Carlyle v. Savage

Filed 8/29/06 Carlyle v. Savage CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Plaintiff William Carlyle appeals a judgment after the trial court granted a motion for a nonsuit made by defendants Ed Savage and Judy Savage on his causes of action for negligence, trespass, nuisance and emotional distress. We conclude that Carlyle failed to introduce sufficient evidence to prove his causes of action. We affirm.

FACTS

Ronald Morehead, a neighbor of Carlyle and the Savages, started a fire. Carlyle claimed the fire damaged trees and vegetation on his property. He sued the Savages for negligence, trespass, nuisance and emotional distress. He claimed Morehead started the fire on the Savages' property while acting as their agent and performing cleaning services on their behalf. He alleged that the Savages did not properly maintain their property which resulted in sewage drainage into a creek which contaminated his property.

Carlyle represented himself at trial. He admitted that he had no personal knowledge about how the fire started or its point of origin. He was miles away from his property at the time of the incident. He claimed that the facts about the fire were summarized in a fire department report. He tried to recite facts from that report, but the trial court sustained hearsay objections. Carlyle did not subpoena the fire department custodian of records to authenticate the report. He did not introduce the report into evidence. He did not call any expert witnesses. In response to a question about whether the Savages started the fire, Carlyle said, "I have no thought that the Savages did anything wrong."

Carlyle testified that Morehead became friends with people who lived on the Savages' land and knew the Savages were "absentee landowners." He believed Morehead resided there, but did not "for a fact know he was living there." He saw Morehead removing weeds on the Savages' property. He presumed "Morehead was acting as a caretaker for the Savages" but conceded he has "no contract that says . . . Morehead was acting as the caretaker."

Carlyle complained to the Savages about the activities of various people who had been using their property. During cross-examination, the Savages introduced a portion of Carlyle's deposition where he said that Mr. Savage told him only three people were authorized to be on his land. Morehead was not one of them. At trial, Carlyle said the Savages never told to him that Morehead was authorized to be on their property.

Carlyle claimed that toxic waste material from the Savages' property had contaminated his land and the creek. But on cross-examination he said he had no personal knowledge about that and "never had the property tested for any water-borne contaminants."

The trial court granted a motion for nonsuit. It ruled 1) there was insufficient evidence to find Morehead was on the Savages' property with their knowledge or permission or that he was acting as their agent, 2) there was no evidence that the Savages committed trespass or nuisance, and 3) there was insufficient evidence to show that the Savages intentionally did anything to cause Carlyle emotional distress.

DISCUSSION

I. The Nonsuit

Carlyle contends the trial court erred by granting the motion for a nonsuit. We disagree. A court properly grants a nonsuit where, after the close of the plaintiff's case, there is insufficient evidence to establish the elements of the causes of action. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1508.) Here Carlyle did not introduce admissible evidence to support the elements of his causes of action.

A. Failure of Proof on Negligence and Causation

In his complaint, Carlyle alleged that the Savages were negligent, the fire started on their land and extended to his property causing damage. But at trial he admitted that he did not see the fire start and was miles away when it occurred. On cross-examination he said he suspected the Savages' tractor may have started the fire. But a "judgment cannot be based upon guesses or conjectures." (Bartholomai v. Owl Drug Co. (1940) 42 Cal.App.2d 38, 42.) "The mere fact that the fire occurred is insufficient to raise an inference of negligence on the part of respondents." (Ibid.) It was incumbent upon Carlyle to assume the burden of proof. (Ibid.)

In their motion for nonsuit, the Savages said Carlyle proved Morehead started a fire, but failed to prove its point of origin, causation, or a link between Morehead's actions and the Savages. Carlyle claimed that the fire department report established those elements. But he did not introduce it into evidence and the court found it was hearsay.

Carlyle contends that report falls within the hearsay exceptions for official documents and business records. (Evid. Code, §§ 1271, 1280.) But it is not admissible without evidence to authenticate it and establish how it was prepared. (Ibid.) Carlyle did not call the custodian of records to authenticate it and testify about its preparation.

Carlyle suggests conclusions in the fire department report support his case. But even had he introduced that report, the conclusions would not be admissible without expert testimony to show the factual foundation for them. (People v. Reyes (1974) 12 Cal.3d 486, 503; Harrigan v. Chaperon (1953) 118 Cal.App.2d 167, 168.) Carlyle did not call an expert witness and he was not qualified to testify about the foundation for those conclusions.

B. Failure of Proof on Agency

Carlyle contends Morehead was the Savages' agent and they are liable for his actions. The Savages claim Carlyle did not prove either actual or ostensible agency. They are correct. "'Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.' [Citation.]" (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 438.) "'To establish ostensible authority in an agent, it must be shown the principal, intentionally or by want of ordinary care has caused or allowed a third person to believe the agent possesses such authority. [Citations] Ostensible authority must be established through the acts or declarations of the principal . . . .' [Citation.]" (Id. at p. 439.)

Morehead was on the Savages' property at various times. But Carlyle did not show that he was an employee. He could not prove the existence of a contract that says Morehead was the caretaker. He could not state "for a fact" that he was living there. He did not prove the Savages authorized Morehead to be on their land or that he was there when the fire started. In his deposition, Carlyle admitted that Mr. Savage told him only three people were authorized to be on his land. Morehead was not one of them. At trial, he admitted that the Savages never made any statements indicating that Morehead was authorized to be on their land.

The trial court could reasonably infer that Carlyle had no personal knowledge of an actual agency relationship between Morehead and the Savages. Because he did not see the fire or what Morehead did, he was not able to testify whether his actions fell within the scope of the alleged agency. The court could find Carlyle's testimony was insufficient as it was based on speculation. (Bartholomai v. Owl Drug Co., supra, 42 Cal.App.2d at p. 42.) It noted that Carlyle could have called witnesses who had personal knowledge, such as the Savages, but he did not do so.

He argues the court should have found that the Savages subsequently ratified Morehead's actions and benefited from them. But Carlyle's brief relies heavily on Ed Savage's deposition. It was not admitted at trial and it is not part of the record. We may not consider matters outside the record and we do not presume error where the record is incomplete. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003.)

C. Other Issues

Carlyle claimed structures on the Savages' land contained pipes which leaked toxic wastes on to his property. But he testified he did not "observe anything coming from the pipes" and had "no personal knowledge that there were any toxins." He claimed a stream on his property was contaminated by material from the Savages' property. But he admitted he "never had the property tested for any water-borne contaminants." He did not call an expert to testify and he did not qualify as one. (Evid. Code, § 720.) His speculation was inadmissible as proof. (Bartholomai v. Owl Drug Co., supra, 42 Cal.App.2d at p. 42.)

Carlyle contends the trial court was unfair and impatient. But the record does not support him. The trial spanned three days. Carlyle had an adequate opportunity to present evidence. The trial court patiently allowed him to testify in long narratives because of his in propria persona status. But that status does not excuse a failure of proof. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055.)

We have reviewed Carlyle's remaining contentions and conclude that he has not shown reversible error.

The judgment is affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Roger Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

William Carlyle, in pro. per., for Plaintiff and Appellant.

Fotouhi, Epps, Hillger, Gilroy and Darren W. Epps for Defendants and Respondents

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