CHA HAACKE v. DESRIE L. PFISTER
E081790
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
June 4, 2025
(Super.Ct.No. MCC2001050)
Eric Keen, Judge
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
CHA HAACKE,
Plaintiff and Appellant,
v.
DESRIE L. PFISTER,
Defendant and Respondent.
E081790
(Super.Ct.No. MCC2001050)
OPINION
APPEAL from the Superior Court of Riverside County. Eric Keen, Judge.
Affirmed.
Law Office of Nada Dhahbi and Nada Dhahbi for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
In 2016, plaintiff and appellant Cha Haacke was hired to provide care to the elderly mother of defendant and respondent Desrie L. Pfister. After defendant’s mother passed, defendant made statements critical of plaintiff’s care and accused plaintiff of causing the death of defendant’s mother. As a result, plaintiff filed a civil complaint against defendant alleging causes of action for intentional interference with prospective economic relations and defamation.1 In 2023, a jury returned a verdict finding that defendant had made statements that were per se defamatory but that plaintiff had failed to prove that the statements caused any actual injury. As a result, the jury awarded plaintiff only presumed damages in the amount of $5,000.
Plaintiff moved for a new trial pursuant to Code of Civil Procedure2 section 657, but the trial court denied her motion after concluding that none of the alleged errors would have resulted in a miscarriage of justice warranting a new trial. Plaintiff appeals from the judgment but challenges only the trial court’s denial of her motion for new trial in her opening brief. We conclude that the record does not show an abuse of discretion in the trial court’s denial of the motion for new trial, and we affirm the judgment.
II. BACKGROUND
Based upon these allegations, the complaint asserted causes of action for slander, libel, and false light. It also asserted a cause of action for intentional interference with prospective economic relations, alleging that defendant’s comments interfered with plaintiff’s intended business relationship with Rod Haacke by interfering with their plan to convert their home into a residential care facility for the elderly.3
In March 2023, the case was tried before a jury. The trial occurred over the course of multiple days; eight witnesses testified; and numerous documentary exhibits were admitted into evidence.4
The jury returned special verdicts, finding that defendant had engaged in statements that were defamatory per se but that defendant failed to prove truth as an affirmative defense. However, the jury also found that plaintiff failed to prove that the defamatory statements caused plaintiff actual harm, tended to injure plaintiff in her profession, or disrupted any economic relationship. Finally, the jury found that plaintiff had not established that defendant publicized information that showed plaintiff in a false light. As a result, the jury awarded plaintiff $5000 in assumed damages for defamation per se but declined to award any actual or punitive damages.
Plaintiff moved for a new trial pursuant to section 657, listing every statutory ground in her notice. In an accompanying memorandum of points and authorities, plaintiff argued that a new trial was warranted because: (1) the trial court erred in instructing the jury; (2) defendant engaged in misconduct during trial by making improper arguments, references to inadmissible evidence, and inflammatory statements; (3) the trial court erred in admitting certain evidence at trial; (4) the jury awarded inadequate damages; and (5) there was insufficient evidence to support the jury’s verdict.
Defendant filed an opposition with an accompanying declaration, but plaintiff did not include the opposition as part of the record on appeal. The trial court issued a tentative ruling in advance of the hearing, and neither party requested oral argument or appeared for the hearing. As a result, the trial court adopted the tentative ruling and denied the motion, explaining in a written minute order that it had conducted a full examination of the case and concluded that a new trial was not warranted because the errors complained of in plaintiff’s motion had not resulted in a miscarriage of justice.
Plaintiff appeals from the judgment.
III. DISCUSSION
A. General Legal Principles and Standard of Review
On appeal, plaintiff appeals from the judgment but argues only that the trial court erred in denying her motion for a new trial.5 The grounds for granting a new trial are: (1) irregularity in the proceedings preventing a party from having a fair trial; (2) jury misconduct; (3) accident or surprise; (4) newly discovered evidence; (5) excessive or inadequate damages; (6) insufficiency of the evidence to justify the verdict; and (7) error in law occurring at trial. (§ 657.) Additionally, the trial court “may grant a new trial based only on statutory grounds ‘materially affecting the substantial rights of’ the
On appeal, we review the denial of a motion for new trial for abuse of discretion. (Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 159; SwiftAir, LLC v. Southwest Airlines Co. (2022) 77 Cal.App.5th 46, 59). However, “[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) Thus, an appellate court must apply the test appropriate to the specific nature of each determination made by the trial court. (Braganza, at p. 160; Smith v. Magic Mountain, LLC (2024) 106 Cal.App.5th 1128, 1135.)
Here, the trial court declined to make findings related to any of the specific grounds asserted in plaintiff’s motion for a new trial but instead determined that none of the alleged errors resulted in a miscarriage of justice. This aspect of the trial court’s otherwise discretionary decision is subject to our independent review. (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 158 [“[W]hen a party appeals the
Thus, we proceed to examine each of the errors identified in plaintiff’s opening brief to determine whether the record shows prejudice. As we explain, our independent review of the record does not reveal that defendant suffered prejudice from the alleged errors such that the trial court’s denial of her motion for new trial can be considered an abuse of discretion.
B. Purported Juror Misconduct
Plaintiff argues that she was prejudiced by juror misconduct warranting a new trial. We conclude that this issue has been forfeited and further conclude that, even absent forfeiture, plaintiff has not established prejudice such that the trial court’s denial of her motion for new trial on this ground can be considered an abuse of discretion.
“It is a fundamental principle that an appellate court will generally not consider an issue presented for the first time on appeal that could have been but was not presented in the trial court.” (Miller v. Pacific Gas & Electric Co. (2023) 97 Cal.App.5th 1161, 1170; Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [“Generally, points not urged in the trial court cannot be raised on appeal.”].) Here, while plaintiff listed every statutory ground in her notice of intent to move for a new trial, she made no mention of alleged juror misconduct and advanced no argument on that point in her accompanying
Even in the absence of forfeiture, we would conclude that the limited appellate record on this point is not sufficient to show prejudice. For purposes of section 657, juror misconduct refers to “matters extrinsic to the deliberative process.” (Smoketree-Lake Murray v. Mills Concrete Constr. (1991) 234 Cal.App.3d 1724, 1750.) As such, a party asserting juror misconduct must submit “evidence as to objectively ascertainable statements, conduct, conditions, or events” to impeach a verdict on this ground. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124; People v. Nadey (2024) 16 Cal.5th 102, 170 [“ ‘the focus is on whether there is any overt event or circumstances, “open to [corroboration by] sight, hearing, and the other senses” ’ ” which suggests misconduct].) Here, because plaintiff submitted no evidence related to alleged juror misconduct in the trial court, there is nothing in the appellate record upon which this court can rely to conclude that misconduct had occurred or that
Plaintiff’s reliance on Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678 and Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388 to argue that she need not show prejudice because she is entitled to a presumption of prejudice is unavailing. These cases stand for the proposition that “[a] presumption of prejudice arises from [a] finding that juror misconduct occurred.” (Lankster, at p. 682 [emphasis added]; see TRC Operating Co., Inc. v. Chevron USA, Inc., supra, 102 Cal.App.5th at p. 1083 [“[A] finding of misconduct creates a presumption of prejudice.”].) However, because plaintiff never raised the issue in the trial court, the trial court never made such a finding, and the appellate record is inadequate for this court to make such a finding for the first time on appeal. Absent a finding of juror misconduct, there is no basis to apply a presumption of
C. Decision Against the Law
Plaintiff also suggests that a new trial was warranted because the jury ignored the instructions regarding which party bore the burden of proof to establish truth as an affirmative defense. For purposes of a motion for new trial, “[a] verdict is ‘against the law’ when it is contrary to the instructions given the jury.” (Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal.App.3d 948, 958).8 However, the record does not establish prejudice warranting a new trial on this ground.
D. Irregularity in Proceedings Based upon Misconduct by Defendant
Plaintiff complains that defendant repeatedly engaged in misconduct in her closing argument and questioning of witnesses, such that “any of this conduct on its own could be grounds for a new trial.” “ ‘Attorney misconduct is an irregularity in the proceedings and a ground for a new trial.’ ” (Jackson v. Park (2021) 66 Cal.App.5th 1196, 1213).9 However, we conclude plaintiff has forfeited the issue by failing to contemporaneously object to the alleged misconduct at trial. And, even in the absence of forfeiture, the record does not show prejudice warranting a new trial.
“A party ordinarily cannot complain on appeal of attorney misconduct at trial unless the party timely objected to the misconduct and requested that the jury be admonished. . . . The failure to timely object and request an admonition waives a claim of error . . . .” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411-1412; Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 295-296.) While the failure to
Here, plaintiff asserts that various statements made by defendant during closing argument, as well as during the questioning of witnesses, constituted misconduct. However, plaintiff concedes that she did not contemporaneously object to the many instances which she now claims constituted improper questioning.10 And the record shows that plaintiff never contemporaneously objected to any portion of defendant’s closing argument. The failure to contemporaneously object forfeits the issue on appeal and is itself grounds for affirming the trial court’s denial of a motion for new trial.
Even in the absence of forfeiture and accepting plaintiff’s characterization of the record as true, we would find no prejudice on this record. The trial court specifically instructed the jury to reach its decision based solely on evidence presented at trial and further instructed the jury that opening statements, closing argument, questions presented to a witness, and questions to which objections have been sustained were not evidence. “Traditionally, ‘[a]bsent some contrary indication in the record, we presume the jury follows [a court’s] instructions [citations] “and that its verdict reflects the legal
E. Inadequate Damages
Plaintiff also asserts the trial court should have granted her motion for a new trial because the jury awarded inadequate damages. We conclude that this argument has been forfeited for failure to provide a fair summary of the record sufficient for appellate review of this issue. We further conclude that, even accepting plaintiff’s asserted facts as true, such facts are not sufficient to establish prejudice.
1. Applicable Law
The trial court is authorized to vacate a jury verdict and order a new trial for inadequate damages only if, “after weighing the evidence[,] the court is convinced from the entire record, including reasonable inferences therefrom, that the . . . jury clearly should have reached a different verdict.” (§ 657.) The trial court’s discretion to grant a new trial on this ground is very broad. (Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 832.) As a result, an appellate court “can reverse the denial of a new trial motion based on insufficiency of the evidence or [inadequate or] excessive damages only if there is no substantial conflict in the evidence and the evidence compels the conclusion that the
2. Forfeiture
While we can reverse the denial of a new trial for inadequate damages based upon a showing that the evidence was not in substantial conflict and compelled the conclusion that the motion should have been granted, “[i]t is the appellant’s burden, not the court’s, to identify and establish deficiencies in the evidence.” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) “ ‘And in furtherance of that burden,’ ” the “appellant is ‘ “ ‘required to set forth in [his] brief all the material evidence on the point and not merely [his] own evidence. Unless this is done the error is deemed to be [forfeited].’ ” ’ ” (Symons Emergency Specialties v. City of Riverside (2024) 99 Cal.App.5th 583, 598; Slone v. El Centro Regional Medical Center (2024) 106 Cal.App.5th 1160, 1173.)
Here, plaintiff’s opening brief makes no effort to summarize any of the evidence presented at trial—let alone show that there was no substantial conflict in the evidence. Instead, the “statement of facts” in her opening brief summarizes only the allegations asserted in the complaint; and the argument section dedicated to this point cites only to the post-trial declaration plaintiff submitted in support of her motion for new trial. Where plaintiff makes no effort to summarize any of the evidence presented at trial, she does not meet her burden to show that there was no substantial conflict in the evidence.
3. Even Absent Forfeiture, Plaintiff Has Not Met Her Burden on Appeal
Even in the absence of forfeiture, we would conclude plaintiff has not shown that the evidence compelled the conclusion that the jury’s award of damages was inadequate. Generally, a claim of inadequate damages warranting a new trial is evaluated as an attack on the amount of damages awarded by the jury. (Fairbank et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2024) ¶ 18:165 [A claim of inadequate damages is a request “for a limited new trial—i.e., a new trial limited to the issue of damages” with the “findings re liability, etc. to be kept intact.”]; Audish v. Macias (2024) 102 Cal.App.5th 740, 754 [“ ‘A new trial limited to determining the amount of . . . damages ordinarily is proper . . . .’ ”].) Thus, evaluating whether the amount of damages is adequate necessarily requires consideration of the jury’s liability determination as to each of plaintiff’s claims. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 553-554 [Damages cannot be inadequate where plaintiff did not prevail on causes of action related to the claimed damages.].)
In this case, plaintiff argues that the amount of damages awarded by the jury was inadequate by relying on evidence of her alleged economic losses of property, business, trade, and occupation. However, losses of “property, business, trade, profession, or occupation” are considered “special damages,” which are a “branch of actual damages” that may be recovered only upon pleading and proof. (
Absent proof of special damages, plaintiff’s damage award was necessarily limited to general damages for loss of reputation, shame, mortification, or hurt feelings (
It was plaintiff’s burden on appeal to show that the evidence at trial was not in substantial conflict and compelled the conclusion that the jury’s award of damages was inadequate. Absent a showing that the evidence compelled a finding that the jury’s damages were inadequate, plaintiff has not met her burden on appeal to show the trial court abused its discretion in denying her motion for new trial on this ground.
F. Error in Law
Finally, plaintiff argues that the trial court erred by instructing the jury on the additional theory of defamation per quod when she requested only instructions pertaining
The jury returned a verdict finding that defendant was liable under a theory of libel per se, and the jury was instructed that it could award plaintiff actual, assumed, and punitive damages pursuant to this cause of action. Thus, plaintiff prevailed on the very theory of liability she sought to pursue, and the jury was permitted to award the full scope of claimed damages pursuant to this theory. More importantly, the jury did not find defendant liable based upon the additional theory of libel per quod. Because the jury rejected the theory of libel per quod as a basis for liability, the fact that the trial court gave instructions on this theory had no practical impact on the final verdict. Plaintiff has not suggested how the verdict could have differed if the trial court simply omitted the instructions on libel per quod as she now claims should have been done. Absent a reasonable probability of a more favorable outcome to plaintiff, the record does not suggest prejudice from an alleged instructional error, such that the trial court’s denial of a motion for new trial on this ground can be considered an abuse of discretion.
The judgment is affirmed. Respondent is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.