Zawadzki v. Korman CA1/1

Filed 5/7/15 Zawadzki v. Korman CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

ALEX BRANT-ZAWADZKI,
Plaintiff and Appellant,
A141451
v.
BOB KORMAN et al., (San Francisco City & County
Super. Ct. No. CGC-11-516255)
Defendants and Respondents.

Plaintiff Alex Brant-Zawadzki brought this action against defendants Bob Korman
and Nancy Ryti—respectively, the landlord and owner of his apartment—in connection
with a condition in the basement of his building whereby the equipment of a third party,
Comcast, drew electricity from plaintiff’s utility meter. The trial court granted
defendants’ motion for judgment on the pleadings as to plaintiff’s claim for civil
conspiracy. Six of plaintiff’s claims proceeded to a bench trial: violation of Civil Code
sections 1940.9 and 1950.5, conversion/trespass to chattels, fraud and negligent
misrepresentation, and breach of contract. After the close of plaintiff’s evidence, the trial
court granted defendants’ motion for nonsuit and, subsequently, awarded them attorney
fees. On appeal, plaintiff argues the trial court erred because a motion for nonsuit is
improper in a bench trial. Further, to the extent defendants’ motion can be construed as a
motion for judgment—which would have been proper in this context—plaintiff argues
the trial court’s decision is not supported by substantial evidence. Plaintiff also contends
the trial court erred by dismissing his claim for civil conspiracy and granting defendants’
motion for attorney fees. We affirm the judgment, but remand for adjustment of the
attorney fee award.
I. BACKGROUND
This case arises out of plaintiff’s tenancy in a building in San Francisco’s
Richmond District. In 2004, several years before plaintiff took up residence there, the
building’s owner, Nancy Ryti, entered into a site access agreement with Comcast of
California III, Inc. (Comcast). The agreement granted Comcast a nonexclusive right to
use space and utility connections in the building’s basement for the purpose of providing
connectivity to Comcast’s network. Under the agreement, Ryti was to make available to
Comcast up to two 20-amp circuits so Comcast could power its equipment. Comcast
agreed to reimburse Ryti for the cost of the electrical current used at a rate of $95 per
circuit. Comcast also agreed to pay Ryti a $9,800 license fee. Korman is listed as Ryti’s
contact for notice.
Plaintiff leased an apartment in the building from February 15, 2007 through
May 2009. The lease agreement was signed by plaintiff and Ryti, as well as Bob
Korman, who is identified as “Landlord.” The lease provides plaintiff “shall be
responsible for the payment of utilities and services,” but it makes no mention of the site
access agreement with Comcast. Plaintiff testified he did not learn of the agreement until
he talked to a Comcast customer service representative in May or June 2009.
Plaintiff initially shared his utility bill with the building’s two other tenants.
About 40 percent of the bill was allocated to plaintiff, and the other two tenants were
responsible for the remaining 60 percent. In February or March 2008, one of the tenants
moved out, and plaintiff split the building’s utilities evenly with the other tenant. The
other tenant moved out in August 2008. Plaintiff was then responsible for 100 percent of
the utilities, and he had the accounts transferred into his name. Shortly thereafter,
plaintiff learned there was an arrearage of thousands of dollars on the account.
Plaintiff testified he first learned he was being billed for electricity used by the
Comcast equipment on or around May 22, 2009. On that day, he was talking with his
former neighbor about how Korman had been performing repairs or renovations in the

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apartment below. Plaintiff joked Korman should pay for some of the electric bill because
of the power tools he had been using. Plaintiff testified: “I had been able to hear these
loud machines buzzing in the basement since I moved in, so suddenly a light went off in
my head. I said, hey, I wonder where those two giant machines get their power from,
because I had been down there maybe once or twice, and didn’t get a great look around
and didn’t . . . remember seeing anything that—you know, I got suspicious.” Plaintiff
then went to the basement to investigate, and after tracing the conduits and experimenting
with the breakers, he discovered the Comcast machines were drawing power from his
meter. Plaintiff asked Korman about the situation later that day. Korman claimed he did
not know if the machines were Comcast’s and was evasive about Comcast’s use of
electricity.
Plaintiff filed an unverified complaint against defendants in September 2009. A
year later, the case was dismissed after the court had set several order to show cause
hearings concerning plaintiff’s failure to file a proof of service and failure to appear. In
December 2011, plaintiff filed another unverified complaint against defendants. After
answering the complaint, defendants filed a motion for judgment on the pleadings. The
motion was granted in part and denied in part. Among other things, the court dismissed
plaintiff’s claim for conspiracy without leave to amend on the ground defendants “cannot
conspire with self [sic].” Plaintiff subsequently filed an amended complaint.
The following claims were adjudicated to trial: violation of Civil Code
sections 1940.9 and 1950.5, conversion/trespass to chattels, fraud and negligent
misrepresentation, and breach of contract. A bench trial commenced on December 9,
2013. On the following day, after plaintiff rested, defendants moved for nonsuit, arguing
(1) plaintiff’s claims were barred by the applicable statutes of limitations, and (2) plaintiff
failed to prove as a matter of law any of the alleged conduct was a legal cause of damage,
and plaintiff could not demonstrate the amount of any alleged loss. The court took a brief
recess and then granted the motion. It is unclear from the record on what grounds the
motion was granted. Although defendants requested a statement of decision prior to trial,

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the court declined to issue one. Judgment was entered for defendants on January 30,
2014.
Defendants subsequently moved for attorney fees pursuant to the San Francisco
Rent Ordinance, specifically section 37.9 of the San Francisco Administrative Code. The
motion was granted in part, and the court awarded attorney fees in the amount of
$37,050.
II. DISCUSSION
A. The Motion for Nonsuit
Plaintiff argues the judgment must be reversed because the trial court erred in
granting a motion for nonsuit. As plaintiff points out, the Legislature has abolished
motions for nonsuit where, as here, a case is tried before the court without a jury. (Estate
of Pack (1965) 233 Cal.App.2d 74, 77.) Pursuant to Code of Civil Procedure
section 581c, subdivision (a), a defendant may move for a judgment of nonsuit “[o]nly
after . . . the plaintiff has completed his or her opening statement, or after the presentation
of his or her evidence in a trial by jury.” (Italics added.)
The trial court’s error is not fatal, however, because defendants’ motion for
nonsuit may be treated as a motion for judgment under Code of Civil Procedure
section 631.8. In relevant part, the statute states: “After a party has completed his
presentation of evidence in a trial by the court, the other party . . . may move for a
judgment. The court as trier of the facts shall weigh the evidence and may render a
judgment in favor of the moving party, in which case the court shall make a statement of
decision as provided in Sections 632 and 634, or may decline to render any judgment
until the close of all the evidence.” (Code Civ. Proc., § 631.8, subd. (a).) The statute
“was obviously intended as a substitute procedure available to a defendant at the close of
plaintiff’s evidence [in a bench trial].” (East-West Capital Corp. v. Khourie (1970)
10 Cal.App.3d 553, 556 (East-West).) Thus, “if the requirements of section 631.8 [a]re
otherwise met, a motion for and judgment of nonsuit m[ay] be treated as a motion and
judgment made under that section.” (Ibid.)

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 Plaintiff argues even if we construe defendants’ motion for nonsuit as a motion for
judgment, reversal is warranted because the court failed to issue a statement of decision.
According to plaintiff, a statement of decision is necessary whenever a trial court grants a
motion for judgment pursuant to Code of Civil Procedure section 631.8. “It is clear,
however, that no statement is required unless timely requested by a party.” (Tusher v.
Gabrielsen (1998) 68 Cal.App.4th 131, 140, fn. 10.) Section 631.8 requires the court to
“make a statement of decision as provided in Sections 632 and 634,” and section 632
conditions the issuance of such a statement “upon the request of any party appearing at
trial.”
Here, plaintiff waived his right to a statement of decision by failing to request one
below. Contrary to plaintiff’s assertion, East-West does not compel a different
conclusion. In that case, the court rejected the defendant’s contention that a notice of
appeal may reasonably be deemed a waiver of findings, which were then required in
place of a statement of decision. (East-West, supra, 10 Cal.App.3d at p. 558.) The court
reasoned Code of Civil Procedure section 632 prescribed the exclusive means of waiver.
(East-West, at p. 558.) At the time of the trial in that case, section 632 stated findings
could be waived by written or oral consent or failure to appear. The statute has since
been “drastically revised.” (East-West, at p. 556, fn. 1.) It no longer requires the trial
court to issue findings or a statement of decision absent waiver. Instead, as discussed
above, a statement of decision is now only required when requested by a party.
Finally, plaintiff asserts a statement of decision was required because defendants
requested one prior to trial. As plaintiff points out, a trial court’s failure to issue a
statement of decision upon a timely request of a party is generally reversible error. (E.g.,
Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129.)
Courts have remanded in such cases because a statement of decision adequately
explaining the factual and legal basis for the trial court’s decision can greatly reduce the
burden placed on the parties and court on appeal. (Id. at p. 1130; Social Service Union v.
County of Monterey (1989) 208 Cal.App.3d 676, 681.) However, we are aware of no
authority holding an appellant who declines to request a statement of decision may later

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challenge a trial court’s failure to issue one. Accordingly, we see no reason why the
normal rules of waiver should not apply. (Cf. In re Marriage of Arceneaux (1990)
51 Cal.3d 1130, 1133–1134 [party forfeits its right to challenge omissions or ambiguities
in a statement of decision where it fails to timely object to those deficiencies below].)
Here, plaintiff did not request a statement of decision or make any proposals as to its
content. Nor did he object to the trial court’s failure to provide one. Even if plaintiff had
objected, it is unclear he would have had standing to do so in light of his failure to
request a statement of decision. Moreover, as we find substantial evidence supports the
judgment, remanding the case for further proceedings would be a waste of judicial
resources. (See section II.B., post.)
Accordingly, we decline to reverse because defendants’ motion for nonsuit was
deficient in form or because the trial court failed to issue a statement of decision.
B. Substantial Evidence Review
As the trial court did not issue a statement of decision, we review the entire record
to determine whether the judgment is supported by substantial evidence. (See Miramar
Hotel Corp. v. Frank B. Hall & Co., supra, 163 Cal.App.3d at p. 1130.) On substantial
evidence review, we “must view the whole record in a light most favorable to the
judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in
favor of the decision of the trial court.” (DiMartino v. City of Orinda (2000)
80 Cal.App.4th 329, 336.) “We may not substitute our view of the correct findings for
those of the trial court; rather, we must accept any reasonable interpretation of the
evidence which supports the trial court’s decision.” (Ibid.) “Substantial evidence, of
course, is not synonymous with ‘any’ evidence.” (Toyota Motor Sales U.S.A., Inc. v.
Superior Court (1990) 220 Cal.App.3d 864, 871.) Rather, it is “evidence of ponderable
legal significance, evidence that is reasonable, credible and of solid value.”
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) The focus is on the
quality, not the quantity, of the evidence. (Ibid.) As set forth below, we find substantial
evidence supports the judgment as to each of the claims asserted at trial.

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 1. Civil Code Section 1940.9, Conversion/Trespass to Chattels, Fraud and
Negligent Misrepresentation, and Breach of Contract
We find substantial evidence supports the judgment as to plaintiff’s claims for
violation of Civil Code section 1940.9, conversion/trespass to chattels, fraud and
negligent misrepresentation, and breach of contract because plaintiff failed to prove his
damages. All of these claims are predicated on the theory defendants damaged plaintiff
by failing to provide separately metered electricity and inducing him to pay for
Comcast’s electricity consumption. Plaintiff had the burden to prove damages as to each
claim. (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 268.) He need not have
proved his damages with exactness. (Schroeder v. Auto Driveway Co. (1974) 11 Cal.3d
908, 921.) But “[w]hatever the proper measure of damages may be, in a given case, . . .
recovery . . . is still subject to the fundamental rule that damages which are speculative,
remote, imaginary, contingent, or merely possible cannot serve as a legal basis for
recovery.” (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 367–368.)
Here, there is evidence plaintiff was responsible for paying some portion of the
building’s utilities during his tenancy. But it is unclear how much plaintiff was charged
for utilities during this period. Plaintiff initially testified he paid hundreds of dollars per
month for utilities. When asked if he could be more specific, plaintiff responded it
depended on the time of year, but his monthly utility bill was approximately $400 from
the beginning of 2008 through when he moved out in May 2009. It is unclear how much
the bill varied and whether this amount was charged to plaintiff alone or whether it was
split among the other tenants who lived in the building during some of this period. There
is also no indication how much plaintiff paid for utilities prior to 2008.
More importantly, plaintiff offered no evidence concerning what portion of his
utility bill was attributable to Comcast’s electricity consumption. Without such evidence,
there is no way to assess plaintiff’s total damages, as these claims are predicated on the
theory he was paying for Comcast’s electricity. Plaintiff did testify the monthly utility
bill at his current apartment is $40 to $50 per month, as opposed to the $400 per month
he previously paid. However, the trial court could have reasonably concluded such a

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comparison proved nothing, especially since there is no indication the two apartments are
remotely similar. In fact, plaintiff testified his new apartment is significantly smaller
than his old one. Plaintiff also argues defendants’ site access agreement with Comcast
provided for a minimum reimbursement for two electrical circuits at $95 per circuit each
month in exchange for Comcast’s use of electricity, suggesting Comcast used at least
$190 of electricity per month. Nevertheless, it is entirely possible the Comcast machines
used less electricity during the relevant period, and plaintiff offered no evidence
suggesting otherwise.
Likewise, plaintiff’s evidence concerning the arrearage on his utility account was
far from decisive. Though plaintiff testified the arrearage was $4,000 “at its worst,” he
did not specify whether it was attributable to the additional electricity consumed by
Comcast. Nor did plaintiff testify that he paid it. Rather he merely stated he was
“obligated” to pay the arrearage. Whether plaintiff fulfilled that obligation remains an
open question.
Plaintiff also asserts he was entitled to damages for emotional distress in
connection with his claims for conversion, trespass to chattels, and fraud. He argues he
presented sufficient evidence to support this claim because he testified he was “shocked”
when he discovered defendants’ arrangement with Comcast, and the arrangement made
him feel “upset” and “helpless.” “[D]amages for emotional distress arising out of acts
which invade an interest protected by established tort law are recoverable only if the
claimed emotional distress naturally ensues from the acts complained of” and “where
there is some means for assuring the validity of the claim.” (Merenda v. Superior Court
(1992) 3 Cal.App.4th 1, 6, 8, disapproved on another ground in Ferguson v. Lieff,
Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1053.) In this case, the trial
court could have reasonably concluded plaintiff’s claims for emotional distress were
barred because he failed to show his utility bill was affected in any significant way by
defendants’ arrangement with Comcast. As there is no indication the arrangement
resulted in a loss of personal property, it would be anomalous to conclude it somehow
caused plaintiff emotional distress.

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 2. Civil Code Section 1950.5
We address plaintiff’s claim for violation of Civil Code section 1950.5 separately
because, unlike his other claims, it does not arise out of Comcast’s electricity
consumption. In relevant part, section 1950.5, provides: “No later than 21 calendar days
after the tenant has vacated the premises, . . . the landlord shall furnish the tenant . . . an
itemized statement indicating the basis for, and the amount of, any security received and
the disposition of the security, and shall return any remaining portion of the security to
the tenant.” (Id., subd. (g)(1).) Plaintiff asserts defendants violated the statute because
they refused to return his security deposit of $5,000. Plaintiff did not, however, offer any
evidence showing defendant failed to provide a statement describing the disposition of
his security deposit or that any portion of the security deposit was wrongfully withheld.
Moreover, plaintiff testified he planned on terminating his lease eight to nine months
early, and there is also evidence he was assessed an $8,250 early termination penalty.
Accordingly, there is substantial evidence plaintiff failed to meet his burden to prove a
violation of section 1950.5.
C. Civil Conspiracy
Plaintiff also challenges the trial court’s order granting defendants’ motion for
judgment on the pleadings as to plaintiff’s claim for civil conspiracy. Plaintiff had
alleged Korman and Ryti conspired with each other to defraud him. The trial court
dismissed the claim on the ground one “cannot conspire with self [sic],” apparently
because it found Korman was Ryti’s agent, and a principal is legally incapable of
conspiring with an agent. Plaintiff argues the trial court erred because he alleged Korman
and Ryti were not agent and principal, but “were acting in furtherance of their own
financial gain in conspiring together.” We need not reach the issue since, as set forth
above, plaintiff failed to prove any of his tort claims. “Conspiracy is not a cause of
action, but a legal doctrine that imposes liability on persons who, although not actually
committing a tort themselves, share with the immediate tortfeasors a common plan or
design in its perpetration.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994)
7 Cal.4th 503, 510–511.) “No conspiracy, however atrocious, gives rise to any civil

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cause of action unless an underlying civil wrong, resulting in damage, is alleged and
proven.” (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 792.) Because plaintiff
failed to prevail on any of his tort claims, he cannot possibly prove a claim for civil
conspiracy.
D. Attorney Fees
Following trial, defendants moved for attorney fees in the amount of $73,500,
pursuant to the San Francisco Rent Ordinance, specifically section 37.9 of the San
Francisco Administrative Code. The trial court granted the motion and awarded
defendants fees incurred, up to and including March 29, 2013, in the amount of $37,050.
Plaintiff asserts this award was improper because the parties’ lease agreement states each
party shall bear their own attorney fees, and even if attorney fees were warranted, they
should have been limited to those incurred through December 2012. We conclude
defendants were entitled to attorney fees, but agree with plaintiff those fees should have
been limited.
San Francisco Administrative Code section 37.9 pertains to tenant evictions.
Subdivision (f) provides for various penalties in cases where a landlord wrongfully
endeavors to recover possession of a rental unit, including treble damages and damages
for mental or emotional distress. Most importantly for the purposes of this case,
subdivision (f) also states the prevailing party in such actions shall be entitled to
reasonable attorney fees and costs. In contrast, the parties’ lease agreement states each
party shall bear their own attorney fees: “In any action or proceeding involving a dispute
between Owner, Tenant and/or Broker arising out of the execution of this agreement, or
to collect commissions, or to enforce the terms and conditions of this agreement, or to
recover possession of the premises from Tenant, each party to such an action at law is to
bear her/his own attorney’s fees & court costs.”
The pertinent question is whether the San Francisco Rent Ordinance or the lease
controls. Under Civil Code section 3513, “Any one may waive the advantage of a law
intended solely for his benefit. But a law established for a public reason cannot be
contravened by a private agreement.” Thus, statutory rights established for a public

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purpose are unwaivable. (Armendariz v. Foundation Health Psychcare Services, Inc.
(2000) 24 Cal.4th 83, 100.) “Whether a particular term violates public policy by seeking
to waive a statutory right or remedy established ‘ “for a public reason” ’ is a question that
necessarily entails our discernment of legislative intent.” (Bickel v. Sunrise Assisted
Living (2012) 206 Cal.App.4th 1, 9.) The issue of whether the waiver of statutory rights
violated public policy presents a legal question we review de novo. (Ibid.)
We discussed the public purpose of the treble damage provision of San Francisco
Administrative Code section 37.9, subdivision (f) in Kelly v. Yee (1989) 213 Cal.App.3d
336, 341, stating: “[L]awsuits over wrongful evictions are likely to involve small
amounts of money that may not justify the costs of litigation—especially in the case of
suits brought by the very type of tenant the ordinance is especially intended to protect:
‘senior citizens, persons on fixed incomes and low and moderate income households.’
[Citation.] If civil remedies in aid of these tenants are to be meaningful, they must
provide sufficient financial incentive to justify bringing suit. The award of treble
damages very clearly serves such a purpose.” We conclude the same reasoning applies to
the attorney fee provision of section 37.9, subdivision (f). Although the purpose of the
ordinance is to encourage meritorious suits by tenants, and in this case the landlord is the
prevailing party moving for attorney fees, Civil Code section 1717 requires courts to
construe contractual attorney fees provisions as reciprocal. Thus, we cannot construe the
lease as merely waiving defendants’ statutory right to attorney fees.
For these reasons, we find section 37.9 of the San Francisco Administrative Code
grants defendants, as prevailing parties, an unwaivable right to seek attorney fees in
connection with plaintiff’s claim for wrongful recovery of his rental unit. That claim was
dismissed on December 20, 2012, but the trial court awarded defendants attorney fees
incurred through March 29, 2013. We agree with plaintiff this award was error.1 (Cf.

1
In his reply brief, plaintiff claims he “does not challenge the reasonableness of
the amount of the attorney fee award,” but the propriety of awarding attorney fees at all.
But his opening brief states “the attorney fee award should have been limited to the fees

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Santisas v. Goodin (1998) 17 Cal.4th 599, 615 [“If an action asserts both contract and tort
or other noncontract claims, [Civil Code] section 1717 applies only to attorney fees
incurred to litigate the contract claims.”].)
Defendants’ arguments on this point are unpersuasive. Defendants suggest they
were entitled to all attorney fees incurred in this action under Code of Civil Procedure
section 1038, which allows for defense fees in civil proceedings under the Government
Claims Act (Gov. Code, § 810 et seq.) where “the proceeding was not brought in good
faith and with reasonable cause.” (Code Civ. Proc., § 1038, subd. (a).) Defendants did
not move, however, for attorney fees under this provision, and the trial court did not
make any findings regarding plaintiff’s good faith. We decline to do so now, especially
since defendants have failed to offer any coherent explanation as to why such a finding is
warranted. Moreover, defendants’ contention that plaintiff waived the issue by failing to
cite to the record or legal authority is belied by plaintiff’s opening brief.
In sum, we find defendants are entitled to attorney fees incurred through
December 20, 2012, in connection with plaintiff’s claim for violation of San Francisco’s
rent ordinance. We also find the trial court erred in awarding attorney fees incurred after
that claim was dismissed. We reverse the attorney fee award and remand for
determination of the appropriate amount. The trial court’s award shall be limited to
attorney fees reasonably incurred in connection with the defense of plaintiff’s claim for
violation of San Francisco Administrative Code section 37.9.
III. DISPOSITION
The judgment is affirmed. We reverse and remand the trial court’s award of
attorney fees.

incurred up to the court’s order granting Respondents’ motion for judgment on the
pleadings.”

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 _________________________
Margulies, Acting P.J.

We concur:

_________________________
Dondero, J.

_________________________
Banke, J.

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