Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN040858, Thomas P. Nugent, Judge.
McDONALD, J.
In 1990, defendant Bruce Birch, as trustee for Future Mountain Development Trust, acquired a parcel of land. In 2003, Birch began extracting water allegedly owned by plaintiff Pauma Ridge Mutual Water Company (Water Company) that Birch diverted for use on Birch's lands. In this litigation, the parties contested whether the rights to the water, which would otherwise have been appurtenant to the land owned by Birch, had been severed from the land and were owned by Water Company. On summary judgment, the trial court ruled Water Company owned those water rights. In trial proceedings, the court found Birch had misappropriated water from Water Company and awarded damages.
I
THE WATER RIGHTS EVIDENCE
A. The Water Company
In 1977 California Property Brokers, Ltd. (CPB) recorded a Declaration of Establishment of Restrictions (DER) for land it owned in Pauma Valley subdivided into six parcels, five of which CPB intended to convey to others and the sixth retained by CPB. The land use restrictions, designed to protect the principal use of the land for agricultural and high quality rural residential uses, specified the owners of the parcels would form Water Company, a mutual water company, and CPB would convey to Water Company certain watershed lands (the watershed lands) below the 700 foot elevation. Water Company's purpose was to extract water from the watershed lands and provide water service to the six parcels.
The DER provided that "[a]ll rights in and to water in the Pauma River watershed shall be held by [Water Company] and no well drilling shall be accomplished by any owner in the river valley or in lands sloping into the river valley, from elevations higher than the 700 foot elevation." The DER also provided for easements to Water Company for water lines, roads and other paths and stations throughout the six parcels as deemed necessary and appropriate by Water Company. The DER provided it could be amended by majority vote of the owners of the parcels, and would expire in 20 years unless an amendment was adopted extending the expiration date.
In 1977 Water Company was formed as a California corporation and its bylaws provided that the stock in Water Company was appurtenant to ownership of the parcels, and each owner was entitled to participate in the supply of water based on the relative acreage of the parcel owned. The bylaws specified that no shareholder could connect to the water system or take water except with the consent of Water Company and subject to Water Company's rules. In 1979 the owners formed the Pala Mountain Partnership (the partnership), the sole business of which was to acquire assets (including water tanks, pumps and valves) to be used by Water Company. The partnership financed and installed the water system for Water Company and, since 1979, Water Company has maintained and operated the water distribution system, extracted water from wells on the watershed lands, and supplied water to the owners of the participating parcels. In the late 1970's Water Company drilled five wells on property within its jurisdiction. Well Nos. 1 and 5 are on a portion of the watershed lands later acquired by Birch.
B. Conveyance and Reconveyance of the Watershed Lands
Between 1977 and 1989, the parcel owners and Water Company discussed how to convey title to the watershed lands to Water Company as contemplated by the DER. In 1981, CPB and another parcel owner (PRR) transferred title to the watershed lands to Water Company by grant deed, and Water Company made down payments for the price of the transfer. This transfer was subject only to an accounting concerning the final purchase price for the watershed lands.
In 1982, CPB was attempting to process a new parcel map that included its retained land, seeking to subdivide it into four parcels, one of which included the watershed lands. To obtain approval for the new parcel map and accomplish the subdivision, it was necessary for CPB to reacquire the watershed lands from Water Company. However, it was contemplated that, after CPB's map was approved, CPB would reconvey the watershed lands back to Water Company as contemplated under the DER. Although Water Company reconveyed title to the watershed lands back to CPB by a 1982 grant deed, the reconveyance was subject to two caveats. First, Water Company reserved an easement allowing Water Company to construct, maintain and operate water wells and water lines on the watershed lands. Second, the parties contemplated the transfer was to be temporary--the parties anticipated CPB would reconvey to Water Company all interests it acquired from Water Company, and therefore CPB did not refund the down payment paid by Water Company to CPB. CPB successfully subdivided its land into four parcels, one of which was later acquired by Birch.
In the several years following CPB's subdivision, the interested parties continued discussions on the final terms of the transfer of fee title to the watershed lands back to Water Company, including the price to be paid for the watershed lands, but were never able to reach final agreement. By the later 1980's, CPB's principal had grown tired of dealing with the County of San Diego on land use issues and wanted to sell all four of his parcels, including the parcel that included CPB's interests in the watershed lands. To sell the land, however, CPB needed to remove the encumbrance created by Water Company's contractual right and obligation to acquire fee title to the watershed lands. To accomplish this purpose, the parties entered into an agreement referred to as the Rescission Agreement.
C. The Rescission Agreement
In 1989, CPB and Water Company entered into a recorded Agreement of Rescission of Land Sale Obligations (the Rescission Agreement), which terminated CPB's obligations to transfer the fee title to the watershed lands to Water Company and provided that Water Company would be refunded its down payment. However, the Rescission Agreement also provided:
"The rescission of land transfer commitments shall have no effect on [Water Company's] water rights and water removal rights throughout the area of its district. [Water Company] retains, throughout the river valley, the exclusive right to drill wells, extract and distribute water. [Water Company] also retains the right of all reasonable access to its wells and water transmission facilities. [CPB] and Pauma Ridge agree that whatever development they may in the future make of the lands in question, they shall take no action which in any way impedes or obstructs the rights of [Water Company]."
The Rescission Agreement also required CPB to protect Water Company's existing wells from flooding, and specified that the Rescission Agreement constituted an acknowledgement that CPB had "the exclusive right of development and utilization of [the land] (excepting for water removal and development) including the right to mine and extract sand." (Italics added.) The drafter of the Rescission Agreement explained the purpose of the Rescission Agreement was to memorialize the agreement (reached in 1988 and 1989) that in lieu of retransferring the fee title to the watershed lands to Water Company, as contemplated by the parties in connection with the 1982 reconveyance of the watershed lands from Water Company to CPB, CPB and Water Company agreed that CPB would retain its interest in the watershed lands and instead would confirm Water Company's retained interest in the underlying water rights.
D. Birch's Property
In October 1990, CPB sold the watershed lands, which is in the riverbed of the San Luis Rey River, to Birch as trustee for the Future Mountain Development Trust. Birch became a shareholder in Water Company and a partner in the partnership. By 1993 Birch had become delinquent in capital contributions to the partnership in connection with the partnership's acquisition of capital improvements to maintain the water distribution system. In 1993, the partnership adopted an amendment to the partnership agreement that (1) confirmed the ongoing operations of the partnership, (2) provided that Birch would not be obligated to pay assessments or capital contributions to the partnership unless and until Birch commenced developing its land for agricultural uses and began using water provided by Water Company, and (3) reallocated the financial obligations for capital contributions to the remaining partners. After 1993, Birch did not make any payments or capital contributions to use the water system, and has not sought or received consent from Water Company to use its water.
Similar amendments were adopted in 1996 and 2003.
II
THE DAMAGES EVIDENCE
A. Birch's Use of Well No. 1
In the late 1970's, Water Company drilled five wells on the watershed lands. Well No. 1 was on watershed lands later acquired by Birch.
Birch also owns an adjacent parcel on which he operates a campground known as Rancho Corrido. In September 2004, he experienced problems with the water supply to the campground. Birch solved the problem by tapping into Well No. 1. This water source supplied all of the campground's needs, which included drinking, showers, sewage, landscaping, and filling the swimming pool and a pond. Water Company did not authorize or consent to this action.
In mid-September 2004 Water Company workers discovered an unauthorized water line running from Well No. 1 to the campground, which was then open and in use. Water Company demanded that Birch cease using the water, but Birch refused. The water line remained open and in use until December 16, 2004, when Water Company plugged the unauthorized line.
The parties disputed the amount of water Birch diverted from Well No. 1. Birch asserted he installed a new water meter on the line when he connected to it, and that the meter reading when the flow was discontinued showed he used fewer than 2300 cubic feet of water during the months he was drawing water from that well. This amount of water has a value of between $25 and $50. Water Company contested the accuracy of the alleged meter reading, and argued that the absence of any reliable meter reading forced Water Company to estimate the amount of water taken by Birch. The principal method proffered by Water Company to estimate Birch's water use was by measuring the amount of water Water Company historically had purchased from a third party supplier over the preceding two-year seven-month period to supplement Water Company's supply of water from the watershed lands and comparing it to the amount Water Company was required actually to purchase during the period Birch was diverting water (the actual use approach). The actual use approach estimated the volume of water diverted by Birch has a value $36,3236.80.
Water Company also performed an additional alternative calculation method "to try to test the assumptions in the first calculation." This alternative involved comparing the amount of water that Water Company members actually used (based on their metered readings) with the total amount of water produced and purchased by Water Company during this period. The total cost of the water produced and purchased by Water Company but not used by its members was estimated to have a value of $30,547.20. Finally, as another cross-check, Water Company proffered the testimony of Mr. Tweed, who testified that based on the size of the pipe installed by Birch and the pressure at the well, the line installed by Water Company would allow water diverted from Well No. 1 to flow at the rate of 150 gallons per minute. Applying the flow rate calculation for the entire relevant period, Water Company asserted the total value of water used during the relevant period was over $63,000.
B. Birch's Use of Well No. 5
Well No. 5 was also drilled by Water Company on the watershed lands subsequently acquired by Birch. Well No. 5 was no longer in use by Water Company when Birch acquired the land but was capable of producing water.
In July 2003 Birch installed a water pump on Well No. 5 and began pumping water from that well onto his adjacent Rancho Corrido parcel. Birch did not install a meter or keep records of the pump's operation. However, when it was installed the pump was tested at 15 gallons per minute, which was within the range of the pump's capacity.
Mr. Camacho saw the pump and pipes being installed, and about a week later saw that water tanks had been installed. Mr. Camacho made weekly visits to inspect the pump after it was installed, and observed the pump would cycle on for about a minute and one-half and then turn off for three minutes before restarting the cycle. For several weeks during April 2006, Mr. Camacho visited the pump three times a day and kept a written record of his observations. He observed "the same thing that I reported [in] 2003. One minute, 20 seconds it would work, and three minutes it would stop."
At the rate of 15 gallons per minute, with a cycle of one and one-half minutes on and three minutes off, the pump would produce 7200 gallons per day. At prevailing water rates, the value of 7200 gallons per day from July 28, 2003, through May 16, 2006, was $7,218.75.
C. Water Meter Charges
In addition to charges calculated on the actual water used, Water Company charges its paying customers $200 per month as a meter fee. The Yuima Municipal Water District charges its customers an analogous monthly meter fee.
III
PROCEDURAL HISTORY
Water Company filed this action against Birch seeking declaratory and injunctive relief, and damages for conversion, nuisance and failure to pay his share of costs for the water use. Birch cross-complained seeking a declaration that Water Company did not have exclusive rights to the water under the watershed lands.
Water Company moved for summary adjudication of its declaratory relief claim, and the court entered summary adjudication in Water Company's favor, concluding Water Company "held exclusive water rights by virtue of the rescission agreement." The parties stipulated to trial of the damage claims before a referee. The referee awarded damages to Water Company in the amount of $38,819 for water taken from Well No. 1, plus $7,218.75 for water taken from Well No. 5, plus $7,600 for water meter fee charges, plus $1,000 general damages for constructing an earthen berm that obstructed Water Company's access easement. Birch appeals the judgment, contending the court erred in finding that the water rights vested in Water Company and the damage award is not supported by the evidence. In postjudgment proceedings, the court denied Water Company's request for attorney fees, concluding the action was not on a contract containing an attorney fee clause. Water Company has appealed that order, and we consider that appeal concurrently with the present appeal.
IV
THE WATER RIGHTS ISSUE
A. Legal Framework
The appropriative right to extract underground water, although ordinarily appurtenant to the ownership of the overlying land (Central and West Basin & Water Replenishment Dist. v. Southern Cal. Water Co. (2003) 109 Cal.App.4th 891, 905), is a freely transferable form of property. (North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147 Cal.App.4th 555, 559.) The appropriative right appurtenant to the overlying fee may be severed and owned separately from the overlying land. (See Orange County Water Dist. v. City of Colton (1964) 226 Cal.App.2d 642, 648; Carlsbad etc. Co. v. San Luis Rey Dev. Co. (1947) 78 Cal.App.2d 900, 913.)
An agreement transferring a property right "may be evidenced by any language showing this intent" (Hohenshell v. South Riverside etc. Co. (1900) 128 Cal. 627, 633), and no particular words are required to accomplish the transfer of a property interest. (Carman v. Athearn (1947) 77 Cal.App.2d 585, 596-597.) When interpreting the scope of a grant, our primary goal is to ascertain and carry out the intent of the parties, and extrinsic evidence may be examined to interpret the instrument. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238.) A cardinal rule of interpretation is that ambiguities in any grant should be interpreted in favor of the grantee, except when the interest is created for the grantor's benefit by a reservation, in which event the interest must be construed most favorably to the grantor. (Coon v. Sonoma Magnesite Co. (1920) 182 Cal. 597, 599-600; Nay v. Bernard (1919) 40 Cal.App. 364, 369.)
B. Analysis
It is undisputed that the parties originally intended Water Company to have the exclusive appropriative water rights in the watershed lands because the appropriative right was appurtenant to the fee title it acquired to the watershed lands and was to be exclusive under the DER's provision that "[A]ll rights in and to water for the Pauma River watershed shall be held by [Water Company] and no well drilling shall be accomplished by any owner in the river valley or in lands sloping into the river valley, from elevations higher than the 700 foot elevation." Those exclusive appropriative rights were acquired by Water Company (along with all fee interest in the watershed lands) when CPB and PRR transferred title to the watershed lands to Water Company by grant deed in 1981.
The issue is whether the 1982 reconveyance and 1989 Rescission Agreement extinguished the exclusive appropriative rights owned by Water Company as of the end of 1981. Importantly, Water Company's 1982 reconveyance did not convey the entire fee to Birch's predecessor, but instead reserved to Water Company the right to construct, maintain and operate water wells on the watershed lands. This reservation, particularly when viewed in the context of the extrinsic evidence showing the parties contemplated the 1982 acquisition by Birch's predecessor (subject to Water Company's reserved right to continue appropriating the water) was to be only temporary, convinces us the parties intended that Water Company never was divested of the appropriative water rights appurtenant to the watershed lands.
Our interpretation that Water Company retained the water rights obtained in its 1982 deed accords with the rule of construction that an interest created by reservation in a deed is construed most favorably to the grantor. (Coon v. Sonoma Magnesite Co., supra, 182 Cal. at pp. 599-600; Nay v. Bernard, supra, 40 Cal.App. at p. 369.) Our interpretation finds additional confirmation in the circumstances surrounding the 1989 recorded Rescission Agreement. Although the 1989 Rescission Agreement canceled the outstanding obligation of Birch's predecessors to restore the entire fee title in the watershed lands to Water Company, the parties expressly provided that such cancellation "shall have no effect on [Water Company's] water rights and water removal rights throughout the area of its district. [Water Company] retains, throughout the river valley, the exclusive right to drill wells, extract and distribute water. [Water Company] also retains the right of all reasonable access to its wells and water transmission facilities." This language made explicit the scope of the rights encompassed in the 1982 reservation: that Water Company retained the exclusive right to drill for and extract and distribute water in the watershed lands, and Birch's predecessors were entitled to quiet title to the entirety of the fee "excepting for water removal and development" on the affected land. The drafter of the Rescission Agreement confirmed the purpose of the Rescission Agreement was to memorialize the agreement that, in lieu of restoring the fee title in the watershed lands to Water Company as contemplated by the parties in connection with the 1982 reconveyance, Birch's predecessor and Water Company agreed Birch's predecessor would retain its interest in the watershed lands while also confirming Water Company had retained the severable interest in the underlying water rights.
Birch asserts the 1982 deed and subsequent 1989 clarification of the scope of the retained rights was intended only to confirm that Water Company retained the water rights held by Water Company under the DER, and those retained rights expired when the DER expired in 1997. This proffered construction disregards the rule of construction that an interest created by reservation in a deed is construed most favorably to the grantor. (Coon v. Sonoma Magnesite Co., supra, 182 Cal. at pp. 599-600; Nay v. Bernard, supra, 40 Cal.App. at p. 369.) Moreover, Birch's proffered construction also overlooks the interpretative rule, which applies equally to deeds as to any other contract (Civ. Code, § 1066) that a court should interpret agreements to avoid rendering language in the agreement superfluous. (Civ. Code, §1641 [contract should be interpreted to give meaning to all provisions].) At the time of both the 1982 deed and the 1989 Rescission Agreement, the DER remained in effect and any rights held by Water Company thereunder were independent from and could not be impacted by any agreements between Water Company and Birch's predecessors. Accordingly, if (as Birch asserts) the sole purpose of the reservation was to preserve Water Company's rights under the DER, the language in the Rescission Agreement would have had no force or effect and would have been superfluous.
Birch is bound by the agreements and conveyances made by Birch's predecessors in title, including the 1982 deed and recorded Rescission Agreement, which we construe as severing, reserving and confirming that Water Company retained ownership of the exclusive appropriative water rights appurtenant to the watershed lands acquired by Water Company in 1981. (See generally Duckworth v. Watsonville etc. Co. (1910) 158 Cal. 206, 212-213.) Accordingly, we affirm the trial court's order on summary judgment declaring that Water Company held the exclusive appropriative water rights appurtenant to the watershed lands.
II
THE DAMAGES ISSUE
Birch asserts the trial court erroneously admitted the testimony of two witnesses and the errors were prejudicial. Birch also asserts the damage award is not supported by substantial evidence.
A. The Witness Evidence
Camacho's Testimony
Mr. Camacho, an employee of the company used by Water Company to manage its water system, testified to his observations of pumping from Well No. 5 in April 2006. Birch objected to this evidence because Camacho's observations (1) occurred after the discovery cut-off date and (2) took place on Birch's land but without a properly noticed request for inspection under Code of Civil Procedure section 2031.010. The trial court overruled the objection. As long as a party's investigation is conducted lawfully, there is no requirement that it be conducted under the auspices of the Civil Discovery Act, and "[i]f it is a lawful investigation, it is not 'discovery' within the meaning of the Discovery Act, and it is immaterial that the discovery cut-off date may have come and gone." (Pullin v. Superior Court (2000) 81 Cal.App.4th 1161, 1165, fn. 4, 1163-1164.) Because Birch conceded Water Company's easement permitted Water Company to have lawful access to its wells, the observations of Mr. Camacho constituted permissible unilateral investigation and were properly admitted. (Id. at p. 1165.)
Tweed's Testimony
Birch also objected to Mr. Tweed's testimony, insofar as Tweed estimated the flow rate available from Well No. 1, because Tweed's estimate was not based on his percipient knowledge but was instead based on information provided to him by others, and therefore was admissible only as an expert opinion. Birch objected below, and reasserts on appeal, that Tweed's designation did not include an expert witness declaration and therefore the court should have excluded this aspect of his testimony.
We are convinced that, under Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, the trial court correctly permitted Tweed to estimate the flow rate available from the pipe from Well No. 1 to Birch's campground. In Schreiber, the expert witness designation identified a treating physician as a potential expert but did not include the expert witness declaration synopsizing his testimony. The court held that because the physician was not a party or employee of a party, and was not a person " 'retained by a party for the purpose of forming and expressing an opinion,' " (id. at p. 34) the physician did not fall with the expert declaration requirements of the Civil Discovery Act and could testify without the prerequisite of the expert declaration. Schreiber reasoned a treating physician is one who obtained much of his or her knowledge as a percipient witness, rather than a person whose sole knowledge was based on special retention in anticipation of the litigation. In the latter case, the party calling such an expert must provide the additional disclosure in the form of an expert witness declaration. However, in the former case, the percipient expert acquires information independently of the party that expects to be calling him or her and is more like a fact witness. (Id. at p. 35.) A percipient expert, as one who has acquired (independently of the litigation) personal knowledge of relevant facts and whose training, skill, and experience enables him or her to form an opinion about those facts, need not provide the expert declaration. As the Schreiber court explained:
"A treating physician is a percipient expert, but that does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony. As the legislative history clarifies, what distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion. The contextual nature of the inquiry is implicit in the language of section 2034, subdivision (a)(2), which describes a retained expert as one 'retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.' (Italics added.) A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff's injuries and medical history because of the underlying physician-patient relationship." (Id. at pp. 35-36.)
Under Schreiber, as long as Tweed was identified on the expert witness declaration as one who might give expert testimony, and he was not retained solely for that purpose but instead acquired knowledge of the relevant facts apart from the litigation, "no expert witness declaration is required, and he may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience." (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 39.)
Here, Tweed was identified on the expert witness list, and the identification suggested he might be "requested to offer testimony relevant to the determination of issues in this lawsuit that may in the nature or form of expert opinions." He was not a party or employee of Water Company, and he was not retained by Water Company for the purpose of forming and expressing an opinion in anticipation of the litigation. Instead, Tweed had been involved in the original well drilling and installation of the water system for Water Company, and his company had been involved in maintaining it over the years. He had done "[q]uite a bit of work" on Well No. 1 over the years, and was independently aware of the pressure in the well.
Birch did not dispute that Tweed was well qualified to testify that, given the pressure in the well and a one and one-half inch pipe leading to Birch's property, a conservative estimate of the flow from that well was 150 gallons per minute. Instead, Birch argues that because Tweed did not personally know whether the size of the pipe leading from the well to Birch's property was one and one-half inches or some other size, but was instead shown pictures of the connected pipe, from which he estimated the pipe to be one and one-half to two inches, Tweed's estimated flow rate was outside of the type of opinion that Schreiber would permit. However, it was undisputed the pipe was at least one and one-half inches (and indeed Birch's own witness testified it was actually a larger two-inch pipe), and merely because Tweed "is a percipient expert . . . does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony." (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 35.) Tweed was in effect the treating physician for the water system and his opinion as to the amount of flow those pipes would conduct was proper under Schreiber.
Moreover, we are convinced that, even assuming Tweed's estimated flow rate should have been excluded, any error was harmless. Water Company proffered (as its principal method for calculating damages) the actual use approach, which compared the amount of water Water Company expected to have to purchase from a third party supplier (based on historical usage rates) with the amount Water Company was required actually to purchase during the period Birch was diverting water. Although Tweed's estimated flow rate (as well as the other methodology) was used to "test the assumptions" of the historical methodology, Water Company's counsel made explicit during closing argument that it was "not submitting [Tweed's flow rate] as a damages calculation. . . . [T]he sole purpose of this calculation . . . is simply to show you that it is possible that this water supply can be . . . diverted from the connection that [Birch] made."
The referee's decision, although citing both methodologies, awarded an amount significantly closer to the actual use approach than to the calculation based on Tweed's flow rate. We are therefore convinced that, even had Tweed's testimony been excluded, it is not reasonably likely Birch would have obtained a more favorable result, and therefore any alleged error was harmless.
The actual award was $38,819. The amounts sought by Water Company under the actual use approach was $36,236. Tweed's "conservative" flow rate, even if limited to the period September 15 through December 15, would have resulted in an award of $42,636. Because neither party sought clarification or correction of the referee's calculations, we are uncertain which approach was actually adopted by the referee.
B. The Damage Award
Birch asserts the evidence is insufficient to support the damages award because it was speculative to the extent it relied on testimony that estimated the amounts of water Birch converted.
Although we conclude the issue was waived, we note the record contains three different methods of estimating the water taken by Birch and such evidence, if credited by the referee, would support the judgment. "[W]hile a plaintiff must show with reasonable certainty that he has suffered damages by reason of the wrongful act of defendant, once the cause and existence of damages have been so established, recovery will not be denied because the damages are difficult of ascertainment." (Stott v. Johnston (1951) 36 Cal.2d 864, 875.) Although Birch's failure accurately to monitor the water taken may have left Water Company with no alternative but to estimate the amounts converted by Birch, this is not a basis for reversing the judgment. Although "proof of the damages suffered may be difficult, 'the wrongdoer may not object to the plaintiff's reasonable estimate of the cause of the injury and of its amount, supported by the evidence, because not based on more accurate data which the wrongdoer's misconduct has rendered unavailable.' [Quoting Bigelow v. RKO Radio Pictures, Inc. (1946) 327 U.S. 251, 265.] 'The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.' [Ibid.]" (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 46.) Accordingly, the fact the award was necessarily based on estimates does not deprive it of substantial evidentiary support.
Birch's argument is not that some amount of damages was improper but instead is that the amount actually awarded was excessive. However, the courts have repeatedly held a defendant waives a claim of excessive damages absent a timely new trial motion in the lower court asserting the compensatory damage award was excessive. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918; Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 645; Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 187; Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co., Inc. (1977) 66 Cal.App.3d 101, 122.) There is no information in the record that Birch moved for a new trial on this ground, and the issue is therefore waived.
Birch's motion for judicial notice, which seeks judicial notice of an Environmental Protection Agency estimate of the average amount of water used per day by an individual, is offered in support of his appellate claim that the amount of the damage award was much higher than would have been awarded if the EPA average usage were employed to measure damages. Because Birch's motion for judicial notice is relevant only to support an appellate claim we conclude is waived, we deny the motion as moot.
Birch asserts the $7600 component of the damage award was "gratuitous and had no factual basis" because it was calculated based on the meter fee that Water Company would have charged Birch if he had been an authorized user of the water. He asserts that, because Water Company never incurred any expense in reading or maintaining his water meter, there is no basis for that component. However, the evidence showed Water Company charged its customers the meter fee in addition to the per unit cost of the water actually used by its customers, and the income generated by the meter fee was added to the income garnered from Water Company's per unit charges to defray various overhead costs, such as electricity, diesel fuel, and costs to maintain the water system. Because Birch's use of Water Company's system involved the conversion of Water Company's assets in addition to the water used, an award that included an amount equivalent to that charged to all other users was supported by the evidence.
DISPOSITION
The judgment is affirmed. Water Company is entitled to costs on appeal.
WE CONCUR: BENKE, Acting P. J., IRION, J.