Filed 8/7/14 Winser v. Pardee Homes CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts a nd 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

ANTHONY WINSER et al.,
Plaintiffs and Appellants,

v.
PARDEE HOMES,
Defendant and Appellant. 2d Civil No. B243615 (Super. Ct. No. 56-2011- 00397236-CU-CD-VTA) (Ventura County)

In this construction defect case th e jury found the defendant developer negligent and the building defective, but awar ded no damages. On appeal plaintiffs claim the judgment is not su pported by substantial evidence, damages must be
awarded as a matter of law and the verdic t was the result of ju ror misconduct. The defendant developer appeals the trial cour t's decision not to award expert witness fees pursuant to Code of Civil Pr ocedure section 998. We affirm.
FACTS Anthony and Michelle Winser pu rchased a home directly from the developer, Pardee Homes (Pardee) in March 2002. Other than installing a security system and tinting windows, the Winsers ha ve made no modifications to the home.2 In March 2004 the Winsers contact ed Pardee complaining of water
leaks at their doors and windows. Pardee sent its service representative, Robert Spielman, to the home. Spie lman looked for cracking an d water stains, pulled back the carpet and checked for clogs in the wi ndow track weep holes. He found no signs of water intrusion. The Winsers complained of water in trusion again in 2005. Spielman conducted another inspection but found no signs of water intrusion.
In 2006 the Winsers co mplained that the exte rior paint was bubbling and peeling. Spielman de termined that the paint wa s not bonding properly to the stucco. Pardee repainted the house with "Elastometric" paint. The Winsers did not complain again until March 2011. They complained about water leaks around windo ws and doors and paint defects. Spielman inspected but foun d no evidence of water intrus ion. He found, however, bubbling in the paint on the re ar elevation of the house. Pardee agreed to paint the
rear elevation. After the painting was complete , the Winsers complained their windows were fogging. Spielman insp ected and concluded it was a window warranty problem. In May 2011 the Winsers filed th e instant complaint against Pardee.
The Winsers retained Neil Tomis on, a general contractor with expertise in building envelopes. The bui lding envelope includes windows, doors and the general waterproofing of the home. The building envelope also includes a water proof membrane behind the stucco. Tomison conducted tests by connecting a spray rack to a hose and spraying the windows and doors. He found extensive leaking around windows and doors and from tears in the building envelope
membrane. Tomison also observed st aining and damage to the wood framing caused by water intrusion. The Winsers' ex pert contractor, Keith Daniels, estimated the total cost of repair at $202,181.23.3 Pardee's expert was David Ball, a licensed architect and building
contractor. Ball criticized Tomison's tes ting procedure. Ba ll testified Tomison sprayed too much water on the windows and doors, causing a "test induced leak." Ball testified he inspected the Winsers' house and saw no stai ning of the ceiling, drywall, carpet or on the trim or baseboard. If those areas had been subject to moisture, especially over 10 years, it woul d have been apparent . Ball testified he saw no evidence of damage in any of the photographs taken by Tomison or in any of the photographs taken after Tomison's te sting. Ball admitted some water got into the walls through cracks aro und the vinyl windows. But he attributed the water intrusion to Tomison's testing.
Verdict The jury found that Pardee was ne gligent and that there were defects in the building envelope, roofing componen ts and general construction. But the jury also found 11 to 1 that none of th e defects caused damage to the home. The trial court entered judgment in favor of Pardee. Motion for New Trial
The Winsers moved for a new tria l. The motion was supported by affidavits from two jurors. The jurors accused one juror of be ing overbearing. He consistently talked over other jurors and would not allo w other jurors to express their views. This juror and another claimed a backgro und and experience in engineering and construction. They asserted that photog raphs depicting damages did not in fact depict damages. The overbearing juror e xpressed the opinion that if the Winsers were to prevail then "the whole neighbor hood would sue." During deliberations two jurors conducted internet research "related to the case and our deliberations" using Google. The votes in the jury room differed from the vote s when the jury was polled. In opposition to the motion, Pardee filed affidavits from the two jurors
accused of misconduct as well as three ot her jurors, including the foreperson.4 The juror accused of being overbear ing denied he "talked over" other jurors. He and the other jurors made ever y effort to review th e evidence with the dissenting juror. No juror claimed any ex pertise in construc tion or engineering related to construction. The jurors were having difficulty understanding the term "due care." One juror suggeste d they "Google" it. The fo reperson told the juror not to do that, and that the jury should not consider anythi ng outside the evidence. If any juror Googled "due care," the result was not shared with the rest of the jury. The jury reviewed over 60 0 pictures entered into evidence purporting to show damage. The jurors did not see any evidence of damage. The vote in the jury room
was consistent with the vote refl ected when the jury was polled.
The trial court denied the motion for a new trial.
Costs On March 2, 2012, Pardee served the Winsers with an offer to compromise pursuant to Code of Civil Procedure sectio n 998 (section 998 offer). Pardee offered to settle for $5, 000 in exchange fo r mutual releases, with each party to bear its own costs. The Winsers did not accept the offer. After trial, Pardee filed a memora ndum of costs totaling $97,875.42, including expert fees of $77,660. The Wi nsers responded with a motion to tax costs on the ground that the section 998 offer was made in bad faith. On February 28, 2012, two days prior to the section 998 offer, the parties held settlement discussions. Pardee offered a global settlement of numerous cases the Winsers' attorney was prosecut ing against Pardee. The Winsers' portion of the global settlement offer was $25,000.
The trial court found:
At the time of the section 998 o ffer neither party had conducted any formal discovery. The Winsers had comp lained about water intrusion for some time. Their experts claimed to have conf irmed water leaks by visual inspection. They gave Pardee a list of defects a nd a demand of $120,000. Pardee's representatives were at the home many times but claim to have seen no leaks or5 damages. Pardee made an offer of $25,000 three days prior to the section 998 offer. Pardee does not explain how it could believe that the Winsers w ho had declined an offer of $25,000 would accept a $5,000 offe r three days later. Pardee's offer was made to preserve the right to expert witness fees, not to settle the case. The trial court granted the Winser s' motion to tax costs as to the expert witness fees only.
DISCUSSION
THE WINSERS' APPEAL
I.
The Winsers contend that Pardee fa iled to meaningfully contest their evidence of damage. The Winsers, as plaintiffs in this action, have the burden of proof. (See Evid. Code, § 500; Gebert v. Yank (1985) 172 Cal.App.3d 544, 552.) Where, as here, the judgment is against the pa rties who have the burden of proof, it is almost impossible for them to prevail on appeal by arguing the evidence compels a judgment in their favor. That is because unless the jury makes specific findings of fact in favor of the losing plaintiffs, we presume the jury fou nd plaintiffs' evidence lacks sufficient weight and credibility to carry the burden of proof. (See GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872 [We discard
evidence unfavorable to the prevailing party as lack ing sufficient verity to be accepted by the trier of fact].) We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence. ( Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427.)
The Winsers claim th eir evidence of damage was uncontradicted by Pardee's evidence. But the ju ry may reject even uncontra dicted evidence as lacking sufficient verity. (See Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.) In any event, the jury had hund reds of photographs purporting to show damage. We presume the jury reviewed those photographs and found
insufficient evidence of damage. (See Kunzler v. Karde (1980) 109 Cal.App.3d6 683, 688 [judgment presumed correct; we indulge in all intendments and presumptions to support it wh ere record is silent].) Th e jury was not required to believe the Winsers' expert when its ow n view of the evidence contradicted the expert's testimony. The jury is the trier of fact, not the expert. The Winsers argue that the pict ures show staining of framing members due to leaking cond itions throughout the home. They believe that as a matter of law the jury erred in finding that this did not rise to the level of damage. They cite MRI Healthcare Center of Glendale v. State Farm General Insurance Company (2010) 187 Cal.App.4th 766, 778-779 ( MRI Healthcare ), for the proposition that physical loss or damage o ccurs when an item of tangible property is physically altered by perils such as fire or water.
In MRI Healthcare , supra , 187 Cal.App.4th 766, plaintiff's MRI
machine was turned off and coul d not be turned back on. ( Id. at p. 780.) Plaintiff made a claim under its business policy coveri ng "'direct physical loss'" to insured property. The court determined there was no "'physical loss'" within the meaning of the policy because no external force ph ysically changed the machine. ( Ibid. )
The Winsers' reliance on MRI Healthcare is misplaced. The case does nothing more than interp ret a clause in an insuran ce contract. It says nothing about damages in tort. The Winsers cite no case that would have required the jury to award damages as a matter of law. The jury may well have believed Ball's testimony that the stains on the interior framing members are "lumberyard stains"
that occur when the lu mber sits outdoors before the bu ilding is wrapped or lathed. The jury may have reasonably concluded that stains on framing members enclosed within a wall do not by themselves show any harm to the home's structural integrity, its aesthetic appearance or its monetary va lue. Thus there is no basis for an award of damages.
II.
The Winsers contend the verdict was the result of juror misconduct.7 The Winsers' contention is based on the claim that tw o jurors stated they had a background and experience in construction and engineering. The Winsers argue this constitutes misconduct in that it is new evidence outside the evidence admitted at trial. (Citing Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 161.)
But in Whitlock , jurors used their experience in the Navy to bring in new evidence about the Navy's practices and procedures. Here although two jurors were accused of claiming experience in co nstruction and engineering, there is nothing to suggest they added any new evid ence. They simply used their expertise to analyze the eviden ce admitted at trial. As our Supreme Court stated in People v.
Steele (2002) 27 Cal.4th 1230, 1267, "[I]t woul d be an impossibly high standard to permit these jurors to express an opinion on this evidence with out relying on, or mentioning, their personal ex perience and background." The Winsers also mention the allega tion by one juror that other jurors used Google to conduct intern et research related to the case and the deliberations.
The trial court ruled the evidence not ad missible in that it is vague and lacks
foundation. The Winsers do not contes t the evidentiary ruling on appeal.
PARDEE'S APPEAL
III.
Pardee contends the trial court erre d in denying it expert witness fees

as costs. Where a plaintiff rejects a section 998 offer and fails to obtain a more favorable judgment, the trial court in its discretion may award defendant expert witness fees as costs. (Code Civ. Proc., § 998, subd. (c)(1).)
A section 998 offer must be made in good faith. ( Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) A good faith offer must be reasonable under the circumstances. ( Ibid. ) Normally, a token or nomi nal offer will not satisfy the requirement of good faith. ( Ibid. ) The offer must have some reasonable prospect of acceptance. ( Ibid. ) A party having no expectation that the offer will be accepted,8 will not be allowed to benefit from a no -risk offer made for the purpose of recovering large expert witness fees. ( Id. at pp. 1262-1263.) Here although Pardee's representa tives had inspected the house a number of times, at the tim e the section 998 offer was made neither side had conducted any formal discovery. Two days prior to the $5,000 section 998 offer, the Winsers rejected a $25,000 settlement offer. Pardee points to nothing that occurred in the two days after the Winser s rejected the $25,000 offer that would lead it to believe they would accept a $5,0 00 offer. The trial court could reasonably
conclude that Pardee had no reason to be lieve the $5,000 offer would be accepted, but was made to preserve the right to expe rt witness fees. Thus the offer was not made in good faith. The trial court did not abuse its discretion.
Pardee's reliance on Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 709-710, is misplaced. Th ere, plaintiff sued a ladder manufacturer for injuries to his back caused when a ladder slid. Discovery showed that the ladder's foot pads had been replaced by fo ot pads of an incorrect size; plaintiff engaged in strenuous activities inconsistent with the clai med injuries; plaintiff had degenerative disc disease anti-dating the a ccident; plaintiff has a previous back injury; and plaintiff's empl oyer reconditioned the ladder. The trial court found that, under the circumstances, defendant's $5,0 00 section 998 offer was made in good faith. The Court of Appeal affirmed.
But the circumstances in this case are different. For one thing, in
Culbertson , the defendant's $5,000 offer was not made within days of a $25,000 offer. Moreover, just as the court in Culbertson affirmed the trial court's exercise of discretion, we affirm the trial court here.
Nor does Martinez v. Brownco Cons truction Company, Inc. (2013) 56 Cal.4th 1014, assists Pardee. There, the plaintiff made two se ction 998 offers and the defendant failed to obtain a judgment more favorable than either offer. Our Supreme Court held that an award of expert fees may date back to the first offer. The case has nothing to do with whether the offers were made in good faith.9 The judgment is affirmed. The pa rties are to bear their own costs.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.Tari L. Cody, Judge
Superior Court County of Ventura

________________ ______________

Milstein Adelman, LLP, Fred M. Ad elman, Leslie J. Eng and Mayo L. Makarczyk for Plaintiffs and Appellants. Robert B. Titus, Anna T. Amun dson, Stutz Artiano Shinoff & Holtz,
Paul V. Carelli IV for Defendant and Appellant.