Opinion
C041926.
7-24-2003
ROBERT BRUCE HILL et al., Plaintiffs and Respondents, v. R. LEE ROESSLER et al., Defendants and Appellants.
Plaintiffs Robert Bruce Hill and Linda Castle-Hill purchased a house near Lake Tahoe. Defendant R. Lee Roessler, a real estate broker employed by defendant LMI Real Estate, represented both plaintiffs and the seller.
Following a court trial, the judge found that Roessler had breached his fiduciary duties to plaintiffs by intentionally and negligently leading them to believe that if they bought the house, they would be able to remodel it by adding a large attached garage and a new master bedroom and bath above it. Only after escrow closed did plaintiffs learn that local land use ordinances effectively precluded them from remodeling the house to add the attached garage, as they had planned. The court accordingly awarded as damages (among other things) the additional cost associated with constructing a detached garage close to the street and a second story above the existing house.
On appeal, defendants do not challenge the trial courts finding of liability and concede that damages should be measured by the benefit-of-the-bargain rule. However, they challenge the amount of damages and contend (1) that the trial court misapplied the benefit-of-the-bargain rule; (2) that there was insufficient evidence to show the additional costs of construction; (3) that the court erred in admitting the contractors testimony on the anticipated costs of construction; and (4) that the trial court erred in awarding other, miscellaneous costs.
We agree that the trial courts damage award was unsupported by the evidence. Accordingly, we shall reverse and remand for further proceedings on the issue of damages only.
FACTS AND PROCEDURAL BACKGROUND
"This court must view the evidence in a light most favorable to respondents and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372.)
I. Evidence and Findings as to Liability
Defendants do not dispute the trial courts finding of liability; however, we recite the facts because they are relevant to the issue of damages:
After plaintiffs noticed a house for sale on Huckleberry Lane near Lake Tahoe, they contacted Roessler, the listing agent for the property. Plaintiffs already owned a vacant lot near Lake Tahoe and had preliminary construction plans for building a home on it. But they were attracted to the house on Huckleberry Lane because it had a much better view of the lake and a charming interior.
At their first meeting with Roessler, plaintiffs showed him their vacant lot, explained to him their needs for space, and displayed their preliminary plans for constructing a home of approximately 2,900 square feet on the lot.
When Roessler then showed plaintiffs the house on Huckleberry Lane, they saw that it was too small for their needs and told him so. They asked whether the house could be remodeled to enlarge the existing kitchen and to add a large attached garage and a master bedroom and bath. Plaintiffs told Roessler that adding an attached garage, in particular, was "a big issue" for them, as the existing house had no garage. But Roessler told plaintiffs that it "would be easy" to enlarge the existing kitchen and that an attached garage could be added to the house, with a new master bedroom and bath built on a second floor above the new garage.
In fact, ordinances enforced by the Tahoe Regional Planning Agency prohibited the proposed construction. They limited the percentage of a residential lot that could be "covered" with structures or anything else that prevented vegetation growth, such as driveways, walkways, and decks. In the case of the Huckleberry Lane house, the property was already "overcovered" — encumbered more than permitted — which could be grandfathered, and even rearranged (e.g., converting a driveway into a garage floor), but not exceeded.
But in reliance on Roesslers representations, plaintiffs purchased the Huckleberry house and sold their vacant lot. And at no time before escrow closed did Roessler tell plaintiffs about the Tahoe Regional Planning Agency or otherwise indicate that their planned remodeling might be disallowed as exceeding the permitted coverage on the property. Roessler also acted as the agent for both the sellers of the house and the plaintiffs.
After escrow closed, plaintiffs learned that the existing house, deck, and walkways exceeded the allowable coverage for the lot, thus precluding the addition of an attached garage.
Plaintiffs sued, alleging that defendants breached their fiduciary duties to plaintiffs, intentionally misrepresented that they could remodel the house as they planned, and negligently advised them concerning the coverage issues.
The matter was tried to the court. Plaintiffs testified at trial that had they known they could not remodel the Huckleberry Lane house as they had planned and described to Roessler, they would not have bought it.
The court issued a statement of decision. On the issue of liability, it found that "the evidence established well beyond a preponderance that Mr. Roessler breached his fiduciary duty to his clients, the [plaintiffs], and that his intentional and negligent misrepresentations as well as his omissions of material fact, caused damage to the [plaintiffs]."
Although the statement of decision only refers to Roessler, the judgment is against both Roessler and LMI Real Estate. Defendants do not raise this distinction in their appellate brief, and therefore we do not consider it.
II. Evidence as to Damages
Most of the trial testimony was devoted to establishing liability. Comparatively little evidence was adduced on the extent and measure of plaintiffs damages.
Jan Brisco, a land use consultant in the Lake Tahoe area, opined that the existing coverage allowed by the Tahoe Regional Planning Agency on plaintiffs Huckleberry Lane house would not permit the construction of an attached garage unless the existing "coverage" was removed from elsewhere on the lot; thus, a large attached garage could not be constructed unless all existing driveways and paths to the house, and most of the deck, were first removed.
An architect and engineer, Ken Wittels, prepared a set of remodeling plans for plaintiffs that included construction of a detached garage close to the road, demolition of the existing bedrooms, construction of a new foundation under that portion of the house where the bedrooms had formerly been located, and the addition of a second-story master bedroom and bath over that portion of the house supported by the new foundation. But Wittels did not testify.
We rely on the parties spelling of Wittelss name, rather than the spelling transcribed in the reporters transcript.
At the time of trial, plaintiffs also had a signed agreement with a contractor, Michael Buffington, to remodel the house according to Wittelss plans. Michael Buffington, a contractor with over 20 years experience in residential construction in the area, testified that the contract price (including all finish work for an upstairs master bedroom and bath, an expanded kitchen, and a detached garage) was $ 560,000. He estimated that the portion of the contract price attributable to building the foundation for the new detached garage and for his work "on the center portion of the house where the old bedrooms existed" was $ 245,582.
This testimony is not clear, but we have construed it in the light most favorable to plaintiffs, as we must. (In re Ryan N., supra, 92 Cal.App.4th at p. 1372.)
But when Buffington testified that the existing foundation would not support the addition of a second story, defense counsel objected that such facts could not be established except through expert testimony and that Buffington had not been disclosed as an expert. Defense counsel also objected that the construction costs were not properly recoverable as damages. The trial court sustained the objection "as to [Buffingtons] qualifications."
Under cross-examination, Buffington admitted that he was not an engineer and had determined neither "what had to be done to build this house" nor that the work recommended by Wittels was required "to get a house this size."
Mrs. Hill separately testified that plaintiffs could not remain in the house during the remodeling and that their rental costs would be between $ 1,500 to $ 2,000 per month for a minimum of 10 to 12 months. She also testified that they would incur storage costs of $ 6,800 during the remodeling.
III. Plaintiffs Offer of Proof Regarding Damages
Plaintiffs counsel sought to introduce by way of an "offer of proof" the fact that as a result of plaintiffs inability to remodel the house as they had planned, there "was [a] significant increase in cost" to build the detached garage, rather than the attached garage that Roessler told plaintiffs was possible.
According to the offer of proof, plaintiffs had to obtain a variance to build the detached garage (for which they paid $ 866), the construction of the garage required "significant excavation, cut and fill, stepped up pony walls, [and a] big concrete retaining wall," and plaintiffs had to incur the cost of consolidating the two lots on which the existing house sat, purchase additional coverage of 109 square feet for $ 763, pay consultant and application fees of $ 1,862.35, and pay design and engineering services of $ 5,295. Had plaintiffs been able to remodel as represented by Roessler, plaintiffs counsel asserted, they could have left "intact" that portion of the house with the existing bedrooms, instead of having to "excavate, pour new foundation, and . . . demolish" that part of the house.
Plaintiffs counsel also represented that it would have cost plaintiffs only $ 212,000 to add an attached garage.
Defendants objected to plaintiffs offer of proof regarding damages on the grounds, inter alia, that plaintiffs did not have the expert testimony to establish it. Later, defense counsel stated that he did not contest that plaintiffs had in fact paid the amounts represented "for the land, classification, . . . coverage verification, [and] . . . for joining the lots together," but argued that, as a matter of law, those amounts were not recoverable as damages.
IV. The Trial Courts Award of Damages
The trial court ultimately awarded damages to plaintiffs in the amount of $ 263,132. It described its reasoning as follows:
"In this case Plaintiff was led to believe that he could purchase the property and build what he envisioned and what he communicated to Defendant. He could not. He, in fact, will be forced to incur significantly greater expense to get something similar to what he reasonably anticipated. Compensation for this and related additional costs is the proper measure of damages. This egregious breach of a fiduciary duty can be properly compensated in no other manner.
"The Court having found that the Defendant in this case engaged in intentional and negligent fiduciary fraud, finds that the appropriate measure of damages is found in the benefit of the bargain rule.
"The defense asserts arguments questioning the expertise demonstrated in opining as to the actual and increased costs to build what Plaintiffs expected to be able to build. In making the award, the Court finds that some reasonable award for increased building costs is merited, but that the amount is not fully supported by the evidence.
"The Court will award the sum of $ 246,000 for additional building costs. The Plaintiffs will and did incur additional costs for related items caused by the conduct of Defendant. The Court will award as follows:
"1.$ 8,000.00Additional rent necessary during buildingduring building"2.$ 2,000.00Storage costs necessitated by the move outduring building"3.$ 295.00Tahoe Regional Planning Agency fee"4.$ 4,000.00Engineering fee"5.$ 866.00Zoning variance"6.$ 109.00Additional 109 sq. ft. purchase"7.$ 1,862.00Lot consolidation."
As noted in footnote 1, ante, the statement of decision only refers to Roessler, but the judgment states that defendants are jointly and severally liable.
Following an unsuccessful motion for a new trial, defendants appeal.
Defendants motion for new trial claimed that the evidence was insufficient to support the damage award. Accordingly, there is no bar to defendants raising this issue on appeal. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919, 114 Cal. Rptr. 622, 523 P.2d 662.) Plaintiffs do not argue otherwise or contend that the failure of the trial court to rule on the motion precludes our review of these issues. Any such contentions are therefore waived. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
DISCUSSION
I. The Measure of Damages: Benefit of the Bargain
As noted, the trial court determined that "the appropriate measure of damages is found in the benefit of the bargain rule" and that plaintiffs should be awarded their "increased building costs."
Defendants concede that "the benefit of the bargain measure of damages was appropriate," but contend that the trial court misapplied that measure to the facts adduced at trial.
We conclude that the trial court was correct in finding that plaintiffs should be awarded their increased building costs.
One who willfully deceives another is liable for "any damage" that the deceived person suffers as a result. (Civ. Code, § 1709.)
Under the general tort recovery statute, Civil Code section 3333, the victim of a fraud is entitled to be compensated "for all detriment proximately caused whether it could have been anticipated or not." (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 979 [the general rule of tort damages is that a successful plaintiff is entitled "to be made whole" (id. at p. 980)].)
Civil Code section 3333 provides: "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."
In 1935, however, the Legislature added section 3343 to the Civil Code, which adopted instead the "out-of-pocket" standard for fraud in the purchase, sale, or exchange of real property. (Cory v. Villa Properties (1986) 180 Cal. App. 3d 592, 599, 225 Cal. Rptr. 628.) That statute provides in relevant part, "One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received, together with any additional damages arising from the particular transaction, including any of the following: [P] . . . [P] (2) An amount which would compensate the defrauded party for loss of use and enjoyment of the property to the extent that any such loss was proximately caused by the fraud." (Civ. Code, § 3343, subd. (a).)
Thus, as stated by the California Supreme Court in Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240-1241, 900 P.2d 601 (Alliance Mortgage), "in fraud cases involving the purchase, sale or exchange of property, the Legislature has expressly provided that the out-of-pocket rather than the benefit-of-the-bargain measure of damages should apply. (§ 3343, subds. (a), (b)(1).) This section does not apply, however, when a victim is defrauded by its fiduciaries. In this situation, the broader measure of damages provided by [Civil Code] sections 1709 and 3333 applies." (Italics added, fns. omitted.)
Despite the language in Alliance Mortgage, however, "the cases are not consistent in their treatment of the measure of damages for breach of fiduciary duties." (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 564.) Indeed, the Supreme Court in Alliance Mortgage did not define what it meant by the "broader measure of damages provided by sections 1709 and 3333" that applied to fraud by fiduciaries. (Alliance Mortgage, supra, 10 Cal.4th at p. 1241, fns. omitted.) Instead, it expressly declined in that case to address whether such a plaintiff would be entitled to benefit-of-the-bargain damages (id. at p. 1250) and has not decided the issue since. (See Hensley v. McSweeney (2001) 90 Cal.App.4th 1081, 1085; Michelson v. Camp (1999) 72 Cal.App.4th 955, 973, fn. 8.)
Appellate courts have split on the availability of benefit-of-the-bargain damages for intentional fraud by a fiduciary. (Compare Hensley v. McSweeney, supra, 90 Cal.App.4th at pp. 1085-1086; Christiansen v. Roddy (1986) 186 Cal. App. 3d 780, 790, 231 Cal. Rptr. 72; and Overgaard v. Johnson (1977) 68 Cal. App. 3d 821, 823-824, 137 Cal. Rptr. 412 with Salahutdin v. Valley of California, Inc., supra, 24 Cal.App.4th at pp. 565-568; and Pepitone v. Russo (1976) 64 Cal. App. 3d 685, 688-689, 134 Cal. Rptr. 709; see also City Solutions, Inc. v. Clear Channel Communications, Inc. (N.D.Cal. 2003) 242 F. Supp. 2d 720, 731-732; Southern Union Co. v. Southwest Gas Corp. (D.Az. 2002) 180 F. Supp. 2d 1021, 1041.)
Despite this split of authority on the application of the benefit-of-the-bargain measure, defendants concession that it is the proper measure waives any objection to its use in this appeal. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)
"`The "benefit-of-the-bargain" measure . . . is concerned with satisfying the expectancy interest of the defrauded plaintiff by putting him in the position he would have enjoyed if the false representation relied upon had been true; it awards the difference in value between what the plaintiff actually received and what he was fraudulently led to believe he would receive. [Citations.]" (Alliance Mortgage, supra, 10 Cal.4th at p. 1240, citing Salahutdin v. Valley of California, Inc., supra, 24 Cal.App.4th at p. 564, and Overgaard v. Johnson, supra, 68 Cal. App. 3d at p. 823.) It is "the broader measure of damages" and is meant to assure that ""the faithless fiduciary shall make good the full amount of the loss of which his breach of faith is a cause."" (Salahutdin v. Valley of California, Inc., supra, 24 Cal.App.4th at pp. 566, 567.)
Defendants argue that under the benefit-of-the-bargain rule, plaintiffs "would have been entitled to receive the difference between the contract price of $ 300,000 and the value [that] the property would have had if it had the additional coverage available to enable [plaintiffs] to remodel according to their expectations." But, they argue, "there was no claim by [plaintiffs], nor any evidence, that any such difference existed . . . ."
However, it was not error for the trial court to conclude that an alternative method for awarding damages — based on the additional construction costs — would compensate plaintiffs for all the detriment proximately caused by the misrepresentations. (See Safeco Ins. Co. v. J & D Painting (1993) 17 Cal.App.4th 1199, 1202 [plaintiff in a suit for negligent damage to real property may recover either the cost of repair or the diminution in value, but not both].)
Regardless of the split of authority over the benefit-of-the-bargain measure of damages, the California Supreme Court made it clear in Alliance Mortgage, supra, 10 Cal.4th at page 1241, that "when a victim is defrauded by its fiduciaries," as here, "the broader measure of damages provided by [Civil Code] sections 1709 and 3333 applies." (Fns. omitted.) (Accord, Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504, 198 Cal. Rptr. 551, 674 P.2d 253 [plaintiffs damages suffered because of fiduciarys misrepresentation were measured under Civil Code section 3333]; Stout v. Turney (1978) 22 Cal.3d 718, 725-726, 150 Cal. Rptr. 637, 586 P.2d 1228 [A "clear exception" to Civil Code section 3343 "has emerged in cases involving fraudulent fiduciaries"]; Pepitone v. Russo, supra, 64 Cal. App. 3d at p. 688; Salahutdin v. Valley of California, Inc., supra, 24 Cal.App.4th at pp. 564-567.) "The remedy afforded by [Civil Code] sections 1709 and 3333 aims at compensation for any and all the detriment proximately caused by the breach." (Salahutdin v. Valley of California, Inc ., supra, 24 Cal.App.4th at p. 568.)
The only way to compensate plaintiffs here for all the detriment caused by the misrepresentations that they could build a garage and upstairs master bedroom and bath on the property is to award them the extra cost necessary to do just that, but in accord with the local ordinance.
"Tort damages are awarded to fully compensate the victim for all the injury suffered. [Citation.] There is no fixed rule for the measure of tort damages under Civil Code section 3333. The measure that most appropriately compensates the injured party for the loss sustained should be adopted." (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist.
(2001) 88 Cal.App.4th 439, 446-447; accord, Erlich v. Menezes (1999) 21 Cal.4th 543, 550, 981 P.2d 978.) Accordingly, the trial court properly ruled that plaintiffs should be awarded the "increased building costs."
Defendants next argue that plaintiffs should not have been permitted to recover the "additional $ 246,000 in construction costs" because these costs were not incurred in reliance on the fraud. They observe that plaintiffs discovered the limitations on their construction before they expended any construction costs; therefore, "any building costs [plaintiffs] incurred after [their discovery] or will incur in the future will not be incurred in reliance on the fraud . . . [but] will be incurred because of the nature of the coverage restrictions."
Defendants are mistaken. Plaintiffs were not limited in their recovery to only those expenditures undertaken while they remained ignorant of the falsity of Roesslers representations. (See, e.g., Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1208, 1217, 238 Cal. Rptr. 130.) Once plaintiffs were induced to buy the house in reliance upon Roesslers false representations, they were entitled under Civil Code section 3333 to be compensated "for all the detriment proximately caused thereby." Although the detriment had to arise before the plaintiffs became aware of the fraud, at which point they could no longer reasonably rely on the fraud to their detriment, the expenditures necessitated by the detriment can be recovered, regardless of when thereafter they are incurred. (See Jue v. Smiser (1994) 23 Cal.App.4th 312, 315-317 [buyer who signed purchase agreement and opened escrow ignorant of true facts but put on notice of true facts prior to escrow closing sufficiently "relied" on misrepresentation].)
Defendants also argue that plaintiffs should not have been permitted to recover the "additional" $ 246,000 in construction costs because, when a defrauded plaintiff receives and retains the value of improvements/repairs "such costs are not collectible as consequential damages." For support, defendants rely on McNeill v. Bredberg (1961) 192 Cal. App. 2d 458, 13 Cal. Rptr. 580, but that case is inapposite: It construes Civil Code section 3343 (inapplicable here), and holds only that "the cost of repairs and construction was not additional damage within the meaning of section 3343 of the Civil Code." (McNeil, supra, at p. 470.)
II. Insufficiency of the Damage Evidence
Although we concur with the trial court that a fair method of calculating damages is to award the difference between the cost of remodeling the house pursuant to its existing coverage limitations and the cost of remodeling it pursuant to the defendants representations, defendants are correct that the calculation of that measure was not supported by the evidence.
The trial court did not explain how it reached its award of "$ 246,000 for additional building costs." Instead, it made the following findings:
"Testimony revealed that in order to build the house that they had contemplated, the Plaintiffs would have to incur significantly more cost than if they had been able to simply expand on the property. The [plaintiffs] and Mr. Mike Buffington, a builder hired by the [plaintiffs], testified that the cost to expand and add the garage would be $ 558,000. The Court relied on these estimates to some extent in that no evidence was offered to refute them. The [plaintiffs] also procured plans for that [which] they expected to build which would have cost some $ 212,000, the difference being $ 346,000. The Plaintiffs testified to other related costs incurred because of misrepresentation."
But after determining the proper legal measure for damages, the court acknowledged that the $ 346,000 differential was not fully supported by the evidence and settled on $ 246,000 for the additional building costs: "The defense asserts arguments questioning the expertise demonstrated in opining as to the actual and increased costs to build what Plaintiffs expected to be able to build. In making an award, the Court finds that some reasonable award for increased building costs is merited, but that the amount indicated is not fully supported by the evidence. [P] The Court will award the sum of $ 246,000 for additional building costs."
Defendants contend that "the court[s] calculation of damages is error because . . . there was no testimony at all as to what cost [plaintiffs] would have incurred to remodel the house as they initially intended." Defendants note that "the court[]s finding of $ 212,000 came from Plaintiffs[] claims, but not from any evidence. . . . In response to the [defendants] objection[,] [plaintiffs] made an offer of proof[,] which included a statement that [plaintiffs] would have incurred a cost of $ 212,000 to remodel according to their intended plans."
We agree with defendants that no admissible evidence was adduced at trial that supported the trial courts finding that plaintiffs original plans would have cost some $ 212,000. There was only plaintiffs offer of proof of that fact, to which defendants objected. "An offer of proof is not evidence." (Mundell v. Department of Alcoholic Beverage Control (1962) 211 Cal. App. 2d 231, 239, 27 Cal. Rptr. 62.)
Since evidence of the cost of plaintiffs intended plans, which cost had to be deducted from the cost of the construction necessitated by the coverage limitations, was absent, the court could not calculate damages by deducting the originally contemplated cost from the expanded costs based on the coverage limitations.
In addition, the proof was insufficient as to the expanded costs that were necessary to comply with the coverage limitations. These additional costs were based on Wittelss construction plans. But defendants argue that "the court committed prejudicial error in admitting Wittels[s] construction plans into evidence without the required foundation." Defendants contend that "[plaintiffs] offered no evidence that the excavation, foundation and construction work set forth in Wittels[s] plans was necessary to construct the house . . . ."
We agree. Wittels — the engineer who created the plans for the detached garage and upstairs master bedroom and bath — did not testify. And defendants objected to the admission of the plans in light of the absence of any expert testimony over the propriety of those plans.
Plaintiffs argue that the "Wittels[s] construction plans were properly admitted into evidence," but they support this contention by citing to plaintiffs offer of proof of what had to be done to comply with the coverage limitations. Again, plaintiffs offer of proof did not constitute admissible evidence. (See Mundell v. Department of Alcoholic Beverage Control, supra, 211 Cal. App. 2d at p. 239.) And defendants objected to the offer of proof because of the absence of any expert testimony upon which to base it.
Although plaintiffs contend that defense counsel "did not indicate that he rejected [plaintiffs] offer of proof," in fact, defense counsel did object to the material portions of plaintiffs offer of proof, stating in part: "I would have an objection to Mrs. Hill [one of the plaintiffs] testifying to those numbers based upon foundation, based upon opinion value [sic]. Shes not been qualified as an expert. Her just giving an opinion of what these things would cost would not be admissible." Defense counsel continued: "What you really have to have if its admissible is an expert saying this is what has to be done. Theres no expert that has been designated. . . . [P] Secondly, what is necessary? Weve heard something like . . . $ 245,000 worth of additional foundation work. Thats a major issue as to whether that has to be done or doesnt have to be done." Thus, the offer of proof cannot substitute for the absence of evidence over the additional costs associated with building plaintiffs plans pursuant to the coverage limitations.
The only evidence presented on the increased building costs was through the testimony of Brisco and Buffington. While Brisco did testify that the coverage limitations did not permit an attached garage, there was simply no evidence that the construction plans (including the demolition of the existing bedrooms and the construction of a new foundation for the house), upon which plaintiffs premised their damages, were either structurally necessary or financially reasonable. They may have been, but there was absolutely no admissible testimony to that effect.
That leaves the testimony of the contractor, Buffington. Although his testimony was ambiguous on the point, liberally construed, his testimony might be interpreted to opine that $ 245,000 worth of construction costs were attributable to the building of the foundation for the new detached garage work and for the work "on the center portion of the house where the old bedrooms exist."
But the trial court sustained defendants objection that Buffington was unqualified to testify that plaintiffs were forced to incur those costs. Buffington admitted that he was not an engineer. And his testimony that "it would just not be feasible or economical and viable to not rebuild the foundation underneath the existing bedroom area" was undermined by his admissions that he had not, in fact, attempted to determine "what had to be done to build this house" and could not say whether the work recommended by Wittels was required in order to add a master bedroom and bath. Finally, Buffington was not disclosed as an expert witness (upon which ground defendants objected); therefore, he could not testify as an expert on what design was structurally and financially reasonable to comply with the coverage limitations. (Bonds v. Roy (1999) 20 Cal.4th 140, 148-149, 973 P.2d 66.)
We need not decide for purposes of this appeal whether Buffington could testify on the price of his contract with the plaintiffs since the cost of the construction is irrelevant without a determination that the construction is a financially reasonable resolution of the coverage limitation issues.
Accordingly, there was insufficient evidence upon which an award of $ 246,000 in additional construction costs could be based. There was no evidence of the cost of construction pursuant to the originally contemplated plans or of the cost of the structurally and financially reasonable construction necessitated by the coverage limitations (since there was no expert testimony of what was financially or structurally necessary). And the only testimony of the additional cost of complying with the coverage limitations came from someone who was not disclosed as, and therefore could not testify as, an expert.
Nonetheless, it is evident from the record that plaintiffs suffered additional construction costs from having to proceed with remodeling plans that involved building a second story over the existing house and constructing a detached garage. But the admissible evidence did not support the amount of damages that was awarded to plaintiffs.
When insufficient evidence supports a trial courts damages analysis and award, remand for further proceedings is proper. (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal. App. 3d 1113, 1128, 1136-1137, 1147, 234 Cal. Rptr. 630; see Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 781, fn. 3, 937 P.2d 290; Sharp v. Automobile Club of So. Cal. (1964) 225 Cal. App. 2d 648, 654, 37 Cal. Rptr. 585.)
Defendants do not argue otherwise and thus we need not consider any contrary position. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)
III. Miscellaneous Costs
Defendants also complain about two miscellaneous expenditures awarded by the court.
First, they complain about the award of $ 10,000 for anticipated rent and storage costs necessitated by the construction. They claim that there was no testimony whether plaintiffs would have had to vacate the home during the remodeling as originally contemplated. We agree, although we suspect that this can be remedied on remand.
Second, defendants complain about the $ 4,000 in engineering fees for Wittels[s] services because those fees might have been required for the original design. Plaintiffs do not respond to the point. We agree that there was no showing concerning the costs that would be associated with the original design.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court for further proceedings on the issue of damages consistent with the views expressed in this opinion. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 27(a).)
We concur: BLEASE, Acting P.J., HULL, J.