Filed 7/7/21 McKissock v. Kashfian CA2/3

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8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JOHN MCKISSOCK,

Plaintiff and Respondent,

v.

BARRY KASHFIAN,

Defendant and Appellant.

B303943

Los Angeles County

Super. Ct. No. YC070587

APPEAL from a judgment of the Superior Court of Los

Angeles County, Ramona G. See, Judge. Affirmed.

Law Offices of Kenneth Gaugh and Kenneth Gaugh for 

Defendant and Appellant.

Spierer Woodward Corbalis & Goldberg, Steven F. Sprier, 

Stephen B. Goldberg and Michelle R. DeMason for Plaintiff and 

Respondent.

_______________________________________
2

INTRODUCTION

This is the second appeal in a commercial property dispute 

involving plaintiff John McKissock and defendant Barry 

Kashfian. In the first appeal, we reversed the trial court’s order 

issuing a preliminary injunction in McKissock’s favor. (McKissock 

v. Kashfian (Apr. 25, 2018, B275929) [nonpub. opn.] (McKissock 

I).) Now, Kashfian appeals from a judgment entered after a jury 

found him liable for nuisance, breach of contract, and breach of 

the conditions, covenants, and restrictions (CC&Rs) governing

the complex where McKissock’s former office suites and 

Kashfian’s current office are located and awarded McKissock 

$1.725 million in damages. Kashfian contends the court 

prejudicially erred by, among other things, submitting the issue 

of liability to the jury. We reject Kashfian’s arguments and affirm 

the judgment.

FACTUAL BACKGROUND

1. The Property

McKissock, a plastic surgeon, leases an office in Lomita.

Around 2014, he began looking to purchase his own office. He 

found adjacent suites for sale on the second floor of the Peninsula 

Medical Plaza (Medical Plaza) in Torrance. Kashfian, a dentist

and prosthodontist, owns an office directly below those suites. 

The Medical Plaza wasn’t designed for medical offices, but 

it was later converted to that use. Consequently, many of the

building’s vacant units, including the ones McKissock found, 

lacked proper drainage, sewage, and other utilities necessary to 

operate his practice. Other doctors who purchased offices in the 

Medical Plaza before McKissock, including Kashfian, had 
3

renovated their units to install the utilities necessary for their

practices.

Before purchasing the suites, McKissock obtained and 

reviewed a copy of the Medical Plaza’s CC&Rs, and he had a

contractor review the city’s original plans for the building.

1

McKissock also had the contractor and an architect inspect the 

suites he was considering purchasing. During his walkthrough, 

McKissock’s contractor found what appeared to be sewer line 

connections inside the suites. The connections sat directly above 

Kashfian’s office. The city’s plans also showed a four-inch vertical

sewer pipe that originated in Kashfian’s office. According to the 

plans, the pipe served Kashfian’s office, the second-floor suites 

McKissock was considering purchasing, and suites on the third

floor located directly above those suites.

McKissock met with several people who owned offices in 

the Medical Plaza, including Kashfian, to discuss his plans to 

purchase the second-floor suites and retrofit them to 

accommodate his plastic surgery practice. When McKissock spoke 

to Kashfian about potentially needing to access Kashfian’s office

to install or replace utility lines necessary for McKissock’s plastic 

surgery practice, Kashfian told McKissock that it would be “fine” 

so long as McKissock limited the construction work inside 

1 The court admitted numerous exhibits into evidence at trial, 

including the city’s plans, photographs of various parts of the Medical 

Plaza, and several emails related to the underlying property dispute. 

Aside from the CC&Rs, Kashfian has not included any of the exhibits 

as part of the record on appeal.
4

Kashfian’s office to nights and weekends and the finished product 

didn’t exceed the common area2 surrounding Kashfian’s office. 

In June 2014, McKissock purchased the suites. After 

McKissock bought the property, he and his contractor discovered 

that the four-inch sewer pipe depicted in the city’s plans “wasn’t 

there anymore.” Although the pipe originally ran up through and 

connected to a restroom in Kashfian’s office before connecting to

McKissock’s suites, Kashfian had since converted that restroom 

into a consulting room and apparently removed the pipe. Indeed, 

there was a patch on the Medical Plaza’s roof in the location 

where the pipe should have terminated, indicating someone had 

removed the pipe after the Medical Plaza was built. The 

contractor opined that had the four-inch sewer pipe not been 

removed, it would have made it “considerably easier” for 

McKissock to retrofit his suites to accommodate his practice.

The contractor also found a plumbing line, a water line,

and a drain for a water fixture, the outlets for all of which had 

been “stubbed out,” inside McKissock’s suites. Those connections 

were located directly above Kashfian’s office, and they were

served by a main sewer line located below Kashfian’s office. 

According to the contractor, the main sewer line served 

McKissock’s suites.

McKissock also discovered that Kashfian filled nearly all of 

the common area between the bottom side of McKissock’s floor 

and the top side of Kashfian’s ceiling with wires, pipes, and duct 

work, leaving little to no room for other owners to run utilities 

through that space. Kashfian’s overcrowding of the common area 

2 The Medical Plaza’s common areas are defined by the building’s 

CC&Rs, which we discuss in detail below.
5

made it difficult for McKissock to locate his other utility 

connections. Kashfian also installed door frames that encroached 

into the common area above his office and, in one area of his 

office, he had completely eliminated the common area, taking the 

dry wall of his ceiling up to the underside of the joists of 

McKissock’s floor.

After purchasing the suites, McKissock approached 

Kashfian again to inquire about obtaining access to Kashfian’s 

office to connect McKissock’s suites to the underground sewer 

line. Kashfian initially cooperated, allowing McKissock’s 

contractor to inspect the interior of his office as well as the

utilities and plumbing running through the surrounding common 

area. Kashfian also provided the contractor with a set of the 

office’s “proposed” plumbing plans. According to McKissock, once 

the contractor discovered that the main sewer line ran 

underneath Kashfian’s office, Kashfian stopped cooperating.

McKissock and his contractor determined it wasn’t feasible 

to complete all the construction necessary to retrofit McKissock’s 

suites to accommodate his medical practice without access to 

Kashfian’s office. Consequently, McKissock sold his suites in the 

Medical Plaza in 2018. Between the time McKissock purchased 

and sold the suites, he continued paying rent for his office in 

Lomita.

2. The Medical Plaza’s CC&Rs

Each suite in the Medical Plaza is governed by CC&Rs, 

which were drafted and recorded in December 2007 by LAPeninsula Medical, LLC, the original common owner of the 

Medical Plaza. The CC&Rs set forth the respective rights and 

responsibilities of the original common owner, the Medical 
6

Plaza’s owners’ association, and the individual owners of suites in 

the Medical Plaza. 

Under the CC&Rs, a suite consists of “the space bounded 

by and contained within the interior finished surfaces of the 

perimeter walls, ceilings or roofs ... of each unit.” The upper 

boundary of a suite located on the ground or second floor is the 

“interior underside of the ceiling” of such suite. The space 

between exterior walls dividing separately owned suites qualifies 

as a common area under the CC&Rs. 

Section 2.2.b of the CC&Rs provide that “[e]ach Owner 

shall have, as appurtenant to its [suite], an undivided common 

ownership in the Common Area[,] ... [and] [e]ach [suite] shall 

have appurtenant to it nonexclusive easements for ingress, egress 

and support through the Common Area.” The common areas, 

which are “owned in common by each of the [o]wners,” include 

“land, parking, driveway areas; trash enclosures; conduits, pipes, 

plumbing, wires, and other utility installations (except the 

outlets thereof when located within any [suite]) ... required to 

provide power, light, telephone, gas, water, sewage, drainage, 

and elevator service.” The common areas also include “[t]he 

plumbing, sewer, electric wiring, telephone cables, and other 

utilities and services located in the floor areas of a [suite] or 

inside of the perimeter walls of such [suite],” except “any wires, 

pipes, conduits, cables, and the like ... which connect facilities 

servicing [a suite],” which are “owned, maintained, and installed 

by the Owner as Restricted Common Area from the point of 

connection with the common Lines to the point where the Lines 

terminate in the Owner’s [suite].” 

Section 2.2.b also places limitations on each owner’s use of 

the common areas. Specifically, each owner may use the common 
7

areas for “the purposes for which they are intended without 

hindering the exercise of or encroaching upon the rights of any 

other Owners.” 

Section 4.6.a provides each owner of a suite in the Medical 

Plaza easements over other owners’ suites to make use of utility 

lines and connections installed within the Medical Plaza that 

serve that particular owner’s suite. Specifically, section 4.6.a of 

the CC&Rs provides: “Wherever sanitary sewer line connections, 

water line connections, electricity, gas, telephone, communication 

and cable television lines or drainage facilities are installed 

within the [Medical Plaza], the Owners of any [suites] served by 

said connections, lines or facilities shall have the right to ...

easements over each Owner’s [suite] to the full extent necessary 

for the full use and enjoyment of such portion of such connections 

which service such [suite] ... .” That section also provides that an 

owner of a suite in the Medical Plaza shall also have the right “to 

enter upon any [suites] owned by any other Owner, or to have 

utility companies enter upon such areas, in or upon which said 

connections, lines, or facilities, or any portion thereof are 

situated, to repair, replace and generally maintain said 

connections as and when the same may be necessary ... , 

provided that such Owner or utility company shall promptly 

repair any damage caused by such entry as promptly as possible 

after completion of work thereon.”

Section 13.2 addresses enforcement of the CC&Rs. It 

provides any owner of property in the Medical Plaza “the right to 

enforce by proceedings at law or in equity all covenants, 

conditions, restrictions, easements, reservations, liens and 

charges ... imposed by [the CC&Rs],” including the right to 

“prosecute a proceeding at law or in equity against the person or 
8

persons who have violated” the CC&Rs. Section 13.2.c provides 

that any act, action or omission resulting in a violation of the 

CC&Rs constitutes “a nuisance, and every remedy allowed by law 

or equity against an Owner ... shall be applicable against every 

such result.”

PROCEDURAL BACKGROUND

1. The Lawsuit and Injunction

McKissock sued Kashfian and several other defendants 

who owned suites in the Medical Plaza,3 claiming they violated

the Medical Plaza’s CC&Rs by denying McKissock access to their 

suites to perform the construction work necessary to make his 

suites usable for his medical practice. McKissock asserted claims 

for (1) breach of the CC&Rs, (2) “TEMPORARY 

RESTRAINING ORDER AND PRELIMINARY AND 

PERMANENT INJUNCTION AND DAMAGES”; (3) 

declaratory relief; (4) nuisance; and (5) breach of oral contract.

4

The claims for breach of CC&Rs and nuisance arise out of

allegations that Kashfian obstructed McKissock’s access to, and 

use of, the Medical Plaza’s common areas to replace necessary

utility connections for McKissock’s suites. As for the claim for 

breach of oral contract, the operative complaint alleges that 

before McKissock purchased his suites, Kashfian made an oral 

promise, which he later broke, to allow McKissock access to 

3 Although it is unclear from the record when McKissock dismissed the 

other defendants, Kashfian was the only remaining defendant by the 

time of trial. 

4 McKissock amended his complaint at trial to add the claim for breach 

of oral contract.
9

Kashfian’s office to replace utility connections in the surrounding 

common areas. 

Before trial, McKissock filed an application for injunctive 

relief, seeking an order enjoining Kashfian from obstructing 

McKissock’s access to Kashfian’s office “for the purpose of 

completing construction of [McKissock’s] own medical office.”

McKissock claimed the Medical Plaza’s CC&Rs provided him a

right to enter Kashfian’s office to install utility connections in the 

surrounding common areas.

The court granted McKissock’s application and issued an 

injunction. The court’s order required Kashfian to allow 

McKissock and his contractors to enter Kashfian’s office to install 

plumbing and other utility lines underneath Kashfian’s “Back 

Work-Room,” “Lecture Room,” and other areas where the 

necessary connections might be found. Kashfian had to provide 

McKissock a key to Kashfian’s office and could not unreasonably 

obstruct McKissock’s construction efforts that fell within the 

scope of the order. Among other things, the order placed 

limitations on when and how McKissock could conduct his 

construction and set a six-month deadline for the construction 

work. Kashfian appealed that order.

2. The First Appeal

In McKissock I, we reversed the order issuing an 

injunction. In the first part of the opinion’s analysis, we held the 

court’s order was improper because it operated as a permanent, 

rather than a preliminary, injunction and was a final 

determination of the merits of McKissock’s claims. More 

specifically, the order resolved a “core issue” in the lawsuit—i.e., 

whether McKissock has the right to access Kashfian’s office to 

install utility connections in the surrounding common area—and
10

it granted McKissock the ultimate relief he sought—i.e., an order 

authorizing McKissock to enter Kashfian’s office to install those 

utility connections. 

In the second part of the opinion’s analysis, we explained 

that even if the injunction issued by the court wasn’t permanent 

in nature, McKissock had yet to prove he had a “ ‘clearly 

established’ ” right to a mandatory injunction. Specifically, we 

noted that “because McKissock did not introduce into evidence 

the plan he intend[ed] to follow in carrying out the construction 

work authorized by the preliminary injunction, there [was] no 

evidence that McKissock’s suites are currently ‘served by’ any 

existing utility connections” as required by section 4.6.a of the 

Medical Plaza’s CC&Rs. We also noted that other provisions of 

the CC&Rs that provided owners of suites in the Medical Plaza 

easements through the complex’s common areas did not, by 

themselves, provide McKissock a right to enter Kashfian’s office

for construction purposes. 

3. The Trial

After we issued McKissock I, Kashfian filed a motion to 

bifurcate the issues of liability and damages for purposes of trial. 

Kashfian argued the court, and not a jury, should decide the

issue of liability. According to Kashfian, whether McKissock’s

suites were served by a particular utility connection, and whether 

Kashfian violated the Medical Plaza’s CC&Rs by refusing to 

allow McKissock access to Kashfian’s office to replace a utility 

connection, were entirely issues of contract interpretation, 

involving no factual issues for a jury to resolve. McKissock 

opposed the motion, arguing it was premature to bifurcate the 

issues of liability and damages because he planned to present 
11

extrinsic evidence to show the CC&Rs are susceptible to more 

than one reasonable interpretation.

The court granted Kashfian’s motion in part. Quoting 

Equitable Life Assurance Society v. Berry (1989) 212 Cal.App.3d 

832, the court ruled it would “conduct a hearing out of the 

presence of the jury and permit the parties to introduce 

conditionally or subject to a motion to strike all available 

evidence on the issue of the meaning of the [CC&Rs]. If the 

evidence has the effect of imparting to the [CC&Rs] a meaning of 

which the instrument is not reasonably susceptible, the evidence 

will be stricken. The jury [will be] involved only if the court 

determines that 1) the working of the [CC&Rs] is reasonably 

susceptible of the interpretation contended for by the proponent 

of extrinsic evidence, 2) the extrinsic evidence is relevant to prove 

the proposed meaning, and 3) the credibility of the proponent’s 

parol evidence is disputed.”

On the first day of trial, Kashfian requested a bifurcated 

hearing on the issue of liability before the parties presented 

evidence to the jury. McKissock argued that the court “did not 

bifurcate on liability and damages” but instead only granted an 

evidentiary hearing on the meaning of the Medical Plaza’s

CC&Rs. McKissock no longer intended to present extrinsic 

evidence on the meaning of the CC&Rs. McKissock didn’t dispute 

that the CC&Rs were clear and governed the parties’ dispute,

and he intended to present evidence to the jury “that shows that 

[Kashfian] breached them.”

Later that day, the court held what it called a “bifurcation 

hearing.” The parties didn’t introduce any evidence addressing 

the meaning of the Medical Plaza’s CC&Rs. During the parties’ 

arguments, Kashfian asked the court to decide the issue of 
12

liability without a jury, insisting it was a purely legal issue 

whether he breached the CC&Rs. The court took the matter 

under submission and issued its ruling on the second day of trial.

The court noted that McKissock didn’t present any extrinsic 

evidence addressing the meaning of the CC&Rs and ruled that 

the parties couldn’t present that type of evidence at trial. The 

court also found that the CC&Rs governed “the rights and 

responsibilities between” owners of property in the Medical 

Plaza.

Before the parties finished selecting a jury, Kashfian asked 

whether the court would make a “decision as far as the 

application of the CC&Rs.” The court responded, “[t]he CC&Rs 

are straightforward. They govern, and the language to me is 

clear. It governs what you can do. ... [¶] Now, the jury will decide 

whether the language that’s there includes what [McKissock] 

want[s] to do or not. But we’re not going to have a bunch of 

extrinsic evidence in, in that regard, because I’ve already made 

my ruling.” 

On the third day of trial, after the jury was sworn and the 

parties started presenting evidence, Kashfian asked whether the 

court intended to instruct the jurors “regarding interpretation of 

the CC&Rs.” The court responded, “I don’t have any further 

instructions. Do you have something in mind[?] ... You’re 

supposed to provide all the instructions. You gave me a set that 

said what it says. If you need something further, you better draft 

it up.” The court instructed the parties to file briefs if they 

wanted to raise any other issues concerning how the CC&Rs 

should be interpreted. 

On the fourth day of trial, Kashfian filed a “trial brief on 

the respective roles of court and jury in interpretation of CC&Rs.” 
13

(Capitalization and bolding removed.) Again, Kashfian urged the 

court to decide the issue of liability before submitting the issue of 

damages to the jury. In Kashfian’s view, McKissock I “already 

concluded that because [McKissock’s suites were] not served by a 

connection in [Kashfian’s office], the CC&Rs did not provide 

[McKissock] any easement over, or any right to enter, [Kashfian’s 

office] to gain access to a connection.” Kashfian argued that 

because McKissock did not produce any extrinsic evidence 

revealing an ambiguity in the CC&Rs, McKissock I conclusively 

established that McKissock could not prevail on any claim arising 

out of Kashfian’s alleged violation of the CC&Rs. The court

deemed Kashfian’s brief a motion for nonsuit and told the parties 

it would rule on that motion once they finished presenting 

evidence.

After the parties rested, the court denied Kashfian’s brief 

that it had deemed a motion for nonsuit. The court explained that 

Kashfian had misjudged McKissock’s theory at trial. The court 

noted that while Kashfian anticipated McKissock would present

extrinsic evidence to establish an ambiguity in the CC&Rs that 

would make them susceptible to a different interpretation from 

what we applied in McKissock I, McKissock instead presented 

evidence from which a reasonable jury could find Kashfian 

violated the CC&Rs.

Before closing arguments, McKissock filed an unopposed

motion to amend his complaint to add a claim for breach of oral 

contract. McKissock attached to his motion a proposed third 

amended complaint and proposed jury instructions addressing 

breach of the CC&Rs and breach of the alleged oral contract. 

One of the proposed instructions identified two theories 

under which the jury could find Kashfian breached the CC&Rs. 
14

Under the first theory, Kashfian refused to give McKissock access 

to the common area surrounding Kashfian’s office “so that 

McKissock could perform improvements to his suites.” Under the 

second theory, Kashfian made “exclusive use of certain common 

area in a manner that hindered the exercise of or encroached 

upon McKissock’s rights to the common area.” 

The court granted McKissock’s motion to amend his 

complaint and later instructed the jury with McKissock’s 

proposed instructions. Kashfian didn’t request any specific 

instructions addressing how the CC&Rs should be interpreted. 

Before submitting the case to the jury, the parties 

stipulated that they were both bound by the Medical Plaza’s 

CC&Rs. The parties also agreed to allow the jury to use a general 

verdict form. In the verdict form that was provided to the jury, 

McKissock’s causes of action for breach of the CC&Rs and breach 

of oral contract were combined into a single claim. Thus, the 

verdict form included only two claims: (1) “Breach of CC&Rs –

Breach of Contract”; and (2) “Nuisance.” 

After the jury started deliberating, it submitted several 

questions to the court. The jury asked for a copy of CC&Rs for 

each juror. Kashfian didn’t object to providing copies of the 

CC&Rs to the jury. The jury also requested a definition for the 

term “appurtenant,” and it asked whether “terminating 

communication [is] a violation of the CC&Rs.” The parties agreed 

on a definition of “appurtenant,” which the court provided to the 

jury. When the court asked the parties how it should respond to 

the jury’s question about terminating communication, Kashfian’s 

counsel responded, “Our position is the court needs to interpret 

the CC&Rs, not the jury.” Kashfian didn’t object, however, when 
15

the court told the jury that terminating communication can 

constitute a violation of the CC&Rs. 

The jury found in McKissock’s favor on both claims

included in the verdict form. The jury awarded McKissock 

$1,200,000 in economic damages and $525,000 in non-economic 

damages. The court entered judgment in McKissock’s favor. 

Kashfian appeals.

DISCUSSION

Kashfian raises a litany of arguments, most of which

revolve around a single premise: the court erred by allowing the 

jury to decide the issue of liability on McKissock’s claims. As we 

explain, Kashfian’s arguments lack merit.

1. Kashfian hasn’t demonstrated any prejudicial error 

affecting the jury’s verdict on McKissock’s claim for 

breach of the CC&Rs and the oral contract.

Kashfian first contends the court, and not the jury, should 

have decided whether he was liable for violating section 4.6.a of 

the CC&Rs. Specifically, Kashfian argues that once McKissock 

decided not to present extrinsic evidence to show the CC&Rs 

were reasonably susceptible to a different interpretation from the 

one we applied in McKissock I, the court was bound by our 

decision in that appeal to find McKissock didn’t have a right to 

enter Kashfian’s office to repair, replace, or maintain utility 

connections. We are not persuaded.

As a preliminary matter, Kashfian overstates our holding 

in McKissock I. Nothing in that opinion states, let alone suggests, 

that under a plain reading of section 4.6.a of the CC&Rs, 

McKissock could never prove he had a right to enter Kashfian’s 

office to repair, replace, or maintain utility connections serving 
16

his suites. Rather, as we explained in that opinion, McKissock 

hadn’t introduced any evidence by the time of the hearing on the 

preliminary injunction to support a finding that he had a “clearly 

established” right to enter Kashfian’s office. But we never held 

that, as a matter of law, McKissock didn’t have that right or that 

he was precluded from presenting evidence at trial to prove he 

had that right. 

Indeed, to read McKissock I the way Kashfian does would 

turn the rationale of that opinion on its head. As we explained in 

the first part of the opinion’s analysis, the challenged order was 

improper because it operated as a permanent injunction that 

decided the merits of McKissock’s claims at a preliminary stage 

of the lawsuit. (See Yee v. American National Ins. Co. (2015) 235 

Cal.App.4th 453, 457–458.) Kashfian would have our opinion do 

the same thing. That is, Kashfian insists McKissock I decided the 

merits of the lawsuit in his favor. Not so. It simply concluded 

that, at the time the court issued the challenged order,

McKissock had not met his burden to show he was entitled to the 

extraordinary relief of a mandatory injunction. 

And, as we explained in McKissock I, a party seeking a 

mandatory injunction faces a heightened burden of proof. 

Specifically, we noted that a mandatory injunction is “rarely 

granted” at a preliminary stage of a lawsuit and is subject to 

stricter review on appeal than a prohibitory injunction, and 

entitlement to the mandatory injunction must be “clearly 

established.” (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 

Cal.App.4th 1487, 1493; Davenport v. Blue Cross of California

(1997) 52 Cal.App.4th 435, 448.) Thus, the burden for 

establishing the right to a mandatory injunction at a preliminary 

stage of the lawsuit is much greater than the burden for proving 
17

liability for a claim of breach of contract or nuisance at trial. 

(Compare CACI No. 200 [a plaintiff need only prove a necessary 

fact is “more likely to be true than not true”]; and Weiner v. 

Fleischman (1991) 54 Cal.3d 476, 483 [“The general rule in this 

state is that ‘[i]ssues of fact in civil cases are determined by a 

preponderance of testimony.’ ”]; with Davenport, at p. 446 [the 

granting of a mandatory injunction before the rights of the 

parties have been “ ‘definitely ascertained’ ” is not permitted 

“ ‘except in extreme cases’ ”].) That we concluded McKissock 

didn’t satisfy the higher burden of proof necessary to obtain a 

mandatory injunction does not mean we held that he couldn’t 

later prove by a preponderance of the evidence at trial that he 

had a right to enter Kashfian’s office under section 4.6.a of the 

Medical Plaza’s CC&Rs.

The bottom line is that by the time of trial, there were

disputed issues of fact concerning Kashfian’s potential liability 

for violating section 4.6.a of the CC&Rs. Specifically, the parties 

presented conflicting evidence addressing whether McKissock’s 

suites were served by a utility connection and whether McKissock 

had a right to enter Kashfian’s office to repair, replace, or 

maintain that connection. It is well-settled that a plaintiff is 

entitled to a jury trial on a claim for breach of contract. (Raedeke 

v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671 [“[A]

suit to recover damages for fraud or breach of contract is an 

action at law in which a right to jury trial ordinarily exists.”].)

And where, as here, the parties submit a general verdict form to 

the jury, the jury is responsible for making the ultimate 

determination of liability. (See Chavez v. Keat (1995) 34 

Cal.App.4th 1406, 1409 [a general verdict requires the jury to not 

only make findings of fact, but also to determine which party 
18

prevails on a particular claim or group of claims]; see also Code 

Civ. Proc., § 624 [“A general verdict is that by which [the jury] 

pronounce[s] generally upon all or any of the issues, either in 

favor of the plaintiff or defendant; a special verdict is that by 

which the jury find[s] the facts only, leaving the judgment to the 

Court.”].) Consequently, the court did not err in allowing the jury 

to determine whether Kashfian breached section 4.6.a of the

CC&Rs.

5

To the extent Kashfian contends the court erred by not 

instructing the jury that section 4.6.a of the CC&Rs required 

McKissock to prove his suites had a currently, as opposed to a 

formerly, existing utility connection that required access to 

Kashfian’s office to maintain, repair, or replace, he did not 

preserve that argument for appeal. In a civil case, the parties are 

responsible for proposing complete and comprehensive 

instructions that address their theories of the case. (Metcalf v.

County of San Joaquin (2008) 42 Cal.4th 1121, 1130–1131

(Metcalf), quoting Agarwal v Johnson (1979) 25 Cal.3d 932, 950–

951.) If a party fails to provide proposed instructions addressing a 

particular theory, the court has no duty to instruct on that theory 

on its own motion. (Metcalf, at p. 1131.)

In the middle of trial, the court advised Kashfian that if he 

wanted the court to instruct the jury with a specific 

interpretation of the CC&Rs, he needed to propose an instruction 

with the language he wanted the court to use. Kashfian never did 

so. Nor did he object to any of the instructions the court provided 

5 We also note that Kashfian doesn’t develop any arguments 

challenging the sufficiency of the evidence to support the jury’s finding 

that he breached section 4.6.a of the CC&Rs.
19

the jury. He therefore can’t complain on appeal that the court 

erred by failing to instruct the jury with an instruction he never 

proposed. (Metcalf, supra, 42 Cal.4th at p. 1131 [a party’s “failure 

to request any different instructions means he may not argue on 

appeal the trial court should have instructed differently”].)

For similar reasons, Kashfian hasn’t preserved his

challenge to the court’s decision to tell the jury that terminating 

communications is a violation of the CC&Rs. After it received the 

jury’s question on that issue, the court asked Kashfian how he 

wanted the court to respond. Kashfian didn’t propose any 

response but instead told the court it should come up with the 

answer on its own. Because Kashfian doesn’t point to any part of 

the record showing he objected to the court’s response, he has

forfeited his challenge to that response on appeal. (People v. 

Ross (2007) 155 Cal.App.4th 1033, 1048 [“A defendant may forfeit 

an objection to the court’s response to a jury inquiry through 

counsel’s consent, or invitation or tacit approval of, that 

response.”].)

Kashfian also can’t complain that the court allowed the 

claim for breach of oral contract to go to the jury. Kashfian never 

opposed McKissock’s motion to amend the complaint to add that 

claim. Nor did Kashfian ask the court to strike that claim. 

Kashfian also never objected to any of the jury instructions

addressing breach of contract, nor did he propose any 

instructions addressing a particular defense or theory that would 

be applicable to the claim for breach of oral contract. (Metcalf, 

supra, 42 Cal.4th at p. 1131) And to the extent Kashfian contends 

McKissock failed to prove the existence of the oral contract, 

Kashfian doesn’t develop any arguments challenging the 

sufficiency of the evidence to support that claim. (Placer County 
20

Local Agency Formation Com. v. Nevada County Local Agency 

Formation Com. (2006) 135 Cal.App.4th 793, 814 [“We need not 

address points in appellate briefs that are unsupported by 

adequate factual or legal analysis.”].)

In any event, Kashfian can’t show he was prejudiced by the 

court’s decision to allow the jury to determine whether he

breached the oral contract or violated section 4.6.a of the CC&Rs 

because he agreed to allow the jury to use a general verdict form. 

When a jury returns a general verdict on multiple causes of 

action or a claim involving multiple theories, we presume the jury 

found in the prevailing party’s favor on each cause of action and

theory. (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1155, 1157; 

Willdan v. Sialic Contractors Corp. (2007) 158 Cal.App.4th 47, 57

(Willdan).) A general verdict will be upheld if any one of the 

prevailing party’s claims or defenses is (1) supported by 

substantial evidence, and (2) unaffected by error, despite the 

possible insufficiency of the evidence as to the party's other 

claims or defenses. (Tavaglione, at p. 1157.)

The verdict form in this case combined McKissock’s causes 

of action for breach of CC&Rs and breach of oral contract into a 

single claim styled as “Breach of CC&Rs – Breach of Contract.”

As we explained above, the court instructed the jury that it could 

find Kashfian liable for breaching the CC&Rs if it found (1) 

Kashfian wrongfully denied McKissock access to Kashfian’s 

office, or (2) Kashfian hindered McKissock’s use of the common 

area by making exclusive use of that space. The second form of 

breach is based on independent factual and legal theories from 

the first. Specifically, the second form arises out of section 2.2.b of 

the CC&Rs, and it is based on evidence that Kashfian encroached 

on or hindered McKissock’s right to use the parties’ shared 
21

common area by overcrowding that space with his own pipes, 

utility lines, and duct work and eliminating part of that space by 

overbuilding his office. Kashfian doesn’t develop any arguments 

challenging the court’s decision to allow the jury to determine 

whether he violated that provision of the CC&Rs. Nor does he

contend the jury otherwise erred in finding he breached section 

2.2.b of the CC&Rs.6 Because the parties used a general verdict 

form, we must presume the jury found in McKissock’s favor on 

the claim for “Breach of CC&Rs – Breach of Contract” under the 

theory that Kashfian violated section 2.2.b of the CC&Rs by 

overcrowding, and eliminating part of, the common area he 

shared with McKissock. (Willdan, supra, 158 Cal.App.4th at p. 

57.)

2. Kashfian hasn’t otherwise identified any error 

requiring reversal of the jury’s verdict.

Kashfian next contends the court prejudicially erred 

because it did not instruct the jury that McKissock’s claim for 

nuisance, as pled in the operative third amended complaint, 

arose out of section 13.2.c of the CC&Rs, which defines an 

actionable nuisance as a violation of any “covenant[], condition, 

restriction, easement, reservation, lien or charge” contained in 

the CC&Rs. Kashfian has forfeited this argument because he 

never objected to the instructions provided by the court or 

6 Although we noted in McKissock I that section 2.2.b did not provide 

McKissock a right to access Kashfian’s office, nothing in the opinion 

addressed that section’s prohibition against encroaching on or 

hindering another owner’s right to use the Medical Plaza’s common 

areas.
22

proposed any instructions addressing the nuisance claim. 

(Metcalf, supra, 42 Cal.4th at p. 1131.)

We also reject Kashfian’s argument that he wasn’t liable 

for nuisance because the CC&Rs didn’t impose any duty on him 

to act, or refrain from acting, in a particular manner. As we 

explained above, section 2.2.b of the CC&Rs prohibits an owner of 

property in the Medical Plaza from “hindering the exercise of or 

encroaching upon” any other owners’ rights to use the building’s 

common areas. Kashfian fails to cite any authority, or otherwise 

develop any cognizable argument, to support the proposition that 

section 2.2.b’s language didn’t impose upon him a duty not to 

hinder McKissock’s use of the Medical Plaza’s common areas. 

(See Cal. Const., art. VI, § 13 [a judgment is presumed correct]; 

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

[the appellant bears the burden to show the judgment is 

erroneous and, as part of that burden, must support each claim 

with “reasoned argument and citations to authority”].) Because 

Kashfian has not developed this argument, we need not address 

it any further.

Finally, Kashfian argues McKissock’s counsel committed 

misconduct while cross-examining Kashfian. Specifically, 

Kashfian contends McKissock’s counsel misrepresented the 

nature of the order granting the preliminary injunction that was 

reversed in McKissock I. This argument is forfeited.

During cross-examination, McKissock’s counsel used a copy 

of the preliminary junction order to refresh Kashfian’s 

recollection about a purported agreement the parties made to

allow McKissock to perform construction in Kashfian’s office so 

long as McKissock agreed to certain conditions and limitations 

that Kashfian wanted to impose on the scope and nature of that 
23

work. McKissock’s counsel didn’t tell the jury that the document 

he showed Kashfian was the reversed order, but instead he

referred to it as a “proposal” that Kashfian received from

McKissock, which had been approved by the court. McKissock’s 

counsel then asked Kashfian several questions referencing the 

contents of the order and about whether Kashfian agreed that the 

conditions imposed by the order were the same as those he 

wanted to impose on any work McKissock had intended to 

perform inside Kashfian’s office. 

Kashfian didn’t object during this line of questioning but 

instead waited until after his cross-examination to request a 

meeting at sidebar. During that meeting, Kashfian argued that

McKissock’s counsel’s questions violated a prior stipulation 

between the parties not to discuss our decision in McKissock I in 

front of the jury. Kashfian requested permission to refer to that 

decision during his redirect examination, but he never asked the 

court to strike any of the questions referring to the reversed order 

or any of his testimony responding to those questions. Nor did 

Kashfian ask the court to admonish the jury about the challenged 

line of questioning.

The court ruled that Kashfian was “entitled to clarify for 

the record” that the order granting the preliminary injunction 

had been reversed. During his redirect examination, Kashfian 

testified that the document McKissock’s counsel had referred to 

as a “proposal” was in fact the order granting McKissock a 

preliminary injunction and that the order was later “invalidated” 

on appeal.

Generally, a party cannot complain on appeal that an 

attorney committed misconduct at trial unless that party timely 

objected to the misconduct and requested that the jury be 
24

admonished. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411–

1412 (Rayii).) “The purpose of these requirements is to allow the 

trial court an opportunity to remedy the misconduct and avoid 

the necessity of a retrial; a timely objection may prevent further 

misconduct, and an admonition to the jury to disregard the 

offending matter may eliminate the potential prejudice. The 

failure to timely object and request an admonition waives a claim 

of error unless the misconduct was so prejudicial that it could not 

be cured by an admonition [citations], an objection or request for 

admonition would have been futile [citation] or the court 

promptly overruled an objection and the objecting party had no 

opportunity to request an admonition [citation].” (Id. at p. 1412.)

As we noted above, Kashfian never asked the court to 

admonish the jury about, or to strike any portion of, the 

challenged line of questioning. Instead, Kashfian accepted the 

court’s ruling that he could tell the jury that the document 

McKissock’s counsel characterized as a court-approved “proposal” 

was in fact a prior order issued by the trial court that was later 

reversed on appeal. Because Kashfian makes no effort to explain 

why a request for an admonition would have been futile or why 

McKissock’s counsel’s line of questioning was incurable, he has 

forfeited any argument on appeal concerning that line of 

questioning. (Rayii, supra, 218 Cal.App.4th at p. 1412.)
25

DISPOSITION

The judgment is affirmed. McKissock shall recover his costs 

on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.