Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 04 CE CG 02172, Alan M. Simpson, Judge.
Law Offices of Joseph A. Uremovic and Joseph A. Uremovic for Plaintiff and Appellant.
Parichan, Renberg & Crossman, Richard C. Crossman; Vitale & Lowe and Lisa Mercurio Estabrook for Defendant and Appellant.
OPINION
VARTABEDIAN, Acting P. J.
Plaintiff and appellant James Riley (Riley) appeals from a corrected judgment entered after a jury trial. We will conclude that the trial court’s action in reducing the judgment by half exceeded its powers. Accordingly, we will reverse the judgment and direct the trial court to enter a new judgment reinstating the full amount awarded by the jury. This new judgment shall be subject to the raising of postjudgment motions, if any, consistent with this opinion.
FACTS AND PROCEEDINGS
Riley owns a warehouse immediately south of the drinking water purification and bottling plant operated by defendant and appellant Yosemite Waters Co. (Yosemite). Sometime after 2000, the foundation of Riley’s building, along the parties’ common property line, settled three to five inches. The settlement caused a strip of the concrete floor of the warehouse to break loose and drop with the foundation and caused the north wall of the building to bow perilously.
The immediate cause of the settlement was infusion of water into the soil on which the foundation and the floor slab rested. A primary issue in the trial was the source of the water.
Riley sued Yosemite, stating causes of action in negligence, trespass, and nuisance. Riley contended water from Yosemite’s plant, primarily from its periodic cleaning of water storage tanks, flowed onto Riley’s property and pooled by his north wall, eventually saturating the soil beneath the northern portion of the building. Yosemite’s primary defenses were that the damage to the warehouse had occurred decades ago, outside the limitations period, and that the water came from sources on Riley’s own property, primarily rainwater escaping from improperly maintained downspouts.
After a 12-day trial, the jury was instructed on the negligence cause of action, followed immediately with an instruction on comparative fault: “Yosemite Water [sic] Company claims that … James Riley’s harm was caused in whole or in part by James Riley’s own negligence.” There followed an explanation of “substantial factor in causing harm” and the role of community customs and practices in determining the reasonableness of conduct.
Neither party designated the written jury instructions for inclusion in the record on appeal. Apparently, an important portion of the instructions as recorded in the reporter’s transcript was either misread by the trial court or misreported. We have no way to resolve the matter on the current record. Because of our resolution of the appeal on other grounds, it is not necessary to resolve this instructional issue. We will note the problem at the appropriate point in our procedural summary.
Next, the court instructed the jury on the trespass and nuisance causes of action. At this point, the instructions, as recorded in the reporter’s transcript, become unclear. We quote from the transcript at some length, preserving paragraph breaks as set out therein:
“James Riley claims that Yosemite Water [sic throughout quotation] Company trespassed on his property. To establish this claim, James Riley must prove all of the following: One, that James Riley owned the property; two, that Yosemite Water Company negligently caused water to enter on to [sic] James Riley’s property; three, that James Riley did not give permission for the entry; four, that James Riley was actually harmed; and, five, that Yosemite Water Company’s conduct was a substantial factor in causing James Riley’s harm.
At an earlier point, the trial court informed counsel it would use CACI No. 2000, concerning the trespass cause of action. Where the reporter’s transcript reads “negligently caused water,” the form instruction says “intentionally, recklessly, or negligently caused … [insert name of thing].” (See Judicial Council of Cal. Civ. Jury Instns. (2008 ed.) CACI No. 2000.)
“An entry is intentional if a person knowingly goes onto the property of another or knowingly causes something to go onto that property. An entry is intentional if a person engages in conduct that is substantially certain to cause something to go onto that property. An obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance. One who permits water to percolate from his land to the property of his adjoining neighbor may be guilty of creating a nuisance from which the latter is entitled to relief.
These two sentences appear to be taken verbatim from CACI No. 2004 (intentional entry explained). (See CACI No. 2004.) When the court earlier informed the parties of the instructions it would be using, included in the lengthy sequence of numbers were “405, 406, 430, 2000, 2000, 2021 .…” CACI No. 2021 concerns private nuisances. Whether the court misspoke or the reporter’s transcript is in error, and whether the court in fact instructed with CACI No. 2004 remains unclear. (See fn. 1, ante.)
“James Riley claims Yosemite Water Company interfered with James Riley’s use and enjoyment of his land. To establish this claim, James Riley must prove all of following: One, that James Riley owned the property; two, that Yosemite Water Company created a condition that was an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property; three, that this condition interfered with James Riley’s use or enjoyment of his land; four, that James Riley did not consent to Yosemite Water Company’s conduct; five, that an ordinary person would be reasonably annoyed or disturbed by Yosemite Water Company’s conduct; six, that James Riley was harmed; seven, that Yosemite Water Company’s conduct was a substantial factor in causing James Riley’s harm; and, eight, that the seriousness of the harm outweighs the public benefit of Yosemite Water Company’s conduct.”
The last of the quoted paragraphs is from CACI No. 2021, with appropriate modifications.
The jury received a special verdict form divided into four captioned portions: “Negligence,” “Trespass,” “Nuisance,” and “Affirmative Defenses.” The negligence section began with two questions about Yosemite’s negligence and causation of harm. Then followed two questions about Riley’s negligence and causation of harm. Next, the jury was asked the total amount of damages suffered by Riley “[w]ithout taking into consideration the reduction of damages due to the negligence of [Riley], if any.” The section concluded by asking the percentage of negligence attributable to each party. (The jury answered that both parties were negligent and had been a legal cause of the harm, that Riley’s total loss was $583,000, and that each party was 50 percent negligent.)
The jury next found that Yosemite did “commit a trespass onto the property” of Riley and that Riley suffered damage in the amount of $583,000 “as a result of the trespass.” In the next section of the verdict form, the jury found that Yosemite’s use of its own property interfered with Riley’s use and enjoyment of his property and that Riley suffered damage in the amount of $583,000 “as a result of the nuisance created by” Yosemite. Finally, in the affirmative defenses section of the form, the jury found that Riley’s damages did not occur outside the stated limitations period and that Riley did not fail to mitigate his damages.
The day after the jury returned its verdict, the court entered judgment in a form submitted by Riley, incorporating the special verdict verbatim and awarding judgment in the amount of $583,000.
Yosemite filed a motion to vacate and correct the judgment, together with a notice of intention to move for new trial. On the motion to vacate and correct the judgment, Yosemite contended that the finding of comparative fault on the negligence cause of action applied to the trespass and nuisance causes of action. Yosemite asserted “the jury determined the action based on negligence principles. Notably, there were never any instructions on ultrahazardous activity or strict liability.” (Yosemite’s points and authorities, if any, filed in support of the new-trial motion are not contained in the record on appeal; the notice of intention to move for new trial merely states the statutory grounds for granting a new trial. (See Code Civ. Proc., § 657.))
Riley opposed the motion to correct the judgment on the grounds that the judgment was based on the verdict form, to which Yosemite had not objected, and that the jury was not required to find Riley negligent in order to render verdicts on the trespass and nuisance causes of action.
Assuming the reporter’s transcript accurately reflects the instructions to the jury, intentional trespass was not an available theory of liability. (See text accompanying fn. 2, ante.) Accordingly, our discussion below will focus on the nuisance cause of action only.
The trial court granted the motion to correct the judgment on the grounds the original judgment “did not comport with the court’s intent or the jury’s finding.” “In this case, the jury clearly found that plaintiff was 50% responsible for his own injuries, and there was no evidence of either intentional trespass or an ultrahazardous activity.”
Riley then filed a motion for new trial arguing, in essence, that the court lacked the power to change the judgment and that, as modified by the court, damages were inadequate. The court denied the motion for new trial. Both Riley and Yosemite filed timely notices of appeal.
DISCUSSION
I. Riley’s Appeal
The trial court’s modification of the judgment in this case constituted a deprivation of Riley’s right to a jury trial. Yosemite’s arguments on appeal do not provide legal justification for the trial court’s actions.
The jury did not, contrary to the trial court’s interpretation of the verdict, make an abstract finding that Riley “was 50% responsible for his own injuries.” Instead, the jury found that, under the instructions concerning Yosemite’s negligence and Riley’s own negligence, each party was 50 percent responsible for the negligence. The jury was not asked to consider, and the verdict form did not permit it to find, that Riley was 50 percent responsible for the injury caused by Yosemite’s trespass or its creation of a nuisance.
It is possible, but by no means certain, that the jury would have concluded Riley was 50 percent responsible for the damage to his property if it found Yosemite engaged in negligent trespass and negligently created the nuisance. But it was not asked to make that finding, and the trial court is not permitted to modify the verdict based on its conclusion as to what the jury would have done if it had been asked to make such a finding. (See Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237-1238.)
The trial court is not powerless if it concludes the jury was wrongly or insufficiently instructed, intended to award damages in a sum less than is reflected in the verdict, or awarded greater damages than was justified if the evidence had been considered under proper instructions: the trial court is permitted under those circumstances, among others, to grant a new-trial motion. Such an order can be either an outright order for a new trial or a conditional order for new trial unless plaintiff accepts a lower award in keeping with the court’s appraisal of the case as the “13th juror.” (See Hughes v. Hearst Publications, Inc. (1947) 79 Cal.App.2d 703, 705.) Further, the court can grant judgment notwithstanding the verdict (JNOV) if it makes a finding that a party must prevail as a matter of law--that is, the evidence is insufficient to support the verdict even if all conflicts in the evidence are resolved in favor of the party who has prevailed in the verdict. (See Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878.) (Grant of JNOV was not an issue in this case, of course, since the court entered judgment for Riley in the reduced amount, implicitly finding that the evidence supported the liability portion of the verdict.)
Yosemite contends the court did not modify the verdict because the court “did not make any new or different findings in the corrected judgment.” That, however, is not what happened. In order to support modification of the judgment, the court concluded the jury “clearly found that plaintiff was 50% responsible for his own injuries.” We have explained above that, on the face of the verdict form, that is not true; the court’s conclusion necessarily rested on the court’s finding of fact that the jury intended to do something it had not done. Second, the court found that “there was no evidence of intentional trespass” and, inferentially, of intentional creation of the nuisance. Whether that conclusion was correct or incorrect, it is not a finding the jury made; it is a finding the court made. As discussed above, the court’s findings would have justified granting a new-trial motion, but not a modification of the judgment to conform to the court’s factual findings. (See San Francisco v. Superior Court (1928) 94 Cal.App. 318, 321 [trial court impermissibly raised condemnation award after it disagreed with jury’s determination of value].)
In the present posture of this case, we are not required to determine whether the evidence supported a jury determination of intentional creation of the nuisance. Nevertheless, for the guidance of the court and the parties on remand, we believe it appropriate to add the following observations.
In Yosemite’s brief, it repeatedly conflates “intentional conduct” and “intentional misconduct.” The two concepts are not interchangeable: actionable “intentional conduct” does not require “misconduct” of any sort. Thus in Miller v. National Broadcasting Co. (1981) 187 Cal.App.3d 1463, 1480, in which the plaintiff sued for trespass after a television news crew entered her home with a paramedic team, the trial court granted summary judgment for the defendant on the basis that the crew had not entered “maliciously.” The appellate court reversed. “[T]he trespass was intentional in the sense that the law understands and uses that word: the defendants intended to cross the threshold of the … home. Thus, they committed an intentional tort, …” (Ibid.)
Similarly, on the evidence and instructions in this case, the jury could have concluded Yosemite’s employees intentionally dumped water from the tanks onto the ground, knowing with substantial certainty (based on past experience) that it would flow onto Riley’s property or up against his building. The evidence did not need to establish the employees intended to undermine the building or that there was a substantial certainty of damage to the building. (See Rest.2d Torts, § 840B, illus. 3; see also id., § 158, illus. 3 [intentional trespass].) Accordingly, based upon our review of the record, Yosemite is incorrect that the evidence was insufficient to support the verdict if the jury, as permitted under the instructions, concluded the nuisance was intentional. We reiterate, however, the jury was not asked to make this distinction and was not told to apply comparative fault only if it found the nuisance was not caused by intentional acts.
Yosemite’s reliance on Tint v. Sanborn (1989) 211 Cal.App.3d 1225 is misplaced. In that nuisance case, the defendant raised comparative fault as a partial defense to the plaintiff’s cause of action for nuisance. The jury was instructed on the issue. On appeal, the plaintiff contended it was error to instruct on comparative fault in any nuisance action. (Id. at pp. 1227, 1231.) The appellate court disagreed. It noted that a nuisance action can arise “from intentional acts, from negligence, or from strict liability as a result of engagement in ultrahazardous activity.” (Id. at p. 1228.) In the case before it, the defendant presented sufficient evidence to support a finding that his actions, if indeed he created a nuisance, were negligent and that the plaintiff was negligent as well. (Id. at p. 1230.) The court held that the trial court properly instructed on comparative fault where the defendant contended the nuisance arose from negligent acts. (Id. at p. 1234.) The court noted that it was not presented with the question whether comparative fault was applicable when the nuisance was caused by intentional acts, and that it did not decide that question. (Id. at p. 1234, fn. 3.)
Yosemite correctly relies on Tint v. Sanborn, supra, 211 Cal.App.3d 1225 for the proposition that the court is permitted to instruct on comparative fault when one basis for the nuisance claim is a defendant’s negligent acts. This does not aid Yosemite here, however, because the court did not instruct the jury on this theory in the context of the nuisance cause of action, even if it would have been proper to do so, and the jury did not find Riley contributed to the damages caused by the nuisance, even if the evidence might have supported such a finding.
We conclude the trial court impermissibly modified the judgment.
II. Yosemite’s Appeal
In its appeal, Yosemite contends the trial court abused its discretion in excluding an expert witness whose only familiarity with the facts of the case came from reading summaries of investigations prepared by Riley’s experts. Based on this information, Yosemite’s expert was apparently prepared to testify in some manner concerning cost of repair. Yosemite lodged with the trial court the expert’s deposition.
The trial court, having read the deposition, excluded this witness on the basis that much of the proffered testimony was without foundation and was speculative. The court gave an example in which the expert assumed a quantity of saturated dirt to be removed from under the slab and “there’s no basis really for the amount .… And then says later in the deposition that it may go up or may go down, but he doesn’t even know the area that’s saturated.” As a result of “numerous things” like this, “his testimony would not be significantly helpful, let alone substantially helpful to the trier of fact.” Further, the lack of foundation for the opinions took the situation “beyond, in my view, an issue of the trier of fact hearing that testimony and then deciding what weight it should be given.”
Yosemite has failed to include the deposition of the witness in the clerk’s transcript on appeal. (Cal. Rules of Court, rule 8.122(b)(3).) Consequently, we are in no position to examine the trial court’s conclusions about the testimony and we deem Yosemite’s contentions waived. In any event, even on Yosemite’s characterization of the proffered testimony, we conclude the trial court did not abuse its discretion in excluding this peripheral witness and Yosemite has not shown it was prejudiced by the court’s action. (Olson v. American Bankers Ins. Co. (1994) 30 Cal.App.4th 816, 826.)
DISPOSITION
The judgment is reversed. On remand, the court shall enter a new judgment on the verdict in the amount of $583,000.00. The date of entry of the new judgment shall be the date of judgment for purposes of the parties’ new trial motions, if any, and other postjudgment proceedings. Riley is awarded costs on appeal.
WE CONCUR: WISEMAN, J., HILL, J.