Winick v. Hilton Mgmt., LLC

• Decision Date: 29 October 2018
• Docket Number: B280774
• Citation: Winick v. Hilton Mgmt., LLC, B280774 (Cal. App. Oct 29, 2018)
• Court: California Court of Appeals
• Parties: STEPHEN WINICK, Plaintiff, Cross-defendant and Appellant, v. HILTON MANAGEMENT, LLC, et al., Defendants, Cross-complainants and Respondents.

STEPHEN WINICK, Plaintiff, Cross-defendant and Appellant, v. HILTON MANAGEMENT, LLC, et al., Defendants, Cross-complainants and Respondents.

B280774

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

October 29, 2018

ORDER MODIFYING OPINION AND DENYING REHEARING[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the nonpublished opinion filed herein on October 29, 2018, be modified as follows:

On page 13, after the first full paragraph, insert the following text and footnote 6, which will require renumbering of all subsequent footnotes:

In his petition for rehearing, Winick argues that "the structure of the verdict form should not preclude appellate review of Winick's contention that the jury was erroneously instructed using the good faith standard" because the "critical question" was not whether Winick trespassed, but whether he"trespassed in the presence of the citizen making the arrest (Bocci)."Thus, he argues, even if the jury had answered "yes" to the question on the verdict form asking whether Winick committed an unlawful trespass, that would not have made the propriety of the good faith instruction moot because the jury still would not have decided whether the trespass occurred in Bocci's presence.¹Initially,we fail to see what issue of good faith belief would have remained if the jury had found that Winick trespassed in violation of section 602, subdivision (k).Based upon the language of the verdict form, the jury's finding would have established that Winick entered the Hotel with the "intent of interfering with, obstructing, or injuring" the lawful business of the Hotel.As Winick acknowledges, Bocci saw him in the Hotel, and saw thathe was carrying a camera.Having personally observed Winick in the location where Winick committed an unlawful trespass, the defense that Bocci merely believed in good faith that Winick was trespassing would have been unnecessary.

More fundamentally, Winick's argument simply provides a further illustration of why permitting a challenge to the good faith instruction for the first time on appeal would be unfair to the trial court and to Respondents.If Winick believed that an additional question on the verdict form was necessary to determine if a trespass was committed in Bocci's presence, he should have requested one.He did not, because he did not try the case on that theory.If he had advised the trial court about the legal theory that he now asserts on appeal, the trial court would have had the opportunity to construct a verdict form that might have avoided the need for a retrial if Winick ultimately prevailed on his legal argument.That would have been true whether or not the trial court ultimately concluded that it was obligated to follow this court's decision in Gomez, supra, 112 Cal.App.3d 392.Permitting Winick to benefit from his shifting litigation strategy by awarding him a second chance to prevail on his claim at trial is precisely the type of unfair and inefficient result that justifies the rule precluding parties from raising arguments for the first time on appeal.

There is no change in the judgment.

Appellant's petition for rehearing is denied.

LUI, P. J.

CHAVEZ, J.

HOFFSTADT, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct.Nos. SC119732, BC516374)

APPEAL from a judgment of the Superior Court of Los Angeles County.Craig D. Karlan, Judge.Affirmed.

Esner, Chang & Boyer, Stuart B. Esner and Joseph S. Persoff for Plaintiff, Cross-defendant and Appellant.

Glaser Weil Fink Howard Avchen & Shapiro, Joel N. Klevens, Elizabeth G. Chilton and Gali Grant for Defendants, Cross-complainants and Respondents.

____________________ Stephen Winick appeals from a judgment against him following a jury trial.Winick sued Hilton Management, LLC(Hilton) and Sergio Bocci(collectively Respondents), the director of operations for the Beverly Hilton Hotel (the Hotel), for claims arising from Winick's arrest while trying to attend the Golden Globe awards at the Hotel without a ticket or a pass.Bocci made a citizen's arrest of Winick after consulting with a Beverly Hills police officer who informed Bocci that Winick had committed a criminal trespass.Winick was not convicted of any crime following the arrest; the district attorney ultimately dismissed the charges against him.

Following trial, the jury returned a special verdict finding that Bocci had a reasonable good faith belief that Winick had committed a crime when Bocci made the arrest.Based upon that verdict, the trial court granted judgment against Winick on his claims for false arrest and negligence.The jury also found in favor of Hilton on Hilton's civil trespass claim against Winick, awarding Hilton nominal damages of $1.

On appeal, Winick argues that the trial court erred in: (1) instructing the jury that the arrest was valid if Bocci reasonably and in good faith believed that Winick had committed a public offense; (2) admitting evidence of Winick's prior arrests for trespassing at celebrity events; (3) granting summary adjudication against Winick on his civil rights claim under the Bane Act(Civ. Code, § 52.1); and (4) granting a permanent injunction against him.Winick also claims that the evidence was insufficient to show that he actually committed a criminal offense in entering the Hotel.

We reject Winick's instructional error argument, as Winick never made it in the trial court.Rather, Winick acquiesced in a special verdict form that invited the jury to decide only the issueof good faith without even considering whether Winick actually violated the criminal law before his arrest.Under these circumstances, settled principles of appellate review preclude Winick from raising the instructional issue for the first time in this court.In light of this holding, Winick's argument that the evidence is insufficient to show that he actually violated the law is moot.

We also reject Winick's remaining arguments.The trial court acted within its discretion in finding that evidence of Winick's prior arrests was admissible on the issue of Winick's claimed damages for emotional distress.The trial court also properly exercised its discretion in deciding to issue a permanent injunction based upon evidence that Winick might engage in similar conduct in the future.Finally, we need not consider whether the trial court properly granted summary adjudication on Winick's Bane Act claim, as the jury's finding of good faith precludes Winick from showing that the outcome would have been any different if that claim had gone to trial.

BACKGROUND

1.The 2012 Incident at the Golden Globe Awards

The 2012 Golden Globe awards took place at the Hotel on January 15.Bocci was at the Hotel for the event and was advised by private security guards that they had seen Winick in the Hotel ballroom and lobby without a ticket.Bocci recognized Winick from a photograph from a previous year.Bocci saw that Winick had a camera.The security guards recommended a citizen's arrest to ensure that Winick would not return to the Hotel.

Bocci spoke with Beverly Hills Police Officer Gary Castaldo, who was on site.Castaldo determined that Winick did not have any ticket or credential to be at the event, and concluded that Winick had trespassed.Castaldo also believed that Bocci hadwitnessed the trespass because Bocci had seen Winick in the Hotel without authorization.

Castaldo recognized Winick from a prior event in the Hotel in 2008.At that event, Castaldo had chased Winick and cited him for resisting arrest after he was observed "where he wasn't supposed to be."

Castaldo advised Bocci that Winick had committed a trespass.Castaldo explained that Bocci had the option of: (1) asking Winick to leave; (2) performing a citizen's arrest; or (3) making a criminal complaint later.Castaldo said that, to ensure Winick would not return, a citizen's arrest was necessary.

Bocci spoke to the general manager of the Hotel and they decided that Bocci should make a citizen's arrest.Bocci signed a citizen's arrest form that Castaldo had prepared.In doing so, Bocci relied on the advice that the private security guards and Castaldo had given him about the best way to get Winick off the property.Based on that advice, Bocci believed that Winick was trespassing.

Castaldo told Bocci what to say to Winick to make the arrest.After Bocci told Winick he was under arrest, the police removed Winick from the property.Castaldo transported Winick to the jail at the Beverly Hills Police Department.Winick was in custody there overnight.

Winick was charged with a violation of Penal Code section 602, subdivision (m).²The criminal case was ultimatelydismissed about a year later.The parties in this case stipulated that the dismissal of the criminal case was on the merits.

2.Trial Court Proceedings

Hilton sued Winick for trespass, and Winick sued Hilton and Bocci for false arrest, negligence, malicious prosecution, and violation of the Bane Act(Civ. Code, § 52.1).The two cases were subsequently consolidated.

Several weeks before trial the trial court granted summary adjudication against Winick on his Bane Act claim.The remaining claims went to trial on November 1, 2016.

The trial court permitted Respondents to introduce evidence of six prior occasions on which Winick had been arrested or cited for trespassing.Winick testified about previous incidents: (1) in March 2002, when he was arrested for trespassing at the Academy Awards; (2) in May 2002, when he was arrested for trespassing by Anaheim police at the Arrowhead Pond in Anaheim; (3) in August 2004, when he was arrested on the tarmac at the Long Beach Airport; (4) in February 2008, when ...