Filed 5/28/15 Phelps v. Bishop CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

WILLIE PHELPS,

Plaintiff and Respondent,

v.

REGGIE LYN BISHOP, SR.,

Defendant and Appellant. B252583 and B254891

(Los Angeles County Super. Ct. No. BC478175)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Steven J. Kleifield, Judge. Affirmed. Reggie L. Bishop, in pro. pe r., for Defendant and Appellant. Campbell & Farahani, Frances M. Camp bell and Nima Farahani for Plaintiff and Respondent.2 Plaintiff and respondent Willie Phelps sued her former landlord, appellant Reggie Lyn Bishop, Sr., for constructive ev iction by turning off the water and gas to her apartment and for a viola tion of Civil Code section 789.3. 1 A jury awarded respondent damages in the amount of $154,500, and the trial court awarded respondent $106,924 in attorney fees and entered judgment in her favor. Appellant, in propria persona, appeals th e jury verdict in appeal No. B252583 and the award of attorney f ees in appeal No. B254891. 2 We affirm the judgment in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND 3 Respondent lived in a rent-controlled apar tment on Stocker Street in the City of Los Angeles from 1997 through 2011. 4 Respondent testified that she had a good relationship with her previous landlord, but after appellant became the landlord in 2009, he began to harass her in what she believed was an attempt to force her to move out. For example, in April 2011, appellant demanded that respondent complete a new rental appli cation on the basis that she had exceeded the allowable number of occupants in the apartment, even though the previous landlord had

1 All unspecified statutory references are to the Civil Code. Section 789.3 prohibits a landlord from willfully causing, directly or indirectly, the interrup tion or termination of any utilities to a tenant with th e intent to terminate the tena nt’s occupancy. (§ 789.3, subd. (a).)

2 The appeals were consolidated for th e purposes of oral argument and decision.

3 The record contains no reporter’s tr anscript. However, the court approved respondent’s proposed settled statement of the oral proceedings of the case, summarizing the witnesses’ testimony.

4 A real estate agent testified that the fa ir market value of respondent’s apartment was $1,800 per month. Respondent paid $750 per month.3 approved the number of occupants. In addition, appellant repeatedly demanded that respondent allow entry to her apartmen t for unneeded repairs and then failed to send a repair person. In June and Augus t 2011, appellant served respondent with notices to quit for her alleged refusal to allow access for repairs, although no repairs were needed and no one came to make repairs. In September 2011, appellant served respondent with a notice to quit for the alleged failure to pay rent, even though she had paid it. In August 2011, appellant sued responde nt for unlawful detainer, demanding that respondent give him access to her apartment. Howeve r, in October 2011, there was a fire in a different apartmen t at the property. Appellant notified respondent that the utilities at the build ing were being discontinued for an indefinite time due to fire damage and advised her to seek shelter with the Red

Cross. Felipe Hernandez, a code enforcement officer with the Los Angeles Housing Department (housing department) inspected the property after the fire and told appellant to restore the gas and water to respondent’s apartment, but appellant

refused. Hernandez testifie d that there was nothing wr ong with the property that required the utilities to remain off. On October 18, 2011, a housing department inspector posted a two-day notice to restor e the utilities to respondent’s apartment. Appellant claimed he had b een ordered not to turn on the utilities. However,

Hernandez checked with th e Los Angeles Fire Depa rtment, the Los Angeles Department of Building and Safety, and appellant’s insuran ce company, and none of those entities had instructed appellant to keep the utilities off. Because appellant refused to turn on the utilities, the housing department issued a Notice to Vacate Substandard Building, ordering a ppellant to evict re spondent and pay her

relocation fees.4 Respondent moved out of the building from approximatel y October 14, 2011 through the end of November 2011, payi ng $3,600 for housing in a neighborhood she felt was dangerous. She had not wanted to move out of he r apartment because she had strong ties to the community ther e. Respondent was 77 years old at the

time of trial and on a fixed income a nd thus had limited resources to obtain housing in a safer neighborhood. Respondent’s attorney advised responde nt to settle the unlawful detainer

case so that she would not need to return to an apartment with no utilities, and thereafter sue appellant for constructive ev iction. On November 9, 2011, appellant and respondent settled the unlawful deta iner action by a superior court form, “Unlawful Detainer Stipulation and Judgme nt.” Respondent’s attorney informed appellant’s attorney that respondent pl anned to sue appellant for constructive eviction and refused to waive her right to do so. Pursuant to the agreement, respondent agreed to vacate the apartm ent by November 30, 2011, and appellant agreed to pay respondent the $17,000 relocation fee ordered by the housing department. The agreement provided that judgment would be en tered in favor of appellant only if respondent fa iled to vacate the premises. Appellant agreed that if respondent vacated the premises, he woul d dismiss the action with prejudice. Respondent vacated the premises pursuant to the agreement, and the action was

dismissed. In February 2012, respondent filed a complaint against appellant alleging

five causes of action: breach of the wa rranty of habitability, constructive eviction, negligent maintenance of the premises, vi olation of section 789. 3, and intentional

infliction of emotional distress. The tria l court overruled appe llant’s demurrer to the complaint and sustained respondent’s de murrer to appellant’s cross-complaint.5 The court denied appellant’s summary judgm ent motion, and the case proceeded to a jury trial. The jury returned a special verdict in favor of respondent on her section

789.3 claim and her constr uctive eviction claim. 5 The jury found that appellant had willfully caused respondent ’s gas and water to remain off for the purpose of terminating her occupancy a nd that he constructively evicted her. The jury awarded respondent damages in the amount of $154,500. The trial court entered judgment in respondent’s favor, awarding her $154,500 in dama ges, $2,305.35 in costs, and $106,924 in attorney fees . Appellant timely appealed.

DISCUSSION Appellant raises several argumen ts, none of which are meritorious. 6

5 As to respondent’s intentional infliction of emotional distress claim, the jury found that appellant’s conduct was outrageous but he did not intend to cause her emotional distress. Respondent’s claims of the breach of the warranty of habitability and negligent maintenance of the premises apparently were not sent to the jury because there are no jury instructions or verd icts on those claims.

6 Respondent has moved to dismiss the appeal pursu ant to the disentitlement doctrine. Under this discretionary doctrine, “[a]n appellate court may dismiss an appeal where the appellant has willfu lly disobeyed the lower cour t’s orders or engaged in obstructive tactics. [Citation.] [¶] The disentitlement doctrine has been applied to a wide range of cases, including cases in which an appellant is a judgment debtor who has frustrated or obstructed legitimate efforts to enforce a judgment. [Citations.]” ( Gwartz v. Weilert (2014) 231 Cal.App.4th 750, 757-758.) Respond ent’s motion is based on allegations of appellant’s post-judgment e fforts to prevent her from collecting on the judgment, such as by transferring the ap artment building to his daughter without consideration. We decline, however, to exer cise our discretion to engage in the factfinding needed to apply th e disentitlement doctrine and therefore deny respondent’s motion to dismiss.6 1. The Unlawful Detainer Settleme nt Agreement Does Not Bar Respondent’s Constructive Eviction Claim

Appellant contends that the settleme nt agreement in his unlawful detainer action should have acted as res judicata against respondent’s constructive eviction claim. Respondent contends that appellant has forfeited the defense of res judicata by failing to raise it in the trial court. (See JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1526 [res judicat a is an affirmative defense that is

forfeited if not raised and proven in the trial court]; In re Reno (2012) 55 Cal.4th 428, 506 [same].) Respondent is incorrect . Although appellant did not raise res judicata in his answer to the complaint, he did assert res judicata in his demurrer, as well as in his summary judgment motion. Nonetheless, appellant’s res judicata claim is unmeritorious because respondent ’s constructive eviction claim was not argued and decided in the unlaw ful detainer action. (See Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1171 [unlawful detainer action resolved by stipulated judgment had no collateral estoppe l effect as to breach of warranty of habitability claim that was not litigated and de termined in the prior action] ( Landeros ).) “The tenets of res judicata prescribe the preclusive effect of a prior final judgment on the merits. [Cita tion.] The doctrine has two distinct aspects: claim preclusion and issue preclusion. [Citation.] Claim preclus ion, often referred to as res judicata, provides that ‘a valid, fina l judgment on the merits precludes parties or their privies from relitigating the same “ cause of action” in a subsequent suit.’ [Citation.] Issue preclusion, or colla teral estoppel, ‘“pr ecludes relitigation of issues argued and decided in prior proceedings.”’ [Citation.]” ( City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 227-228.) “The party asserting collate ral estoppel has the burden to show from the record of7 the prior action that the asserted issue was previously litigated and determined. [Citation.]” ( Landeros

, supra , 39 Cal.App.4th at p. 1171.) The unlawful detainer statutory scheme “is intended and designed to provide an expeditious remedy for the recovery of possession of real property. [Citation.] Unlawful detainer actions are, accordingl y, of limited scope, generally dealing only with the issue of right to possession and no t other claims between the parties, even if related to the property. [Citation.]” ( Larson v. City and County of San

Francisco (2011) 192 Cal.App.4th 1263, 1297 ( Larson ); see also Martin-Bragg v.

Moore (2013) 219 Cal.App.4th 367, 385 [“In unlawful detainer proceedings, ordinarily the only triable issue is the right to possession of the disputed premises, along with incidental damages resulti ng from the unlawful detention. [Citations.]”].) Because of the limited scope of an unl awful detainer action, “a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a s ubsequent action to resolve questions of title [citations], or to adjudicate other legal and equitable claims between the parties [citations].” ( Vella v. Hudgins (1977) 20 Cal.3d 251, 255; Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 973 [judgment arising from unlawful detainer action is gi ven limited res judicata effect]; Gombiner v.

Swartz (2008) 167 Cal.App.4th 1365, 1371 [“ an unlawful detainer judgment has limited res judicata force because it typically follows a summary proceeding focused only on deciding a party’s right to immediate possession of property”].) Appellant contends that respondent forfeited her right to sue him, citing language from a box checked on the superior court form that states, “Defendant(s) [ sic ] rights under lease or rental agreemen t are forfeited.” As stated above,

unlawful detainer actions ar e limited in scope, generally addressing only the right8 to immediate possession of the premises, not other claims between the parties, even those related to the property. ( Larson

, supra , 192 Cal.App.4th at p. 1297.) This pro forma language on the superior c ourt form does not constitute a forfeiture of respondent’s other claims against a ppellant. The settlement agreement provided that respondent agreed to waive her right to “additional relocat ion fees above what she receives in this agreement,” but she did not agree to waive any other claims. The attorney who represented respondent in the unlawful detainer proceeding testified at trial that he specifically to ld appellant’s attorney that respondent planned to sue appellant for constructive ev iction and refused to waive her right to

do so. The settlement agreement in appellant ’s unlawful detainer action provided that respondent would move out of the apartment and appellant would pay the relocation fees ordered by the housing depa rtment. The agreement did not address any issues other than appellant’s right to possession and respondent’s right to

relocation fees. The stipulation “made no mention of a relinquishment by [respondent] of claims arising from a [constructive] eviction.” ( Pelletier v. Alameda Yacht Harbor (1986) 188 Cal.App.3d 1551, 1557.) Her claims accordin gly were “not fully and fairly litigated in an adversary heari ng, and thus [were] not conclusively established. [Citation.]” ( Ibid. [stipulated judgment in unlawful detainer proceeding did not have collateral estoppe l effect on retaliatory eviction claim];

Landeros

, supra , 39 Cal.App.4th at p. 1171 [stipulated judgment in unlawful detainer proceeding that contained “no language of comprehensive settlement of all matters between the pa rties arising from the lease” did not bar breach of9 warranty of habitability claim].) Re s judicata accordingly does not bar respondent’s constructive eviction claim. 7

2. The Evidence is Sufficient to Support the Jury’s Award of Damages and the Finding That Appellant Caused the In terruption of Utilitie s in Respondent’s Apartment 8

Appellant’s second argument is that the jury award is “constitutionally excessive” because he did not deprive res pondent of utilities. In essence, this contention is a challenge to the jury’s finding that appellant willfully caused respondent’s utilities to remain off. Appellant’s fifth ar gument is that the evidence does not support the findings that he constructively evic ted respondent and violated

section 789.3. We conclude that the ev idence supports the jury’s findings, including the amount of damages awarded. “‘“‘When a finding of fact is attack ed 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 ther e is any substantial evidence contradicted or uncontradicted which will support the findi ng of fact.’”’ [Citation.] ‘[W]e

7 Appellant raises various other claims re lated to his res judicata argument. He contends that respondent entered into the settlement agreement in bad faith; respondent’s action was a SLAPP (strategic lawsuit agains t public participation) action (Code Civ. Proc., § 425.16; Olsen v. Harbison (2005) 134 Cal.App.4th 278, 280); and that the trial court lacked jurisdiction to co nsider respondent’s claim beca use of the unlawful detainer settlement. Appellant did not raise these clai ms in the trial court and thus has forfeited them. (See Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Co. (2011) 197 Cal.App.4th 733, 740 [argum ent not litigated in trial court was forfeited on appeal].)

8 Appellant’s second argument, that the jury award is excessive because he did not deprive respondent of her utilities, is essentially the same as his fifth argument that the evidence is insufficient to support the jury’s findings th at he constructively evicted her and violated section 789.3. We therefore discuss these arguments together.10 presume that the record contains evid ence to sustain every finding of fact. [Citation.] It is the appellant’s burden to demonstrate that it does not.’ [Citation.]” ( Altavion, Inc. v. Konica Mi nolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 43.) “We must ‘view the evidence in th e light most favorable to the prevailing party, giving it the benefit of every reasona ble inference and resolving all conflicts

in its favor . . . .’ [Citation.]” ( Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.)

“‘A constructive eviction occurs when the acts or omissions . . . of a landlord, or any disturbance or interfe rence with the tenant’s possession by the landlord, renders the premises, or a s ubstantial portion thereof, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.’ [Citations.]” ( Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 925-926; see Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300 [“‘“[A]ny disturbance of the tenant’s posse ssion by the lessor or at his procurement

. . . which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive evicti on, provided the tenant vacates the premises within a reasonable time. [Citations.]” [Citations.]’”].) Section 789.3 prohibits a landlord from willfully causing the interruption of

utilities to a tenant with the intent to term inate the tenant’s occupancy. (§ 789.3, subd. (a).) A landlord who violates this section is liable for the tenant’s actual damages, up to “one hundred dollars ($ 100) for each day or part thereof the

landlord remains in violation of this sec tion,” but not less than $250, plus attorney fees. ( Id. , subd. (c)(2).) The jury’s findings that appellant w illfully deprived respondent’s apartment of utilities and that he constructively evicted her are supp orted by substantial11 evidence. After the fire in October 2011, appellant turned off the water and gas to respondent’s apartment, told her the utilities would be “unavailable for an indefinite period,” and suggested she “seek shelter with the Red Cross.” Appellant refused to restore the utilities despite bei ng ordered to do so by Hernandez, the code enforcement officer with the housing de partment. Hernandez testified that, if there had been a problem with the property that required the utilities to remain off, the city would have made the repair, but no repairs were needed. Appellant

continued to refuse to restore the u tilities after a housing department inspector posted a two-day notice to restore them. Los Angeles Fire Department battalion chief Timothy Kerbrat testified that the Lo s Angeles Fire Department did not order appellant to turn off the water or the gas at respondent’s apartment and that the fire department would not order a property owne r to leave the water and gas off for six weeks. Nor had the Los Ange les Department of Building and Safety or appellant’s insurance company told appellant to keep the utilities off. Respondent testified about appellant’s a ttempts to force her to move out of her apartment by accusing her falsely of re fusing to allow entry for repairs and of failing to pay her rent. Respondent’s son, Thomas Patton, corroborated respondent’s testimony that appellant rep eatedly sent her notices that he was coming to make repairs to her apartment wh en no repairs were needed, and that he would not show up. He further testified th at appellant told him that if respondent refused to sign a new rental agreement, “he would ‘get her M.F. ass out of there.’”

Patton also testified that he called the Department of Water and Power and the gas company to have the utilities turned on, but the agencies told him they had not

turned off the utilities. The evidence supports the jury’s findings that appellant deprived respondent of utility services with the intent to te rminate her occupancy and that, in doing so,12 he constructively evicted her by rendering the premises unfit and depriving her of the use of the premises. The jury’s award of damages also is supported by substan tial evidence. The jury received instructions on economic, noneconomic, and statut ory damages, and it awarded respondent $2000 in economi c damages and $1500 in statutory damages on her section 789.3 claim. As to her constructive eviction claim, the jury was instructed to determine respondent’s monthly loss as the difference between

her rent and the fair market value of the apartment, multiplied by the number of months she would have remained in the apar tment absent the cons tructive eviction. The jury also was instructed that, according to Social Security Online, the average life expectancy of a 76-y ear-old woman was 12 years. The difference between respondent’s rent and the fair market va lue of her apartment was $1050 per month, which, over 10 years, would result in da mages of $126,000. The jury awarded respondent $23,000 in past economic damages, $8,000 in past non-economic damages, and $120,000 in futu re economic damages on he r constructive eviction claim. The jury’s award was not excessive.

3. The Jury’s Findings Are Not Inconsistent 9 Appellant’s fourth argument is that the jury’s findings are inconsistent. His first contention is that the jury awarde d respondent $154,500, but the trial court entered judgment in the amount of $263,7 29.35. The trial court’s award reflects costs of $2,305.35 and $106,924 in attorney fees.

9 We need not address appellant’s thir d argument, that he did not breach the warranty of habitability or neg ligently maintain the premises. As noted above, these two claims were not sent to the jury. There are no jury instructions or verdict on the claims and therefore no findings or judgment to challenge.13 Appellant further contends that the ju ry’s finding that he violated section 789.3 is inconsistent with its finding that he did not intentionally cause respondent emotional distress. The jury found th at, although appellant ’s conduct toward respondent was outrageous, he did not inte nd to cause her emotional distress. Appellant contends that this finding is inconsistent with the finding that he willfully caused respondent’s gas and wa ter to remain off for the purpose of terminating her occupancy of the apartm ent. We reject his argument for two

reasons. First, appellant did not raise this issu e in the trial court and accordingly has forfeited it. (See Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 299 [if a verdict is merely ambiguous, “a party’s failure to seek cl arification of the verdict before the jury is discha rged may work a forfeiture of the purported defect on appeal”].) Even if not forfeite d, appellant is incorrect. The jury’s finding that appellant vi olated section 789.3 merely requires a finding that appellant intended to term inate respondent’s occupancy of her apartment. Whether appellant intended to cause respondent emotional distress is a different question from whether responde nt intended to terminate respondent’s occupancy of her apartmen t. Appellant may have intended to terminate respondent’s occupancy of the apartmen t for reasons other than to cause respondent emotional distress, such as for financial gain. The jury’s finding that appellant intended to te rminate respondent’s occ upancy of her apartment accordingly is not inconsistent with its finding that appellant did not intend to cause respondent emotional distress.14 4. The Trial Court Did Not Abuse its Discretion in Awarding Respondent Attorney Fees 10

Appellant contends that the trial c ourt’s award of $106,924 in attorney fees is excessive and that respondent is not en titled to attorney fees because he did not

violate section 789.3. 11 “‘We review the amount of attorney fees awarded for abuse of discretion. [Citation.] A trial court’s attorney fee award will not be set aside “absent a showing that it is manife stly excessive in the circumstances.” [Citation.]’ [Citation.]” ( Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487 ( Lunada Biomedical ).) Appellant did not oppose respondent’s motion for attorney fees. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challe nging party to point to the specific items challenged, with a sufficient argument a nd citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges in the trial court forfeits the claim on appeal.” ( Premier Medical Management Systems, Inc. v. Califo rnia Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564; see also City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 494 [failure to raise objections about unnecessary attorney

fees in the trial court waives the issu e on appeal].) Because appellant did not challenge respondent’s motion for attorney f ees in the trial court, he has forfeited

the issue.

10 The attorney fee award is the subject of the appeal in No. B254891, although appellant also raises it in No. B252583.

11 As discussed above, the jury’s finding th at appellant violated section 789.3 is supported by substantial evidence. Appe llant’s argument based on this contention accordingly is not discussed here.15 Appellant relies on Hale v. Morgan (1978) 22 Cal.3d 388 ( Hale ) to argue that he may challenge attorney f ees for the first time on appeal, but Hale is distinguishable. The issue in Hale was the constitutionality of section 789.3, an issue raised in an oblique manner in the trial court in that case. The California Supreme Court reasoned that, although a constitutional questi on generally is

waived if not raised at the earliest opportunity, the de fendant’s argument that the imposition of substantial penalties under sec tion 789.3 was “a ‘great injustice’”

sufficed to raise the constitu tional challenge below. ( Id. at p. 394.) Hale therefore does not support the proposition that the amount of attorney fees awarded pursuant to section 789.3 may be raised for the first time on appeal. Even if not forfeited, appellant’s cha llenge to the amount of attorney fees would fail. “In awarding attorney fees, th e court has broad discretion to determine

the reasonableness of the fees claimed in li ght of a number of factors, including the nature of the litigation, its difficulty, th e skill required in its handling, the skill employed, the attention given, the succe ss or failure, and other circumstances. [Citation.] ‘The “experien ced trial judge is the best judge of the value of professional services rendered in his cour t, and while his judgment is of course subject to review, it will not be disturbe d unless the appellate court is convinced that it is clearly wrong.”’ [Citations.]” ( Building a Better Redondo, Inc. v. City of

Redondo Beach (2012) 203 Cal.App.4th 852, 873.) Respondent submitted detailed billing sheet s and declarations in support of the motion for attorney fees. Appellant argues that the motion does not specify work rendered by support staff, but the b illing sheets and declarations indicate that the work was performed by the attorneys a nd two associates. Appellant’s general argument that the fees are unconscionable is not sufficient to establish that the trial court abused its discretion. Appellant th us has failed to establish that the award16 was “‘“manifestly excessive in the circum stances.” [Citation.]’ [Citation.]” ( Lunada Biomedical

, supra , 230 Cal.App.4th at p. 487.) 12

5. Appellant Was Not Denied the Right to Present Evidence Appellant contends that he was denied the right to present evidence, citing respondent’s objection to exhibits appellant sought to introduce, which was based on appellant’s failure to produce those doc uments during discovery. According to respondent’s objections, she requested from appellant any docum ents related to repairs of the property after the fire and communications with the fire department related to utility service at the property, but appellant re plied to both these requests, “None.” Nonetheless, a ppellant sought to introduce as exhibits numerous documents that were responsive to the di scovery exhibits, prompting respondent’s objections. Appellant cites former Code of Civ il Procedure section 2031 to contend that respondent should have filed a motion to compel further responses instead of filing objections to his defense exhibits. However, given that appellant responded that he did not have any responsive documents, th ere was no basis to make a motion to compel. Appellant also cites respondent’s mo tion in limine to preclude evidence on his cross-complaint for breach of contr act, which was based on the court’s having sustained her demurrer to the cross-compla int. He cites former Code of Civil

12 Appellant also purports to move to quash service of process, arguing that he was not properly served with re spondent’s motion for attorney fees, citing Code of Civil Procedure sections 1010 and 1005, subdivisio n (b). However, the statutory sections he cites do not support his contention. Code of Civil Procedure section 1010 merely sets forth general requirements regarding service, and section 1005 does not address a motion for attorney fees. Moreover, he did not ra ise this issue in the trial court.17 Procedure section 2023, whic h addressed sanctions fo r discovery misuse. However, there is no indication in the reco rd that the court granted the motion in limine as a discovery sanction. 13 Appellant does not e xplain how the court’s rulings denied him of the right to pres ent evidence, and he does not provide any other citations to the record that would support his claim.

DISPOSITION 14 The judgment is affirmed. Re spondent shall rec over her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P.J.

We concur:

MANELLA, J. COLLINS, J.

13 Appellant relies on Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, which upheld the entry of default ju dgment as a sanction for the plaintiff’s willful failure to attend two properly noticed de positions. That case involve d the imposition of discovery sanctions, which did not occur here , and therefore is inapposite.

14 Appellant has filed numerous requests for judicial notice. His requests are denied.