Filed 4/7/15 Primo Hospitality Group v. The Americana at Brand CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


PRIMO HOSPITALITY GROUP, INC. et                                     B247394
al.,
                                                                     (Los Angeles County
      Plaintiffs, Respondents and Cross-                             Super. Ct. No. BC432109)
Defendants,

         v.

THE AMERICANA AT BRAND, LLC et
al.,

     Defendants, Appellants and Cross-
Complainants.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Steven
Kleifield, Judge. Affirmed.
         Gordon & Rees, LLP, Don Willenburg for Defendant and Appellant The
Americana At Brand, LLC.
         Quinn Emanuel Urquhart & Sullivan, LLP, John S. Gordon for Defendant and
Appellant Caruso Management Co., Ltd.
         Richard L. Weiner and Douglas Adam Linde, for Plaintiffs, Cross-Defendants and
Respondents.
       Appellants The Americana at Brand, LLC (Americana) and Caruso Management
Co., Ltd. (Caruso Management) seek reversal of the award of $1.4 million to Primo
Hospitality Group (Primo) after a jury found that appellants had committed negligence,
trespass and nuisance based on water intrusion into the restaurant which Primo had built
out and was operating at appellants’ mall in Glendale. Finding that appellants invited
what they contend to be an error in a particular instruction, we affirm.


                      FACTUAL AND PROCEDURAL HISTORY
       Primo built out a space for a new restaurant, Caffe Primo, at an “upscale” mall in
Glendale. Primo had leased the space from appellant, Americana in 2007. The mall was
managed by defendant Caruso Management. The total cost to build out the leased space
(the “build-out cost”) was $1.4 million, including, inter alia, furniture, flooring, an odor
dispersal system, and HVAC. Approximately one year after opening the restaurant, in
May or June 2009, Primo first noticed damage to the restaurant’s floors caused by water
intrusion, a problem which Primo attributed to frequent pressure washing of the mall
common area adjacent to the front of its restaurant by the agent of the defendant
management company. The source of the water intrusion was confirmed by expert
inspection and testing. The problem became so severe that a large part of the restaurant
was unusable and the entire premises required installation of a new floor. Americana
exercised its right under the lease to put in a temporary replacement floor after Primo
declined to do so; Primo had a permanent replacement floor installed later, in May 2010,
after its claim to its insurance company was resolved. The problem recurred in July and
August 2010, again severely disrupting operation of the restaurant. In November 2010,
Primo closed the restaurant and abandoned the property. Primo filed suit on multiple
legal theories, including negligence, trespass, and nuisance. Americana and other
defendants filed a cross-complaint for unpaid rent under the lease and breach of the
guarantee on the lease.

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       The matter was tried to a jury on September 18, 2012, returning special verdicts in
which it determined that Americana and Caruso Management were liable to Primo for
negligence, trespass and nuisance in the total amount of $1.4 million, allocating the
damages as follows: $840,000 against Americana and $560,000 against Caruso
Management; finding no other defendants liable on these claims and finding no liability
on the other causes of action alleged. The jury also found Primo liable on the cross-
complaint.1 This timely appeal followed.


                                    CONTENTIONS
       Americana and Caruso Management do not contest the jury’s determinations that
they are liable for negligence, trespass and nuisance. Rather, they contend that (1) the
lease between the parties barred the award of any amount to Primo because “its build-out
costs [] effectively constitute compensation for ‘injury to Tenant’s business . . .’ which
appellants contend is barred pursuant to section 18.11 of the lease; and (2) the damages
awarded are not properly awarded on any of the negligence theories upon which the jury
found appellants liable. As a corollary to the second prong of their argument, appellants
additionally assert that the trial court’s instruction that the jury “must” award out-of-
pocket costs if it found the appellants to be liable was also error. Primo argues that
appellants waived the right to assert these contentions by their conduct in the trial court.
We agree with Primo’s waiver argument for the reasons discussed below, and affirm the
judgment for Primo.2

1
       The jury awarded $1,275,000 on the cross-complaint against Primo for unpaid past
and future rent. Primo filed a notice of appeal from this award, but later dismissed that
cross-appeal. We resolve the issue of an award of costs on appeal with respect to that
matter at the end of this opinion.
2
        Primo also contends that we should dismiss the appeal because appellants failed to
address the proper standard of review in their opening brief on an issue “not raised at
trial,” citing James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021 (James B.).
We reject this contention for two reasons: First, the issue of the proper measure of
damages was the subject of discussion among all counsel and the trial court on at least
two occasions prior to trial and James B., supra, does not set a bright line rule; rather that
                                              3
                                         DISCUSSION
       Americana and Caruso Management seek to focus our attention on the proper
construction of paragraph 18.11 of the lease signed by Americana and Primo in 2007 and
on the discussions which occurred at the several hearings on Primo’s Motion in Limine
No. 1 in July and August 2012 in advance of the trial. Their argument on appeal is that
(1) the trial court improperly ruled that Primo could recover the money it spent on the
build out of the restaurant space and in the first year of operation; and (2) the instruction
on tort damages which the trial court read to the jury presented this “flawed” theory of
damages. For reasons now discussed, we find persuasive Primo’s argument that
appellants waived these contentions by not objecting at the proper time to the giving of
the instruction on tort damages which appellants had prepared and proffered following
the final jury instruction conference.


Additional facts
       There are two sets of trial court proceedings relevant to the parties’ contentions:
the hearings on the motions in limine and the jury instruction conference. Appellants
argue that they made a timely objection to the tort theory of recover contained in the
allegedly errant instruction during the hearings on Primo’s motion in limine no. 1 and
that the revised version of CACI No. 3900 which appellants proffered on the day after the




court stated: “In [the] future, counsel’s failure to acknowledge the proper standard of
review might, in and of itself, be considered a concession of lack of merit.” (Ibid. [italics
added]; see also Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196
Cal.App.4th 456, 465.) Second, as appellants point out in their reply, it is clear that the
de novo standard of review applies to interpretation of contract provisions (see, Wolf v.
Walt Disney Pictures and Television (2008) 162 Cal.App.4th 1107, 1134-1135) and to
determination of the proper measure of damages for the torts which the jury found to
have been committed (see Gunnell v. Metrocolor Laboratories, Inc. (2001) 92
Cal.App.4th 710, 718-719) as well as to review to determine whether a trial court’s
instructions were proper. (Cristler v. Express Messenger Systems, Inc. (2009) 171
Cal.App.4th 72, 82.)

                                              4
jury instruction conference was prepared only to accommodate a prior ruling by the trial
court as “a defensive measure.”


1. Hearings on the motions in limine
       The trial court conducted three sessions of hearings on motions in limine. The
bulk of the hearings focused on Primo’s motion in limine no. 1, which formally sought to
exclude from the jury’s consideration specified paragraphs of the parties’ lease, including
its paragraph 18.11, a portion of which Primo contended was unenforceable under Civil
Code section 1668. The final sentence of this paragraph contained language addressing
the damages that might be sought under that contract.
       No written ruling on this motion is contained in the record and the reporter’s
transcript can be understood in conflicting ways. While at one part of the dialogue on the
motion in limine, trial counsel for appellants takes the position that allowing evidence of
the $1.4 million in “build-out” costs is itself improper under the lease, later, the same
counsel accepts that the $1.4 million figure represents Primo’s build-out costs and may be
presented to the jury (“anything having to do with the physical aspect of the business
certainly is recoverable, but argues that no evidence “other than the $1.4 million build-
out costs plus all of the lost profits” should be allowed. More importantly, the trial court
states on at least two occasions that it is not making any final ruling on what evidence is
admissible. On the final day of hearings on the motions in limine and in concluding
discussions on Primo’s motion in limine no. 1, the trial court states: “And so I am not
going to bar that evidence, but I will leave it to defendants to pose limiting instructions to
the court.” At best the record is ambiguous on whether appellants’ counsel made an
objection to introduction of the evidence which it now does challenge.
       There is no indication in the record that the appellants’ counsel actually
maintained a position contrary to the instruction it later offered; nor in the cited portions
of the record on the hearing on the motions in limine do we find that the trial court
ordered that a different instruction than that submitted jointly by the parties on May 30,
2012, be prepared. The only reference which the trial court makes to instructions in the

                                              5
record cited by appellants is the suggestion to appellants’ counsel that a limiting
instruction might be in order.


2. The jury instruction conference
       The parties filed their “Joint CACI Jury Instructions” on May 30, 2012 (the May
version). By statute these instructions are required to set out “all proposed instructions to
the jury covering the law as disclosed by the pleadings.” (Code Civ. Proc., § 607a.)3
Among those instructions was the parties’ then-agreed upon version of CACI No. 3900
which addressed how the jury was to determine the amount of damages it may award if it
were to find any defendant liable under one or more of Primo’s three tort theories
(negligence, trespass or nuisance). This May version of the joint instructions read: “If
you decide that Primo . . . has proved its claim(s) against Defendants, you also must
decide how much money will reasonably compensate Primo . . . for the harm. This
compensation is called ‘damages.’ [¶] The amount of damages must include an award
for the out of pocket losses that were caused by Defendants’ wrongful conduct, even if
the particular harm could not have been anticipated. [¶] Primo . . . does not have to
prove the exact amount of damages that will provide reasonable compensation for the
harm. However, you must not speculate or guess in awarding damages. [¶] The
following are the specific items of damages claimed by Primo []: out of pocket expenses,
lost profits, other past economic loss, future economic loss including lost profits and
other economic loss.” (Italics added.) This version of CACI No. 3900 was agreed to by
appellants well after Primo had filed its motion in limine no. 1, and after appellants filed
their opposition to that motion, both in April 2012.
       The trial court conducted a jury instruction conference on the evening of
September 12, 2012. The next day appellants submitted a few revised jury instructions,


3
         The same statute provides for submission of modified or additional instructions
“before commencement of the [closing] argument” of “additional proposed instructions
. . . upon questions of law developed by the evidenced and not disclosed by the
pleadings.” (Ibid.)
                                              6
including a revised version of CACI No. 3900 that differed from that submitted with the
Joint Jury Instructions on May 30, 2012. It was this version of this instruction which the
trial court read to the jury when it instructed the jury. Appellants had modified the final
paragraph of the instruction originally agreed upon by the parties to read as follows:
“Primo . . . claims damages for out of pocket expense incurred in building out its leased
space in order to operate its restaurant and also in a ramp-up investment [sic] during the
first twelve months of its operations which it alleged were necessary to build up the
restaurant’s sales in order to become a viable long-term business.” (Italics added.)
Appellants had deleted from the instruction all references to lost profits and economic
losses, whether past or future, and inserted instead the elements of building out the leased
space and the first twelve months of “ramp-up” expenses. There is no record of
appellants having submitted any limiting instruction as the trial court had indicated they
might at the final hearing on motion in limine no. 1 in August.
       As trial was conducted in the Los Angeles Superior Court, its Rule No. 3.172
regarding jury instruction conferences applied. That rule requires that “[t]he trial judge []
hold a conference outside the presence of the jury before final argument and after
submission . . . of all proposed jury instructions. . . .” At that conference the trial judge
resolves, inter alia, which instructions are to be given and “[w]hether there is any other
modification to which the parties will stipulate. . . . [¶] The unreported conference will
generally result in clarification of the matters, and creation of three categories of
instructions, verdicts or findings that will be withdrawn, given without objection, or
given as modified by stipulation. Thereafter the conference may be reported and the trial
judge may confirm for the record the matters agreed upon. The trial judge may also
specify those instructions, verdicts, and findings forms [sic] the court proposes to give,
refuse or modify. The court will hear any objections to the foregoing and rule thereon.”
(Italics added.) The reporter’s transcript contains no indication that appellants’ trial
counsel made any statement noting appellants’ objections to the final version of CACI
No. 3900 which they had prepared. Nor is there any minute order in this record
indicating that any objections were made.

                                               7
       The record of proceedings concerning the jury instruction conference are sparse.
The first reference to that conference is recorded on the day after it has taken place. On
September 13, 2012, prior to the resumption of trial testimony, and out of the presence of
the jury, counsel for appellants states: “Your honor, we have not got an opportunity to
argue the nonsuit. I said I wanted to argue as to a couple of things. So we went ahead
and did jury instructions under the assumption that if we lose the nonsuit, those
instructions will be given. [¶] Obviously, your honor understood that the fact I was
agreeing to instructions last night doesn’t preclude us from arguing the nonsuit that I said
I was going to argue.” (Italics added.) A few moments later, the trial judge states, “As I
recall, well, we had, I think, a very productive session last night on the jury instructions.”
Shortly after this, counsel for Primo asks the trial court to consider giving an additional
instruction, on comparative fault as it relates to intentional torts. (The parties and the trial
judge also discussed other issues.) On the next day and prior to closing arguments there
are additional discussions regarding specific jury instructions, including an apparently
new special instruction that Primo would like to have given, a missing instruction, and
an instruction on constructive eviction. There is no record on the occasion of any of
these discussions of various jury instructions of appellants’ counsel making a record that
it objected to the version CACI No. 3900 which it filed the morning after the jury
instruction conference.


3. Analysis
       Code of Civil Procedure section 647 requires, to preserve an objection to a
proposed jury instruction, that a party must, “at the time when the . . . decision . . . is
made, or within a reasonable time thereafter, make[] known his position thereon, by
objection or otherwise. . . .” Consistent with this statute, Los Angeles Superior Court
Rule No. 3.172 obligates trial counsel to place on the record after the jury instruction
conference any objections it may have to any ruling of the trial court on jury instruction
matters.


                                               8
       Appellants rely on the “objection” they claim they made at the August hearings on
Primo’s motion in limine no. 1. Assuming arguendo that the position appellants took
then constituted an objection (which is ambiguous at best), it was ineffective because it
was made at the wrong time. A motion in limine is nonstatutory, and addresses evidence
issues and not jury instructions. The purpose of a motion in limine is to obtain a ruling
prior to trial that particular evidence should not be heard by the jury. (See, e.g., Kelly v.
New West Federal Savings (1996) 49 Cal.App.4th 659, 669 et seq.) That is entirely
different from the procedure for offering, or objecting to, a jury instruction. Just as
efforts to use motions in limine for purposes other than to resolve evidentiary issues have
not been allowed (e.g. rejecting use of the motion in limine procedure as a ‘disguised
summary judgment motion’ which is proscribed by Los Angeles Superior Court Rules
3.57(b) and (c)), they are not to be sanctioned when other procedures are clearly set out
in statute and court rules for making a challenge to a jury instruction that counsel
contends is improper.
       The record establishes that appellants did not present an objection to any
instruction at an appropriate point in the proceedings. Appellants’ silence at the
appropriate time to make known its objection to the version of CACI No. 3900 it
submitted after the jury instruction conference “speaks volumes.” (Cf. Transport Ins. Co.
v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 [a party which requests or acquiesces
in a jury instruction is estopped from asserting it as error on appeal].) Even assuming
that what trial counsel said in the mid-summer, pretrial proceedings was an objection, it
occurred out of context, at an argument on motion in limine. A hearing on such motions
is not a hearing on jury instruction issues. In this case, when jury instruction issues were
the subject of discussion, rather than put an objection on the record to the final version of
CACI No. 3900, trial counsel for appellants stated his assent to the outcome of the prior




                                              9
evening’s jury instruction conference. Even when there was additional discussion in later
proceedings and closer to the time the jury was to be instructed concerning new
instructions not discussed the previous evening which Primo’s counsel wanted to be
considered, counsel for appellants did not seek to make a record of any objection to the
final version of CACI No. 3900.
         While the general rule is that a party need not “except” to “giving an instruction
[or] refusing to give an instruction” (Code Civ. Proc., § 647), it may not complain on
appeal of trial court error which is induced by that party’s own conduct. (See Mary M. v.
City of Los Angeles (1991) 54 Cal.3d 202, 212; McCarty v. State of California Dept. of
Transp. (2008) 164 Cal.App.4th 955, 984.) Appellants have not met their burden on
appeal to establish that the error which they now claim was not invited. (Phillips v.
Noble (1958) 50 Cal.2d 163, 169.) Nor could they as the record in this case does not
support appellants’ claim that they acquiesced in a judicial determination. (See, e.g.,
Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 212.) Instead, the record clearly
establishes that appellants proposed the revised version of the instruction they now
contend was erroneous and did so without being asked to do so by the trial court. Thus,
they have failed to establish their contention that they offered the final version of CACI
No. 3900 merely to accommodate a prior ruling by the trial court. The facts require the
conclusion that appellants induced the “error” which they assert by their own conduct.
(Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567.) Their contention therefore lacks
merit.


4. Other contentions
         Resolution of the appeal in this matter makes unnecessary addressing appellants’
other contention.




                                              10
                                     DISPOSITION
      The judgment is affirmed. Primo shall recover its costs on the appeal by
Americana and Caruso Management. Americana shall recover its costs on the cross-
appeal which Primo filed and then dismissed.


             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           GOODMAN, J.
We concur:



      TURNER, P.J.



      KRIEGLER, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                           11
