Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV062484.
RUVOLO, P.J.
A jury found appellant City of Mill Valley (the City) liable for damages in connection with a landslide that resulted in one death, and caused property damage to two residences. The judge who presided over the trial also found the City liable for inverse condemnation. On appeal, the City contends that: (1) the trial judge committed misconduct and was biased against it; (2) the jury instructions and special verdict form erroneously allowed the jury to award emotional distress damages for wrongful death; (3) the evidence is insufficient to support the City’s liability for inverse condemnation and dangerous condition of public property; (4) the jury was instructed incorrectly on the measure of damages for inverse condemnation; and (5) the trial judge abused his discretion in determining the amount of attorney fees to award on the inverse condemnation claim. We find no reversible error, and affirm.
Facts and Procedural Background
Hillside Avenue, which traverses a steep slope in the City, was constructed sometime before 1925 using a method that was common at the time: the hill was excavated to create a level site for the roadbed, and the soil removed by the excavation was deposited on the downhill side. Hillside Avenue rests on a right-of-way controlled by the City. On the downhill side of the road, the right-of-way extends some 13 to 15 feet below the edge of the road’s shoulder, so that the City-controlled area includes the topmost portion of the undeveloped slope.
In 1970, respondent Lisa Guthrie and her late husband Walter Guthrie bought an existing house on Bolsa Avenue. At that location, Bolsa Avenue runs roughly parallel to Hillside Avenue, lower down the hill. Respondents Douglas Wilson and Peri Ann Wood (the Wilson-Woods) later moved into a house on Hillside Avenue situated uphill from, and slightly to one side of, the Guthries’ house.
For clarity and brevity, and intending no disrespect, we will refer to the individual Guthrie family members by their first names.
A ravine ran behind the Guthries’ house. During the rainy season, water from the hillside, and from culverts under Hillside Avenue, collected into a stream at the bottom of the ravine. When the Guthries’ house was built, a concrete pipe was embedded in its foundation in order to carry the water from the ravine to a storm drain on Bolsa Avenue. Walter’s practice was to clean debris from the concrete pipe periodically, using a shovel and a hose. To gain access to the inlet of the pipe at the rear of the house, Walter would go out through a sliding glass door at the rear of the Guthries’ bedroom, and climb down about three or four feet to ground level.
In 2001, the City widened and repaved a portion of Hillside Avenue extending roughly northeast from the Wilson-Woods’ home. This road construction (the 2001 project) was designed so that in cross-section, the road would slope slightly toward the uphill side, where there was a shallow drainage channel. On the downhill side of the road, a low cement curb was built at the edge of the shoulder. No new fill was added during the course of the 2001 project.
Several major rainstorms occurred in the City during the winter of 2005-2006. As a result, by mid-December 2005, the soil lying on the slope below Hillside Avenue adjacent to the Wilson-Wood home and above the Guthrie home had started to “creep” down the hill. On March 29, 2006, Wood called the City to report that cracks had appeared in the asphalt paving at the edge of Hillside Avenue, just above the Guthrie house. The City sent an employee (associate engineer Richard Dudak) to investigate, and on March 31, Dudak returned to the site with an outside consultant, soils engineer Scott Stephens.
All further references to dates are to the year 2006 unless otherwise noted.
Stephens concluded that the slide was originating on the Guthries’ property, and was due to erosion of the toe of the slide, which was near the ravine at the bottom of the hillside. Stephens recommended that a pipe be installed at the bottom of the ravine, on the Guthries’ property, to carry the drainage past the toe and thus prevent further erosion. Stephens believed that if the hillside did give way, the slide debris would become lodged against the upslope on the far side of the ravine, and would not continue down along the ravine as far as the rear of the Guthries’ house.
That same day, March 31, the City’s principal engineer, Wayne Bush, called Walter to advise him of Stephens’s recommendation regarding the placement of a pipe in the ravine. Bush also advised Walter that he should retain a soils engineer to assess the situation on the slope. Walter promptly called an excavation contractor, met with him at the site, and arranged to have the pipe installed on the following day. Walter also engaged a soils engineer, John Hom, who recommended that the Guthries install a retaining wall.
The contractor, Glen Ghilotti, was the same one the City had used for the 2001 project on Hillside Avenue. Ghilotti met with Dudak at the site on March 31, and was “amazed” that the concrete work from the 2001 project was “still hanging in the area” even though the soil had fallen away from underneath the edge of the road.
During the ensuing 10 days, the soil on the hillside below Hillside Avenue continued to drop away from the road. Dudak continued to make frequent site visits, and reported to Bush that the slide was still progressing at a rate of four to six inches per day. By April 6, a split rail fence about three feet high, the bottom of which was originally level with the road, had moved so far down the hill that the top of the fence was now well below the edge of the road. In response to the slide, the City entertained the idea of erecting a retaining wall after the rainy season ended. In the meantime, however, it did not take any immediate measures to prevent damage or injury, other than putting up barricades to keep vehicles away from the edge of the road on the downhill side.
On April 11, Lisa returned from an out-of-town trip. It was raining heavily, and rocks were washing down the ravine, making it very noisy in the Guthries’ bedroom. At Walter’s suggestion, Lisa slept in another bedroom so the noise would not disturb her. Around 3:00 a.m. on April 12, Lisa was awakened by the sound of banging on rocks. She went to the master bedroom, and saw Walter outside the sliding glass door, trying to remove a large rock that threatened to block the concrete pipe. Alarmed, Lisa went to the kitchen, called 911 for help, and returned to the master bedroom to get dressed. As she did so, she heard a loud whoosh sound, and turned to see a wall of mud piled up against the sliding glass door. The mudflow was pressing so hard against the glass that the door bulged inward, and the mud was starting to ooze into the bedroom. Lisa soon realized that Walter must have been buried by the mud.
The landslide not only killed Walter, but also did extensive damage to the Guthries’ house. In addition, it destroyed a series of level terraces next to the Wilson-Woods’ house that were used for gardening and outdoor seating, and denuded the hillside of vegetation, including mature trees, that had contributed to the Wilson-Woods’ privacy and view.
Lisa, her daughter Anne Guthrie, and Walter’s estate sued the City, the Wilson-Woods, and other defendants for damages arising out of the landslide. The Wilson-Woods later filed a cross-complaint against the City and other defendants. By the time the case went to trial, the City was the only remaining defendant. The plaintiffs comprised Lisa, both in her personal capacity and as trustee of her and Walter’s trust; Lisa and Walter’s adult daughter Anne; and the Wilson-Woods. The causes of action at issue were nuisance; dangerous condition of public property (Gov. Code, § 835), and inverse condemnation.
We will use the term the Guthrie plaintiffs to refer collectively to Lisa individually, Lisa in her capacity as trustee, and Anne.
The case was tried before Marin County Superior Court Judge Michael B. Dufficy during March and April 2009. The parties agreed that all issues would be tried to the jury, except that the court would determine the City’s liability to the Guthries and the Wilson-Woods for inverse condemnation. Much of the trial evidence consisted of a “battle of the experts” regarding the nature and cause of the landslide, and the measures that could have been taken to prevent it.
While the jury was deliberating on liability, Judge Dufficy ruled against the City on the inverse condemnation causes of action as to both sets of plaintiffs, based on his finding that the slide originated in the City’s right-of-way as a result of water entering the fill through tension cracks in the paving, and possibly also sheeting over the edge of the road on the downhill side. The next day, April 24, 2009, the jury returned special verdicts finding the City liable for dangerous condition of public property and nuisance. In assessing the parties’ comparative fault, the jury found the City 95 percent liable for the Guthries’ property damages; 50 percent liable for Walter’s death; and 75 percent liable for the Wilson-Woods’ property damages.
The case was then returned to the jury for special verdicts as to damages. The jury awarded $1, 957, 127 in economic damages to the Guthrie plaintiffs, plus $2, 750, 000 in noneconomic damages to Lisa and $100, 000 in noneconomic damages to Anne. In addition, on the inverse condemnation causes of action, the jury found that the slide diminished the value of the Guthries’ property by $1, 025, 000, and of the Wilson-Woods’ property by $315, 000.
On May 21, 2009, the court entered judgment. The court adjusted the jury’s tort damage awards for comparative fault; offset a good faith settlement with another defendant; and added prejudgment interest, expert fees, and attorney fees to the inverse condemnation awards. As a result, the judge awarded the Guthrie plaintiffs $1, 884, 016 on the inverse condemnation claim, and $1, 794, 965 on the dangerous condition and nuisance claims. The Wilson-Woods were awarded $584, 534.25 on their inverse condemnation claim. This timely appeal ensued.
The Guthrie plaintiffs and the Wilson-Woods filed a joint respondents’ brief. For brevity, we will refer to them collectively as respondents.
Discussion
A. Judicial Misconduct
The City’s first contention on appeal is that the trial judge engaged in misconduct and was biased against it, which prejudiced its defense. It points to a letter sent by Judge Dufficy to at least one juror, which that juror provided to the City’s counsel, and which the City argues constituted judicial misconduct and revealed the court’s bias against it. The letter was sent after the jury had rendered all of its verdicts, but before postjudgment motions were heard and decided.
The City requested that we take judicial notice of this letter on appeal. Respondents did not oppose the request, and we granted it, subject to a determination of relevance, by order filed September 8, 2010.
In the letter, the judge thanked the juror, on behalf of himself and his staff, for her time, cooperation, and attention to her duty as a juror. He remarked that he found the expert testimony at the trial to be interesting and educational, and that he hoped this was also the case for the juror.
Had the judge stopped there, the content of the letter would not have been a cause for concern. It is not improper for a trial judge to send posttrial letters to jurors thanking them for their service. (People v. Belmontes (1988) 45 Cal.3d 744, 816, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Cal. Stds. Jud. Admin., § 2.30 (standard 2.30) [“At the conclusion of a trial, ... it is appropriate for the trial judge to thank jurors for their public service....”].)
However, the letter also included the following paragraph: “As I told you at the conclusion of the trial, I still believe the jury verdict was just and fair. The verdict on liability was consistent with my verdict on the inverse condemnation cause of action. However the one memory from the trial that will always trouble me is whether the landslide could have been prevented if the City of Mill Valley had taken aggressive action to prevent it from occurring, by sandbagging and tarping the roadway and hillside during the period March 29 to April 12. We’ll never know the answer.”
At the end of the letter, the judge also explained the procedural posture of the case, noting that the possibility of postjudgment motions and an appeal made it “likely that the case will remain active in the court system for some time.” This was permissible under canon 3B(9) of the California Code of Judicial Ethics, which permits judges to “explain for public information the procedures of the court.” All further references to canons are to the California Code of Judicial Ethics.
This portion of the judge’s letter violated at least canon 3B(10), which states: “(10) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.”
As the City argues, the letter arguably also violated canon 3B(7), the ban on ex parte communications.
The quoted language in the judge’s letter also directly violated standard 2.30, which provides that a judge’s comments to the jury after the trial “should not include praise or criticism of the verdict....” As cautioned in Formal Opinion 52, issued by the Judicial Ethics Committee of the California Judges Association in 2002: “[¶] A judge may never suggest to a jury that he or she agrees or disagrees with the verdict.” (Cal. Judges Assn. Jud. Ethics Com., Formal Op. No. 52 (Oct. 10, 2002) <http://www.caljudges.org/files/pdf/Op%2052%20Final.pdf> [as of July 15, 2011], at p. 5.) The quoted language also gives rise at least to the appearance of impropriety. (See People v. Farnam (2002) 28 Cal.4th 107, 193 [“Although trial courts may understandably wish to express gratitude to jurors in lengthy... trials..., they must refrain from making any comment indicating that they cannot, or will not, perform their obligations fairly and impartially under the law.”]; see generally People v. Belmontes, supra, 45 Cal.3d at pp. 815-816.)
The Advisory Committee Commentary to canon 3B(10) points out that the danger from such comment on the merits of a verdict is that it “may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.”
The letter itself, of course, could not have influenced the jury, as it was not sent until after all of the verdicts had been returned. Moreover, it was not misconduct per se for the judge to form or express an opinion regarding the City’s liability in this particular case. All of the evidence had been adduced, and, as the trier of fact on the City’s liability for inverse condemnation, the judge had not only a right, but a duty, to decide whether the City was liable for the landslide. (Code Civ. Proc., § 170; canon 3B(1).) Indeed, he had already done so, by ruling against the City on the inverse condemnation causes of action. At most, therefore, the letter constitutes evidence that Judge Dufficy improperly commended the jury for its verdict and expressed his view of the merits to a discharged juror. In and of itself this would not constitute reversible error, in the absence of evidence that the judge allowed his opinions to affect his conduct of the trial in a way that may have prejudiced the jury, or prevented the City from making its best case.
The City argues that the judge displayed bias in favor of respondents throughout the course of the trial consistent with the state of mind expressed in his post-verdict letter, warranting reversal of the judgment. Specifically, the City complains that the judge’s extensive questioning of witnesses gave the impression that he favored respondents and he erred by permitting the jury to submit an unusually large number of questions to be asked of witnesses. Respondents counter that the issue was waived by the City’s failure to object at trial, and that in any event, neither the judge’s questions nor his handling of the questioning by the jury evinced any favoritism to either party.
“The trial judge has the duty to control all proceedings during the trial with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. [Citation.] To this end he may examine witnesses to elicit or clarify testimony. [Citations.] The mere fact that a judge examines a witness at some length does not establish misconduct, nor does the fact that the testimony elicited by the judge’s questions would probably have been elicited by counsel. [Citation.]” (People v. Pierce (1970) 11 Cal.App.3d 313, 321; see People v. Raviart (2001) 93 Cal.App.4th 258, 270; see also People v. Fudge (1994) 7 Cal.4th 1075, 1108.)
On the other hand, “[u]nwarranted interruptions of counsel that interfere with a properly conducted examination, excessive questioning that virtually takes the witness out of counsel’s hands, or a display of partisanship are improper. [Citations.]” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 544, pp. 780-781.) “The question for us to decide is whether the judge ‘officiously and unnecessarily usurp[ed] the duties of [respondents’ counsel]... and in so doing create[d] the impression that he [was] allying himself with [respondents.]’ [Citations.]” (People v. Clark (1992) 3 Cal.4th 41, 143; see People v. Cummings (1993) 4 Cal.4th 1233, 1305.)
Whether a particular question or series of questions by a judge goes too far is difficult to assess on a cold record, because we cannot determine if the tone of any particular question was other than neutral, and because the transcript does not indicate the length of pauses by the attorneys in between the answer to one question and the asking of another. (People v. Raviart, supra, 93 Cal.App.4th at p. 272 [trial court is “ ‘in a better position than the reviewing court to know when the circumstances warrant or require the interrogation of witnesses from the bench’ ”].) Moreover, even if the trial court asked too many questions, that does not necessarily mean it lost its neutrality. It is the City’s burden, as the appellant, to show error, and without such a showing, we cannot assume the trial court intervened too quickly or inappropriately.
Using these guiding legal precepts, we have reviewed the transcript of the trial in detail. Nothing in the record convinces us that the trial judge’s overall conduct of the proceedings was anything other than fair and even-handed. The questions he asked of witnesses, albeit numerous, were generally in the nature of clarifications or requests for further factual details. On the whole, the judge’s rulings sustaining or overruling objections to questions were well-founded in law, and did not clearly favor one side or the other. Taken in context, the examples of partisan questioning of witnesses cited in the City’s briefs appear as small, isolated islands in a sea of impartiality.
Moreover, with a few scattered exceptions, the City’s counsel did not pose any objection to the questions asked by the judge, either in general or with regard to specific questions. The California Supreme Court has held that the lack of objection forfeits claims of judicial misconduct: “It is settled that a judge’s examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred. [Citations.]” (People v. Corrigan (1957) 48 Cal.2d 551, 556.) This rule has been applied repeatedly to claims of improper questioning by judges. (See People v. Harris (2005) 37 Cal.4th 310, 350; People v. Hines (1997) 15 Cal.4th 997, 1040-1041; see also People v. Raviart, supra, 93 Cal.App.4th at p. 269; People v. Pierce, supra, 11 Cal.App.3d at pp. 321-322; People v. Flores (1952) 113 Cal.App.2d 813, 817-818.)
The City argues that its failure to object at trial should not be held to effect a forfeiture of the issue, because the judge’s bias was so overwhelming and pervasive that objections would have been futile. As noted above, however, the record does not bear out this claim. For example, the City’s trial counsel objected to respondents’ counsel’s questions on numerous occasions, and the trial judge sustained many of these objections. Thus, the record does not support the City’s contention that the atmosphere at the trial was so charged by judicial bias as to dissuade its counsel from voicing any objections to the questioning of witnesses by the judge and jury.
Despite the City’s arguable forfeiture of the issue, we have considered it on the merits in the interest of justice. Our conclusion is that when the specific examples of alleged misconduct identified in the City’s briefs on appeal are viewed in the context of Judge Dufficy’s generally unexceptionable conduct of the trial, we are not persuaded that they could have been prejudicial. It is true, as the City points out, that the judge misstated the facts when he asked one of the witnesses, Francis Kennedy, whether the witness was aware that Bush was not a licensed engineer, when in fact Bush did have a state engineering license, though he did not have an academic degree in engineering. The witness and the Guthrie plaintiffs’ counsel each promptly corrected the court’s misimpression. In addition, as the City acknowledges, its trial counsel took pains to rehabilitate Bush by asking him about the extensive course of study required for someone without an engineering degree to qualify for a state license. In the overall context, any prejudice that may have been caused by the trial judge’s misstatement was fully dispelled by the City’s subsequent efforts to correct it.
Moreover, the City’s briefs on appeal omit any mention of two items of persuasive evidence, both occurring near the end of the trial, indicating that Judge Dufficy did not harbor bias toward the City. First, during the City’s defense case, the City presented the testimony of geotechnical engineer Richard Short, who had been designated, and deposed, as an expert on the causation of the slide. Over respondents’ strenuous objections, the judge, in his own words, “went out on a limb” and permitted the City to present Short’s testimony on two subjects not covered in his original deposition: a method of restoring the stability of the hillside where the slide had occurred, and an analysis of the mechanics of the slide that Short performed after his deposition was taken. Second, at the request of the City’s trial counsel, and over respondents’ objection, the judge instructed the jury on government immunity for inspections. These rulings in the City’s favor, coupled with our overall impression from the trial record, confirm our conclusion that Judge Dufficy did not commit judicial misconduct, and did not evince any prejudice against the City during the course of the trial.
Finally, we observe that the trial court instructed the jury with CACI No. 5016, which provides: “In this case, I have exercised my right to comment on the evidence. However, you the jury are the exclusive judges of all questions of fact and of the credibility of the witnesses. You are free to completely ignore my comments on the evidence and to reach whatever verdict you believe to be correct, even if it is contrary to any or all of those comments.” We presume the jury followed this instruction, and thus, in assessing the evidence, considered the answers to the trial court’s questions, and not any comment stated or implied in the questions themselves. (See People v. Sanchez (2001) 26 Cal.4th 834, 852.)
We also conclude that it did not constitute misconduct for Judge Dufficy to permit the jury to submit questions for the witnesses, to be reviewed by the court and counsel before they were actually asked. (See Cal. Rules of Court, rule 2.1033 [“A trial judge should allow jurors to submit written questions directed to witnesses. An opportunity must be given to counsel to object to such questions out of the presence of the jury.”]) With a few trivial exceptions, such as a question about the date a particular photograph of the site was taken, the judge permitted counsel to review and object to all of the jury’s questions, either at sidebar or during a recess, before posing them to the witnesses. Counsel, including the City’s trial counsel, generally found the questions unobjectionable, and our review of the record demonstrates that the jury questions presented to witnesses were relevant and otherwise proper. Where counsel did object to the jury’s questions, or they were inappropriate for the particular witness to whom they were posed, the judge explained that to the jury, and either declined to ask the question, or postponed it.
Accordingly, we find no basis to reverse the judgment on this ground.
B. Emotional Distress Damages
As already noted, the jury awarded noneconomic damages to both Lisa and Anne. It is settled law that damages for mental and emotional distress are not available in a wrongful death action, except under the so-called “bystander” theory, which was not pled in the present case. (Krouse v. Graham (1977) 19 Cal.3d 59, 72; cf. Dillon v. Legg (1968) 68 Cal.2d 728 [bystander theory].) On the other hand, as the City acknowledges, such damages are recoverable in an action for nuisance, if they are proximately caused by the nuisance. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986, fn. 10; Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287-288.) Emotional distress damages are also recoverable in an action for dangerous condition of public property under Government Code section 835. (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 710-711 [parents who witnessed drowning of their children due to dangerous condition of public property could recover damages for resulting emotional distress].)
Because emotional distress damages can be awarded as part of a dangerous condition claim, the City’s argument that the trial court erred in not limiting these damages to the nuisance cause of action, and then only to distress caused by the loss of use and enjoyment of the plaintiffs’ property, is moot. Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d 69 did not apply any similar limitation to emotional distress damages in dangerous condition claims, and the City has not cited any authority so holding.
In accord with these principles, the instructions informed the jury that for wrongful death, it could award noneconomic damages only for loss of consortium, and that in determining this loss, it must not consider “grief, sorrow or mental anguish.” This instruction defined loss of consortium as “[t]he loss of Walter Guthrie’s love, ... companionship, comfort, care, assistance, protection, affection, society, moral support, ... training and guidance to his entire family, ” and (as to Lisa) “enjoyment of sexual relations.” A separate instruction informed the jury that it could award damages to Lisa for the “[p]ast and future mental suffering[, ] loss of enjoyment of life, inconvenience, grief, anxiety, humiliation and/or emotional distress.” This instruction did not specify the cause or causes of action for which such damages could be awarded.
The relevant special verdict form, which was not put into final form until after the jury had returned its verdicts on liability, was headed “Damages for Wrongful Death of an Adult.” (Original capitalization omitted.) It itemized the various components of economic damages Lisa could recover (individually or as the trustee of the family trust). It then asked, “What are Lisa Guthrie’s non-economic damages?” A blank appeared directly opposite this question, and the jury wrote in the blank, “Lump sum [$]2, 750, 000.” Underneath the question, the verdict form included paragraphs itemizing four categories of noneconomic damages, with a blank after each. The categories were past loss of consortium; future loss of consortium; past emotional distress; and future emotional distress. The jury did not fill in the blanks for any of these specific categories. The verdict form followed the same format as to Anne, but listed only past and future loss of consortium as allowable categories of damages. The jury responded in the same way, by awarding a “lump sum” of $100, 000.
The verdict form essentially tracked the language of the jury instructions in describing loss of consortium and emotional distress.
On appeal, the City complains that the special verdict forms and jury instructions incorrectly permitted the jury to award emotional distress damages for the wrongful death claim, and that “[t]he circumstances of this case suggest” that it is “more likely than not” that the jury did exactly that. At trial, the City’s counsel objected to the inclusion on the verdict form of damages for past and future emotional distress, contending that these types of damages are available only in actions for negligent infliction of emotional distress, which the Guthrie plaintiffs had not pleaded. The Guthrie plaintiffs’ counsel pointed out, in response, that negligent infliction of emotional distress is not a separate tort, and that the complaint did include a demand for emotional distress damages under both the dangerous condition and nuisance causes of action. The court then accepted the verdict form as submitted, and the City’s counsel did not request further clarification, except with regard to the relevant time frame for future damages for wrongful death.
Respondents contend that the City forfeited its objection to the verdict form that the City now contends invited the jury to award emotional distress damages as part of the wrongful death claim. We agree. Although the City’s trial counsel objected to the form on other grounds, counsel never requested that the form be revised to delete the reference to wrongful death in the heading, or to correlate specific elements of noneconomic damages with particular causes of action. Moreover, after the verdict forms had been given to the jury, the court and counsel held a further discussion regarding the verdict form in question. Despite this second opportunity to do so, the City’s trial counsel again failed to raise any objection to the aspects of the form of which the City now complains. Instead, the City’s counsel explicitly agreed with the court and respondents’ counsel that jury should be told to disregard the subsidiary blanks for each element of noneconomic damages, and instead, to award those damages in lump sum form, one sum for Lisa and another for Anne.
In its reply brief, and again at oral argument in this court, the City argued that its agreement to the lump sum format for the award of noneconomic damages did not constitute a waiver of the argument the City now makes. The City contends that by the time the lump sum issue was discussed, any objection to the award of emotional distress damages would have been futile, in that (as discussed ante) the City had already objected to permitting the jury to award emotional distress damages, and had been overruled. However, the City’s earlier, overruled objection was based on a different ground than the one it seeks to press on appeal. The earlier objection was that by including the categories of emotional distress listed on the special verdict form, the Guthrie plaintiffs were seeking to recover for negligent infliction of emotional distress as a separate tort, which they had not pleaded. The trial court’s rejection of this argument does not imply that the court would not have been willing, if the City had so requested, to change the title of the special verdict form, or to revise the form to reiterate that—as the jury had already been instructed—emotional distress damages could be awarded only for nuisance and/or dangerous condition of public property, and not for wrongful death.
Thus, the City could have raised at trial the objection to the special verdict form that it now raises, and failed to do so. It therefore forfeited the right to object to the form on the grounds it has raised on appeal. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [party “waived any objection to the special verdict form by failing to object before the court discharged the jury”]; see also Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 262-268; K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 949-950.)
Moreover, by the time the jury received the special verdict forms as to damages, it had already found in favor of respondents on their causes of action for nuisance and dangerous condition of public property. Thus, even if the jury had been informed more clearly by the verdict form itself, and not just by the instructions, that it could not award emotional distress damages on the wrongful death claim, there is no reason to believe that the jury did so, or that it would not have awarded those same damages on the nuisance and/or dangerous condition claims. For this reason, the City has not carried its burden of demonstrating that it was prejudiced by any jury confusion that may have occurred.
C. Liability for Inverse Condemnation
The City also argues that the evidence is insufficient as a matter of law to support the judgment holding the City liable for inverse condemnation. The City’s argument is based on the principle that an action for inverse condemnation may be based on physical injury to private property stemming from a public improvement, but in such cases, the damage must stem either from the improvement itself, as deliberately designed and constructed, or from the public entity’s deliberate acts in undertaking a “particular plan or manner of maintenance. [Citation.]” (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 742; McMahan’s of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683, 694-698, disapproved on another ground by Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 447-451; see also Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 600.) The City argues that there is no evidence in the record that the landslide was caused either by the way Hillside Avenue was designed and constructed, or from the City’s deliberate “plan or manner of maintenance.”
In assessing this contention, we are obligated to view the evidence in the light most favorable to the verdict. (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043 [“In reviewing the sufficiency of evidence on appeal, we resolve all conflicts in favor of the prevailing party and we indulge all legitimate and reasonable inferences to uphold the verdict if possible.”]; see Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 375, 379.) So construed, the record establishes that between March 29 and April 12, the landslide’s eventual transformation from a creeping downhill movement into a sudden, massive mudflow was caused by the cumulative effect of several factors, each of which was causally linked to the design and construction of Hillside Avenue, and/or to the City’s deliberate decisions about the maintenance of Hillside Avenue in the area of the slide.
First, the method by which Hillside Avenue was originally constructed resulted in the presence of relatively large quantities of heavy fill on the downhill side of the road. Second, the design of the 2001 project did not provide the road with sufficient drainage capacity to preclude the possibility of water pooling on the road, or sheeting over the downhill edge, in a heavy rainstorm, particularly if the shallow gutter on the uphill side of the road became obstructed with rocks, vegetation, or other debris. Third, once the slide caused a gap to open up between the paving and the underlying soil, and tension cracks appeared in the pavement, the City chose to address the issue only by placing barricades to prevent cars from driving on the edge of the road, and to wait until after the rainy season had abated to undertake the construction of a retaining wall.
It does not appear from the record that the City owned Hillside Avenue at the time it was built, or participated in its construction. It is clear, however, that the City was responsible for the design of the 2001 project, and that the City did not remove the fill in the course of that project. Thus, the City’s maintenance of Hillside Avenue left the original fill in place on the slope at the time the slide began.
According to respondents’ experts, whose testimony the jury and the trial court evidently credited, what ultimately triggered the collapse of the slope was the addition of rainwater during the heavy downpour on the night of April 11-12. The water seeped in through the tension cracks in the roadway, and possibly also spilled over onto the slope from the edge of the road. It saturated the soil, adding to the weight pressing on the hillside from above and reducing the cohesion of the soil. As a result, a mass of soil liquefied and flowed downhill, impacting the rear of the Guthrie house.
Respondents’ expert testified that even if the rainwater only entered the tension cracks, and did not sheet over the edge of the road, this still would have been sufficient to cause the slide. The City’s own expert conceded on cross-examination that water could enter the slide mass through the tension cracks, and that this contributed to causing the slide.
Thus, substantial evidence in the record supports the conclusion that the City’s design, construction, and maintenance of Hillside Avenue, acting together, proximately caused the transformation of the creeping landslide into a rapid mud flow during the extremely heavy rainstorm on the night of April 11 and the early morning hours of April 12. As discussed post in connection with the City’s liability on the dangerous condition of public property cause of action, there is substantial evidence supporting the trial judge’s implied finding that that the City had actual notice of the inherent risk that the landslide could damage the Guthrie residence. Under the applicable case law, the City’s intentional decision not to take any immediate measures to protect the hillside from damage originating in the right of way constituted a “plan or manner of maintenance” for which nuisance liability is appropriate. (See Arreola v. County of Monterey, supra, 99 Cal.App.4th at p. 742 [“So long as the [public] entity has made the deliberate calculated decision to proceed with a course of conduct, in spite of a known risk, just compensation will be owed.”]; McMahan’s of Santa Monica v. City of Santa Monica, supra, 146 Cal.App.3d at pp. 693-698 [city’s deliberate adoption of inadequate maintenance system supported inverse condemnation liability].) Accordingly, we are not persuaded by the City’s argument that it cannot be held liable for inverse condemnation.
D. Measure of Damages for Inverse Condemnation
The jury instruction on inverse condemnation damages stated that if respondents produced evidence of both a reduction in the value of their property and the reasonable cost of repairing it, the jury should award the lesser of the two amounts, except that if respondents had “a genuine desire to repair the property for personal reasons, and if the costs of repair are reasonable given the damage to the property and the value after repair, then the costs of repair may be awarded even if they exceed the property’s loss of value.” As already noted, the jury awarded the Wilson-Woods $315, 000 for property damage, which the judgment attributed to their inverse condemnation claim. This amount appears to have been based on the $345, 000 figure that the Wilson-Woods’ expert testified would be the cost of repairing the property by replacing the outdoor terraces, walkways, and landscaping destroyed by the landslide.
The jury awarded the Wilson-Woods $30, 000 less than what their expert testified it would cost to repair the slide damage to their property. Thus, we see no merit in the City’s argument that the judgment must be reversed due to misleading wording in the special verdict form that could have been interpreted to allow an award of diminution in value plus the cost of repair. It is evident from the face of the verdict, construed in light of the evidence, that the jury did not interpret the verdict form in this manner.
On appeal, the City contends that the jury instruction and accompanying special verdict form should not have permitted the jury to award the Wilson-Woods damages based on the cost of repair, and that in any event, there was no substantial evidence that the value of their property diminished due to the landslide. The City therefore contends that the judgment in favor of the Wilson-Woods should be reversed.
The City acknowledges that in inverse condemnation cases, cost of repair is allowed as an alternative measure of damages under unusual circumstances. It contends, however, that no such circumstances were present here. The case on which the City primarily relies is Housley v. City of Poway (1993) 20 Cal.App.4th 801 (Housley). In that case, the landowner sold a portion of his land so that an adjacent road could be widened, but specifically declined to grant an easement for the construction and maintenance of a large slope elevating the road. The defendant built the slope anyway, and the landowner sued for inverse condemnation. The evidence was that the fair market value of an easement for the slope was far less than the cost to remove the slope and to rebuild the road. The jury was given vague instructions about the measure of damages, and awarded a figure well in excess of the fair market value.
On the defendant’s appeal, the Housley court concluded that under the facts of that case the cost of repair formula was “basically illogical.” It reasoned that “[t]he theory of inverse condemnation is that property has been taken and devoted permanently to public use, ” and once compensation for the taking has been paid at full market value, “[i]t would constitute double recovery” to require the government entity to “pay an additional amount based upon what it might cost the landowner to recapture the same land.” (Housley, supra, 20 Cal.App.4th at p. 809.)
Significantly, however, the Housley court itself acknowledged that its reasoning applied to “a situation in which only land is taken and improvements are not damaged.” (20 Cal.App.4th at p. 809.) In Housley, “nothing suggest[ed] that, absent repair, [the property owner’s] ability to make use of the remainder of his property would be adversely affected [by the taking] or would constitute a threat to safety.” (Id. at p. 808, fn. omitted.) The present case presents exactly the converse situation. The City did not physically take possession of any of the land belonging to the Wilson-Woods. Rather, their exterior improvements were damaged—indeed, destroyed—due to the City’s inadequate response to the deteriorating condition of Hillside Avenue and the adjacent right of way. Nonetheless, the Wilson-Woods intended to continue living in the house. Thus, this case does present “unusual circumstances” under which cost of repair makes far more sense as a measure of damages than the fair market value of the property “taken.” (Cf. Pacific Gas & Elec. Co. v. County (1965) 233 Cal.App.2d 268 [where county widened road adjacent to gas pipeline, requiring pipeline to be relocated in order to avoid significant interference with utility’s ability to maintain and repair it, proper measure of damages was cost of relocating pipeline].)
In the alternative, the City argues that even if cost of repair is allowable in this case, the Wilson-Woods did not establish that the cost of repair was less than the diminution in value of their property. Indeed, the City contends that there is no evidence of any such diminution. It is settled law, however, that a property owner is competent to testify as to the value of his or her property. (Evid. Code, § 813.) In the present case, Wilson testified that the value of the house was diminished by the slide in an amount essentially equal to the cost of repair, because if the repairs were not done, that cost would have to be deducted from what would otherwise be the sale price. This evidence is sufficient to justify the jury’s verdict setting the Wilson-Woods’ damages at $315, 000.
The City also contends that the “personal reason” exception, which permits an award of cost of repair even if it is greater than the property’s diminution in value, does not apply in inverse condemnation cases. This argument is mooted, however, by Wilson’s testimony that in the present case, the two amounts are essentially equal. Accordingly, we need not address it further.
E. Liability for Dangerous Condition
The City contends that substantial evidence does not support the jury’s determination that Hillside Avenue was in a dangerous condition of which the City had actual or constructive notice. Our review of the record, however, discloses sufficient evidence of a dangerous condition, and of at least constructive notice to the City, to support the verdict.
Geotechnical engineer Short, one of the City’s own experts, testified that in his opinion, the slide had become inevitable by mid-December 2005, due to the heavy rainy season. Short also opined that the imminence of the slide and the danger it posed to the Guthries’ house would have been visible to a trained eye at least by April 11. Indeed, Ghilotti, the contractor whom Walter hired to place the pipe in the ravine, testified that it was obvious to him, at the time, that the slide posed a danger to the Guthries’ house. Thus, when Ghilotti met with Dudak at the site on March 31, Ghilotti suggested to Dudak that the City cover the top of the hill.
Concededly, Stephens, the engineer whom the City consulted in late March, believed that the slide was being caused by the water in the ravine eroding the toe of the slide. But even after the Guthries took the step Stephens recommended to ameliorate this condition—the installation of the pipe in the ravine—the slide continued to progress. Dudak knew that this was occurring, and relayed this information to Bush. Thus, the City had actual notice before April 11 that the installation of the pipe had not halted the progress of the slide. This put the City at least on constructive notice that Stephens’s solution was not working. Indeed, Stephens himself told Dudak to continue to monitor the slide after the pipe was installed, implying that Dudak should contact him if the situation changed.
Both respondents’ and the City’s experts agreed, after the fact, that Stephens erred in concluding that the slide was caused by the erosion of the toe by the water in the ravine.
The City argues that even though it had notice that there was a slow progressive landslide at the site, this does not warrant holding it liable for the damages caused by the sudden mud flow, which it argues was a separate condition of which it did not have notice. In support of this argument, the City cites Ellis v. City of Los Angeles (1959) 167 Cal.App.2d 180 (Ellis) and Drummond v. City of Redondo Beach (1967) 255 Cal.App.2d 715 (Drummond).
In Ellis, supra, 167 Cal.App.2d 180, the defendant city hired a contractor to remove an old city-owned sewer and construct a new sewer to replace it. While an employee of the contractor was operating a pile-driving rig, the old sewer collapsed underneath it, causing the rig to overturn, and killing the employee. The employee’s heirs sued the city, contending that the location of the old sewer 3½ feet below the surface of the street constituted a dangerous and defective condition of public property of which the city had knowledge. Before the accident occurred, the employee had operated the rig over a distance of more than 500 feet without incident. The expert testimony indicated that the accident was caused by a combination of many factors, including “the weight of the equipment, the strength of the old sewer line, the carrying capacity of 3½ feet of pavement above the sewer, the lateral support furnished by the earth surrounding the sewer and the vibration of the earth caused by the hammering and its weakening effect.” These factors, taken together, “created an engineering problem for which there was no ready answer, even by competent observers, ” and “none of the engineers on the job suspected that an accident would occur.” (Id. at pp. 187-188.)
The jury found for the city, but the court granted the plaintiffs’ motion for a new trial. On appeal, the order granting a new trial was reversed. The Court of Appeal noted that under the applicable statute, “there can be no negligence in failing to repair or give warning of a condition unless it is one which is known, or in the exercise of ordinary care would be known to impose an unreasonable risk of injury.” (Ellis, supra, 167 Cal.App.2d at p. 187.) The court opined that the city was not required, in the exercise of ordinary care, to “make a scientific analysis of the factors which bore upon the safety of the methods employed in the work.” (Id. at pp. 189-190.) Thus, the city was not on notice of a dangerous condition merely because it knew that the old sewer was only 3½ feet below street level.
In Drummond, supra, 255 Cal.App.2d 715, the plaintiff sued for injuries she suffered when her car went off the road and into a ditch. The sand and gravel underlying the road had been eroded by three days of rain. An employee of the defendant city had inspected the road on all three days, and noticed a small amount of erosion at the extreme edge of the road’s four-foot-wide shoulder, but deemed it “not sufficiently serious to merit concern, ” and his inspections “failed to disclose either undermining or indicia of undermining” of the pavement. (Id. at p. 718.) The Court of Appeal upheld the trial court’s ruling granting the city’s motion for judgment notwithstanding the verdict, holding that “there [was] no substantial evidence to support the inference that the condition diagnosed by [the city employee] was ‘dangerous, ’ i.e., that it created a substantial hazard to members of the public engaged in the customary, reasonably foreseeable use of the roadway.” (Id. at p. 719.) “There [was] no evidence whatsoever that the traveled traffic pathway was cracked or undermined in any way at or about the time of the accident”; rather, the cause of the accident appeared to have been that the plaintiff was driving on the shoulder. (Id. at p. 720.)
Contrary to the City’s argument in the present case, neither Ellis, supra, 167 Cal.App.2d 180 nor Drummond, supra, 255 Cal.App.2d 715 stands for the proposition that in order to be held liable for a dangerous condition of public property, the public entity must have actual notice of the existence of the precise potential hazard that caused the plaintiff’s damages. Rather, in Ellis, the court relied on the complexity of the situation to find that the city had no notice of any dangerous condition. In Drummond, the court found the city was correct in concluding that the condition of the road did not pose any danger to drivers who used the road normally.
Here, however, there was evidence—including the testimony of Ghilotti and Short mentioned ante—from which the jury was entitled to infer that it was evident by mid-April that the condition of the City’s right of way adjacent to Hillside Avenue posed a danger of landslide damage to the Guthrie residence. Accordingly, the City had actual notice of a dangerous condition, justifying imposition of liability under Government Code section 835.
F. Attorney Fee Award
The trial court awarded attorney fees to respondents under the statute entitling successful inverse condemnation plaintiffs to an award of such fees. (Code Civ. Proc., § 1036.) On appeal, the City does not challenge the fee award to the Wilson-Woods, and does not contest the Guthrie plaintiffs’ entitlement to attorney fees. However, it argues that the trial judge erred in basing the amount of the fee award to the Guthrie plaintiffs on a percentage of their damages, as specified in their contingency fee agreement with their counsel, rather than by determining the reasonable number of hours expended by counsel and multiplying that number by a reasonable hourly rate (the lodestar method).
The Guthrie plaintiffs requested an attorney fee award of $655, 969, which was calculated based on their agreement to pay their counsel 40 percent of the total recovery, including expert costs and interest. In the judgment, the trial court awarded fees in the amount of $421, 826. No explanation of how the trial court arrived at this amount appears in the record, but it is arithmetically equal to 40 percent of the inverse condemnation judgment for damages to real and personal property, excluding interest and expert fees, and rounded off to the nearest whole dollar. Thus, we will assume, for purposes of this appeal, that the City is correct in asserting that the trial court used that calculation.
We agree with the City that this method of arriving at the amount of the award was legally erroneous, and therefore an abuse of discretion. (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at pp. 393-396; Andre v. City of West Sacramento (2001) 92 Cal.App.4th 532; Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 950-958.) However, we see no need to remand for further proceedings on the issue. The Guthrie plaintiffs’ principal trial counsel submitted a declaration to the trial court stating that more than 1, 500 hours of attorney time had been expended on the case, and that his hourly rate was $425. This factually complex, high-stakes litigation involved several cross-complaints and a summary judgment motion; was pending in the trial court for almost three years; generated a seven-volume clerk’s transcript; and culminated in a 26-day jury trial involving testimony by a panoply of experts on several different subjects. Given those facts, an expenditure of 1, 500 hours of attorney time was unquestionably reasonable. Even reducing the hourly rate to $300, for the sake of argument, this yields a total of $450, 000, which is greater than the amount awarded by the trial court.
Thus, while the trial court should have used the lodestar method to calculate the fee award, treating the amount due under the contingent fee agreement as a cap rather than a starting point (see Andre v. City of West Sacramento, supra, 92 Cal.App.4th at p. 537), the City has not persuaded us that it was prejudiced by the error. Accordingly, we see no reason to remand for further proceedings on the issue. (See Imperial Cattle Co. v. Imperial Irrigation Dist. (1985) 167 Cal.App.3d 263, 279-280, disapproved in part on another ground in Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th at pp. 447 451.)
Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: REARDON, J.RIVERA, J.