Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00107003, David R. Chaffee, Judge.
Law Offices of Marc Goldstein and Marc Goldstein for Plaintiff and Appellant.
Buffington Law Firm, Roger J. Buffington and Kaden J. Kennedy for Defendants and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Marie Beck, appearing individually and as trustee of the Beck Family Trust, sued defendants Terrence and Virginia Hirchag and their corporation, Castillo Del Mar Development, Inc. (CDM), for the improper removal of trees on her property. The court granted a motion for a directed verdict as to Virginia Hirchag. The jury returned a verdict against CDM on causes of action for trespass to land and negligence, awarding plaintiff $25,000 in economic damages (which the court doubled to $50,000 under Civil Code, section 3346, subdivision (a)), plus $10,000 in noneconomic damages. However, the jury found for the Hirchags on these counts and for all defendants on plaintiff’s intentional infliction of emotional distress and fraud causes of action, and rejected plaintiff’s request for punitive damages. The court entered judgment awarding plaintiff $60,000 against CDM, later amended to award the Hirchags their costs of suit.
Plaintiff claims the trial court erred by: (1) Granting defendants’ motion in limine to exclude the testimony of a retained expert for not complying with a statutory requirement concerning disclosure of discoverable reports and writings (Code Civ. Proc., § 2034.210 et seq.); (2) excluding defendants’ prelitigation letter to plaintiff’s counsel discussing resolution of the tree removal dispute; and (3) barring her from testifying as to the value of the lost trees. In addition, plaintiff claims the jury erred by failing to find the Hirchags individually liable for the removal of her trees. Since the record supports the judgment and plaintiff has failed to establish any error, we affirm the judgment.
FACTS
Plaintiff owns a six-acre parcel in San Juan Capistrano that contains the house where she resides. The property contains numerous trees. Defendants Terrence and Virginia Hirchag own CDM, a construction business. Terrence Hirchag is a licensed general contractor and serves as CDM’s president and chief executive officer, while Virginia Hirchag is the corporation’s treasurer and chief financial officer. In late 2007, defendants acquired a one-acre parcel adjacent to plaintiff’s property on which they intended to construct a home.
As part of the project, defendants obtained approval from the city to remove over 40 trees from their parcel. Terrence Hirchag showed the tree removal plan to plaintiff and discussed it with her.
Hirchag hired Edward Rosenbaum to remove the trees. Before Rosenbaum began the project, Hirchag, his son, and a man named Thor Laizans walked the property with Rosenbaum identifying the trees to be removed. Hirchag claimed he also gave Rosenbaum a copy of the tree removal plan. Hirchag’s son and Laizans corroborated this version of the events. However, Rosenbaum testified Hirchag told him to cut down a multi-trunk tree outside the boundary of defendants’ property, explaining that he either was going to or had obtained plaintiff’s written permission to do so.
Plaintiff testified she discovered trees on her property had been cut down late on the afternoon of the same day. She claimed the removal involved 8 to 15 trees, but Laizans testified plaintiff and her son approached him “inquiring about one or two trees that were cut down on her property.” Plaintiff complained to the city about the tree removal and Bruce Sharp, a code enforcement officer, investigated the matter. Sharp visited the site and concluded 3 to 4 trees on plaintiff’s property had been cut down.
Frederick Roth, an arborist retained by plaintiff, inspected trees on her property similar to the trees that were cut down. He concluded plaintiff’s trees were in medium to good condition. Robert Wallace, an arborist retained by defendants, concluded the remaining trees on plaintiff’s property were in poor condition, stressed by lack of water and insect infestation. He gave the following estimates as to the value of four trees located on plaintiff’s property that had been removed, plus a fifth one that had straddled the property line: $4,956, $1,559, $2,708, $296, and $669. Roth was recalled on rebuttal and testified Wallace’s valuation estimates contained mathematical errors.
Plaintiff acknowledged her now-deceased husband had applied for a tentative parcel map to subdivide the property into smaller lots after both of them died. The map provided for construction of a ditch and retaining wall where the lost trees had been located.
The defense called Reginald Holly, a real estate appraiser. Holly described the surrounding neighborhood as transitioning from agricultural to residential and concluded the highest and best use of plaintiff’s property was to subdivide it into one-half to one-acre parcels and build homes on each lot. Because of the fire and safety hazards related with the trees in question, Blue Gum Eucalyptus, Holly claimed they were no longer compatible with the area.
DISCUSSION
1. The Exclusion of Plaintiff’s Expert Witness
a. Introduction
At plaintiff’s request, the court trial gave this matter priority, setting trial for mid-January 2009. In October 2008, defendants served plaintiff with a demand for a simultaneous expert witness exchange to occur on November 24. The demand included a request “for the production for inspection and copying of all discoverable reports and writings, if any, made by each expert listed in the course of preparing that expert’s opinion.” The parties served each other with designations of their expert witnesses. Defendants submitted reports from each of their designated experts. Plaintiff’s counsel served a declaration identifying her expert witnesses, which included arborist Alden Kelley, expected to testify on “all aspects of the trees which were removed from [p]laintiff’s property, including the value of the trees removed....” No reports were attached to plaintiff’s declaration.
Defendants deposed Kelley in mid-December. At that time, Kelley produced a box containing his file for review. It included a handwritten document listing 15 trees purportedly removed from plaintiff’s property with Kelley’s measurements, ratings, and valuation as to each one. Two of them are identified as oak trees, with the thirteen remaining trees described as “Blue Gum.” A parenthetical comment on one Blue Gum entry states “appeared dead before excavation [–] no value.” At the bottom of the valuation sheet’s right-hand column appears a total sum of $664,613 for the remaining 14 trees.
Before trial, defendants filed a motion in limine to exclude Kelley’s testimony, claiming plaintiff “failed to produce [Kelley’s] discoverable reports and writings... on the... expert exchange date.” Initially, the trial judge denied defendant’s request for a pretrial hearing on the motion, stating, if necessary, he would consider the issue when Kelley was called to the stand. Defense counsel objected, arguing “we were horribly prejudiced.... We had not the slightest understanding that they would claim... there were... 12 [e]ucalyptus trees removed....” The court then agreed to conduct a pretrial hearing on defendants’ motion under Evidence Code section 402.
Kelley acknowledged he compiled numerous photographs and other documents, including notes as to the number and location of the trees cut down, to reach his opinions. He also testified he provided the defense with his “valuation sheet and the documents that ultimately led up to the formation of [his] opinions” at the deposition, claiming he did not “finalize [his] valuation opinions” until a few days earlier. But initially Kelley denied preparing a report.
On cross-examination, defense counsel showed Kelley invoices he had prepared and submitted to plaintiff’s attorney, two of which were dated September 18, 2008. The first September 18 invoice, identified as exhibit 1352, listed over three-and-one-half hours of work on what was described as “Report draft (to date) revision.” Kelley testified these entries referred to his preparing “comments on a report” produced by one of defendants’ expert witnesses.
After further questioning Kelley admitted “at some point I was under the impression that I was going to do a report, ” began drafting one that amounted to “probably not more than three pages” in length, but terminated the effort when he “learned” sometime after September 6 “the attorney did not want me to do a report.... [¶] Th[ese entries] may reflect that time at which I had started a report that I thought I was supposed to do....” He claimed his “subsequent[] discover[y]” that preparing a written report “was not part of [his] assignment” explained why exhibit 1352 contained a statement “[t]his... time spent on the project... will not be billed.” Defense counsel then showed Kelley exhibits 1353 and 1354, the pages of the second invoice dated September 18, covering his services between late July and mid-September for which he did seek compensation. Exhibits 1353 and 1354 reflect Kelley spent approximately 20 hours over 13 separate dates on “[r]eport [p]reparation” or “[r]eport draft continuation, ” specifically describing his activities as printing and selecting photographs, correlating the photographs to tree locations, making “stump size... measurements” and “tree value calculations.” Kelley admitted “there were some writings associated with” his “‘report preparation’” services, and that he “shared... documents freely with [his] own counsel....”
Defendants also produced a handwritten log Kelley had prepared, entitled “Beck case: relevant dates (not including correspondence dates).” No entry appears between a September 6 site visit and a December 8 conference with counsel. Acknowledging exhibits 1353 and 1354 reflected the last invoice produced at his deposition, Kelley nonetheless insisted that after he “completed [his] field work” in early September, he “spent a great deal of time analyzing the materials” he had accumulated and did “not complete[ his] analysis of the[m]” until mid-December.
Defendants sought exclusion of Kelley’s opinion testimony, arguing in part, they “never did get apparently” “the writings that preceded” the valuation sheet he prepared just before his deposition. Plaintiff argued that “until... Kelley finished his analysis, we didn’t know what documents to actually provide to [the] defense in an expert exchange, ” and since “Kelley testified his analysis wasn’t complete until December, ... there was no discoverable report to produce in the exchange.” Asked by the court “[w]hat happens if your expert has... prepare[d] writings relating to a potential report, and then... is... directed by counsel not to actually prepare the report, but the writings are there, ostensibly[, ] that either support or refute that which the expert has done in preparation for the analysis the expert would make orally, ” plaintiff’s counsel responded, “Kelley testified he didn’t complete his opinions until after November 24th....”
The court granted defendants’ motion to exclude Kelley’s testimony. It noted plaintiff’s request for an early trial date, plus the fact Kelley began preparing a report, but, “while that report was underway and... placed in written form, at least to some degree, he was told to stop by counsel.” Acknowledging “[i]t would have been... appropriate for counsel at the head of the engagement to say, we want your oral opinions, but we do not... want... a written report, ” the court concluded “once the report is in draft form, ... it’s fully discoverable and it was not presented in the exchange.” The court further found “[t]here is no evidence... that suggests... Kelley’s conclusions or opinions in any[] way... deviate from the draft report. If that evidence had been submitted, it might be eliminated, but that’s not here.” Finally, the court also found “while... Kelley came [to the deposition] with a banker’s box full of his records and information, there is no evidence... Kelley brought his draft report with him....”
During trial, plaintiff filed a motion to reconsider the order excluding Kelley’s testimony. The motion stated “[p]laintiff has now obtained and reviewed the document that Dr. Kelley incorrectly described as a ‘report’ in his billing statements....” Describing the document as “a case intake sheet, ” plaintiff argued it “cannot be considered a discoverable ‘report’ or ‘writing’ under Code of Civil Procedure section 2034.270, ” and “establishes... [p]laintiff complied with her obligations to exchange... expert information....”
Attached to the motion were declarations from plaintiff’s trial counsel and Kelley, plus a two-page document. The first page is a preprinted form entitled “Forensic Consultant Services” (some capitalization omitted), containing handwritten entries of general case information, including the names of the parties, counsel, and opposing experts, location of plaintiff’s property, and a short description of what Kelley was retained to do. The second page is a handwritten document entitled “Case elements, ” containing much of the same information with a more detailed description of the scope of Kelley’s services. The court denied the motion, finding its prior ruling “continues to be appropriate.”
b. Analysis
As noted, defendants made a demand for a simultaneous exchange of expert witness information under Code of Civil Procedure section 2034.210. The general requirements for the exchange and what must be disclosed appears in Code of Civil Procedure section 2034.260. In addition, section 2034.270 states an expert witness exchange request that seeks “production of reports and writings” requires a party to “produce and exchange... all discoverable reports and writings, if any, made by any designated expert....” (Code Civ. Proc., § 2034.270.)
The Supreme Court has recognized “the statutory scheme as a whole envisions timely disclosure of the general substance of an expert’s expected testimony” (Bonds v. Roy (1999) 20 Cal.4th 140, 148) so that the parties will have “fair notice of what an expert will say at trial” (id. at p. 146). “This allows the parties to assess whether to take the expert’s deposition[ and] to fully explore the relevant subject area at any such deposition....” (Id. at pp. 146-147.)
Failure to comply with the statutory requirements can have drastic results. Code of Civil Procedure section 2034.300 provides “on objection of any party who has made a complete and timely compliance with section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶]... [¶] (c) Produce reports and writings of expert witnesses under [s]ection 2034.270.” A ruling on a motion to exclude the opinion of an expert under this statute, including the determination of whether the party retaining the expert acted unreasonably, is reviewed for abuse of discretion. (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.)
In addition, in a hearing conducted under Evidence Code section 402, “[a] trial court’s ruling on admissibility implies whatever finding of fact is prerequisite thereto....” (People v. Williams (1997) 16 Cal.4th 153, 196.) Our “function is to determine whether the trial court’s determinations are supported by substantial evidence.” (People v. Citrino (1970) 11 Cal.App.3d 778, 783; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.) Where “two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
The record supports findings Kelley began drafting a written report of his opinions concerning the number and value of trees allegedly destroyed by defendants well before the November expert witness exchange that plaintiff’s counsel failed to disclose and this noncompliance limited defendants’ ability to fully depose Kelley. Although initially denying he prepared a report, once shown his own invoices, Kelley acknowledged he started writing one in late July 2008 and continued this effort until sometime in September. Plaintiff and Kelley minimized the extent of this effort, both during the pretrial hearing and in the subsequent motion for reconsideration. But Kelley’s invoices show he spent some 20 hours drafting the partial report on 13 separate dates spanning a nearly two-month period. The invoices also defeat plaintiff’s belated claim Kelley’s “report” consisted only of the two page case intake sheet attached to the motion for reconsideration. Finally, the limited documentation of Kelley’s activities after mid-September also contradicts his assertions he continued his research during the fall and did not finalize his opinions until just before the deposition.
Plaintiff argues there is no requirement that an expert prepare a report and consequently the failure to do so cannot support exclusion of an expert under Code of Civil Procedure section 2034.300. We agree that, generally speaking, a party’s expert cannot be excluded for merely failing to prepare a written report. In fact, practice guides recommend attorneys “instruct their experts not to prepare a formal report” so as “[t]o avoid exchanging ‘discoverable reports and writings’....” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) [¶] 8:1685.1, p. 8J-17.) Even the trial judge acknowledged “[i]t would have been... absolutely appropriate for [plaintiff’s] counsel” to have instructed Kelley at the beginning of his employment not to prepare a written report. But plaintiff’s counsel apparently failed to do so when Kelley was retained and the record indicates Kelley spent an extensive amount of time during mid-2008 preparing a report based on the materials and information he had accumulated in his research. Code of Civil Procedure section 2034.270 requires disclosure of “all discoverable reports and writings” (emphasis added), and plaintiff cites no authority the foregoing rule allows a party to refuse to disclose a partially prepared report concerning a trial expert’s opinions and conclusions.
To permit exclusion of an expert’s opinion, Code of Civil Procedure section 2034.300, subdivision (c) requires a court find a “party... unreasonably failed to” comply with the statutory requirements. Although Kelley claimed he did not finalize his opinions until he prepared the valuation sheet shortly before his deposition, the invoices he prepared were addressed to plaintiff’s attorney and Kelley admitted sharing his documentation with the attorney. “If the trial court concludes that a party intentionally manipulated the discovery process to ensure that expert reports and writings were not created until after the specified date, it may find the failure to produce the reports and writings was unreasonable and exclude the expert’s opinions.” (Boston v. Penny Lane Centers, Inc., supra, 170 Cal.App.4th at p. 952.) The record supports an inference counsel knew about Kelley’s partial report and the failure to disclose it amounted to a manipulation of discovery rules in this case.
Plaintiff disputes defendants’ contentions they were unaware of the number of trees she alleged had been wrongfully removed and that the failure to provide Kelley’s partial report “horribly prejudiced” them. Whether defendants’ knew the scope of plaintiff’s tree destruction claim and how seriously the failure to disclose the partial report affected their ability to prepare for trial presented factual questions. Plaintiff has failed to show these claims are unsupported by the appellate record.
Alternatively, plaintiff notes Code of Civil Procedure section 2034.300 requires the moving party to have fully complied with section 2034.260 and claims defendants were precluded from seeking relief because they failed to satisfy the full disclosure requirement. The record does not support this argument. At the pretrial hearing, plaintiff’s attorney argued the reports defendants attached to their expert witness declaration failed to include any of “the[] backup materials to the[ experts’] reports....” Defendants’ attorney acknowledged he had not provided some photographs taken by their experts, but claimed this was “de minimis.” In reaching its decision, the court noted Kelley also failed to produce other materials, including his “80-plus photos, ” but found “[t]hat doesn’t seem to be the issue here.” Thus, the court rejected plaintiff’s purported failure to produce the documentation Kelley used in drafting the partial report as a basis to exclude his testimony. This conclusion would equally apply to defendants’ failure to produce all of their expert witnesses’ photographs.
The record reflects Kelley formulated his opinions early on in his investigation and began to write a report containing them which counsel later failed to disclose to the defense. While it may be permissible for an attorney to inform a retained expert, at the outset of his or her employment, not to produce a written report, that is not what occurred here. Kelley believed the scope of his services included preparing a written report and he spent an extensive amount of time drafting one, terminating that effort only when counsel directed him to do so.
The trial court recognized it was possible Kelley had changed his opinion on the number of trees destroyed and their value between mid-2008 and his December deposition. It also acknowledged that, even if Kelley’s conclusions had remained the same, he could have belatedly produced the unfinished report when he was deposed. Had the evidence supported either circumstance, it might have led to a different ruling on defendants’ motion. But the court found otherwise and the record supports its conclusion. Throughout the pretrial hearing, plaintiff insisted Kelley did not finalize his opinions until just before his deposition and consequently no discoverable materials existed until that time. Even assuming the case intake sheet submitted with the motion for reconsideration constituted Kelley’s “report” as plaintiff claims, Kelley acknowledged in his supporting declaration that he did not consider that document “part of my expert file” and consequently did not disclose it to counsel.
While the exclusion of Kelley’s testimony was a harsh remedy, under all of the circumstances of this case, we conclude the trial court did not abuse its discretion by so ruling.
2. Exclusion of Defendants’ Prelitigation Letter
a. Background
Shortly after the trees were cut down, plaintiff retained an attorney who contacted defendants about their actions. Defendant Virginia Hirchag prepared and sent counsel a letter “in response... for the purpose of settlement discussion to resolve the issue of tree cutting which occurred on... [plaintiff’s] property....” After discussing some of the details of what occurred, the letter noted counsel’s correspondence “mentioned several things..., some [of which Terrence Hirchag] agrees with and others he has a different recollection..., but since our goal is to resolve the matter amicably, we will reserve the right to address those issues should we not be able to resolve the matter.”
Defendants’ letter closed with the following paragraph: “We are in the process of getting quotes for the cost to replace and plant a new tree and [are] open to resolv[ing the dispute over] the tree... that straddle[d] the property line.... There are many tree varieties that provide better privacy/screening and we are agreeable to replace the tree of [plaintiff’s] choosing with similar size and value. We would appreciate the opportunity to discuss and resolve the situation with you and [plaintiff] and can only apologize again for the error in judgment.”
Defendants filed a motion in limine to exclude this letter on the ground it constituted an offer to compromise under Evidence Code section 1152. After listening to the parties’ arguments and reviewing the letter, the court agreed.
b. Analysis
Plaintiff contends the trial court erred, claiming defendants’ letter was not made in connection with a settlement or offer to compromise and was admissible both to show both the destruction of her trees was not accidental and impeach Terrence Hirchag’s trial testimony.
Evidence Code section 1152, subdivision (a) declares, “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.” A trial court’s decision to exclude evidence under section 1152 “‘is reviewed for an abuse of discretion.’ [Citation.]” (Caira v. Offner (2005) 126 Cal.App.4th 12, 32.)
The court did not err by excluding use of the letter. That document was an attempt to resolve the dispute over the removal of plaintiff’s trees. Plaintiff claims this is a case involving an admission of “what occurred” that includes “the gratuitous word ‘settlement.’” But the introductory paragraph states the letter’s “purpose” was to achieve a “settlement” over “the issue of tree cutting which occurred” on plaintiff’s property. Later, defendants note their “goal is to resolve the matter amicably....” The letter also concludes with an offer “to discuss and resolve the situation....”
Plaintiff claims there are numerous statements of fact concerning the details of how and why the trees were cut down. But Evidence Code section 1152, subdivision (a) expressly covers “any conduct or statements made in negotiation” of an offer to compromise. She also notes case law has recognized “statements that are truly independent of an offer of compromise are still admissible in the wake of the enactment of [Evidence Code] section 1152....” (Caira v. Offner, supra, 126 Cal.App.4th at p. 36.) Plaintiff relies on language appearing in Moving Picture etc. Union v. Glasgow Theaters, Inc. (1970) 6 Cal.App.3d 395 that a party’s statement reflecting an “intention... to admit liability and to secure relief against a liability recognized as such, or if the party making the proposal apparently intended to make no concessions but to exact all that he deemed himself entitled to, the proposal is an ordinary admission against interest and not an attempt to compromise. Such an admission against interest is not subject to the rule which excludes offers of compromise. [Citation.]” (Id. at p. 405.)
First, the portion of Moving Picture etc. Union v. Glasgow Theaters, Inc., supra, 6 Cal.App.3d 395 cited by plaintiff is based on the Supreme Court’s decision in People ex rel. Dept. of Public Works v. Forster (1962) 58 Cal.2d 257. In C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, the Supreme Court rejected this rule, noting “[t]he Forster case... was decided prior to the enactment of [Evidence Code] section 1152, and the comments of the California Law Revision Commission make it clear that the current language of this section changed the prior law under the Forster decision. According to the commission, ‘[t]he rule of the Forster case is changed... because that rule prevents the complete candor between the parties that is most conducive to settlement.’ [Citations.]” (Id. at p. 13.)
Second, Evidence Code section 1152 is “based on the public policy in favor of the settlement of disputes without litigation and are intended to promote candor in settlement negotiations” (Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1475), plus “avoid deterring parties from making offers of settlement and to facilitate candid discussion which may lead to settlement of disputes” (Fieldson Associates, Inc. v. Whitecliff Laboratories, Inc. (1969) 276 Cal.App.2d 770, 773). “In considering whether a person’s statement amounts to an ordinary admission or constitutes an offer of compromise, the intention of the party is dispositive. [Citations.]” (Moving Picture etc. Union v. Glasgow Theaters, Inc., supra, 6 Cal.App.3d at p. 402.) But “the question which statements are ‘connected’ and which statements are ‘independent’ [citation], must be answered in light of the strong policy in favor of promoting candor during settlement negotiations embodied in the statute.” (Caira v. Offner, supra, 126 Cal.App.4th at p. 36.) Here, the record supports the trial court’s finding the letter reflects an intent to resolve the dispute over the destruction of plaintiff’s trees.
The mere fact plaintiff wanted to use parts of the letter to impeach Terrence Hirchag’s trial testimony does not change the result. In C & K Engineering Contractors v. Amber Steel Co., supra, 23 Cal.3d 1, the Supreme Court upheld the trial court’s exclusion of a statement made during a settlement discussion, which the opposing party sought to use to impeach a witness’s direct testimony. (Id. at p. 13.) The trial court did not abuse its discretion by excluding defendants’ letter.
3. Exclusion of Plaintiff’s Testimony as to the Value of the Lost Trees
At trial, plaintiff testified she wanted to have the property restored “[b]ecause it looks pretty naked without the trees.... I like to see them, and it gives me privacy.” She testified as to the value of her property and, asked if the “property has suffered a loss in value as a result of the loss of the trees, ” responded, “Yes, I think that a lot of the charm is gone. You can see... some of the neighbors’ property now....” Plaintiff’s counsel then asked plaintiff if she had “in terms of percentages arrived at any value that you think your property has lost resulting from the loss of the trees.” The trial court sustained a defense objection to this question, concluding plaintiff’s expression of the property’s value “is the... limit of the statutory authorization. The concept of the witness expressing an opinion as to differentiation of value before and after is not expressed in the code....” Plaintiff claims this ruling was error citing Evidence Code sections 813 and 820. We disagree.
Evidence Code section 813, subdivision (a)(2) allows “[t]he value of property [to] be shown... by the opinion[] of” “[t]he owner... of the property or property interest to be valued.” But Evidence Code section 814 declares “[t]he opinion of a witness as to the value of property is limited to such an opinion as is based on matter perceived by or personally known to the witness or made known to the witness at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion as to the value of property....”
In Contra Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, the trial court barred the owners of undeveloped land who were in the process of subdividing it from testifying to the property’s value when fully developed property, less the costs of development. “The generally recognized right of an owner to testify is not absolute. In stating an opinion as to the value of property, an owner is bound by the same rules of admissibility as any other witness. [Citations.] To allow a witness’s statement of reasons for his opinion to be used as a vehicle for bringing before the jury incompetent evidence would ‘“create a disastrous break in the dike which stands against a flood of interminable investigation.”’ [Citations.]” (Id. at p. 661.)
In Fragale v. Faulkner (2003) 110 Cal.App.4th 229, the plaintiffs purchased a house, only to discover it contained additions built without the proper permits or in compliance with the building codes. They sued the former owner and the real estate broker for fraud. The trial court rejected the plaintiffs’ attempt to reopen their case to have one owner testify as to the value of the house they acquired. The Court of Appeal affirmed this ruling. “The point to be proven was ‘what the market value of the house would have been had the true facts been known regarding the lack of permits and the lack of compliance with building codes.’ [Citation.] Counsel’s offer of proof provides no foundation for an opinion from Fragale on that point. The offer of proof shows only that, at some time after the Fragales purchased the house... and before the trial..., Fragale obtained information on the value of comparable houses in the neighborhood. However, even ignoring the time factor, the offer of proof suggests no basis for testimony on the pertinent point: the effect on market value of the code violations and structural defects.” (Id. at pp. 240-241, fn. omitted.)
The trial court allowed plaintiff to testify as to the value of her property and to how the loss of the trees affected her privacy and enjoyment of her home. No foundation was provided for how plaintiff could estimate the financial loss to her property from defendants’ removal of the trees.
Plaintiff also relies on Evidence Code section 820. It provides “[w]hen relevant to the determination of the value of property, a witness may take into account as a basis for his [or her] opinion the value of the property or property interest being valued as indicated by the value of the land together with the cost of replacing or reproducing the existing improvements thereon, if the improvements enhance the value of the property or property interest for its highest and best use, less whatever depreciation or obsolescence the improvements have suffered.”
Arguably, the trees constituted a form of improvements. (Civ. Code, §§ 659 [“Land is the material of the earth”], 660 [“A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees”]; Rev. & Tax. Code, § 105, subd. (b) [“‘Improvements’ includes” “[a]ll fruit, nut bearing, or ornamental trees and vines, not of natural growth”].) But plaintiff failed to present evidence to support a finding the planting and maintenance of eucalyptus trees was the highest and best use her property. In fact, the evidence presented suggests otherwise. Thus, the court did not err in excluding her opinion testimony as to effect of the lost trees on the value of her land.
4. Sufficiency of the Evidence
Finally, plaintiff challenges the jury’s finding of no personal liability as to defendants Terrence and Virginia Hirchag.
“‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Thus, an “appellant has the burden to demonstrate there is no substantial evidence to support the findings under attack. [Citation.]” (North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 285.) Furthermore, “‘[w]hen a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
Plaintiff presents no basis other than pure speculation for challenging the jury’s verdict as to the liability of the individual defendants. Given the limited record she presented, we conclude the record supports the verdict in this case.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.