No. C056440 (Cal. Ct. App. Apr. 14, 2009)

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Alstyne v. Carter

California Court of Appeals, Third District, Sutter

Apr 14, 2009

No. C056440 (Cal. Ct. App. Apr. 14, 2009)

Opinion

THOMAS VAN ALSTYNE, As Trustee, etc., Plaintiff, Appellant and Respondent, v. STEVEN CARTER et al., Defendants, Respondents and Appellants. C056440 California Court of Appeal, Third District, Sutter April 14, 2009

NOT TO BE PUBLISHED

Super. Ct. No. CVCS0500969

BLEASE, J.

Plaintiff Thomas Van Alstyne, an attorney, in his individual capacity and as trustee of the Florence Van Alstyne Revocable Trust, sued his neighbors, defendants Steven and Debbie Carter and Lovell and Deborah Lumsden, in propria persona, alleging that water from their rice fields percolated or seeped into the groundwater, causing the water table under his parcel to rise and damaging his alfalfa crop and some trees. He sought $1,200 in damages ($200 as the fair rental value for each acre affected) for a total of $1,200 in damages, and an injunction.

Van Alstyne also sued Reclamation District 777, but settled with the district prior to trial.

The trial court granted the Carters’ motion for nonsuit as to the fraud cause of action at the close of Van Alstyne’s opening statement, and granted their motion for nonsuit as to the public nuisance, strict liability, and intentional tort causes of action at the close of Van Alstyne’s case-in-chief. (Code Civ. Proc., § 581, subd. (c)). The jury found against Van Alstyne on his remaining causes of action for private nuisance, negligence, breach of contract, and trespass, and in a bifurcated proceeding, the trial court denied his claims for injunctive relief.

Further undesignated statutory references are to the Code of Civil Procedure.

Van Alstyne also sued the Lumsdens for negligence and private nuisance, and the jury found against him on those claims as well. We dismissed the appeal as to the Lumsdens on October 18, 2007, after Van Alstyne filed a notice of settlement as to them. (Cal. Rules of Court, rule 8.244(a)(3).)

The Carters filed a memorandum of costs, seeking, among other things, expert witness fees of $66,525. Van Alstyne filed a motion to tax costs, including the expert witness fees. The trial court awarded the Carters $15,920.38 in ordinary costs, but taxed their expert witness fees.

Van Alstyne appeals, in propria persona, contending the trial court erred in granting the Carters’ motions for nonsuit. He also challenges various discovery and evidentiary rulings and claims the trial court erred in instructing the jury, in denying his motion to amend his second amended complaint, and in failing to tax all of the Carters’ costs.

Van Alstyne has attached portions of a deposition transcript, a declaration, and a graphic illustration as exhibits to his opening brief. This is improper (see Pierotti v. Torian (2000) 81 Cal.App.4th 17, 30), and we will not consider the exhibits.

The Carters cross-appeal, contending the trial court abused its discretion in taxing their expert witness fees.

We shall affirm the judgment, vacate two of the trial court’s discovery orders awarding monetary sanctions against Van Alstyne, vacate the post judgment order taxing the Carters’ expert witness fees, and remand the matter to the trial court for a determination of what, if any, monetary sanctions should be awarded, and the reasonableness of the expert witness fees claimed by the Carters.

FACTUAL BACKGROUND

A. Van Alstyne’s Case-In-Chief

At trial, Van Alstyne represented himself in both his individual capacity and in his capacity as trustee of the trust; he was also represented by Lyle D. Gisi in his capacity as trustee.

In 2003, Van Alstyne, the Carters, and the Lumsdens farmed adjacent parcels of land near the corner of Paseo and Township Roads in the City of Live Oak. The Carter parcel was directly north of the Van Alstyne parcel, and the parcels were separated by Paseo Road, with the common boundary falling in a drainage ditch that ran along the south side of Paseo Road (Paseo ditch). The Lumsden parcel was located directly west of both the Carter and Van Alstyne parcels. Township Road separated the Lumsden parcel on the one hand and the Carter and Van Alstyne parcels on the other.

The Van Alstyne parcel was owned by the Florence Van Alstyne Revocable Trust, and in 2003, Van Alstyne leased approximately 74 of the 134 acres from his mother, Florence Van Alstyne, trustee of the trust. As relevant here, he farmed 35 acres of alfalfa in the northwest corner of the parcel and approximately four-and-one-half acres of prunes along the northeast border. Van Alstyne also practiced law.

The original complaint named Thomas Van Alstyne, in his individual capacity, and Florence Van Alstyne, in her capacity as trustee, as plaintiffs. Florence Van Alstyne died approximately four months before trial, and Van Alstyne, the successor trustee, was substituted in her place.

In 2002, the Carters purchased their parcel, which consisted of approximately 140 acres, and re-graded it. In 2003, they began farming rice on the entire parcel. Prior to that time, rice had been farmed on the north half and the southeast corner of the parcel; it had not been grown on the southwest corner, which had “sandy, deeper-type soil.”

The Lumsdens leased their parcel from the Frerich family and had been growing rice on that parcel for years.

Beginning in May 2003, Van Alstyne observed water in the Paseo ditch shortly after the Carters flooded their rice field. He had never seen water in that ditch during the summertime before.

The growing season in the relevant community extends from “[w]hen the rains stop until when the rains start,” which is roughly from May to October.

On June 5, 2003, Van Alstyne wrote to Mr. Carter “alerting [him] to a potential problem.” In particular, he advised Mr. Carter that “[t]he water table has been rising in the drainage ditch that lies on our side of the road since your rice field was flooded a week or so ago” and noted, among other things, that “[t]his issue of rice water percolation, or ‘subbing’ has been often litigated in California.” Mr. Carter did not respond.

The Lumsdens did not flood their rice field in 2003.

In 2004, both the Carters and the Lumsdens flooded their rice fields. Some of the alfalfa plants in the northwest corner of the Van Alstyne parcel yellowed and died, and Van Alstyne did not attempt to cut some of them because the ground was too wet.

On May 31, 2004, Van Alstyne wrote to Mr. Carter, noting that “the water level in the [Paseo ditch] r[o]se farther than it did last year” and opined that “[t]his much water will drown the alfalfa if it doesn’t dry soon.” He also stated that he suspected that “the additional hydraulic pressure from the [Lumsdens’] rice field [was] exacerbating the water percolation” and asked Mr. Carter if he was “going to drop the water more.”

Mr. Carter stopped by a couple of days later, acknowledged “[t]here was seepage out there,” and said “he thought he could maybe lower his rice water a little bit more.” The two men agreed that they could “fix the problem easily.”

On June 4, 2004, Van Alstyne sent Mr. Carter a letter memorializing their conversation and stating that: “Sometime before you plant next year, we should come to some agreement about any mitigation measures that you can implement to forestall [the rice water seepage] in 2005. [¶] It may be that we can work out some joint effort with [the Lumsdens]... that will resolve the seepage.”

On July 4, 2004, Van Alstyne again wrote to Mr. Carter, indicating the alfalfa field in the northwest corner of his parcel “continued to collect moisture” and that “the continual moisture has started to kill the plants.” He surmised that “some mitigation measures other than just dropping the rice water... will be necessary.” He also noted that his “actual dollar damages” were small and that he “want[ed] to donate the damages... to whatever expenses are involved next year” in mitigating the problem.

On July 24, 2004, Van Alstyne wrote to Mr. Carter, advising him that “the small field that I have planted to prunes is beginning to show surface moisture adjacent to our driveway.”

In the late summer or fall of 2004, Van Alstyne asked Mr. Carter to “dig a drainage ditch on his side” of Paseo Road. Mr. Carter agreed, but did not dig a drainage ditch before flooding his field in 2005.

Before flooding their field in 2005, the Carters dug a four to six feet deep “core trench” along the southern edge of their rice field. The trench extended “from Township Road on [the Carters’] property right next to Paseo... east up [to Van Alstyne’s] driveway.” The purpose of digging the trench was to “look[] for... rodent holes, dead trees, [or] any medium... that would transmit water” to other areas. None were found, and the ditch was filled in and the soil compacted down, making it less permeable.

On April 24, 2005, Van Alstyne wrote to Mr. Carter, suggesting that Mr. Carter set back his rice field “a couple hundred feet in the southwest corner along Paseo” Road. Mr. Carter did not respond, and on May 5, 2005, Van Alstyne wrote to Mr. Carter, demanding $50,000 in damages to his “real properties and crops caused by last year’s water incursion.” He also advised Mr. Carter that he would be “seeking legal and equitable relief... to prevent immediate further harms.”

The Carters responded by letter on May 22, 2005. Among other things, they explained that when Van Alstyne and Mr. Carter had “talked about this subbing issue last year, [Van Alstyne] told [Mr. Carter] that [he had] planted trees to help stop the subbing from the [Lumsden parcel] on Township.” They noted that those trees were about 10 to 15 years old; and thus, the problem Van Alstyne was having “seem[ed] to have been going on now for years,” and they had “only owned the ranch for 4 years.”

Van Alstyne filed the instant action nine days later, on May 31, 2005. He included the Lumsdens in the lawsuit because “Mr. Carter’s defense was plainly going to be that it’s [the Lumsdens’] fault.”

In July 2005, Van Alstyne retained James Blanke, a hydrogeologist, “to investigate the ground water levels at the [Van Alstyne parcel] and the causes of any potential changes in those... levels.” Eight monitoring wells were installed on the Van Alstyne parcel, including five in the northwest corner. Blanke began collecting data from the wells in August 2005.

Based on data collected on August 19, 2005, which indicated the groundwater level was slightly higher in the northern portion of the northwest corner than in the southern portion, Blanke opined that “[t]he flow is generally from north and down toward the south.”

Prior to the 2006 growing season, the Carters set back their rice field 100 feet from Paseo Road. According to data collected on June 12, 2006, the groundwater was flowing from northwest to southeast. Blanke attributed the change to the Carters setting back their field. On cross-examination, he acknowledged that data obtained during the 2006 growing season indicated the groundwater was flowing north between two of the wells in the northwest corner of the parcel, but explained that “when you look at all the wells [in that corner] in conjunction..., [you] never see northward flow.”

Blanke also observed that during the 2006 growing season, the ground water level in the northwest corner rose when the Carters and Lumsdens flooded their rice fields and fell when the Carters “dropped” the water on their field and ceased irrigating. Among other things, he noted that the groundwater level rose when the Carters and Lumsdens flooded their fields in mid and late May, and fell just before Carter sprayed his field with pesticide on June 20, and July 6. He assumed that the Carters dropped their rice water prior to spraying and that the Lumsdens did not. He did not know whether “there were any other rice fields north of [the Lumsden parcel] that were beginning to be flooded” in mid-May when Carter was flooding his north field.

Blanke concluded that it was more likely than not that the groundwater beneath the Van Alstyne parcel was influenced by the Carters’ and Lumsdens’ rice water. In particular, he found there was “an 80 percent likelihood that the water applied to the surface of the Carter rice field finds its way beneath the Van Alstyne property during the rice irrigation season.” He further opined that in 2005, the Carters contributed the majority of the water that caused the groundwater level below the Van Alstyne parcel to rise and “[i]n 2006 it appear[ed] to be a more equal contribution” as between the Carters and the Lumsdens.

Blanke’s conclusion that the Carters’ “rice field irrigation” caused the groundwater level below the Van Alstyne parcel to rise was bolstered by his finding that the soils in the southwest corner of the Carter parcel and the northwest corner of the Van Alstyne parcel “are capable of transmitting water.”

Blanke investigated sources of water other than water from the Lumsdens’ and Carters’ rice fields that could have contributed to the rise in the groundwater level under the Van Alstyne parcel. He reviewed rainfall records for Marysville, which indicated there was almost no rainfall during the 2006 growing season. He also noted that Van Alstyne did not irrigate the northwest corner of his parcel during the 2006 growing season, and thus, could not have caused the groundwater level to rise during that time. He did acknowledge that if Van Alstyne irrigated during the 2005 growing season, that could have affected the groundwater level under his parcel. He also agreed that “what other farmers [were] doing in the immediate area would impact the water table under” the Van Alstyne parcel and acknowledged that he did not have any information about what other farmers were doing when the Lumsdens and Carters irrigated their rice fields in May 2006.

Noting that the groundwater level in the northwest corner of the Van Alstyne parcel dropped approximately one-half-foot after the Carters set back their rice field 100 feet in 2006, and assuming there was “a linear gradient to the water table,” Blanke projected the groundwater level would drop an additional one-and-one-half feet if the Carters set back their field an additional 300 feet.

Van Alstyne did not suffer any monetary damages in 2003. In 2004, 2005, and 2006, groundwater occupied one acre each of his alfalfa and prune crops. He sought $200, the fair rental value, for each acre, for a total of $1,200 in damages.

B. The Defense

In 2004, after receiving Van Alstyne’s June 5, 2003, letter, Carter installed a “drain” along the southern end of his rice field. He denied promising Van Alstyne that he would dig a drainage ditch prior to the 2005 growing season. Prior to the 2005 growing season, he did, however, hire someone to dig a core trench along the edge of his parcel “to alleviate any problems” and to be a good neighbor.

In May 2006, Mr. Carter met with Van Alstyne and a member of the Board of Directors of Reclamation District 777 on the southern edge of his parcel. During that meeting, Mr. Carter agreed to set back his rice field 100 feet from the southern edge of Paseo Road. Van Alstyne determined how far the field would be set back and was present when they measured and staked it. After the meeting, Mr. Carter set back his field 100 feet, losing approximately five acres of farm land and $5,000 in gross profits.

Mr. Carter divided his rice field in two: a north field and a south field. He began flooding each field approximately three to four days before he planted and began dropping his water about seven to ten days before he applied pesticide if he intended to apply the pesticide to a dry field. Whether a field must be dry when pesticide is applied depends upon the pesticide used and manner in which it is applied.

Mr. Carter agreed with Van Alstyne’s estimates of when he flooded his north and south fields in May 2006. He also agreed with Van Alstyne’s assertion that he sprayed his north field with pesticide on June 20 and his south field on July 6, 2006; however, he did not drop the water on either field prior to doing so. Rather, he used a “spray rig” with “7-foot-tall steel wheels” that is able to go onto the field when it is wet. He explained that it is preferable to keep water on the field, if possible.

The Carters retained John Bahme, a plant pathologist, to investigate Van Alstyne’s crop loss claims. After reviewing an aerial photograph of the Van Alstyne parcel taken in November 2002, Bahme concluded the alfalfa field in the northwest corner of the Van Alstyne parcel was in poor condition before the Carters began farming rice in the southwest corner of their parcel. He described the alfalfa field as “erratic,” “weak,” and “weedy” and distinguished it from other alfalfa fields on the parcel.

After visiting the property, Bahme observed a “hump or berm” along the west edge of the same alfalfa field, which he said created “a block soil dam.” He also saw a stand of 30 foot tall trees, which “prevent[ed] sunlight from getting to the alfalfa” and impeded drainage.

The Carters also retained hydrologist Steven Carlton in June 2006. He installed eight monitoring wells in a line along the southern edge of the Carter parcel to measure groundwater levels.

After reviewing the data collected by Van Alstyne’s expert during the 2006 growing season, Carlton observed that the groundwater under at least a portion of the northwest corner of the Van Alstyne parcel moved from south to north most of the time. While the data collected from both parcels indicated the groundwater level generally was higher on the Carter parcel than on the Van Alstyne parcel, the difference was slight. Accordingly, Carlton could not say which way the water was moving.

The Lumsdens farmed 217 acres of rice on the property west of the Van Alstyne parcel. They had farmed that property since 1989. There were three fields on the property.

The Lumsdens’ neighbor to the north, Ken Sanders, also farmed rice. The Lumsdens and Sanders generally “share[d]” who began flooding their fields first; however, Sanders always began flooding his property before the Lumsdens began flooding the field closest to the Van Alstyne parcel.

C. Rebuttal

Van Alstyne did not present any evidence in rebuttal.

DISCUSSION

Grant Of Nonsuits

Van Alstyne contends the trial court erred in granting the Carters’ motions for nonsuit.

We begin our discussion with the grant of nonsuits. We then address the remaining issues in the approximate order in which they arose in the trial court.

On appeal from a judgment of nonsuit, we are guided by the same rule that guided the trial court: the evidence (or the facts asserted in the plaintiff’s opening statement where the motion is made after opening statement) must be evaluated in the light most favorable to the plaintiff. (Claxton v. Atlantic Richfield Co. (2003)108 Cal.App.4th 327, 335.)

We cannot sustain the trial court’s judgment unless, interpreting the evidence most favorably to the plaintiff’s case and most strongly against the defendant, and resolving all presumptions, inferences, and doubts in favor of the plaintiff, a judgment for the defendant is required as a matter of law. (Claxton, supra, 108 Cal.App.4th at p. 335.) A judgment of nonsuit must not be reversed if the plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture. (Ibid.) However, reversal is warranted if there is some substance to the plaintiff’s evidence upon which reasonable minds could differ. (Ibid.) Only the grounds specified by the moving party in support of its motion should be considered on appeal. (Ibid.)

Fraud

Van Alstyne contends the trial court erred in granting a nonsuit as to the fraud cause of action because his opening statement set forth facts that supported a finding that Mr. Carter never intended to dig a ditch as promised.

As we shall explain, Van Alstyne failed to set forth facts that would support a finding that he relied on Mr. Carter’s alleged promise -- a necessary element of a fraud cause of action. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) Accordingly, the trial court did not err in granting the nonsuit as to that cause of action.

During his opening statement, Van Alstyne stated that “Carter agreed to dig a drainage ditch on his side of Paseo Road... to help resolve [the seepage] problem,” but failed to do so. The Carters moved for a nonsuit, arguing Van Alstyne failed to reference facts that amounted to “either an intentional misrepresentation or a fraudulent action by [the Carters].” Among other things, the trial court noted that it “need[ed] to have some reliance by” Van Alstyne and allowed him to reopen his opening statement to attempt to cure the perceived defect. Referring to an earlier portion of his opening statement, Van Alstyne told the jury that he “wrote that one letter [to Mr. Carter] saying that... he would donate his money that was involved to help pay for the expenses” and asserted his offer amounted to “a detriment and a reliance....” The Carters renewed their motion for nonsuit, and the court granted it.

In order to prevail on a fraud cause of action, a plaintiff must show that he actually relied on the misrepresentation. (Cadlo v. Owens-Illinois, Inc., supra, 125 Cal.App.4th at p. 519.) “[T]he mere assertion of ‘reliance’ is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show a bona fide claim of actual reliance. [Citation.] [¶] Actual reliance occurs when the defendant’s misrepresentation is an immediate cause of the plaintiff's conduct, altering his legal relations, and when, absent such representation, the plaintiff would not, in all reasonable probability, have entered into the transaction.” (Ibid.)

Here, Van Alstyne failed to reference any facts during his opening statement that would support a finding that he actually relied on Mr. Carter’s alleged promise to dig a drainage ditch. The letter he referred to when allowed to reopen his opening statement, which he had read to the jury earlier in his opening statement, stated in pertinent part: “[It] looks like some mitigation measures other than just dropping the rice water... will be necessary. So far the actual dollar damages are small. I lost two bales of hay and it is inconvenient to leave a spot unharvested. Next year is another year and I hope you can suggest some modification of your side... to prevent this. I want to donate the damages that I incurred to whatever expenses are involved next year.” Van Alstyne does not explain, and we cannot discern, how his offer to donate his damages to offset whatever expenses are involved in making an unidentified (and apparently undetermined) modification was in any way related to, much less caused by, Mr. Carter’s alleged promise to dig a drainage ditch. Accordingly, the court was correct in granting the Carters’ motion for nonsuit as to the fraud cause of action.

Exclusion of Evidence of Polluted Water

Van Alstyne claims the trial court abused its discretion in excluding evidence that Mr. “Carter pumped contaminated wastewater onto his rice field,” and that the exclusion of such evidence resulted in the trial court granting the Carters’ motion for nonsuit as to the public nuisance cause of action.

As we shall explain, Van Alstyne failed to proffer any evidence that any contaminated wastewater “invaded the water supplies of the public or of a considerable number of persons with one or more of the effects set forth in Civil Code section 3479” as required to establish a public nuisance cause of action. (Beck Development Co., Inc. v. Southern Pacific Transportation Company (1996) 44 Cal.App.4th 1160, 1211.) Accordingly, the trial court did not err in granting a nonsuit as to that cause of action, and any error in excluding evidence that the Carters irrigated their rice field with contaminated wastewater was harmless.

During his case-in-chief, Van Alstyne sought to introduce evidence that the Carters irrigated their rice field with contaminated wastewater, which then made its way into the groundwater under his parcel. The Carters objected, arguing such evidence was irrelevant. Following an Evidence Code section 402 hearing, the trial court granted the motion, finding such evidence was irrelevant and that any possible relevance was outweighed by the potential for prejudice under Evidence Code section 352.

The Carters renewed their motion for nonsuit at the close of Van Alstyne’s case-in-chief. The trial court granted the motion, noting that Van Alstyne was given “[r]epeated opportunities... to [show] that the water discharged by the City of Live Oak actually got to the pump in question and that there was any of the four elements, including aluminum, from the discharge... that actually made it down to the pumping station or the land....”

Civil Code section 3479 defines a nuisance as “[a]nything which is injurious to health... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property....” A public nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.)

Under the Water Code, a “‘[n]uisance’ means anything which meets all of the following requirements: [¶] (1) Is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. [¶] (2) Affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. [¶] (3) Occurs during, or as a result of, the treatment or disposal of wastes.” (Wat. Code, § 13050, subd. (m).)

Van Alstyne contends the Carters’ discharge of “non-compliant effluent water” “into [their] rice basins where it percolated into the groundwater” alone constituted a public nuisance and disputes the Carters’ assertion that he was also required to show that the groundwater itself was contaminated. More particularly, Van Alstyne submits that “[p]roof is made, not by quixotic water sampling within the infinitely diluting groundwater aquifer, but by [evidence] indicating that the source reservoir waters were contaminated and by proof that CARTER pumped that water onto his land.” (Fns. omitted.) Van Alstyne is mistaken.

“Where, as here, it is claimed that a substance underlying the plaintiff’s land creates a public nuisance, it is not enough that some water on or in the land may come into contact with the substance. Rather, it must be shown that the substance has, or at least is likely to have, invaded the water supplies of the public or of a considerable number of persons with one or more of the effects set forth in Civil Code section 3479.” (Beck Development Co., Inc. v. Southern Pacific Transportation Company, supra, 44 Cal.App.4th at p. 1211, italics added.) Thus, even assuming Van Alstyne could have shown that the Carters irrigated their rice field with contaminated wastewater and that such water made its way into the groundwater under his parcel, as he contends, such a showing would have been insufficient. He was also required to show that the contaminated wastewater’s invasion of the groundwater was injurious to health, indecent or offensive to the senses, or obstructed the free use of property, so as to interfere with the comfortable enjoyment of life or property. (Ibid.; Civ. Code, § 3479.) Van Alstyne does not dispute the Carters’ assertion that he had no evidence the groundwater was contaminated. Nor does he point to any evidence in the record that the Carters’ purported use of contaminated wastewater altered the groundwater’s quality, created a hazard to the public health through poisoning or through the spread of disease, or otherwise resulted in one or more of the effects set forth in Civil Code section 3479.

Accordingly, the trial court did not err in granting the Carters’ motion for nonsuit as to the public nuisance cause of action, and any error in excluding evidence the Carters used contaminated wastewater to irrigate their rice field was harmless.

Ultrahazardous Activity

Van Alstyne contends the trial court erred in granting the Carters’ motion for nonsuit as to the strict liability cause of action because section 13350 of “[t]he Water Code authorizes a strict liability standard” and “rice irrigation” is an ultrahazardous activity. As we shall explain, Van Alstyne lacks standing to pursue a claim under section 13350 of the Water Code and failed to establish the Carters were engaged in an ultrahazardous activity.

Pursuant to Water Code section 13350: “Any person who, without regard to intent or negligence, causes or permits any hazardous substance to be discharged in or on any of the waters of the state, except in accordance with waste discharge requirements or other provisions of this division, shall be strictly liable civilly in accordance with subdivision (d) or (e).” (Wat. Code, § 13350, subd. (b)(1).) Subdivision (e) of that section provides that “[t]he state board or a regional board may impose civil liability administratively... either on a daily basis or on a per gallon basis, but not both,” while subdivision (g) states that “[t]he Attorney General, upon request of a regional board or the state board, shall petition the superior court to impose, assess, and recover such sums.” As a private citizen, Van Alstyne lacks standing to pursue an action under Water Code section 13350.

Subdivision (d) of Water Code section 13350 sets forth the dollar amounts of the civil liability.

The factors to be considered in determining whether an activity is ultrahazardous or abnormally dangerous are set forth in Restatement Second of Torts, section 520: “(a) existence of a high degree of risk of some harm to the person, land or chattels of others; [¶] (b) likelihood that the harm that results from it will be great; [¶] (c) inability to eliminate the risk by the exercise of reasonable care; [¶] (d) extent to which the activity is not a matter of common usage; [¶] (e) inappropriateness of the activity to the place where it is carried on; and [¶] (f) extent to which its value to the community is outweighed by its dangerous attributes.” (Edwards v. Post Transportation Co. (1991) 228 Cal.App.3d 980, 984-985, quoting Rest.2d Torts, § 520.) Whether the requirements of section 520 of Restatement Second of Torts are satisfied in any particular case is a question of law for the court, a decision that is subject to de novo review in the absence of disputed facts. (Id. at p. 984, fn. 2.)

Van Alstyne asserts “rice irrigation” constitutes an ultrahazardous activity; however, he fails to point to any evidence in the record supporting his assertion. Rather, he relies exclusively on this court’s decision in Kall v. Carruthers (1922) 59 Cal.App.555 (Kall) for the proposition that rice irrigation is an ultrahazardous activity as a matter of law.

In Kall v. Carruthers, this court affirmed the trial court’s finding that a property owner who brings water onto his land “for the purpose of irrigating rice thereon” is liable in damages for injuries caused where the water “escape[s] by percolation or otherwise” even where the property owner is not “‘guilty of any negligence or wrong doing except in so far as irrigating his land may be claimed to be a wrongful act.’” (59 Cal.App.at pp. 555-556.) After surveying various theories of liability, including negligence, nuisance, and strict liability, the court opined “that to permit the defendant to make his lands profitable, though it results in the utter destruction of the usefulness of plaintiff’s lands, would violate every principle of natural right and justice, and cannot be supported by judicial authority.” (Id. at pp. 558-563.) Assuming, as Van Alstyne contends, that the court’s holding was based upon a finding of strict liability, it does not necessarily follow that rice irrigation constitutes an ultrahazardous activity today -- nearly a century after Kall v. Carruthers was decided.

As detailed above, the law of strict liability has evolved since this court decided Kall. The current analytical framework involves consideration of the factors set forth in Restatement Second of Torts, section 520. (Edwards v. Post Transportation Co., supra, 228 Cal.App.3d at pp. 984-985.) Having considered those factors, we conclude that the Carters’ irrigation of their rice field did not constitute an ultrahazardous activity.

Van Alstyne failed to present evidence that modern rice irrigation “involves a high degree of risk” or that the resulting harm is likely to be great. He likewise failed to present any evidence that the risk posed by the Carters’ irrigation of their rice field could not be eliminated by the exercise of reasonable care. To the contrary, he presented evidence that the risk could be eliminated if their rice field was set back an additional 300 feet. “Where the activity is dangerous only if insufficient care is exercised, ordinary rules of fault are sufficient for allocation of the risk. There is no need for liability without proof of fault, because definitionally if there is damage it will have resulted from negligence and will be compensable.” (Edwards v. Post Transportation Co., supra, 228 Cal.App.3dat p. 987.) Nor did Van Alstyne present evidence that rice farming was not a matter of common usage in the surrounding area. To the contrary, he presented evidence that rice was commonly grown in the area over the past few decades. That the Carters’ parcel contained sandy soil, and thus, was inappropriate for farming rice, as Van Alstyne contends, may give rise to a negligence cause of action, but that fact alone does not turn an otherwise common and appropriate practice in the community at large into an ultrahazardous one.

We do not suggest that rice farming can never be deemed an ultrahazardous activity. We conclude only that Van Alstyne failed to present evidence during his case-in-chief that would support a finding that it is an ultrahazardous activity under the circumstances of this case. Accordingly, the trial court did not err in granting a nonsuit as to the strict liability cause of action.

Intentional Trespass

Van Alstyne contends the trial court erred in granting the Carters’ motion for nonsuit as to the intentional tort cause of action at the close of his case-in-chief. The intentional tort was “intentional trespass.” The jury, however, found against Van Alstyne on his trespass cause of action, and in doing so, specifically found that the Carters did not “intentionally, recklessly or negligently cause [their] irrigation water to enter under [Van Alstyne’s] property.” (Italics added.) Accordingly, any error in granting a nonsuit as to the intentional tort cause of action was harmless.

II.

Discovery Rulings

Van Alstyne purports to appeal from numerous discovery orders, asserting various claims of error. The Carters respond generally that (1) Van Alstyne’s appeal of those orders is untimely because the notice of appeal was filed more than 60 days after the entry of judgment, and (2) the orders are not appealable because they do not affect Van Alstyne’s “substantial rights” under section 906. The Carters also assert that “[t]here was clear legal justification for the orders made in this case” and “[a] review of each of the orders demonstrates that the trial court was more than fair ....” They do not address Van Alstyne’s arguments or the court’s orders individually.

The Carters’ assertion that the appeal of the discovery orders is untimely is without merit. Van Alstyne moved for a new trial, thereby extending the time for filing a notice of appeal until 30 days after the clerk mailed or a party served the order denying the motion, 30 days after denial of the motion by operation of law, or 180 days after entry of judgment, whichever is earlier. (Cal. Rules of Court, rule 8.108(b).) The motion for new trial was denied on June 21, 2007, and the order denying the motion was filed July 9, 2007. While the proof of service is not contained in the record on appeal, we assume the order was either mailed by the clerk or served by a party, and the parties do not contend otherwise. The earliest that could have occurred was July 9, 2007 -- the date the order was filed. The notice of appeal was filed July 27, 2007, well within the time allowed.

We next consider the Carters’ claim that the discovery orders are not appealable under section 906. Section 906 provides in pertinent part that on appeal from the final judgment on the merits, “the reviewing court may review... any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party....” The section thus implicitly incorporates our constitutional mandate to reverse a judgment only upon a determination that the error complained of has resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) “This fundamental restriction on the power of appellate courts is amplified by... section 475, which states that trial court error is reversible only where it affects ‘... the substantial rights of the parties...,’ and the appellant ‘sustained and suffered substantial injury, and that a different result would have been probable if such error... had not occurred or existed.’ Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred.” (Waller v. TJD (1993) 12 Cal.App.4th 830, 833.) We shall review Van Alstyne’s claims in light of these rules of appellate review.

Notwithstanding the above, a number of the discovery orders from which Van Alstyne appeals awarded monetary sanctions against him and his mother, Florence Van Alstyne. We may review those orders pursuant to section 904.1, subdivision (b), which provides that “[s]anctions orders... of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action....”

As previously discussed, Florence Van Alstyne was initially named as a plaintiff in this action. (Ante, fn. 6.) As such, she propounded and responded to discovery in this case. She was represented solely by Van Alstyne until December 22, 2005, when Lyle D. Gisi associated in “as an attorney of record for Plaintiff FLORENCE VAN ALSTYNE, TRUSTEE.” There is no indication in the record that Van Alstyne subsequently withdrew as her attorney; thus, he continued to represent his mother, as well as himself, following Gisi’s association. (See generally § 284.) To avoid confusion, we refer to Florence Van Alstyne as “Van Alstyne’s mother.” In doing so, we intend no disrespect.

January 13, 2006, Order Granting Motion To Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in granting the Carters’ motion to compel him and his mother to provide further responses to requests for production of documents and awarding sanctions in the amount of $1,660 against them. He asks us to vacate the sanctions order.

The Carters served on Van Alstyne and his mother eight identical requests for production of documents, supporting various allegations in the complaint. (§ 2031.010.) In response to each request, Van Alstyne’s mother indicated she “lack[ed] the ability to respond... despite diligent search and reasonable inquiry because the items requested have never existed.” In response to each request, Van Alstyne indicated he would “respond to the extent [the request] does not ask for attorney work product, undesignated expert witness communications, or attorney client privileged information” and produced 58 photographs and three City of Live Oak Discharge Self Monitoring Reports. He later supplemented his responses by identifying which photographs were responsive to which requests and provided a privilege log, listing two letters from an “[u]ndesignated [e]xpert.” According to the privilege log, the documents were not being produced because they were “[a]ttorney work product/privileged communication with undesignated expert witness.”

The Carters moved to compel further responses from Van Alstyne and his mother and requested monetary sanctions. (§ 2031.310, subds. (a), (d).) The trial court granted the motion to compel and awarded sanctions in the amount of $1,660 against Van Alstyne and his mother. The court required them to provide further responses “so that anyone reading the responses can understand what is being produced, and if something is not being produced, why it is not being produced.”

While Van Alstyne’s contentions on appeal are somewhat muddled, he appears to claim that the trial court abused its discretion in (1) ordering his mother to provide further responses because “[t]he documents and photographs identified and produced were obtained by” him before he represented her, and (2) ordering him to provide amended responses because he had already indicated he would produce all non-privileged documents, identified which documents he would not produce, and provided the basis for not producing them. Accordingly, he asks us to vacate the sanctions award.

Section 2031.310, subdivision (d) provides that “[t]he court shall impose a monetary sanction... against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to an inspection demand” subject to certain exceptions not applicable here. Thus, a determination of the propriety of the sanctions order requires us to consider whether the trial court properly granted the motion to compel.

“When responding to discovery, counsel generally has a duty to disclose information known to counsel, such as the names of witnesses, without regard to whether the client is competent. [Citation.] Moreover, a party has a general duty to conduct a reasonable investigation to obtain responsive information [citation] and must furnish information from all sources under his or her control.” (Regency Health Services. v. Superior Court (1998) 64 Cal.App.4th 1496, 1504.) This is so even where the responsive information is known only to the attorney. (Smith v. Superior Court (1961) 189 Cal.App.2d 6, 12.)

Van Alstyne, who represented his mother when she responded to the production request, plainly possessed responsive documents as evidenced by his responses to the requests directed to him. That he acquired or created those documents after undertaking to represent his mother is of no consequence. Insofar as he was aware of responsive documents, her responses that no such documents existed were inaccurate (Regency Health Services. v. Superior Court, supra, 64 Cal.App.4th at p. 1504; Smith v. Superior Court, supra, 189 Cal.App.2d at p. 12), and the trial court did not abuse its discretion in ordering her to provide further responses.

Turning to Van Alstyne’s responses, the trial court ordered him to supplement his responses “so that anyone reading the responses can understand what is being produced, and if something is not being produced, why it is not being produced.” As we shall explain, his responses already satisfied that requirement.

Van Alstyne’s response that he would “respond to [each] request to the extent that it does not ask for attorney work product, undesignated expert witness communications, or attorney client privileged information” was tantamount to stating he would produce all non-privileged documents. He produced 58 consecutively numbered photographs and three City of Live Oak Discharge Self Monitoring Reports, and indicated which requests the photographs were responsive to. He also provided a privilege log, listing two documents and the basis upon which each was not being produced. “[A]nyone reading the responses [could] understand what [was] being produced, and if something [was] not being produced, why it [was] not being produced.” Accordingly, the court’s order requiring him to provide further responses was at best superfluous, and thus, he cannot be said to have been “unsuccessful” in opposing the motion insofar as it pertained to his responses. (§ 2031.310, subd. (d).)

Accordingly, we shall vacate the sanctions award and remand the matter to the trial court for a determination of what, if any, monetary sanctions should be imposed given that both parties were “unsuccessful” to some extent. (See Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437 [court has discretion to apportion sanctions or to award any amount “reasonable under the circumstances”].)

Because we shall vacate the sanctions order, we need not address Van Alstyne’s related claim challenging the denial of his motion to compel Mr. Carter to execute an acknowledgement of satisfaction of judgment after Van Alstyne paid the $1,660.

January 13, 2006, Order Denying Motion To Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in denying his mother’s motion to compel Mr. Carter to provide further responses to special interrogatories and awarding sanctions in the amount of $1,160 against Van Alstyne and his mother. He asks us to, among other things, “vacate the order,” “direct a proper response to each interrogatory,” and award sanctions against the Carters.

Special interrogatory numbers 28 and 29 asked Mr. Carter for “the inside diameter of the output flange on the 100 HORSEPOWER PUMP” and “the inside diameter of the discharge pipe that the 100 HORSEPOWER PUMP is supplying.” He responded, “I believe it is 12 inches” to both interrogatories. Special interrogatory number 30 asked him to “[d]escribe in detail any angular bands that are between the mouth of the discharge pipe and the pump output flange.” He responded, “I do not believe there are any angular bends.” Special interrogatory numbers 63-65 were identical to 28-30, except that they pertained to the “80 HORSEPOWER PUMP.” Mr. Carter offered similar responses, but instead of stating “I believe,” he said, “I think.” Special interrogatory number 60 asked him to “[d]escribe in detail any business agreement, understanding or other writing evidencing a relationship with Reclamation District 777 regarding the water transport to the 15 horsepower diversion pump that exists at the east edge of the CARTER PROPERTY.” He objected to the interrogatory “on the basis it is vague, ambiguous, and unintelligible,” and “[w]ithout waiving said objections,” responded: “[Reclamation District] 777 has agreed to allow us to use the ditch on the east side of our property to irrigate our rice field.” Special interrogatory number 78 asked “[w]hen... the 80 HORSEPOWER PUMP [was] installed....” He responded, “I think it was March 2005.”

Mr. Carter verified his responses, indicating they were “true of my own knowledge, except for those matters which are therein stated upon my information and belief, and as to those I believe them to be true.”

Van Alstyne’s mother moved to compel further responses to those interrogatories and for sanctions. (§ 2030.300, subd. (a), (d).) She argued Mr. Carter’s responses to special interrogatory numbers 28-30, 63-65, and 78 were improper to the extent they were prefaced with the phrase “I think” or “I believe,” his response to special interrogatory number 60 was insufficient because it merely confirmed the existence of an agreement, and his verifications were inadequate to the extent they were based upon “information and belief.”

The trial court denied the motion to compel and awarded sanctions in the amount of $1,160 against Van Alstyne and his mother. The court found “the [i]nterrogatories have been answered sufficiently [and] that they are verified and they will be treated as verified in this action.” Noting that the interrogatories were somewhat technical in nature, the court explained that Mr. Carter’s “hedging,... if any,” in his responses to special interrogatory numbers 28-30, 63-65, and 78 “is completely understandable with a lay opinion.” The court found his response to special interrogatory number 60 was “a sufficiently detailed response to that [i]nterrogatory as phrased.”

While Van Alstyne essentially asks us to reverse the judgment, he fails to cite to any prejudice resulting from the denial of the motion to compel. Thus, we need not consider whether the alleged error warrants reversal. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, supra, 12 Cal.App.4th at p. 833.) The sanctions order, however, is reviewable. (§ 904.1, subd. (b).) A determination of the propriety of that order requires us to consider whether the trial court properly denied the motion to compel. (§ 2030.300, subd. (d).)

Responses to interrogatories must be “as complete and straightforward as the information reasonably available... permits.” (§ 2030.220, subd. (a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (§ 2030.220, subd. (b).) As the trial court observed, special interrogatory numbers 28-30, 63-65, and 78 were somewhat technical in nature. Mr. Carter’s responses reasonably could be understood as indicating the information he provided was based upon his best estimate. The trial court did not abuse its discretion in so finding and in concluding that Mr. Carter’s responses to special interrogatory numbers 28-30, 63-65, and 78 complied with section 2030.220. With respect to special interrogatory number 60, Carter did more than confirm the existence of an agreement; he summarized its substance. Accordingly, the trial court did not abuse its discretion in determining Mr. Carter’s responses were adequate.

Turning to the verifications, responses to interrogatories must be signed under oath by the party to whom the interrogatories were directed unless the responses contain only objections. (§ 2030.250, subd. (a).) Verifications based upon information and belief are insufficient because interrogatory responses must contain the responding party’s personal knowledge or state the inability to provide such information despite a reasonable and good faith effort to obtain it. (§ 2030.220, subd. (c); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 8:1104, p. 8F-52.) Accordingly, Mr. Carter’s verifications on information and belief were invalid. Because “[u]nsworn responses are tantamount to no responses at all” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636), the trial court abused its discretion in denying the motion to compel further responses. Thus, it cannot be said that Van Alstyne’s mother was wholly unsuccessful on her motion. Accordingly, we shall vacate the sanctions order and remand the matter for a determination of what sanctions, if any, should be imposed.

January 13, 2006, Order Denying Motion to Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in denying his mother’s motion to compel the Carters to provide further responses to special interrogatories and awarding sanctions in the amount of $1,595 against him and his mother. He asks us to, among other things, vacate the order in its entirety and direct further responses to the interrogatories.

Special interrogatory numbers 1, 3 and 5 asked Mrs. Carter to provide the name, address and telephone number of “any person or entity with whom you have entered into any contractual agreement to sell, transfer... [or] option” the Carter parcel, “all persons that you make payment to on the promissory note,” and “any employees or subcontractors that... has [sic] [been] paid to perform any labor on the farming operation” on the Carter parcel. Special interrogatory number 2 asked her to “[d]escribe the general nature of any contractual agreement that you have entered into to sell, transfer” or option the Carter parcel. She objected to each of the interrogatories on relevancy and privacy grounds.

Special interrogatory number 12 asked Mr. Carter to provide the “name, address and telephone number [of] any Internet Service Provider through which you, or any other person acting as your agent, have accessed the Internet during the last three years.” He objected on relevancy and privacy grounds.

Van Alstyne’s mother moved to compel the Carters to provide further responses and for sanctions. (§ 2030.300, subds. (a), (d).) The trial court denied the motion in its entirety, and awarded sanctions against Van Alstyne and his mother in the amount of $1,595.

While Van Alstyne essentially asks us to reverse the judgment, he fails to cite to any prejudice resulting from the denial of the motion to compel. Thus, we need not consider whether the alleged error warrants reversal. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, supra, 12 Cal.App.4th at p. 833.) While the sanctions order is reviewable (§ 904.1, subd. (b)), we are unable to review it on the record before us.

“It is well settled... that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Here, the record on appeal does not contain a transcript of the hearing on the motion, and the court did not state the basis of its ruling in the order denying the motion. Thus, we do not know the basis of the trial court’s denial. More importantly, we do not know what offers of proof, if any, were made to the trial court during the hearing concerning the relevancy of the information sought or on any other issue that was germane to the motion.

Because Van Alstyne has failed to provide an adequate record, we have no occasion to consider further the merits of the $1,595 sanctions order, or the order denying the motion to compel upon which the sanctions order was based.

February 10, 2006, Order Granting Request For A Protective Order And Denying Request For Sanctions

Van Alstyne claims the trial court abused its discretion in denying his and his mother’s request for monetary sanctions after granting their motion for a protective order and asks us to “reverse that part of the order denying sanctions” and “award sanctions to” him.

The denial of a motion for sanctions is not an appealable order under section 904.1. (See Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055.) Nor may we review it as part of Van Alstyne’s appeal from the judgment under section 906 because the denial of a request for $2,490 in discovery sanctions does not “involve[] the merits or necessarily affect[] the judgment or order appealed from or... substantially affect[] the rights of a party....” (§ 906.)

March 3, 2006, Order Granting Motion To Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in granting Mr. Carter’s motion to compel him and his mother to provide further responses to special interrogatory numbers 1-35 and awarding sanctions in the amount of $1,305 against them and asks us to vacate the order in its entirety and award sanctions against the Carters.

The interrogatories requested Van Alstyne and his mother to “[s]tate all facts” related to various allegations set forth in the complaint, “[d]escribe each and every document containing information concerning” such facts, and “[i]dentify each and every individual having knowledge” of such facts. Van Alstyne responded by preparing a summary of 217 facts, a list of 28 documents, and a list of 19 witnesses, and then referred to those facts, documents, and witnesses by number in his responses. For example, special interrogatory number 1 asked him to state all facts upon which he based his contention that “CARTER negligently re-graded the entire approximately 150 acre parcel into four rectangular, level holding ponds for rice production in 2002,” and he responded: “Facts 1-3, 6-21, 24-26, 30-41, 48-53.” Van Alstyne’s mother responded to each request as follows: “Other than the information already provided in response to form interrogatories, I have no personal knowledge sufficient to respond fully to this interrogatory. My co-plaintiff, Thomas Van Alstyne is equally available to [Mr. Carter] and any information that is available to me by inquiry to him is available to [Mr. Carter]. Objection -- Privileged Attorney client communications.”

Mr. Carter moved to compel further responses from Van Alstyne and his mother, contending “the responses are incomplete and the objections are without merit or too general” and requested sanctions. (§§ 2030.300, subds. (a), (d).) More particularly, he asserted that Van Alstyne’s responses were inadequate because they referred to other documents, and that his mother’s responses were inadequate in that they should include information possessed by her attorney, Van Alstyne. The trial court granted the motion to compel and awarded sanctions in the amount of $1,305 against Van Alstyne and his mother.

The sanctions order is appealable. (§ 904.1.) A determination of the propriety of that order requires us to consider whether the trial court properly granted the motion to compel. (§ 2030.300, subd. (d).)

“Answers [to interrogatories] must be complete and responsive. Thus, it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-784.) Accordingly, the trial court did not abuse its discretion in concluding Van Alstyne’s responses, which required Mr. Carter to refer to various lists prepared by Van Alstyne, were not fully responsive to the interrogatories.

As previously discussed, a party must disclose nonprivileged facts known to his or her attorney, even if the party has no personal knowledge of such facts. (Regency Health Services. v. Superior Court, supra, 64 Cal.App.4th at p. 1504; Smith v. Superior Court, supra, 189 Cal.App.2d at p. 12.) Accordingly, Van Alstyne’s mother’s responses, which failed to include information known to her attorney, were plainly inadequate, and the trial court did not abuse its discretion in so concluding or in awarding sanctions.

June 19, 2006, Order Granting Motion To Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in granting in part the Carters’ motion to compel him to respond to various deposition questions and awarding sanctions in the amount of $1,200 against him. He asserts that in granting the motion to compel, the court required him to disclose “expert witness information or investigation results” and “the identity of witnesses that [he as] counsel had interviewed.” He also claims that because the court denied the motion as to 20 of the 55 questions, sanctions were inappropriate. He asks us to, among other things, vacate the order in its entirety, “vacate the verdict and judgment,” and award sanctions against the Carters.

“When the trial court commits error in ruling on matters relating to pleadings, procedures, or other preliminary matters, 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, supra, 12 Cal.App.4th at p. 833; see also Cal. Const., art. VI, § 13; § 475.)

Here, Van Alstyne asserts in conclusory fashion that “the failure to protect the identity and opinions of [his] experts prejudicially interfered with [his] ability to adequately prepare for trial.” He does not, however, elaborate on how his preparation was hindered. He does not even indicate if or how he eventually answered the questions; thus, it is not clear whether he was forced to disclose “the identity and opinions” of his experts, much less how any such disclosure may have impacted the prosecution of his case. In a footnote he states that “[b]ecause the court refused to honor the expert witness/work product privilege, [he] was unable to review results from his experts until after his deposition was completed on December 14, 2006.... [He] was unable to properly prepare for trial.” He fails, however, to explain how the purported delay prejudiced him at trial. Notably, the trial did not commence until April 10, 2006, four months after Van Alstyne’s deposition was completed. Moreover, insofar as the “results” concerned the Carters’ alleged use of contaminated wastewater, Van Alstyne was not prejudiced by the court’s ruling because, as previously discussed, such information was properly excluded at trial. (Ante, p. 22.) Because Van Alstyne has failed to show that the court’s order compelling him to respond to deposition questions prejudiced him at trial, we need not inquire into the merits of that portion of the court’s order.

Turning to the sanctions award, Van Alstyne claims the award was inappropriate because he “successfully asserted privilege for 20 of the 55 questions.” Where, as here, a motion is granted in part and denied in part, and thus, both parties are “unsuccessful” to some extent, the court has discretion to apportion sanctions or to award any amount “reasonable under the circumstances.” (Mattco Forge, Inc. v. Arthur Young & Co., supra, 223 Cal.App.3d at p. 1437; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, § 8:1189, p. 8F-76.) Accordingly, the trial court did not abuse its discretion in awarding sanctions.

December 20, 2006, Order Granting Motion To Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in granting the Carters’ motion to compel him to respond to questions posed at his continued deposition and awarding sanctions in the amount of $2,735 against him. He asks us to vacate the order as to some of the questions as well as the sanctions award.

After the trial court granted the Carters’ motion to compel Van Alstyne to respond to deposition questions, the Carters noticed his continued deposition. Van Alstyne immediately filed a motion for reconsideration, which was pending at the time of the continued deposition. Van Alstyne appeared at the deposition, but refused to answer questions that were the subject of the order granting the motion to compel pending a decision on his motion for reconsideration.

The Carters moved for contempt, to compel Van Alstyne to respond to the questions he refused to answer at his continued deposition, and for evidentiary and monetary sanctions. (§ 2025.480, subds. (a), (f), (g).) The trial court granted the motion to compel and awarded sanctions in the amount of $2,735 against Van Alstyne, but declined to find him in contempt or to impose evidentiary sanctions. In doing so, the court observed that Van Alstyne “did not present any new facts or law” in his motion for reconsideration. It also found he “ignored the option of seeking a stay of the June 19, 2006 order” granting the Carters’ motion to compel responses to deposition questions and made the “unilateral[]... assumption that he simply didn’t have to follow the order of the court. His decision delayed the process and caused significant and extraordinary expenses to [the] Carter[s].”

Van Alstyne contends the sanctions award was improper because “[t]here was no jurisdiction to convene the [continued] deposition....” More particularly, he asserts that a party “may refuse to comply with an order and challenge the sanctions on jurisdictional basis,” citing In re Marriage of Niklas (1989) 211 Cal.App.3d 28. There, the court held that “[a] person may refuse to comply with a court order and raise as a defense to the imposition of sanctions that the order was beyond the jurisdiction of the court and therefore invalid, but may not assert as a defense that the order merely was erroneous.” (Id. at p. 35.)

Here, Van Alstyne does not contend the June 19, 2006, order compelling him to respond to deposition questions was beyond the jurisdiction of the court. Rather, he asserts there was no jurisdiction to convene the continued deposition given the pendency of his motion for reconsideration of the court’s June 19, 2006, order. Accordingly, In re Marriage of Niklas does not provide a basis for Van Alstyne’s failure to comply with the June 19, 2006, order.

To the extent Van Alstyne asserts that the filing of a motion for reconsideration automatically stays the execution of the order for which reconsideration is sought, we disagree. As the trial court found, Van Alstyne could have moved to continue his deposition until after the trial court ruled on his motion for reconsideration. Because he failed to do so, the trial court did not abuse its discretion in granting the motion to compel and awarding sanctions against him.

Finally, we need not consider Van Alstyne’s contention that the trial court abused its discretion in ordering him to respond to specific questions because he makes no attempt to show that he was prejudiced by the court’s ruling. (Cal. Const., Art. VI, § 13; §§ 475; Waller v. TJD, supra, 12 Cal.App.4th at p. 833.)

Van Alstyne’s claim that the sanctions award was improper is based solely on his assertion that “[t]here was no jurisdiction to convene the [continued] deposition” and not on his contention that the trial court abused its discretion in ordering him to respond to specific questions.

August 14, 2006, Order Denying Motions To Compel And Request For Sanctions

Van Alstyne next appeals the trial court’s order denying his mother’s motions to compel (1) Mr. Carter to comply with her demand for inspection of his property, and (2) Mrs. Carter to provide further responses to special interrogatories. Among other things, he asks us to reverse the order, vacate the judgment, order a new trial, and direct the trial court to reopen discovery.

Inspection Demand

Van Alstyne’s mother served Mr. Carter with a “demand to enter and inspect and sample land or premises.” More particularly, she demanded Mr. Carter allow “her and her agents using suitable machinery to enter [his] real property... on April 17, 2006 through April 18, 2006” for the purpose of “obtain[ing] core and specimen samples of water and soil” and “mak[ing] a visual examination of the property.” Mr. Carter objected on privacy grounds, among others, and Van Alstyne moved to compel and for sanctions. (§ 2031.310, subds. (a), (d).)

By the time the motion to compel was filed, Van Alstyne had substituted in as trustee. Accordingly, he, rather than his mother, moved to compel.

The trial court overruled the privacy objection, but denied the motion to compel without prejudice, finding the inspection demand did not “give any particulars,” such as “how many cores [Van Alstyne] wanted to drill.” After confirming that the Carter parcel already had been planted in rice and was wet, the court indicated that Van Alstyne would “be allowed under the correct conditions to enter onto the property and to... take soil samples, to determine the composition of the soil and to find out if there is... bad stuff there” and encouraged the parties to work out the details of such an inspection on their own. In the event a second motion to compel was filed, the court advised Van Alstyne that he would need “somebody with credentials” to establish “good cause” for whatever he was seeking.

As previously discussed, we will reverse a judgment only upon a showing of “resulting prejudice, and the probability of a more favorable outcome, at trial.” (Waller v. TJD, supra, 12 Cal.App.4th at p. 833; see also Cal. Const., art. VI, § 13; § 475.) While Van Alstyne claims the trial “court improperly refused to order the inspection demand,” he fails to state what was improper about the court’s refusal, much less how he was prejudiced by the court’s order, which was without prejudice. Instead, he argues the trial court “imposed an unlawful standard for subsequent motions to compel” when it stated that he would need “somebody with credentials” to establish “good cause” for whatever he was seeking should he bring another motion to compel. He fails, however, to explain how that prejudiced him in the prosecution of his case. Significantly, he does not assert that he brought another motion to compel, much less that the court applied the purportedly “unlawful” standard in denying such a motion. Because he failed to establish he was prejudiced by the court’s order, we need not consider its merits.

Special Interrogatories

Van Alstyne contends the trial court abused its discretion in denying his motion to compel Mrs. Carter to provide further responses to special interrogatories.

Special interrogatory number 16 asked Mrs. Carter to “[d]escribe the identity and location of any person having knowledge of any discoverable matter related to this ligation.” Mrs. Carter objected to the interrogatory as “vague, ambiguous, compound, overbroad, seeks information protected by the attorney client and attorney work product privileges, and invades the right of privacy of defendants,” but without waiving those objections, responded “Florence Van Alstyne, Thomas Van Alstyne, Steve Carter, Debbie Carter, and Lovell Lumsden.” Special interrogatory number 17 asked Mrs. Carter to “[d]escribe with particularity any income or other financial benefits received by [d]efendants Steven and Debbie Carter obtained as a result of [d]efendants’ rice farming operation on the ten acres on the CARTER PROPERTY that are adjacent to [Van Alstyne’s] property....” She objected to the interrogatory as “vague, ambiguous, compound, overbroad, and invades defendants’ right of privacy. As [Van Alstyne] knows, [the Carters] own more than 10 acres adjacent to [Van Alstyne’s] property.” Van Alstyne moved to compel further responses. (§ 2030.300, subd. (a).) The trial court denied the motion.

Van Alstyne asserts that “[i]f the court had properly overruled the objections, [he] could have later requested a supplemental response to [special] Interrogatory [number] 16.” Mrs. Carter, however, provided a substantive response to special interrogatory number 16. Thus, we fail to see how the court’s order precluded Van Alstyne from requesting a supplemental response. Van Alstyne also claims that the Carters’ “evasive responses to the legitimate request(s) for a witness list.... prevented the reasonable opportunity to depose witnesses, and develop [his] case.” Van Alstyne, however, fails to identify one witness he was unable to depose, much less how his inability to depose that witness prejudiced him in the prosecution of his case. Absent such a showing, we need not review the merits of the court’s order denying the motion to compel. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, supra, 12 Cal.App.4th at p. 833.)

December 20, 2006, Order Granting In Part and Denying In Part Motion To Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in denying in part his motion to compel Mrs. Carter to provide further responses to special interrogatories and for sanctions. He asks us to reverse the portion of the order denying the motion to compel, as well as the judgment, and to remand the matter for further discovery and retrial.

Special interrogatory numbers 10-15 sought information concerning various affirmative defenses raised by the Carters. Special interrogatory numbers 19 and 20 sought information related to Van Alstyne’s damages for his trespass cause of action pursuant to Civil Code section 3334. Mrs. Carter objected to each of the interrogatories, and Van Alstyne moved to compel and for sanctions. (§ 2030.300, subds. (a), (d).)

Civil Code section 3334 governs the measure of damages in a trespass action. Subdivision (b) of that section provides in pertinent that, subject to certain exceptions, “the value of the use of the property shall be the greater of the reasonable rental value of that property or the benefits obtained by the person wrongfully occupying the property by reason of that wrongful occupation.”

The trial court granted the motion to compel as to special interrogatory numbers 10-15, but denied it as to special interrogatory numbers 19 and 20. The denial of the motion was “without prejudice,” such that plaintiffs could “at a later date... submit evidence to demonstrate the predicate facts warranting an application of Civil Code [s]ection 3334 to this action as a basis to discover financial information from [the Carters] in the rice operation.” The court also denied “all requests for sanctions,” finding “both sides had substantial justification to advance their respective positions.”

Van Alstyne contends the trial court abused its discretion in finding Mrs. Carter acted with substantial justification in responding to special interrogatory numbers 10-15 and in denying his request for sanctions. He also claims the court erred in deferring discovery of the financial information sought in special interrogatory numbers 19 and 20.

The denial of a motion for sanctions is not an appealable order under section 904.1. (See Wells Properties v. Popkin, supra, 9 Cal.App.4th at p. 1055.) Nor may we review it as part of Van Alstyne’s appeal from the judgment under section 906 because the denial of a request for discovery sanctions does not “involve[] the merits or necessarily affect[] the judgment or order appealed from or... substantially affect[] the rights of a party....” (§ 906.) Moreover, we need not consider whether the trial court abused its discretion in deferring discovery concerning the financial information sought in special interrogatory numbers 19 and 20 because Van Alstyne has failed to show he was prejudiced as a result of the court’s ruling. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, supra, 12 Cal.App.4th at p. 833.) The information sought was relevant to his damages for his trespass cause of action. The jury, however, found against him on that cause of action. Therefore, any error was harmless.

January 9, 2007, Order Denying Motion To Compel And Request For Sanctions

Van Alstyne contends the trial court abused its discretion in denying his motion to compel Mr. Carter to provide a further response to form interrogatory number 15.1 and asks us to vacate the order, award sanctions against Mr. Carter, and “order further response on remand.”

Form interrogatory number 15.1 asked Mr. Carter to “[i]dentify each denial of a material allegation and each special or affirmative defense in your pleadings” and to provide information related to each. Mr. Carter objected to the interrogatory “on the basis it violates... section 2030.030,” which generally limits the number of specially prepared interrogatories to 35. (§ 2030.030, subd. (a)(1).) He also noted that both he and Mrs. Carter had previously responded to form interrogatory No. 15.1 on January 5 and March 7, 2006, respectively.

Van Alstyne served Mr. Carter with the subject form interrogatory number 15.1 on September 11, 2006, after the Carters served Van Alstyne with their answer to the second amended complaint on July 24, 2006.

Van Alstyne moved to compel and for sanctions. (§ 2030.300, subd. (a), (d).) The trial court denied the motion, finding Van Alstyne was required to propound supplemental interrogatories in accordance with section 2030.070 rather than “resurrect the same question by re-sending the interrogatory at a later time.”

Section 2030.070, subdivision (a) provides that “[i]n addition to the number of interrogatories permitted by [s]ection 2030.030..., a party may propound a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party in response to interrogatories.”

Van Alstyne contends the trial court abused its discretion in denying the motion to compel because form interrogatories are not subject to the “presumptive limit of 35” applicable to special interrogatories.

March 20, 2007, Order Granting Motion to Compel Further And Denying Request For Sanctions

Van Alstyne claims the trial court abused its discretion in denying his request for monetary sanctions after granting his motion to compel Mrs. Carter to provide further responses to special interrogatory numbers 22-24.

III.

Evidentiary Rulings

Van Alstyne claims the trial court erred in admitting evidence he was not using a portion of his parcel and asks us to “order this evidence excluded upon remand.” He fails, however, to explain how the admission of such evidence prejudiced him in prosecuting his case. While he notes that “a plaintiff may recover damages for nuisance even though he is not using his land,” there is no indication in the record that the jury was told otherwise. Accordingly, we need not consider this claim further. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 833.)

Van Alstyne contends the trial court abused its discretion in “exclud[ing] proof of the financial benefit [the Carters] obtained as the measure of trespass damages” and asks us to “vacate the verdict and judgment” and “remand for retrial with instructions to allow discovery and admit evidence of the ‘financial benefit’ to CARTER as the measure of damages for trespass.”

As previously discussed, the jury found against Van Alstyne on his trespass cause of action, and thus, did not reach the issue of damages. (Ante, p. 54.) Van Alstyne nevertheless contends he was prejudiced by being “denied the opportunity to introduce evidence of the profits associated with subsidized rice production” in that the Carters’ “counsel repeatedly referred to the slight damages.” In particular, he cites the following passage from the Carters’ opening statement: “[A]t most [Van Alstyne] suffered damages to date of around [$]1500 or $1600.” Again, he does not even attempt to explain how this reference prejudiced him. Accordingly, we need not consider this claim further. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 833.)

Van Alstyne contends the trial court “erred by refusing testimony from [his] expert hydro[geo]logist” at the bench trial on his injunctive relief claims, thereby depriving him of his “right to testify or present evidence.”

At the bench trial on his injunctive relief claims, Van Alstyne moved to “reopen [the] direct” examination of his expert hydrogeologist James Blanke. When asked why he had failed to present the evidence during his case-in-chief, Van Alstyne responded: “We believe that there was sufficient evidence but we think it would be helpful to the [c]ourt to provide more information today in a more succinct format.” The trial court denied the request.

On appeal, Van Alstyne asserts that his expert “was prepared to present the evidence of the subterranean floodwaters in more detailed graphical form to support the requested setback.”

As both the record on appeal and Van Alstyne’s opening brief make plain, Van Alstyne did not seek to present any new evidence, but rather to present the same evidence in a different format. The trial court’s refusal to allow him to present what amounted to cumulative evidence did not deprive him of his right to testify or to produce evidence. There was no error.

Van Alstyne argues the trial court erred in refusing to allow him to object to questions while he was being cross-examined, and, as a result, “was forced to engage in a question and answer session with [the Carters’] counsel on cross[-]examination,” which made him appear argumentative.

Van Alstyne prosecuted this action in his individual capacity and as trustee of the trust. He represented himself in both of those capacities and was also represented by “co-counsel,” Mr. Gisi, in his capacity as trustee. The trial court ruled that Gisi could make objections, and Gisi did make numerous objections during counsel’s cross-examination of Van Alstyne. This was sufficient to protect Van Alstyne’s individual interests, which were substantially similar to those of the trust. Finally, having reviewed the entire transcript of the cross-examination, we observe that to the extent Van Alstyne appeared argumentative to the jury, it was due to his refusal to answer proper questions posed to him, and not his inability to object.

IV.

Denial Of Motion to Amend

Van Alstyne claims the trial court abused its discretion in denying his motion to amend his second amended complaint to conform to proof, brought at the close of his case-in-chief, to allege that the Carters failed to investigate the suitability of the soil on their parcel for rice production prior to planting it entirely in rice. Van Alstyne makes no attempt to show he was prejudiced by the court’s ruling, accordingly, we need not address this contention. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 833.)

In any event, having reviewed the entire record in this matter, we are confident Van Alstyne was not prejudiced by the court’s ruling. The existing allegations in the second amended complaint concerning the composition of the soil on the Carter parcel were broad enough to encompass Van Alstyne’s theory that the Carters were negligent in failing to investigate its suitability for farming rice. Moreover, Van Alstyne argued the Carters were negligent in failing to do so during his closing argument.

Jury Instructions

Res Ipsa Loquitur

Van Alstyne contends the trial court erred in refusing to instruct the jury on the doctrine of res ipsa loquitur as to his trespass and negligence causes of action.

“Res ipsa loquitur is a doctrine affecting the burden of producing evidence applicable to certain kinds of accidents that are so likely to have been caused by a defendant’s negligence that, in the Latin equivalent, ‘“the thing speaks for itself.”’ (Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1389, quoting Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.) “If applicable, the doctrine of res ipsa loquitur establishes a presumption of negligence requiring the defendant to come forward with evidence to disprove it.” (Id. at p. 1389; see also Evid. Code, § 646, subd. (b).)

The presumption arises only when the evidence satisfies three conditions: (1) the accident must be of a kind that ordinarily does not occur unless someone is negligent; (2) the accident must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the accident must not have been due to any voluntary action or contributory fault of the plaintiff. (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at pp. 825–826.)

“In order to justify the conditional res ipsa loquitur instruction, a plaintiff need not demonstrate all the facts necessary to the res ipsa loquitur inference, but need only produce evidence sufficient to support findings that the requisite conditions are present.” (Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 601.)

Here, Van Alstyne requested the trial court instruct the jury in the language of CACI No. 417 in pertinent part as follows:

“In this case, VAN ALSTYNE may prove that CARTER’s negligence caused his harm if he proves all of the following:

While the proposed instruction was limited to the Carters, the discussion of the instruction in the trial court suggests Van Alstyne also intended the instruction to encompass the Lumsdens.

“1. That VAN ALSTYNE’s harm ordinarily would not have happened unless someone was negligent;

“2. That the harm was caused by something that only CARTER controlled; and

“3. That VAN ALSTYNE’s voluntary actions did not cause or contribute to the event[s] that harmed him.

...”

The trial court concluded the doctrine of res ipsa loquitur was inapplicable to the present case and refused the instruction, explaining that “[a] high water table, as the evidence has been presented at this trial, certainly cannot be said in all instances to be of a kind which ordinarily does not occur in the absence of someone’s negligence....” We agree the doctrine of res ipsa loquitur does not apply in this case.

While Van Alstyne presented evidence that the rise in the water table under his parcel coincided with the Lumsdens and Carters flooding their rice fields, his expert, Blanke, agreed that “what other farmers [were] doing in the immediate area could... impact the water table” and acknowledged that he did not have any information about what other farmers were doing when the Lumsdens and Carters flooded their fields in May 2006. The Lumsdens, however, presented evidence that their neighbor to the north, who also farmed rice, always began flooding his property before the Lumsdens began flooding the portion of their parcel that was closest to the Van Alstyne parcel. Moreover, Blanke’s assumption that decreases in the water table under the Van Alstyne parcel in late June and early July 2006 were caused by the Carters dropping their rice water to spray was rebutted by Mr. Carter, who testified that he did not drop his rice water in late June and early July, and Van Alstyne failed to offer any evidence contradicting Mr. Carter’s testimony.

On this record no reasonable juror could conclude that the Carters and the Lumsdens were in exclusive control of the water table under the Van Alstyne parcel during the relevant time periods. Accordingly, the trial court did not err in refusing to instruct the jury on the doctrine of res ipsa loquitur.

Van Alstyne’s reliance on Kall v. Carruthers is misplaced. In that case, it was undisputed “that the plaintiff was substantially damaged by reason of the escaping irrigation water” and “that the escaping irrigation water came from defendants’ lands.” (59 Cal.App. at p. 556.) That was not the case here.

Special Instruction On Nuisance

Van Alstyne contends the trial court erred in refusing to instruct the jury “that failing to abate the condition after reasonable notice was a basis for liability” and requests that we “order this instruction on remand.” In support of his assertion he cites to Coates v. Chinn (1958) 51 Cal.2d 304. As relevant here, that case stands for the proposition that “‘nuisance may... result from conduct which is merely negligent, where there is no intent to interfere in any way with the plaintiff, but merely a failure to take precautions against a risk apparent to a reasonable man.’” (Id. at p. 307, quoting Prosser on Torts (2d ed. 1955) p. 392.)

Here, the jury was instructed in the language of CACI No. 2021 in pertinent part as follows: To establish a claim of private nuisance, Van Alstyne must prove “[t]hat Carter and/or Lumsden created a condition that was an obstruction to the free use of the property” and “[t]hat this condition interfered with Van Alstyne’s use or enjoyment of his land.” Nothing in that instruction reasonably could be construed as requiring Van Alstyne to establish that the Carters and Lumsdens intended to interfere with his use and enjoyment of his land. To the contrary, the jury was free to find in Van Alstyne’s favor based on conduct that was merely negligent. Coates v. Chinn, supra, 51 Cal.2d at page 307 requires no more.

Special Interrogatories For The Jury

Van Alstyne contends the trial court abused its discretion in declining his request to submit “special questions for the jury” pursuant to California Rule of Court, rule 3.1580 and requests that his questions “be submitted to the jury upon remand.”

California Rules of Court, rule 3.1580 provides: “Whenever a party desires special findings by a jury, the party must, before argument, unless otherwise ordered, present to the judge in writing the issues or questions of fact on which the findings are requested, in proper form for submission to the jury, and serve copies on all other parties.”

At trial, the jurors were permitted to submit written questions to the witnesses. Van Alstyne claims that these questions “demonstrated that [the jurors] were confused by the expert scientific evidence.” In support of his claim, he refers to just one question, which was posed to him: “Why did you not put a levee up before the alfalfa in the northwest corner to see if it would stop the seepage from the Paseo ditch in 2006?” He makes no attempt, however, to explain what aspect of the “expert scientific evidence” the juror who submitted this question was confused about, much less, how the “special questions” he submitted would have “expose[d] this,” as he contends.

Accordingly, Van Alstyne has failed to demonstrate either that the trial court abused its discretion in refusing to submit his questions to the jury or that he suffered any prejudice as a result thereof.

Van Alstyne contends the trial court erred in responding to a juror question and asks us to “reverse the judgment and verdict below and remand for a new trial.”

After the jury was instructed, a juror asked the court: “We may not consider items that have come up from other than witnesses?” The court responded: “Correct.” Van Alstyne objected, arguing the court’s response could be understood as meaning the jury could not consider evidence, such as deposition testimony, that was read to it at trial, and asked the court to clarify the matter for the jury. The court declined, noting the jury had already been instructed on the consideration of evidence such as deposition testimony.

As the trial court noted, the jury was instructed that “[e]vidence comes in many forms.” In particular, the jury was instructed that it must: “consider the deposition testimony that was read to you in the same way as you consider testimony given in court”; “consider the questions and answers that were read to you the same as if the questions and answers had been given in court”; and “accept [an admission] as true. No further evidence is required to prove them.”

In light of these instructions, we find there is no reasonable possibility the jury concluded that it was to consider only the live testimony of witnesses at trial in deciding the case, as Van Alstyne suggests. The trial court acted well within its discretion in refusing Van Alstyne’s request to further respond to the juror’s question.

VI.

Costs

Van Alstyne claims the trial court erred in failing to tax all of the Carters’ costs. He argues the verification filed with the Carters’ memorandum of costs was not verified under penalty of perjury, and thus, the memorandum was defective. This argument is frivolous.

California Rules of Court, rule 3.1700(a)(1) requires that a memorandum of costs “be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”

The Carters’ memorandum of costs, prepared on Judicial Council Form MC-010 (Rev. July 1, 1999), contained the following verification, signed by their counsel: “I am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case.” Van Alstyne asserts that the omission of the words “under penalty of perjury,” or alternatively, the inclusion of the word “belief” makes the verification ineffective. He is mistaken.

Counsel’s verification based upon “knowledge and belief” is consistent with the requirements of Rules of Court, rule 3.1700(a)(1), and the trial court did not err in so finding.

The Carters cross-appeal, claiming the trial court erred in finding their section 998 offer was invalid and taxing their expert witness fees.

Section 998, subdivision (b) allows a defendant to make an offer to allow judgment to be taken against him or her in a fixed amount. If the amount is not accepted, “and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer,” which, in the court’s discretion, may include expert witness fees. (§ 998, subd. (c)(1).)

Here, the Carters extended a section 998 offer to Van Alstyne, in his individual capacity and in his capacity as trustee, to settle the litigation for $25,001. The offer did not apportion the settlement amount between Van Alstyne’s dual capacities and Van Alstyne did not accept the offer in either capacity.

As the prevailing party at trial, the Carters submitted a memorandum of costs seeking expert witness fees of $66,525. Van Alstyne moved to tax the expert witness fees on the ground the section 998 offer was invalid because it was made to multiple plaintiffs and failed to apportion the offer between them. The trial court agreed, finding the Carters’ offer did “not comply with the requirement that there be separate offers to each plaintiff” and taxed their expert witness fees.

On appeal, the Carters contend they were not required to make separate offers because “[t]here was only one offeree plaintiff for purposes of [section] 998,” and thus, the trial court erred in taxing their expert witness fees. We agree.

“In general, ‘“a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.”’ [Citations.] There is an exception to this rule: where there is more than one plaintiff, a defendant may still extend a single joint offer, conditioned on acceptable by all of them, if the separate plaintiffs have a ‘unity of interest such that there is a single indivisible injury.’” (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.)

The offeror has the burden of establishing that the offer was sufficiently certain to comply with the requirements of section 998. (Peterson v. John Crane, Inc., supra, 154 Cal.App.4th at p. 505.) The determination of the number of offeree plaintiffs for purposes of section 998 is a legal issue that we review de novo. (Ibid.)

Contrary to Van Alstyne’s assertion, “the question of the number of plaintiffs in the action... is not dependent on the parties’ characterizations.” (Peterson v. John Crane, Inc., supra, 154 Cal.App.4th at p. 506, fn. omitted.)

Peterson v. John Crane, Inc. is instructive. There, a widow asserted that her husband’s lung cancer and asbestosis were asbestos related and pursued causes of action against the defendant “in her capacities as an individual (loss of consortium claim), as successor in interest to her husband’s claims (survivor tort claims), and as her husband’s legal heir (wrongful death claims.)” (Peterson v. John Crane, Inc., supra, 154 Cal.App.4that pp. 502, 506.) The defendant extended a single section 998 offer to the plaintiff. (Id. at p. 502.) After the jury returned a verdict in the defendant’s favor, the defendant filed a memorandum of costs, seeking, among other things, expert witness fees. (Id. at p. 503.) The trial court awarded the defendant its costs, including nearly $50,000 in expert witness fees. (Id. at p. 504.) The plaintiff appealed, arguing “there were actually three plaintiffs in [the] case because she sued in three different capacities,” thus, the defendant’s single offer, which was addressed to the plaintiff in all three of her capacities, was invalid. (Id. at p. 505.) The court of appeal affirmed, finding “[t]here was only one offeree plaintiff for purposes of section 998.” (Id. at p. 507.)

In doing so, the court noted: “Section 998 provides that ‘any party may serve an offer... upon any other party to the action' to allow judgment in accord with the statute. [Citation.]’ (Peterson v. John Crane, Inc., supra, 154 Cal.App.4th at p. 506.) In determining the meaning of the statute, the court observed: “The relevant plain and commonsense meaning of the word ‘party’ is ‘[a]n individual concerned in a proceeding’ such as ‘a person who is concerned in an action or affair.’ [Citation.] A ‘party,’ therefore, is a person--not a cause of action, primary right, or legal capacity, but a person.” (Id. at p. 507, fn. omitted.) The court further explained that “[a]t the core of the rules pertaining to section 998 offers to multiple plaintiffs is the concern that the multiple parties will not be able to agree whether to accept the offer and, as a result, the chance for the settlement of at least some of the claims in a case will be lost. [Citation.] That concern does not arise where the offeree is a single individual, prosecuting claims on her own behalf (as opposed to a representative capacity), who is faced with no greater internal mental debate than any individual plaintiff who must decide whether to settle all of her causes of action.” (Id. at p. 510.)

The same is true here. There was only one person who had to decide whether to take the offer (or propose a counteroffer) -- Van Alstyne. While he was prosecuting the action in his capacity as trustee, as such, he had the power to settle the case “by compromise, arbitration, or otherwise,” and to “[r]elease, in whole or in part, any claim belonging to the trust.” (Prob. Code, § 16242, subds. (b), (c).) Thus, this is not a case where “the multiple parties will not be able to agree whether to accept the offer....” (Peterson v. John Crane, Inc., supra, 154 Cal.App.4th at p. 510.)

Van Alstyne’s brother is a vested beneficiary of the trust and “an equal beneficial interest holder with [Van Alstyne] in the assets contained therein.”

Moreover, we agree with the court’s observation in Peterson v. John Crane, Inc. “that it would be consistent with the settlement purposes of section 998 for an offeree to clarify any perceived ambiguity of an offer with the offeror.” (154 Cal.App.4th at p. 506, fn. 8.) Van Alstyne made no attempt to do so here. “When [he] received [the Carters’] single section 998 offer... [he] did not object to the form of the offer, express any concern that the offer was uncertain, or attempt to clarify the offer with [the Carters]. [He] never complained that [he] in one capacity had an insurmountable conflict with [him]self in another capacity. Nor is there any indication... that [he] declined the offer because [he] believed it was invalid, was confused by its form, or was unable to agree with [him]self, or that [he] turned the offer down for any reason other than simply thinking [he] could do better at trial. From all appearances of the record, the multiple-plaintiffs idea never even occurred to [him] until [he] had lost at trial and faced the statutory consequences of letting the offer lapse.” (Id. at pp. 512-513.)

Consistent with Peterson v. John Crane, Inc. and the settlement purposes of section 998, we conclude that Van Alstyne was a single offeree plaintiff for purposes of section 998 capable of deciding for himself whether $25,001 in exchange for a general release, dismissal, and waiver of costs and unpaid sanctions was an acceptable resolution. Accordingly, the trial court erred in finding the Carters’ section 998 offer was invalid and in taxing their expert witness fees. We shall remand the matter to the trial court for a determination of the reasonableness of the expert witness fees claimed by the Carters -- an issue Van Alstyne raised in the trial court.

DISPOSITION

The judgment is affirmed. The trial court’s January 13, 2006, orders awarding sanctions in the amounts of $1,660 and $1,160 against Van Alstyne and the July 9, 2007, postjudgment order taxing the Carters’ expert witness fees are vacated. The matter is remanded to the trial court for a determination of what, if any, monetary sanctions should be awarded, and the reasonableness of the expert witness fees claimed by the

Carters. The Carters shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

We concur: SCOTLAND, P. J., BUTZ, J.

Alstyne v. Carter

Opinion

Alstyne v. Carter

Alstyne v. Carter

Case Details

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