1

Filed 1/5/16 Wong v. Barber CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

RALAN WONG,

Plaintiff and Respondent,

v.

TIFFANY BARBER et al.,

Defendants and Appellants.

 A139249

 (San Francisco County

 Super. Ct. No. CUD-12-640755)

INTRODUCTION

Defendants Tiffany Barber, Sarah Sharaf and Matthew Pinna were roommates in 

one unit of an apartment building in San Francisco owned by plaintiff Ralan Wong. Past 

disputes between Barber and Wong had resulted in defendants being permitted in 2007 to 

keep a cat as an exception to the no-pets policy and in Barber being permitted in 2009 to 

keep a companion animal, specifically a dog, as a reasonable accommodation for a 

disability. Upon learning that the original dog had been replaced with a new dog, and 

believing that Barber was not disabled, Wong served a three-day notice to cure or quit 

based on defendants having a dog in violation of the no-pets provision in the lease and 

then filed a complaint for unlawful detainer. The jury returned a special verdict in 

Wong’s favor, and the court awarded him damages of $41,406.00 based on the jury’s 

determination of the fair rental value of the property. Defendants appeal from the 

judgment, the orders denying defendants’ motions for judgment notwithstanding the 

verdict and for new trial, and a discovery order. Defendants raise issues relating to 

estoppel, the jury finding that Barber was not disabled, the verdict form, waiver, 
2

evidentiary error, instructional error, newly-discovered evidence, jury misconduct, the 

litigation privilege, and the trial court’s denial of defendants’ motion to quash subpoenas 

for medical records. We conclude defendants have failed to establish that the trial court 

committed any prejudicial errors and will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2004, Sharaf and two other people entered into a rental agreement with 

Wong’s predecessor (Wong’s father) for the apartment in question.1 Paragraph 12 of the 

written residential tenancy agreement provides: “PETS: NO pets, dogs, cats, birds, fish 

or other animals are allowed in or about the Premises, even temporarily or with a visiting 

guest, without prior written consent of Owner, excepting service animal(s) as required by 

law. Any such consent is conditioned upon Tenant completing and signing Owner’s Pet 

Agreement which shall become part of this Agreement. Strays shall not be kept or fed in 

or about the Premises. Strays can be dangerous and Owner must be notified immediately 

of any strays in or about the Premises. If a pet has been in a Tenant’s apartment or 

allowed into the building, even temporarily (with or without Owner’s permission) Tenant 

may be charged for cleaning, de-fleaing, deodorizing or shampooing any portion of the 

building or Premises at the discretion of Owner.” 

When Wong discovered that two individuals not named on the lease, one of whom 

was defendant Barber, and a cat were living in the unit, he initiated eviction proceedings. 

The matter settled and, in August 2007, Barber was substituted on the lease for one of the 

original tenants.2 The lease was also amended to add a pet agreement permitting the 

tenants to keep a 10-year-old gray cat. The pet agreement stated, “Tenants agree not to 

replace the cat described herein after it succumbs or otherwise vacates or no longer 

resides at the premises, and the pet prohibition set forth in the Residential Tenancy 

Agreement still remains in effect.” 

 

1 Wong inherited the apartment building when his father died. 

2 Defendant Pinna moved into the apartment at a later time. 
3

The dispute over a dog in the apartment dates back to April 2009 when Wong 

became aware that Barber had a dog. That month, Barber sent Wong a letter stating that 

she had a psychiatric disability for which her doctor had prescribed an emotional support 

animal. Barber acknowledged Wong’s no-pets policy, but requested that she be allowed 

to have the dog as a reasonable accommodation for her disability. Barber included a 

doctor’s note with her request. Wong questioned the veracity of Barber’s disability claim 

and noted that the doctor who signed the note was a gynecologist. Barber then obtained 

another doctor’s note from an internist, which was worded identically to the first note,

and a prescription for an emotional support animal (with zero refills), and sent these 

documents to Wong. 

Wong believed Barber was not disabled and was attempting to take advantage of 

the fair housing laws in order to add another pet to the household. Following attempts by 

Wong to obtain more information about Barber’s claimed disability, in June 2009, Barber 

filed a housing discrimination complaint with HUD, which, apparently, was forwarded to 

the California Department of Fair Employment and Housing (DFEH). Wong served 

Barber with a three-day notice to cure or quit specifying that the dog be removed.

In August 2009, the DFEH investigation concluded that Barber was entitled to a 

companion animal. In an August 11, 2009 letter (August 11, 2009 Letter) to the DFEH 

investigator, counsel for Wong stated their dissatisfaction with the investigation that was 

conducted. The letter also stated: “As I told you before, based on our prior dealings with 

Tiffany Barber, and her blatant lie to you that the cat in the apartment does not belong to 

her, we believe young Tiffany Barber is manipulating the System and is not mentally or 

physically disabled at all. However, my client is willing to accommodate Ms. Barber for 

the time being, and allow her to keep both the cat and the dog in Unit #5. Please close 

the FEH complaint file against Ralan Wong. [¶] Since you could not reveal any more 

details than what you told me today, my client reserves the right to bring suit against Ms. 

Barber for declaratory relief with respect to the issue of her disability at the Superior 

Court of San Francisco.” Barber withdrew her complaint and DFEH closed the case.
4

Barber’s original dog died in early 2011 and she replaced him with a new, bigger

dog. Wong became aware of the new dog in November of that year. In January 2012, 

Wong served a three-day notice to cure or quit based on defendants’ violation of the nopets provision in the lease.3

 Specifically, the notice stated that defendants had breached 

the lease: “1) by bringing a non-service dog or pet into the Premises without the prior 

written consent of the Owner; 2) by replacing a questionable service dog with second 

non-service dog or pet at the Premises without the prior written consent of the Owner; 3) 

by replacing your cat with an unauthorized dog after agreeing to never replace the cat 

after it is gone; and 4) by attempting to deceive the Owner and his representatives into 

believing Tiffany Barber is disabled and in need of a service animal by misrepresenting 

to them the facts about her mental condition.” January 2012 was the last month for 

which Wong accepted payment of rent from defendants. Wong filed the instant 

complaint for unlawful detainer in March 2012. 

The matter went to trial. In December 2012, the jury returned a verdict finding, 

among other things, that there was a landlord-tenant relationship between plaintiff Wong 

and defendants Barber, Sharaf and Pinna; that Wong proved defendants breached the 

rental contract by moving the second dog into the apartment without his prior written 

consent; that defendants failed to cure the breach or vacate after service of the March 

2012 corrected three-day notice; that Wong did not waive any lease breaches involving 

the presence of a dog in the apartment; that Wong did not retaliate against defendants for 

Barber’s assertion of legal rights; that Barber was not “a disabled person as defined by 

law;” and that Wong was entitled to possession of the apartment. All jury findings were 

by a vote of 12 to zero or 11 to one. The jury also determined the fair monthly rental 

value of the apartment to be $3,100. The court entered judgment for Wong, ordering that 

he recover possession, that the rental agreement with defendants was forfeited, and that 

 

3

The first notice was defective for failure to include contact information for the 

rent board; Wong served a corrected notice in March 2012. 
5

Wong recover from defendants damages of $41,406 based on the fair rental value of the 

property. 

DISCUSSION

I. Standards of Review

The issues presented in this appeal arise out of several different orders and the 

final judgment in the lower court. For clarity, we set forth the applicable standards of 

review.

Defendants appeal from the trial court’s denial of their motion for judgment 

notwithstanding the verdict (JNOV). “In general, ‘ “[t]he purpose of a motion for 

[JNOV] is not to afford a review of the jury’s deliberation but to prevent a miscarriage of 

justice in those cases where the verdict rendered is without foundation.” ’ [Citation.]” 

(Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 

1175, 1194.) On appeal from the denial of a motion for JNOV, the appellate court 

reviews the evidence in the light most favorable to the prevailing party to determine 

whether there is any substantial evidence, contradicted or uncontradicted, supporting the 

jury’s verdict. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) 

When the appeal raises purely legal questions, however, the standard of review is de 

novo. (Sanchez v. Brooke (2012) 204 Cal.App.4th 126, 134-135.) 

Defendants also appeal the trial court’s denial of their motion for a new trial

following entry of final judgment. In ruling on a motion for new trial, the trial court sits 

as an independent trier of fact with the power to assess witness credibility, reweigh the 

evidence, and draw reasonable inferences contrary to those of the trier of fact. (Barrese 

v. Murray (2011) 198 Cal.App.4th 494, 503.) On appeal from an order denying a motion 

for new trial, the appellate court reviews the entire record, including the evidence, to 

make an independent determination of whether the claimed error was prejudicial. (Cal. 

Const., art. VI, § 13; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, fn. 10; 

Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 159.)

In addition, defendants seek review of the trial court’s order denying their motion 

to quash plaintiff’s subpoena for the production of defendant Tiffany Barber’s medical 
6

records as an order affecting the judgment. We review a trial court’s discovery orders for 

abuse of discretion. (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1145.)

II. Principles of Appellate Practice

It is apparent from the briefing and the record that this case was extremely 

contentious and extensively litigated in the trial court, and the parties are represented by 

the same counsel on appeal. Appellate review, however, is not a “do-over” of the matters 

considered below. There are fundamental rules and principles of appellate practice that 

govern the types of issues and arguments that may be raised and the manner in which 

such arguments should be made or the facts should be stated. The presentation of this 

case on appeal is inadequate in a number of ways. Therefore, we will set forth some of 

the fundamental principles that guide our consideration of the issues.

The most fundamental rule of appellate review is that the judgment or order

challenged on appeal is presumed to be correct, and “it is the appellant’s burden to 

affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 

1573.) “All intendments and presumptions are indulged to support it on matters as to 

which the record is silent, and error must be affirmatively shown.” (Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564; see also Cahill v. San Diego Gas & Elec. Co. (2011) 194 

Cal.App.4th 939, 956.) Failure to provide an adequate record requires that the issue be 

resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; see 

Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) Further, “[i]t is incumbent upon 

the parties to an appeal to cite the particular portion of the record supporting each 

assertion made. It should be apparent that a reviewing court has no duty to search 

through the record to find evidence in support of a party’s position.” (Williams v. 

Williams (1971) 14 Cal.App.3d 560, 565.)

An appellant must present argument and legal authority on each point raised, 

which requires more than merely stating a ruling is erroneous and leaving it to the 

appellate court to figure out why. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) 

“It is the responsibility of the appellant . . . to support claims of error with meaningful 

argument and citation to authority. (Cal. Rules of Court, rule 8.204(a)(1); Badie v. Bank 
7

of America (1998) 67 Cal.App.4th 779, 784-785.) When legal argument with citation to 

authority is not furnished on a particular point, we may treat the point as forfeited and 

pass it without consideration. [Citations.].)” (Allen v. City of Sacramento (2015) 234 

Cal.App.4th 41, 52.)

A party who contends that a particular finding is not supported by substantial 

evidence is obligated to set forth in his brief all the material evidence on the point and not 

merely his own evidence. (Boeken v. Philip Morris, Inc. (2006) 127 Cal.App.4th 1640, 

1657-1659.) Facts must be presented in the light most favorable to the judgment (id. at 

pp. 1657-1658), and the burden on appellant to provide a fair summary of the evidence 

“ ‘grows with the complexity of the record.’ ” (Myers v. Trendwest Resorts, Inc. (2009) 

178 Cal.App.4th 735, 739 (Myers); see Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs 

must support any reference to a matter in the record with a citation to the record]; rule 

8.204(a)(2)(C) [appellant’s opening brief must “[p]rovide a summary of the significant 

facts limited to matters in the record”].) The appellant waives a claim of lack of 

substantial evidence to support a finding by failing to set forth, discuss and analyze all the 

evidence on that point. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 

[error is deemed to be waived]; Myers, supra, 178 Cal.App.4th at p. 749.) 

An appellant’s failure to register a proper and timely objection to a ruling or 

occurrence in the trial court will result in loss of the appellant’s right to attack that ruling 

or occurrence on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 

184-185, fn. 1; Avalos v. Perez (2011) 196 Cal.App.4th 773, 776-777.) “ ‘ “ ‘An 

appellate court will ordinarily not consider procedural defects or erroneous rulings, in 

connection with relief sought or defenses asserted, where an objection could have been 

but was not presented to the [trial] court by some appropriate method . . . .’ ” ’ ” (In re 

Carrie W. (2003) 110 Cal.App.4th 746, 755.)

Finally, an appellant has the burden not only to show error, but prejudice from that 

error. If an appellant fails to satisfy that burden, his argument will be rejected on appeal. 

(Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
8

Thus, to overcome the presumption of correctness, an appellant must affirmatively 

demonstrate error in the record. Appellate courts indulge all presumptions supporting the 

judgment or order where the record is silent as to what was done by the trial court. (See 

Steuri v. Junkin (1938) 27 Cal.App.2d 758, 769; see also Lafayette Morehouse, Inc. v. 

Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [“When the record clearly 

demonstrates what the trial court did, we will not presume it did something different.”].)

With these principles in mind, we turn to the arguments that have been advanced.

III. Estoppel

Defendants raise a two-prong argument concerning estoppel. First, they contend 

the trial court did not let them present the issue of estoppel to the finder of fact. Second, 

they argue the evidence at trial on estoppel was uncontroverted and their motion for 

JNOV should have been granted on that basis. 

“ ‘The doctrine of equitable estoppel is founded on concepts of equity and fair 

dealing. It provides that a person may not deny the existence of a state of facts if he 

intentionally led another to believe a particular circumstance to be true and to rely upon 

such belief to his detriment. The elements of the doctrine are that (1) the party to be 

estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted 

upon, or must so act that the party asserting the estoppel has a right to believe it was so 

intended; (3) the other party must be ignorant of the true state of facts; and (4) he must 

rely upon the conduct to his injury. [Citation.]’ [Citation.] The detrimental reliance must 

be reasonable. [Citations.]” (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 

Cal.App.4th 263, 271-272 (Windsor Pacific).) “The determination of equitable estoppel

ordinarily is a question of fact for the trier of fact, unless the facts are undisputed and can 

support only one reasonable conclusion as a matter of law. [Citations.]” (Id. at p. 272.)

Defendants’ estoppel claim is as follows: In August 2009, Wong allowed Barber 

to live in the apartment with a dog in violation of the no-pets lease provision as a result of 

the DFEH investigation which concluded that Wong needed to accommodate Barber’s 

disability; Wong took no action regarding the dog between August 2009 and January 

2012 other than sending the August 11, 2009 Letter; Wong “intended that his 
9

acquiescence in allowing . . . Barber to maintain a dog would be relied upon, since he 

was looking to avoid proceeding with the DFEH investigation at the time he granted the 

accommodation;” Barber was unaware of the true facts that Wong “secretly intended to 

challenge [her] right to a dog sometime in the future as opposed to [challenging] her 

asserted disability;” and Barber relied to her detriment by dismissing the DFEH 

complaint and continuing to maintain her tenancy rather than relocating. Accordingly, 

defendants contend Wong was estopped to enforce a lease provision prohibiting dogs. 

Defendants fail to explicate how the issue of estoppel was in fact raised repeatedly 

during the proceedings. The court heard extensive argument about it pretrial in the 

context of defendants’ motion in limine. Defense counsel argued that there was really 

only one document involved in deciding the issue, the August 11, 2009 Letter, and that 

the court should hear and decide the estoppel issue first.4 In ruling on this motion in 

limine, the court denied defendants’ request that equitable estoppel be heard and decided 

by the court as a separate and preliminary issue; rather the court ruled that it would be

heard as “part of the trial.”

At the conclusion of plaintiff’s evidence, defendants moved for a directed verdict 

on several grounds, including estoppel. Plaintiff’s counsel argued the merits in 

opposition that there was no reasonable reliance (an element of estoppel) and no 

voluntary relinquishment of a known right (waiver), among other arguments. The court 

denied the motion, advising defendants: “At this point I’m denying. You can raise it

 

4 Defense counsel stressed that the estoppel issue was straightforward and that he 

would likely stipulate to “almost 100 percent of what [plaintiff’s] counsel said as being 

evidence in support of her opposition to our estoppel argument.” Defense counsel 

apparently gave a written stipulation to the court regarding estoppel, but the only thing 

clear from the record on this point is that, whatever it said, plaintiff’s counsel did not read 

or sign the stipulation. When, at the conclusion of the extended pretrial argument on the 

issue, defense counsel asked whether they are “still going to proceed with the equitable 

estoppel argument first,” the court replied no, if there was not going to be a stipulation to 

facts. The court said, “I think I’m familiar enough with what the issues are that we could 

just incorporate them into the trial and go from there.” Defense counsel persisted that 

plaintiff’s evidence was going to be “minor.” 
10

later. But at this point, it’s denied.” As support for their argument that the trial court 

refused to consider estoppel at all, defendants cite a statement out of context. When 

defense counsel raised estoppel in the midst of his argument for a directed verdict, the 

court stated, “We are not talking about the issue of estoppel. You have no equitable 

issues.” Defendants cite this statement in the record as the trial court’s refusal to consider 

the issue, as though this was the trial court’s final word on the matter. In fact, defense 

counsel continued his argument on estoppel and other grounds for a directed verdict; 

plaintiff’s counsel argued in opposition; and the trial court ruled on the motion as stated 

above. 

The issue of estoppel was raised again in settling the jury instructions.5 

Defendants contend they objected to the trial court’s refusal to include a jury instruction 

on estoppel, but the only evidence they cite is their proposed instruction; the jury 

instructions actually given to the jury, which did not include an instruction on estoppel;

and the special verdict form used by the jury, which did not include estoppel. 

In conducting our own independent review of the record, it appears that much of 

the discussion among the court and counsel concerning jury instructions occurred in the 

afternoon session on December 11, 2012, which was unreported. The hearing on jury 

instructions continued the next morning outside the presence of the jury. During a 

discussion of waiver, the issue of estoppel was mentioned. The court reiterated what had 

apparently been its decision from the previous day regarding estoppel6and advised 

 

5 Given that defendants argued that estoppel was a question for the court, it is not 

clear (and never explained on appeal) why defendants submitted a jury instruction on the 

issue.

6

The following colloquy from the jury instruction conference on December 12 is 

all we can glean from the record regarding this decision, apparently made on December 

11 and unreported:

“[Plaintiff’s counsel]: Right. So estoppel that we talked about yesterday does not 

apply in this case.

“THE COURT: I think that’s what I decided yesterday.

“[Plaintiff’s counsel]: You did.”
11

defense counsel, “So put on the record that you object to my taking out estoppel and then 

we will move on.”

From the foregoing, it is clear that the trial court decided not to instruct the jury on 

estoppel, but we are not able to determine whether this was because the trial court 

“refused to consider” estoppel, as defendants contend, or decided the issue on the merits 

against defendants. With no help at all from counsel on this point, we find in the record 

that, in response to a statement by plaintiff’s counsel that “estoppel that we talked about 

yesterday does not apply in this case,” the trial court stated, “I think that’s what I decided 

yesterday.” 

In any event, the issue of estoppel was fully briefed in the JNOV motion; a hearing 

on the motion was held (but not reported); and the court ruled on the motion, denying it 

in its entirety. In their briefing on the JNOV motion, defendants argued that the trial 

court could still rule on the issue of estoppel post trial. The court subsequently denied the 

JNOV motion in its entirety in a written order stating simply that it had “considered the 

briefs and arguments of counsel.” This answers the question of whether defendants had 

an opportunity to present the estoppel defense. They did.

Finally, it is for this court to review the evidence on the issue and decide whether 

substantial evidence supports the court’s implied finding that the defense of estoppel was 

not established. We find no error in the trial court’s denial of the JNOV on this ground. 

The August 11, 2009 Letter states that Wong believed Barber lied about the cat, that 

Barber was manipulating the system, and that Barber was not disabled. Wong’s letter 

states that he would accommodate Barber for the time being, but he reserved the right to 

challenge her disability in court. A reasonable person would rely at her peril on a letter 

such as this, which was unequivocally not giving her a free pass to reside with pets in the 

future. This letter, upon which defendants’ estoppel claim rests, is substantial evidence in 

support of a finding that reliance by Barber was unreasonable. (See Waller v. Truck Ins. 

Exchange, Inc. (1995) 11 Cal.4th 1, 35 [detrimental reliance must be reasonable]; 

Windsor Pacific, supra, 213 Cal.App.4th at pp. 271-272 [same].) 
12

Defendants’ contention that the judgment must be reversed because “there is 

uncontroverted evidence supporting [their] defense of estoppel” is equally unavailing.

The evidence does not compel the conclusion, as a matter of law, that each of the 

elements of estoppel is satisfied and that Wong is estopped to enforce the no-pets 

provision in the lease. (See Windsor Pacific, supra, 213 Cal.App.4th at p. 272.) 

IV. Barber’s Disability

Whether Barber was disabled was a central issue at trial. The jury was instructed 

that a disability is “anything that interferes with a major life activity,” and that major life 

activities are “functions such as caring for one’s self, performing manual tasks, walking, 

seeing, hearing, speaking, breathing, learning, and working.” With respect to a mental 

disability, the jury was instructed that it includes “any mental or psychological disorder 

or condition that limits a major life activity,” and includes emotional or mental illness, 

clinical depression, and chronic or episodic conditions. Question number 11 on the jury 

verdict form asked, “Is Tiffany Barber a disabled person as defined by law?” The jury 

unanimously answered no.

7

 

Defendants argue the evidence at trial established as a matter of law that Barber 

was disabled; thus, the jury finding that she was not disabled was erroneous and the 

denial of defendants’ motion for JNOV must be reversed. Defendants contend (1) 

Barbers’ doctors, Kai Ng and Paul Heim, found that she was disabled, (2) the disability 

findings were uncontradicted and a matter solely within the knowledge of experts, and (3) 

the jury was bound by this uncontradicted expert testimony. Defendants base their 

argument on Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 313

(Huber), which defendants cite for the proposition that “[u]ncontradicted expert 

testimony on a matter solely within the knowledge of experts is deemed conclusive on 

appeal.”8 Defendants read Huber far too broadly and misstate the law. As explained in 

 

7

The jury verdict form requested by defendants asked, “Is Tiffany Barber 

disabled? 

8 At oral argument, defendants’ counsel cited Tien Le v. Lieu Pham (2010) 180 

Cal.App.4th 1201, but Tien Le is not on point. Instead, and as correctly stated in 
13

Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632, this “exceptional principle 

requiring a fact finder to accept uncontradicted expert testimony as conclusive applies 

only in professional negligence cases where the standard of care must be established by 

expert testimony.” This is the “ ‘single exception’ to the general rule that ‘expert 

testimony, like any other, may be rejected by the trier of fact, so long as the rejection is 

not arbitrary.’ [Citation.] Thus, ‘[a]s a general rule, “[p]rovided the trier of fact does not 

act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is 

uncontradicted. [Citations.]” [Citation.] This rule is applied equally to expert 

witnesses.’ [Citation.]” (Id. at p. 632.) As in Howard, this case does not present any 

issues of professional negligence or medical malpractice, and thus there was no reason to 

require the trier of fact to accept as conclusive the testimony of Barber’s doctors. (See id. 

at pp. 632-633.) Under the general rule, the jury was properly instructed that it did not 

have to accept an expert’s opinion and, in determining whether to believe that opinion, it 

should consider the facts the expert relied on and the reasons for the expert’s opinion.

To the extent defendants argue Wong failed to contest the diagnoses of Drs. Ng 

and Heim, the record belies the contention. Wong cross-examined defendants’ experts 

and Barber herself regarding her claimed disability. Both physicians acknowledged that 

their diagnoses of Barber were based on her self-reported symptoms. On crossexamination, Dr. Ng testified that she might not have provided written support for a 

patient to get a dog as a comfort animal if she knew the patient already had a cat. Dr. 

Heim established that the first time Barber went to see him was in June 2012, several 

months into this litigation. Dr. Heim did not prescribe medication for Barber. After Dr. 

Heim provided her with a letter to DFEH dated September 2012, Barber stopped seeing 

him and had no scheduled appointments with him at the time of trial. 

Wong also presented evidence on the issue of Barber’s disability and her 

credibility. Regarding the March 17, 2009 letter that bore his signature, Dr. Jones, a 

 

defendants’ appellate brief, Tien Le stands for the settled principle that, “[o]f course, 

when the facts are undisputed and the question on appeal is wholly a legal issue, the 

proper standard of review is independent review.” (Id. at p. 1206.) 
14

gynecologist, testified that he would not have signed the letter, which recommended an 

emotional support dog for Barber because of a psychiatric disability, and would not 

diagnose a mental illness in his patient because he did not have that type of expertise. Dr. 

Jones read an entry he made in Barber’s Kaiser medical record on May 13, 2009: “ ‘The 

interval message received from the patient requesting a note to the landlord to allow her 

to have a pet in her apartment (to reduce stress). She affixed my signature to a template 

letter she downloaded from the Internet. Mentioned to the patient that I can’t sign the 

aforementioned letter as its content is not familiar to me. If she needs a generic letter 

stating that pets can reduce stress and her landlord is satisfied with that, she can forward a 

draft to me for signature. If, on the other hand, she anticipates discordance from her 

landlord and requires confirmation of a greater than difficult degree of stress and 

subsequent need for reduction by whatever method, then I recommend she follow up with 

her primary care provider in the medicine clinic.’ ” 

Wong also presented the testimony of Dr. Mark Leary, deputy chief of the 

department of psychiatry at San Francisco General Hospital and clinical professor of 

psychiatry at the University of California at San Francisco. Dr. Leary did not examine 

Barber, but testified about typical symptoms and treatment of patients suffering from 

“major recurrent depression,” the diagnosis Barber had received from Dr. Ng. Dr. Leary 

was asked about Dr. Ng’s conclusions. He noted that the questionnaire Barber completed 

for Dr. Ng scored at the lowest level of mild depression, and “the patient who filled it out 

indicated that the symptoms didn’t make it difficult to function at work or to interact with 

others or to take care of the things of daily life. [¶] So it seemed inconsistent to me that 

Dr. Ng would then make a diagnosis of major recurrent depression based on the rating 

scale of . . . relatively minor mild depression . . . .” Dr. Leary testified, “I think it would 

be extremely unlikely that someone with major recurrent depression, significant clinical 

depression would be treated effectively with only a support animal.” He also testified 

that people may attempt to fake psychiatric illnesses or conditions when there is 

something to be gained by the confirmation of a diagnosis or condition, and that it can be 
15

very challenging for a physician to make the determination because it is based on the 

patient’s report of symptoms. 

The evidence pertaining to Barber’s disability was far from uncontroverted. It is 

clear from the verdict that the jury disbelieved Barber’s testimony regarding her disability 

and rejected the opinions of defendants’ experts on this issue. The jury was entitled to 

make this determination, even if Wong had not called an opposing expert and defendants’ 

expert testimony was uncontradicted. (See Howard v. Owens Corning, supra, 72 

Cal.App.4th at p. 633.) Defendants have not established any error with respect to the

finding that Barber was not disabled.

V. Separate Verdicts

Defendants argue the trial court erred by not giving the jury separate verdict forms

for each defendant and by entering judgment against Sharaf and Pinna. Defendants 

contend the jury was confused by the verdict form that did not require a separate finding 

of unlawful detainer against each tenant. In support of this argument, defendants cite a 

note from the jury “seeking clarification on the issue,” which defendants claim “was not 

adequately addressed by the lower court,” and declarations from two jurors stating that 

they were confused by the joint verdict form. Judgment against Pinna was erroneous, 

according to defendants, because Pinna did not sign the lease pleaded in the complaint,

and Wong otherwise failed to establish a landlord-tenant relationship with Pinna. As 

against Sharaf, defendants contend there was no evidence that she was liable for any of 

Barber’s alleged breaches of the lease. 

These arguments have no merit. The special verdict form asked, “Was there a 

landlord-tenant relationship between Plaintiff Ralan Wong and Defendants Tiffany 

Barber, Sarah Sharaf and Matthew Pinna?” The jury unanimously answered “Yes.” 

Defense counsel represented all three defendants, all of whom lived in the unit, paid rent 

and testified in support of Barber’s alleged disability and need for an emotional support 

animal. Defendants’ own proposed form of verdict was also a joint verdict and made no 

distinction between and among the tenants with respect to the three-day notice and breach 

of the lease. 
16

Not surprisingly, defendants do not claim to have registered a proper and timely 

objection to the special verdict form. In the absence of an objection, the argument is 

forfeited on appeal. (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d at pp. 184-

185, fn. 1.)

As for a note from the jury, defendants cite to the clerk’s minutes at trial, which 

record (1) the receipt of a note, the content of which is not specified, (2) the court 

discussed the note with counsel, and (3) the court provided a response to the jury. 

However, defendants provide no record citation to the note itself, the court’s discussion 

with counsel, or the court’s response to the jury, i.e., no substance. Again, we will not 

scour the record in search of support for defendants’ contentions. (Williams v. Williams, 

supra, 14 Cal.App.3d at p. 565.)

VI. Waiver

Defendants argue that Wong waived his right to enforce the no-pets provision 

based on the August 11, 2009 Letter and his continued acceptance of rent payments from 

that time until January 2012. 

A finding of waiver requires the intentional relinquishment of a known right after 

knowledge of the facts. (See Brookview Condominium Owners’ Assn. v. Heltzer 

Enterprises-Brookview (1990) 218 Cal.App.3d 502, 513.) Waiver is a question of fact to 

be determined in light of all the evidence. (Id. at p. 513.) 

The issue of waiver was submitted to the jury. Question number 7 on the verdict 

form asked “Did Plaintiff Ralan Wong waive any lease breaches involving the presence 

of a dog in Defendants’ apartment?” The jury unanimously answered “No.” Defendants 

raised the issue of waiver in their motion for JNOV, arguing that the irreconcilable 

inconsistency between knowing of the presence of a dog in the apartment and continuing 

to accept the rent payments must be resolved in favor of finding that Wong waived the 

no-pets provision in the lease. On appeal, defendants contend “[u]ncontroverted 

evidence supports a finding of waiver by [Wong] regarding . . . Barber’s right to maintain 

a dog at the premises.” We disagree.
17

The evidence does not compel the conclusion that Wong waived the right to object 

to the dog. Rather, there is ample support in the record for the jury’s finding, which the 

trial court declined to disturb, including the August 11, 2009 Letter expressing doubt 

about Barber’s disability and stating that Wong was “willing to accommodate Ms. Barber 

for the time being, and allow her to keep both the cat and the dog in Unit #5,” and that 

Wong “reserves the right to bring suit against Ms. Barber for declaratory relief with 

respect to the issue of her disability . . . ,” as well as the testimony of both Wong and his 

counsel regarding their intent with respect to this letter. The trial court’s ruling is 

supported by substantial evidence.

VII. Evidentiary Error

Defendants contend the trial court prejudicially erred in admitting certain evidence 

during the trial. We review the trial court’s evidentiary decisions under the abuse of 

discretion standard. (People v. Seumanu (2015) 61 Cal.4th 1293, 1311.) If defendants 

establish an abuse of discretion, we then determine whether they suffered any possible 

prejudice. (People v. Wallace (2008) 44 Cal.4th 1032, 1058.)

A. Dr. Terrence Jones

In early 2009, Dr. Jones was Barber’s gynecologist at Kaiser. Dr. Jones’s 

signature is on the March 17, 2009 letter Barber sent to Wong in support of her original 

request for an emotional support animal. Before trial, defendants filed two motions in 

limine pertaining to Dr. Jones: (1) to exclude any testimony or evidence concerning Dr. 

Jones pursuant to Evidence Code section 352 because “the introduction of such evidence 

would be more prejudicial than probative in the instant case”; and (2) to exclude 

improper character and credibility evidence pursuant to Evidence Code section 1101, 

specifically the character trait of dishonesty. The court held a hearing pursuant to 

Evidence Code section 402, following which Dr. Jones testified before the jury. As 

relevant here, the substance of Dr. Jones’ trial testimony was that he did not actually sign 

the March 17, 2009 letter Barber claimed he signed attesting that she suffered from a 

psychiatric disability and recommending an emotional support animal. Barber asked him 

to sign it, but he declined because the letter’s content “was not familiar” to him. Dr. 
18

Jones advised Barber to see her primary care provider for such diagnosis and 

documentation. He offered to, and did, sign an informal note opining that pets can reduce 

stress. It later came to Dr. Jones’s attention that Barber had affixed his signature from the 

informal note to the March 17, 2009 letter he had earlier refused to sign. 

Defendants argue it was error to allow Dr. Jones to testify, and the error was 

compounded by allowing him to testify based on “unauthenticated hearsay documents.” 

Defendants contend Dr. Jones’s testimony “had no evidentiary value,” and that Wong’s 

only reason for calling him as a witness was “to make Tiffany Barber look bad.” 

According to defendants, the trial court originally ruled the medical records subpoenaed 

from Kaiser were admissible as business records under Evidence Code section 1271; it

later reconsidered this ruling and ruled all but one page inadmissible, but the damage 

could not be undone because Dr. Jones had already testified from those records. 

The arguments have no merit. As the trial court stated repeatedly at the Evidence 

Code section 402 hearing, Dr. Jones’s testimony was relevant to the issue of Barber’s 

credibility. Where an issue at trial was whether Barber was disabled, and the evidence of 

her disability was Barber’s testimony and the opinions of physicians whose diagnoses 

were based on Barber’s statements to them, Barber’s credibility was clearly relevant. As 

for the argument that Dr. Jones’s testimony was improperly based on “unauthenticated 

hearsay documents,” defendants have not adequately presented this issue for review. 

Defendants cite to nothing in the record other than Wong’s trial exhibit list indicating that 

Dr. Jones’s subpoenaed medical records were admitted after redaction, “Second to last 

page only.” The court made clear at the Evidence Code section 402 hearing that the 

documents required redaction. Further, it is not clear that the hearsay objection is 

applicable in any event. The March 17, 2009 letter with Dr. Jones’s purported signature 

was not offered for the truth, but for its falsity. (Evid. Code, § 1200, subd. (a).) Without 

the documents themselves or citation to any substantive discussion on the record, this 

argument is forfeited. (See Maria P. v. Riles, supra, 43 Cal.3d at p. 1295 [appellant has 

the burden to provide an adequate record]; Williams v. Williams, supra, 14 Cal.App.3d at 

p. 565 [parties must cite the record in support of their assertions].)
19

B. Karen Uchiyama

Defendants contend that Wong’s trial attorney, Karen Uchiyama, should not have 

been permitted to testify at trial. They argue her testimony prevented defendants from 

receiving a fair trial because (1) “Ms. Uchiyama did not waive the attorney-client 

privilege until the time of trial;” (2) the jury “was not properly instructed or admonished 

as to the unusualness of having counsel take the stand;” and (3) Uchiyama improperly 

testified “about the law and her interpretation of issues rather than just the underlying 

facts.” However, and defendants do not mention this, it appears that defendants deposed 

Uchiyama in early October 2012, well in advance of trial, and called her as a witness 

themselves in presenting their case to the jury. Defendants complain Uchiyama testified 

about the law, but they do not discuss the content of her testimony and do not cite to it in 

the record. Nor do they provide any citation to any objections, argument, or rulings 

regarding Uchiyama’s testimony. The only citation to the record in defendants’ briefs is 

to Wong’s declaration stating he gave informed, written consent for his attorney to testify 

at trial and waiving the attorney-client privilege only as to her testimony. Defendants

have failed to affirmatively demonstrate error. (See Bullock v. Philip Morris USA, Inc. 

(2008) 159 Cal.App.4th 655, 685 [“An appellant must affirmatively demonstrate error 

through reasoned argument, citation to the appellate record, and discussion of legal 

authority.”].)

C. Michelle Vincent and Norma Vincent

Defendants object to the testimony of Michelle Vincent and her mother, Norma 

Vincent, neighbors who also lived in Wong’s building, on the ground that Wong failed to 

disclose these witnesses in discovery. In support of this argument, defendants cite their 

Motion in Limine Number 1 of Defendants Tiffany Barber, Sarah Sharaf, and Matt Pinna 

to Exclude All Evidence Withheld from Discovery by Plaintiff Ralan Wong, but this 

motion does not identify with specificity a single item of evidence defendants sought to 

exclude. Defendants also make an undifferentiated citation to 65 pages of the reporter’s 

transcript that contain section 402 hearings as to both of these witnesses, followed by 

their trial testimony. In an earlier portion of the transcript, which defendants did not cite, 
20

defense counsel objected to particular aspects of the proposed testimony on the ground 

that it was not disclosed during discovery. The trial court overruled the objection on the 

basis that the testimony was offered in rebuttal and was not required to be disclosed. 

Defendants do not mention this exchange, nor do they provide legal authority or describe 

the substance of the testimony to which they are objecting. They have forfeited the issue 

on appeal. (See Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 685; 

Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.) In any event, we 

discern no abuse of discretion in the trial court’s rulings, and defendants make no 

argument or showing of any prejudice.

D. Evidence Code section 352

Defendants make an omnibus argument that, despite defendants’ motion in limine 

“to exclude evidence pursuant to Evidence Code [section] 352,” the trial court “allowed 

significant testimony on a number of irrelevant topics which served to confuse the issues 

and prejudice the jury.” Defendants complain about testimony regarding the service dog 

tag Barber obtained, testimony from Barber’s employer (Kelli Marjolet), and testimony 

regarding Barber hosting or attending parties on grounds that this evidence was irrelevant 

and unduly prejudicial. In support of their argument, defendants cite their motion in 

limine and portions of the trial transcript containing the testimony to which they object 

but with only the most cursory description of the challenged evidence. There is no way 

to understand the import of this testimony. None of the references to the trial transcript 

contain objections on grounds of relevance or prejudice. Moreover, even if there was 

error in admitting it (and we are not concluding there was), there is no required showing 

of prejudice. The argument is no more than an ipse dixit.

As further support for their objection to Marjolet’s testimony, defendants cite a 

pre-trial discovery order signed by Judge Robertson granting in part Wong’s motion to 

compel further responses to deposition questions from Barber. In that order, the court 

declined to order Barber to answer questions regarding employment, but required her to 

answer questions regarding her disability. Based on this order, defendants argue 

Marjolet’s testimony “was specifically at odds with an earlier ruling prohibiting . . .
21

Wong from obtaining information related to . . . Barber’s employment because it was not 

sufficiently related to her tenancy.” The pre-trial order regarding the scope of Barber’s 

deposition provides no support for defendants’ argument that Marjolet’s trial testimony 

was improperly admitted.

Finally, defendants’ bare assertions that allowing the objectionable testimony of 

Dr. Jones, Uchiyama, the Vincents, “as well as testimony on other collateral issues,” “is 

likely to have resulted in a different outcome for [defendants]” is wholly inadequate to 

establish prejudicial error. (See Century Surety Co. v. Polisso, supra, 139 Cal.App.4th at 

p. 963.)

VIII. Instructional Error

Defendants contend the trial court erred in failing to give three of their proposed

instructions to the jury. “A party is entitled to an instruction on each theory of the case 

that is supported by the pleadings and substantial evidence if the party requests a proper 

instruction. [Citations.] A court may refuse a proposed instruction that incorrectly states 

the law or is argumentative, misleading, or incomprehensible to the average juror, and 

ordinarily has no duty to modify a proposed instruction. [Citations.] A court may refuse 

a proposed instruction if other instructions given adequately cover the legal point. 

[Citation.] Moreover, the refusal of a proper instruction is prejudicial error only if ‘ “it 

seems probable” that the error “prejudicially affected the verdict.” [Citations.]’ 

[Citation.]” (Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at pp. 684-685.) 

First, according to defendants, the court should have instructed the jury that “The 

Joint Statement of the Department of Housing and Urban Development and the 

Department of Justice, Reasonable Accommodations Under the Fair Housing Act 7-8

(May 17, 2004) (‘Joint Statement’), available at 

www.hud.gov/offices/fheo/library/huddojstatement.pdf, is entitled to substantial deference 

even where it did not result from a notice-and-comment rulemaking period.” However, 

defendants provide no discussion regarding the relevance of this document to the 

proceedings, and there is no indication that the document was admitted in evidence or 

even proffered. 
22

Second, defendants contend the court should have instructed the jury that “Under 

the law, a landlord is not entitled to a tenant’s medical records. A landlord is only 

entitled to confirmation of disability, proof of which can even be provided by the tenant.” 

However, the law cited by defendants in support of this instruction, Government Code 

section 12940, subdivision (e), pertains to employment, not housing.

Third, defendants argue the court should have instructed the jury that “Jurors are 

not entitled to arbitrarily disregard a medical determination.” This instruction is 

argumentative on its face, and other instructions properly advised the jury on evaluating 

expert testimony. (See Alamo v. Practice Management Information Corp. (2013) 219 

Cal.App.4th 466, 475 [“A court may refuse a proposed instruction that incorrectly states 

the law or is argumentative, misleading, or incomplete.”].)

Defendants also argue, without more, that “the lower court’s refusal to administer 

[defendants’] proposed instruction on waiver resulted in a misstatement of the law on the 

subject.” There is no discussion of the differences between the instruction requested and 

the instruction given. There is no analysis of why or how the instruction given was 

incorrect, and no citation to authority. By failing adequately to articulate or support their 

argument, and failing to cite to the relevant portions of the trial court record detailing any

discussion and rulings on jury instructions, defendants have forfeited this contention. 

(See Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 685; Badie v. Bank 

of America, supra, 67 Cal.App.4th at pp. 784-785.) 

VIV. Motion for New Trial

Defendants filed a motion for a new trial on a number of grounds, which was 

denied. Defendants contend the trial court erred in denying the motion based on newly 

discovered evidence and jury misconduct. We will address each argument in turn. 

Code of Civil Procedure section 657, subdivision (4), authorizes the grant of a new 

trial on the basis of “[n]ewly discovered evidence, material for the party making the 

application, which he could not, with reasonable diligence, have discovered and produced 

at the trial.” The moving party must establish that the evidence is newly discovered; that 

he or she exercised reasonable diligence in discovering and producing it; and the 
23

evidence is material to the moving party’s case. (Plancarte v. Guardsmark, LLC (2004) 

118 Cal.App.4th 640, 645 (Plancarte).) The trial court’s “broad discretion in ruling on a 

motion for new trial is accorded great deference on appeal.” (Id. at p. 645.) In reviewing 

the denial of a motion for new trial, however, we are obliged to review the entire record 

to determine independently whether the asserted error is prejudicial. (Ibid.) 

As described by defendants, the newly discovered evidence at issue is records 

from “Cross Creek Programs, a treatment and education facility in Utah that [] Barber 

attended in 1994-1995.” Defendants contend this evidence was material to their defense 

of disability discrimination and failure by Wong to reasonably accommodate Barber’s 

disability. Defendants submitted the declarations of Tiffany Barber, her mother Carole 

Barber, and Beverly Carayas, an employee of Youth Foundation, Inc., which “is 

responsible for holding all records for Cross Creek Programs since Cross Creek Programs

ceased operations.” The two Barber declarations speak to their efforts before, during, and 

after trial to locate records from various sources. The Cross Creek Programs records 

were ordered sealed by the trial court and have not been provided to this court. These 

records were not discussed at the hearing on the motion for a new trial. Other than the 

bare assertion that the documents are material, defendants offer no further basis for why 

they support a new trial. In the absence of the records themselves or any other evidence 

of their content, we cannot make any determination as to their materiality. Accordingly, 

defendants have failed to establish prejudice. (See Plancarte, supra, 118 Cal.App.4th at 

p. 645.)

Defendants also claim their motion for new trial should have been granted “on 

grounds of prejudicial jury misconduct where such misconduct consists of a juror making 

improper statements during deliberations.” 

In evaluating a motion for new trial based on jury misconduct, the trial court must 

undertake a three-step inquiry. (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345.) 

First, it must determine whether the affidavits supporting the motion are admissible. 

Second, if the affidavits are admissible, the court must determine whether the facts stated 

therein establish misconduct. The moving party bears the burden of establishing juror 
24

misconduct. Third, assuming misconduct, the trial court must determine whether the 

misconduct was prejudicial. (Barboni v. Tuomi, supra, 210 Cal.App.4th at p. 345.)

On appeal, we review the trial court’s decision regarding the admissibility of the 

affidavits under the abuse of discretion standard. We review for sufficiency of the 

evidence the trial court’s determination of whether misconduct occurred, accepting the 

trial court’s credibility determinations and findings on questions of fact if supported by 

substantial evidence. Finally, we review the entire record, including the evidence, and 

make an independent determination as to whether any misconduct was prejudicial. 

(Barboni v. Tuomi, supra, 210 Cal.App.4th at p. 345.)

According to defendants, “one juror admitted during post-verdict questioning that 

when Dr. Jones testified, she drew a nail in her juror notebook to symbolize ‘the final nail 

in the coffin.’ ” In support of this point, defendants submitted the declarations of defense 

counsel and Juror Number 7. Defendants also contend that, during deliberations, “the 

same juror referred to Dr. Jones’ testimony as ‘the smoking gun.’ ” On this point, 

defendants submitted the declarations of Juror Number 4, who “personally heard one 

juror refer to the evidence of Dr. Jones’s testimony as ‘the smoking gun,’ ” and Juror 

Number 7, who “personally heard multiple jurors refer to the evidence of Dr. Jones’s 

testimony as ‘the smoking gun.’ ” According to defendants, “[s]uch a prejudgment made 

while the trial was ongoing represents clear juror bias and is sufficient for a finding of 

juror misconduct.” Further, defendants contend Wong “failed to rebut the presumption of 

prejudice.” 

Defendants provide no citations to the record for the trial court’s consideration or 

analysis of the admissibility of the affidavits, whether any misconduct occurred, and, if 

so, whether any misconduct was prejudicial. However, notwithstanding the utter absence 

of citation to the arguments raised below, under our obligation to review the entire record 

on appeal from the denial of a motion for new trial, we have undertaken a review of the 

moving and opposing papers that were filed and the transcript of the hearing. 

At the hearing, the trial court was concerned about the juror having prejudged the 

case, but advised the parties that, in light of the verdict, the misconduct was not 
25

prejudicial. The court invited further briefing on the issue of prejudicial juror misconduct

and both sides filed supplemental briefs. Thereafter, the court summarily denied the 

motion. 

Thus, it appears that the trial court found the declarations admissible, concluded 

that juror misconduct had occurred, but further concluded that the misconduct was not 

prejudicial. We need not revisit the trial court’s determinations concerning admissibility 

and misconduct because we agree there was no showing of any prejudice. Even if the 

juror who drew the nail and described testimony as “the smoking gun” did prejudge the 

case, the jury voted 12 to 0 or 11 to 1 on all special verdict questions. Defendants have 

not established that the verdict was affected by this juror’s vote and offered no evidence 

other than speculation that any other juror prejudged the case. There is no reason to 

presume that the juror who may have prejudged the case persuaded some other juror to 

engage in misconduct. (Barboni v. Tuomi, supra, 210 Cal.App.4th at p. 345.)

X.. Eviction Based on Privileged Acts

Defendants contend Wong’s three-day notice to cure or quit sought to evict them 

based on privileged acts, and it was therefore void and could not support an unlawful 

detainer action. The argument is based on the fourth alleged breach in the notice, which 

advised defendants that they were in violation of the no-pets lease provision by 

“attempting to deceive the Owner and his representatives into believing Tiffany Barber is 

disabled and in need of a service animal by misrepresenting to them the facts about her 

mental condition.”9 Defendants argue that Wong sought to evict them because of 

Barber’s assertion that she was disabled and her request for a reasonable accommodation 

for that disability. Her request was “a communication made in connection with the 

anticipated litigation of the unlawful detainer as well as any lawsuit arising from 

[Wong’s] refusal to grant such a reasonable accommodation.” As such, according to 

defendants, Barber’s communication was “an absolutely privileged communication” 

 

9

The other three alleged breaches pertained to having a non-service dog at the 

premises without prior written consent of the owner. 
26

under the litigation privilege set forth in Civil Code section 47. Defendants also argue 

that, because the unlawful detainer was based in part on protected activity, “the entire 

cause of action should be stricken as is the rule in SLAPP lawsuits.”10 

Defendants’ argument does not identify any specific communication and contains 

no citation whatsoever to the record. We cannot even tell from defendants’ briefing 

whether the litigation privilege was raised in the court below. From our independent 

review of the record in connection with the motion for new trial, it appears that they 

raised the litigation privilege in their motions for summary judgment and JNOV, both of 

which were denied. To the extent we have any obligation to consider this argument, we 

discern no miscarriage of justice. (See Oakland Raiders v. Oakland-Alameda County 

Coliseum, Inc., supra, 144 Cal.App.4th at p. 1194.) Resolving conflicts in the evidence 

and drawing all reasonable inferences in favor of the prevailing party, defendants have 

not established the applicability of the litigation privilege in this case., i.e., that the 

unlawful detainer action was based, in whole or in part, on Barber’s request for 

accommodation for a disability. Wong initiated the proceeding because he was 

convinced that Barber was not disabled, in which case defendants breached the no-pets 

provision in the lease by keeping a pet dog in the apartment. The question of whether 

Barber was disabled was submitted to the jury, which answered unanimously that she was 

not. Thus, she was not entitled to a service animal, the sole exception to the no-pets 

provision. The jury also found by a vote of 11 to 1 that Wong did not retaliate against 

defendants because of Barber’s assertion of her legal rights. Neither the litigation 

privilege nor the anti-SLAPP statute is applicable here. 

XI. Motion to Quash Medical Records Subpoenas.

Defendants contend the trial court erred in denying their Motion to Quash Medical 

Records Subpoenas. The ruling was error, they contend, because the ruling allowed 

Barber’s “private, privileged medical records to be disclosed improperly.” 

 

10 Apparently this is a reference to the anti-SLAPP (strategic lawsuit against public 

participation) statute, Code of Civil Procedure section 425.16.
27

Once again, defendants have failed to cite any relevant authority or any pertinent 

portions of the record in support of their contention. The argument is forfeited. (See 

Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 685; Badie v. Bank of 

America, supra, 67 Cal.App.4th at pp. 784-785.) 

DISPOSITION

The judgment and the orders appealed from are affirmed. Wong is awarded his 

costs on appeal.

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.