Filed 5/25/23 707 East Ocean Blvd. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

707 EAST OCEAN 

BOULEVARD LP,

Plaintiff and Respondent,

v.

JOSHUA ROGERS,

Defendant and Appellant.

 B320403

 Los Angeles County

 Super. Ct. No. 21LBCV00418

APPEAL from judgment of the Superior Court of Los 

Angeles County. Michael P. Vicencia, Judge. Affirmed.

Benjamin Porter Law Group and Elijah Porter for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

___________________________
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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, with 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 

limited record defendant provided 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 little 

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. 
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The minute order also states “a verdict form along with 

jury instructions and admitted exhibits is sent into the jury

deliberations room.” Defendant says in his appellate brief that

the trial court modified the special verdict form shortly after jury 

deliberations began to specify a range of dates during which 

plaintiff alleged defendant used his unit as a short-term rental. 

But defendant gave us no record citation showing that happened. 

The only citations 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 

notwithstanding the verdict (JNOV) he later filed in the trial 

court in which he contended the court modified the verdict form. 

On February 25, 2022, the 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 defendant’s conduct. 

The trial court entered judgment for plaintiff on March 17, 

2022.

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

Defendant argued the jury’s special verdict findings did not 

support the judgment because the Long Beach Municipal 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. Defendant timely 

appealed. 

DISCUSSION

Plaintiff filed no brief in this appeal. We therefore decide

the appeal “on the record, the opening brief, and any oral
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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.) The 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.” (Jameson 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).) An appellant is deemed to 

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

show with record citations 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].)

Here, 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 done so. His failure to demonstrate he did 

forfeits 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 motion 
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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 pp. 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 the
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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 defect only after the jury

was discharged. (Id. at pp. 1242–1243.) The Taylor court

distinguished Saxena, supra, 159 Cal.App.4th at page 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 in 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 special verdict form, like

the one in Taylor, failed to establish an essential element of

plaintiff’s claim against him. But defendant 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 defeats 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 raised 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 and
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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 provides 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.