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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
                                                                     A139249
v.
TIFFANY BARBER et al.,                                               (San Francisco County
                                                                     Super. Ct. No. CUD-12-640755)
         Defendants and Appellants.


                                                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,


                                                             1
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.


                                              2
       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.



                                              3
       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 no-
pets 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.


                                             4
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


                                              5
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


                                               6
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.)



                                                7
       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


                                               8
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.”


                                              9
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 estoppel6 and 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.”


                                               10
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].)



                                              11
       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

                                              12
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 cross-
examination, 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.)


                                              13
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



                                               14
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.


                                            15
       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.



                                              16
       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.


                                              17
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].)


                                              18
       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,


                                              19
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 . . .


                                             20
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.


                                              21
       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


                                             22
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


                                             23
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


                                             24
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.


                                             25
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.


                                                26
      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.




                                            27
