

Galloway (1927) 202 Cal. 81, 92; Grobeson v. City of Los Angeles (2010) 190 

Cal.App.4th 778, 810.) Where juror misconduct materially affects the 

substantial rights of a party, a verdict may be vacated, in whole or in part, on 

a motion for a new trial. (Code Civ. Proc., § 657, par. Two.) A party moving 

for a new trial on the ground of juror misconduct bears the burden of 

establishing misconduct occurred and that misconduct was prejudicial. 

(Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 57; Donovan v. 

Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.)

To determine whether a party has established juror misconduct, “[t]he 

trial court must first ‘determine whether the affidavits supporting the motion 

are admissible. [Citation.]’ [Citation.] This, like any issue of admissibility, 

we review for abuse of discretion. [Citation.] [¶] Second, ‘If the evidence is 

admissible, the trial court must determine whether the facts establish 

misconduct. [Citation.]’ [Citation.] . . . [Citation.] On review from a trial 

court’s ‘determin[ation of] whether misconduct occurred, “[w]e accept the trial 

court’s credibility determinations and findings on questions of historical fact 

if supported by substantial evidence. [Citations.]” ’ [Citations.] [¶] ‘ “Lastly, 

assuming misconduct, the trial court must determine whether the 

misconduct was prejudicial.” ’ ” (Barboni v. Tuomi (2012) 210 Cal.App.4th 
29

340, 345.) We independently review whether any misconduct resulted in 

prejudice. (People v. Nesler (1997) 16 Cal.4th 561, 582-583.)

When assessing admissibility of the juror declarations, we abide by 

Evidence Code section 1150, subdivision (a): “Upon an inquiry as to the 

validity of a verdict, any otherwise admissible evidence may be received as to 

statements made, or conduct, conditions, or events occurring, either within or 

without the jury room, of such a character as is likely to have influenced the 

verdict improperly. No evidence is admissible to show the effect of such 

statement, conduct, condition, or event upon a juror either in influencing him 

to assent to or dissent from the verdict or concerning the mental processes by 

which it was determined.” Under this law, we “ ‘distinguish[ ] “between proof 

of overt acts, objectively ascertainable, and proof of the subjective reasoning 

processes of the individual juror, which can neither be corroborated nor 

disproved . . . .” ’ ” (People v. Danks (2004) 32 Cal.4th 269, 301-302.) It 

“ ‘ “prevents one juror from upsetting a verdict of the whole jury by 

impugning his own or his fellow jurors’ mental processes or reasons for assent 

or dissent. The only improper influences that may be proved under [Evidence 

Code] section 1150 to impeach a verdict, therefore, are those open to sight, 

hearing, and the other senses and thus subject to corroboration.” ’ ” (Id. at p. 

302; see People v. Hutchinson (1969) 71 Cal.2d 342, 349; Vomaska v. City of 

San Diego (1997) 55 Cal.App.4th 905, 910.)

Here, the trial court did not abuse its discretion by ruling inadmissible 

the portions of the jurors’ declarations stating that it “appeared” to them 

other jurors “came with a foregone conclusion and backed their way to the 

Verdict Forms” or it was their “belief” jurors were biased against Sherwood.

In addition to the statements being vague and speculative, those remarks 

seek to relate both the jurors’ own mental processes, as well as the mental 
30

processes and subjective reasoning of other jurors regarding their 

deliberations. As such, they cannot be considered under Evidence Code 

section 1150. (People v. Danks, supra, 32 Cal.4th at pp. 300, 302 [statement 

of juror about reasons for voting for the death penalty were inadmissible 

statements regarding mental processes and subjective reasoning]; see also 

People v. Munoz (2019) 31 Cal.App.5th 143, 167 [juror declaration about his 

or her “opinion” about why jurors found a defendant guilty, without 

additional specific details in support or other evidence, was “ ‘speculative’ and 

‘unsupported,’ ” and was insufficient to establish misconduct]; Lankster v. 

Alpha Beta Co. (1993) 15 Cal.App.4th 678, 681, fn. 1 [juror declaration 

inadmissible to the extent it purported to explain juror’s subjective reasoning 

about why defendant could not be liable]; Bandana Trading Co., Inc. v. 

Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1446 [court properly 

disregarded juror declaration that another juror discouraged others from 

asking questions and rushed them into completing special verdict form].) 

The trial court did not abuse its discretion in finding these portions of the 

affidavits inadmissible.

As for L.M.’s statements that multiple jurors remarked at the outset of 

deliberations they were not going to give Sherwood a penny, and discussed a 

letter not in evidence, Vogele presented contrary declarations from other 

jurors in opposition to Sherwood’s motion in which the jurors stated the jury 

followed the court’s instructions and did not make such statements or 

consider the referenced letter not in evidence. Juror R.P. stated he did not

witness or have “any knowledge of any juror stating ‘they were not going to 

give Sherwood a penny.’ ” Juror M.A. averred she did not “witness any juror 

making a determination of a verdict by making comments such as ‘they were 

not going to give Sherwood a penny’ before we thoroughly discussed and 
31

reviewed the evidence, and everyone had the chance for input and discussion 

of their views.” As for the letter, juror R.P. stated, “The letter was mentioned 

and seconds later it was dismissed because it was not in evidence and we 

were told not to consider it.” That juror continued: “Nor did seeing it briefly 

have any impact on my or to my observation on the other juror’s 

determinations.” Other juror declarations submitted by Vogele were in 

accord. As stated, in reviewing the order denying a new trial, we defer to the 

court’s credibility determinations on whether misconduct occurred if 

supported by substantial evidence (People v. Collins (2010) 49 Cal.4th 175, 

242; Barboni v. Tuomi, supra, 210 Cal.App.4th at p. 345; Jie v. Liang Tai 

Knitwear Co. (2001) 89 Cal.App.4th 654, 692-693) and indulge all 

presumptions to support the court’s order. (Jie, at pp. 666-667.) In view of 

this evidence, we uphold the trial court’s new trial order as to these elements

of asserted misconduct by implying a finding that L.M. and C.S. were not 

credible on them. Such implicit finding is sufficient to support the order. 

(Ibid.)7

We reach the same conclusion with regard to L.M. and C.S.’s remarks 

about jurors’ comments regarding Sherwood and “young girls.” Importantly, 

7 Notably, the alleged juror statements raised by Sherwood concerning 

not giving him “a penny” occurred during deliberations, not while evidence 

was still being presented. This is a significant difference. (See People v. 

Allen and Johnson (2011) 53 Cal.4th 60, 73 [statement by juror that made 

reference to his previous state of mind at a single point during trial did not 

indicate an intention to ignore the rest of the proceedings or evidence].) 

Thus, even if we were to credit these juror statements, as in People v. Allen 

and Johnson, they do not establish the juror “ignored further evidence, 

argument, instructions or the views of other jurors.” (Ibid.) “A juror who 

holds a preliminary view that a party’s case is weak does not violate the 

court’s instruction as long as his or her mind remains open to a fair 

consideration of the evidence, instructions, and shared opinions expressed 

during deliberations.” (Ibid.)
32

Sherwood does not argue these remarks amount to misconduct. And they 

were contradicted by other juror declarations that showed jurors made 

detailed examinations of the evidence during deliberations, and discounted 

the significance of any such remarks. “ ‘When an issue is tried on affidavits 

. . . and where there is a substantial conflict in the facts stated, a 

determination of the controverted facts by the trial court will not be 

disturbed.’ ” (Weathers v. Kaiser Foundation Hospitals, supra, 5 Cal.3d at pp.

108, 109 [“weighing the credibility of conflicting declarations on a motion for 

new trial is uniquely within the province of the trial court”].)8 We conclude 

the court was within it broad discretion in determining the comments did not 

reflect bias, or rise to the level of misconduct because they are remarks 

naturally expected in response to the evidence. Further, there is no 

indication jurors based their verdicts on those remarks. (See, e.g., English v. 

Lin (1994) 26 Cal.App.4th 1358, 1365 [insufficient evidence of juror 

misconduct where declarations did not show that juror’s remarks were 

8 One juror who submitted a declaration in opposition to the motion 

stated, “Any comments about Mr. Sherwood and ‘young girls’ did not impact 

any decision I made regarding the verdicts nor was it something the jury 

discussed at length. Based upon what I observed and witnessed during 

deliberations, I do not believe any jurors voted based upon bias or their 

opinion about Mr. Sherwood, but rather voted based on the evidence 

presented at trial.” Juror R.P. similarly stated: “Any comments on ‘young 

girls’ in regard to Sherwood were not a factor in the verdicts—based upon 

what I witnessed, the jurors considered the testimony and evidence admitted 

to reach our verdict.” Yet another juror stated, “I know I wasn’t swayed by a 

couple comments regarding Mr. Sherwood and I didn’t think the other jurors 

would have been either. We made a thorough timeline of events and we 

discussed it in great length. We also referred back to it when needed. [¶] I 

felt that the jury as a whole was very conscientious in going over all the 

written testimony.” 
33

considered as “additional evidence” by other members of the jury, as opposed 

to an explanation of the particular juror’s “reasoning process”].)

III. New Trial

Sherwood contends the trial court should have granted him a new trial 

on grounds of juror bias and misconduct, as well as inadequate damages 

based on the jury’s mitigation finding and inconsistent verdicts. This 

contention is largely based on the same arguments we have addressed and 

rejected above. As to inconsistent verdicts, Sherwood asserts without 

authority or developed legal analysis that the jury’s mitigation finding “is 

irreconcilable with its concurrent finding holding Sherwood liable for failure 

to pay past and future rent.” He then repeats his arguments that the 

evidence shows he had no duty to mitigate damages while Kevin Gilbert 

assured him Vogele would remove the eaves. These bare arguments do not 

demonstrate there is “no possibility of reconciling [the challenged] findings 

with each other” so as to disturb them. (City of San Diego v. D.R. Horton San 

Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 682.) We conclude the 

trial court did not err by denying Sherwood a new trial.

IV. Attorney Fee Award

Sherwood’s challenge to the trial court’s attorney fee award is also 

fairly cursory. He points out an award of fees under Civil Code section 1717 

must be based on a contract claim and given to the party prevailing on the 

contract. He points out the trial court determined he was the prevailing 

party in his breach of contract claim against Vogele. He correctly observes 

that the amount of reasonable attorney fees is committed to the trial court’s 

broad discretion and usually begins with the lodestar, which is the number of 

hours reasonably expended multiplied by the reasonable hourly rate, and 

then further adjusted based on factors specific to the case to fix the fair 
34

market value. (See Mountain Air Enterprises, LLC v. Sundowner Towers,

LLC (2017) 3 Cal.5th 744, 751; PLCM Group v. Drexler (2000) 22 Cal.4th 

1084, 1095-1096; Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 

383.) Those considerations include the nature of the litigation, its difficulty, 

the amount involved, the skill required and employed in its handling, the 

attention given, the success or failure and other circumstances. (PLCM 

Group, at p. 1096.) “The trial court’s exercise of discretion in deciding 

whether to increase or decrease the lodestar figure ‘will not be disturbed 

unless the appellate court is convinced the award is clearly wrong.’ ” (Espejo, 

at p. 383.) 

Sherwood then asserts: “It was the breach of contract by Vogele which 

led to Sherwood’s termination of the lease with Gibert. It was that breach 

which resulted in the filing of suit and the ensuing defense of Vogele’s CrossComplaints against both Sherwood and Gilbert. Thus, but for the breach of 

contract by Vogele, Sherwood would not have been in the position of 

defending and incurring substantial attorneys fee expenses in this litigation. 

Given the totality of the circumstances, Sherwood submits that an arbitrary 

allocation of but 25 [percent] to the contract claim as the basis for an award 

of attorneys’ fees was an abuse of discretion.” (Some capitalization omitted.) 

This is the entirety of Sherwood’s argument against the trial court’s 

$143,183.55 attorney fee award in his favor; he does not challenge the court’s 

determination of a $322.50 reasonable hourly rate or the court’s lodestar 

calculation. Sherwood does not discuss the scope of the attorney fee clause in 

the contract with Vogele (see Mountain Air Enterprises, LLC. v. Sundowner 

Towers, LLC, supra, 3 Cal.5th at p. 751), nor does he cite authorities 

pertaining to the allocation or apportionment of attorney fees between tort 

and contract claims, which was the basis for the trial court’s 75 percent 
35

reduction (see footnote 4, ante). Sherwood does not argue that all of the 

claims in his action and the cross-complaints were “ ‘ “inextricably 

intertwined” ’ ” (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 

1101, 1111), had related legal theories (Pulliam v. HNL Automotive Inc. 

(2021) 60 Cal.App.5th 396, 409), or that fees were incurred on factual or legal 

issues common to both his contract cause of action in which fees were proper 

and the others in which they were not allowed. (Cruz v. Fusion Buffet, Inc. 

(2020) 57 Cal.App.5th 221, 235; Erickson v. R.E.M. Concepts, Inc. (2005) 126 

Cal.App.4th 1073, 1083, citing Abdallah, at p. 1111; see Reynolds Metals Co. 

v. Alperson (1979) 25 Cal.3d 124, 129-130.) 

“ ‘Apportionment of a fee award between fees incurred on a contract 

cause of action and those incurred on other causes of action is within the trial 

court’s discretion . . . .’ ” (Erickson v. R.E.M. Concepts, Inc., supra, 126 

Cal.App.4th at p. 1083.) Such discretion is abused only when the court’s 

ruling is “clearly wrong” or exceeds the bounds of reason considering all 

circumstances before it. (Reynolds v. Ford Motor Company (2020) 47 

Cal.App.5th 1105, 1117; Santana v. FCS US, LLC (2020) 56 Cal.App.5th 334, 

348-349; see also Cahill v. San Diego Gas & Electric Co. (2011) 194 

Cal.App.4th 939, 957 [“Judicial discretion ‘implies absence of arbitrary 

determination, capricious disposition or whimsical thinking’ ” and “ ‘imports 

the exercise of discriminating judgment within the bounds of reason’ ”].) The 

trial court is in the best position to determine whether allocation of fees is 

required. (Cruz v. Fusion Buffet, Inc., supra, 57 Cal.App.5th at p. 235.) It is 

Sherwood’s burden to show the court abused its discretion. (Cahill, at p. 

957.)

Sherwood’s claim that the court made an “arbitrary” allocation of 25 

percent of the attorney fees to his contract cause of action is based only on his 
36

assertion that Vogele’s breach triggered his cancellation of the lease, the 

litigation and his having to defend against the cross-complaints. This 

assertion does not convince us that the trial court was clearly wrong to 

allocate one quarter of Sherwood’s attorney fees to his successful breach of 

contract claim—the one of Sherwood’s four causes of action on which he was 

entitled to recover fees. And Sherwood provides no basis for us to conclude 

his contract cause of action and his tort claims for nuisance, trespass or fraud 

were so intertwined or had related theories such that the court’s decision to 

award only fees on his contract claim was beyond all bounds of reason. 

DISPOSITION

The judgment and postjudgment orders are affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.