Filed 5/25/23 707 East Ocean Blv d. LP v. Rogers CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

707 EAST OCEAN

BOULEVARD LP

,

Plaintiff and Re spondent

,

v.

JOSHUA ROGERS

,

Defendant and Appellant

. B 3 20403

Los Angeles County

Super. Ct. No. 21LBC V00418

APPEAL from judgment of the Superior Court of Los

Angeles County

. Michael P. V i cencia, Judge

. Affirmed.

Benjamin Porter Law Group and Elijah Porter for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

___________________________2 Defendant and appellant Joshua Rogers seeks reversal of

the unlawful detainer judgment entered against him on a single

ground: the special verdict form did not include all facts

necessary to establish his liability

. Defendant fails to satisfy his

burden of showing in his appellate brief, wit h record citations,

that he timely raised this issue in the trial court below. We

therefore affirm.

BACKGROUND

We draw the following background information from the

limit ed record defendant pr ovided on appeal. The record consists

of a clerk’s transcript containing only a portion of the trial record.

From the clerk’s transcript

, we discern that the oral proceedings

before the trial court were not transcribed. There is no settled

statement of the trial proceedings. We have very littl e

information in the record before us about what happened at trial.

Defendant rented a housing unit from plaintiff 707 East

Ocean Boulevard LP

. Plaintiff discovered defendant was using

the unit as a short

- term rental. Plaintiff gave defendant a

three

- day notice to quit pursuant to Code of Civil Procedure

section 1161, subdivision 4. Among other things, the notice

stated defendant’s use of the unit was unlawful because plaintiff

had not registered his short

- term rental as required by

section 5

. 77 .030 of the Long Beach Municipal Code. Defendant

refused to quit and plaintiff sued.

The matter proceeded to a jury trial. A special verdict form

was prepared. It is unclear from the record who prepared it. The

minute order states that “[o]utside the presence of the jury,

verdict form is discussed.” Since there is no reporter’s transcript

,

we do not know what was discussed.3 The minute order also states “a verdict form along with

jury instructions and admitted exhibits is sent into the jury

deliberations room.” D efendant says in his appellate brief that

the trial court modified the special verdict fo r m shortly after jury

deliberations began to specify a range of dates during which

plaintiff alleged defendant used his unit as a short

- term ren tal.

But defendant gave us no record citation showing that happened

.

T he only citation s defendant provides in support of his contention

are the page of the minute order that says “verdict form is

discussed” and an assertion in a motion for judgment

notwi thstanding the verdict (JNOV) he later filed in the trial

court in which he contended the court modified the verdict form

. On February 25, 2022, t he jury returned its verdict with

the following three findings: (1) defendant used his unit to

conduct short

- term rentals without registering with the City of

Long Beach between October 21, 2020 and January 24, 2021;

(2) he was duly served with a notice to vacate; and (3) plaintiff

suffered $35,000 damages as a result of d efendant’s conduct.

The trial court entered judgment for plaintiff on March 17,

2022.

On April 1, 2022, defendant filed a motion for JNOV

.

D efendant argued the jury’s special verdict findings did not

support the judgment b ecause the Long Beach Municipa l Code

did not require short

- term rental registration for the period the

jury found he had been using his unit as a short

- term rental

. The

trial court denied defendant’s motion . D efendant timely

appealed.

DISCUSSION

Plaintiff filed no brief in this appeal

. We therefore decide

the appeal “on the record, the opening brief, and any oral4

argument by the appellant.” (Cal. Rules of Court,

rule 8.220(a)(2).)

A respondent’s failure to file a brief does not relieve the

appellant of its burdens on appeal. ( In re Marriage of F.M. &

M.M

. (2021) 65 Cal.App.5th 106, 110, fn. 1.) T he appellant bears

the burden “ to demonstrate, on the basis of the record presented

to the appellate court, that the trial court committed an error

that justifies reversal of the judgment. ” ( J ameson v. Desta (2018)

5 Cal.5th 594, 609 .)

Not only must the record be adequate; the appellant must

show entitlement to relief by citation to the record. (See Cal.

Rules of Court, rule 8.204(a ) (1) (C).) A n appellant is deemed to

have forfeited appellate review of a claim of error by failing to

show with record citation s that an objection was timely raised in

the trial court

. “ When an appellant ’ s brief makes no reference to

the pages of the record where a point can be found, an appellate

court need not search through the record in an effort to discover

the point purportedly made. [ Citations. ] We can simply deem

the contention to lack foundation and, thus, to be forfeited. ” ( In

re S.C

. (2006) 138 Cal.App.4th 396, 406

– 407 ; see also Dietz v.

Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799

– 800

( Dietz ) [same].)

H ere, defendant does not argue that he made a timely

objection to the special verdict form before the trial court

discharged the jury

. As discussed below, it was necessary for

defendant to have do ne so . His failure to demonstrate he did

forfeit s appellate review of the issue.

Defendant cites Saxena v. Goffney (2008) 159 Cal.App.4th

316 ( Saxena ) for the proposition that “ [ t ] he proper way to remedy

. . . a defective [special] verdict is to grant the defendant’s motion5

for JNOV.” In Saxena

, the court held that the

defendant

- appellant had preserved his objection to the form of

special verdict by raising the underlying legal issue in a

demurrer, in his objection to a related jury instruction, and in his

motion for new trial. ( Id. at p p. 327

– 328.) We are not persuaded

Saxena is good authority based on which we might find defendant

preserved the issue here.

We think the better rule is stated in Taylor v. Nabors

Drilling USA, LP (2014) 222 Cal.App.4th 1228 ( Taylor ) , which

held that a defendant

- appellant had waived its challenge to a

special verdict form by not objecting to the form before the trial

court discharged the jury , even though the defendant later filed a

motion for JNOV on the same ground asserted on appeal

. ( Id. at

p. 1242.) The Taylor court explained that “ ‘ “[f] ailure to object to

a verdict before the discharge of a jury and to request

clarification or further deliberation precludes a party from later

questioning the validity of that verdict if the alleged defect was

apparent at the time the verdict was rendered and could have

been corrected

. ” [Citation.] ’ [Citation.] ‘ The obvious purpose for

requiring an objection to a defective verdict before a jury is

discharged is to provide it an opportunity to cure the defect by

further deliberation. [Citation.] ’ [Citation

. ] ‘ The rule is designed

to advance efficiency and deter gamesmanship. ’ [Citation.]

‘ “ ‘ “ ‘ “If any other rule were to obtain, the party would in most

cases be careful to be silent as to his objections until it would be

too late to obviate them

. . . .” ’ ” ’ ” ’ ” ( Ibid

. , italics omitted

. )

The Taylor special verdict form contained a “typo” that

instructed jurors not to make findings about essential elements of

the plaintiff’s harassment claim, including causation. ( Taylor,

supra, 222 Cal.App.4th at p. 1241.) The jury followed the6

instruction and did not make at least two findings necessary to

support judgment on the cause of action. The trial court

nonetheless rejected the defendant’s motion for JNOV because

the defendant raised the issue of the defec t only after the jury

was discharged. ( Id

. at pp. 1242

– 1243.) The Ta ylor court

distinguished Saxena

, supra

, 159 Cal.App.4th at p age 328

, on the

grounds that the defendant

- appellant there had raised the issue

before the jury was discharged. ( Taylor

, at p. 1243.)

We agree with the Taylor court that any objection to the

form of special verdict must be raised i n the trial court before the

jury is discharged

. Permitting later challenges would have the

effect of giving a defendant a free option for a new trial if the

verdict rendered on a deficient form is unfavorable. (Cf. In re

Urayna L. (1999) 75 Cal.App.4th 883, 886 [applying rule of

waiver where failure to do so “ would permit a party to trifle with

the courts by standing silently by, thus permitting the

proceedings to reach a conclusion in which the party could

acquiesce if favorable and avoid if unfavorable ”].)

Here, defendant argues that the spe cial verdict form

, like

the one in Taylor

, failed to establish an essential element of

plaintiff’s claim against him. But d efendant does not assert in

his appellate brief that he raised this issue with the trial court

before the jury was discharged, much less provide relevant record

citations

. This failure defeat s his appeal. (See In re S.C

. , supra,

138 Cal.App.4th at pp. 406

– 407 [failure to provide record

citations demonstrating preservation of claimed error forfeits

issue]; Dietz

, supra, 177 Cal.App.4th at pp. 799

– 800 [same].) In

his appellate brief, the only time defendant says he rais ed the

issue was in his April 1, 2022 motion for JNOV

— a motion he

filed more than a month after the jury rendered its verdict and7

15 days after the trial court entered judgment on the jury’s

verdict. And, as stated above, that record citation is insufficient

to demonstrate error

.

All we know from the record citations defendant provide s is

that the trial court conferred with counsel about the special

verdict form before it was sent to the jury

. Without knowing

what comments or objections defendant made at that time, we

will not assume he expressed an objection on the grounds he later

raised in his motion for JNOV and now on appeal.

DISPOSITION

The judgment is affirmed

. No costs are awarded on appeal.

GRIMES, Acting P. J.

WE CONCUR:

WILEY , J.

VIRAMONTES, J.