Opinion
B224036
09-14-2011
DAN NORRIS et al., Plaintiffs and Appellants, v. MARTHA WITTER et al., Defendants and Respondents.
Kassouni Law and Timothy V. Kassouni for Plaintiffs and Appellants. Law Offices of David E. Weeks, David E. Weeks; Esner, Chang & Boyer, Stuart B. Esner and Holly N. Boyer for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS111009)
APPEAL from a judgment of the Superior Court of Los Angeles County. Luis A. Lavin, Judge. Affirmed.
Kassouni Law and Timothy V. Kassouni for Plaintiffs and Appellants.
Law Offices of David E. Weeks, David E. Weeks; Esner, Chang & Boyer, Stuart B. Esner and Holly N. Boyer for Defendants and Respondents.
Plaintiffs appeal a judgment on a jury verdict in favor of defendants Martha Witter (Witter) and John Simons (Simons) in their action for damages arising from trespass. The California Coastal Commission (Commission), after a hearing, found plaintiffs Dan Norris (Norris) and Peggy Gilder (Gilder) in violation of the California Coastal Act of 1976 (Coastal Act) (Pub. Resources Code, § 30000 et seq.) for failing to obtain a permit for land clearing and driveway work on plaintiffs' undeveloped property in the Santa Monica Mountains, and recorded a Notice of Violation against plaintiffs' property. Plaintiffs filed an action against the Commission, two of its employees, and respondents herein, Witter and Simons, seeking declaratory and injunctive relief, and damages for inverse condemnation, trespass, and violation of civil rights. In a related appeal, we previously affirmed judgment in favor of the Coastal Commission and its two employees.
Norris v. California Coastal Commission (May 11, 2011, No. B220464) [nonpub. opn.].)
This appeal concerns plaintiffs' trespass claims against Witter and Simons, who had entered upon plaintiffs' property without plaintiffs' knowledge or permission after hearing bulldozers. Plaintiffs contend the trial court erroneously instructed the jury on the defense of necessity by omitting key provisions of the defense as set forth in the Restatement Second, Torts section 197 that (1) the privilege does not apply if the person entering the property of another knows that the landowner would be unwilling he or she takes such action; (2) the entry must benefit the landowner; and (3) the entry must be made in order to prevent damage to the landowner, the land of the person asserting the privilege, or a third party. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Norris and Gilder are married and between them have eight children from prior marriages. They purchased property located in the Santa Monica Mountains near Topanga Canyon in April 2005 for the purpose of constructing a playground for their children (Property). Witter and Simons live across the canyon from plaintiffs. The Property lies on one slope of the canyon, and Witter and Simons' property is on the other slope. Old Topanga Road runs at the bottom of the canyon. Defendants have a good view of plaintiffs' property from their own property.
The Property consists of undeveloped land containing extensive oak woodland, chaparral, sycamores, and willows. This type of habitat is rare and exists in large contiguous blocks in the Santa Monica Mountains. The Property is located in an area that requires a permit from the Commission before any work may be done on the Property. Norris was aware the Property was located in an area protected by the Coastal Commission, but was not aware the property was in an Environmentally Sensitive Habitat Area (ESHA).
Under the California Coastal Act of 1976 (Coastal Act) (Pub. Res. Code § 30000 et seq.), the Commission is required to protect the coastal zone's delicately balanced ecosystem. (§ 30001, subds. (a)-(c); § 30001.5, subd. (a); City of San Diego v. California Coastal Com. (1981) 119 Cal.App.3d 228, 233, 235.) A coastal development permit is required for development within the coastal zone. (Pub. Resources Code, § 30600, subd. (a).)
The Coastal Act defines an ESHA as "any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments." (Pub. Res. Code § 30107.5.)
A locked gate is located at the entrance to the driveway on the property on Old Topanga Road. A "no trespassing" sign was affixed to the gate. Shortly after escrow closed, Norris, Gilder and their children began to clear the driveway on the Property of debris, including boulders and foliage. To that end, they purchased some heavy machinery, and they also used chain saws and weed wackers to clear brush. Plaintiffs did not obtain a permit for any of the work done.
Approximately one week to 10 days before Memorial Day weekend 2005, Witter and Simons heard heavy machinery, chainsaws, and blades hitting rock emanating from the Property. Witter has a master's degree in forestry and a PhD in botany, and works for the National Park Service office in Thousand Oaks, a position she held at the time of her 2005 entry onto plaintiffs' property. Witter and Simon, who knew of the Commission's permit requirements for the area, were concerned about damage to the land and vegetation and harm to the environment resulting from plaintiffs' activities on the Property. They heard "a lot of equipment" that "went on for a long time" near an area where there were oak trees. Witter and Simon knew that if plaintiffs had obtained a permit for the work, pursuant to the Commission's practices, neighboring property owners would have received notice of the permitted work.
On May 30, 2005, Witter and Simons made their first visit to the Property to ascertain the extent of plaintiffs' activities. Witter observed compaction from heavy equipment under oak trees, grading under an uphill slope under trees, and loose soil dumped over the slope. Witter and Simons believed serious damage was being done to the Property because the grading was damaging oak trees. Witter called the Calabasas Building and Safety Department and although she was told someone would look into it, she did not hear from them. At the time, Witter was not acting on behalf of any governmental entity, and did not believe the owner of the Property would object to her entry.
Witter and Simons continued to hear heavy machinery in operation on the Property for up to eight hours a day. They believed additional damage was being done to the Property. On June 5, 2005, Witter and Simons made their second visit to the Property, and took a camera. Simon saw a 12-inch limb cut from a tree, and brush being dumped around the Property creating a fire hazard. They saw extensive widening work being done on the driveway, including cutting the uphill slope and dumping of soil on the downhill slope. Machinery, which was completely off the road, had been used to grade through a pristine area that included native sage plants. Based upon what they heard, Witter and Simons believed illegal activity was taking place on the property.
Witter and Simons took photographs of the property showing the presence of heavy equipment, a large land clearing, and cutting of large tree branches. Defendants also took photographs of the Property from their deck. At the time, they did not forward the photographs to the Coastal Commission or anyone else. Witter and Simons were concerned about damage being done to the hillside, and that such grading could create "a great deal of damage in terms of the destruction to the earth which flows down into the stream." They were also concerned about damage to neighboring properties, including the creation of a fire hazard from the cut brush being dumped.
Witter and Simons had been on the Property before for recreational hiking. They did not see plaintiffs' "No Trespassing" sign, and used a path around the gate that had been there for years to gain access to the Property.
The next day, Witter sent an email to the Coastal Commission and the Los Angeles County Department of Forestry. About a week later, she took some pictures of the Property. Witter did not, on any occasion, ask permission from plaintiffs to enter the Property. However, they would not have entered the property if they believed plaintiffs had obtained a permit for the work they were doing.
On June 8, 2005, Patrick Veesart of the Coastal Commission visited the Property. He did not see any "no trespassing" signs at the gate. He entered the property through gaps on either side of the gate, and observed a "fairly well-worn trail that indicated that probably people in the neighborhood had been walking up there." He went about 100 to 150 yards onto the property and could see that the driveway had been recently used. Subsequent to the site visit he received photographs and other materials from Witter showing a piece of equipment operating on the property, and that a bank had been cut and an oak tree had been cut. To Veesart, this was "strong evidence that unpermitted development had been occurring on the property but we didn't know to what extent, but enough evidence to send a notice of violation letter." Veesart conducted a records search and determined no permit had been issued for the work on the Property.
On July 15, 2005, Norris received a Notice of Violation from the Coastal Commission. After they received the Notice of Violation, Norris and Gilder removed the heavy equipment from the Property.
Subsequently, on October 19, 2005, the Coastal Commission and its employees Patrick Veesart and Tom Sinclair, along with two Sheriff's Deputies and a Deputy Attorney General, conducted an investigation pursuant to a civil inspection warrant. The inspection did not take place because plaintiffs refused to permit the inspection unless it was filmed.
As a result of the Coastal Commission's investigation, the Coastal Commission ordered plaintiffs to stop all work on the property and recorded a Notice of Violation on the Property.
Plaintiffs filed a petition for writ of mandate, stating claims against the Coastal Commission and its employees Patrick Veesart and Tom Sinclair, as well as Witter and Simon. The trial court denied plaintiffs' petition for writ of mandate seeking to overturn the Commission's findings, and granted summary judgment in favor of the Commission on plaintiffs' other claims for inverse condemnation, trespass to land, violation of civil rights (42 U.S.C. § 1983). In a separate appeal relating to the Commission and its employees only, we rejected plaintiffs' challenges to the trial court's ruling admitting evidence that plaintiffs contend was obtained in violation of their Fourth Amendment rights, found substantial evidence supported the Commission's finding of a violation of a Coastal Act, and concluded the trial court did not err in finding that one of the Commission's employees enjoyed qualified immunity. (Norris v. California Coastal Commission (May 11, 2011, No. B220464) [nonpub. opn.].)
Plaintiffs' petition for writ of mandate also stated claims against Witter and Simons for trespass and against Witter for violation of civil rights. Prior to trial, the civil rights claim was dismissed.
2. Motion in Limine, Trial.
Plaintiffs moved in limine to exclude evidence of defendants' affirmative defense of necessity. Plaintiffs argued that the defense did not apply because the trespass was neither necessary nor apparently reasonably necessary to prevent a crime or other exigent circumstance, and defendants had no reasonable basis for believing that plaintiffs would have willingly allowed the trespass. In particular, plaintiffs contended no crime was occurring because they were doing necessary tree pruning, and private citizens were not exempt from the civil inspection warrant requirement.
Defendants argued in opposition that the defense applied because of the harm being done to vegetation protected by the Coastal Act, and their trespass was necessary to investigate and inform the Coastal Commission of the extent of plaintiffs' activities. Further, they argued that plaintiffs cited no authority for their assertion the defense was limited to crimes, and failed to show defendants were acting on behalf of a governmental entity such that the civil inspection warrant requirement applied to them.
Prior to trial, the court stated it would instruct the jury with CACI No. 2005 on the affirmative defense of necessity as follows: "Defendants Marti Witter and John Simons claim that they are not responsible for Plaintiffs' harm, if any, because the entry on the property owned by Wildcrew's Playground, LLC was lawful. To succeed, Defendants Witter and Simon must prove that it was necessary, or reasonably appeared to them to be necessary, to enter the land to prevent serious harm to a person or property."
CACI No. 2005 provides, "[Name of defendant] claims that [he/she/it] is not responsible for [name of plaintiff]'s harm, if any, because the entry on to [name of plaintiff]'s property was lawful. To succeed, [name of defendant] must prove that it was necessary, or reasonably appeared to [him/her/it] to be necessary, to enter the land to prevent serious harm to a person or property."
Plaintiffs argued the instruction was deficient because the Restatement Second of Torts had two sections, the second of which was not reflected in the instruction to be given. In addition to the provisions of CACI 2005, section 197 of the Restatement Second, Torts required the defendant to show that the actor knows or has reason to know the property owner would be unwilling to allow entry onto the property. Plaintiffs requested that the court give the CACI No. 2005 instruction as modified to include the full Restatement Second of Torts definition. In response, defendants argued that the instruction was proper because Witter and Simons did not know who the property owners were, and it reasonably appeared to them necessary to go onto the property to determine what was occurring.
The court held there was sufficient evidence of necessity to support the instruction, stating that there had been extensive testimony by the defendants that they thought there was ongoing harm to the property and that plaintiffs' conduct could affect neighboring landowners. The court instructed the jury with CACI No. 2005 without the modifications plaintiffs requested.
The jury found that plaintiffs owned and occupied the property and that defendants' entry was intentional or negligent and without consent, but that such entry was necessary, or reasonably appeared to be necessary to prevent serious harm to person or property.
DISCUSSION
Plaintiffs contend the trial court erred in giving the necessity defense instruction that truncated the Restatement Second of Torts section 197 definition, and omitted vital exceptions to the necessity defense. First, they contend that the Restatement contained three crucial prerequisites to the application of the defense omitted from the version of CACI 2005 given: (1) entry must be made to prevent harm to the land of the actor (in this case Witter and Simons) or the party in possession (in this case plaintiffs), or a third party; (2) entry must benefit the party in possession; and (3) the privilege of entry is negated if the actor knows or has reason to know that the possessor is unwilling that person entering the land take such action. (People v. Ray (1999) 21 Cal.4th 464 (Ray).) Further, plaintiffs argue the jury should not have been instructed on the defense because Ray and its predecessors are distinguishable in that they all involved criminal cases in which evidence was obtained by the police pursuant to warrantless searches; furthermore, emergency conditions were a prerequisites to the application of the necessity defense.
The Restatement Second of Torts, section 197, provides in relevant part: "(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to [¶] (a) the actor, or his land or chattels, or [¶] (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action." (Rest.2d Torts, § 197.)
Defendants contend that pursuant to the language of the Restatement, the exceptions plaintiffs rely on apply only where the actor takes steps to prevent harm to the land of another, while here they were attempting to protect their own land and the land of third persons from harm, and the Coastal Act evidences a strong public interest in protecting the coastal land of the state from harm. Further, they assert that plaintiffs' unwillingness to permit entry onto their land was not expressly made known to third persons such that Witter and Simon had reason to know plaintiffs did not want them on their land. Finally, they argue that the necessity defense does not require emergency circumstances, but only that it appear to be necessary, or reasonably necessary, to prevent serious harm to a person or property. We conclude that Ray does not compel as a matter of law that CACI 2005 be given with the Restatement language, and that on the facts of this case, the instruction as given was appropriate.
I. STANDARD OF REVIEW.
The trial court "must instruct in specific terms that relate the party's theory to the particular case." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Civil instructional error is prejudicial when it seems probable that the error prejudicially affected the verdict in light of its impact on a party's ability to place its case before the jury. Therefore, in determining whether an instructional error was prejudicial, the reviewing court must evaluate "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Id. at pp. 580-581.) We review challenges to the propriety of jury instructions de novo. (Miller v. Weitzen (2005) 133 Cal.App.4th 732, 736, fn. 3.)
B. Necessity Defense to Trespass Claim.
A trespass to property is an invasion of the owner's interest in its exclusive possession. (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) "As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership." (Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390.) The intent required for trespass is "'simply an intent to be at the place on the land where the trespass allegedly occurred.'" A defendant will be liable for trespass even if he or she "'acted in good faith, under the mistaken belief, however reasonable,'" that he or she has committed no wrong. (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480-1481.)
However, a person who trespasses may assert the defense of necessity. As stated in Ray, supra, 21 Cal.4th 464, "[I]t has long [been] recognized that '[n]ecessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.'" (Id. at p. 473, quoting People v. Roberts (1956) 47 Cal.2d 374, 377.)
CACI No. 2005 provides, "[defendant] must prove that it was necessary, or reasonably appeared to [him/her/it] to be necessary, to enter the land to prevent serious harm to a person or property." The Restatement Second, Torts section 197 additionally provides that "(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to [¶] . . . . (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action." (Rest.2d Torts, § 197, italics added.) CACI No. 2005 notes that Restatement Second, Torts section 197 was approved in Ray.
Plaintiffs contend the trial court erred by failing to instruct the jury on subdivision (1)(b) of Restatement Second, Torts section 197. We disagree. First, section 197, subdivision (1) is in the disjunctive between subdivision (1)(a) and subdivision (1)(b), providing the privilege can be found in either of the two different situations set forth in subdivision (1)(a) or subdivision (1)(b). As a result, we do not read section 197 to require the giving of subdivision (1)(b) in every instance. Thus, the jury was properly instructed solely with section 197, subdivision (1)(a). Second, nothing in Ray mandates or even suggests that the second part of the Restatement definition—which incorporates a form of implied consent if the trespass is to benefit a party other than the actor—is required when the defense of necessity to a charge of trespass is raised.
In Ray, supra, the Supreme Court addressed the "community caretaking" exception to the warrant requirement of the Fourth Amendment. (Ray, supra, 21 Cal.4th at p. 471.) Ray noted that the "emergency aid" doctrine was a "subcategory of the community caretaking exception," and that the community caretaking function was unrelated to the criminal investigation duties of police. (Id. at p. 471.) The "community caretaking" exception to the Fourth Amendment derived from the fact that contemporary society was impersonal, and "'tasks that neighbors, friends or relatives may have performed in the past now fall to police.' [Citation.] Local police 'should and do regularly respond to requests of friends and relatives and others for assistance when people are concerned about the health, safety or welfare of their friend, loved ones, and others.'" (Id. at p. 472.)
The Ray court, citing People v. Roberts, supra, 47 Cal.2d 374, 377, found that although the Supreme Court had not "articulated these principles" in terms of the community caretaking function, it had long recognized that "'necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.'" (Ray, supra, 21 Cal.4th at p. 473.) The Supreme Court observed that when it decided People v. Roberts, it relied on, among other authorities, the Restatement of Torts, which "provides that '[o]ne is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to [¶] . . . [¶] (b) the other or a third person, or the land or chattels of either . . . .' (Rest.2d Torts, § 197; People v. Roberts, supra, 47 Cal.2d at pp. 377-378; [citations].) It would be anomalous to deny a police officer charged with protecting the citizenry a privilege accorded every other individual who intercedes to aid another or to protect another's property. [Citation.]" (Ray, supra, 21 Cal. 4th at p. 474.)
In Ray, police officers responded to a report by a neighbor that the door to a house had been open all day, the inside was "'a shambles,'" and no one was home. The officers went to the open front door, saw that the house looked ransacked consistent with a completed or ongoing burglary, knocked several times and loudly announced their presence, received no response, and, seeking "'to see if anyone inside might be injured, disabled, or unable to obtain help' and to determine whether a burglary had been committed or was in progress," entered the house, where they found no one inside but large quantities of contraband. (Ray, supra, 21 Cal.4th at p. 468.)
Applying the exception to the case before it, the Ray court noted that the appropriate standard was one of reasonableness: "Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions?" (Ray, supra, 21 Cal.App.4th at pp. 476-477.) Ray further noted "two aspects critical to maintaining the essential constitutional balance." First, the privilege to enter did not justify a search of the premises for other purposes, and second, courts must guard against subterfuge, namely, "false reliance on the . . . property protection rationale when the real purpose is to seek out evidence of crime." (Id. at p. 477.) As result, the Ray court found officers acted reasonably in entering the open door and their conduct fell within the community caretaking exception. (Id. at p. 479.)
As a result, we do not read Ray to imply as a matter of law that the subdivision (1)(b) of Restatement Second, Torts section 197 must be given in every civil case of trespass where the necessity defense is asserted. First, Ray does not even reference subdivision (1)(b) of section 197, nor does it discuss or address the implied consent rationale embodied in it. Rather, Ray focused solely on the underlying rationale of the privilege. Second, as plaintiffs recognize, Ray addressed an exception to the Fourth Amendment's warrant requirement, an issue not facing defendants here because they are private actors, not agents of the state. Third, Ray merely relied on the Restatement as a rationale for applying the community caretaking exception to the conduct of police and concluded in some instances, police are privileged—as are ordinary citizens—to commit a trespass where they reasonable believe life or property is at risk. Although CACI No. 2005 notes that Restatement Second, Torts section 197 was approved in Ray, we do not read Ray's discussion of the Restatement's definition of necessity in the trespass context as a mandate to follow the Restatement explicitly.
Plaintiffs attempt to distinguish Ray because it involved state action, where here their suit is against a private party. This distinction does not alter our analysis. As Ray recognized, the privilege applies in both contexts. (Ray, supra, 21 Cal. 4th at p. 474.)
Finally, even if California law required that the omitted portion of Restatement Second, Torts section 197 be given in every case of trespass where necessity was raised as a defense, any error here was harmless. Section 197, subdivision (1)(b) provides that entry onto the property of another can be made where the entry is made to benefit a third person, which in this case would be the general public based on the state's interest in preserving ESHA areas. Applying section 197, subdivision (1)(b) to the facts in the record, the record indicates the general public interest was a principal motivator in the defendants' actions. Thus, even if the jury had been given the full necessity defense as set forth in section 197, it is not reasonably probable the jury would have found that the privilege did not apply.
Furthermore, based on the facts of this case, the privilege applied and the court properly instructed the jury. Defendants reasonably believed, based upon their knowledge and experience, as well as the sounds they heard coming from plaintiffs' property and the fact they had not received notice of a permit being issued for work on the Property, that plaintiffs were violating the Coastal Act by engaging in the unpermitted destruction of protected coastal lands and vegetation.
The Coastal Act declares at section 30001, in relevant part "(b) . . . the permanent protection of the state's natural and scenic resources is a paramount concern to present and future residents of the state and nation. [¶] (c) . . . to promote the public safety, health, and welfare, and to protect public and private property, wildlife, marine fisheries, and other ocean resources, and the natural environment, it is necessary to protect the ecological balance of the coastal zone and prevent its deterioration and destruction. [¶] (d) . . . existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state and especially to working persons employed within the coastal zone."
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We therefore reject plaintiffs' remaining contentions. As Ray explained, the necessity defense to a trespass action does not require emergency conditions. "Under the community caretaking exception, circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as 'where the police reasonably believe that the premises have recently been or are being burglarized.' [Citation.] . . . Of necessity, officers may enter premises to resolve the situation and take further action if they discover a burglary has occurred or their assistance is otherwise required. [Citations.]" (Ray, supra, 21 Cal.4th at p. 473.)
DISPOSITION
The judgment of the superior court is affirmed. Respondents are to recover their costs on appeal.
JOHNSON, J. We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.