Opinion
2d Civil No. B206403.
7-15-2009
HOWARD HOBSON, et al, Plaintiffs and Respondents, v. PAUL LEAVENS, JR., et al, Defendants and Appellants.
Horvitz & Levy; Curt Cutting and Mary Christine Sungaila. Benton, Orr, Duval & Buckingham; Bruce Alan Finck, for Appellants. Adorno Yoss Alvardo & Smith, William M. Hensley. Jackson DeMarco Tidus and Peckenpaugh, Gregory P. Regier, for Respondents.
Not to be Published in the Official Reports
Paul Leavens, Jr., J. Link Leavens, Leavens Ranches, and Leavens Hardscrabble Ranch appeal from a judgment entered in favor of Howard Hobson, Joann Hobson, and Deann Hobson, respondents. They also appeal from an order awarding attorney fees to respondents. The judgment was entered following a jury trial. The jury returned special verdicts finding that appellants had trespassed on respondents property and had maintained a private nuisance. The trespass and nuisance claims were based on appellants creation of notches in a levee along the banks of a creek. As a result of the notches, the creek breached the levee and flooded respondents property. Appellants contend that (1) the trial court erroneously failed to instruct the jury on factors to be considered in determining the reasonableness of the parties conduct; (2) the special verdict damages awards are speculative; (3) the damages awards are inconsistent; (4) respondents received a double recovery; and (5) respondents failed to mitigate damages. We affirm.
Facts
Appellants own and operate the Hardscrabble Ranch in the Santa Clara Valley. Respondents own and operate an adjacent ranch consisting of 37.85 acres. In 2005 respondents grew avocados, lemons, and oranges on their ranch.
Timber Canyon Creek runs north-south through appellants property. Appellants assumed responsibility for maintaining the channel of the creek. The "elevation of the surface of the water" within the creek channel is "ten feet above all of the land surface to the east." Respondents orchards are to the east of the creek.
In January 2005 appellant Link Leavens (Link) used an excavator to create notches in the eastern levee of the channel. Before creating the notches, Link told respondent Deann Hobson (Deann) that he was concerned that heavy rains would cause the creek to breach the western levee and flood toward the west. Link said that he wanted to "notch the [eastern] bank in three sections." The purpose of the notching was to weaken the eastern levee to assure that any breach would occur on that side, resulting in flooding toward the east.
Deann protested that respondents could not "afford" to have their orchards flooded. But Link disregarded her protest. He made the notches in "the lowest spots on the [eastern] bank to facilitate any breach that might occur."
In January 2005 a huge rainstorm struck the area, but no flooding occurred along the creek. Appellants acknowledge that, on February 21, 2005, "[a]s a result of sediment buildup from the large January storm and the notching, a subsequent rainstorm caused the creek to overflow" eastward onto respondents orchards.
A geologist testified: "[I]ts clear that the channel of Timber Canyon Creek had the sufficient capacity to transmit the flow of February 21st, but it was compromised by the notch in the levee. [¶] This notch allowed the creek to leave its channel, and without the notch . . . the levee would never have failed. And the flooding of [respondents] orchard was the result of the levee failure created by the notch." The geologist opined that, as a result of the flooding, sediment from the channel had been deposited onto respondents property.
The flood covered approximately 17 acres of respondents property. The 17 acres contained 2,238 trees. Water remained on the property for approximately three months. Because of the wet conditions, it was not until May 31, 2005, that respondents were able to harvest fruit in the lower orchard. Some trees became overloaded with fruit, and the weight caused limbs and trunks to split. Other trees "were just leaning over" because of the weight and wet soil.
Phytophthora root rot attacked many of the trees. Dr. Julian Whaley, a forensic plant pathologist, explained: "[P]hytophthora is a soil-borne fungus that attacks citrus and hundreds of other crops." "[W]hen you have . . . standing water on a citrus field and also many inches of soil that came from somewhere else [i.e., the Timber Canyon creek channel] . . . youre creating an environment that is just perfect for phytophthora root rot to occur. Because this is an aquatic fungus, meaning it lives in water." "[T]he conditions for this aquatic fungus were met [when] that soil was saturated and stayed saturated for three months. Thats all phytophthora wants is a decent temperature . . . and saturated soil." Dr. Whaley opined that phytophthora "would be naturally occurring in the Timber Canyon watershed" because it is "ubiquitous."
Deann prepared an inventory of all of the 2,238 trees in the flooded orchards. The inventory showed the condition of each tree. Based on this inventory and his inspection of the orchards, Dr. Whaley calculated that respondents flood-related crop loss in 2006 and 2007 was $24,368.96. Dr. Whaley presented three different scenarios for the cost of replacing trees that could not be saved. Scenario 1, the least costly scenario, would result in a tree replacement cost of $59,392.22. Scenario 2 and 3 would result in a tree replacement cost of $172,324.41 and $345,198.72, respectively. .
Damages and Attorney Fees
On the trespass cause of action, the jury awarded $24,368.96 for lost crop profits, $59,392.22 for tree replacement, and $48,287.89 for other increased costs. On the nuisance cause of action, the jury awarded no damages for lost crop profits and tree replacement and $39,787.89 for other increased costs. For both causes of action, the special verdict form indicates that the other increased costs include costs for "labor, pesticides and equipment loss/repair." Pursuant to Civil Code section 3346, subdivision (a), the trial court doubled the damages on the trespass claim for lost crop profits and tree replacement. The total award was $255,598.14.
In addition to the damages award, the court awarded attorneys fees of $319,097.50 to respondents. The attorneys fees were imposed pursuant to Code of Civil Procedure section 1021.9, which provides that "the prevailing plaintiff shall be entitled to reasonable attorneys fees" in "any action to recover damages to personal or real property resulting from trespassing on lands . . . under cultivation . . . ."
Discussion
I
Alleged Failure to Instruct on Factors to be Considered in Determining the Reasonableness of the Parties Conduct
In Keys v. Romley (1966) 64 Cal.2d 396, 409-410, our Supreme Court concluded that the rights and liabilities of adjoining landowners with respect to the flow of surface waters should be based on the reasonableness of the parties conduct. In Special Instruction No. 2, the trial court instructed the jury that they should apply a test of reasonableness in determining liability. The instruction provided: "In determining liability in this case, you are guided as follows: [¶] 1. If the upper landowner [appellants] is reasonable and the lower landowner [respondents] is unreasonable, then the upper landowner wins; [¶] 2. If the upper landowner[] is unreasonable and the lower landowner is reasonable, then the lower landowner wins; [¶] 3. If both the upper and lower landowners are reasonable, then the lower landowner wins also. [¶] If both the upper and lower landowners are unreasonable, it does not mean the lower landowner is denied relief. Instead, you should regard the lower landowners lack of action as a basis in determining the computation of damages to which the lower landowner is entitled."
Appellants argue that the trial court erroneously failed to instruct the jury on "what factors to consider in measuring [the parties] reasonableness."
According to Keys, the trier of fact should consider "all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter. [Citation.]" (Keys v. Romley, supra, 64 Cal.2d at p. 410.) Another factor to be considered is "whether the utility of the possessors use of his land outweighs the gravity of the harm which results from his alteration of the flow of surface waters. [Citation.]" ( Ibid. )
Appellants do not contend that Special Instruction No. 2 is a misstatement of the law. The instruction was taken almost verbatim from language in Gdowski v. Louie (2000) 84 Cal.App.4th 1395, 1404. Appellants are in effect arguing that the instruction is incomplete because it does not set forth the factors to be considered in determining the reasonableness of the parties conduct. But in the trial court appellants did not object to Special Instruction No. 2 on this ground. Instead, they objected on the ground that "its a misstatement of law, formula and inapplicable to this case." They later renewed their objection as follows: "The next objection is to special instruction No. 2, basically a rehashing of surface water law. Its inapplicable here."
By failing to request amplifying language, appellants forfeited their challenge to the completeness of the instruction. "`"Where, as here, `the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed. [Citations.]" [Citation.]" (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1131; see also Agarwal v. Johnson (1979) 25 Cal.3d 932, 949, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 575, fn. 4 ["Although [defendants] vigorously urge the instruction should have been qualified, if it was otherwise correct they have waived their right to such objection by their failure to have offered to the trial judge any qualifying language"].)
This forfeiture/waiver rule was applied in People v. Riggs (2008) 44 Cal.4th 248. The defendant in that case challenged an instruction because it informed the jury that it "`may find a discovery violation occurred, but did not provide guidance as to how it was to make that determination." ( Id ., at p. 701.) Our Supreme Court held that the defendant had "forfeited a challenge to the completeness of the instruction by failing to request clarifying or amplifying language. [Citation.]" ( Ibid .) Like the defendant in Riggs, appellants are precluded from challenging Special Instruction No. 2 because it did not provide guidance as to what factors the jury should consider in determining the reasonableness of the parties conduct.
Appellants contend: "There was no need for [them] to propose an instruction on the [Keys reasonableness factors] because . . . the defense had no duty to propose an instruction covering [respondents] theory of the case . . . ." It is true that, to preserve the right to complain of an erroneous instruction, a party need not propose a correct instruction. (Huffman v. Interstate Brands Companies (2004) 121 Cal.App.4th 679, 705-706.) But this rule is inapplicable where, as here, "a trial court gives a jury instruction that is legally correct but is `"too general, lacks clarity, or is incomplete" [citations] . . . ." (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7.)
Appellants argue that the forfeiture rule does not apply here because it "would have been futile" for them to have requested amplifying language. This futility allegedly arose from the trial courts prior refusal to give respondents proposed Special Instruction No. 1., which "embod[ied] the reasonableness test of Keys." But the record does not disclose why the trial court refused to give this instruction. The minutes state that the jury instructions were settled "[o]ff the record." In view of the silent record, appellants cannot show that a request by them for amplifying language would have been futile. For all we know, the court may have refused to give respondents proposed Special Instruction No. 1 because appellants objected to it.
Respondents proposed Special Instruction No. 1 provided in part: "The issue of reasonableness is determined upon a consideration of the relevant circumstances, including such circumstances as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the upper landowner acted, or whether the utility of the upper landowners use of his land outweighs the gravity of harm which results from the alternation of surface waters."
Appellants contend that the trial court had a duty to instruct sua sponte on the Keys reasonableness factors. "`In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion. [Citations.]" (Agarwal v. Johnson, supra, 25 Cal.3d at pp. 950-951.) "[T]he exception is a complete failure to instruct on material issues and controlling legal principles which may amount to reversible error. [Citations.]" ( Id ., at p. 951.)
Special Instruction No. 2 does not fall within this exception. The trial court did not completely fail to instruct on material issues and controlling legal principles. Thus, to preserve the instruction issue on appeal, appellants were required to object to Special Instruction No. 2 and propose a more complete instruction. (See Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1010-1011.)
Marment v. Castlewood Country Club (1973) 30 Cal.App.3d 483, is distinguishable. In Marment the trial court "instructed at length upon negligence as it is usually defined in personal injury actions." ( Id ., at p. 485.) The courts "approach . . . overlook[ed] the Keys statement that `the question is not one of strict negligence accountability, . . . The question is reasonableness of conduct. [Citation.]" ( Ibid ., quoting from Keys v. Romley, supra, 64 Cal.2d at p. 409.) The appellate court reversed because "the instructions nowhere directed the jury to apply the test of reasonableness of the action of an owner — the core test laid down by Keys." Here, in contrast to Marment, the court instructed the jury to apply the Keys test of reasonableness, but omitted the factors to be considered in determining reasonableness.
Gdowski v. Louie, supra, 84 Cal.App.4th 1395, is similarly distinguishable. In Gdowski the trial court refused to instruct on the Keys test of reasonableness and instead "instructed the jury using general principles of negligence and contributory negligence." ( Id ., at p. 1398.)
In a separate section of their opening brief, appellants perfunctorily argue: "In the absence of an instruction on the Keys reasonableness factors," the "court erred by giving traditional trespass and nuisance instructions in a water drainage case." In substance, this argument is no different from the one considered above. Because appellants did not request amplifying language setting forth the Keys reasonableness factors, this issue has also not been preserved for appellate review.
II
Speculative Damages
Appellants argue that "[w]here, as here, the record provides no reasonable basis for ascertaining any of the types of damages awarded, the entire damages claim is speculative as a matter of law and the defendant is entitled to judgment." "[I]t is fundamental that `damages which are speculative . . . cannot serve as a legal basis for recovery. [Citations.] [Citations.]" (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989.) Damages are speculative if they are not supported by any reasonable basis. ( Id ., at p. 990.) "We must . . . view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Appellants contend that damages are speculative for four reasons. The first reason is that "Deann Hobson admitted that she did not know why some of the trees on her list were dead or injured." Appellants are referring to Deanns inventory of the 2,238 trees in the flooded orchards. Deann testified: "I went down and looked at every tree and determined if it was missing, if it was dead, or if it was leaning or if it was split or if there was a percentage of a limb split or if I saw visible gummosis on the trunk of the tree. And I just went through and categorized them. And some of them were just trees that were not looking good and I didnt know for sure why." (Italics added.) Deann further testified that some of the trees were "just dying for some reason, unknown." Deanns inventory stated that trees listed as "Dead" were "[d]ead for unknown reason" but had "[o]nly died after flooding."
The damages are not speculative because Deann did not know why some of the trees "were not looking good" or were dead or dying. Deann was merely recounting what she had observed. As a layperson, she was not qualified to give an opinion why a tree was in poor condition or had died. The expert testimony on this matter was provided by Dr. Whaley.
The second reason why damages are allegedly speculative is that Deann "could not explain why she picked 20 percent as the estimated lost production value of the injured trees." This reason distorts Deanns testimony. She did not pick 20 percent as the estimated lost production value for all of the injured trees. Deann testified that, if a tree were split, she would make an estimate as to the percentage of the tree that had been lost. For example, if a split had resulted in a 20 percent loss of a tree, she would so indicate on the inventory instead of writing off the entire tree: "I gave it maybe a 20 percent. So 20 percent of that tree value would be lost. I didnt write it off completely. So I tried to give it a percentage."
The third reason why damages are allegedly speculative is that "some of [Deanns] repair cost estimates appeared to have been based on estimates she received from others." In support of this reason, appellants cite pages 1875 and 1878 of volume 10 of their appendix. These pages are part of Plaintiffs Exhibit No. 119. Page 1875 contains handwritten figures showing the cost of fertilizer, snail bait, and fungicide. Nothing in the record indicates that these figures are merely estimates rather than actual costs incurred by respondents.
Page 1878 shows the estimated cost ($7,321.20) of replacing roads damaged by the flooding. The largest component of the estimate is material: 10 loads of "Western Material #2 base gravel" at $687.32 per load. Damages are not speculative because this estimate was apparently based on "estimates [Deann] received from others." To arrive at a reasonably accurate projection of the cost of rebuilding the roads, Deann had to consult persons who would provide the necessary material and labor.
The final reason why damages are allegedly speculative is as follows: "Dr. Whaleys calculations . . . were . . . flawed. He took [Deanns] calculations of dead or missing trees at face value — without independently determining whether their demise was flood-related — and in turn made his own 50 percent crop loss determination for partially injured trees (in lieu of [Deanns] 20 percent). Moreover, Dr. Whaley admitted that his alternate scenarios estimating future lost profits were speculative, since only `God knows how many [trees] are going to die. . . . His cost estimates therefore depended on an assumption that the flood caused the death and damage to all the trees, an apparently random crop loss determination for partially injured trees, and speculation about the number of trees that would die from phytophthora infection."
Appellants mischaracterize Dr. Whaleys testimony. He did not take Deanns "calculations of dead or missing trees at face value." In December 2006 he "spot checked" Deanns inventory of the trees: "I just picked out some things and say, okay, you say this tree is split in the middle, then I would go to that tree and see if it was. I did some of that for quite a while." The spot checks showed that the inventory was accurate.
Nor did Dr. Whaley merely assume that that the flood had caused the damage to the trees. He explained how the flood had created the ideal conditions for phytopthora to flourish. He also explained how phytophthora causes trees to die by "damaging and killing the feeder roots" so that "the plant is not able to take up the full amount of water and nutrients."
Moreover, Dr. Whaley verified that the trees were infected with phytophthora. In January 2007 he "collected root samples to send into the lab for testing for the presence of phytophthora." The samples were taken "from all different parts of the orchards." He "saw symptoms of phytophthora on the roots as [he] collected them, but [he] wanted to confirm that by a lab test . . . ." The lab test showed that nine out of ten samples were positive for phytophthora.
As to trees that had split limbs or were split down the middle, Dr. Whaley explained how the flood had also caused this damage. The trees were laden with fruit because the flooding had prevented respondents from harvesting the fruit. These overloaded "trees were sitting in totally saturated soil for a long period of time, and all it took was a little bit of wind to move that tree a little bit and something is going to break. And sometimes it was branches on the side, sometimes it was a center split."
Dr. Whaley testified: "When youre dealing with a disease . . . like the phytophthora root rot, you honestly dont know how many of those trees are going to die. There is nobody except God knows how many are going to die." But this testimony did not constitute an admission by Dr. Whaley "that his alternate scenarios estimating future lost profits were speculative . . . ." Based on his experience, Dr. Whaley opined "with reasonable certainty" that 50 percent of the trees in the orchards would die. In any event, the jury did not accept the 50 percent scenario (scenario 2), which would have resulted in a tree replacement cost of $172,324.41. (9AA 1602) It accepted the least costly scenario (scenario 1), resulting in a tree replacement cost of $59,392.22.
As to the trees "that were sick for various reasons, either split or leaning or not doing well, but not dead," Dr. Whaley "assumed . . . that there would be a 50 percent crop loss" in 2006 and 2007. He testified: ". . . Ill be the first to admit you cant get that exact, but those trees are not normal, theres something wrong with them. So I thought it was appropriate to just assume a 50 percent crop loss."
In view of Dr. Whaleys expertise and the poor condition of these damaged trees, we cannot say that he engaged in speculation by using the 50 percent figure to calculate the crop loss. The 50 percent figure applied to 501 trees. Even if Dr. Whaley had individually examined every tree, he would not have been able to ascertain the actual crop loss with any degree of certainty. "`Where the fact of damages is certain, the amount of damages need not be calculated with absolute certainty. [Citations.] The law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation. [Citation.] [Citation.]" (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1585.)
III
Inconsistent Special Verdicts
Appellants contend that the special jury verdicts are inconsistent because they awarded different damages on the trespass and nuisance claims. Appellants assert that, because both claims "were based on exactly the same set of facts," the jury should have awarded the same amount of damages on both claims. On the trespass claim, the jury awarded $24,368.96 for lost crop profits, $59,392.22 for tree replacement, and $48,287.89 for other increased costs. On the nuisance claim, the jury awarded no damages for lost crop profits and tree replacement and $39,787.89 for other increased costs.
Respondents maintain that appellants waived this issue because they failed to request correction or clarification of the verdict before the jury was discharged. (RB 44) "This is not the law in California. Pursuant to Code of Civil Procedure section 619, no objection was required to preserve the issue for review. [Citations.]" (Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1182; accord, Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 522, fn. 11.)
"[A] jurys special verdict findings must be internally consistent and logical. . . . [¶] `Inconsistent verdicts are "`against the law" and are grounds for a new trial. [Citations.] `The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence. . . . An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings. [Citation.]" (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 681-682.)
"[A] special verdicts correctness is analyzed as a matter of law and therefore subject to de novo review. [Citation.] [¶] . . . A court reviewing a special verdict does not infer findings in favor of the prevailing party [citation], and there is no presumption in favor of upholding a special verdict when the inconsistency is between two questions in a special verdict. [Citation.]" (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092, fn. omitted.)
The damages awards are not inconsistent. The least costly scenario (scenario 1) presented by Dr. Whaley showed a crop loss of $24,368.96 and a tree replacement cost of $59,392.22. As to the trespass claim, the jury awarded damages in exactly these amounts. As to the nuisance claim, we conclude that the jury awarded no damages for these items to avoid a double recovery. (See OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 882 ["we conclude the [jurys] award of `$0 in damages regarding the section 25500 claim represents a confused attempt to prevent a double recovery, rather than a finding that [plaintiffs] did not suffer damages"].)
As to the damages award of $39,787.89 for other increased costs on the nuisance claim, Deann testified that respondents had already incurred costs in exactly this amount. The award of $48,287.89 for increased costs on the trespass claim must have been the jurys estimate of respondents not yet incurred, future increased costs. Appellants argue that the award of $48,287.89 could not have been for future increased costs because Deann estimated that such costs would amount to only $20,116.20. But the jury was not bound by Deanns estimate.
Deanns actual estimate was $55,116.20: $20,116.20 plus $35,000 for an additional item. The trial court instructed the jury to disregard the $35,000 figure.
IV
Double Recovery
Appellants contend that respondents received a double recovery because the jury awarded damages of $39,787.89 for increased costs on the nuisance claim and $48,287.89 for increased costs on the trespass claim. As explained in part III above, the $39,787.89 was for increased costs already incurred while the $48,287.89 was for future increased costs. Accordingly, there was no double recovery. Indeed, the jurys award of no damages for lost crop profits and tree replacement on the nuisance claim shows that it was determined to prevent a double recovery.
V
Mitigation of Damages
Appellants argue that, as a matter of law, respondents failed to mitigate damages. "[T]he question whether an injured party acted reasonably to mitigate damages is a matter to be determined by the trier of fact and . . . the scope of review on appeal is circumscribed by the `any substantial evidence rule. [Citations.]" (Green v. Smith (1968) 261 Cal.App.2d 392, 397.) "The reasonableness of the efforts of the injured party must be judged in the light of the situation confronting him at the time the loss was threatened and not by the judgment of hindsight. [Citations.] . . . It is sufficient if he acts reasonably and with due diligence, in good faith. [Citations.]" ( Id ., at pp. 396-397.)
Substantial evidence supports the jurys implied finding that respondents acted reasonably to mitigate damages. After the flood, respondents "tried to straighten up some" of the trees. But they "didnt get very far because it was just too muddy and too hazardous to be in there." The "silt" was "very slippery" and "really slimy." Respondents were unable to move any equipment into the lower orchard because "[i]t was way too wet." When conditions in the orchards improved, respondents tried to upright the trees that were leaning. Deann consulted a farm advisor about what measures should be taken to mitigate tree infections caused by the flooding. Pursuant to the farm advisors recommendation, in June 2005 respondents started applying Phosguard to ward off phytophthora.
Appellants fault respondents for "fail[ing] to replace infected trees so that they would not harm additional trees." But the jury could have reasonably concluded that, by following the farm advisors recommendation to apply Phosguard, respondents took reasonable steps to combat the spread of the infection. In any event, appellants have not referred us to evidence in the record showing that the replacement of infected trees would in fact have mitigated respondents damages.
Disposition
The judgment and order awarding attorneys fees to respondents are affirmed. Respondents shall recover their costs on appeal.
We concur:
GILBERT, P.J.
COFFEE, J.