Filed 11/22/13 Gibbs v. Allstate Ins. Co. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

BARBARA GIBBS et al.,
                                                                                           F058047
         Plaintiffs and Appellants,
                                                                              (Super. Ct. No. 08-226861)
                   v.

ALLSTATE INSURANCE COMPANY,                                                             OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L.
Hicks, Judge.
         Barbara and James Gibbs, in pro. per., for Plaintiffs and Appellants.
         MacGregor & Berthel, Gregory Michael MacGregor, Deborah A. Berthel, and
Sangeeta A. Madhok for Defendant and Respondent.
                                                        -ooOoo-
         After a fire damaged the home of Barbara and James Gibbs (appellants), a dispute
arose between appellants and their insurer Allstate Insurance Company (Allstate).
Appellants sued Allstate for breach of contract and breach of the implied covenant of
good faith and fair dealing. The case went to trial, and a jury reached a verdict in favor of
Allstate.
       Appellants appealed in propia persona. After initiating this appeal, appellants filed
for bankruptcy, and we ordered this matter stayed by order dated June 15, 2011.
Appellants subsequently informed this court that a bankruptcy court confirmed their
reorganization plan, and we lifted the stay on July 9, 2013. We now affirm the judgment.
                     FACTUAL AND PROCEDURAL HISTORIES
       Appellants bought their house in Porterville in January 2005. The house was
around 80 years old. They began remodeling, adding exterior lights, removing a dividing
wall in the kitchen, and remodeling the bathrooms, among other projects. They hired a
handyman, Luis Vargas, to work on the remodeling projects. There was a pool house
(also referred to as a guest house) on the same property.
       On the evening of December 30, 2006, there was a house fire, which started in the
fireplace in the living room. Allstate adjustor Erwin Kramer went out to meet appellants
in January 2007. Paul Jacobs, a contractor suggested by Allstate, started clean up and
repairs on the fire-damaged part of the house. At the same time, appellants continued
remodeling projects unrelated to the fire damage.
       By the summer of 2007, appellants had become concerned about the slow progress
of repairs. There were also issues related to the electrical system, hardwood flooring,
roof, and fireplace. For example, appellants maintained that Allstate should pay to repair
or replace the fireplace, which they believed was damaged by the fire. Allstate, however,
determined that the fireplace was not covered by the policy because it was the cause of
the fire. According to Allstate, the fireplace sustained damage from age deterioration
before the fire, and this preexisting damage caused the fire. In total, Allstate paid
$232,000 on appellants’ claim.
       Appellants filed a complaint against Allstate on February 7, 2008, alleging that the
insurance company failed and refused to make payment of all the benefits due under their
policy and that it acted in bad faith. They also sued Paul Jacobs Construction, Inc., which
apparently settled with appellants in early 2009.


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       Jury trial began on April 6, 2009. Appellants presented nine witnesses, and
Allstate presented four witnesses. Appellants’ position was that Allstate acted
unreasonably and still owed them money for the fireplace and some hardwood flooring.
They also argued that Allstate breached the insurance contract by paying money on the
policy to a third-party administrator rather than to appellants directly.
       Allstate responded that it paid for all damages covered under the policy. In
addition, Allstate asserted an affirmative defense. It alleged that, at the time of the fire,
appellants were already living in their pool house while they were remodeling the main
house, and they did not incur any additional living expenses (ALE) by living in the pool
house after the fire. Appellants, however, received $24,000 in ALE payments from
Allstate to live in the pool house. Allstate argued that appellants’ claim for ALE was a
misrepresentation of material fact, and they were, therefore, barred from recovery under
the policy.
       The case was submitted to the jury on April 13, 2009. The jury reached a defense
verdict the next day. The second question on the jury verdict form read: “Do you find
that [appellants] made material misrepresentations with respect to their claim under the
policy issued to them by [respondent] Allstate Insurance Company?” The jury
unanimously voted, “Yes.” Consequently, the insurance contract was void, and
appellants were barred from recovering anything from Allstate. (See Cummings v. Fire
Ins. Exchange (1988) 202 Cal.App.3d 1407, 1418-1419 [plaintiff’s intentional and
material misrepresentation is defense to breach of contract cause of action since
plaintiff’s conduct voided insurance contract].) Judgment on the jury verdict was entered
on April 20, 2009, and this appeal followed.
                                        DISCUSSION
       We begin with a very brief review of appellate practice. First, our role is a limited
one. The appellate court decides only questions of law; questions of fact are the province
of the trial court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Second, generally a claim of


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error must be raised in the trial court in order to preserve the issue for appeal. (El
Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1363
[“‘“An appellate court will ordinarily not consider procedural defects or erroneous
rulings … where an objection could have been, but was not … presented”’”].) Third, the
trial court’s judgment is presumed correct, and the burden is on the appellant to show
affirmatively that an error was committed. (Kearl v. Board of Medical Quality Assurance
(1986) 189 Cal.App.3d 1040, 1051.) Fourth, the appellant must also demonstrate
prejudice. “Prejudice is not presumed, and the burden is on the appealing party to
demonstrate that a miscarriage of justice has occurred.… [¶] … When the trial court
commits error … , reversal can generally be predicated thereon only if the appellant can
show resulting prejudice, and the probability of a more favorable outcome, at trial .…”
(Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) Finally, “[p]ro. per. litigants are
held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175
Cal.App.4th 536, 543.)
       Appellants contend that (1) Vargas committed perjury; (2) Allstate’s attorney
engaged in misconduct by vouching for the credibility of witnesses Vargas and Jacobs
and by arguing that appellants committed fraud against Allstate; (3) Allstate’s expert
made false statements; and (4) the court erred in instructing the jury. Other arguments are
more difficult to discern. After reviewing the record, we conclude there is no basis for
reversing the jury verdict.
I.     Alleged perjury
       Vargas worked on many construction projects for appellants; he performed work at
their home as well as at rental properties they owned. Vargas testified that, at the time of
the fire, the kitchen had been gutted. There were no cabinets or appliances, only “[f]our
walls and a roof.” The house had one full bathroom and another half bathroom with a
shower but no tub. Vargas said that both toilets had been removed and there was no
functional bathroom in the house. His impression was that appellants were already


                                              4.
staying in the pool house before the fire. Vargas explained, “When I show up to work in
the morning at the site, they would both be there [in the pool house] making breakfast or,
you know, normal everyday living. There was nothing else at the other [main] house
other than their bed.”
       James Gibbs testified that the half bathroom functioned at the time of the fire, and
they were living in the main house. He also testified that the kitchen had cabinets and a
working stove and refrigerator. At trial, Barbara Gibbs denied that both toilets had been
removed before the fire. Allstate’s attorney, however, impeached this testimony with
Barbara’s deposition, in which she had said that both toilets had already been ripped out
and they were using the bathroom in the pool house.1 She also said in her deposition that
the cabinets in the kitchen had been removed. Kramer, who went to the house on
January 3, 2007 (four days after the fire), testified that, at that time, there were no
cabinets in the kitchen and he did not notice either a stove or a refrigerator. Jacobs
testified that, on his second visit to the house (which occurred in mid-to-late January
2007), he observed no shower in the half bathroom, and the kitchen had no cabinets and
no flooring.
       Appellants contend that the “judgment was found for Allstate Insurance Company
because of the perjury of Luis Vargas .…” We are not persuaded.
       “The reversal of a judgment upon the ground of asserted perjury cannot be ordered
except in those cases where the testimony is such as to shock the moral sense of the court.
The testimony must be incredible. Where such testimony is not inherently improbable it is


       1In their reply brief, appellants claim that Allstate’s attorney “lied” by using
Barbara’s deposition testimony in this way because she later, in that same deposition,
corrected this statement. Barbara’s deposition transcript is not in the record on appeal, so
we have no way of verifying whether she later corrected her deposition. In their reply
brief, appellants provide what they represent to be a quote from that deposition. If
Barbara did correct her deposition response as appellants now claim, their attorney could
have used the correction to rehabilitate on redirect, but he did not do so.



                                               5.
the exclusive province of the jury to determine the truth of the matter in question.” (Hicks
v. Ocean Shore R.R. (1941) 18 Cal.2d 773, 780, italics added.)
       Here, we cannot say that Vargas’s testimony was incredible. Although appellants
argue that Vargas was lying, the jury apparently believed Vargas and did not believe
appellants on the factual issue of whether they were already living in the pool house at the
time of the fire. It is not our role to reweigh credibility determinations. “‘Conflicts and
even testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citations.]’ [Citations.]” (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d
488, 492.)
       We recognize that appellants allege Vargas lied because he “had a bone to pick”
with them because they reported him to the Contractors State Licensing Board (Board).
This does not change the rule that questions of fact, including credibility determinations,
are the exclusive province of the jury. The jury was well aware of the fact that appellants
reported Vargas to the Board as both Vargas and James Gibbs testified about it.
       For the same reasons, appellants’ allegations that Jacobs, Kramer, and Allstate’s
expert witness made false statements are unpersuasive on appeal. Credibility is for the
jury, not an appellate court, to decide.
II.    Attorney’s conduct
       In closing argument, Allstate’s attorney argued that appellants did not prove their
case. He said, “What have they produced? I think it’s fair to say that they’ve produced
accusations, some anger, some frustration, some dissatisfaction, references and stories
about cursing and complaints. Maybe even an outright lie or two, to be perfectly blunt
about it. And now we have righteous indignation from the plaintiffs.”
       Regarding the witness Jacobs, Allstate’s attorney stated, “[H]e did a heck of a job.
He did such a good job I didn’t even cross-examine him. I don’t know if anybody noticed


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that, but that doesn’t happen very often.” He also commented, “Now, I don’t know about
Mr. Vargas. Mr. Vargas seemed like he knew what he was talking about.” Later, he said,
“[M]aybe Mr. Vargas has an ax to grind. Maybe he’s here to put a dagger in. I didn’t
hear it. You’re supposed to judge that. But remember this when you judge him. His
testimony is consistent with Kramer, Jacobs, and somebody else.”
       Now, appellants contend that Allstate’s attorney “expressed his personal opinion
of the credibility of the witness[es], Luis Vargas and Allstate’s Preferred Contractor Paul
Jacobs” and “expressed his personal opinion as to the culpability of the
Plaintiffs/Appellants” and “prejudiced the Gibbs[es] in the eyes of the jury.”
       “‘Generally, to preserve for appeal an instance of misconduct of counsel in the
presence of the jury, an objection must have been lodged at trial.’ [Citation.] In addition
to objecting, a litigant faced with opposing counsel’s misconduct must also ‘move for a
mistrial or seek a curative admonition’ [citation] unless the misconduct is so persistent
that an admonition would be inadequate to cure the resulting prejudice [citation].”
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795.)
       Appellants’ trial attorney did not object to Allstate’s attorney’s arguments, in either
his opening or closing arguments. As a result, appellants’ claims of alleged attorney
misconduct have been forfeited.
       Further, “[c]onsiderable latitude is … accorded to attorneys in presenting their
arguments to juries. An attorney has a right to reason fairly from the evidence adduced
that a witness has either misstated the facts or that he has sworn falsely. He may also
express his opinion based upon fair deductions from the evidence or from reasonable
inferences therefrom.” (Rogers v. Foppiano (1937) 23 Cal.App.2d 87, 94-95.) We do not
see anything in Allstate’s attorney’s closing argument that exceeds this considerable
latitude.
       Appellants also argue that Allstate’s attorney engaged in misconduct by presenting
Vargas as a witness, alleging “what Allstate and [its attorney] did was extrinsic fraud.”


                                             7.
As they acknowledge, however, fraud is extrinsic only “when it deprives the unsuccessful
party of opportunity to present his case to the court,” citing Harkins v. Fielder (1957) 150
Cal.App.2d 528, 535. Here, appellants were not deprived of an opportunity to present
their case in court. To the contrary, the appellants had a multi-day jury trial and called
nine witnesses. Under these circumstances, they cannot claim extrinsic fraud. (Westphal
v. Westphal (1942) 20 Cal.2d 393, 397; see also Hammell v. Britton (1941) 19 Cal.2d 72,
82 [“equitable relief from a judgment arising out of a contested action will not be granted
merely because it was obtained by perjured testimony or forged documents; that
constitutes intrinsic fraud against which defense may be made at the trial. False or
perjured testimony is not extrinsic fraud.”].)
III.   Jury instructions
       Appellants argue that the court erred in failing to give proper and required
instructions to the jury and erred by giving the jury confusing instructions. This argument
fails because the parties jointly submitted the jury instructions. In other words, appellants
(along with Allstate) requested the jury instructions they now claim were confusing and
incomplete.
       “The doctrine of invited error bars an appellant from attacking a verdict that
resulted from a jury instruction given at the appellant’s request.… [¶] The invited error
doctrine applies ‘with particular force in the area of jury instructions. Whereas in
criminal cases a court has strong sua sponte duties to instruct the jury on a wide variety of
subjects, a court in a civil case has no parallel responsibilities. A civil litigant must
propose complete instructions in accordance with his or her theory of the litigation and a
trial court is not “obligated to seek out theories [a party] might have advanced, or to
articulate for him that which he has left unspoken.” [Citations.]’ [Citation.]” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.)
       Appellants are barred from challenging the jury instructions under the invited-error
doctrine; consequently we do not address this argument further. As an aside, we observe


                                                 8.
appellants’ assertion that they “were wrongly convicted of fraud” is incorrect because
they were not convicted of fraud. This was a civil trial, not a criminal one.
IV.    Substantial evidence
       Appellants assert that “the jury findings are not supported by any evidence, except
the perjury of Allstate’s witness, Luis Vargas.” This argument fails because Vargas’s
testimony was evidence at trial. Indeed, throughout their appellate brief, appellants
dispute the testimony of various witnesses and assert there was no evidence to support the
testimony. For example, they assert, “There is no evidence that the job was shut down for
any framing that was not to code, this was made up by Jacobs.” Testimony by Jacobs to
that effect, however, is evidence. They fail to recognize that testimony, in itself, is
evidence. (Evid. Code, § 140; In re Marriage of Mix (1975) 14 Cal.3d 604, 614
[testimony of witness, even party to lawsuit, may constitute substantial evidence].)
       To the extent they argue that there was no substantial evidence to support the
jury’s verdict, we are not persuaded. “‘[W]hen a verdict is attacked as being unsupported,
the power of the appellate court begins and ends with a determination as to whether there
is any substantial evidence, contradicted or uncontradicted, which will support the
conclusion reached by the jury.’ [Citations.] We cannot reweigh the evidence, but must
resolve all conflicts in favor of the prevailing party. [Citation.] ‘When two or more
inferences can be reasonably deduced from the facts, the reviewing court is without
power to substitute its deductions for those of the trial court.’ [Citation.] We defer to the
trier of fact on issues of credibility. [Citation.]” (Steele v. Youthful Offender Parole Bd.
(2008) 162 Cal.App.4th 1241, 1251-1252.)
       In this case, Vargas testified that, before the fire, there was no functioning
bathroom or kitchen in the main house and his impression was that appellants were
staying in the pool house. As Allstate points out, Vargas’s testimony was not the only
evidence. Kramer and Jacobs both observed shortly after the fire that the kitchen had no
cabinets or appliances, and Jacobs observed that there was no shower in the half bath.


                                              9.
Barbara Gibbs said in her deposition that there were no toilets in the main house and no
cabinets in the kitchen before the fire. This was evidence from which the jury could infer
that appellants were already living in the pool house before the fire, and the jury could
therefore determine that appellants made a material misrepresentation when they
submitted a claim for additional living expenses to continue to live in the pool house after
the fire.
V.      Remaining arguments
        Appellants appear to raise other issues. For example, they mention “Unfair or
Deceptive Practices Against Senior Citizens,” a claim that was not presented to the jury.
Their brief, however, contains many references to rules without any clear argument
connecting the rules to the facts and record in this case. “As a general rule, ‘[t]he
reviewing court is not required to make an independent, unassisted study of the record in
search of error or grounds to support the judgment.’ [Citations.] It is the [appellant’s]
duty … to refer the reviewing court to the portion of the record which supports
appellant’s contentions on appeal. [Citation.] If no citation ‘is furnished on a particular
point, the court may treat it as waived.’ [Citation.]” (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115.) All remaining issues mentioned but left unexplained
or unsupported in appellants’ opening brief are waived.
        Appellants also filed a reply brief on September 9, 2013, raising three new issues:
(1) an argument supporting their claim for ALE, (2) a contention of misuse of the
discovery process, and (3) an allegation of postjudgment libel by Allstate’s attorney. We
do not consider arguments made for the first time in a reply brief. (People v. Tully (2012)
54 Cal.4th 952, 1075 [“It is axiomatic that arguments made for the first time in a reply
brief will not be entertained because of the unfairness to the other party.”].) In any event,
appellants’ first two issues relate to questions of fact and credibility, which are the
province of the trial court, not the appellate court. (In re I.J. (2013) 56 Cal.4th 766, 773.)
As to the third issue, appellants assert that Allstate’s law firm described the jury trial and


                                              10.
verdict on its website, and in doing so, defamed them. We observe that any conduct
alleged to have occurred after trial could have no effect on the trial, and therefore,
appellants’ allegation of libel is irrelevant to this appeal.
                                        DISPOSITION
       The judgment is affirmed. Costs are awarded to Allstate.


                                                                  _____________________
                                                                               Oakley, J.*

WE CONCUR:


 _____________________
 Kane, Acting P.J.


 _____________________
 Franson, J.




       *Judge  of the Superior Court of Madera County, assigned by the Chief Justice
pursuant to article VI, section 6, of the California Constitution.
