Opinion
NOT TO BE PUBLISHED
APPEAL from a Judgment of the Superior Court of Los Angeles County. No. SC085201 Joseph Kalin, Judge.
Horvitz & Levy, David M. Axelrad, Curt Cutting; Morris, Polich & Purdy, Dean A. Olsen and Douglas H. Hoang for Defendant, Cross-Complainant and Appellant Cynthia Beck.
McDermott, Will & Emery, Laurence M. Berman, Eric Levinrad; Hanger, Steinberg, Shapiro & Ash and Marc S. Shapiro, for Plaintiffs, Cross-Defendants and Respondents Ned Scott Goldstein and Marcia Kay Goldstein.
ZELON, J.
Cynthia Beck appeals a judgment in favor of the Goldsteins in their action arising out of a boundary dispute. The parties initially settled their dispute at mediation, but immediately had difficulties implementing the mediation agreement. After several failed attempts to resolve those difficulties, the parties tried the case; the jury awarded the Goldsteins $6 million in compensatory and punitive damages. On appeal, Beck contends the mediation settlement agreement is unenforceable and she is not liable for breach; the Goldsteins’ nuisance claims fail because they are premised on that breach; and even if we affirm her liability, the damage awards must be reversed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. GOLDSTEIN I.
1. The Parties’ Boundary Dispute.
The Goldsteins purchased a home at 141 North Beverly Glen Boulevard in Los Angeles in May 2000. The property was improved with a swimming pool built sometime in the 1930s, and with a reflecting pool next to a guest house. Beck bought her home next door at 111 North Beverly Glen in January 2001. The southern boundary of the Goldsteins’ property is the northern boundary of Beck’s property, and there is a grade difference between the two properties. The two properties are separated by a 10 foot high brick wall; the Goldsteins’ reflecting pool ran along the edge of the wall. The wall functioned as a retaining wall.
The Goldsteins commissioned a survey of their property in anticipation of commencing renovations. The Goldsteins’ survey showed that the brick wall was on Beck’s property, and noted that any construction should follow the lot lines. The Goldsteins renovated the reflecting pool.
Beck desired to add a second story addition to her house, and believed the Goldsteins’ pool interfered with her plans. Beck commissioned a survey showing that that the brick wall encroached on her property by 5 feet and the pool by 1.97 feet. Beck claimed that the Goldsteins did not have permits for their pool work, and that they had moved the wall and the pool to encroach on her property. In June 2001, Beck advised the Goldsteins by letter that she claimed a portion of the wall and the Goldsteins’ reflecting pool was on her property. She demanded that the encroachments be removed within 24 hours.
On November 7, 2001, the Goldsteins filed their complaint against Beck seeking quiet title (adverse possession, prescriptive easement, and agreed boundary) and injunctive and declaratory relief. On December 18, 2001, Beck filed a cross-complaint for ejectment, trespass, declaratory relief, quiet title, and nuisance.
2. September 2002 Mediation and Settlement Agreement.
On September 17, 2002, the parties participated in a mediation before Thomas Schneider, a retired judge, and entered into a handwritten Settlement Agreement. The Settlement Agreement provided that (1) Beck would pay the Goldsteins $75,000, (2) the Goldsteins would convey title in the disputed portion of their property to Beck, (3) Beck would demolish the brick wall and build a wall of used brick on her side of the boundary line “consistent with the existing brick wall,” (4) the Goldsteins would remove or fill in the pool on the boundary line, subject to Beck’s approval of the Goldsteins’ engineer’s plans. The parties agreed that the Settlement Agreement would be binding and enforceable under Code of Civil Procedure section 664.6, and that any disputes arising out of the Settlement Agreement would be submitted to retired Judge Schneider, whose decision would be binding. The prevailing party to any action to enforce the Settlement Agreement would be entitled to attorneys’ fees.
The parties did not request that the superior court retain jurisdiction to enforce the agreement, and dismissed the complaint and cross-complaint with prejudice on December 2, 2002.
3. Mediator’s Report No. 1: Follow Up Hearing in November 2002.
On November 8, 2002, the parties appeared before retired Judge Schneider to resolve certain issues that had arisen under the Settlement Agreement. Judge Schneider ordered the Goldsteins to employ a licensed contractor within 30 days to remove and fill the guesthouse pool, with construction to commence and be completed within 30 days after that. In addition, Judge Schneider resolved issues relating to an ambiguity in the paragraph relating to the timing of the receipt of settlement funds and temporary fences to be erected during construction by both parties.
4. Mediator’s Report No. 2: Follow Up Hearing of April 15, 2003.
On April 15, 2003, the parties again appeared before Judge Schneider to resolve an issue regarding the removal of the Goldsteins’ reflecting pool. The Goldsteins contended they did not need to remove the pool, but only to fill it in. Judge Schneider interpreted an ambiguity in the Settlement Agreement and found that, based upon the safety issues underlying the replacement of the wall, the Goldsteins were obligated to remove and to fill the pool. Retired Judge Schneider further ordered the parties to execute a Memorandum Agreement and a Mutual Release within 20 days of his report.
Beck recorded the Memorandum Agreement with the County Recorder.
5. Motion to Enforce Settlement Agreement.
In July 2003, Beck moved in the trial court to enforce Judge Schneider’s decisions and sought attorneys’ fees, arguing the Settlement Agreement was enforceable. Beck contended that 10 months after the mediation, the Goldsteins had failed to begin removal and filling of the pool, failed to sign the Mutual Release, and failed to provide Beck’s counsel with the original Memorandum Agreement for Beck’s signature and recording. On the other hand, Beck contended she had fully peformed under the Settlement Agreement and had paid $75,000 to the Goldsteins’ counsel.
The Goldsteins opposed the motion, contending that the September 17, 2002 handwritten agreement was the only agreement approved and signed by all parties which was enforceable under Code of Civil Procedure section 664.6, and therefore there was no basis to enforce the terms Beck claimed under the unsigned Mutual Release and Memorandum Agreement. Further, the Goldsteins had commenced work on the pool, but following the November 2002 and April 2003 sessions, the scope of work had changed, necessitating new soils testing, permits, and planning.
On August 19, 2003, Judge Shook, who heard the matter in the trial court, ordered the matter continued to October 20, 2003 and ultimately to November 5, 2003.
6. Demolition Begins.
In late September 2003, the Goldsteins began to remove their pool. During demolition, they hit an electrical utility line and stopped work for several days. Beck removed the wall.
7. October 15, 2003 Motion to Modify Settlement.
On October 15, 2003, the Goldsteins appeared in court seeking an order modifying the Settlement Agreement due to “imminent peril,” seeking permission to retain a wall on their property because it provided lateral support to their pool house and Beck’s property. Beck opposed the Goldsteins’ request, claiming she had completed demoltion of the relevant portions of the brick wall and provided written confirmation to the Goldsteins that pool demolition could proceed. The court denied the motion.
7. November 5, 2003, Continued Motion to Enforce Settlement Agreement.
Beck filed additional papers in support of her motion to enforce the Settlement Agreement in which she alleged that since the October 15, 2003 hearing, the Goldsteins had wrongfully disbursed the settlement proceeds, failed to produce signed construction contracts, and failed to resume work or cooperate with Beck. The Goldsteins’ opposition contended that Beck had harassed the Goldsteins’ attorney and construction workers, had installed a surveillance camera, and had obtained a temporary restraining order to halt all construction. On November 18, 2003, the court took the motion off calendar.
8. Mediator’s Report No. 3: December 2, 2003.
Beck objected that the Goldsteins used gravel to fill in the hole left by the pool removal, and argued the soil under the pool site was “bad” and needed to be replaced with “good soil.” Beck insisted that the Goldsteins use special dirt that she approved. The Goldsteins complied, and trucked in five loads of dirt that remained in their driveway. Beck obtained an order from Judge Shook requiring the Goldsteins to put a tarp over the pool hole and use a pump to remove rainwater.
Los Angeles City ordinances required Beck’s wall to be a retaining wall because of the grade differences between the properties. However, Beck refused to build a retaining wall. Further, to fill in the pool hole, the Goldsteins needed to fill and grade a portion of Beck’s property and therefore required a consent letter from her pursuant to the Los Angeles Municipal Code.
On December 2, 2003, Judge Schneider met with the parties to resolve the issues of the filling of the pool hole on the Goldsteins’ property and grading necessary on Beck’s property to accomplish this task. Judge Schneider ordered the Goldsteins to begin work as soon as they obtained proper permits and to deliver to Beck their construction plans. Judge Schneider noted that the City of Los Angeles required Beck to consent to the grading, and ordered her to sign a consent letter. Judge Schneider made further orders that the Goldsteins were to prevent rainwater from ponding on their property, and that they must use compacted soil to fill in the pool hole. He also ordered that Beck build a retaining wall if the City required her to do so.
After the Goldsteins and Beck exchanged several proposed drafts of the consent letter, Beck refused to sign a consent letter.
9. Mediator’s Report No. 4: April 6, 2004 and June 22, 2004.
On April 6, 2004 and June 22, 2004, the parties appeared before Judge Schneider to resolve issues regarding the consent letter and the retaining wall. Judge Schneider ordered Beck to sign a consent letter in the form attached to his report. He further found that the grade difference between the two properties had existed for many years, and that the wall would be “engineered and/or designed to support the grade and load of [the Goldsteins’] lot to a level (height) no greater than it previously existed.” Judge Schneider ordered the Goldsteins to submit a grading report to Beck, with Beck to object to any report within five days, at which time it would be deemed presumptively correct and Beck would be required to execute the consent letter.
On July 16, 2004, the Goldsteins submitted a grading plan dated July 12, 2004 to Beck with a consent letter. Beck’s geologist reviewed the plans and submitted comments to Beck on July 19, 2004. Beck’s geologist claimed the July 12, 2004 grading plan was not in compliance with Judge Schneider’s order; Beck informed the Goldsteins of his disapproval on July 26, 2004. Although she admitted receiving the grading report as of July 19, 2004, Beck contended that five days later, July 24, 2004, was a Saturday, and that her response was excused until Monday, July 26, 2004.
10. Mediator’s Report No. 5: July 21, 2004.
On July 8, 2004, Beck requested a reconsideration of certain issues in Judge Schneider’s Report No. 4. Both parties participated in a conference call on July 21, 2004. Judge Schneider found that the date of the grading plan included in the sample consent letter should be changed to the date of the final grading plan, and that the final grading plan could include reference to the retaining wall. Judge Schneider further found that Beck had acknowledged receipt of a grading plan dated July 12, 2004, with an approved stamp dated July 14, 2004, and that procedures relating to approval of the grading plan remained as set forth in Report No. 4.
11. Dismissal of Goldstein I.
After Beck failed to sign the consent letter, on July 28, 2004, the Goldsteins brought a motion in the superior court to compel Beck to comply with Judge Schneider’s orders. Judge Shook set Goldstein I for trial. The case was assigned for trial to Judge Torres, who concluded that the dismissal with prejudice after the mediation deprived the superior court of jurisdiction.
B. GOLDSTEIN II.
On April 13, 2005, the Goldsteins filed a new action for breach of contract, promissory fraud, and nuisance. On December 30, 2005, Beck filed a cross-complaint; her operative first amended cross complaint alleged claims for ejectment, willful trespass, negligent trespass, quiet title, nuisance, fraud, zoning and building code violations, intentional infliction of emotional distress, negligence, breach of contract, specific performance, negligent misrepresentation, reformation of contract, cancellation of instrument, rescission, declaratory relief, and permanent injunction.
1. June 2007 Trial.
Prior to trial, Judge Kalin ruled the Settlement Agreement was enforceable and the subsequent agreements made in Judge Schneider’s reports would be admissible at trial. At trial, the Goldsteins argued that Beck breached the contract and created a nuisance by refusing to sign the consent letter and build a wall. Although Beck admitted in deposition that Judge Schneider had ordered her to build a retaining wall, she took the position the order had been retracted during the parties’ subsequent visits to Judge Schneider and therefore she was not obligated to do so. She further contended the Goldsteins’ construction caused loss of subjacent support to her garage and killed her trees. She further claimed that there was cross-lot drainage, and that the Goldsteins breached the agreement by failing to remove the north-south wall, and that they changed the grading of their property.
The Goldsteins presented evidence that Beck’s conduct left them with a large unfilled hole on their property, and that her conduct reduced the value of their property by $2 million. They asserted that repairing the property would only partially restore lost value because the history of the dispute would need to be disclosed to prospective buyers. Moreover, a retaining wall would cost $115,000 to build, construction on the wall would require demolition of a large portion of the Goldsteins’ backyard, without a retaining wall they would need to regrade their property, and they would need a consent letter from Beck to fill the hole left by the reflecting pool.
Beck argued the Goldsteins could have mitigated their damages by building such a wall or regrading their yard. Beck presented testimony that the cost of filling the hole, building a retaining wall, and building a privacy wall on Beck’s side would cost $93,513.
The trial court instructed the jury that it found the parties had entered into the Settlement Agreement pursuant to which they would submit disputes to Judge Schneider for ruling, and that Judge Schneider’s rulings became part of the Settlement Agreement.
The court instructed the jury that if they found that Beck’s “conduct constitutes a continuing nuisance which cannot be abated, the proper measure of damage for such conduct is the diminution of value of the Goldsteins’ property which would have resulted from Ms. Beck’s conduct. The Goldsteins are not entitled to recover damages for harm to their property that Cynthia Beck proves the Goldsteins could have avoided with reasonable efforts to expenditures.” Beck objected that the nuisance could be abated, and the cost of repair (which she contended was $93,513) was the appropriate measure of damages. Beck proposed the court instruct the jury with CACI No. 3903F, which the court refused to do. The jury was also instructed the measure of contract damages was the amount necessary to put the Goldsteins in the position they would have been in had Beck not breached the contract, and any harm Beck caused by her breach was reasonably foreseeable, or that the harm was likely to arise in the ordinary course of events caused by Beck’s breach of contract.
3. Jury Verdict, Punitive Damages Trial, Court Ruling on Equitable Issues, Post-Trial Motions.
The jury found for the Goldsteins on their breach of contract and nuisance claims, and awarded $2 million compensatory damages. The jury rejected Beck’s counter claims.
During the punitive damages phase, Beck testified she owns properties with an aggregate value of $19 million, and owned $19 million worth of brokerage accounts. The jury awarded $4 million in punitive damages.
The court ruled against Beck on the equitable issues in her cross-complaint, denying her requests for ejectment, specific performance, quiet title, rescission, reformation, and declaratory relief. The court found that the Goldsteins had been precluded from completing the pool removal due to Beck’s refusal to sign the consent letter; Beck acted wrongfully by refusing to sign the consent letter and build the retaining wall; Beck had elected to stand on the contract, making rescission inappropriate; Beck was equitably estopped from challenging the contract on the grounds of fraud because she had not alleged fraud; Beck was not entitled to reformation because she was only seeking a favorable interpretation of the term “wall;” and Beck had presented evidence on only her breach of contract and nuisance claims.
The trial court awarded the Goldsteins $1.25 million in attorneys’ fees, and denied Beck’s post-trial motions for judgment notwithstanding the verdict and new trial.
Beck contends that the Goldsteins improperly attached an order not in the record and a prior appellate decision in a related matter (Beck v. Old Republic National Title Insurance Co. (Jan. 28, 2009) No. B201868 [nonpub. opn.]) to their respondents’ brief. We disregard these documents because they are not part of the record, nor have we been requested to take judicial notice of them. (See Evid. Code, §§ 451, 452; Kendall v. Allied Investigations, Inc. (1988) 197 Cal.App.3d 619, 625.)
I. BREACH OF CONTRACT.
Beck argues she is not judicially estopped from challenging the enforceability of the Settlement Agreement, and argues it is not enforceable because its terms are uncertain. She further argues that even if the Settlement Agreement is enforceable, she did not breach its terms, and that pursuant to the Settlement Agreement, the Goldsteins should have sought damages from Judge Schneider, not the court.
A. Estoppel.
Beck argues that she is not judicially estopped from challenging the enforceability of the Settlement Agreement because she did not prevail on her July 2003 motion to enforce the Settlement Agreement; instead, Judge Shook took the motion off calendar. She asserts in addition that both sides have taken the position the Settlement Agreement was unenforceable and applying the doctrine to her alone would be unfair. She also contends the Goldsteins improperly raise the issue of whether she was equitably estopped in their respondents’ brief, and did not raise that issue in the trial court.
Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) The doctrine applies where “‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citation.]” (Drain v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, 957, quoting Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p. 183.)
Here, Beck is not judicially estopped from asserting the enforceability of the Settlement Agreement because she was not successful in asserting that position in front of the trial court in Goldstein I.
We decline to address the issue of whether Beck is equitably estopped because the Goldsteins did not raise this issue, which has different elements and requirements for proof, in the trial court. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13.)
B. Certainty of Settlement Agreement Terms.
Beck contends that the Settlement Agreement reflected no meeting of the minds on two key material issues: whether she was required to build a retaining wall; and the method to be used for resolving disputes. We disagree.
To be enforceable, a contract must contain sufficiently definite terms. The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for fashioning a remedy. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811 (Weddington).) Therefore, an agreement that leaves an essential element for future agreement is too uncertain to enforce. (Ibid.) However, a contract will be enforced if it is possible to reach a fair and just result even where the court is required to fill in the gaps. (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.) “The modern trend of the law favors carrying out the parties’ intentions through the enforcement of contracts and disfavors holding them unenforceable because of uncertainty.” (Okun v. Morton (1988) 203 Cal.App.3d 805, 817; see also Patel v. Liebermensch (2008) 45 Cal.4th 344, 349 [if feasible, agreements will be construed to carry out the reasonable intentions of the parties].) We review the question of whether the Settlement Agreement is sufficiently definite to enforce as a matter of law. (Ibid.)
1. Retaining Wall.
Beck contends that the agreement is unenforceable because the parties did not agree on how to resolve the grade differences between the two properties by specifying whether the Goldsteins would regrade or one of the parties would build a retaining wall. We disagree. The dispute did not require Judge Schneider to add any new material terms to the agreement, nor did he order performance inconsistent with the parties’ intentions. His order requiring Beck to build a retaining wall is consistent with the parties’ agreement that Beck would build a wall between the parties’ properties: “Beck [will], at her own expense, [] demolish the existing 10 foot high wall on the northern edge of her property... and build a wall on her side of the boundary line.” As the dispute’s resolution evolved over time, with the parties returning to Judge Schneider on numerous occasions, it became apparent that because of the grade differences between the properties and the fact the wall being replaced functioned as a retaining wall, Beck could perform under the Settlement Agreement only by building a retaining wall.
2. The Settlement Agreement Did Not Obligate the Parties to Participate in an Improper “Binding Mediation.”
Beck contends that the Settlement Agreement is an unenforceable “binding mediation” agreement because the Settlement Agreement gave the mediator authority to make binding rulings, but did not state that such mediator would become an arbitrator or spell out the “ground rules” for arbitration; and she points to the fact the parties and the court were confused whether Judge Schneider was a referee, a mediator, or an arbitrator. (See, e.g., Weddington, supra, 60 Cal.App.4th at p. 811; Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618 (Lindsay).)
Judge Kalin, the trial judge, stated he was unsure whether Judge Schneider was acting as an arbitrator or a mediator; Judge Schneider referred to himself as a mediator in his reports; the Goldsteins asserted both that he was a mediator and he was not; and Beck was unsure of Judge Schneider’s role.
Beck’s argument is misplaced. Under the Settlement Agreement the parties agreed to submit disputes arising under the agreement to Judge Schneider. This provision is not indefinite; the parties agreed to have a specific third party resolve their disputes concerning the agreed-on terms, but did not authorize him to create new terms. Nothing in Weddington or Lindsay compels a different result. In Weddington, the parties settled their case by executing a “deal point memorandum” that contained a licensing agreement clause and an ADR clause. (Weddington, supra, 60 Cal.App.4th at p. 799.) The licensing agreement clause provided that the parties “would formalize” the licensing agreement to provide Flick with a “fully paid up license” to use Weddington’s sound library. Neither “licensing agreement” nor “fully paid up license” were defined. (Ibid.) The ADR clause provided that the parties would reserve jurisdiction in the private judge to resolve disputes that might occur in implementation of the licensing agreement, and stated that the private judge could “administer any process, including fact-finding, if necessary, for a full implementation of the settlement.” (Id. at p. 800.) After the parties submitted a dispute concerning the licensing agreement to the private judge who imposed terms on the parties, Weddington found the parties’ settlement agreement too uncertain to enforce under section 664.6. (Id. at p. 815.) Weddington instead found the private judge improperly created the missing material terms of the licensing agreement (scope of license, permitted uses, grounds and procedures for termination, indemnity provisions, arbitration clause and jury trial right) “just as if the parties had agreed to them.” (Id. at p. 818.) Here, on the other hand, the parties agreed to the material terms at issue here: Beck would build a wall. No additional terms were imposed; rather, Judge Schneider interpreted those terms in a manner consistent with the parties’ intentions.
In Lindsay, the parties settled their dispute and provided that payment terms for a cash payment of $190,000 would be submitted to “binding mediation” with a retired judge. (Lindsay, supra, 139 Cal.App.4that p. 1620.) The Lindsay court held this provision uncertain and unenforceable because the parties did not agree on resolution of the payment dispute. (Id. at p. 1622.) “We cannot tell what the parties meant when they provided for ‘binding mediation,’ of the payment dispute.” Because the settlement also provided for submission of other disputes to arbitration, “the only thing that is clear is that the parties did not regard binding mediation as the equivalent of arbitration.” (Id. at p. 1623.) Unlike Lindsay where the parties left to the mediator a critical term regarding resolution of disputes that precluded a meeting of the minds, here the parties did not agree to a “binding mediation,” with a set of unspecified rules. Instead, they agreed to submit disputes concerning the implementation, not the terms, of the Settlement Agreement to Judge Schneider, with Judge Schneider’s decision to be binding.
C. Choice of Forum.
Beck contends the Settlement Agreement required the parties to go to Judge Schneider with any disputes and precluded resort to the superior court to resolve issues arising under the Settlement Agreement. We disagree.
The Settlement Agreement provides that, “The Parties agree that this Agreement... shall be binding on them and enforceable under [Code of Civil Procedure] § 664.6.” Under section 664.6, settlement agreements can be enforced in one of two ways: (1) by motion if the court has retained jurisdiction, or (2) if the court has not retained jurisdiction, by separate action. (See Weddington, supra, 60 Cal.App.4th at p. 808; Smith v. Golden Eagle Ins. Co. (1999) 69 Cal.App.4th 1371, 1374.)
The parties also contemplated an enforcement proceeding in another portion of their agreement. The Agreement provides: “In the event of a breach of this Agreement, the prevailing party in any action to enforce this Agreement shall be entitled to reasonable attorneys’ fees and costs.” Furthermore, Judge Schneider’s Mediator’s reports provide that his reports would be deemed incorporated into the handwritten Settlement Agreement and enforced as provided therein.
These clauses, taken together, evidence the parties’ intent to provide a remedy in the event Judge Schneider’s interpretation of the Agreement did not result in a way forward. Judge Schneider had the ability to interpret the language of the Agreement, but he could not force the parties to comply with that interpretation. Thus, where the parties failed to act as he ordered, the Agreement expressly provided a judicial remedy. Beck’s refusal to comply with Judge Schneider’s orders made resort to the court proper.
D. Beck’s Breach.
Beck contends she did not breach the Settlement Agreement or any additional terms added by Judge Schneider, and in particular did not breach her obligation to provide a consent letter or build a retaining wall. Beck contends her engineer communicated her objections to the revised plans the Goldsteins sent on July 19, 2004, within the required time period, and contended the Goldsteins never responded or asked to meet and confer. Finally, she asserts she was not obligated to build a wall until after the Goldsteins finished their work.
The elements of a claim for breach of contract are (1) the existence of a valid contract, (2) performance or excuse for nonperformance, (3) breach, and (4) resulting damage. (Smith v. Royal Mfg. Co. (1960) 185 Cal.App.2d 315, 325.) Materiality of breach is a question of fact reviewed for substantial evidence. (Associated Lathing & Plastering Co. v. Louis C. Dunn, Inc. (1955) 135 Cal.App.2d 40, 50 [materiality of breach question of fact]; Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460 [question of fact reviewed for substantial evidence].)
In considering whether there is substantial evidence to support the jury’s findings, we review the entire record in the light most favorable to the judgment to determine whether there are sufficient facts, contradicted or uncontradicted, to support the judgment. (Jonkey v. Carignan Const. Co. (2006) 139 Cal.App.4th 20, 24.) Substantial evidence is evidence which is reasonable, credible, and of solid value. In evaluating the evidence, we do not consider issues of credibility or whether contrary inferences may be made from the evidence. (Kuhn v. Department of General Servs. (1994) 22 Cal.App.4th 1627, 1632-1633.)
Substantial evidence supports the jury’s conclusion that Beck breached the contract in two respects by failing to build the wall and by refusing to sign the consent letter, and that her performance was not excused. The facts show that Beck sent a letter to the Goldsteins on July 26, 2004, more than five days after a response was called for by Judge Schneider’s reports, although she admits she received the letter July 19, 2004 and therefore a response was due by July 24, 2004. The fact that Beck contests these facts and highlights other facts in the record in support of her arguments does not undermine our substantial evidence review.
II. NUISANCE FINDING AND PUNITIVE DAMAGES PREMISED ON BREACH OF CONTRACT.
Beck contends that the nuisance finding and the ruling on her equitable claims were premised upon her violation of a contractual duty, and if we find that she did not breach the contract or violate a duty, these findings must be reversed. She also contends that because her liability primarily arose from breach of the Settlement Agreement, the punitive damage award fails. We disagree.
First, we have upheld the jury’s verdict that Beck breached the Settlement Agreement. The evidence also supports the jury’s conclusion that Beck’s conduct constituted a nuisance. A nuisance is anything that “is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property....” (Civ. Code, § 3479.) A landowner has a duty to use his or her property in a manner that does not injure the property of another, and “an action for private nuisance is designed to redress a substantial and unreasonable invasion of one’s interest in the free use and enjoyment of one’s property.” (Hellman v. La Cumbre Golf & Country Club (1985) 6 Cal.App.4th 1224, 1230.)
Here, by failing to honor her obligations under the Settlement Agreement, Beck created a condition on the Goldsteins’ property that interfered with their use and enjoyment of their property. They no longer had a reflecting pool, a wall on the southern boundary of the property, or use of their driveway due to the piles of dirt in it, and their property was in a continuous state of demolition and construction, with a large hole that they could not fill in.
III. DAMAGES AWARD.
A. No Error in Awarding Goldsteins Damages Based on Diminution in Value.
Beck contends that even if we affirm her liability on the contract and nuisance claims, the damages award must be reversed. Beck disputes that the nuisance was permanent, contending she sent a draft consent letter to the Goldsteins that she was willing to sign, but which they rejected, and that the Goldsteins could have abated the nuisance themselves. She argues that the nuisance was continuing because it could be abated, and therefore that diminution in value was not the proper measure of damages. We disagree.
A nuisance may be permanent or continuing. “A permanent nuisance is where a single occurrence causes permanent injury, and damages are assessed once and for all. On the other hand, where the nuisance involves a use which may be discontinued at any time, it is characterized as a continuing nuisance. The test of a continuing nuisance is whether the offensive condition can be discontinued or abated at any time. Where there is doubt as to the permanency of the injury the plaintiff may elect whether to treat a particular nuisance as permanent or continuing.” (Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 980.)
Diminution in value damages are proper for a permanent nuisance. (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1785.) However, a plaintiff in a continuing nuisance case is not permitted to recover diminution in value damages because that would result in a double recovery by permitting plaintiff to both obtain depreciation in value and to have the cause of the depreciation removed. (Gehr v. Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 668.) Whether a nuisance is continuing or permanent is a question of fact. (Shamsian, supra, 107 Cal.App.4th at p. 979.)
Here, although the jury was instructed that they could award diminution in value damages if they found a nuisance that could not be abated, the jury did not expressly find that Beck’s conduct was either a permanent or a continuing nuisance. Therefore, although we conclude that Beck’s conduct constituted a nuisance, because the jury was not instructed on the two types of nuisance and made no specific finding in this regard, we cannot infer the jury found that Beck’s conduct constituted a permanent nuisance such that diminution in value damages were proper.
However, under a contract theory, a party is entitled to recover cost of repair or diminution in value. (See, e.g., Erlich v. Menezes (1999) 21 Cal.4th 543, 561 [contract damages for defective construction calculated either as cost of repair or diminution in value]; Orndorff v. Christiana Community Builders (1990) 217 Cal.App.3d 683, 687.) Where there is damage to real property, the proper measure is the lesser of the two amounts. (Green v. General Petroleum Corp. (1928) 205 Cal. 328, 336; Mozetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 576.) Here, however, the court refused Beck’s cost of repair instruction, and the jury was instructed only on diminution in value. While this was error, it is not reasonably probable the result would have been different if the cost of repair instruction had been given. Thus, there is no miscarriage of justice, and no basis for reversal. (Cal. Const., art. I, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802 [miscarriage of justice results only where, after an examination of the entire cause, we are of the opinion it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error].
There is no evidence in the record that the cost of repair would have made the Goldsteins whole. (Civ. Code, § 3300.) They could not fill the swimming pool hole without Beck’s signature on the consent letter, which she had persistently refused. Without the retaining wall on Beck’s property, which she also refused to build, the Goldsteins would be required to substantially regrade their property, despite the fact that the differential in grading between the two properties pre-existed their purchase and this dispute. There is no evidence of a reasonable ability to repair.
B. Substantial Evidence Supports Punitive Damages.
Beck contends there was insufficient evidence of malice, oppression, or fraud to support the jury’s award of punitive damages because there was no evidence she acted out of ill will or had an intent to harm the Goldsteins. We disagree.
Punitive damages are generally not awardable in an action arising from breach of contract. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1286.) However, where breach of contract violates an independent duty, failure to perform a contractual duty will support an action in tort. (Erlich v. Menezes, supra, 21 Cal.4th at p. 551.) “[I]n each of these cases, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.” (Id. at pp. 551-552.) Here, although we uphold the damage award on contract principles, the jury found Beck’s breach of the Settlement Agreement also constituted a violation of her duty not to create a nuisance that interfered with the Goldsteins’ use and enjoyment of her property, making punitive damages proper.
Punitive damages may be awarded only upon clear and convincing proof of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Malice implies “‘an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. There must be an intent to vex, annoy or injure.... Mere negligence, even gross negligence, is not sufficient to justify such an award.’ [Citation].” (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2); Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “Despicable” in this context requires conduct that is “so vile, base, contemptible miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331, quoting BAJI No. 14.72.1 (1989 rev.).) Punitive damages are proper only when the defendant’s conduct “‘rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)
Here, substantial evidence supports the jury’s findings of malice and oppression. Beck, without excuse or justification, refused to sign the consent letter ordered by Judge Schneider pursuant to the Settlement Agreement and the subsequent Mediator’s Reports and required by the Los Angeles Municipal Code; Beck received the Goldsteins’ grading plans, yet refused to respond in a timely fashion; and Beck accepted the Settlement Agreement’s terms by compelling the Goldsteins to remove their pool and create a hole on their premises, yet later claimed there was no agreement and that she did not have to perform by building a wall or signing the consent letter.
IV. AWARD OF ATTORNEYS’ FEES.
Because we affirm the judgment, and Beck does not make any substantive argument that the trial court abused its discretion in the award of attorneys’ fees, we affirm the award. (Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1165 [award of attorney fees within the sound discretion of trial court and absent a manifest abuse of discretion the determination of the trial court will not be disturbed].)
DISPOSITION
The judgment of the superior court is affirmed. Respondents are to recover their costs on appeal.
We concur: PERLUSS, P. J., JACKSON, J.