Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC386777, Ann I. Jones, Judge. Reversed.
Hanger, Steinberg, Shapiro & Ash, Marc S. Shapiro and Christopher Gordon Kerr for Defendants and Appellants.
Epps Yong & Coulson, Dawn Marie Coulson and Casandra Secord for Plaintiffs and Respondents.
ASHMANN-GERST J.
Respondents Alexander Van and Diane Van (the Vans) sued appellants James Weeks and Wendy Weeks (the Weekses) for, among other things, trespass based on a fence encroachment. The Vans successfully moved for summary judgment. The trial court awarded the Vans damages and ordered the Weekses to remove their fence. The Weekses appeal. We conclude that there are triable issues regarding the trespass cause of action because there is conflicting evidence as to whether the Weekses knew about the encroachment, and because there is conflicting evidence regarding the value of the loss of the Vans’ use of their property.
We reverse.
FACTS
The pleading
The Vans sued the Weekses for quiet title, preliminary and permanent injunction, trespass, nuisance, negligence and negligence per se. According to the first amended complaint: Without the Vans’ permission, the Weekses knowingly erected a fence that encroached on the Vans’ property and exceeded the maximum height allowed by the municipal code of the City of Palos Verdes Estates. Further, the Weekses and their agents removed plants and sod and destroyed other property belonging to the Vans, including a sprinkler line. Building material was deposited on the Vans’ property and not removed.
The motion for summary judgment or adjudication
In the Vans’ motion for summary judgment or summary adjudication, they argued that there were no triable issues as to any of the causes of action. In particular, they argued that the Weekses trespassed because they knowingly erected the fence on the Vans’ property without consent. The Vans requested punitive damages based on intentional trespass.
Alexander Van (Alexander) declared that when he saw the fence being erected, he was worried that it might be encroaching on his property. He hired Perfecto Arca (Arca) to conduct a survey, learned of the encroachment and informed the Weeks’s contractor, Jay Wischmann (Wischmann). In order to obtain a second opinion, Alexander hired Thomas M. Bosserman (Bosserman) to conduct an additional survey. Bosserman confirmed Arca’s findings. In November 2006, Alexander informed James Weeks (James) of the encroachment. Alexander repeatedly asked James and Wischmann to stop building.
Arca, the first civil engineer hired by the Vans, declared: “I discovered that the concrete footings of the [f]ence encroached on [the Vans’ property] as follows: a total of twelve (12) encroachments spanning from the property line along Via Solano Avenue to the opposite property line. Of the twelve (12) encroachments I discovered, I was able to measure the widths of nine (9) encroachments; the remaining three I was not able to measure because [the Vans] could not expose these footings. The widths of the nine encroachments that I was able to measure were as follows: 0.20 feet, 0.20 feet, 0.20 [feet], 0.45 feet, 0.35 feet, 0.35 feet, 0.20 feet, 0.45 feet, and 0.50 feet, respectively.” Arca supplied a sketch of the encroachments. It stated that the edge of the wood fence was at the property line.
Guy Califano (Califano), a licensed real estate broker, submitted a declaration regarding the value of the Vans’ nonuse of their property. He declared that the annual land assessment is approximately $0.75 per square foot and the total square footage of the fence encroachment was 594 square feet. He multiplied the two numbers and concluded that the nonuse was worth $445 per year. He based his calculation of square feet on the Vans’ statement that the encroachment was “99 feet long by approximately 6 inches wide.”
The Weekses’ opposition
The Weekses argued the evidence demonstrated that neither they nor Wischmann knew about the encroachment.
In support, the Weekses provided an excerpt from the deposition of Wendy Weeks (Wendy) in which she testified that she first learned of the Vans’ complaint from a neighbor in July 2007. The Weekses provided pages 63, 64 and 120 from James’s deposition. He testified that he did not recall Alexander ever asking that the location of the fence be moved. According to James, he did not specifically remember when he first learned of the Vans’ complaint. In the next breath, he said he learned about it from a comment made to Wendy by a neighbor. Neither Wischmann nor any of his workers ever told James about the Vans’ complaints. The second time James heard of the Vans’ complaints about the fence was when the lawsuit was served. The Weekses also provided pages 69, 84, 90, 113, 117 and 118 of Wischmann’s deposition. He testified that he did not recall the Vans saying that the fence was encroaching on their property.
The Vans’ reply and objections to evidence
The Vans objected to pages 63, 64 and 120 of James’s deposition and pages 69, 84, 90, 113, 117 and 118 of Wischmann’s deposition. According to the Vans, the excerpts were inadmissible because they failed to provide a proper foundation and full context for the statements made because not all the relevant deposition pages were provided. They then stated: “Moreover, upon review of the complete, admissible evidence—all of the relevant portions of the deposition... [transcripts of James and Wischmann]—this evidence fails to raise an issue of material fact as to whether [the Weekses] were aware of [the Vans’] complaints during the continued construction of the [f]ence.” The Vans submitted a reply brief and attached seven pages from James’s deposition, including pages 63, 64 and 120, and 20 pages from Wischmann’s deposition, including pages 69, 84, 90, 113, 117 and 118.
The ruling
The trial court sustained the Vans’ objections to the excerpts from James’s deposition and from Wischmann’s deposition on the grounds that the excerpts misquoted the witnesses, lacked foundation, lacked relevance, lacked personal knowledge, called for speculation, called for improper opinion, and were argumentative. At oral argument, the Weekses’ attorney pointed out that the same excerpts had been supplied in connection with the reply. The trial court stated that “none of the evidence provided in the reply was used.”
The trial court granted summary judgment.
In its written ruling, the trial court concluded, inter alia, that the Weekses committed the tort of trespass because they knowingly built an encroaching fence. The trial court concluded that the loss of use the Vans’ property was worth $440 a year, and that estimate was reasonable. Last, the trial court stated: “Finally, as to the matter of punitive damages, while the [trial court] finds that the [Weekses] knowingly built a fence on [the Vans’] property[] despite knowing of [the Vans’] objection, that conduct—without more—does not support a finding of malice, fraud or oppression as required for punitive damages. As to [the Vans’] prayer for punitive damages, summary judgment is denied.”
Judgment was entered in favor of the Vans. They were awarded $15,017.80 in damages. The Weekses were enjoined from, among other things, maintaining a fence that encroached on the Vans’ property.
The trial court added $440 to $14,572, which was the expense of repairing damage on the Vans’ property and removing debris. The basis for the extra 80 cents is unclear. Also unclear is why the trial court awarded $440 for loss of use when Califano said loss of use was worth $445.
STANDARD OF REVIEW
We review the propriety of summary judgment de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) The framework for our analysis was succinctly set forth by the court in Torres v. Reardon (1992) 3 Cal.App.4th 831. It explains: “We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]” (Id. at p. 836.) Even though summary judgment is reviewed de novo, the related evidentiary rulings are reviewed for an abuse of discretion. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.)
DISCUSSION
The Weekses contend that the trial court erred when it granted summary judgment because there are triable issues.
We agree.
A. There are triable issues regarding trespass.
As to trespass, the Weekses contend that there is conflicting evidence regarding their knowledge of the encroachment. Second, they argue that there are triable issues as to damages. In making these arguments, they posit that the trial court should have considered the testimony of James and Wischmann.
1. The law.
Trespass involves unauthorized entry onto the land of another. (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16–17.) The elements are: (1) the plaintiff’s lawful possession or right of possession of the property; (2) the defendant’s wrongful act of trespass on the property; and (3) damage to the plaintiff proximately caused by the defendant. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 631, p. 65.) “[T]here is no liability for a trespass unless the trespass is intentional, the result of recklessness or negligence, or the result of engaging in an extrahazardous activity.” (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 648 (Gallin); Armitage v. Decker (1990) 218 Cal.App.3d 887, 906.)
2. The admissibility of James’s and Wischmann’s deposition excerpts.
The trial court sustained objections to the deposition testimony of James and Wischmann submitted in connection with the opposition papers. But in their objections to the excerpts submitted by the Weekses, the Vans conceded that the “complete” and “relevant portions” of the deposition transcripts were “admissible.” The Vans then submitted more complete excerpts in connection with the reply, and there were no objections to those excerpts. The trial court was required to consider this evidence based on the Vans’ concession of admissibility, and based on statute. (Code Civ. Proc., § 437c(c) [in determining whether there is a triable issue, the trial court “shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained”].)
In addition, though the issue is moot, we have reviewed the trial court’s evidentiary rulings. The trial court sustained objections pursuant to Evidence Code section 765, subdivision (a) on the grounds that the deposition excerpts misquoted the witnesses. Evidence Code section 765, subdivision (a) provides: “The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.” This statute does not authorize the ruling. Further, the Vans offered no evidence that the deposition excerpts misquoted the testimony, i.e., that the court reporter did not transcribe the witnesses’ actual words.
Neither do we accept the trial court’s conclusion that there was no foundation under Evidence Code section 403 for statements made by James and Wischmann regarding what they saw, heard and understood. Under Evidence Code section 702, subdivision (a), the testimony of a witness is admissible if he has personal knowledge. Under Evidence Code section 403, subdivision (a)(2), the Weekses bore the burden of offering evidence that James and Wischmann had personal knowledge regarding the subject matter of their testimony. On their faces, the deposition excerpts establish that James and Wischmann were percipient witnesses to their own sense perceptions and their own mental processes. For this reason, we can only conclude the trial court erred when it sustained the Vans’ objection to the deposition excerpts based on lack of foundation and lack of personal knowledge.
As held in Gallin, a defendant’s knowledge of a trespass is relevant to the issue of liability. Pursuant to Evidence Code section 210, relevant evidence “means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Though we are not privy to the trial court’s evaluation of the issues, we easily conclude that it erred when it sustained the Vans’ relevance objection. It is beyond legitimate dispute that what James and Wischmann heard or did not hear about the encroachment has a tendency in reason to prove or disprove whether they knew of the trespass.
Based on Evidence Code sections 702, 800 and 801, the trial court found that the testimony of James and Wischmann was inadmissible on the grounds that it called for speculation and offered an improper opinion as to what they saw, heard and understood. This was error. As we have indicated, the testimony was admissible under Evidence Code section 702, subdivision (a) because they had personal knowledge. Evidence Code section 800 bars lay opinions unless they are rationally based on the witness’s opinion. What James and Wischmann saw, heard and understood are facts, not opinions, so Evidence Code section 800 is inapplicable. Evidence Code section 801 applies to expert opinions, not testimony regarding facts.
Last, the trial court ruled that the deposition testimony was barred by Evidence Code section 765, subdivision (a) on the grounds that it was argumentative. But that statute permits the trial court to exercise control over questions posed to a witness. It does not permit a trial court to exclude statements made by a witness. The trial court’s ruling did not comport with the law.
3. The Weekses’ knowledge of trespass.
In the Vans’ separate statement, they averred that they told the Weekses that the fence was an encroachment before and during its construction, and that they asked the Weekses to halt the project. Further, the Vans averred that the Weekses continued to build the fence with actual knowledge that the fence encroached onto the Vans’s property. They cited to Alexander’s declaration and the interrogatory responses of James and Wendy. In his declaration, Alexander stated that he told Wischmann and James of the encroachment and asked them to stop. In their interrogatory response, the Weekses stated that James was advised by Wischmann that the Vans complained that the fence was on the Weekses’ property.
Alexander’s declaration demonstrated the Weekses’ knowledge that their fence encroached on the Vans’ property. Thus, the burden shifted to the Weekses to demonstrate a triable issue.
Wendy testified that she first learned of the Vans’ position from a neighbor in July 2007, after the fence was built.
James’s deposition contained the following colloquy:
“Q: Do you ever recall [Alexander] asking you to move the location of your fence?
“A: Never.
“Q: When did you first learn that the [Vans] were contesting the location of your fence?
“A: I don’t recall specifically, but, I mean, the one conversation that [Wendy] related to you.... [¶]... [¶]
“Q: So you learned of the Vans’ position from [Wendy], who then... heard it from a neighbor; is that correct?
“A: Right, um-hmm. [¶]... [¶]
“Q:... Other than that complaint that you heard about through [Wendy], were there any other ways that you heard of the Vans’ position regarding the location of the fence?
“A: Not [that] I recall, no.
“Q: Did [Wischmann] ever tell you about the Vans’ complaints regarding the fence?
“A: No.
“Q: Did any of [Wischmann’s] workers tell you about the [Vans’] complaints?
“A: No.”
Wischmann testified that he did not recall the Vans ever saying that the fence was encroaching on their property.
Giving James’s and Wendy’s testimony a liberal construction and resolving all doubts in their favor, we conclude that their evidence established a triable issue as to whether they had knowledge of the encroachment before and during the construction. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717 [“We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party”].)
The Vans contend that the testimony of James cannot create a triable issue because he often said they could not recall a particular fact. We recognize that the “failure to recall does not logically contradict” a moving party’s evidence. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 160.) But James testified to more than his lack of recollection. He also testified that he was never told to move the fence. He did not hear about the Vans’ complaint from Wischmann or his workers. Rather, James learned about it through Wendy. In context, the record paints a picture regarding James’s knowledge. Arguably this is a close call. But when there is a close call, the opposing party must prevail.
Next, the Vans argue that Wischmann’s equivocal deposition testimony does not contradict Alexander’s declaration, Wischmann knew of the encroachment, and the Weekses are vicariously liable. But the Vans’ pleading did not contain a vicarious liability theory. Nor did they argue vicarious liability in their motion for summary judgment. Rather, they argued that the Weekses knowingly committed a trespass. The trial court entered summary judgment on that theory. The Vans cannot save the judgment by switching theories.
Finally, the Vans ask us to review an interrogatory response in which James stated: “[Wendy] was unaware of any complaints made by plaintiffs regarding building the fence. [James] was advised by his contractors that [the Vans] complained that the fence was on defendants’ property and plaintiffs had a history and pattern of harassing contractors.” The Vans contend that James cannot create a triable issue with his deposition regarding his knowledge when he admitted knowledge of the encroachment in his interrogatory response. But his interrogatory response does not contain any such admission. Whether there was a typographical error, we will not speculate. All the interrogatory response states is that James knew that the Vans complained that the fence “was on defendants’ property.” The defendants are the Weekses, not the Vans. Restated, this response only suggests that James knew there was a complaint about the fence on his own property. The complaint could have been due to the fence’s height. And even if the interrogatory response is construed as an admission that James was told about the encroachment, it does not establish the timing of when he was told.
4. Compensatory damages.
The Weekses argue that there is a triable issue regarding the loss of use damages due to conflicts between the declarations from Arca and Califano. We agree. Arca declared that at least nine of 12 footings encroached on the Vans’ property, and that each encroachment was six inches wide or less. He did not establish the length of the encroachments, nor did he calculate the total square footage of the encroachments. And he did not establish the width of three of the footings. Assuming for the sake of argument that each encroachment was six inches by six inches, then each is 36 square inches. In other words, each is three square feet. Multiplied by 12, that means the encroachment is 36 square feet. However, Califano based his calculation of loss of use on 596 square feet, which was based on a statement from the Vans that the encroachment was 99 feet long and about six inches wide. The Vans’ evidence conflicts, which means their own papers created a triable issue regarding damages.
5. Punitive damages.
In its ruling, the trial court stated that summary judgment was denied as to punitive damages. Not only that, the trial court essentially adjudicated that issue in favor of the Weekses by entering a judgment that did not contain a punitive damages award. This was improper. (Miracle Auto Center v. Superior Court (1998) 68 Cal.App.4th 818, 823 [summary judgment cannot be entered in favor of a party opposing summary judgment unless the party filed its own cross-motion].) Further, the trial court foreclosed summary judgment by ruling, in essence, that the Vans had not eliminated all triable issues. (Versa Technologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237, 240 [the purpose of a motion for summary judgment is to discover proof, to expedite litigation, and to provide for prompt disposition of actions where there is, in fact, no triable issue].) Simply put, the trial court had no authority to grant summary judgment without finding in favor of the Vans on all issues.
B. Other causes of action.
We need not decide whether there are triable issues regarding any of the other causes of action. Because there are triable issues regarding trespass, summary judgment must be reversed. Upon remand, the trial court may consider whether the Vans are entitled to summary adjudication.
DISPOSITION
Summary judgment is reversed. The Weekses are entitled to recover the costs they incurred on appeal.
We concur: P. J.BOREN, J.CHAVEZ