Opinion
A146379
11-19-2018
ELLEN TSANG, Plaintiff and Appellant, v. CHARLES ENGELBERG, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC-14-537471)
Plaintiff Ellen Tsang appeals from a judgment based on a jury verdict finding that she had not proven any of her causes of action against her neighbor, defendant Charles Engelberg, for trespass, nuisance, invasion of privacy, or intentional infliction of emotional distress, and from postjudgment orders denying her motions for a new trial and to tax Engelberg's costs. Tsang's primary arguments are that the trial court abused its discretion in granting her own motion in limine to bar evidence of other lawsuits in which she was a party, which assertedly prevented her from justifying her interactions with Engelberg by referring to another pending action between them, and that the verdict on each cause of action is against the evidence.
We conclude that the invited-error doctrine estops Tsang to challenge the in limine ruling that she herself requested, and that she forfeited such a challenge in any event by failing to ask the court to modify the ruling to mitigate the asserted prejudice. She also fails to satisfy the daunting standard for demonstrating that a judgment based on a defense verdict must be reversed because the evidence compelled a verdict for the plaintiff, and fails to show any error in the denial of her postjudgment motions. We thus affirm the judgment in full.
Factual and Procedural Background
On appeal, Tsang recounts facts for which she cites only exhibit G to her motion to augment the record on appeal. That exhibit is a declaration she submitted in opposition to a motion for summary adjudication. It was not admitted into evidence at trial, so it is irrelevant to whether the evidence compelled findings in Tsang's favor. We deny the motion to augment as to exhibit G and disregard alleged facts based thereon.
Engelberg bought the house at 767 North Point Street in San Francisco in 1997. Since before 1995, Tsang has lived at 769 North Point, which is owned by a trust of which she is the trustee. The west wall of Engelberg's home abuts the lot line, making it impossible to reach or maintain parts of the wall without standing on or being suspended above Tsang's property.
At trial, Tsang sought relief for five alleged injuries on four different legal theories of recovery. The injuries arose when Engelberg or his worker (1) physically entered Tsang's property by stepping on a roof and trellis while repainting Engelberg's western wall (trespass), (2) dislodged paint chips from Engelberg's wall onto Tsang's property during the repainting (trespass and nuisance), (3) caused or allowed rainwater to drain from Engelberg's property onto Tsang's property (nuisance), (4) caused or allowed tar to spread from his house onto hers (nuisance); and (5) repeatedly harassed Tsang in various ways such as photographing her on her property, opening her car door to scream at her, threatening her, and yelling at her (invasion of privacy and intentional infliction of emotional distress (IIED)).
We grant Engelberg's unopposed motion to augment the record on appeal to include Tsang's second amended complaint and six of his trial exhibits. The second amended complaint asserts counts for trespass, defamation, invasion of privacy, stalking, nuisance, and intentional infliction of emotional distress. The defamation and stalking counts were not tried.
The evidence at trial concerned three separate discrete events or ongoing conditions that allegedly caused the injuries listed above—the July 2012 painting of Engelberg's wall, the allegedly ongoing intrusions of tar and water from his property onto hers, and his allegedly recurrent verbal abuse and taking of improper photographs. We divide our summary of the evidence accordingly.
1. The Painting of Engelberg's Wall (Trespass and Nuisance)
For some time before the events at issue, the paint on the west wall of Engelberg's property had been peeling. In July 2012, after unsuccessful efforts over several years to gain permission for workers to enter Tsang's property to repair or replace the siding, Engelberg hired Alfredo Muncoz to seal the peeling paint on the west wall as best he could without trespassing on Tsang's property. Engelberg directed Muncoz to use a roller to cover the peeling paint with a layer of fresh paint, and gave him "the specific instructions, do not trespass on Mrs. Tsang's property and do not, to the best of your ability, dislodge any [paint] chips on her property." Part of the concrete walkway and stairway is at a much lower elevation than Tsang's back yard, and can only be reached from that yard by a ladder. As of July 2012, Tsang had multiple video cameras recording events on and around her property.
Along part of the eastern boundary of Tsang's property is a vertical wooden latticework a few inches away from Engelberg's west wall, on which Tsang grows flowers. In addition, a separate latticework is suspended in the air at roughly a 45 degree angle over another part of the eastern edge of Tsang's property. A framework comprising four wooden beams extends from the eastern side of Tsang's house over part of the concrete stairway/walkway, ending just short of Engelberg's western wall. Two of the wooden beams are horizontal, while the other two extend upward at roughly a 45 degree angle, running from Tsang's home to the end of the horizontal beams to form a frame. A piece of wooden latticework is connected to the diagonal wooden bars, below the horizontal bars. (We refer to the horizontal crossbars of this structure as the "trellis beams," and to the structure as a whole as the "trellis.") Near the front of the lot, Tsang's house extends to or nearly to the eastern boundary of her lot, and thus abuts or nearly abuts Engelberg's house.
As the jury saw on video recordings from Tsang's cameras, Muncoz painted Engelberg's west wall in several ways: (1) by using a roller or brush while standing on Engelberg's property and reaching down or over to the western wall, (2) by standing atop a part of Engelberg's western wall that is lower than the rest of the wall, while connected by a rope to the wall, and (3) by placing his foot or standing on two parts of Tsang's property—the horizontal crossbars of the trellis structure described above (the trellis beams), and the sloping roof of the part of Tsang's house that abuts or nearly abuts the west wall of Engelberg's house. The uncontradicted evidence established that Muncoz did enter Tsang's property by putting his foot or feet on her trellis beams and roof. In his closing argument, Engelberg's counsel expressly conceded as much: "[T]he trespass here is [that] a worker stood on her roof. Guilty. It happened."
After Muncoz finished painting, Tsang alleges that she saw "a lot of blue paint chips" on the concrete of the stairway/walkway, on a patio, and in several flowerpots. She took photographs of the paint chips, which were admitted into evidence. She also took photographs of a piece of wood lying on the concrete, which she contends was broken off the "latticework."
On July 27, 2012, in response to a complaint by Tsang, a San Francisco Department of Building Inspection employee inspected the properties and issued Engelberg a notice of violation (NoV). The NoV stated that "[p]aint chips were observed in [the] side walkway, rear yard, inside flower pots and under drainage gate at top of stairs" of Tsang's property. It directed Engelberg to "remove and properly dispose [of the] severely peeling and flaking paint [on his] exterior siding to prevent a lead hazard"; to apply new weatherproofing; and to "[r]emove paint chips and debris from [the] side walkway and rear yard of 769 North Point Street in a lead[-]safe manner." But contrary to Tsang's suggestions at trial and on appeal, the NoV did not include a finding that the paint chips were lead-based. There was no evidence that the city ever had the chips tested for lead.
After the city issued the NoV in July 2012, the parties, their attorneys, and the city's building department staff engaged in correspondence, communications, and administrative proceedings between July 2012 and June 2015—i.e., a month before trial—related to Engelberg's efforts to secure Tsang's consent to have a contractor enter her property to remove the paint chips, remediate the peeling paint on the west wall, and abate any lead-related hazard.
Each party offered expert witnesses to testify about the lead content of the paint chips found in Tsang's breezeway, patio, flowerpots, and windowsill, the proportion of those chips that had come from Engelberg's wall, and the dangers of lead exposure.
Tsang offered two experts: industrial hygienist Theresa Choe and contractor Henry Karnilowicz, a certified lead specialist who supervises abatement work. Choe expressed the opinion, based on her inspection of Tsang's property a week before trial, that most of the paint chips came from Engelberg's property. (As of the July 2015 trial, three years after the painting, the paint chips had not been removed from Tsang's property.) Choe authenticated photographs showing the eastern edge of Tsang's property, the western wall of Engelberg's house, and the paint chips, noting chips that seemed to come from Engelberg's wall. Choe also discussed her pretrial review of a report by Engelberg's industrial hygienist, Robert Gils, which concluded based on laboratory testing that most of the paint chips or debris on the eastern edge of Tsang's property were from her own house. Choe expressed doubts about Gils's sampling methodology and conclusion, based on her visual inspection. Finally, Choe briefly discussed the general hazards of lead exposure. She did not express an opinion as to whether the paint chips on Tsang's property created a health hazard, given their location, quantity, and lead content.
Tsang also notes that Choe relied on a report by Bay Area Lead Detectors, but this report reflects testing of the levels of lead in the paint only on Engelberg's wall, not of the paint chips on Tsang's property.
Tsang's lead-abatement expert, Henry Karnilowicz, had a blue paint chip from Tsang's property, which he identified by visual comparison as having come from Engelberg's wall, tested by a laboratory. The laboratory report was admitted in evidence. Karnilowicz read the report's conclusion that the sample contained 380 milligrams of lead per kilogram (i.e., 380 parts per million). Asked if that level of lead "normally arouse[s] your concern," Karnilowicz answered, "I'm not an expert when it comes to the readings from the labs, but there is lead content in the paint from what I am seeing on here." He later added, "any time there is lead in paint, there is always the concern."
Tsang notes on appeal that Choe took the lab report obtained by Karnilowicz into account in forming her opinions, but Choe did not opine that the paint chips on Tsang's property pose a threat to the health of Tsang or anyone else. On cross-examination, she testified that one paint chip containing any amount of lead "could potentially be a health hazard," but she did not opine whether the chips in this case in fact did so.
Engelberg's industrial hygiene expert, Robert Gils, testified that federal agencies have published statements that it is not uncommon to find concentrations of lead up to 500 parts per million around the base of older houses.
2. Tar Spreading and Water Draining from Engelberg's Property (Nuisance)
Tsang asserted causes of action based on Engelberg's having caused or allowed rainwater to drain and tar to spread from his house onto hers. On appeal, Tsang argues only that the alleged water and tar intrusions amounted to nuisances, not trespasses.
Tsang introduced visual evidence and testimony showing that, as of 2014, black material looking like dried tar covered part of the edge of her house where it nearly abuts Engelberg's house. Tsang also introduced an NoV that the Department of Building Inspection had issued for 767 North Point Street in 2004. The 2004 NoV described a violation consisting in part of "Roofing material from 767 North Point St attached to east wall of 769 North Point St," and directed Engelberg to "remove roofing material from wall of 769 North Point St."
Karnilowicz, who also served as Tsang's expert witness on drainage, expressed the opinion that, as of his 2014 inspection, Engelberg had not removed the tar identified in the 2004 NoV. But Karnilowicz also acknowledged that "it's hard to say that [the tar] really had anything to do with the drainage" of water from Engelberg's property. Nor did he express an opinion that the tar causally contributed to any other form of harm to Tsang or her property.
In addition to tar, the "Violation Description" of the 2004 NoV stated that "Rainwater from west roof of 767 North Point St encroaches over property line in contravention of UBC [Uniform Building Code section] 1506.1." The NoV directed Engelberg to "redirect rainwater [away] from neighboring property."
Karnilowicz was not clear as to whether, where, and how rainwater would drain from Engelberg's property to Tsang's property. When Tsang's counsel asked, "Upon your inspection, did you observe some difficulties at all with the drainage between the two properties?," he answered, "We didn't do a test on it, so I can't really tell you what would happen in the event of rain coming down on the property, where it would go." Karnilowicz also acknowledged that he did not talk with any party or witness about drainage at the properties and that he had never seen water flowing through the drainage systems at the properties. Yet when asked if he "observe[d] conditions ... between the two buildings that relate to a drainage problem," he answered, "From what I recall, it did appear that way, yes, that the water from [Engelberg]'s property was running into Ms. Tsang's property." Asked what he had seen that supported this conclusion, he answered, "The way the roofs were sloped," explaining that, "[i]f you slope the roof a certain way, the water runs a certain way," and adding, "[f]rom what I could remember, the way it was sloping, the water would run into Ms. Tsang's property." When Engelberg's counsel asked Karnilowicz on cross-examination whether he was guessing in that regard, he insisted that he has been a contractor for 40 years and that, "from my experience of so many years, I can tell that it was a problem with that drainage."
Edgar Brincat, who lives with Tsang at 769 North Point, authenticated a 20-second video he took showing the space between Engelberg's and Tsang's properties near the tar. He testified that he has seen water running from a specified point on Engelberg's roof onto Tsang's property, and that "there would be staining marks all the way down to the ground." Tsang did not introduce any visual evidence or other testimony, however, regarding water stains.
3. Verbal Abuse and Improper Photographs (Invasion of Privacy and IIED)
Tsang testified that, at various times, Engelberg photographed her while she was bending over in her driveway and then leered and laughed at her; opened the passenger door of her car while she was parking, screamed at her, and then slammed the door shut; threatened to rent a crane to modify her property when she was not home; and yelled at her 30 times between the July 2012 painting incident and the end of 2013. She also alleged that Engelberg's workers bent over his property line to peek in her windows and took photos of her hanging underwear in her back yard. Brincat testified that he frequently heard and saw Engelberg yell at and threaten Tsang, including the crane and car-door-slamming incidents, as well as ones in which Engelberg angrily yelled, "this is my wall," while pounding the wall, and yelled that he would sue her and that she would need to have a million dollars to pay his attorney fees.
In response, Engelberg testified categorically that he has never photographed Tsang or seen anyone do so, and that he has never yelled at her or threatened to bring a crane to her property (or, indeed, spoken a word to her), or touched her car. He also elicited evidence to impeach Tsang's and Brincat's credibility.
This evidence included an acknowledgment on cross-examination by the doctor who evaluated Tsang's emotional distress that she had shown "a tendency toward exaggeration" in her account of her interactions with Engelberg. It also included evidence that Brincat had identified himself with a false name at an Abatement Board hearing regarding Engelberg's property and initially denied doing so, and had testified that he did not recall ever posting a comment on amazon.com about surveillance-camera equipment, but later acknowledged having done so after being shown a printout of such a comment. Finally, Tsang and Brincat admitted that, although Tsang has video cameras trained on the locations of most of the alleged invasions of privacy, they did not have video evidence of any of them.
4. Verdict and Postjudgment Motions
After four and a half days of evidence, the jury returned a verdict that Tsang had not proven any of her causes of action. The court entered judgment, and Tsang timely noticed an appeal.
Tsang also moved for a new trial on two grounds. One was that the court's order granting her motion in limine to preclude evidence of the parties' prior lawsuits had prejudiced her, as it prevented her from offering evidence to justify the preconditions she placed on any consent to give Engelberg access to her property. The second was that the jury disregarded the law and the evidence in finding that Engelberg did not trespass on her property. The court denied this motion.
Finally, Tsang filed a posttrial motion to tax Engelberg's costs. The court granted the motion in part and denied it in part. Tsang timely noticed an appeal from this order to challenge the court's rulings on two items.
Although Tsang filed a separate notice of appeal from this postjudgment order, and the superior court transmitted a distinct clerk's transcript for that appeal, this court did not generate a separate appeal number, and has filed all papers related to the costs appeal on the same docket as the appeal from the judgment. Because the parties address both appeals in the same single set of briefs, we resolve both appeals in this single opinion.
Discussion
1. Standards of Review
Since Tsang is appealing from a judgment based on a jury verdict and bore the burden of proof at trial, on appeal "the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) "Put another way, the issue is 'whether the evidence compels a finding in favor of [Tsang] as a matter of law.' " (Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 966.) In such a case, " 'it is almost impossible for [the party who had the burden of proof at trial] to prevail on appeal by arguing [that] the evidence compels a judgment in his favor.' " (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734.)
We review for an abuse of discretion both in limine rulings restricting the introduction of evidence (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1535.) and rulings as to whether a prevailing party's costs were reasonably necessary to the conduct of the litigation and reasonable in amount (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557-1558).
2. In Limine Ruling
Tsang contends that the trial court prejudicially abused its discretion when it granted Tsang's own motion in limine regarding prior lawsuits. The court made a ruling that the parties understood to bar them from offering evidence of or referring to any other lawsuit involving either party (with one irrelevant exception). Tsang argues that this order prejudicially disabled her from explaining why she had insisted on imposing preconditions on any consent to let Engelberg's contractors enter her property—namely, to avoid strengthening his position in his pending action to establish an easement on her property (the easement action).
We grant Tsang's motion to augment the record on appeal to include five trial exhibits that Tsang discusses in her challenge to the in limine ruling, as well as a transcript of the hearing that led to that ruling. We also grant Engelberg's motion to augment insofar as it includes copies of the motion in limine and opposition. (See also fn. 2, supra.)
Tsang describes the ruling as an order "that no party would be allowed to introduce any evidence or make any argument regarding any other litigation involving any other party" (italics added)—a characterization that Engelberg does not dispute. The actual ruling, however, was that "all of the prior lawsuits filed by Ms. Tsang, with the exception of the [1997] lawsuit, [are] irrelevant to any of the issues ... remaining in the case." (Italics added.) The record as a whole shows that the parties and court treated the ruling as a ban on evidence of or reference to any other action involving either party—specifically including Engelberg's pending easement action against Tsang, which is the focus of Tsang's argument on appeal.
Tsang's motion in limine asked the court to "preclude [Engelberg] from making reference to or introducing evidence regarding any prior lawsuits in which [Tsang] was a party" pursuant to Evidence Code section 352, on the ground that the likelihood of such evidence prejudicing the jury against her substantially outweighed its probative value. Although Engelberg's opposition to the motion listed 31 lawsuits involving Tsang, Engelberg identified only two such actions as relevant to this case. In those actions, Engelberg asserted, Tsang had accused prior neighbors at 767 North Point of causing her emotional distress—raising questions about the origins of the emotional distress that she claimed in this action.
At the oral argument on the motion in limine, Tsang's counsel focused primarily on Engelberg's "tendency ... to claim [that] my client is a vexatious litigant, and that this case is a result of that vexatious litigation," and counsel's resultant concern that Engelberg would "try[] to poison the minds of the jury to get them to rule against her ... because they think she files too many lawsuits." He did note, however, that "there is litigation on both sides" and that "Engelberg has filed another lawsuit in 2013 against my client that relates to the very same or similar issues [as] this case ... [and] is still pending." Evidence of other lawsuits, Tsang's counsel argued, would be "extremely confusing, extremely difficult to sort out, and ... something that Evidence Code section 352 was designed to exclude," as there was no probative value in "a series of small claims cases, where [Tsang] might be a plaintiff or defendant, or other cases, or a case against her former lawyer, or other cases involving the city ...."
The court ruled that "all of the prior lawsuits filed by the plaintiff with the exception of the [1997] lawsuit are irrelevant to any remaining issues in this case," and that any probative value that evidence of prior actions might have was outweighed by its prejudice. The court then added, "There should not even be a hint of any other lawsuits being filed by the plaintiff" or "any reference ... in voir dire [to] vexatious litigants or anything like that."
That clarification led Engelberg's counsel to ask if he could refer to a pending action for trespass filed by the Arza Trust (of which Tsang is the trustee, and which owns 769 North Point). The court ruled that "There is to be no reference to ... the fact that some other lawsuit has been filed by the trust ...." After thanking counsel "for bringing that up," the court added, "So if ... either of you think there is any other lawsuit hanging out there, you are not to mention it without talking to me first outside the presence of the jury."
It appears that the pending action by the trust to which Engelberg's counsel referred was a cross-complaint filed by the trust in Engelberg's easement action, and that this is why the parties understood the court's ruling to preclude reference to the easement action as well as to actions brought by Tsang.
On appeal, Tsang claims that the in limine ruling unfairly prejudiced her because, while the court allowed Engelberg to introduce evidence of letters and emails that he or his attorneys sent to Tsang seeking permission for contractors to enter her property, in order to work on Engelberg's wall before the July 2012 painting and/or remediate the paint chips afterward, the in limine ruling left her unable to justify her responses to those requests, in which she placed various preconditions on any such access. The ruling had that effect, she argues, because she could not explain to the jury that she had seen the letters as legal demands related to Engelberg's easement action. She also contends that the in limine ruling required her to redact parts of correspondence showing that her conditions were designed to avoid strengthening Engelberg's position in that lawsuit.
Engelberg argues that the invited error doctrine bars Tsang's argument, as it was her motion that triggered the in limine ruling she now challenges. Alternatively, he argues, Tsang forfeited the issues because she never objected to any redactions or exclusion of her evidence, or any inability to refer to the easement action in order to explain her conduct. We agree with both arguments.
First, as Engelberg notes, " '[t]he rule against invited error generally precludes a [party] from obtaining reversal of a judgment by asserting error in the granting of the [party]'s own motion.' " (People v. Burgener (2016) 1 Cal.5th 461, 474.) In such a case, the party's decision to induce the court to make a ruling estops that party to later seek reversal based on the very ruling it encouraged. (Kardly v. State Farm Mut. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746, 1750.) Because the doctrine is a form of estoppel, equity dictates that it only be applied if the ruling resulted from "affirmative conduct demonstrating a deliberate tactical choice on the part of the challenging party." (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 706.)
Here, the record shows that Tsang engaged in affirmative conduct—i.e., filing and arguing the motion in limine—reflecting a deliberate tactical choice that the exclusion of evidence of prior litigation would, on balance, serve her interests at trial by preventing Engelberg from prejudicially depicting her as a serial litigant. Her motion asked the court to exclude evidence of "any prior lawsuits in which [she] was a party." In her reply brief, Tsang nonetheless contends that the invited error doctrine does not apply because she did not intend for her motion to bring about the exclusion of references to Engelberg's easement action, which could enable her to explain her efforts to limit his access to her property. Instead, she only sought to exclude evidence of her own prior lawsuits. In any event, even assuming that Tsang did not intend to request the court to limit her ability to explain her own conduct, at no point did she object to that application of the in limine ruling as unfairly prejudicial, ask the court to clarify or modify the in limine ruling, object to correspondence offered into evidence by Engelberg on the ground that the in limine ruling made the admission of such evidence unfairly prejudicial, or complain that she was prejudiced when the ruling required her to redact correspondence that she offered in evidence. Thus, even if the invited error doctrine does not estop her to challenge the court's in limine ruling, Tsang forfeited any such challenge by failing to raise the issue below.
Tsang identifies five letters or emails seeking access to her property from Engelberg or his attorneys that Engelberg offered in evidence, and about which she was cross-examined.
3. Trespass
On Tsang's causes of action for trespass—based on Muncoz's having stood on parts of her property while painting Engelberg's wall, and on Muncoz's having dislodged paint chips onto her property—the jury answered "no" to the first question on the special verdict: "Did Charles Engelberg intentionally, recklessly, or negligently enter Ellen Tsang's property or intentionally, recklessly, or negligently cause another person or thing to enter [her] property?" This made it unnecessary for the jury to consider any other elements of the causes of action.
Tsang does not contend on appeal that Engelberg himself entered, or personally caused a thing to enter, her property. Instead, she contends that Engelberg caused another person (i.e., Muncoz) to enter her property, and that Engelberg caused Muncoz to cause a thing (i.e., paint chips) to enter her property. However, the evidence is undisputed that Engelberg gave Muncoz "the specific instructions, do not trespass on Mrs. Tsang's property and do not, to the best of your ability, dislodge any [paint] chips on her property."
The parties do not address whether Muncoz was Engelberg's employee or an independent contractor. Tsang makes no contention that Engelberg, as an employer, was vicariously liable for Muncoz's trespasses on a respondeat superior theory.
In standard jury instructions, the court defined negligence, recklessness, and intentional entry for purposes of trespass. The court instructed the jury that a person acts negligently "if he or she does something that a reasonably careful person would not do in the same situation" (CACI No. 401); that a person acts recklessly if he or she knows that it is "highly probable that his [or her] conduct [will] cause harm and ... knowingly disregard[s] this risk" (CACI No. 3113); and that "[a]n entry is intentional if a person engages in conduct that is substantially certain to cause something to go onto that property" (CACI No. 2004). Tsang does not challenge these instructions or provide any reason why the jury could not find the evidence insufficient to establish that Engelberg's conduct came within those definitions. Accordingly, the jury's verdict that Tsang failed to prove her causes of action for trespass must stand.
For the same reasons, Tsang has not shown that the trial court erred in denying her a new trial on the grounds that the jury failed to award damages for trespass despite undisputed evidence of harm (Code Civ. Proc., § 657(5), or that its verdict was contrary to law because uncontradicted evidence compelled it to find a trespass (id., § 657(6)). --------
4. Nuisance
On Tsang's causes of action for nuisance—based on paint chips dislodged onto her property, tar that had seeped or migrated to the edge of her house, and rainwater that drained from Engelberg's property onto hers—the jury answered "no" on the special verdict form's second question: "Did Charles Engelberg, by acting or failing to act, create a condition or permit a condition to exist that was harmful to the health, was indecent or offensive to the senses, or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, of Ellen Tsang?" This made it unnecessary to consider any other disputed elements of the causes of action.
On appeal, Tsang cites decisions holding that parties can be liable for nuisance if they "create ... a system that causes hazardous wastes to be disposed of improperly" (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 40-41), improperly maintain water drainage (even if they did not create the problem) (Turlock v. Bristow (1930) 103 Cal.App. 750, 754-755), or contaminate soil (KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1178). But while causing or allowing rainwater, tar, or paint containing hazardous amounts of lead to migrate or be deposited onto neighboring property doubtless could make a property owner liable for nuisance if the materials caused some harm, the record conspicuously lacks evidence to support—much less compel—a finding that the paint chips posed a hazard to the health of persons living at the property. Tsang's industrial-hygiene expert did not express the opinion that the paint chips created any health hazard in light of their location, quantity, and lead content, only that a single paint chip with any amount of lead "could potentially be a health hazard." Tsang's lead-abatement expert made an equally vague statement while acknowledging that "I'm not an expert when it comes to [lead content] readings from the labs." The weight and character of that testimony falls well short of compelling a finding that the paint chips created a health hazard in this case.
Tsang's evidence as to rainwater and tar also fell far short of compelling a finding that any such drainage created a health hazard or a condition indecent or offensive to the senses, or obstructed Tsang's use of her property. While Karnilowicz insisted that "from [his] experience of so many years," he could "tell that it was a problem with that drainage," he never identified any negative effect that the unspecified "problem" had on Tsang's property or her use thereof. And while Tsang's housemate Edgar Brincat testified that he had seen water run from Engelberg's roof onto Tsang's property and that "there would be staining marks all the way down to the ground," he did not testify that the "water stains" were permanent, and Tsang offered no visual evidence of water stains.
Although visual evidence showed tar on part of an upper edge of Tsang's house, this evidence did not compel a finding that the tar was indecent or offensive to the senses of "persons of normal health and sensibilities living in the same community" (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938) or that it obstructed her use of her property in any way. Tsang's own expert on drainage issues, Karnilowicz, forthrightly acknowledged that "it's hard to say that [the tar] really had anything to do with the drainage" of water from Engelberg's property, and did not opine that the tar had any negative effect on Tsang's property. It is questionable whether the evidence would have supported a finding of nuisance based on the tar, but it plainly did not compel such a finding.
5. Invasion of Privacy and IIED
Tsang's appeal fails as to her related causes of action for invasion of privacy and IIED, which depend on the same alleged conduct and injuries. As detailed above, Tsang and Brincat testified to various acts by Engelberg and his workers that if credited might have supported verdicts on either cause of action. However, Engelberg squarely denied all of Tsang's material allegations. There is no basis for this court to reject the jury's evaluation of the conflicting evidence.
6. Costs
Tsang contends that the trial court abused its discretion in denying her motion to tax two items of Engelberg's costs—$13,750 for the fees of expert witness John Chamberlain, a psychiatrist retained to evaluate Tsang's emotional distress, and $9,933.75 for "trial technician and exhibit preparation," which includes the rental of equipment for displaying visual evidence and the fees of a technician to operate the equipment.
Tsang has not shown that the trial court abused its discretion in finding that the $13,750 charged by Dr. Chamberlain for reviewing Tsang's medical records and testifying at trial was "reasonable in amount." Tsang argues that the award was excessive because Dr. Chamberlain testified for only 52 minutes, and because most of the charge— approximately $10,000—reflected time spent reviewing medical records that Tsang contends were not at issue because the case did not involve extensive medical treatment. In rejecting this argument, the trial court noted that Chamberlain's costs "included extensive review of [Tsang]'s medical records and prior testimony provided by [her] which was reasonable and necessary to provide his opinions at trial."
The court did not abuse its discretion. The trial court could find such review necessary to enable Chamberlain to form a well-founded opinion about whether and to what extent pre-existing conditions and prior disputes with other parties—particularly the 1997 litigation against the previous owners of 767 North Point Street in which she claimed emotional distress—may have contributed to the distress that Tsang attributed to her disputes with Engelberg.
As for the "trial technician" costs, Tsang bases her argument largely on Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095 (Science Applications). In that case, the Fourth Appellate District first held that a trial court had erred in allowing the state as prevailing party to recover as costs a "document control and database charge." (Id. at p. 1104.) The court explained its conclusion as follows: "The document control and database charge ... represents the State's expenditure for an outside firm to keep track of the voluminous records in the case—that is, to 'Bates-stamp' the documents, input them for retrieval, maintain a document library, create databases to search for records by date, author or subject, etc. The expense is the cost of hiring assistants to help counsel organize documents and access them in discovery and at trial—in other words, the cost of a 'high tech' paralegal. Because we have concluded attorney fees are not compensable, we cannot condone payment of paralegal fees. The item is not recoverable." (Ibid.)
The Science Applications court then "took a similar approach" to costs incurred for "laser disks and [a] graphics communication system (equipment rental and technician)," explaining that "documents and videos were stored on laser disks like hard copy is stored in a filing cabinet," and that "the [graphics communication] equipment was rented and an on-site technician was on hand to present documentary evidence and graphic exhibits to the jury 'without interruption due to technical difficulties.' " (Science Applications, supra, 39 Cal.App.4th at pp. 1104-1105.) The court held that both items "appear to be a method of accessing information—a high-powered way of retrieving documents—more than anything else" and were thus not recoverable. (Id. at p. 1105.)
In this case, Engelberg's "trial technician and exhibit preparation" costs were for services provided by Persuasive Presentations and its employee Caitlin Stevens to prepare exhibits for electronic display during trial, provide and operate equipment to display the exhibits, and edit videos and documents before displaying them to the jury. In finding the costs of Stevens's services and the equipment rental recoverable, the trial court described how "[t]he equipment used by the trial technician was repeatedly used throughout the trial by both [Tsang] and [Engelberg]," each of whom "presented critical evidence through the use of the technology and services provided by [Engelberg]'s trial technician." The court found that the equipment and the technician's services were "an immeasurable aid to the jury, notably the blow-ups of the condition of the properties at issue," and "a significant aid to the trier of fact in displaying video testimony of [Tsang] before the [city's] Building Department Appeals Board." In sum, "the use of the technology was essential the jury's understanding of the evidence."
The services Stevens provided thus were not like the document-management services covered by the "document control and database charge" in Science Applications, supra, 39 Cal.App.4th at page 1104. While Stevens's services and the equipment she operated appear similar to the "laser disks and graphics communication system (equipment rental and technician)" that the Science Applications court addressed in the second part of its analysis, we do not agree that the trial court was required to characterize the costs of Stevens's services and the equipment rental as paralegal costs, unrecoverable as attorney fees. (See Code Civ. Proc., § 1033.5, subd. (a)(10).) In American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017—a decision the trial court cited in its costs order—the Second Appellate District rejected an argument that a trial court had "abused its discretion in awarding [the prevailing party] $19,307.33 for imaging documents and deposition transcripts, and for display equipment rental." (Id. at p. 1057.) The Second Appellate District reasoned as follows: "Code of Civil Procedure section 1033.5, subdivision (a)(12) lists as allowable costs: 'Models and blowups of exhibits and photocopies of exhibits,' 'if they were reasonably helpful to aid the trier of fact.' While admittedly 'high-tech,' the methods defendants used to display documents to the jury were specifically approved by the trial court, which found them to be highly effective, efficient, and commensurate with the nature of the case. We can find no abuse of discretion under these circumstances. (Cf. Science Applications[, supra,] 39 Cal.App.4th 1095.)" (American Airlines, supra, at p. 1057.) We find the reasoning of American Airlines persuasive and applicable here, particularly in light of the detailed findings by the trial court,
Disposition
The judgment is affirmed. Engelberg shall recover his costs incurred on appeal.
Pollak, J. We concur: Siggins, P.J.
Jenkins, J.