Summary
holding that a nuisance was abatable where it could be effectively remediated not by removing the contamination, but by "laying down a clay barrier" to protect groundwater and "human activities above the layer"
Summary of this case from Bd. of Trs. of Leland Stanford Junior Univ. v. Agilent Techs.Opinion
E049388 E050205 Super.Ct.No. CIVSS704342
09-09-2011
HIGHLAND FIFTH-ORANGE PARTNERS, LLC, Plaintiff and Respondent, v. THE INLAND FISH AND GAME CONSERVATION ASSOCIATION, Defendant and Appellant.
Gresham Savage Nolan & Tilden, Marlene L. Allen-Hammarlund, Jamie E. Wrage, and Ben A. Eilenberg for Defendant and Appellant. Wendel, Rosen, Black & Dean, Charles A. Hansen, Carl D. Ciochon, and Thiele R. Dunaway for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Affirmed.
Gresham Savage Nolan & Tilden, Marlene L. Allen-Hammarlund, Jamie E. Wrage, and Ben A. Eilenberg for Defendant and Appellant.
Wendel, Rosen, Black & Dean, Charles A. Hansen, Carl D. Ciochon, and Thiele R. Dunaway for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant The Inland Fish and Game Conservation Association (IFG) appeals from judgment in favor of plaintiff and respondent Highland-Fifth Orange Partners, LLC (HFO) on HFO's complaint for continuing nuisance, continuing trespass, and negligence based on shotgun pellets fired from IFG's range that landed on HFO's adjacent property. IFG contends: (1) expert testimony that left uncertain the extent of contamination did not constitute substantial evidence to support a judgment in favor of HFO on its claims; (2) HFO's damages should have been limited to those incurred within the three-year statute of limitations period before the filing of its complaint; (3) HFO lacked standing to sue for damages to real property that occurred before it purchased the property because a cause of action for damage to real property accrues in the owner of the real property at the time the damage occurs, and HFO did not acquire personal property rights from the sellers; (4) the matter should be remanded because the trial court applied the incorrect legal standard for comparative negligence and failed to make factual findings on that issue; and (5) the expert testimony did not serve as substantial evidence on which to award trespass damages. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Around 1945, the United States Bureau of Land Management leased property to IFG for use as a shooting range. Over the years, lead shot has escaped from the shooting range onto the adjacent property, a 22-acre parcel (the Property). The Property is currently undeveloped and is zoned for "Planned Development."
The site had previously been operated by others as a shooting range since the 1920's.
HFO purchased the Property in October 2006. In December 2006, HFO learned of the presence of lead shot on the Property, and in July 2007, HFO filed its action against IFG and others not party to this appeal for continuing trespass, continuing nuisance, and negligence. IFG filed an answer generally denying HFO's claims. The matter was tried to the court.
HFO is an affiliate of nonparty Centerstone Community Builders, Inc. (Centerstone), which initially contracted to purchase the Property. HFO succeeded to Centerstone's rights and interests in the Property, and for convenience, we will identify HFO as the principal throughout the transaction.
One of HFO's engineers had reported to HFO's manager, Harold G. Woods, Jr., that the engineer came under fire when measuring sound levels on the Property and had encountered "flying debris" that corresponded to gunshots on the IFG range. That was when Woods learned for the first time of lead shot on the Property. Woods testified that HFO would not have acquired the Property, or would have significantly altered the deal, if he had known there was lead shot on the Property. In April 2007, Woods notified IFG of his concerns about the shooting range. IFG conducted testing and determined that shot from IFG's shotgun fields could reach HFO's property, but IFG nonetheless continued to allow the discharge of shotguns to the north toward the Property.
In July 2007, HFO hired Dan Mitchell as an expert range and firearms consultant. When Mitchell was inspecting an area to the northeast of IFG's facility, he heard bullets flying close overhead. Based on his investigation, he concluded the bullets had been discharged on IFG's rifle and pistol range and had escaped with deadly force. During a 15-minute period, he heard eight to 10 ricochet shots pass overhead. Photographic evidence showed the ground in front of the targets and the containment berm on IFG's rifle and pistol range was littered with rocks, which created a serious risk of ricochet. In Mitchell's opinion, IFG's rifle and pistol range posed a risk of serious harm to persons in the community.
Investigation revealed the presence of substantial quantities of lead shot on the Property. The concentration was greatest at the southern boundary of the Property but extended in diminishing quantities for several hundred feet north of the property line. The development plan for the northern part of the Property was for residential use. The southern 50 feet of the Property is subject to an easement for The Metropolitan Water District (MWD). In 2002, MWD dug an 18-foot-deep trench along the southern border of Property to install a water pipe. HFO's development plans called for use of the southernmost 90 feet of the Property, including MWD's easement, as a trail.
HFO hired hydrogeologist Gary McCue to investigate whether there was lead contamination on the Property, and if so, the extent of such contamination. During testing, McCue determined that lead shot could be present up to 18 feet deep because of trenching from the MWD pipe project, although McCue tested only to a depth of three feet.
McCue testified as HFO's expert on the issues of "the assessment and remediation of contaminated soil and groundwater." McCue testified that at six locations, the surface soil was sampled, and then the soil was excavated using a backhoe. Four samples were taken at each test site at the depths of one, two, and three feet. The samples were sieved to remove the lead pellets. McCue testified that it was difficult to see the shotgun pellets on the surface because of vegetation and because of the decomposed granite surface.
McCue testified to several opinions, including the following: (1) "the site is impacted with lead pellets within the expected shotfall zone of the shooting stations on the IFG shooting range"; (2) the lead pellets on the site have impacted some soil with lead antimony, arsenic and nickel; (3) "the lead shot and associated impacted soil are not limited to surface soil in the trail area. Impact has been confirmed to the maximum depth of investigation of approximately three feet below grade. Impact may be as deep as approximately 18 feet below grade in the trail area as a result of the MWD pipeline installation"; (4) "remediation of the site is necessary to protect human health and the environment"; and (5) "[r]emediation of lead pellets in impacted soil can be achieved using proven remediation methods."
McCue testified that in formulating a remediation plan, he looked at a "very optimistic result" and a "more likely result," and for each he considered two different approaches. He also considered different approaches for different parts of the Property, depending on the proposed uses as residential or for a trail. The sampling McCue conducted showed that the contamination went something greater than three feet deep, and McCue testified that had to be taken in to consideration.
For the trail area, McCue proposed two approaches: (1) to merely excavate and remove the top two feet of soil, or (2) to excavate six feet of soil and put in a clay liner that would create a buffer for humans on the surface. The clay barrier would also protect groundwater by serving as a barrier to the percolation of surface water through the soil. The trail area was the southernmost 90 feet of the Property.
For the northern part of the property, McCue proposed removing the soil to the depth of up to a quarter of a foot in the optimistic scenario or up to six inches in the likely scenario. } The soil would be treated to remove the lead pellets, and the lead itself would be recycled. McCue estimated that remediation of the site would cost between $1.5 million and $3 million.
Colin Johns, a forensic accountant, testified as an expert for HFO on the reasonableness of the remedial costs and the reasonable rental value of the Property. He used two approaches. First, he applied the formula described in Don v. Trojan Construction Co. (1960) 178 Cal.App.2d 135, 137. Under that formula, he started with the appraised value of the land, took two-thirds of one percent of that value to generate an annual rental value, added property taxes, and divided by 12 to come up with a monthly value. That calculation led to a rental value of $27,775 per month. Second, he used the actual carrying costs for HFO of $32,355 per month. He explained that the carrying costs were a proxy for simple rental valuing, in other words, what the developer was willing to pay to carry the Property until it was developed. He was unable to find any comparable rentals to determine actual current rentals. IFG did not object to Johns's testimony about either approach.
IFG offered the testimony of James Lindsey, a general contractor, that the contamination could be cleaned up for less than $10,000. Lindsey proposed to grade a 125 feet by 500 feet area on the Property to the depth of one and one-half inches at a cost of $8,900 or to grade a 115 feet by 225 feet area on the Property three inches deep for a cost of $4,000. Lindsey would then pick up the dirt and haul it back to IFG's property to "let them reclaim it."
IFG also offered the expert opinion testimony of Christopher Seipel, a professional geologist and certified hydrogeologist. Seipel testified that the lead shot on HFO's property was scrap metal that could be reclaimed as recyclable material, and no licenses, certifications, or other authorizations would be required to do so. Seipel provided a proposal to vacuum the "upper few inches" of a 100 feet by 400 feet area of the Property and to transport the material to IFG "for storage pending final reclamation" for an estimated cost of $25,216.
IFG offered evidence that the rental value of the Property, based on comparable rents for properties used as shooting ranges, was $326 to $1,144 per month.
Following trial, the trial court entered a tentative decision and later judgment in favor of HFO for $1.454 million as the cost of remediation, plus $27,775 per month for the rental value of the Property from December 23, 2006. The trial court also enjoined IFG from certain operations until it completed approved safety measures.
III. DISCUSSION
A. Request for Judicial Notice
On July 9, 2010, IFG filed a request for this court to take judicial notice of minutes of an October 20, 2009, meeting of the City of Highland Planning Commission reflecting that, while this appeal was pending, the Planning Commission denied approval of HFO's proposal for residential development of the Property. IFG argues the trial court's calculation of damages was based on the use of the Property for residential purposes, and the denial of approval for such use of the Property means there is no substantial evidence to support the damages award. HFO filed an opposition to the request. We reserved ruling on the request for consideration with the merits of the appeal.
As a general matter, we "do not take judicial notice of evidence not presented to the trial court" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, n.3), although we may, in our discretion, do so in exceptional circumstances. (Evid. Code, §§ 452, 459; Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 270.) We find no such exceptional circumstances in this case. As we discuss below, the trial court based the damages award on the expert opinion testimony of Colin Johns. Johns used two approaches in determining the rental value of the Property, both of which were based on the value of the Property as raw land, not as land improved with residential housing. Thus, we conclude the matter of which we are asked to take judicial notice is not relevant to any disputed issue on appeal. We deny the request for judicial notice.
B. Sufficiency of Evidence of Continuing Nuisance/Trespass
IFG contends the expert testimony that left uncertain the extent of contamination did not constitute substantial evidence to support a judgment in favor of HFO on its claims for continuing nuisance/trespass.
1. Standard of Review
When a party challenges the sufficiency of the evidence to support the trial court's finding, we consider all the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference, and resolving all conflicts in support of the trial court's finding. Even if different inferences can reasonably be drawn from the evidence, this court does not substitute its own inferences or deductions for those of the trial court. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)
2. Analysis
The basic distinction between permanent nuisances and continuing nuisances is that the latter can be discontinued or abated. (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 677 (Capogeannis).) "[T]he 'continuing' nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur." (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1147 (Mangini I).) "Over the years the courts . . . have maintained a preference for finding a continuing nuisance, both to protect the plaintiff from 'contingencies' such as unforeseen future injury and the statute of limitations itself [citations] and to encourage abatement of nuisances [citations]." (Capogeannis, supra, at pp. 678-679.) Whether a trespass is permanent or continuing is a question of fact for the trier of fact. (Starrh & Starrh, supra, 153 Cal.App.4th at p. 598.)
"[T]respass and nuisance claims may include wrongful entry or invasion by pollutants." (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) Generally, the principles governing continuing or permanent nuisance and trespass are the same, and the cases discuss the two claims without distinction. (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 594 (Starrh & Starrh); Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216-1221.) We will therefore do likewise.
--------
"'[A]batable' means that the nuisance can be remedied at a reasonable cost by reasonable means." (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103 (Mangini II).) Abatability is a question of fact, and "cost is an appropriate factor to consider." (Id. at p. 1101.) An estimate will suffice to show abatement at a reasonable cost and by reasonable means. (Id. at p. 1099.) In Mangini II, property owners sued a solid-fuel manufacturer that had leased the property from former owners and had contaminated it with toxic waste. The property owners sought damages under continuing nuisance and continuing trespass theories. (Id. at pp. 1090-1092.) The plaintiffs' expert hydrogeologist testified that "'there's not enough known about the site yet to assess what remedial measures need to be done or can be done out there effectively. . . .'" (Id. at p. 1095.) In his opinion, remediation costs could range between $20 million and $75 million, depending on the amount of acreage to be decontaminated and the depth of excavation required. (Ibid.)
Here, in contrast, HFO's expert testified as to two specific scenarios for effective remediation. Although he testified it was not known how deep the contamination extended in the easement area, one of his remediation scenarios contemplated excavating to a depth of six feet and laying down a clay barrier which would protect the groundwater under the layer and protect human activities above the layer regardless of how deep the contamination extended. Further in contrast to the situation in Mangini II, here, McCue testified as to specific costs for remediation, not to an indefinite range of costs.
Finally, we note that IFG introduced its own expert testimony on the costs of remediation, which may be viewed as an admission that remediation could be accomplished at reasonable cost, even though IFG's estimate varied widely from HFO's, and the trial court rejected IFG's estimate. We conclude the trial court properly determined that IFG had created a continuing rather than a permanent nuisance.
C. Statute of Limitations for Damages on Continuing Nuisance/Trespass Claims
IFG contends HFO's damages on its claims for continuing nuisance/trespass should have been limited to those incurred within the three-year statute of limitations period before the filing of its complaint.
1. Statute of Limitations
Determination of the correct statute of limitations to apply to a plaintiff's claims is a question of law, which this court reviews de novo. (Arcadia Development Co. v. City of Morgan Hill (2008) 169 Cal.App.4th 253, 260.)
2. Analysis
As discussed above, a nuisance or trespass is either continuing or permanent. (Mangini I, supra, 230 Cal.App.3d at pp. 1142-1143.) When the nuisance or trespass is permanent, the three-year statute of limitations under Code of Civil Procedure section 336, subdivision (b) begins to run immediately upon the wrongful entry or offensive condition on property (Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1484-1485), and the plaintiff must bring one action for all past, present, and future damages within three years. (Capogeannis, supra, 12 Cal.App.4th 668 at pp. 675-676.) However, "[w]here a continuing nuisance is alleged, every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance." (Mangini I, supra, at p. 1143.)
In Mangini II, the Supreme Court observed that since the publication of Mangini I, "several other intermediate appellate courts have published opinions in similar cases, adopting the reasoning of Mangini I validating private nuisance actions as an effective vehicle for the pursuit of damage claims seeking redress for the chemical contamination of real property on the theory that such injuries to land are 'continuing' or 'temporary' as opposed to 'permanent,' and thus not barred by the three-year statute of limitations prescribed by Code of Civil Procedure section 338, subdivision (b).)" (Mangini II, supra, 12 Cal.4th at p. 1093, fn. 2.) The Mangini II court expressed no disagreement with those cases, but merely noted that none of those cases had addressed the issue then before the court, "i.e., whether the plaintiff's complete failure to offer substantial evidence of the cost and reasonableness of remediation leads ineluctably to the conclusion that the nuisance at issue is 'permanent' for statute of limitations purposes . . . ." (Ibid.)
IFG cites Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869 (Baker), for the proposition that recovery for a continuing nuisance or trespass is limited to actual injury suffered in the three years prior to the commencement of the lawsuit. Based on that interpretation of Baker, IFG goes on to argue that the court should apply a simple pro rata apportionment (three years divided by the number of years IFG had operated the firing range) to determine its liability. We reject IFG's approach because, as we discuss below, we conclude that IFG has misinterpreted Baker, and furthermore, IFG has cited no case in which the court applied such a formula.
First, we note the court in Baker actually stated, "[I]f a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated. [Citation.] Recovery is limited, however, to actual injury suffered prior to commencement of each action. Prospective damages are unavailable." (Baker, supra, 39 Cal.3d at p. 869.)
Second, we note that IFG's mathematical formula for computing its liability is inconsistent with Civil Code section 3334, subdivision (a), which defines the proper measure of damages for trespass as follows: "The detriment caused by the wrongful occupation of real property . . . is deemed to include the value of the use of the property for the time of that wrongful occupation . . . the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession." (Italics added.) IFG's mathematical formula bears no logical relation to the cost of restoring the property to its original condition.
Third, we note that case law is inconsistent with IFG's position. For example, In Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732 (Wilshire Westwood), purchasers of land sued the former owner and former lessees of the land under a theory of nuisance, among other causes of action, to recover the costs of abating gasoline contamination of the soil. The property had been used as a gas station from 1964 through 1983. The plaintiffs purchased the property in 1982 with the intention of constructing a high-rise office building. (Id. at pp. 737-738.) When excavation for the office building began in December 1985, gasoline contamination was discovered, and the purchaser expended $3 million for removal of the contaminated soil as required by the state Department of Health Services. In October 1986, the purchaser sued the former owner and lessee to recover the remediation costs and financial losses stemming from delay in completing the building. (Id. at p. 738.) The trial court granted summary judgment to the defendants on the ground the purchasers' claims were barred by the three-year statute of limitations, but the appellate court reversed. (Id. at pp. 738-739.) Although it was undisputed that the contamination occurred before May 1983, the court held that the three-year statute of limitations began to run only when the contamination was abated on July 21, 1986. (Id. at pp. 740-741, 745.) The court held that the plaintiffs could pursue their action to recover the abatement costs without limiting the recovery to damage to the soil that had occurred within the three-year limitations period. (Id. at pp. 744-745.)
In KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, soil was contaminated by former owners' operation of a gasoline station more than ten years before the action was filed, but action was filed within three years of discovering the contamination and incurring costs to abate it. (Id. at pp. 1171-1172, 1180.) The court held that the plaintiffs could allege a cause of action sufficient to overcome a demurrer on those facts. (Id. at pp. 1180-1182.)
In Starrh & Starrh, supra, 153 Cal.App.4th 583, the court held that infiltration and contamination of cotton growers' subsurface aquifers by an adjacent energy company's discharge of waste water from oil production activities was a continuing trespass and was not barred by the statute of limitations. (Id. at pp. 599-600.) However, the appellate court reversed the damages award and remanded for a retrial on damages (Id. at pp. 600, 609.) The jury had awarded damages of $3.8 million for restoration costs. (Id. at p. 600.) The court held that the trial court must instruct the jury it could deny damages if it concluded restoration costs were unreasonable or that diminution of value could be a valid measure of damages if restoration costs were unreasonable. (Id. at pp. 600-601.) The court did not suggest, however, that restoration costs were to be limited to damage to groundwater that had been incurred within the limitations period.
In an older case, Mattos v. Mattos (1958) 162 Cal.App.2d 41, the plaintiff sued the defendant for abatement of a nuisance after eucalyptus trees on defendant's land blew down across the plaintiff's land and interfered with its use for grazing. (Id. at p. 42.) The defendant appealed a judgment in the plaintiff's favor on the ground that the action was barred by the three-year statute of limitations under Code of Civil Procedure section 338, subdivision (2); however, the appellate court affirmed. The court explained, "For purposes of application of the statute to actions for damages from or for the abatement of a nuisance, a distinction is drawn between those intrusions upon another's land which are 'permanent' and those which are 'continuing.' . . . . '[I]f the nuisance may be discontinued at any time' [citation] or when the encroachment 'is abatable' [citation], the nuisance is continuing and each repetition or continuance amounts to another wrong giving rise to a new cause of action. [Citation.]" (Mattos v. Mattos, supra, at p. 43.) The court held that because tree roots and branches fell into the "'continuing'" classification, the action was not barred. (Ibid.)
For all those reasons, therefore, we reject IFG's statute of limitations argument.
D. Standing to Sue for Damages to Real Property Incurred before Purchase
IFG contends HFO lacked standing to sue for damages to real property incurred before it purchased the property because damage to real property accrues in the owner of real property at the time the damage occurs. IFG asserts that to maintain a claim for damage that occurred before its purchase of the Property, it must have explicitly acquired the cause of action from the prior owners, and HFO did not purchase any personal property or any assignment of causes of action against IFG from the former owners. Thus, IFG concludes, HFO's damages for contamination are limited to the damage occurring after HFO purchased the property in October 2006.
Analysis
IFG cites several cases to support its argument; however, those cases are distinguishable in that none addressed claims for continuing nuisance or trespass: Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 986 (action for misappropriation of trade secrets); Vaughn v. Dame Construction Co. (1990) 223 Cal.App.3d 144, 146 [Fourth Dist., Div. 2] (action for strict liability, breach of warranty, and negligence based on defective construction of condominium); Keru Investments, Inc. v. Cube Co., Inc. (1998) 63 Cal.App.4th 1412, 1423 (action for negligent seismic retrofitting construction).
Other courts have recognized in various contexts that a subsequent owner may indeed bring claims for continuing trespass or continuing nuisance. In CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, for example, the court stated that "for limitations purposes the harm implicit in a tortious injury to property is harm to the property itself, and thus to any owner of the property once the property has been injured and not necessarily to a particular owner." (Id. at pp. 1534-1535; accord, Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216.)
In Wilshire Westwood, supra, 20 Cal.App.4th 732, purchasers of real property sued former lessees of the property to recover the costs of abating gasoline contamination of the soil. The trial court granted summary judgment for the lessees on the ground of the statute of limitations, but the appellate court reversed as to the cause of action for continuing trespass. (Id. at p. 737.) The court framed the issue as whether a subsequent purchaser of land could maintain a nuisance action against a prior occupier of that land, and held that Mangini I answered that question in the affirmative. (Wilshire Westwood, supra, at p. 737.)
Finally, in Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, the court rejected the defendants' argument that "a nuisance must interfere with an existing property interest and because Newhall had no property interest at the time of the allegedly illegal conduct, Newhall cannot state a nuisance cause of action against them." (Id. at p. 343.)
Based on those authorities, we conclude that HFO was a proper party to bring this action.
E. Comparative Negligence
IFG contends the matter should be remanded because the trial court applied the incorrect legal standard for comparative negligence and failed to make factual findings on that issue.
1. Additional Background
During the escrow, HFO hired Enviro Compliance Solutions (ECS), to conduct a Phase I environmental study to determine whether the Property was suitable for residential development. ECS conducted the study on the wrong parcel, although its report showed the correct address for the Property. ECS's report stated that the "assessment has revealed no evidence of recognized environmental considerations in connection with the subject site." HFO's manager, Harold G. Woods, Jr., received a copy of ECS's report before escrow closed, but only "perused it" and did not realize the wrong parcel had been examined.
At trial, IFG invoked the doctrine of comparative negligence and argued that HFO's own negligence and that of its environmental consultant contributed to its damages. In ruling against IFG on the issue, the trial court stated, "The defense of comparative fault arises if conduct of the plaintiff regarding the act, condition or event complained of contributes as a cause to the harm alleged. Application of the doctrine and defense of comparative fault necessarily presumes a duty on the part of the plaintiff and a breach thereof. The fatal flaw in the assertion of this defense by IFG is that HFO owed no duty to IFG in deciding whether or not to purchase the property."
2. Analysis
Under the doctrine of comparative fault, the negligence of the injured plaintiff does not bar recovery, but damages awarded are reduced in proportion to the amount of negligence attributable to the plaintiff. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829.) Here, the harm was the contamination of the property by the trespass and nuisance. HFO's alleged negligence was in failing to review its consultant's environmental report closely enough. However, IFG has not shown any link between HFO's alleged negligence and the contamination of the property, which IFG was required to do to invoke comparative fault. (See, e.g., Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1011-1012 [defendant failed to show that plaintiff's smoking had any causal link to the harm they suffered, which was emotional distress caused by an increased risk of cancer from the defendant's contamination of well water with toxic substances].) We conclude the trial court did not err in determining that the comparative fault doctrine did not apply.
F. Sufficiency of Evidence of Damages for Reasonable Rental Value of Property
IFG contends substantial evidence did not exist on which to award trespass damages for the reasonable rental value of the Property. Specifically, IFG argues the methodology HFO's expert used in calculating the reasonable rental value was unsupported, and the damages award was therefore not supported by substantial evidence.
Forfeiture
HFO argues that IFG's contention concerning trespass damages for the reasonable rental value of the property is, in essence, a claim that the damages award was excessive, and because IFG did not move for a new trial on the ground of excessive damages, it cannot complain of excessive damages on appeal. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719.) As the court explained in Jamison, "A failure to timely move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or by the court. [Citation.] The power to weigh the evidence and resolve issues of credibility is vested in the trial court, not the reviewing court. [Citation.] Thus, a party who first challenges the damage award on appeal, without a motion for a new trial, unnecessarily burdens the appellate court with issues that can and should be resolved at the trial level. [Citation.] Consequently, if ascertainment of the amount of damages turns on the credibility of witnesses, conflicting evidence, or other factual questions, the award may not be challenged for inadequacy or excessiveness for the first time on appeal. [Citation.]" (Id. at pp. 719-720.)
IFG argues in response that its challenge is based on the adequacy of the foundation for HFO's expert testimony. Under Evidence Code section 801, an expert witness may testify as to an opinion that is, among other things, based on matter of a type on which an expert may reasonably rely in forming an opinion on the subject. Under Evidence Code section 803, "[t]he court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. . . ." It is within the sound discretion of the trial court to determine whether improper considerations influenced the opinion. (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1277.)
Here, as noted, IFG failed to object in the trial court to either of Jones's methodologies on the ground of lack of proper foundation under Evidence Code section 803. We therefore conclude his objection has been forfeited.
IV. DISPOSITION
The judgment is affirmed. Costs shall be awarded to plaintiff and respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.