Opinion
B158129.
7-31-2003
BRUCE GRAVES et al., Plaintiffs and Appellants, v. ALLAN B. BRUM et al., Defendants and Respondents.
Steven A. Blum, for Plaintiffs and Appellants. Mandel & Pillemer and David B. Pillemer for Defendants and Respondents.
In this appeal, plaintiffs challenge a judgment entered in favor of defendants after the trial court determined that plaintiffs claims against defendants have already been adjudicated in a prior action, or are barred by the statute of limitations. Plaintiffs assert that the allegations made in their complaint in the instant case are different from those in the complaint in the earlier case and therefore this suit is not barred by res judicata or collateral estoppel. Plaintiffs further assert their causes of action are not barred by the statute of limitations.
From our examination of the record we conclude that while some of plaintiffs claims were already decided by the prior action, others were not. Those claims that were not adjudicated in the earlier law suit are either not barred by the statute of limitations (specifically, those that involve allegedly improper cutting of vegetation on plaintiffs property), or they involve allegations of continuing damage and thus are not necessarily barred (those that involve water damage to plaintiffs property). Therefore, we will reverse the judgment and remand the case for further proceedings.
BACKGROUND OF THE CASE
This suit was filed on October 2, 2000. Plaintiffs are Bruce Graves and Maria Graves ("plaintiffs"). Defendants are Allan Brum and Andrea Brum ("defendants"). Plaintiffs and defendants own residential properties in Encino, California. Their respective lots have a common rear property line. Defendants home is upslope of plaintiffs home. Plaintiffs acquired title to their property by a grant deed from Mr. and Mrs. Norman Sloan in September 1979. Defendants acquired title to their property in March 1994 from Mr. and Mrs. Philip Boskovich.
As more fully set out infra, plaintiffs complaint alleges that defendants trespassed on plaintiffs property and cut, topped and trimmed plaintiffs trees and other vegetation; and further alleges that defendants have a tennis court on their property that is damaging plaintiffs land. Plaintiffs asserted causes of action for trespass, negligence per se, negligence, and nuisance.
On December 29, 2000, defendants filed a demurrer in which they contended that plaintiffs claims of emotional distress are barred by the one year statute of limitations for bodily injury in Code of Civil Procedure section 340, and the claims of nuisance, injury to property, and trespass are barred by the three-year statute of limitation in Code of Civil Procedure section 338.
Defendants also asserted that plaintiffs claims have already been adjudicated in a suit that was then-pending in the Court of Appeal, Second Appellate District. In this earlier suit, which was filed in the Los Angeles Superior Court (LC039242) on November 2, 1996, plaintiffs sued defendants, and defendants cross-complained against plaintiffs. The trial court entered judgment in that first suit on August 31, 1999, and plaintiffs appealed. The court also issued an order for a prescriptive easement in favor of defendants over a portion of plaintiffs property located between a chain link fence and the true property line between the parties respective properties.
On February 9, 2001, the trial court in the instant suit issued its minute order sustaining the demurrer on the basis of Code of Civil Procedure section 430.10, subdivision (c), to wit, that this other action was pending between the parties on the same cause of action. The court ordered that after the appeal in the first suit was resolved, plaintiffs would have 30 days leave to amend their complaint.
On October 16, 2001, Division One of this appellate district filed its opinion in plaintiffs appeal in which it affirmed the trial courts denial of most of the damages that plaintiffs had sought in their first suit, and it reversed the trial courts granting of a prescriptive easement, except for a portion of the easement which it affirmed.
On November 2, 2001, defendants filed a second demurrer to the complaint in the instant case, which they based on the doctrine of res judicata and the statute of limitations. Plaintiffs opposition to the demurrer asserted that their first suit concerned title to the top portion of the slope of plaintiffs backyard where defendants had trespassed and had cut trees (which plaintiffs refer to as the "disputed area), whereas the instant suit concerns trees cut by defendants on a different part of plaintiffs property (the "undisputed area"), and also concerns "flooding that has eroded the upper portion of the [plaintiffs] backyard slope. Plaintiffs also asserted that their claims in the instant case are not barred by the statute of limitations.
The term "disputed area" refers to the portion of plaintiffs property between the actual property line and a chain link fence that sits downslope from that property line. While the disputed area belongs to the plaintiffs, the defendants were deemed to have a prescriptive easement over a portion of it-where defendants swimming pool deck overhangs such area. The "undisputed area" is situated below the chain link fence.
On February 14, 2002, the trial court signed and filed an order sustaining defendants second demurrer without leave to amend. The court determined that plaintiffs claims in the instant suit are either barred by the applicable statute of limitations or were adjudicated in the prior suit.
On April 15, 2002, plaintiffs filed a premature appeal, as no judgment, or order of dismissal, had yet been signed and filed by the trial court. A judgment in favor of defendants was subsequently signed and filed on May 23, 2002.
DISCUSSION
1. Standard of Review
We conduct a de novo review of the judgment because the sufficiency of the allegations in a complaint is a question of law. (Coopers & Lybrand v. Superior Court (1989) 212 Cal. App. 3d 524, 529, 260 Cal. Rptr. 713 In reviewing the complaint, we accept as true the properly pleaded allegations of fact therein, but not the contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal. Rptr. 718, 703 P.2d 58.) We also accept as true facts which may be inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) We consider matters which may be judicially noticed, and we "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We do not concern ourselves with whether the plaintiff will be able to prove the facts which she alleges in her complaint. (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1521.) The judgment or order of dismissal must be affirmed if any of the grounds for demurrer raised by the defendant is well taken and disposes of the complaint. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 831 P.2d 317.) It is error to sustain a general demurrer if the complaint states a cause of action under any possible legal theory. (Ibid.) It is an abuse of the trial courts discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action. (Ibid.) To prove abuse of discretion, the plaintiff must demonstrate how the complaint can be amended. Such a showing can first be made to the reviewing court. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1386, 272 Cal. Rptr. 387.)
2. Allegations of the Operative Complaint in the First Case
In plaintiffs original suit, (filed in November of 1996), the operative complaint ("complaint") alleged that defendants property was located at the top of a slope, that this slope was part of plaintiffs property, and that approximately 75% of plaintiffs property was covered with vegetation, including trees, plants, bushes, and other vegetation. The complaint alleged that prior to defendants unlawful acts on plaintiffs land, such vegetation provided plaintiffs with privacy from their neighbors, including defendants, and with a natural barrier for preventing landslides during heavy rains.
According to this complaint, defendants, through their agents, "engaged in an initial act of trespass" in October 1995 by cutting and removing small trees and shrubs that were located on plaintiffs property on the top of the slope. Then in October 1996, defendants, by and through their agents, trespassed on plaintiffs property "by constructing a retaining wall made of railroad ties and removing small trees and shrubs on the slope of [plaintiffs] property." They removed this vegetation to prepare the site for the retaining wall.
The complaint goes on to allege that defendants agents constructed the retaining wall in an unsafe manner when they failed to install adequate drainage, and the condition of such wall constitutes a dangerous condition that could cause damage to plaintiffs property and to plaintiffs themselves as a result of a landslide during a rainy period, and this unsafe condition was made worse by the removal of the small trees and shrubs. Plaintiffs alleged they were damaged because of (1) the presence of the retaining wall, (2) the loss of the vegetation and retention of soil and water, (3) the diminished value of their property, and (4) the need to retain experts to examine the dangerous condition created by defendants. Moreover, defendants acts caused plaintiffs to suffer emotional damage.
In this original suit, plaintiffs alleged causes of action for trespass and negligence. They asserted a right to treble damages under Civil Code section 3346, which sets out the measure of damages "for wrongful injuries to timber trees, or underwood upon the land of another, or removal thereof." They also claimed treble damages under Code of Civil Procedure section 733 .
Although defendants assert that the three-year statute of limitations for trespass or injury to real property applies to plaintiffs claims (Code Civ. Proc., § 338), Civil Code section 3346 provides for a five-year statute of limitations for such damages-measured from the date of the trespass.
Additionally, plaintiffs asked for declaratory and injunctive relief and quieting of title, all respecting a portion of land that is part of their property. Specifically, they alleged that in April 1996, they discovered a chain link fence on their property, situated 13 feet below the property line between the parties respective lots, and in that same month, they discovered that a portion of a deck on defendants property extends five feet onto plaintiffs property, and these two encroachments on their property are verified by a survey map which plaintiffs obtained in April 1996. Such map was revised in October 1996 to depict the location of the railroad ties retaining wall after that wall had been constructed. Plaintiffs alleged that they demanded that defendants remove the chain link fence, the encroaching portion of the deck, and the retaining wall, but defendants refused.
3. Allegations of the Complaint in the Instant Case
According to the complaint in the instant case, in mid-October 1995, October 1996, and July and August 2000, defendants and their agents entered upon plaintiffs property, without plaintiffs consent, and cut trees and other vegetation on plaintiffs property, including cutting environmentally protected trees in October 1995. The trees that were cut include Southern California Black Walnut (1995 and 2000 trespasses), Coast Live Oak (1996 and 2000 trespasses), and Lemonade Berry (2000 trespass). The damages claimed by plaintiffs for these cuttings of trees and other vegetation exceeds $ 73,000.
The complaint further alleges that since 1983, defendants property has been out of compliance with a Los Angeles City Building Code respecting site drainage because there is a tennis court on defendants property that has inadequate drainage and such noncompliance with the building code results in a concentrated drainage of water onto plaintiffs property that has eroded plaintiffs property, caused a loss of slope stability, and threatens further damage, including a landslide, all of which diminishes the value of plaintiffs property and threatens the safety of plaintiffs. Plaintiffs alleged it was in June 1998 that they discovered that the tennis court was graded in this manner such that it collects and deposits sheets of rainwater onto plaintiffs property. Moreover, the tennis court was constructed without proper permits from the City, and was constructed too close to plaintiffs property and is thus in violation of the Citys zoning code respecting side yards. Plaintiffs further alleged they have been forced to retain experts to examine the dangerous condition created by defendants.
In their complaint, plaintiffs prayed for compensatory and emotional damages, and injunctive relief, and they asserted entitlement to treble damages under the abovementioned Civil Code section 3346 and Code of Civil Procedure section 733. The complaint alleges causes of action for trespass, negligence per se, negligence, and continuing nuisance.
4. Comparison
of the Operative Complaints in the Two Cases
a. Allegations Regarding Cutting of Vegetation
The allegations regarding the cutting of vegetation are similar in the two cases. The instant suit complains that in October 1995, October 1996, and July and August 2000, defendants and their agents entered upon plaintiffs property, without plaintiffs consent, and cut trees and other vegetation on plaintiffs property, and it specifically mentions Southern California Black Walnut (1995 and 2000 trespasses), Coast Live Oak (1996 and 2000 trespasses), and Lemonade Berry (2000 trespass).
In the original suit, no specific names of trees are mentioned; rather, plaintiffs asserted that defendants agents removed small trees and shrubs for the purpose of preparing a portion of plaintiffs land for a retaining wall. However, there are similar dates-both suits allege wrongful cuttings in October 1995 and October 1996. The instant suit adds wrongful cuttings in July and August 2000.
b. Allegations Regarding Other Injuries to Plaintiffs Property
The initial suit complained of encroachments in the form of a chain link fence, a retaining wall and a part of defendants deck, and complained the retaining wall was negligently constructed so as to be unstable and to have inadequate drainage which could cause a landslide during rainy season, a condition made worse by the removal of shrubs and trees. The instant suit complains of an improperly constructed tennis court and alleges that the water deposited on plaintiffs property by the inadequate grading of the tennis court has eroded their property and threatens to do so even more in the future (continuing nuisance), and further alleges that plaintiffs discovered problems with the tennis court in June 1998.
5. The Trial Courts Statement of Decision In the First Case
In their opposition to defendants first demurrer to the complaint in the instant case, plaintiffs included the trial courts lengthy spoken statement of decision from the first suit, wherein the court stated that plaintiffs claimed that both the "disputed area" and the area below the disputed area seemed to be less full in terms of vegetation after defendants moved into their home in 1994. The court noted that while the plaintiffs had not made, in their complaint, claims about the vegetative state of the undisputed area, nevertheless during the trial, damages had been claimed by plaintiffs about the undisputed area and evidence had been presented about that undisputed area, and therefore, the court indicated it would consider and address that area in its statement of decision. The court ruled there was insufficient evidence to support the claim that defendants caused gaps in the vegetation in the undisputed area by removing or cutting trees, and insufficient evidence to support a claim of actual damage in that area.
6. Our Analysis of This Appeal
a. The Alleged Cuttings of Plaintiffs Vegetation
There is no evidence that plaintiffs objected to the trial court making factual findings regarding defendants alleged trespass and damage to the undisputed area of plaintiffs property. Indeed, after the statement of decision had been put on the record and the judgment articulated on the record, plaintiffs asked the trial court to amend their complaint to conform to proof, saying they were asking for the amendment because defendants had not objected to the issues that were included in plaintiffs proof at trial. Defendants objected to amending the complaint and the trial court did not allow the amendment.
Based on what the court said when it declined to allow the amendment, plaintiffs assert in the instant appeal that the trial court actually ruled that the issue of cutting vegetation in the undisputed area would not be part of its statement of decision. We, however, do not so read the courts comments. Plaintiffs have reference to the following answer given by the trial court to their request to have the complaint amended: "Because the court did consider the areas which were never covered, never mentioned, never brought up, never alleged, never complained of in the complaint in this case, I believe that the motion at this point after the rendering of the statement of decision, especially where I did pass upon those areas, anyway, and did comment on the insufficiency of the evidence to those areas of damage claimed during the trial but never alleged in the complaint, most respectfully, . . . I believe [plaintiffs] motion is not well-taken and is denied." (Italics added.)
This ruling was error. The trial courts consideration and resolution of the very issues that were the subject of the proposed amendment clearly justified (and perhaps compelled) the granting of plaintiffs motion. This error, however, was clearly harmless. In view of the trial courts ruling, the allowance of the amendment might have dotted the "is" and crossed the "ts" but it would have made no difference in the outcome.
Our reading of this passage indicates to us that the court (1) was aware that damages from alleged cuttings in the undisputed area were not claimed in the complaint but were claimed at trial, (2) did consider those un-alleged claimed damages, and (3) when passing on the un-alleged claim, found there was insufficient evidence to support it.
Because of such a finding of insufficient evidence, it is clear to this court that the part of plaintiffs claims in the instant suit regarding trespass on their property to cut trees in October 1995 and October 1996 are barred by the trial courts having already considered and ruled on those claims. However, there remains the allegation that defendants trespassed on plaintiffs property in July and August 2000 and cut trees and other vegetation there. That accusation could not have been adjudicated in the earlier trial since it concerns a time coming after the trial. Nor could such a claim be barred by a statute of limitations since the instant suit was filed in October 2000. Therefore, the demurrer to the complaint should not have been sustained without granting plaintiffs leave to file an amended complaint that alleges that defendants trespassed in July and August 2000 and cut vegetation on plaintiffs property.
b. The Alleged Damage from Diversion of Surface Waters
In their complaint, plaintiffs also have alleged that defendants tennis court was built in 1983 by the people who owned defendants property at that time, and that it was built out of compliance with the building and zoning codes of the City of Los Angeles. Plaintiffs do not allege that the tennis court itself is on their property. They allege that the tennis court was constructed on defendants property, is adjacent to plaintiffs property, and is located too close to plaintiffs property. Plaintiffs complain of the flow of sheets of water from the tennis court onto their sloping backyard. The complaint alleges that plaintiffs discovered, in June 1998, that the tennis court was graded so that it collects and deposits sheets of rainwater onto the slope at the rear of plaintiffs property, and that such water has eroded plaintiffs property and threatens to further erode it, potentially causing earth movement, and this condition threatens plaintiffs safety and diminishes the value of their property.
Section 338 of the Code of Civil Procedure provides for a three-year statute of limitations for "an action for trespass upon or injury to real property." Defendants argue that the three-year limitation period is applicable here and it began running in 1983 when the tennis court was constructed, and therefore plaintiffs claim based on the tennis court is time barred. They further assert that plaintiffs have alleged a permanent nuisance, that is, the creation of the tennis court, and that this permanent nuisance also has a three-year limitations period, which defendants assert began running in 1983 when the court was built.
Defendants also contend that plaintiff Maria Graves was on defendants property in the early 1990s, when defendants grantor owned the lot, and she spoke to their grantor while she was standing on the tennis court, and therefore plaintiffs had constructive notice of a condition that could cause damage to their property; that is, Ms. Graves could see that when it rains, water would go off the tennis court and down the hill. Plaintiffs assert defendants are engaging in a speaking demurrer.
We do not find defendants arguments well taken. Rather, we find the following language from Polin v. Chung Cho (1970) 8 Cal. App. 3d 673, 87 Cal. Rptr. 591 instructive. "The statute of limitations runs from the date the cause of action accrues. In Hicks v. Drew (1897) 117 Cal. 305 (an injury to real property without a trespass) defendant built a wall on his land in April or May 1890 which subsequently caused surface waters to flow on plaintiffs land. Plaintiff filed an action November 29, 1893. A two-year statute of limitations was then applicable to an injury to real property. The court held that plaintiff was entitled to recover all damages suffered after November 29, 1891, that is, a cause of action accrued as each injury occurred even though the cause of the injury was the building of the wall more than two years before the action was filed. [Citation.] The statute does not run from the time the act of diversion is committed but from the date the injury resulting therefrom is sustained. [Citation.] Similarly, when a defendant makes an excavation not on plaintiffs land which later causes subsidence of plaintiffs land, the rule is that a new and separate cause of action arises with each new subsidence, with any applicable limitations statute running separately for each separate subsidence. [Citation.]" (Polin v. Chung Cho, supra, 8 Cal. App. 3d at p. 677.)
The court in Hicks v. Drew (1897) 117 Cal.305, 312, 49 P. 189 observed that the plaintiff can present evidence on damages accruing after the complaint is filed as well as those that accrued within the statutory period prior to the commencement of the action. (In Elton v. Anheuser-Busch Beverage Company, Inc. (1996) 50 Cal.App.4th 1301, 1305-1306, the court observed that Hicks was impliedly overruled by subsequent decisions of the Supreme Court. However, the change in the law was on an issue other than the one we address here-the plaintiffs right to present evidence on damages accruing after a suit is filed.)
"In the arcane area of water law under consideration in this case, the rights and liabilities of private property owners for property damage or personal injury are in large part dependent upon classification of the water as surface waters, flood waters, or stream waters. Water diffused over the surface of land, or contained in depressions thereon, and resulting from rain, snow, or which rises to the surface in springs, is known as surface water. It is thus distinguishable from water flowing in a fixed channel, so as to constitute a watercourse, or water collected in an identifiable body, such as a river or lake. The extraordinary overflow of rivers and streams is known as flood water. [Citations.]" (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 344-345, 867 P.2d 724.)
"The civil law rule adopted for California more than a century ago [citation] gave the owner of . . . higher land an easement or servitude over a lower parcel which allowed him to discharge surface waters as they naturally flow from his higher land onto the lower land of the servient owner. [Citations.] The lower owner had no right to obstruct that flow. In theory, the owner of the lower parcel accepted it with the burden of natural drainage. [Citation.] Nonetheless, the owner of the higher land was not permitted to gather the surface waters by artificial means and discharge them on to the lower lying land in greater volume or in a different manner than they would naturally be discharged. [Citation.]" (Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 348-349)
Today, the "rule governing landowner liability for surface water runoff and drainage is no longer simply a rule of property law dependent upon the existence of rights, servitudes, or easements. The civil law rule was modified more than a quarter of a century ago by the landmark decision in Keys v. Romley [(1966)] 64 Cal.2d 396, 50 Cal. Rptr. 273, 412 P.2d 529. There [the Supreme Court] recognized the tendency of the civil law rule limiting immunity for damages caused by surface water runoff onto adjacent property to inhibit development of land, since any change in the upper property would affect the natural runoff. (Id., at p. 402) Today a landowners conduct in using or altering the property in a manner which affects the discharge of surface waters onto adjacent property is subject to a test of reasonableness. " It is . . . incumbent upon every person to take reasonable care in using his property to avoid injury to adjacent property through the flow of surface waters. Failure to exercise reasonable care may result in liability by an upper to a lower landowner. It is equally the duty of any person threatened with injury to his property by the flow of surface waters to take reasonable precautions to avoid or reduce any actual or potential injury. " If the actions of both the upper and lower landowners are reasonable, necessary, and generally in accord with the foregoing, then the injury must necessarily be borne by the upper landowner who changes a natural system of drainage, in accordance with our traditional civil law rule. (Keys v. Romley, supra, 64 Cal.2d 396, 409.)
"At least with respect to surface water runoff onto adjacent lands, the California rule is that stated in Keys v. Romley, supra, 64 Cal.2d 396, 409: No party, whether an upper or a lower landowner, may act arbitrarily and unreasonably in his relations with other landowners and still be immunized from all liability. " (Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 351-352.)
"What constitutes reasonable conduct is not always easy to ascertain. . . . But the question of reasonableness of conduct is not related solely to the actors interest, however legitimate; it must be weighed against the effect of the act upon others. [Citation.]
"The issue of reasonableness becomes an issue of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter. [Citation.] It is properly a consideration in land development problems whether the utility of the possessors use of his land outweighs the gravity of the harm which results from his alteration of the flow of surface waters. [Citation.] The gravity of the harm is its seriousness from an objective viewpoint, while the utility of conduct is its meritoriousness from the same viewpoint. [Citation.] If the weight is on the side of him who alters the natural watercourse, then he has acted reasonably and without liability; if the harm to the lower landowner is unreasonably severe, then the economic costs incident to the expulsion of surface waters must be borne by the upper owner whose development caused the damage. If the facts should indicate both parties conducted themselves reasonably, then courts are bound by our well-settled civil law rule." (Keys v. Romley (1966) 64 Cal.2d 396, 409-410, 50 Cal. Rptr. 273, 412 P.2d 529.)
Use of a reasonableness standard for determining liability when applying surface waters law suggests tort rather than property law, and the Keys court observed that it was being "urged to consider the reasonable use rule as an attempt to cope with the problem through the use of tort rather than property concepts" (Keys v. Romley, supra, 64 Cal.2d at p. 406) and that "much of the confusion in the law regarding rules and theories is caused by a failure to ascertain whether water doctrine arises under property or tort law" (id. at p. 407). The court went on to say: "As pointed out by Kinyon and McClure in their article [Interferences With Surface Waters (1940)] 24 Minnesota Law Review 891, at page 936, There is no question, however, that ones liability for interfering with surface waters, when incurred, is a tort liability. An unjustified invasion of a possessors interest in the use and enjoyment of his land through the medium of surface waters, or any other type of waters, is as much a tort as a trespass or a private nuisance produced by smoke or smells. " (Id. at pp. 407-408.)
Applying these principles to the instant case, we conclude that because there is a three-year statute of limitations for injury to real property, and because this suit was filed on October 2, 2000, plaintiffs are entitled to claim all damages suffered after October 2, 1997. Whether plaintiffs will be able to prove their claims is to be determined by the trier of fact upon remand of this case.
As for defendants contention that the issue of tennis court water runoff was adjudicated in the first suit, we do not find that their citation to the statement of decision in that case supports their position. The portion of the statement of decision relied on by defendants is in the trial courts discussion of whether defendants should be required to remove their deck and retaining wall since a portion thereof encroaches on plaintiffs property.
In that portion of the statement of decision, the court goes through the elements of injunctive relief that warrant not requiring such removal, and it applies the evidence to those elements. A portion of the courts analysis concerns the stability of the plaintiffs slope as such stability has been affected by changes made in the land by defendants or their predecessors, and the court stated that an expert witness who reexamined the area after a railroad tie terracing was removed found that "there was no additional danger due to railroad tie replacement and removal. The planting was still necessary to limit surface erosion. The drainage in the area of the tennis court seemed okay and acceptable. The drainage in the other areas in front of the deck would be handled naturally."
We cannot say that this singular mention of the state of the tennis court drainage is (1) a finding of fact on (2) an issue actually litigated. This is not like the situation addressed above where although the complaint in the earlier suit had not alleged defendants removed vegetation from the undisputed area, the plaintiffs nevertheless made such claims at trial respecting the undisputed area and their claims were actually adjudicated and found to be factually unsupported. Defendants point to nothing in the record showing that the state of the tennis court drainage was actually litigated. Indeed, it is not even clear to us that the trial courts tennis court drainage analysis addresses that portion of the tennis court that drains onto plaintiffs slope. Perhaps the tennis court drains in more than one place, and the one addressed by the court was relevant to the stability of the deck. Defendants simply have not met their burden of showing that the surface water diversion issue has already been decided.
c. Plaintiffs Claim of Emotional Distress Damages
Plaintiffs are correct in asserting that in claiming damages for emotional distress, they are not bound by the statute of limitations for personal injury (Code Civ. Proc., § 335.1 [providing for a two-year limitations period]), since they have not alleged a "stand- alone" cause of action for infliction of emotional distress, but rather have alleged mental distress damages as elements of damage of their various causes of action.
Plaintiffs are entitled to assert damages for mental suffering as part of the detriment caused by defendants allegedly wrongful conduct in cutting vegetation and permitting surface waters to improperly flow onto plaintiffs property. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433-434, 58 Cal. Rptr. 13, 426 P.2d 173.) In Crisci, the court stated: "The general rule of damages in tort is that the injured party may recover for all detriment caused whether it could have been anticipated or not. [Citations.] In accordance with the general rule it is settled in this state that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain." (Id. at p. 433.) The court observed that awards of damages for mental distress "are not confined to cases where the mental suffering award was in addition to an award for personal injuries; damages for mental distress have also been awarded in cases where the tortious conduct was an interference with property rights without any personal injuries apart from the mental distress. [Citations.]" (Ibid; accord Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986, fn. 10, 863 P.2d 795, where the court noted that "precedent in the law of nuisance and trespass establishes quite clearly that emotional distress without physical injury is compensable".)
d. Plaintiffs Public Nuisance Argument
Plaintiffs assert that because they have alleged that the tennis court was constructed in violation of city zoning and building codes, they have thus alleged a public nuisance. They further assert there is no statute of limitations defense to a cause of action based on a public nuisance. We will not address the latter assertion because we find plaintiffs presentation on the former wanting.
Civil Code section 3480 defines a public nuisance as "one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." Plaintiffs have not alleged facts consistent with the definition of a public nuisance, and their sole appellate attempt to bring this case within the confines of section 3480 is to assert that "the seriousness of landslides in this hilly area cannot be understated." Based on this scant analysis, we find no cause to address the matter any further.
DISPOSITION
The judgment is reversed and the cause is remanded for further proceedings consistent with the views expressed herein. All parties shall bear their own costs on appeal.
We Concur: KLEIN, P.J., ALDRICH, J.