Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC103470 Lisa Hart Cole, Judge.
Curtis Muck and Christopher Wolcott for Defendant and Appellant.
Haight Brown & Bonesteel, Peter Q. Ezzell and Colin A. Yuhl for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant Fariba Tabibi (Tabibi) appeals a judgment after court trial awarding damages to plaintiff and respondent Samuel Wilner (Wilner) in the amount of $100,000 to compensate Wilner for Tabibi’s wrongful removal of trees from his property.
Tabibi contends the trial court abused its discretion in denying her a continuance of trial, abused its discretion in admitting certain hearsay testimony, and erred in applying an incorrect measure of damages.
We perceive no error in the trial court’s rulings and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Wilner, who is a retired lawyer, owns a home located on Ophir Drive in Los Angeles. Tabibi owns a home on Veteran Avenue, which is downhill from, and adjacent to, the rear yard of Wilner’s property. The furthermost portion of Wilner’s backyard, abutting the Tabibi property, was densely planted with four to six large trees, several bushes and ivy ground cover. The Wilner backyard is “like being in a jungle.” Wilner enjoyed the sound barrier and the privacy provided by the mature vegetation and therefore kept it that way.
In April 2009, Tabibi visited Wilner at his home and asked him to clean out his rear yards so that she could plant new trees on his property. Wilner denied the request.
In the early morning hours of May 4, 2009, Wilner’s son, Alex, heard the sound of chain saws and branches falling in the Wilner rear yard. When Alex went outside he saw that one tree had been cut down and branches were being removed from another tree. He told the workers to stop, and they complied. A few days later, Wilner received a couple of calls from a man he believed was David Tabibi, seeking permission to clear out Wilner’s rear yard so that Tabibi could plant different vegetation. Wilner refused.
David Tabibi is not a party to this appeal.
One to two weeks after the May 4, 2009 incident and after the phone calls, Alex returned home and again found Tabibi’s workers in the rear of the Wilner yard. The remaining trees and shrubbery had been removed and were being cut into sections for clearance. Alex told the workers to get off his father’s property and he called his father. When Wilner returned home he was extremely upset and angry that his trees and vegetation had been cleared, and Alex feared his father might collapse as he had a serious medical condition.
Wilner hired a surveyor, Misha Georgevitch, in May 2009 to survey the property, at a cost of $6,500. The surveyor put in stakes to denote the property line. At the time the surveyor was at the Wilner property, the area had been completely cleared and there were a few newly planted smaller trees on the Tabibi property above the retaining wall.
On the morning of May 29, 2009, Alex again saw workers digging holes on his father’s property, despite the obvious boundary stakes, apparently intending to plant new trees which were in boxes nearby. The police were summoned and the workers departed.
Eric Chevreux, a tree landscaper, visited the Wilner property in the fall of 2009. He noted that dirt on the Wilner property was on a slope and in the absence of any vegetation the area was in danger of erosion. Chevreux estimated it would cost between $80,000 and $130,000 to replace the mature trees that had been removed, each tree being valued at between $10,000 to $25,000 plus the cost of transporting the trees and hiring a crane to install them. Another $6,000 to $8,000 would be required to replace the bushes that had been removed.
2. Proceedings.
On June 9, 2009, Wilner filed suit against Tabibi setting forth causes of action for, inter alia, trespass, trespass to timber, negligence and intentional infliction of emotional distress. The gravamen of the complaint was that Tabibi hired workers to trespass onto Wilner’s property and to destroy and remove his trees and vegetation.
Tabibi filed a cross-complaint against Wilner, alleging Wilner had allowed his property to fall into disrepair and to become a nuisance. Tabibi alleged trash, weeds and dead shrubbery had accumulated on the downslope, attracting rats and mosquitoes to her swimming pool, and creating a health hazard as well as a fire hazard.
On June 6, 2010, the matter came on for a five-hour bench trial.
The plaintiff’s witnesses included Wilner, his son Alex, the surveyor, Georgevitch, and the tree landscaper, Chevreux. The testimony related to Tabibi’s willful destruction and removal of Wilner’s mature trees and vegetation, and the cost of replacing same.
At the conclusion of plaintiff’s case, defense counsel requested a continuance because Tabibi had not appeared in court. Counsel had not previously advised the court that his witness(es) could not appear or that there might be a scheduling problem. Counsel explained that Tabibi had taken her elderly mother to the airport and was unable to return to court in time. Counsel provided no further explanation or documentation in support of his request for a continuance. The trial court ruled that in the absence of any reasonable excuse for not having any witnesses in court, the request for a continuance was denied.
Thus, the evidentiary showing made by the plaintiff at trial was uncontroverted. The defense did not present any witnesses, and the matter proceeded to closing argument.
Thereafter, the trial court found Tabibi was the owner of the real property adjacent to Wilner’s property and that she was the person who hired the workers who removed Wilner’s trees. With respect to the measure of damages, the trial court selected replacement value of the trees, rather than diminution in value of the real property. The trial court found there were three to four large trees on Wilner’s property, the removal of the trees was intentional, malicious and “it does shock my conscience that somebody would go on somebody else’s property and remove vegetation that they thought was inconsistent with their design mode....” Guided by Chevreux’s testimony, the trial court awarded $100,000 in damages, based on the trees’ replacement value.
On March 10, 2010, the trial court issued its statement of decision and entered judgment on the complaint in favor of Wilner, awarding him $100,000 plus $350 in costs. The trial court also awarded judgment in favor of Wilner on the cross-complaint, noting Tabibi had not presented any evidence in support of her nuisance claim.
On March 25, 2010, Tabibi filed a timely notice of appeal from the judgment.
CONTENTIONS
Tabibi contends: the trial court abused its discretion in denying her motion for a continuance; erred in admitting certain hearsay testimony at trial; and applied an incorrect measure of compensatory damages.
Wilner, as respondent, seeks affirmance of the judgment, but also contends the award of compensatory damages should be doubled pursuant to Civil Code section 3346.
Although Wilner contends the trial court erred in failing to double the compensatory damage award, Wilner did not file a notice of cross-appeal.
DISCUSSION
1. No abuse of discretion in denial of continuance.
As Tabibi concedes in her briefs, we review the trial court’s decision to deny a continuance under the deferential abuse of discretion standard. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)
Continuances are granted only on an affirmative showing of good cause requiring a continuance. (Cal. Rules of Court, rule 3.1332(c).) “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm.” (Rule 3.1332(a).) A party seeking a continuance of the date set for trial, “must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Rule 3.1332(b), italics added.)
All further rule references are to the California Rules of Court.
Grounds for a continuance include “unavailability of a party because of death, illness, or other excusable circumstances.” (Rule 3.1332(c)(2), italics added.)
Here, the trial court acted well within its discretion in finding that Tabibi’s unilateral decision to drive her mother to the airport in the midst of a one-day trial did not constitute good cause for a continuance.
2. No merit to claim of evidentiary error.
As Tabibi recognizes, the deferential abuse of discretion standard also applies to a trial court’s decision to admit or exclude evidence. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.)
Tabibi contends the trial court erred in admitting hearsay testimony by Wilner to the effect that Tabibi told him she had hired the workers who removed Wilner’s trees. The contention is meritless.
The record reflects Wilner was asked the following about Tabibi: “Did she say anything about doing the landscaping despite your request that she not do it?”
Wilner responded: “After the surveyor was there and when the police were there, ... I told the gardener, ‘get the lady.’ [¶] When she came out, I said, ‘What are you doing? This is my property.’ [¶] And she said, ‘they work for me, and I’m going to straighten this out.” (Italics added.)
It is unnecessary to discuss whether this statement is admissible under an exception to the hearsay rule (Evid. Code, § 1220 [admission of party]) because the record reflects defense counsel did not object to said testimony by Wilner. Tabibi, having failed to assert a hearsay objection below, did not preserve the issue for appeal. (Evid. Code, § 353, subd. (a).)
This testimony by Wilner that Tabibi admitted hiring the workers is sufficient to establish as an undisputed fact that Tabibi hired the workers who removed the subject trees.
3. No error in awarding damages based on trees’ replacement value.
Tabibi contends the trial court erred as a matter of law in awarding damages based on the trees’ replacement value. She maintains the correct measure of damages is diminution in value of the property.
a. General principles.
“The usual measure of damages in a case involving damage to a tree is the difference between the value of the real property before and after the injury.” (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 167 (Hassoldt).)
However, as this court recognized in Hassoldt, “ ‘[t]he rule precluding recovery of restoration costs in excess of diminution in value is, ... not of invariable application. Restoration costs may be awarded even though they exceed the decrease in market value if “there is a reason personal to the owner for restoring the original condition” [citation], or “where there is reason to believe that the plaintiff will, in fact, make the repairs” [citation].’ [Citation.]” (Hassoldt, supra, 84 Cal.App.4th at p. 168, italics added.)
b. Trial court properly awarded restoration damages because Wilner has personal reasons for restoring the property to its original condition.
Wilner testified the aesthetic value of his backyard with the mature trees was pleasing to him, as it felt very rustic, “like a jungle.” Because Wilner had a personal reason for restoring the property to its original condition, the trial court properly awarded Wilner restoration costs.
Further, Chevreux testified it would require $80,000 to $130,000 to replace the trees that Tabibi had been removed. Therefore, the record fully supports the trial court’s award of $100,000 in damages to enable Wilner to restore the property to its original condition.
4. No merit to Wilner’s contention this court should double the compensatory damages.
Wilner contends this court should double the compensatory damages award from $100,000 to $200,000 pursuant to Civil Code section 3346, based on the trial court’s determination that Tabibi intentionally and maliciously removed the trees. The contention, presented in Wilner’s respondent’s brief, is not properly before this court.
Civil Code section 3346 states in pertinent part at subdivision (a): “For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment....” (Italics added.) Under this section, if “the trespass is found to be willful and malicious, the court may impose treble damages but must impose double damages.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138.)
Wilner’s role as respondent is to urge affirmance of the judgment. If Wilner is aggrieved by the judgment, on the ground the trial court awarded him inadequate damages, Wilner should have sought appellate review by way of a cross-appeal. In the absence of a cross-appeal by Wilner, this court lacks jurisdiction to entertain said contention.
Wilner argues that because the application of Civil Code section 3346 is a pure issue of law it may be addressed by this court, notwithstanding Wilner’s failure to file a cross-appeal. This procedural argument is meritless. Wilner, as respondent, may raise a new point of law in the appellate court in order to obtain an affirmance of the trial court’s judgment on an alternative ground. However, Wilner’s contention that the judgment is erroneous because it awards him only half of the damages to which he is entitled by Civil Code section 3346 should have been raised by way of a timely cross-appeal.
DISPOSITION
The judgment is affirmed. The parties shall bear their respective costs on appeal.
We concur: CROSKEY, J., KITCHING, J.