Phelps v. Bishop CA2/4

Filed 5/28/15 Phelps v. Bishop CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

WILLIE PHELPS, B252583 and B254891

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC478175)
v.

REGGIE LYN BISHOP, SR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Steven J. Kleifield, Judge. Affirmed.
Reggie L. Bishop, in pro. per., for Defendant and Appellant.
Campbell & Farahani, Frances M. Campbell and Nima Farahani for Plaintiff
and Respondent.
 Plaintiff and respondent Willie Phelps sued her former landlord, appellant
Reggie Lyn Bishop, Sr., for constructive eviction by turning off the water and gas
to her apartment and for a violation of Civil Code section 789.3.1 A jury awarded
respondent damages in the amount of $154,500, and the trial court awarded
respondent $106,924 in attorney fees and entered judgment in her favor.
Appellant, in propria persona, appeals the jury verdict in appeal No. B252583 and
the award of attorney fees in appeal No. B254891.2 We affirm the judgment in its
entirety.

FACTUAL AND PROCEDURAL BACKGROUND3
Respondent lived in a rent-controlled apartment on Stocker Street in the City
of Los Angeles from 1997 through 2011.4 Respondent testified that she had a good
relationship with her previous landlord, but after appellant became the landlord in
2009, he began to harass her in what she believed was an attempt to force her to
move out. For example, in April 2011, appellant demanded that respondent
complete a new rental application on the basis that she had exceeded the allowable
number of occupants in the apartment, even though the previous landlord had

1
All unspecified statutory references are to the Civil Code. Section 789.3 prohibits
a landlord from willfully causing, directly or indirectly, the interruption or termination of
any utilities to a tenant with the intent to terminate the tenant’s occupancy. (§ 789.3,
subd. (a).)
2
The appeals were consolidated for the purposes of oral argument and decision.
3
The record contains no reporter’s transcript. However, the court approved
respondent’s proposed settled statement of the oral proceedings of the case, summarizing
the witnesses’ testimony.
4
A real estate agent testified that the fair market value of respondent’s apartment
was $1,800 per month. Respondent paid $750 per month.

2
approved the number of occupants. In addition, appellant repeatedly demanded
that respondent allow entry to her apartment for unneeded repairs and then failed to
send a repair person. In June and August 2011, appellant served respondent with
notices to quit for her alleged refusal to allow access for repairs, although no
repairs were needed and no one came to make repairs. In September 2011,
appellant served respondent with a notice to quit for the alleged failure to pay rent,
even though she had paid it.
In August 2011, appellant sued respondent for unlawful detainer, demanding
that respondent give him access to her apartment. However, in October 2011,
there was a fire in a different apartment at the property. Appellant notified
respondent that the utilities at the building were being discontinued for an
indefinite time due to fire damage and advised her to seek shelter with the Red
Cross.
Felipe Hernandez, a code enforcement officer with the Los Angeles Housing
Department (housing department) inspected the property after the fire and told
appellant to restore the gas and water to respondent’s apartment, but appellant
refused. Hernandez testified that there was nothing wrong with the property that
required the utilities to remain off. On October 18, 2011, a housing department
inspector posted a two-day notice to restore the utilities to respondent’s apartment.
Appellant claimed he had been ordered not to turn on the utilities. However,
Hernandez checked with the Los Angeles Fire Department, the Los Angeles
Department of Building and Safety, and appellant’s insurance company, and none
of those entities had instructed appellant to keep the utilities off. Because
appellant refused to turn on the utilities, the housing department issued a Notice to
Vacate Substandard Building, ordering appellant to evict respondent and pay her
relocation fees.

3
 Respondent moved out of the building from approximately October 14, 2011
through the end of November 2011, paying $3,600 for housing in a neighborhood
she felt was dangerous. She had not wanted to move out of her apartment because
she had strong ties to the community there. Respondent was 77 years old at the
time of trial and on a fixed income and thus had limited resources to obtain
housing in a safer neighborhood.
Respondent’s attorney advised respondent to settle the unlawful detainer
case so that she would not need to return to an apartment with no utilities, and
thereafter sue appellant for constructive eviction. On November 9, 2011, appellant
and respondent settled the unlawful detainer action by a superior court form,
“Unlawful Detainer Stipulation and Judgment.” Respondent’s attorney informed
appellant’s attorney that respondent planned to sue appellant for constructive
eviction and refused to waive her right to do so. Pursuant to the agreement,
respondent agreed to vacate the apartment by November 30, 2011, and appellant
agreed to pay respondent the $17,000 relocation fee ordered by the housing
department. The agreement provided that judgment would be entered in favor of
appellant only if respondent failed to vacate the premises. Appellant agreed that if
respondent vacated the premises, he would dismiss the action with prejudice.
Respondent vacated the premises pursuant to the agreement, and the action was
dismissed.
In February 2012, respondent filed a complaint against appellant alleging
five causes of action: breach of the warranty of habitability, constructive eviction,
negligent maintenance of the premises, violation of section 789.3, and intentional
infliction of emotional distress. The trial court overruled appellant’s demurrer to
the complaint and sustained respondent’s demurrer to appellant’s cross-complaint.

4
The court denied appellant’s summary judgment motion, and the case proceeded to
a jury trial.
The jury returned a special verdict in favor of respondent on her section
789.3 claim and her constructive eviction claim.5 The jury found that appellant
had willfully caused respondent’s gas and water to remain off for the purpose of
terminating her occupancy and that he constructively evicted her. The jury
awarded respondent damages in the amount of $154,500. The trial court entered
judgment in respondent’s favor, awarding her $154,500 in damages, $2,305.35 in
costs, and $106,924 in attorney fees. Appellant timely appealed.

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

5
As to respondent’s intentional infliction of emotional distress claim, the jury found
that appellant’s conduct was outrageous but he did not intend to cause her emotional
distress. Respondent’s claims of the breach of the warranty of habitability and negligent
maintenance of the premises apparently were not sent to the jury because there are no
jury instructions or verdicts on those claims.
6
Respondent has moved to dismiss the appeal pursuant to the disentitlement
doctrine. Under this discretionary doctrine, “[a]n appellate court may dismiss an appeal
where the appellant has willfully disobeyed the lower court’s orders or engaged in
obstructive tactics. [Citation.] [¶] The disentitlement doctrine has been applied to a
wide range of cases, including cases in which an appellant is a judgment debtor who has
frustrated or obstructed legitimate efforts to enforce a judgment. [Citations.]” (Gwartz v.
Weilert (2014) 231 Cal.App.4th 750, 757-758.) Respondent’s motion is based on
allegations of appellant’s post-judgment efforts to prevent her from collecting on the
judgment, such as by transferring the apartment building to his daughter without
consideration. We decline, however, to exercise our discretion to engage in the fact-
finding needed to apply the disentitlement doctrine and therefore deny respondent’s
motion to dismiss.

5
 1. The Unlawful Detainer Settlement Agreement Does Not Bar
Respondent’s Constructive Eviction Claim

Appellant contends that the settlement agreement in his unlawful detainer
action should have acted as res judicata against respondent’s constructive eviction
claim. Respondent contends that appellant has forfeited the defense of res judicata
by failing to raise it in the trial court. (See JSJ Limited Partnership v. Mehrban
(2012) 205 Cal.App.4th 1512, 1526 [res judicata is an affirmative defense that is
forfeited if not raised and proven in the trial court]; In re Reno (2012) 55 Cal.4th
428, 506 [same].) Respondent is incorrect. Although appellant did not raise res
judicata in his answer to the complaint, he did assert res judicata in his demurrer,
as well as in his summary judgment motion. Nonetheless, appellant’s res judicata
claim is unmeritorious because respondent’s constructive eviction claim was not
argued and decided in the unlawful detainer action. (See Landeros v. Pankey
(1995) 39 Cal.App.4th 1167, 1171 [unlawful detainer action resolved by stipulated
judgment had no collateral estoppel effect as to breach of warranty of habitability
claim that was not litigated and determined in the prior action] (Landeros).)
“The tenets of res judicata prescribe the preclusive effect of a prior final
judgment on the merits. [Citation.] The doctrine has two distinct aspects: claim
preclusion and issue preclusion. [Citation.] Claim preclusion, often referred to as
res judicata, provides that ‘a valid, final judgment on the merits precludes parties
or their privies from relitigating the same “cause of action” in a subsequent suit.’
[Citation.] Issue preclusion, or collateral estoppel, ‘“precludes relitigation of
issues argued and decided in prior proceedings.”’ [Citation.]” (City of Oakland v.
Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 227-228.)
“The party asserting collateral estoppel has the burden to show from the record of

6
the prior action that the asserted issue was previously litigated and determined.
[Citation.]” (Landeros, supra, 39 Cal.App.4th at p. 1171.)
The unlawful detainer statutory scheme “is intended and designed to provide
an expeditious remedy for the recovery of possession of real property. [Citation.]
Unlawful detainer actions are, accordingly, of limited scope, generally dealing only
with the issue of right to possession and not other claims between the parties, even
if related to the property. [Citation.]” (Larson v. City and County of San
Francisco (2011) 192 Cal.App.4th 1263, 1297 (Larson); see also Martin-Bragg v.
Moore (2013) 219 Cal.App.4th 367, 385 [“In unlawful detainer proceedings,
ordinarily the only triable issue is the right to possession of the disputed premises,
along with incidental damages resulting from the unlawful detention.
[Citations.]”].)
Because of the limited scope of an unlawful detainer action, “a judgment in
unlawful detainer usually has very limited res judicata effect and will not prevent
one who is dispossessed from bringing a subsequent action to resolve questions of
title [citations], or to adjudicate other legal and equitable claims between the
parties [citations].” (Vella v. Hudgins (1977) 20 Cal.3d 251, 255; Malkoskie v.
Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 973 [judgment arising
from unlawful detainer action is given limited res judicata effect]; Gombiner v.
Swartz (2008) 167 Cal.App.4th 1365, 1371 [“an unlawful detainer judgment has
limited res judicata force because it typically follows a summary proceeding
focused only on deciding a party’s right to immediate possession of property”].)
Appellant contends that respondent forfeited her right to sue him, citing
language from a box checked on the superior court form that states, “Defendant(s)
[sic] rights under lease or rental agreement are forfeited.” As stated above,
unlawful detainer actions are limited in scope, generally addressing only the right

7
to immediate possession of the premises, not other claims between the parties,
even those related to the property. (Larson, supra, 192 Cal.App.4th at p. 1297.)
This pro forma language on the superior court form does not constitute a forfeiture
of respondent’s other claims against appellant. The settlement agreement provided
that respondent agreed to waive her right to “additional relocation fees above what
she receives in this agreement,” but she did not agree to waive any other claims.
The attorney who represented respondent in the unlawful detainer proceeding
testified at trial that he specifically told appellant’s attorney that respondent
planned to sue appellant for constructive eviction and refused to waive her right to
do so.
The settlement agreement in appellant’s unlawful detainer action provided
that respondent would move out of the apartment and appellant would pay the
relocation fees ordered by the housing department. The agreement did not address
any issues other than appellant’s right to possession and respondent’s right to
relocation fees.
The stipulation “made no mention of a relinquishment by [respondent] of
claims arising from a [constructive] eviction.” (Pelletier v. Alameda Yacht Harbor
(1986) 188 Cal.App.3d 1551, 1557.) Her claims accordingly were “not fully and
fairly litigated in an adversary hearing, and thus [were] not conclusively
established. [Citation.]” (Ibid. [stipulated judgment in unlawful detainer
proceeding did not have collateral estoppel effect on retaliatory eviction claim];
Landeros, supra, 39 Cal.App.4th at p. 1171 [stipulated judgment in unlawful
detainer proceeding that contained “no language of comprehensive settlement of
all matters between the parties arising from the lease” did not bar breach of

8
warranty of habitability claim].) Res judicata accordingly does not bar
respondent’s constructive eviction claim.7

2. The Evidence is Sufficient to Support the Jury’s Award of Damages and the
Finding That Appellant Caused the Interruption of Utilities in Respondent’s
Apartment8

Appellant’s second argument is that the jury award is “constitutionally
excessive” because he did not deprive respondent of utilities. In essence, this
contention is a challenge to the jury’s finding that appellant willfully caused
respondent’s utilities to remain off. Appellant’s fifth argument is that the evidence
does not support the findings that he constructively evicted respondent and violated
section 789.3. We conclude that the evidence supports the jury’s findings,
including the amount of damages awarded.
“‘“‘When a finding of fact is attacked on the ground that there is not any
substantial evidence to sustain it, the power of an appellate court begins and ends
with the determination as to whether there is any substantial evidence contradicted
or uncontradicted which will support the finding of fact.’”’ [Citation.] ‘[W]e

7
Appellant raises various other claims related to his res judicata argument. He
contends that respondent entered into the settlement agreement in bad faith; respondent’s
action was a SLAPP (strategic lawsuit against public participation) action (Code Civ.
Proc., § 425.16; Olsen v. Harbison (2005) 134 Cal.App.4th 278, 280); and that the trial
court lacked jurisdiction to consider respondent’s claim because of the unlawful detainer
settlement. Appellant did not raise these claims in the trial court and thus has forfeited
them. (See Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Co. (2011)
197 Cal.App.4th 733, 740 [argument not litigated in trial court was forfeited on appeal].)
8
Appellant’s second argument, that the jury award is excessive because he did not
deprive respondent of her utilities, is essentially the same as his fifth argument that the
evidence is insufficient to support the jury’s findings that he constructively evicted her
and violated section 789.3. We therefore discuss these arguments together.

9
presume that the record contains evidence to sustain every finding of fact.
[Citation.] It is the appellant’s burden to demonstrate that it does not.’ [Citation.]”
(Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th
26, 43.) “We must ‘view the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference and resolving all conflicts
in its favor . . . .’ [Citation.]” (Wilson v. County of Orange (2009) 169
Cal.App.4th 1185, 1188.)
“‘A constructive eviction occurs when the acts or omissions . . . of a
landlord, or any disturbance or interference with the tenant’s possession by the
landlord, renders the premises, or a substantial portion thereof, unfit for the
purposes for which they were leased, or has the effect of depriving the tenant for a
substantial period of time of the beneficial enjoyment or use of the premises.’
[Citations.]” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 925-926; see
Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300
[“‘“[A]ny disturbance of the tenant’s possession by the lessor or at his procurement
. . . which has the effect of depriving the tenant of the beneficial enjoyment of the
premises, amounts to a constructive eviction, provided the tenant vacates the
premises within a reasonable time. [Citations.]” [Citations.]’”].)
Section 789.3 prohibits a landlord from willfully causing the interruption of
utilities to a tenant with the intent to terminate the tenant’s occupancy. (§ 789.3,
subd. (a).) A landlord who violates this section is liable for the tenant’s actual
damages, up to “one hundred dollars ($100) for each day or part thereof the
landlord remains in violation of this section,” but not less than $250, plus attorney
fees. (Id., subd. (c)(2).)
The jury’s findings that appellant willfully deprived respondent’s apartment
of utilities and that he constructively evicted her are supported by substantial

10
evidence. After the fire in October 2011, appellant turned off the water and gas to
respondent’s apartment, told her the utilities would be “unavailable for an
indefinite period,” and suggested she “seek shelter with the Red Cross.” Appellant
refused to restore the utilities despite being ordered to do so by Hernandez, the
code enforcement officer with the housing department. Hernandez testified that, if
there had been a problem with the property that required the utilities to remain off,
the city would have made the repair, but no repairs were needed. Appellant
continued to refuse to restore the utilities after a housing department inspector
posted a two-day notice to restore them. Los Angeles Fire Department battalion
chief Timothy Kerbrat testified that the Los Angeles Fire Department did not order
appellant to turn off the water or the gas at respondent’s apartment and that the fire
department would not order a property owner to leave the water and gas off for six
weeks. Nor had the Los Angeles Department of Building and Safety or appellant’s
insurance company told appellant to keep the utilities off.
Respondent testified about appellant’s attempts to force her to move out of
her apartment by accusing her falsely of refusing to allow entry for repairs and of
failing to pay her rent. Respondent’s son, Thomas Patton, corroborated
respondent’s testimony that appellant repeatedly sent her notices that he was
coming to make repairs to her apartment when no repairs were needed, and that he
would not show up. He further testified that appellant told him that if respondent
refused to sign a new rental agreement, “he would ‘get her M.F. ass out of there.’”
Patton also testified that he called the Department of Water and Power and the gas
company to have the utilities turned on, but the agencies told him they had not
turned off the utilities.
The evidence supports the jury’s findings that appellant deprived respondent
of utility services with the intent to terminate her occupancy and that, in doing so,

11
he constructively evicted her by rendering the premises unfit and depriving her of
the use of the premises.
The jury’s award of damages also is supported by substantial evidence. The
jury received instructions on economic, noneconomic, and statutory damages, and
it awarded respondent $2000 in economic damages and $1500 in statutory
damages on her section 789.3 claim. As to her constructive eviction claim, the jury
was instructed to determine respondent’s monthly loss as the difference between
her rent and the fair market value of the apartment, multiplied by the number of
months she would have remained in the apartment absent the constructive eviction.
The jury also was instructed that, according to Social Security Online, the average
life expectancy of a 76-year-old woman was 12 years. The difference between
respondent’s rent and the fair market value of her apartment was $1050 per month,
which, over 10 years, would result in damages of $126,000. The jury awarded
respondent $23,000 in past economic damages, $8,000 in past non-economic
damages, and $120,000 in future economic damages on her constructive eviction
claim. The jury’s award was not excessive.

3. The Jury’s Findings Are Not Inconsistent9
Appellant’s fourth argument is that the jury’s findings are inconsistent. His
first contention is that the jury awarded respondent $154,500, but the trial court
entered judgment in the amount of $263,729.35. The trial court’s award reflects
costs of $2,305.35 and $106,924 in attorney fees.

9
We need not address appellant’s third argument, that he did not breach the
warranty of habitability or negligently maintain the premises. As noted above, these two
claims were not sent to the jury. There are no jury instructions or verdict on the claims
and therefore no findings or judgment to challenge.

12
 Appellant further contends that the jury’s finding that he violated section
789.3 is inconsistent with its finding that he did not intentionally cause respondent
emotional distress. The jury found that, although appellant’s conduct toward
respondent was outrageous, he did not intend to cause her emotional distress.
Appellant contends that this finding is inconsistent with the finding that he
willfully caused respondent’s gas and water to remain off for the purpose of
terminating her occupancy of the apartment. We reject his argument for two
reasons.
First, appellant did not raise this issue in the trial court and accordingly has
forfeited it. (See Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 299 [if a
verdict is merely ambiguous, “a party’s failure to seek clarification of the verdict
before the jury is discharged may work a forfeiture of the purported defect on
appeal”].) Even if not forfeited, appellant is incorrect.
The jury’s finding that appellant violated section 789.3 merely requires a
finding that appellant intended to terminate respondent’s occupancy of her
apartment. Whether appellant intended to cause respondent emotional distress is a
different question from whether respondent intended to terminate respondent’s
occupancy of her apartment. Appellant may have intended to terminate
respondent’s occupancy of the apartment for reasons other than to cause
respondent emotional distress, such as for financial gain. The jury’s finding that
appellant intended to terminate respondent’s occupancy of her apartment
accordingly is not inconsistent with its finding that appellant did not intend to
cause respondent emotional distress.

13
 4. The Trial Court Did Not Abuse its Discretion in Awarding Respondent
Attorney Fees10

Appellant contends that the trial court’s award of $106,924 in attorney fees
is excessive and that respondent is not entitled to attorney fees because he did not
violate section 789.3.11 “‘We review the amount of attorney fees awarded for
abuse of discretion. [Citation.] A trial court’s attorney fee award will not be set
aside “absent a showing that it is manifestly excessive in the circumstances.”
[Citation.]’ [Citation.]” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th
459, 487 (Lunada Biomedical).)
Appellant did not oppose respondent’s motion for attorney fees. “In
challenging attorney fees as excessive because too many hours of work are
claimed, it is the burden of the challenging party to point to the specific items
challenged, with a sufficient argument and citations to the evidence. General
arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.
Failure to raise specific challenges in the trial court forfeits the claim on appeal.”
(Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn.
(2008) 163 Cal.App.4th 550, 564; see also City of Santa Paula v. Narula (2003)
114 Cal.App.4th 485, 494 [failure to raise objections about unnecessary attorney
fees in the trial court waives the issue on appeal].) Because appellant did not
challenge respondent’s motion for attorney fees in the trial court, he has forfeited
the issue.

10
The attorney fee award is the subject of the appeal in No. B254891, although
appellant also raises it in No. B252583.
11
As discussed above, the jury’s finding that appellant violated section 789.3 is
supported by substantial evidence. Appellant’s argument based on this contention
accordingly is not discussed here.

14
 Appellant relies on Hale v. Morgan (1978) 22 Cal.3d 388 (Hale) to argue
that he may challenge attorney fees for the first time on appeal, but Hale is
distinguishable. The issue in Hale was the constitutionality of section 789.3, an
issue raised in an oblique manner in the trial court in that case. The California
Supreme Court reasoned that, although a constitutional question generally is
waived if not raised at the earliest opportunity, the defendant’s argument that the
imposition of substantial penalties under section 789.3 was “a ‘great injustice’”
sufficed to raise the constitutional challenge below. (Id. at p. 394.) Hale therefore
does not support the proposition that the amount of attorney fees awarded pursuant
to section 789.3 may be raised for the first time on appeal.
Even if not forfeited, appellant’s challenge to the amount of attorney fees
would fail. “In awarding attorney fees, the court has broad discretion to determine
the reasonableness of the fees claimed in light of a number of factors, including the
nature of the litigation, its difficulty, the skill required in its handling, the skill
employed, the attention given, the success or failure, and other circumstances.
[Citation.] ‘The “experienced trial judge is the best judge of the value of
professional services rendered in his court, and while his judgment is of course
subject to review, it will not be disturbed unless the appellate court is convinced
that it is clearly wrong.”’ [Citations.]” (Building a Better Redondo, Inc. v. City of
Redondo Beach (2012) 203 Cal.App.4th 852, 873.)
Respondent submitted detailed billing sheets and declarations in support of
the motion for attorney fees. Appellant argues that the motion does not specify
work rendered by support staff, but the billing sheets and declarations indicate that
the work was performed by the attorneys and two associates. Appellant’s general
argument that the fees are unconscionable is not sufficient to establish that the trial
court abused its discretion. Appellant thus has failed to establish that the award

15
was “‘“manifestly excessive in the circumstances.” [Citation.]’ [Citation.]”
(Lunada Biomedical, supra, 230 Cal.App.4th at p. 487.)12

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

12
Appellant also purports to move to quash service of process, arguing that he was
not properly served with respondent’s motion for attorney fees, citing Code of Civil
Procedure sections 1010 and 1005, subdivision (b). However, the statutory sections he
cites do not support his contention. Code of Civil Procedure section 1010 merely sets
forth general requirements regarding service, and section 1005 does not address a motion
for attorney fees. Moreover, he did not raise this issue in the trial court.

16
Procedure section 2023, which addressed sanctions for discovery misuse.
However, there is no indication in the record that the court granted the motion in
limine as a discovery sanction.13 Appellant does not explain how the court’s
rulings denied him of the right to present evidence, and he does not provide any
other citations to the record that would support his claim.

DISPOSITION14
The judgment is affirmed. Respondent shall recover her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P.J.

We concur:

MANELLA, J. COLLINS, J.

13
Appellant relies on Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, which
upheld the entry of default judgment as a sanction for the plaintiff’s willful failure to
attend two properly noticed depositions. That case involved the imposition of discovery
sanctions, which did not occur here, and therefore is inapposite.
14
Appellant has filed numerous requests for judicial notice. His requests are denied.
17