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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 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 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 the jury found the defendant developer 

negligent and the building defective, but awarded no damages. On appeal plaintiffs 

claim the judgment is not supported by substantial evidence, damages must be 

awarded as a matter of law and the verdict was the result of juror misconduct. The 

defendant developer appeals the trial court's decision not to award expert witness 

fees pursuant to Code of Civil Procedure section 998. We affirm. 

FACTS 

 Anthony and Michelle Winser purchased a home directly from the 

developer, Pardee Homes (Pardee) in March 2002. Other than installing a security 

system and tinting windows, the Winsers have made no modifications to the home. 
2 

 In March 2004 the Winsers contacted Pardee complaining of water 

leaks at their doors and windows. Pardee sent its service representative, Robert 

Spielman, to the home. Spielman looked for cracking and water stains, pulled back 

the carpet and checked for clogs in the window track weep holes. He found no 

signs of water intrusion. 

 The Winsers complained of water intrusion again in 2005. Spielman 

conducted another inspection but found no signs of water intrusion. 

 In 2006 the Winsers complained that the exterior paint was bubbling 

and peeling. Spielman determined that the paint was 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 windows and doors and paint defects. 

Spielman inspected but found no evidence of water intrusion. He found, however, 

bubbling in the paint on the rear elevation of the house. Pardee agreed to paint the 

rear elevation. 

 After the painting was complete, the Winsers complained their 

windows were fogging. Spielman inspected and concluded it was a window 

warranty problem. 

 In May 2011 the Winsers filed the instant complaint against Pardee. 

 The Winsers retained Neil Tomison, a general contractor with 

expertise in building envelopes. The building 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 staining and damage to the wood framing 

caused by water intrusion. The Winsers' expert 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 testing procedure. Ball 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 staining of the ceiling, 

drywall, carpet or on the trim or baseboard. If those areas had been subject to 

moisture, especially over 10 years, it would 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 testing. Ball admitted some water got into 

the walls through cracks around the vinyl windows. But he attributed the water 

intrusion to Tomison's testing. 

Verdict

 The jury found that Pardee was negligent and that there were defects 

in the building envelope, roofing components and general construction. But the 

jury also found 11 to 1 that none of the 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 trial. The motion was supported by 

affidavits from two jurors. 

 The jurors accused one juror of being overbearing. He consistently 

talked over other jurors and would not allow other jurors to express their views. 

This juror and another claimed a background and experience in engineering and 

construction. They asserted that photographs depicting damages did not in fact 

depict damages. The overbearing juror expressed the opinion that if the Winsers 

were to prevail then "the whole neighborhood 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 votes when the jury was 

polled. 

 In opposition to the motion, Pardee filed affidavits from the two jurors 

accused of misconduct as well as three other jurors, including the foreperson. 
4 

 The juror accused of being overbearing denied he "talked over" other 

jurors. He and the other jurors made every effort to review the evidence with the 

dissenting juror. No juror claimed any expertise in construction or engineering 

related to construction. The jurors were having difficulty understanding the term 

"due care." One juror suggested they "Google" it. The foreperson told the juror not 

to do that, and that the jury should not consider anything outside the evidence. If 

any juror Googled "due care," the result was not shared with the rest of the jury. 

The jury reviewed over 600 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 reflected 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 section 998 (section 998 offer). 

Pardee offered to settle for $5,000 in exchange for mutual releases, with each party 

to bear its own costs. The Winsers did not accept the offer. 

 After trial, Pardee filed a memorandum of costs totaling $97,875.42, 

including expert fees of $77,660. The Winsers 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 prosecuting against Pardee. The Winsers' portion 

of the global settlement offer was $25,000. 

 The trial court found: 

 At the time of the section 998 offer neither party had conducted any 

formal discovery. The Winsers had complained about water intrusion for some 

time. Their experts claimed to have confirmed water leaks by visual inspection. 

They gave Pardee a list of defects and a demand of $120,000. Pardee's 

representatives were at the home many times but claim to have seen no leaks or 
5 

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 who had declined an 

offer of $25,000 would accept a $5,000 offer 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 Winsers' motion to tax costs as to the 

expert witness fees only. 

DISCUSSION 

THE WINSERS' APPEAL

I. 

 The Winsers contend that Pardee failed 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 parties 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 found 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 lacking 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 their evidence of damage was uncontradicted by 

Pardee's evidence. But the jury may reject even uncontradicted evidence as lacking 

sufficient verity. (See Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.) 

 In any event, the jury had hundreds 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.3d 
6 

683, 688 [judgment presumed correct; we indulge in all intendments and 

presumptions to support it where record is silent].) The jury was not required to 

believe the Winsers' expert when its own view of the evidence contradicted the 

expert's testimony. The jury is the trier of fact, not the expert. 

 The Winsers argue that the pictures show staining of framing 

members due to leaking conditions 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 occurs 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 could not be turned back on. (Id. at p. 780.) Plaintiff 

made a claim under its business policy covering "'direct physical loss'" to insured 

property. The court determined there was no "'physical loss'" within the meaning of 

the policy because no external force physically changed the machine. (Ibid.) 

 The Winsers' reliance on MRI Healthcare is misplaced. The case 

does nothing more than interpret a clause in an insurance 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 lumber sits outdoors before the building 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 value. 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 two 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 construction and engineering, there is 

nothing to suggest they added any new evidence. They simply used their expertise 

to analyze the evidence admitted at trial. As our Supreme Court stated in People v. 

Steele (2002) 27 Cal.4th 1230, 1267, "[I]t would be an impossibly high standard to 

permit these jurors to express an opinion on this evidence without relying on, or 

mentioning, their personal experience and background." 

 The Winsers also mention the allegation by one juror that other jurors 

used Google to conduct internet research related to the case and the deliberations. 

The trial court ruled the evidence not admissible in that it is vague and lacks 

foundation. The Winsers do not contest the evidentiary ruling on appeal. 

PARDEE'S APPEAL 

III. 

 Pardee contends the trial court erred 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 nominal 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 representatives had inspected the house a 

number of times, at the time 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 Winsers rejected the $25,000 offer that would 

lead it to believe they would accept a $5,000 offer. The trial court could reasonably 

conclude that Pardee had no reason to believe the $5,000 offer would be accepted, 

but was made to preserve the right to expert 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. There, 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 foot pads of an incorrect size; plaintiff 

engaged in strenuous activities inconsistent with the claimed injuries; plaintiff had 

degenerative disc disease anti-dating the accident; plaintiff has a previous back 

injury; and plaintiff's employer reconditioned the ladder. The trial court found that, 

under the circumstances, defendant's $5,000 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 Construction Company, Inc. (2013) 56 

Cal.4th 1014, assists Pardee. There, the plaintiff made two section 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 parties 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. Adelman, Leslie J. Eng and Mayo L. 

Makarczyk for Plaintiffs and Appellants. 

 Robert B. Titus, Anna T. Amundson, Stutz Artiano Shinoff & Holtz, 

Paul V. Carelli IV for Defendant and Appellant.