Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CV024568, CV061824
Premo, J.
I. Introduction
Plaintiff and cross-defendant, Rebecca Pestarino and defendants and cross-complainants, Chris L. Carneghi and Sherry Hall are co-owners of 66 acres of real property adjacent to Portola State Park in San Mateo County. Hall and Carneghi claimed that Pestarino committed waste on the property by illegally grading a road, digging up a pasture, and pushing dirt into a seasonal creek. The trial court found that, by the time of trial, the property had recovered from the excessive tractor work, that its market value was not any less than it would have been absent the work, and that Pestarino had paid for all reasonable remediation of the damage. The court also found, however, that the work had disrupted the natural state of this wooded and rural property, thereby diminishing its value to Hall and Carneghi during the time it took to be restored. The court awarded Hall and Carneghi $28,500 each as compensation for that injury. Pestarino appeals. She argues that there is no substantial evidence to support the award. We agree and reverse.
II. Background Facts
Hall and Carneghi are brother and sister. Pestarino is their cousin. The subject property had been in their family since the 1930s. Pestarino, Hall and Carneghi inherited it in 1988. Each holds an undivided one-third interest as a tenant in common. Management of the property is governed by a joint tenancy agreement.
Much of the property is steeply sloped and wooded. In the 1950s, the parties’ grandparents allowed the land to be logged, in the course of which logging roads were built to remove the logs. Once that harvest was complete, the logging roads were no longer maintained and became overgrown with vegetation. In the 1970s or early 1980s, Pestarino’s aunt and uncle acquired the property, built a house and garage and planted a fruit orchard. Today, the house, the garage, and an old barn remain. Some of the trees in the orchard have died. Part of the property is a timber preserve.
Pestarino, Hall and Carneghi used the property primarily for recreation and as a getaway. Pursuant to their written co-tenancy agreement, each party is entitled to exclusive occupancy of the property every third month. Pestarino’s exclusive occupancy months are February, May, August and November. The co-tenancy agreement requires the parties to maintain the residence in a neat and clean condition and to share equally the property-related expenses. Amendments must be in writing signed by all the owners. Although not part of the written agreement, the parties have informally divided among themselves the responsibilities attendant to owning the property. In general, Carneghi handled financial matters, Hall maintained the residence, and Pestarino and her husband took care of the outside work, such as mowing, trail and road maintenance, fence repair, clearing weeds, and building firebreaks.
In or about August 2002, Pestarino and her husband performed some tractor work that is the subject of this dispute. One project was their use of a tractor to clear a pasture (Clearing F) of “greasewood,” a noxious weed that was encroaching upon the pasture. The Pestarinos also used their tractor to clear 1,350 feet of steep old logging road (Road E) and to clear a landslide off another road. The landslide, which had occurred many years prior, obstructed the road at the point where it crossed a seasonal creek (Crossing D). In clearing the landslide, the Pestarinos pushed the earth--50 to 60 yards of it--into the then-dry creek bed.
Carneghi visited the property on September 29, 2002. When he saw the amount of tractor work the Pestarinos had done the month before he was “stunned and flabbergasted.” According to Carneghi, the work was much more extensive than any that had been done in the past. He was “unhappy with the discing” or plowing up of the land, “particularly in the orchard area,” because, in his opinion, it contributed to the death of the trees in the orchard, allowed non-native species to invade the area, and, in general, served no purpose. He was “unhappy with the grading” of Road E, “felt it served no purpose,” and “wanted it stopped.” He was concerned about erosion and runoff and how the dirt in the creek would affect the steelhead trout. He was also concerned about liability. When he telephoned Hall to tell her about what the Pestarinos had done, Hall, too, was “concerned.” She felt the extent of the work was “destructive and upsetting and abusive to the land.”
Carneghi contacted public officials, which led to an inspection by the California Department of Fish and Game and the issuance of a report requiring emergency remediation work to mitigate soil runoff. The report required seeding of Clearing F, installation of water breaks on Road E, construction of a trench at Crossing D, installation of jute netting over the edge of the road, and clearing of more soil at another location. The Pestarinos performed the work as specified during their next month of exclusive occupancy, November 2002.
In addition to intervention by the Department of Fish and Game, the County of San Mateo recorded a grading violation against the property, which related primarily to the grading of Road E. Pestarino hired a certified forester, Steven L. Butler, to devise a plan to remediate that violation. By letter dated August 13, 2003, the county indicated that it would approve Butler’s remediation plan but Carneghi objected because, in his view, it “legitimized what I saw as an illegal road that I didn’t want in my property.” After some revision, the county approved a remediation plan, the Pestarinos executed it, and the county issued a notice of expungement of grading violation on October 28, 2003. The notice was recorded July 19, 2004.
III. Procedural Background
A. The Pleadings
During the dispute over the tractor work, other areas of disagreement arose. In particular, Hall and Carneghi had attempted to impose rules about the use of the property to which Pestarino objected. Accordingly, Pestarino filed a complaint against Hall and Carneghi for accounting, breach of fiduciary duty, and declaratory relief. Hall and Carneghi cross-complained against Pestarino for waste, conversion, injunction and declaratory relief. Pestarino filed a separate complaint in San Mateo County for partition, which was eventually consolidated with this action. The judgment resolved all of these disputes but the trial court’s determination of damages for waste is the only portion challenged on appeal. Accordingly, we focus our discussion solely upon that aspect of the case.
Hall and Carneghi alleged that Pestarino “performed illegal grading on the Property that caused substantial damage to the property and diminished the Property’s value.” They further alleged that Pestarino had cut timber and used a tractor’s disc attachment to clear the orchard, which “destroyed the roots of the fruit trees resulting in the slow death of the trees.” The grading and the resulting violations, the cutting of timber, and the discing of the orchard caused a “significant and substantial diminution of value.” Hall and Carneghi sought actual damages, trebled pursuant to Code of Civil Procedure section 732, for “diminution and damage to Property.”
Code of Civil Procedure section 732 provides: “If a guardian, conservator, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring action against him therefor, in which action there may be judgment for treble damages.”
B. The Issue of Damages
The matter was tried to the court in February and March 2007. Pestarino’s damages expert, Stanley J. Tish, testified that the fair market value of the property had been $1.1 million in October 2002 and $1.2 million in August 2005 when he inspected the property. He opined that the grading did not diminish the value of the property and that the notice of grading violation, which had since been expunged, did not diminish its value either.
Steven Butler testified that the newly cleared road benefitted the property by providing additional fire access. The discing of Clearing F did not cause damage aesthetically; Butler thought it looked better and that the work had reduced the fire hazard. As to the dirt at Crossing D, Butler saw that as an unsuccessful effort to repair the crossing.
The damages expert for Hall and Carneghi was Norman Hulberg, who testified that as of September 2005, the property in an “undamaged” state would have been worth $2 million but that the injury from the excessive tractor work and the grading violation reduced its value by 10 to 20 percent. Hulberg’s estimate took into account the remediation work Pestarino had already completed. He did note that the Road E grading was not visible from the house. Hulberg believed that the property value was reduced by an additional 25 percent due to Pestarino’s fractional interest. He agreed, however, that any fractional interest would reduce the value.
At the close of the evidence, the court made a site visit. Following the visit, the court observed that “the property was beautiful” and that there was “no obvious evidence of the clearing activities that took place in August of 2002.” On the other hand, having viewed pictures and videotape depicting the property shortly after the August 2002 work had been completed, the court recognized that Hall and Carneghi had been “rightly outraged” by it. The question was, were they entitled to damages given the finding that there was no permanent injury to the land?
The parties submitted further briefing on the damages question. Hall and Carneghi took the position that the tractor work had “caused damage to the land” and that the remediation measures “did not restore the property to its pre-injury condition.” Hall and Carneghi complained that they were injured by that loss of “aesthetic qualities” and, under Heninger v. Dunn (1980) 101 Cal.App.3d 858, the trial court could use whatever formula was most appropriate to compensate them. They maintained that the value of the “loss of aesthetic value” was “in excess of $400,000,” which reflected the 20 percent diminution in value to which their expert had testified.
C. The Statement of Decision
The trial court rejected Hall and Carneghi’s contention that the property had not been restored, expressly finding that the property “had fully recovered from the effects of excessive grading.” “At the time of trial, [Road E] was covered in a blanket of ground vegetation and the field was a grassy meadow with little greasewood. Due to the remediation efforts of Pestarino and the irrepressible restorative powers of nature, there is no longer evidence of the unsightly aspects of the clearing activities nor any significant ill effects of the grading. There is no current diminution of value from Pestarino’s activities. In fact, the grading allowed access to more of the beautiful Property.” The court rejected Hulberg’s opinion that Pestarino’s fractional interest had any peculiar effect upon the value of the property. The court also found that Pestarino had paid the costs associated with the land use violations, and that the notice of violation had been expunged. Accordingly, the court found that “the grading activity did not result in a reduced market value of the Property at the time of trial” and that Hall and Carneghi were not entitled to the costs of repair. The court determined that there was no competent evidence pertaining to the death of the fruit trees so that Hall and Carneghi were not entitled to recover for that loss.
Finally, the trial court found that Hall and Carneghi had “used the land as a refuge and a place to enjoy the beauty of nature. Pestarino’s excessive clearing activities effectively ‘appropriated’ the common property for her own exclusive use. [Citations.] Where, as here, the grading directly impacted the co-owners’ aesthetic enjoyment of the property as a natural refuge, damages are necessary to ‘compensate for all the detriment proximately caused.’ (Calif. Civ. Code, § 3333.)” The court awarded compensatory damages of $28,500 to each cross-complainant, reasoning as follows:
“The Court finds that, in addition to causing the specific damages for which Pestarino has already paid (see above), the excessive grading diminished the value of the property to Carneghi and Hall for a period from September 2002, when the damage was first discovered, through April 2007, when the property had sufficiently returned to its natural state to allow full enjoyment of it. Neither party presented specific evidence regarding the monthly value of the use of the land. Relying upon the testimony of Pestarino’s expert, Stanley Tish, that the fair market value of the land was $1.1 million in October 2002, and $1.2 million in August 2005, the Court finds that the average value of the land during the damage period was $1.2 million. Absent contrary evidence, the Court finds that the use of such an asset to be 6% per annum of the total value, which in the present case would be $72,000 per year or $6,000 per month.
“The Court finds that the damage reduced the value of the property to Carneghi and Hall by one-half at the outset, or $3,000 per month, the loss diminishing in a straight line to $0 by the end of the 57 month period. Carneghi and Hall each had a right to possession of the property for 19 months during that period. The Court determines that the diminished value of the property for Carneghi and Hall over the 19 months averaged $1500 per month. Therefore, Pestarino shall pay Carneghi and Hall each $28,500.”
IV. Discussion
A. Issue
Pestarino argues that the trial court’s ruling effectively awarded damages for “temporary waste,” which, she maintains, is not a wrong for which damages may be recovered. Pestarino also argues that the award improperly compensates Hall and Carneghi for emotional distress or for the temporary loss of aesthetic value. Pestarino’s dispositive argument, however, is her last: Even if the trial court used a proper measure of damages, there is no substantial evidence to support the award.
B. Standards of Review
Whether a party is entitled to a particular measure of damages is a question of law subject to de novo review. (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 691.) On the other hand, the amount of damage is a question of fact, committed to the discretion of the trial judge, which will not be disturbed if it is supported by substantial evidence. (Ibid.) “The evidence is insufficient to support a damage award only when no reasonable interpretation of the record supports the figure.” (Ibid.)
C. The Nature of the Damages Award
Before we examine the damages evidence, we first look to the injury for which the damages were awarded.
In an action for waste, damages are typically based upon injury to the property. As succinctly stated in Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 775: “Waste... [is] a legal means by which any concurrent nonpossessory holders of interest in the land are enabled to prevent or restrain harm to the land committed by persons in possession.” The traditional rule has been that the measure of damages for waste is the lesser of the diminution in market value or the cost to repair the damage. (Id. at p. 778.) But as in any tort action, the primary object of an award of damages is to “compensate for all the detriment proximately caused” by the wrongful act. (Civ. Code, § 3333; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 576.) Thus, the injured party is also entitled to damages for loss of use during the time the damage to the property is being repaired (Natural Soda Prod. Co. v. City of L. A. (1943) 23 Cal.2d 193, 201; Rest.2d Torts, § 929 (1)(b)) and, in a proper case, for discomfort and annoyance or mental suffering proximately caused by the tort. (Rest.2d Torts, § 929, subd. (1)(c); Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337.) In short, “ ‘[t]here is no fixed, inflexible rule for determining the measure of damages for injury to, or destruction of, property; whatever formula is most appropriate to compensate the injured party for the loss sustained in the particular case, will be adopted.’ ” (Heninger v. Dunn, supra,101 Cal.App.3d at p. 862, quoting Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal.App.2d 578, 606.)
The Restatement Second of Torts, section 929, provides:
In the present case, the trial court did not award damages for diminution in market value or the cost of repair since the court found that market value had not been reduced and that the cost of all reasonable repairs had been paid by Pestarino. Nor can the award be justified as reflecting Hall and Carneghi’s discomfort, annoyance, or mental suffering, as Hall and Carneghi now argue. The interest in being free from annoyance and discomfort is a personal interest. Hall and Carneghi did not plead and did not attempt to prove any personal injury. Even in their closing brief on damages, Hall and Carneghi insisted that their injury involved the diminished value of the land. The court was never asked to consider the matter as a personal injury issue. Rather, the trial court expressly designated the award as compensation for the reduced value of the use of the property to Hall and Carneghi during the period the land was being restored. As the statement of decision specifies, damages were to compensate for their loss of “aesthetic enjoyment of the property,” the “diminished the value of the property to Carneghi and Hall,” the lost “value of the use” of the land.
The court was concerned with the damages question, even during the evidentiary phase of the trial. During the testimony of Hall and Carneghi’s expert, the court asked the parties whether damages must reflect injury at a fixed point in time, or whether Hall and Carneghi were “separately entitled to damages for waste during those periods when [the property] was in the worst shape?” Hall and Carneghi’s counsel replied that in determining the amount of damage the court should recognize “that the damage diminishes over time.” Counsel confirmed, however, that he was not going to ask the court to make a damage award based upon the injury to the land at “some lower and earlier point” in time. After some further discussion, the following exchange took place:
D. No Evidence of the Value of Lost Use
The loss of the use and enjoyment of real property is usually thought of in terms of the owner’s ability to collect rent or carry on an economic enterprise on the land. (See, e.g., Cheda v. Bodkin (1916) 173 Cal. 7, 17-18 [destruction of water supply reduced rental income].) Here, however, the use of the property did not provide a direct economic benefit but, as the trial court found, had a special, subjective use value to the co-owners. (See Rest.2d Torts, §§ 911, 929, com. e.) Assuming, without deciding, that Hall and Carneghi were entitled to recover for Pestarino’s interference with their subjective use value during the period of restoration, their loss must still be based upon evidence in the record. Whatever the proper measure of damages may be, recovery is still “subject to the fundamental rule that damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.” (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 367-368.) Thus, while a plaintiff may be entitled to compensation for the lost use of real property, damages are allowable only if the loss can be established by the evidence. (Linforth v. S. F. Gas and Electric Co. (1909) 156 Cal. 58, 62-63.)
Since there was no revenue producing use of the land, the trial court understandably struggled to place a value on the loss Hall and Carneghi supposedly suffered. But that struggle was the result of the fact that Hall and Carneghi never attempted to prove a temporary loss or the value of their lost use. They insisted that their damages were in the lost value of the property as a whole. As a result, the record wholly lacked evidence of the pecuniary value of the lost use, such as the amount Hall and Carneghi would have had to pay to rent a similar piece of property without the tractor scars. Furthermore, there was no evidence pertaining to Carneghi and Hall’s actual use of the property. We cannot tell from the record how often or for how long they visited the land during the relevant period nor whether they visited it any more or less frequently than they had before August 2002. In light of this lack of evidence, the trial court valued the loss by extrapolating from the fair market value of the property, concluding that “absent contrary evidence,” the value of the use of the land for one year was 6 percent of the amount of money a willing buyer could be expected to pay to purchase the property. If there is a relationship between the fair market value of the property and the value of Hall and Carneghi’s use of it, that relationship does not appear in the record. In short, there is nothing in the record upon which to determine the subjective value of the use of the property to two of its three co-owners. No reasonable interpretation of the record before us supports the conclusion that the annual use value to Hall and Carneghi was 6 percent of the market value or that their initial loss was half that value.
Hall and Carneghi do not address the lack of evidence but defend the trial court’s method for calculating the amount, noting that, in the case of general damages for emotional distress, the finder of fact is entitled to make a “reasonable approximation” of the pecuniary value of the injury suffered. We recognize that there is some overlap between damages for emotional and mental distress and damages for the subjective use value of real property. Whether the latter is, in fact, any different from the former is an intriguing question. But even in the case of mental or emotional distress damages, the plaintiff must submit some evidence of having suffered the distress. (Cf. Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764-765 [“The only person whose pain and suffering is relevant in calculating a general damage award is the plaintiff”].)
Here, there was no evidence of how Hall or Carneghi personally used and enjoyed the property during the relevant period. They were angry with their cousin; that much is clear. And they were “unhappy” with the grading and clearing, concerned about erosion and liability, and were afraid the tractor work was killing trees in the orchard. Although it is reasonable to infer from the evidence that both Hall and Carneghi preferred the land without the excessive grading and clearing, the trial court went a step further and decided that their preference diminished their use and enjoyment of the property. But there was no testimony on that point. Since there is no evidence pertaining to Hall and Carneghi’s use and enjoyment of the land during the four plus years after August 2002, the inference that the grading and clearing diminished their use and enjoyment of the property is not reasonable. It follows that damages in any amount were not warranted by the evidence.
Hall and Carneghi argue that damages for lost aesthetic value are allowable under Heninger v. Dunn, supra, 101 Cal.App.3d 858. Although Heninger held that the courts were not restricted to the market value/cost of repair measure of damages in real property cases, Heninger does not aid Hall and Carneghi here. Heninger merely held that cost of repair could be recovered even though the wrongful act had actually increased the fair market value of the property, if the owner had a personal reason to repair the damage, and the cost of repair is not unreasonable in relation to the value of the land and the damage inflicted. (Id. at pp. 865-866.) The point of the case is that a plaintiff is entitled to recover “all the detriment proximately caused.” (Civ. Code, § 3333.) That does not relieve the injured party from proving the detriment.
V. Disposition
The judgment is reversed with directions that the trial court strike the damages awarded in favor of defendants and cross-complainants Hall and Carneghi. Plaintiff and cross-defendant, Pestarino, shall recover her costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.
“(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for“(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,
“(b) the loss of use of the land, and“(c) discomfort and annoyance to him as an occupant.
“(2) If a thing attached to the land but severable from it is damaged, he may at his election recover the loss in value to the thing instead of the damage to the land as a whole.”“THE COURT: It’s not like a PI case where you try to argue some per diem of every day of suffering.
“[Pestarino’s counsel]: No, I don’t think that applies to this case, Judge.“THE COURT: Okay. So we’re clear on that. Good.”