Opinion
A147447 A148002
05-24-2017
MARTIN MILECK, Plaintiff and Respondent, v. PAUL MILECK, Defendant and Appellant. PAUL MILECK et al., Cross-complainants and Appellants, v. PETER CONEY et al., Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK CGC 13-61968)
This appeal involves a dispute between neighbors over the existence and scope of an alleged prescriptive easement over a private road in rural Mendocino County. A jury found that Paul Mileck and Sarah Morrison hold a prescriptive easement over the portion of the road that traverses property owned by Martin Mileck but that they do not hold an easement over the portion of the road that traverses property owned by Peter and Ann Coney. The jury also found that Paul had committed general and timber trespass on Martin's property by cutting and burning trees and altering the road in excess of the scope of the easement and that he had committed conversion by removing cut timber from the property.
For purposes of clarity, Paul and Martin Mileck will be referred to by their first names.
Following entry of judgment on the jury's verdict, Paul and Morrison moved for entry of judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial on their prescriptive easement claim against the Coneys. Paul also moved for JNOV or a new trial on Martin's trespass and conversion claims. The trial court granted Paul's motion for a new trial with respect to Martin's tort claims, but denied the remainder of the posttrial motions.
On appeal, Paul and Morrison contend the court erred in denying their posttrial motions regarding their prescriptive easement claim against the Coneys and Paul contends the court erred in denying his motion for JNOV with respect to Martin's tort claims. In a consolidated appeal, Martin contends the court erred in granting Paul's motion for a new trial on his tort claims.
We conclude the court erred in denying Paul and Morrison's motion for JNOV on their quiet title claim against the Coneys and that the court erred further in denying Paul's motion for JNOV with respect to Martin's claim for conversion. While we find no error with regard to the granting of a new trial on Martin's general trespass claim, we conclude the court erred in granting a new trial on Martin's timber trespass claim. In summary, Paul and Morrison are entitled to a judgment quieting title to their easement over the Coney property and Martin is entitled to a judgment awarding damages for timber trespass. The issue of damages on the general trespass claim is subject to retrial.
Factual and Procedural Background
In 2005, Paul and Morrison purchased from its longtime owner, Dural McCombs, an approximately 80-acre parcel referred as the "Lansing Homestead." In 2007, Paul purchased from McCombs an additional 40-acre parcel, referred to as the "McCombs 40." The Coneys own an approximately 80-acre parcel that they have used since 1986 as a vacation home. Martin's property is approximately 400 acres and is his primary residence. From the county road, a private dirt road called "Old Dingman Road" passes over the Coneys' property and then over Martin's property before reaching the McCombs 40 property, then back through Martin's property before reaching the Lansing Homestead property.
Paul has also owned, since 1987, a third property in the vicinity referred to as the "Oroboros Ranch" that is not at issue in this case.
On April 8, 2013, Martin sued Paul for trespass, timber trespass, conversion, and injunctive relief. His complaint alleged Paul had "no lawful easement permitting entry onto or over [his] property" and that Paul repeatedly and wrongfully entered onto the property and caused injury by, among other things, moving large quantities of dirt in an attempt to realign and reconfigure the road, cutting and logging trees and removing the timber for his own use, and illegally setting fires to trees and brush. Martin sought damages and an injunction to prevent further property damage and trespass.
In response, Paul and Morrison filed a cross-complaint against Martin and the Coneys to quiet title to an easement over the portions of Old Dingman Road that traverse Martin's property and the Coneys' property. The complaint alleged that Dural McCombs had used the road for ingress and egress since 1956 and that they had used the road since purchasing the Lansing Homestead from McCombs in 2005. They alleged a right to a non-exclusive easement based on the "open, notorious, hostile, continuous and adverse use" of the road since 1956.
At a jury trial, Paul and Morrison testified that shortly after purchasing the Lansing Homestead, they informed Martin and the Coneys that they believed they had a prescriptive easement over the road based on McCombs' continued use since 1956. The Coneys and Martin testified that they had disputed the existence of an easement but had assured Paul and Morrison that they could continue using the road on a permissive basis. Paul and Morrison assertedly "rejected" the permission, claiming they had a right to use the road. Despite the disagreement as to whether their use of the road was permissive or by right, Paul and Morrison continued to negotiate with Martin and the Coneys about obtaining a deeded easement.
While negotiations were ongoing, Paul secured deposition testimony from McCombs regarding his use of the road. In his deposition testimony, McCombs testified that when he owned the property he had used the road under a claim of right and without permission. McCombs died before trial. His deposition testimony was admitted against Martin only because the Coneys had not been given proper notice of his deposition.
Starting in 2008, Paul began performing maintenance on the portion of Old Dingman Road located on Martin's property. Over the next three years, Paul sent numerous emails to Martin and the Coneys advising them of the work he was performing. He advised them that the maintenance would include "[bull]dozer work, brush cutting, brush piling, and brush burning in accordance with basic safety standards and local ordinance." The bulldozers would be used to maintain "drainage and grading of the existing road" and to "rake and stack brush in burn piles at appropriate points along the road." Paul claimed that, with the exception of burning slash piles, the scope of the work performed was within the scope of McCombs's easement. In an email sent in December 2011, Paul advised Martin and the Coneys, among other neighbors, that his crew had cut and stacked several piles of firewood by the side of the road as a courtesy to the property owners if they wanted it and that he would clear "whatever is left" after about a week.
Martin initially allowed some maintenance to be done on Old Dingman Road crossing his property, but he informed Paul that he was not permitted to use the bulldozer to "brush rake" or to light any fires on his property. In 2010 and again in 2011, Martin found Paul burning brush on his property. Both times he warned him to stop. Finally, in March 2013, Martin found Paul again on his property felling trees and using a bulldozer to move dirt. Martin asked Paul to stop the work but Paul continued for an additional six weeks, prompting the filing of the present lawsuit. Martin testified that the scope of the road maintenance performed by Paul greatly exceeded any work performed by McCombs or by any other neighbor.
Martin's expert testified that based on her investigation, Paul had destroyed 5,500 trees on Martin's property, including 1,440 madrone trees ranging from two to six inches in diameter and 4,085 pine trees ranging from two to eight inches in diameter. She also testified as to the location and tonnage of soil displaced by Paul's grading work. Finally, she testified that her investigation revealed that approximately 15 cords of firewood had been removed from Martin's property.
The jury returned a special verdict finding in favor of Paul and Morrison on their prescriptive easement claim against Martin, but that they did not establish their prescriptive easement claim against the Coneys. The jury also found in favor of Martin on his claims against Paul and awarded Martin $159,774 in damages, broken down as discussed below. Judgment was entered on the jury's verdict.
Thereafter, Paul and Morrison filed a motion for JNOV or, alternatively, a new trial. The court granted the motion for a new trial as to Martin's complaint for damages, but upheld the jury's verdict on the cross-complaint to quiet title. Paul and Morrison filed a timely notice of appeal from the judgment on their cross-complaint to quiet title to an easement over the Coney property and the denial of their JNOV motion as to all claims. Thereafter, Martin filed a notice of appeal from the order granting a new trial on his complaint. The appeals were consolidated for all purposes by this court.
Discussion
Motions for JNOV and for a new trial are different procedures for "obtain[ing] a judgment contrary to the verdict rendered by a jury." (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1602.) "A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse." (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) The trial court has wide latitude in deciding a new trial motion and its ruling is reviewed for an abuse of discretion. (Ibid.) "The court may grant a new trial even though there [is] sufficient evidence to sustain the jury's verdict on appeal, so long as the court determines the weight of the evidence is against the verdict." (Candido v. Huitt (1984) 151 Cal.App.3d 918, 923.)
In contrast, JNOV may be granted only if the evidence is legally insufficient to support the verdict, and the order is intended to be " 'dispositive.' " (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs, supra, 67 Cal.App.4th at p. 751.) A trial court may grant a JNOV motion if there is no substantial evidence to support the verdict. (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057-1058.) In deciding whether to grant the motion, the trial court cannot weigh the evidence or assess credibility (Castro v. State of California (1981) 114 Cal.App.3d 503, 512) and must view the evidence in the light most favorable to the verdict, disregard conflicting evidence and indulge in every legitimate inference to support the verdict (Paykar Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal.App.4th 488, 493-494). "On appeal, we determine de novo whether there is substantial evidence to support the verdict and whether the moving party is entitled to judgment in its favor as a matter of law." (Id. at p. 494.)
1. Easement Claim against the Coneys
The necessary elements of a prescriptive easement are open and notorious use of another's land, which use is continuous and uninterrupted for five years and is adverse to the land's owner. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1308.) These elements are intended to ensure that the owner of property being encroached on has actual or constructive notice of the adverse use and to provide a sufficient time to prevent adverse use from ripening into a prescriptive easement. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938-939.)
"The term 'adverse' in this context is essentially synonymous with 'hostile' and ' "under a claim of right." ' " (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 270.) "[C]ontinuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment." (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at pp. 571-572.) Use with the owner's permission, however, is not "adverse" to the owner. (Windsor Pacific LLC, supra, at pp. 270-271.).) "Once permission is given, it is presumed to continue until the user communicates to the servient tenement owner a clear and unqualified disclaimer and repudiation of the permission." (6 Miller & Starr, Cal. Real Estate (4th ed. 2016) Easements, § 15:36, p. 15-148, citing Southern Pacific Co. v. San Francisco (1964) 62 Cal.2d 50, 56.)
The elements of a prescriptive easement are questions of fact for the trier of fact to determine. (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 570.) It is the claimant's burden to establish the prescriptive easement by clear and convincing evidence. (Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1310.) Paul and Morrison's argument to the contrary, that the preponderance of the evidence standard is applicable, is without merit. Paul and Morrison concede that numerous appellate cases have held that a party seeking to establish a prescriptive easement must prove its elements by clear and convincing evidence. (See, e.g., ibid.; Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 235; Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.) They argue that because other appellate cases are silent as to the required standard, those cases should be interpreted as applying the preponderance of the evidence standard. (See, e.g., Warsaw, supra, at p. 570 [no mention of burden of proof]; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1304 [same].) However, a case is not authority for an issue not reached. Nor is the application of the clear and convincing evidence standard contrary to public policy, as Paul and Morrison suggest. As a policy matter, the law favors an owner of real property over one who claims a prescriptive easement over that property, as the easement operates to burden the titleholder's property. (See Peck v. Howard (1946) 73 Cal.App.2d 308, 326 ["The law will not allow the property of one person to be taken by another, without any conveyance or consideration, upon slight presumptions or probabilities."].) Given the case law and the underlying policy considerations, we are satisfied that the trial court properly instructed the jury that Paul and Morrison were required to establish their claim to a prescriptive easement by clear and convincing evidence.
Paul and Morrison contend they are entitled to JNOV or, alternatively, a new trial on their prescriptive easement claim against the Coneys based on their personal use of the road between 2005 and 2013. There is no dispute that the evidence establishes that Paul and Morrison openly and continuously used the road for a period of five years preceding the filing of the lawsuit. The dispute centers on whether that use was permissive or adverse.
Emails sent by Paul and Morrison to the Coneys clearly communicated the belief of Paul and Morrison that McCombs had acquired a prescriptive easement over the road on the Coneys' property and that the easement was transferred to Paul and Morrison when they purchased his property. They argue that the inability to rely on McCombs's deposition testimony to establish McCombs's claim of right is irrelevant, as they continued to use the road openly and notoriously for five years under their own claim of right.
The Coneys argue that use of the road by Paul and Morrison cannot give rise to a prescriptive easement because the Coneys gave Paul permission to use the road. Peter Coney testified that around the time he purchased his property in 1986 he allowed Paul to use his road because Paul allowed his family to cross a road on Paul's property to reach a swimming beach on the Eel River. On cross-examination, however, Coney conceded that Paul had never asked for permission to use the Old Dingman Road crossing his property.
Coney testified further that sometime after 2007, when Paul purchased the two additional parcels including the parcel he co-owns with Morrison, Paul expressly revoked his permission for Coney to access the river over his road. Coney explained that Paul demanded that Coney sign a deed confirming an easement over the Old Dingman Road in exchange for continued use of Paul's road to reach the river. When Coney refused to sign such a deed, Paul made clear that Coney was no longer welcome to use his road to reach the river.
At trial, the parties stipulated that if Peter Coney gave Paul and Morrison permission to use Old Dingman Road to cross his property, Paul and Morrison "rejected the permission and claim[ed] that they were accessing the road by a claim of right." The stipulation was offered by the Coneys' attorney "to dispense" with the introduction of evidence regarding many more emails from Paul and Morrison in support of their claim that they were using the road under a claim of right and rejecting any permissive use. Following entry of the stipulation, no additional emails on this subject were introduced into evidence.
The parties dispute the significance of this stipulation. Paul and Morrison contend the stipulation defeated any claim that their use of the road was permissive. The Coneys argue that the stipulation is insufficient to establish adverse use because " 'rejection' is not the same thing as 'repudiation.' " They argue that a mere statement of rejection is not legally sufficient to defeat a property owner's permission. They contend that "repudiation" must be defined to require "actions that clearly and unqualifiedly exceed or are materially inconsistent with the scope of permission, not merely a statement that the permission is 'rejected.' " (Italics omitted.)
The Coneys' argument is inconsistent with the jury instructions and the law. The jury was instructed that "When property is used by permission of the owner, permission is presumed to continue until the permission is repudiated. Permission is considered to be repudiated if the easement claimants notify the underlying property owner that they were not relying on permission but were using the easement under a claim of right that is based on events and circumstances that occurred prior to the repudiation." This instruction is consistent with the explanation in Southern Pacific Co. v. San Francisco, supra, 62 Cal.2d at page 56 that "one who uses land with the consent of the owner may effect an ouster for purposes of adverse possession by unqualified and definite renunciation of subordination to the owner . . . of sufficient clarity to put the owner on notice that subsequent possession is adverse to his title, for the very essence of the requirement of ouster is notice." (See also Windsor Pacific LLC v. Samwood Co., Inc., supra, 213 Cal.App.4th at p. 271 [requirement of adverse use "ensures that a prescriptive easement can arise only if the owner had an opportunity to protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do so"].)
In denying Paul and Morrison's posttrial motions, the trial court acknowledged the parties' stipulation that Paul and Morrison "notified the Coneys and Martin Mileck in early 2006 of their claim to a prescriptive easement over Dingman Ridge Rd. based on the prior history of use established by their predecessor in interest" but failed to mention the additional part of the stipulation that Paul and Morrison "rejected" the Coneys' permission. The court found that "Implicit in the jury verdict rejecting [Paul and Morrison's] claim of a prescriptive easement over the Coney property is the jury's determination that the language in the emails did not constitute an unambiguous repudiation of Coneys' permissive use." The court reasoned that given the discussions and ongoing negotiations between the parties, the jury "may well have inferred that, under these circumstances, the repudiation of permission was not sufficiently clear and unambiguous." However, even if the email evidence that was introduced was insufficient to establish a clear and unambiguous repudiation, such a finding cannot be upheld given the parties' stipulation that the permission was rejected, necessarily establishing a repudiation. The stipulation was entered precisely to dispense with the presentation of additional evidence of repudiation. Therefore, the court erred in denying Paul and Morrison's motion for JNOV establishing the prescriptive easement to traverse Old Dingman Road over the Coney property.
The first definition of "repudiate" in Black's Law Dictionary (10th ed. 2014) is "To reject or renounce (a duty or obligation)." A "repudiation" is defined first as "A person's refusal to accept a benefice." (See Gherman v. Colburn (1977) 72 Cal.App.3d 544, 564 [" 'repudiation' means the 'rejection; disclaimer, renunciation; . . . of a duty or relation' "].)
2. Tort Claims
As noted above, the jury found in favor of Martin on his general trespass, timber trespass, and conversion claims against Paul. In its special verdict the jury found that Martin's damages on his general trespass claim consisted of $18,500 "damage to real property," $5,000 "survey expenses," and $13,200 "fence construction." On the timber trespass claim, the jury found Martin's damages were $119,324. The jury also found that in committing the timber trespass Paul acted willfully and maliciously. Finally, the jury found that damages were $3,750 on Martin's conversion claim.
The court granted a new trial on all of these claims. The court explained that because "[n]o substantial evidence was received at trial that Paul Mileck, personally or through others, removed any firewood from the property of Martin Mileck . . . the jury clearly should have reached a different decision and should not have awarded damages of $3,750 for the conversion of the firewood." The court ruled that Paul is entitled to a new trial on the timber trespass claim because there was no evidence of the value of Martin's property prior to the trespass and that there was insufficient evidence of malice. With respect to the general trespass claim, the court found that no evidence was presented to support the damages awarded for survey expenses or fence construction. While the court found that the record supported the award for damage to the roadway, the court nonetheless granted the new trial motion as to all causes of action in Martin's complaint, finding that "Granting a new trial on all issues except the issue of damages to the roadway would not significantly relieve the court and the parties . . . of a significant burden."
On appeal, Martin contends the court erred in granting Paul's motion for new trial and Paul contends the court erred by denying his motion for JNOV with respect to these claims.
(a) Conversion
" 'Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.' " (Los Angeles Federal Credit Union v. Madatyan (2012) 209 Cal.App.4th 1383, 1387.) Paul contends the court should have granted his JNOV motion on the conversion claim because there was no substantial evidence that he personally, or through others, removed any firewood from Martin's property or interfered with Martin's ability to take control or possession of the firewood. We agree.
The evidence was undisputed that after cutting numerous trees on Martin's property, Paul cut the downed trees into firewood sized pieces and piled them by the side of the road. Paul testified that he notified Martin that the firewood was available for his removal and denied removing any of the wood himself. Paul was cross-examined regarding piles of firewood shown in a photo taken in January 2013 and testified that he had not removed any of that wood. Martin testified that he did not remove or authorize the removal of the firewood. Based on the number and size of the cut trees, the typical vegetation in the area along the road, and the firewood remaining on the property, Martin's expert estimated that approximately 15 cords of firewood had been removed from the property. As the trial court found, no evidence was presented that Paul was responsible for the removal of the firewood from Martin's property.
While the expert testimony may provide substantial evidence of the amount of the missing firewood, it does not establish that Paul was responsible for its removal. Nor does Paul's 2011 email support an inference that he had the firewood removed. Martin testified that in 2010 and 2011, Paul was mostly cutting small branches and that he did not start cutting bigger trees until 2013, long after the email was sent. Given the absence of any evidence that Paul committed conversion, Paul is entitled to JNOV in his favor on this claim.
(b) General Trespass
Paul contends the court erred in denying his motion for JNOV on this cause of action. First, he argues that he should not have been held liable for damages to the road because he "did not have the opportunity to complete the roadwork on Martin's property due to the filing of the instant lawsuit." Martin presented expert testimony, however, that Paul was damaging the road rather than maintaining it and that the soil removed would have to be replaced to repair the drainage. Paul cites no authority for his argument that Martin was required to allow Paul to keep working on the road after he exceeded the scope of reasonable maintenance. As the court explained, while Paul had the right to "undertake what work was reasonably necessary to repair and maintain the road in a safe and usable condition," substantial evidence supported the jury's finding that Paul caused damage to the road during his repair and maintenance. In finding that the $18,500 awarded by the jury for the damage to the road was supported by the record, the court explained, "Given the different expert witness assessments of the scope of the work required and the conflicting evidence regarding the . . . estimate of the volume of soil removed and to be replaced, the court cannot conclude that the jury 'clearly should have reached a different decision.' " Having found that Martin was entitled to damages on his general trespass claim, the court properly denied Paul's JNOV motion.
Paul's suggestion that he was entitled to a partial JNOV on the trespass cause of action based on the court's finding that there was no substantial evidence to support the survey and fencing damages is contrary to the law. While a partial JNOV is authorized where appropriate—for instance, when it is sought as to some, but not all, causes of action (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 314), or where it is invoked to eliminate an issue of comparative fault (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1511)—we have found no authority, and Paul has cited none, for the proposition that a court may grant a partial JNOV on an element of compensatory damages. So long as a plaintiff has established an entitlement to damages in some amount, the plaintiff is entitled to judgment in its favor. If the jury's award is excessive because some portion is not supported by the evidence, the mistake may properly be remedied by an order granting a new trial as the court did in this instance.
The jury awarded plaintiff damages of $5,000 for a survey to determine the location of the common boundary between Paul and Martin's property and $13,200 to build a fence along those same boundary lines. The court found that this award was excessive and not supported by substantial evidence because no evidence was presented that Paul removed, destroyed or altered any common boundary line monumentation or removed or destroyed any fences along the common boundary. The court also found that Martin's expert was not qualified to state an opinion as to the cost of the recommended fencing.
Martin contends the court abused its discretion in finding that the fencing and survey damages were not supported by substantial evidence. He argues that the court failed to give proper weight to his testimony and the testimony of his expert witness. Martin testified that Paul removed a natural vegetative fence that stretched approximately one-quarter of a mile between his property and the McCombs 40 property. The vegetative fence was made of thick brush and small madrone trees. Martin testified that some of the brush and trees grew on his side of the property line and some grew on Paul's property. His expert testified that a fence was now necessary to establish a clear boundary line and prevent unauthorized access to Martin's property. The court, however, had discretion to weigh this evidence in granting a motion for new trial and found it lacking. We cannot say the court abused its discretion in finding the jury's award excessive in light of the evidence presented. Moreover, Martin does not challenge the trial court's conclusion that his expert was not qualified to state an opinion as to the cost of the recommended fencing. Accordingly, there was no abuse of discretion in granting a new trial to redetermine this portion of Martin's damage claim.
(c) Trespass to Trees
The order granting Paul's motion for a new trial on the timber trespass cause of action was based on two grounds: that the damages awarded on this claim could not be upheld in the absence of evidence of the pre-injury value of Martin's property, and that there was no substantial evidence to support the jury's finding that the trespass was malicious. As discussed below, neither finding supports the granting of a new trial on this cause of action.
1. Damages
"In any trespass case, the proper measure of damages is the one that will fully compensate the plaintiff for damages that have occurred or can with certainty be expected to occur." (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 599.) "The overall principles by which the courts are to be guided are 'flexibility of approach and full compensation to the owner, within the overall limitation of reasonableness.' " (Heninger v. Dunn (1980) 101 Cal.App.3d 858, 865.)
"For tortious injury to real property, the general rule is that the plaintiff may recover the lesser of (1) the diminution in the property's fair market value, as measured immediately before and immediately after the damage; or (2) the cost to repair the damage and restore the property to its pretrespass condition, plus the value of any lost use. The practical effect of this rule is to limit damages to property to the fair market value of the property prior to the damage." (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 450.) "Notwithstanding this general limitation, if a plaintiff has a personal reason to restore the property to its former condition, he or she may recover the restoration costs even if such costs exceed the diminution in value. This rule is sometimes referred to as the ' "personal reason" exception.' [Citations.] Even when this exception applies, however, restoration costs 'are allowed only if they are reasonable in light of the value of the real property before the injury and the actual damage sustained.' [Citations.] . . . Whether the restoration costs are reasonable is a question for the trier of fact in the first instance, but an award of such costs may be unreasonable as a matter of law if it is grossly disproportionate to the value of the property or the harm caused by the defendant." (Id. at pp. 450-451, citing Orndorff v. Christiana Community Builders (1990) 217 Cal.App.3d 683, 687 & Heninger v. Dunn, supra, 101 Cal.App.3d at pp. 863-866.) In addition, "[i]f restoration of the land to a reasonable approximation of its former condition is impossible or impracticable, the landowner may recover the value of the trees or shrubbery, either as timber or for their aesthetic qualities, again without regard to the diminution in the value of the land." (Heninger, supra, at p. 865, see also Rony v. Costa (2012) 210 Cal.App.4th 746, 755 [award of an additional $15,000 over value of tree was reasonable compensation for aesthetic loss].)
In this case, Martin testified that he wanted the trees restored because they provided privacy from those who travel along the road and because he appreciated his property's natural beauty. Given his testimony and the fact that the property is Martin's primary residence, the record supports application of the "personal reason" measure of damages.
One of Martin's experts, John Meserve, testified that it would cost approximately $1.9 million to replace the missing trees with similar sized trees, which he believed was unreasonable. Accordingly, as discussed post, Meserve estimated Martin's damages based on the value of the removed trees, not their replacement cost. Martin's other expert, Estelle Clifton, estimated that it would cost $13,756 to replace the missing trees with two- to six-inch saplings, but as noted by the trial court, it would take almost a decade for the saplings to grow to the size of the removed trees. Contrary to Paul's argument, this evidence supports a finding by the jury that restoration would not fully compensate Martin for his loss.
Meserve testified that the aesthetic value of the missing trees, measured by the "trunk formula," was approximately $238,659. The jury awarded $119,324 in damages. As the trial court noted, the jury likely based its award on the "expert opinion of the aesthetic damage to the property, discounted, perhaps, for the conflict in the evidence regarding . . . the width of the swath of removed vegetation."
The "trunk formula" is a mathematical formula used to value a tree that is affected by numerous criteria, including among other things, the diameter of a tree's trunk, its species and location. (Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278.)
In granting the new trial, the court found that while the amount of the award was supported by the testimony of Martin's experts, an error of law had been committed because the jury had not been instructed to determine the reasonableness of the award in relation to the pre-injury value of Martin's 400 acre property. Nor had Martin presented any such evidence.
During the course of trial, Paul had requested a jury instruction that required Martin prove that the costs claimed were not unreasonable in relation to "the value of the land prior to the trespass." The court removed this language from the instructions because no evidence of the value of the land prior to the trespass had been introduced.
The jury was instructed that "Restoration costs may be awarded even though they exceed the decrease in market value only if there is a reason personal to the owner for restoring the original condition, or where there is a reason to believe that the property owners will, in fact, restore the property, but only if such restoration can be achieved at a cost that is not unreasonable in relation to the damage inflicted. [¶] Only if the restoration of the land to a reasonable approximation of its former condition is impossible or impracticable, may the landowner recover the value of the trees or shrubbery, either as timber or for their aesthetic qualities, again without regard to diminution in the value of the land, but only if the cost of replacing the destroyed trees with identical or substantially similar trees is reasonable. [¶] Plaintiff has the burden of proving that the costs he claims are not unreasonable in relation to the damage inflicted."
In granting the new trial, the court reasoned that it was Martin's burden to present evidence of the "pre-injury value of the real property" and that without such evidence, the jury had no "touchstone" to assist it in assessing the reasonableness of the damages.
Martin contends that he was not required to present evidence of the pre-injury value of his property to establish the reasonableness of his damages. We agree. The trial court is correct that restoration costs "are allowed only if they are reasonable in light of the value of the real property before the injury and the actual damage sustained." (Orndorff v. Christiana Community Builders, supra, 217 Cal.App.3d at p. 690.) "By requiring that repair costs bear a reasonable relationship to value before harm and to the level of harm actually suffered," the rule prevents "unusual or bizarre results" such as "where the cost of repair will far exceed either the value of the product or the damage the defendant has caused." (Id. at p. 690 ["[T]he owner of a unique home or automobile cannot insist on its reconstruction where the cost to do so far exceeds the value of the home or automobile. Nor are repair costs appropriate where only slight damage has occurred and the cost of repair is far in excess of the loss in value."].) This does not mean, however, that Martin was required to present evidence of the value of his 400-acre property. Martin's burden was to establish that his claim for damages was reasonable. (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 ["The damages to be doubled or trebled are those determined by the trier of fact to constitute just compensation within the overall limits of reasonableness, regardless of what specific measure of damages is used."].) Martin's expert estimated the damaged area to be at most 10 acres out of the 400 acre property. He presented a range of loss estimates based on the damage inflicted, including the "trunk value" of the removed trees and the cost of replacing the trees with saplings. The jury had evidence regarding the size, location and natural features of Martin's property and could measure the reasonableness of his damage claim against that evidence. Paul was free to present in rebuttal evidence of the property's value if he believed such evidence would establish that the amount requested was unreasonable. There was no error of law in permitting the jury to determine the reasonable aesthetic value of the felled trees without evidence of the pre-injury value of the 400 acres owned by Martin. This ground therefore does not justify the order granting a new trial on the timber trespass claim.
2. Malice
The trial court's second reason for granting a new trial on the timber trespass claim is that the court found no substantial evidence to support the jury's finding that Paul's timber trespass was malicious. In ruling on the post-trial motion, the court explained, "After considering the entirety of the evidence regarding Paul Mileck's entry onto the property of Martin Mileck and the circumstances of the vegetation removal work and independently assessing the weight and effect of the evidence, the court concludes that there was not sufficient credible evidence to support a finding that Paul Mileck's cutting and removal of vegetation was undertaken 'with intent to vex, annoy, harass, or injure' Martin Mileck. While there certainly was a history of ill will between the Mileck brothers, that ill will does not appear to have been a motivating factor. . . . The court finds . . . the jury was clearly wrong in its finding that Paul Mileck acted maliciously. Paul is entitled to a new trial of the issue of whether his timber trespass was malicious."
Initially, we reject Martin's argument that the court abused its discretion in finding that the weight of the evidence was contrary to the jury's verdict. As noted above, the court has wide latitude in deciding a motion for new trial and is permitted to "disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury." (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs, supra, 67 Cal.App.4th at p. 751.) Nonetheless, we agree with Martin that the court erred in granting a new trial on the issue of malice. The jury's finding that Martin's damages from the timber trespass were $119,324 was not dependent on the finding of malice. The question of malice is relevant only to whether the court should treble those damages. Under Civil Code section 3346, subdivision (a), all damages caused by the removal of the trees must be doubled, but damages caused by conduct that is malicious may be tripled. (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645; see also Baker v. Ramirez, supra, 190 Cal.App.3d at p. 1138 ["Under this section, if the trespass is found to be willful and malicious, the court may impose treble damages but must impose double damages. If the trespass is found to be casual and involuntary or under a mistake of fact, the court must impose double damages."]; Drewry v. Welch (1965) 236 Cal.App.2d 159, 181 ["[F]or wilful and malicious trespass the court may impose treble damages but must impose double damages; . . . for casual and involuntary trespass, etc., the court must impose double damages."]) While the statute prescribes the potential magnitude of the penalty, it commits to the sound discretion of the trial court the facts and circumstances under which damages should be either doubled or tripled. (Salazar, supra, at p. 646; Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1317 ["Where . . . the jury finds willful and malicious conduct by the defendant, the trial court must award double damages and has discretion to award treble damages for annoyance and discomfort."].)
Civil Code section 3346, subdivision (a) provides: "For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment. . . ."
Here, after the jury returned its verdict, the court entered judgment on the verdict but reserved jurisdiction "to determine the final award of damages for the timber trespass claims." Viewing the evidence as failing to establish malice, the court was nonetheless required by the statute to enter judgment for double the amount of the damages found by the jury. As Martin states, "the trial court should have doubled rather than trebled [his] timber trespass damages here and spared the parties a new trial. It should not have ordered Martin to re-litigate the entirety of his complaint." Since the court did not consider the evidence to support a finding of malice and necessarily not to justify trebling, we agree with Martin that the court should simply have ruled that damages would be doubled. Retrial of the malice issue would be futile.
Because neither of the grounds on which the court granted a new trial on the timber trespass claim has merit, the motion for new trial should not have been granted with respect to this claim. There was no error underlying the jury's determination that the damages awarded were reasonable and the trial court correctly determined that the award is supported by substantial evidence. The court having found no substantial evidence of malice, Martin is entitled to judgment on this claim in an amount twice the damages found by the jury.
Disposition
The order denying the motion by Paul and Morrison for JNOV on their cause of action to quiet title as against the Coneys is reversed and remanded with directions to grant the motion. The order denying Paul's motion for JNOV on Martin's conversion cause of action is reversed and remanded with directions to grant the motion. The order granting a new trial as to the timber trespass cause of action is reversed, with the instruction to enter judgment on that cause of action as set forth above. The order granting Paul's motion for new trial is affirmed only to the extent that it grants a new trial on the general trespass cause of action. In view of those respects in which we have determined that a new trial is not required, the trial court may reconsider whether to retry the entire general trespass cause of action or only the issues of survey and fence construction damages. (See Bullock v. Phillip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696-697.)
The parties shall bear their own costs on appeal.
Pollak, Acting P.J. We concur: Siggins, J.
Jenkins, J.