Opinion
NOT TO BE PUBLISHED
APPEAL from the denial of a motion for judgment notwithstanding the verdict, Superior Court of San Diego County No. 37-2007-00054359- CU-BC-NC, Thomas P. Nugent, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury found, in July 2006, Valley Crest Tree Company (Valley Crest) negligently entered and attempted to remove trees from property owned by Milenko Lukic, Zeljko Jovanic, and their wives. The jury also found, however, Valley Crest had permission to enter the property, which precluded Valley Crest's liability for trespass.
The Jovanic Family Trust holds the Jovanics' interest in the property.
The Lukics moved for judgment notwithstanding the verdict (JNOV), contending in part there was insufficient evidence to support the jury's finding Valley Crest had permission to enter the property in July 2006. Although the trial court formally denied the motion, the parties agree the motion was denied by operation of law before the trial court ruled on it. (Code Civ. Proc., § 629.)
The Lukics appeal the denial of the motion, contending as they did below there is insufficient evidence to support the jury's finding Valley Crest had permission to enter the property in July 2006. We conclude there is indeed sufficient evidence to support this finding and affirm the denial of the motion.
The Lukics originally appealed both from the trial court's judgment and from the denial of the motion for JNOV. (§ 904.1, subd. (a)(1), (4).) After the Lukics filed their opening brief, Valley Crest moved to dismiss the Lukics' appeal from the trial court's judgment as untimely. The Lukics agreed their appeal from the trial court's judgment was untimely and requested an opportunity to file an amended brief addressing only issues related to their appeal from the denial of the motion for JNOV. We granted their request.
The trial court proceedings involved a first amended complaint and two cross-complaints, each with multiple causes of action. The trial on these matters took place over many days. We limit our summary to evidence related to the narrow issue raised on appeal.
The Lukics and Jovanics' property includes a riparian habitat, consisting of a streambed with approximately 200 coast live oak trees in and alongside it. Removing coast live oak trees from the property requires a permit from the County of San Diego (County). Both Lukic and Jovanic knew of the permit requirement.
The streambed does not always have water running through it and apparently did not have water running through it during the periods relevant to this appeal.
Valley Crest's business activities include buying and selling specimen trees, which are large trees not commonly grown in a nursery. In early 2004, Erick Serrano, a tree procurer for Valley Crest's specimen tree division, left a note on the gate to the property indicating Valley Crest was interested in purchasing some of the coast live oak trees on the property. Jovanic responded to the note.
In March 2004, Jovanic and Serrano met on the property to discuss the sale. Jovanic testified he told Serrano that Lukic would need to agree to the sale and Valley Crest would need to obtain all proper permits.
The same day, Jovanic and Serrano discussed the sale with Lukic, who orally agreed to it. Lukic testified he asked Serrano during their discussion whether Valley Crest needed a permit to remove the trees. Serrano purportedly told him Valley Crest did not need a permit because the property had agricultural zoning and anything grown on the property could be removed and sold. Jovanic and Lukic did not accept Serrano's answer and told him to make sure Valley Crest obtained a permit and stayed out of the streambed. Serrano purportedly told them he would verify whether Valley Crest needed a permit and, if so, he would make every effort to obtain one because he needed the trees.
Serrano denied ever discussing the need for a permit or related issues during his meeting with Lukic and Jovanic. He also denied ever agreeing Valley Crest would obtain a permit. Jovanic similarly testified at his deposition neither he nor Lukic ever discussed with Serrano whether Valley Crest needed a permit to remove the oak trees. Instead, Jovanic testified he and Lukic trusted Valley Crest would do whatever was necessary because Valley Crest was in the tree removal business.
Some time after meeting with Jovanic and Lukic and before April 2004, Serrano tagged the trees Valley Crest wanted to purchase. He reviewed the list of tagged trees with Jovanic and gave Jovanic an opportunity to take any of the trees off the list. Jovanic never objected to or disagreed with any of the trees tagged for removal, including those in the streambed.
In April 2004, without Lukic's knowledge, Jovanic entered into a written tree removal agreement with Valley Crest. Valley Crest had no specific buyer for the trees and intended to keep the trees in its holding nursery until it found a buyer for them. After Jovanic entered the agreement, he repeatedly contacted Valley Crest asking when Valley Crest intended to begin removing the trees. Jovanic also repeatedly told Valley Crest employees he had the necessary permits to remove the trees; however, he refused to produce the permits.
In May 2005, also without Lukic's knowledge, Jovanic entered into a second tree removal agreement with Valley Crest. The second agreement indicated the tree removal would begin in July 2005 and included a new provision stating Jovanic represented he had all necessary permits for removing the trees and would be fully responsible for any costs of improper permitting. Serrano, Valley Crest's specimen tree manager Max Anguiano, and Valley Crest's vice president and specimen division branch manager Tadd Russikoff added the new provision because Jovanic kept refusing to produce the permits. Both Anguiano and Serrano spoke to Jovanic about the new provision before Jovanic signed the second agreement. No one at Valley Crest pressured Jovanic to sign the agreement.
Jovanic denied repeatedly calling Valley Crest to urge it to begin removing the trees. He also denied telling Serrano or anyone else at Valley Crest he had a permit or was trying to obtain a permit, or would accept responsibility for obtaining a permit. Instead, Jovanic testified Valley Crest employees repeatedly called him asking when Valley Crest could start working and he repeatedly told them Valley Crest could start working as soon as it had a permit to do so.
Moreover, Jovanic testified that when Serrano faxed the second agreement to him, Serrano insisted he sign it and fax it back immediately. Serrano told him the second agreement was identical to the first, which had been lost. Serrano did not tell him about the new provision or why Valley Crest added it to the agreement. Jovanic testified he verified the sales prices specified in the two agreements were the same, but otherwise did not read the second agreement.
Consistent with the terms of the second agreement, in July 2005, Valley Crest entered the property and began digging up and boxing trees for removal. Lukic was on an annual, extended, out-of-state trip at the time and did not know about Valley Crest's work. Jovanic knew about the work, however, as he had observed Valley Crest employees on the property.
According to Valley Crest, a neighbor informed Valley Crest that Jovanic did not have a permit for the tree removal. The neighbor also reported the work to the County. After hearing from the neighbor, Anguiano contacted the County and the County told him Valley Crest could not remove the trees until Jovanic addressed some matters with the County. Valley Crest then stopped its work. Meanwhile, the County first warned, then cited Lukic and Jovanic and formally ordered the tree removal to stop until Lukic and Jovanic obtained a permit.
After Valley Crest stopped work, Serrano contacted Jovanic and asked again to see the permit. Jovanic told him Lukic had the permit. Serrano contacted Lukic, who told him Jovanic had the permit. Serrano contacted Jovanic again, who told him a consultant had the permit. Serrano went to the consultant's office, who said he did not have the permit. Jovanic subsequently told Valley Crest employees the County had told him no permit was necessary and had made a mistake.
According to Jovanic, when he received the citation from the County, he contacted the County and learned Valley Crest was working without a permit. He phoned Anguiano and asked him why Valley Crest had started removing trees without a permit. Anguiano purportedly told Jovanic he was certain Valley Crest had the authority and a permit to work on the property.
According to Lukic, after he returned from his trip, Jovanic showed him the written agreements for the first time. When Lukic noticed the difference between the two agreements, he became angry and asked Jovanic why he had signed it. He also asked Jovanic why he did not get a permit. Jovanic told Lukic someone at the County informed him he did not need a permit.
The County denied ever informing Jovanic he did not need a permit to remove trees from the property. At trial, Jovanic clarified a County employee told him she did not think a permit would be required if the trees removed were more than 50 feet away from the edge of the streambed, but she was not sure. He acknowledged he did not inform the County employee the trees were coast live oak trees, even though he knew the County treated the removal of coast live oak trees different from other trees.
Lukic and Jovanic hired consultants to help resolve the citation and obtain a permit for Valley Crest to remove the trees. In the interim, Valley Crest employees regularly entered the property and hand watered the boxed trees to keep them alive. Valley Crest employees also periodically followed up with Jovanic and the County regarding the status of the permit. At times, Jovanic told Valley Crest the County made a mistake, no permit was necessary, and he was working on clearing the matter up. At other times, Jovanic told Valley Crest, he just needed to pull a permit and Valley Crest could remove the majority of the trees it wanted to purchase. The County and Jovanic's consultants told Valley Crest the same thing.
In May 2006, Valley Crest's president Robert Crudup, Russikoff, and Anguiano met with Lukic on the property to inquire about the status of the permit. Lukic told them he did not know anything about the permit as Jovanic and Jovanic's attorney were handling the matter. When Valley Crest subsequently called Jovanic inquiring about the status of the permit, Jovanic referred them to his attorney and consultants. Jovanic testified that whenever a Valley Crest employee called inquiring about the status of the permit, he referred them to his attorney, told them he and Lukic were working on securing a permit, and indicated Valley Crest would be welcome back when he and Lukic had the permit.
In July 2006, while Lukic was again on his annual, extended, out-of-state trip, Valley Crest employees entered the property and started loading up boxed trees for transport. By then, Valley Crest had approximately $75,000 invested in the project, which Crudup testified was not an unusual amount for the size of the project. Russikoff testified that before resuming the tree removal work, either he or Anguiano received a phone call from Jovanic indicating Jovanic had the permit. Russikoff then authorized the work to resume. Although Valley Crest had been deceived by Jovanic in the past, Russikoff did not independently verify the existence of the permit because Valley Crest had been told numerous times by Jovanic and the County that the County was "real close" to issuing a permit.
Russikoff could not remember which of them received the phone call. Anguiano testified he stopped following up on the matter after May 2006 when either Crudup, Russikoff, or Valley Crest's chief executive officer Stuart Sperber took over handling it. Anguiano learned Valley Crest was resuming work on the property from Russikoff.
Russikoff could not remember whether he spoke with Crudup or Sperber before authorizing the work to resume; however, Crudup testified Russikoff could not have authorized the work to resume on his own. Either Crudup or Sperber, who oversaw the specimen division, would have had to concur. In addition, Russikoff told Anguiano someone had ordered him to resume the work, although he did not say who. Since Crudup did not order the work to resume, Crudup believed Sperber must have. Crudup also believed Sperber would have cleared Valley Crest's return with Jovanic because Sperber and Jovanic had a number of conversations, and Valley Crest's custom and practice was never to enter a property without the property owner's consent under any circumstances. Further, Crudup, who had known Sperber for over 30 years, testified it was not Sperber's style to say, "the heck with it, send your troops in, go get the trees."
Crudup could not ask Sperber and Sperber could not testify about his contacts with Jovanic because Sperber died shortly after the Lukics filed their lawsuit against Valley Crest.
When the County learned Valley Crest had resumed work on the property, two County employees went to the property and the County once again ordered the work to stop. A Valley Crest employee told the County employees a permit to remove the trees had been issued. Nonetheless, Valley Crest complied with the stop work order and returned the trees it had been loading back to their original locations.
Valley Crest's operations manager Brett Richardson was on the property the day the County issued the second stop work order. He testified when Jovanic learned about the order, Jovanic was upset with the County. Jovanic told Richardson he had a permit and invited Richardson to go to his house with him to find it. Richardson followed Jovanic to his house, but Jovanic never provided Richardson with the permit. Jovanic never asked Richardson why Valley Crest employees were on the property that day and never told Richardson Valley Crest employees should not have been there.
Jovanic testified he did not remember ever talking to Russikoff and denied giving anyone at Valley Crest permission to return to the property and remove the trees. Jovanic also denied ever stating he had a permit or taking anyone from Valley Crest to his home. Instead, he testified he first learned Valley Crest employees had returned to the property when Lukic's wife called him and told him they were there. He then went to the property, approached Richardson, and asked him who gave Valley Crest permission to be on the property. Richardson told Jovanic his company had sent him. Jovanic told him he had no authority to be on the property as a permit had not been issued yet.
The Lukics live on adjacent property.
Lukic learned about the second violation at a meeting in August 2006 with County officials, which Jovanic and Crudup also attended. During the meeting, Lukic never asked Jovanic or Crudup why Valley Crest went onto the property and tried to remove the trees. After the meeting, Lukic spoke with Jovanic and Jovanic told him he did not know Valley Crest was going to try again to remove the trees. Lukic later confronted Serrano and asked him why Valley Crest tried a second time to remove the trees without a permit. Serrano said Jovanic told Valley Crest no permits were needed. Serrano also told Lukic he had orders to remove the trees.
After the second stop work order, Valley Crest employees continued entering the property and hand watering the boxed trees until Valley Crest learned the County was not going to allow any of the trees to be removed. Valley Crest subsequently replanted the boxed trees and installed an irrigation system for them.
DISCUSSION
" 'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.] [¶]... As in the trial court, the standard of review [on appeal] is whether any substantial evidence – contradicted or uncontradicted – supports the jury's conclusion.' [Citation.]" (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.)
Here, the evidence viewed in the light most favorable to the jury's verdict shows that after Valley Crest's first attempt to remove the trees, Jovanic and Lukic hired consultants to help resolve the citation and obtain a permit from the County to allow Valley Crest to resume working. Jovanic, his consultants, and the County repeatedly told Valley Crest employees Jovanic was working on obtaining a permit and Valley Crest should be able to remove most of the trees it wanted to purchase. Consistent with these representations, Valley Crest employees continually hand watered the trees to keep them alive while it waited for permission to resume work.
In addition, the jury could reasonably infer from Crudup's, Russikoff's, and Anguiano's testimony that sometime after May 2006 and before Valley Crest's second attempt to remove the trees, Jovanic contacted Russikoff, told Russikoff he had a permit to remove the trees, and consented to Valley Crest resuming work. After clearing Valley Crest's return to the property with Sperber, who also may have spoken with Jovanic, Russikoff authorized and arranged for the work to resume.
These inferences are supported by Crudup's testimony that neither Sperber nor Valley Crest had a custom and practice of entering property without the property owner's consent. These inferences are also supported by Richardson's testimony describing Jovanic's demeanor, remarks, and actions after learning the County had stopped Valley Crest's work a second time. Instead of confronting Richardson about Valley Crest's presence on the property, Jovanic expressed anger at the County's actions, insisted he had a permit, and invited Richardson to his home to view it. Accordingly, we conclude there is substantial evidence to support the jury's finding Valley Crest had permission to enter the property in July 2006.
DISPOSITION
The denial of Appellants' motion for JNOV is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: BENKE, J., IRION, J.