Filed 3/30/17 Epperson v. Djavaherian CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



DENNIS H. EPPERSON et al.,

Plaintiffs and Respondents,

v.

DIANA DJAVAHERIAN et al.,

Defendants and Appellants.
D069385



(Super. Ct. No. 37-2014-00010904-CU-OR-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Reversed in part, affirmed in part.

Niddrie Addams Fuller, David A. Niddrie and Victoria E. Fuller for Defendants and Appellants.
Law Offices of Richard R. Leuthold and Richard R. Leuthold for Plaintiffs and Respondents Dennis and Bonnie Epperson.
Best Best & Kriger, Matthew L. Green and Ellen P. Head for Defendant and Respondent Kathleen Maughan.
Diana Djavaherian engaged in a pattern of harassing conduct towards her neighbors, including next door neighbor Kathleen Maughan, over many years. Djavaherian eventually constructed a common wall between the property she lived on and Maughan's property. When Maughan and the owners of the home Maughan lived in, Dennis and Bonnie Epperson, refused to pay for the construction, Djavaherian brought a small claim's court action against them seeking reimbursement for part of the cost of the wall. The Eppersons responded by filing a complaint against Djavaherian and the owner of her property, Djavaherian's mother Mehrazar Refahityat, for trespass based on the wall encroaching on their property. The cases were consolidated, and Djavaherian filed additional claims against Maughan and the Eppersons for breach of contract, unjust enrichment, and trespass. The Eppersons added allegations that Djavaherian purposely destroyed a large tree on their property and sought treble damages under the trespass to timber statutes, Civil Code section 3346 and Code of Civil Procedure section 733. Before trial, Djavaherian removed the encroaching portion of the wall, resolving the Eppersons' wall-related claims. After a bench trial on the remaining claims, the court found in favor of the Eppersons on their trespass to timber claim and awarded treble damages for the value of the destroyed tree. The court also found in favor of the Eppersons and Maughan on Djavaherian's claims. The court entered judgment against Djavaherian and Refahityat jointly for the cost of the tree, $11,200, and against Djavaherian for treble damages of $33,600.
Djavaherian and Refahityat (appearing specially to challenge the court's judgment) now assert the trial court lacked jurisdiction over Refahityat, who is a resident of the United Kingdom, because she was never properly served. Djavaherian also contends the court improperly imposed vicarious liability on Refahityat. Additionally, she asserts (1) the destruction of the tree does not fall within the purview of the trespass to timber statutes; (2) there was not sufficient evidence to support the trial court's decision to treble damages; (3) the Eppersons' claims were barred by the applicable statute of limitations and the doctrine of laches; and (4) the Eppersons are estopped from asserting their claims by Maughan's voluntary dismissal of a prior case seeking a restraining order against Djavaherian. We agree with Djavaherian and Refahityat that the trial court lacked jurisdiction over Refahityat. Accordingly, we reverse the judgment as to Refahityat. In all other respects the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the events at issue in this case, Djavaherian lived in her mother's home and her mother, Refahityat, resided in London, England. Refahityat did not reside in California at any relevant time. Maughan has lived in the Eppersons' neighboring home since 2007. Prior to living in the Eppersons' home, Maughan lived in Refahityat's home as a tenant for one year. Shortly after Maughan moved into the Eppersons' property, Djavaherian moved back into her mother's home, making Maughan and Djavaherian next door neighbors. Within a short time, Djavaherian began complaining to Maughan about the state of the Eppersons' landscaping.
A. Destruction of the Pine Tree
Djavaherian was particularly focused on the pine trees in the backyard of the Eppersons' property, which she believed posed a fire danger. In 2008, Djavaherian contacted the fire department to inspect the Eppersons' property. The fire inspectors visited the property and concluded there were no violations of the fire code. Around the same time frame, Djavaherian left notes in Maughan's mailbox about how to be a "good tenant and neighbor" and flyers for other homes for sale or rent in the area. Several other neighbors also testified at trial that Djavaherian had harassed and threatened them about the trees on their properties. One neighbor testified Djavaherian went so far as to remove trees and bushes from his property without his permission.
The neighbor on the other side of Djavaherian's property nailed his back gate shut to prevent Djavaherian from entering his yard and feeding his dogs chicken bones, which she had done repeatedly after being asked not to enter the property. The same neighbor removed two healthy pine trees from his yard to appease Djavaherian, who he said had harassed him relentlessly about the trees. Djavaherian also asked another neighbor to have her landscapers remove trees from a different neighbor's property.
Maughan testified that Djavaherian was particularly fixated on a large, mature pine tree on the Eppersons' property. Another neighbor testified that Djavaherian told her that she did not like the pine tree at issue because it obstructed sunlight on Refahityat's property. In 2009, an attorney representing Djavaherian and Refahityat sent a letter to the Eppersons complaining that the Eppersons had failed "to maintain the trees on the back of [their] property." The attorney's letter stated Maughan had refused to allow Djavaherian's landscapers to enter the Eppersons' property to remove "overgrown trees that [were] extending into her yard." In 2010, Djavaherian sent a letter to Maughan, which Djavaherian signed with her mother's name, containing an estimate to remove the pine tree. In October 2010, the Eppersons received another letter, signed Mehrazar Refahityat, threatening a complaint with the code compliance department if the Eppersons failed to take care of the "heavy tree load" on their property.
Maughan testified that the trees on the Eppersons' property were trimmed extensively in 2009 and 2011. In January and February of 2011, Maughan was out of town on several occasions, leaving the Eppersons' property unattended. At the time, the wooden fence that separated the two properties' backyards did not extend the full length of the yards, allowing open access. On March 10, 2011, Maughan noticed wood shavings on the ground near the pine tree Djavaherian wanted removed, and drill marks around the trunk of the tree. Maughan could also see that liquid had been poured into the holes. Maughan immediately contacted Dennis Epperson and an arborist with a landscaping company who had worked at the property before. The arborist examined the tree the same day and determined 19 holes were drilled into its trunk and root system, and that a liquid chemical he thought was Roundup had been poured into the holes.
On March 18, 2011, Maughan found an envelope in her mailbox that contained a business card from Amigos Tree Service and a paper printed with the phrase "Sunny Days Ahead." The same day, Maughan's gardener was approached by Djavaherian while he was working in the front yard of the Eppersons' property. Djavaherian pointed to the pine tree and said, "that's a beautiful tree, but very soon it's going to come down because of the rain." A few days later, Maughan saw Djavaherian on a ladder or stepstool in her backyard, leaning over the fence that separated the properties. Maughan went outside with her cell phone to see what Djavaherian was doing and Djavaherian began yelling obscenities at her. Maughan also heard Djavaherian mutter "sunny days are ahead."
After these interactions, on March 22, 2011, Dennis Epperson contacted the police to report the vandalism of the pine tree. Two officers investigated the scene and reported 17 holes had been drilled in the tree and that there was some chemical residue. The report also indicated nine nails had been driven into the trunk of the tree. The officers interviewed Maughan, who provided them with the correspondence she received from Djavaherian and notes of their conversations over the years. Maughan also told the officers she believed Djavaherian was responsible for damaging the tree. The officers interviewed Djavaherian, who complained that Maughan and the Eppersons had refused to trim their trees, even when she offered to help pay the costs. One of the officers reported that when he asked Djavaherian to contact the police if she noticed anyone trespassing on either her or the Eppersons' property, she "blurted out, 'I love trees, I would never hurt a tree and I'd never send someone over there to hurt a tree.' "
The arborist examined the pine tree again in late March 2011, and reported that it was in "complete decline." The Eppersons eventually had the tree removed by the arborist's landscaping company. Thereafter, with the Eppersons' permission, Maughan installed a chain link fence between the properties. At the suggestion of one of the police officers who investigated the vandalism to the tree, Maughan also applied for a restraining order against Djavaherian. In addition to describing the events and conduct explained above, Maughan stated in the application that Djavaherian had harassed her pest control workers and a gardener to the point the gardener would not return to work on her property, and that Djavaherian had left a dead rat in her driveway. At the initial hearing on the application, the court denied without prejudice Maughan's request for an immediate restraining order and set a further hearing to consider the application. Before the hearing, Djavaherian's harassing conduct lessened and Maughan decided that the restraining order was no longer necessary. As a result, she withdrew her application for a restraining order and the case was dismissed without prejudice.
B. The Common Wall
The relationship between Maughan and Djavaherian improved for a time. Then in June 2013, Djavaherian approached Maughan to ask her if she would contact the Eppersons to discuss replacing the wooden and chain link fences between the properties with a wall. Maughan testified that at the time Djavaherian approached her, Djavaherian had already hired workers who were demolishing the existing wooden fence. Maughan testified that she agreed to call the Eppersons to ask if they would be willing to contribute. Maughan contacted Dennis Epperson, who told her that he would not consider contributing to the project without an itemized estimate. Maughan relayed this information to Djavaherian. At trial, Djavaherian claimed that the Eppersons and Maughan had agreed to share the cost of the wall. Djavaherian also testified that she provided Maughan with three or four estimates for the project, but could not produce any documents supporting this claim. Maughan and Dennis Epperson both flatly denied they had ever agreed to contribute to the cost of the wall.
After the wall was constructed, Djavaherian sent a letter, dated August 3, 2013, to Maughan stating that the Eppersons owed her $900 for replacing the fence between the two properties. Shortly after, Djavaherian called Dennis Epperson and threatened him with a $10,000 mechanic's lien if he did not compensate her for the new wall. Djavaherian subsequently sent the Eppersons a preliminary notice for a $4,000 lien for "Concrete Free Standing Fence Wall, All Materials & Labor." Djavaherian's former attorney also sent a letter to Maughan, dated October 18, 2013, stating Maughan owed her $1,904.55 for her share of the cost of the new wall.
In September 2013, the Eppersons hired an engineer to survey the property. The engineer determined that the wall Djavaherian constructed encroached on the Epperson's property. In December 2013, Dennis Epperson provided the results of the survey to Djavaherian and sent a letter to her demanding that she remove the portions of the wall that encroached on his property. In response, on January 6, 2014, Djavaherian filed a complaint in small claims court seeking $10,000 for a "dispute over payment for materials and construction of a common fence."
C. Superior Court Proceedings
In April 2014, the Eppersons filed the present action in San Diego County Superior Court against Djavaherian and Refahityat asserting claims for trespass and nuisance related to the encroaching wall. After filing their complaint, the Eppersons attempted service on Refahityat twice. They also filed a request for default that was rejected by the court. Djavaherian's small claim was consolidated with the Eppersons' action on October 14, 2014. On October 31, 2014, Djavaherian filed a cross-complaint against the Eppersons and Maughan asserting claims for unjust enrichment, breach of contract, and trespass.
After a case management conference on January 16, 2015, the court issued a scheduling order, which included the statement that "pursuant to stipulation of the parties, no new parties may be added without leave of court and all unserved, non-appearing and fictitiously named parties are dismissed." On January 20, 2015, the Eppersons amended their complaint, adding the claim for trespass to timber and alleging Djavaherian destroyed their pine tree. In August 2015, after Djavaherian removed the wall that had been constructed, the parties entered into a stipulation that resolved the Eppersons' claims with respect to the encroachment of the wall onto their property. The Eppersons agreed to withdraw their claims for trespass based on the encroachment and Djavaherian agreed to withdraw her claim for trespass, which was based on the entry of the engineers that the Eppersons hired to survey the wall onto her property.
On September 1, 2015, the bench trial began on the Eppersons' trespass to tree claim and Djavaherian's claims for unjust enrichment and breach of contract. The court heard evidence first on the trespass to tree claim, then on Djavaherian's claims. In addition to witnesses describing the events leading to the pine tree's destruction, the Eppersons also presented expert testimony on the value of the pine tree. The expert valued the tree at $11,200.
At the conclusion of the trial, the court found that Djavaherian intentionally vandalized the Eppersons' pine tree. The court also found that Djavaherian was Refahityat's agent to manage the property and that Refahityat was, therefore, vicariously liable for the value of the tree. With respect to Djavaherian's claims concerning the common wall, the court found that the part of the wall that remained on Refahityat's side of the property line could remain and that the Eppersons or Maughan could "construct a code-compliant wood fence" on the Eppersons' property and were permitted to enter Refahityat's property to construct the fence.
The court issued a minute order stating Djavaherian caused the damage to the pine tree and was liable for treble damages in the amount of $33,600. The order also stated the court found judgment against "the defaulted party in the amount of $11,200 for the tree." At the court's instruction, the Eppersons submitted a proposed statement of decision and judgment, which repeated the court's findings at the conclusion of the trial and also included a finding that no contract was created for the construction of the common wall. On September 28, 2015, the court entered the judgment, incorporating the statement of decision against Djavaherian and Refahityat in favor of the Eppersons and Maughan. As prevailing parties, the judgment awarded costs to Maughan in the amount of $3,101.66 and to the Eppersons in the amount of $8,016.09.
DISCUSSION
On appeal, Djavaherian and Refahityat assert the trial court lacked jurisdiction over Refahityat because she was never properly served, and even if she was served effectively there was no evidence supporting the court's finding that Refahityat was vicariously liable for her daughter's actions. Djavaherian also argues (1) the destruction of the tree does not fall within the spirit of the trespass to timber statutes, (2) there was insufficient evidence to support the trial court's finding that she destroyed the tree and that the destruction was intentional, (3) the Eppersons' claims were barred by the statute of limitation and the doctrine of laches, and (4) the Eppersons are estopped from pursuing their trespass to tree claim by Maughan's voluntary dismissal of her request for a restraining order against Djavaherian.
I
Refahityat, appearing specially, asserts the court lacks jurisdiction over her because she was not served in compliance with the Hague Convention on service abroad. The Eppersons respond by stating that Refahityat lived only "part time in another country" and, therefore, was properly served using substitute service under section 413.10. Relatedly, they ask this court to take judicial notice of two documents, a homestead declaration recorded in 2000 and a special power of attorney executed by Refahityat in 2010. The Eppersons assert the homestead declaration precludes Refahityat from denying residency in this state and argue the special power of attorney allowed them to serve Djavaherian as Refahityat's agent. In addition, the Eppersons claim that Refahityat's request for relief from default is untimely and if granted would unfairly prejudice them.
A
Code of Civil Procedure section 413.10 governs service of summons both in and outside the United States. With respect to service outside the country, the statute provides: "Except as otherwise provided by statute, a summons shall be served on a person: [¶] . . . [¶] (c) Outside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory. These rules are subject to the provisions of the Convention on the 'Service Abroad of Judicial and Extrajudicial Documents' in Civil or Commercial Matters (Hague Service Convention). " (§ 413.10.)
"In California service on an individual may be made by personal delivery of a copy of the summons and complaint. (§ 415.10.) Substituted service on an individual may be made by leaving a copy of the summons and complaint with a competent person at the individual's business, office, dwelling, usual place of abode or usual mailing address. (§ 415.20.) A summons also can be sent by first class mail with a return receipt requested, or coupled with an acknowledgment and return envelope with postage prepaid. (§§ 415.30, 415.40.) Summons may also be served by publication, if upon application it appears to the satisfaction of the court the party to be served cannot with reasonable diligence be served in another manner. (§ 415.50, subd. (a).)" (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1135.) "[A]ll of these methods for service on an individual requires transmission of documents abroad and are therefore subject to the Hague Service Convention." (Id. at pp. 1135-1136.)
"Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 1 (The Rutter Group 1995), ¶¶ 4:146-4:147.3, pp. 4-32.10-4-32.13, rev. #1 1995.) This is true even in cases where the defendant had actual notice of the lawsuit. (See, e.g., Dr. Ing. H.C.F. Porsche A.G. v. Superior Court (1981) 123 Cal.App.3d 755, 762 [because West Germany objected to service by mail and through diplomatic channels, attempts to serve German corporation in this manner were void]; Honda Motor Co. Ltd. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048-1049 [(Honda Motor Co.)] [Japan does not recognize or permit service of summons by mail and service by mail rendered attempted jurisdiction void]; Suzuki Motor Co., Ltd. v. Superior Court [1998] 200 Cal.App.3d 1476, 1484 [California courts may not exercise jurisdiction in violation of an international treaty].)" (Kott v. Superior Court, supra, 45 Cal.App.4th at p. 1136.)
"Until statutory [service] requirements are satisfied, the court lacks jurisdiction over a defendant." (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808-809.)
In California "the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void." (Honda Motor Co., supra, 10 Cal.App.4th at p. 1048.) Actual notice of the action "is not a substitute for proper service and is not sufficient to confer jurisdiction." (American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392; see Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 ["[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service."].) Further, " 'knowledge of the action is not a substitute for service, nor does it raise any estoppel to contest the validity of service.' " (Honda Motor Co., at p. 1049.)
"When a [party] argues that service of summons did not bring him or her within the trial court's jurisdiction, the [opposing party] has 'the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.' " (American Exp. Centurion Bank v. Zara, supra, 199 Cal.App.4th at p. 387.) Personal jurisdiction, which cannot be established without effective service, may be raised for the first time on appeal. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250.)
B
The record concerning service on Refahityat is confusing. Prior to the filing of the amended complaint in January 2015, the parties entered into a stipulation that "no new parties [could] be added without leave of court and all unserved, non-appearing and fictitiously named parties are dismissed." Nothing in the record suggests Refahityat had been effectively served with the complaint prior to that stipulation. On January 20, 2015, the Eppersons filed an amended complaint against both Djavaherian and Refahityat. The register of actions shows a request for default against Refahityat filed by Dennis Epperson was denied on April 14, 2015, and another default was "received on 4-21-15." On April 24, 2015, Djavaherian filed a declaration stating that Refahityat did not reside in California and had moved to the United Kingdom years before. Djavaherian's declaration also asserted she was not Refahityat's agent for service of summons. The register of actions indicates that on April 29, 2015, the trial court denied a request for default filed by the Eppersons.
The Eppersons then filed a proof of service on May 14, 2015, indicating Refahityat was served with the second amended complaint on March 4, 2015, by "mailing a true copy thereof . . . addressed to the following: Refahityat Mehrazar 2760 Montego Cove, Del Mar, CA 92014." The same day, May 14, 2015, the Eppersons filed another request for entry of default judgment against Refahityat, which was entered by the court's clerk that day. At trial there was disagreement about the status of Refahityat as a defendant. The Eppersons and Maughan asserted they had a valid default against Refahityat, while Djavaherian's counsel argued Refahityat was dismissed from the case by the parties' stipulation in January 2015. In its minute order the court stated that Refahityat was a defaulted party and the final statement of decision states she resides in London.
C
There is no dispute that Refahityat was not served according to the Hague Convention and that residents of the United Kingdom must be served in accordance therewith. The Eppersons, however, contend that they obtained a valid default against Refahityat in May 2015, and that service according to the Hague Convention was not required because Refahityat either lived in California part time or Djavaherian was authorized to act as her agent for service of process. These assertions, however, are not supported by the record. No evidence was proffered in the trial court to substantiate the Eppersons' claim that Refahityat resided in California. The only evidence concerning her residence was Djavaherian's declaration, which showed Refahityat lived abroad. Further, the court treated Refahityat as a defaulted party and its statement of decision states explicitly that Refahityat resides in London, England.
In response to Refahityat's argument on appeal that she was never properly served, the Eppersons ask this court to take judicial notice of a homestead declaration filed by Refahityat in 2000 and a special power of attorney, executed in 2010, that was recorded with mortgage documents when the property was refinanced in July 2015. "Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' " (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) On this basis we deny the Eppersons' request for judicial notice. However, even if we were to judicially notice the documents, we do not agree with the Eppersons that they establish Refahityat lived in California at the time the Eppersons attempted substitute service on her or that Djavaherian was her agent for purposes of service.
The homestead declaration was filed over a decade before the litigation in this case began. The existence of the declaration does not establish Refahityat lived in the home at the time of the proceedings in this case. Rather, it is simply a mechanism that provides certain protections to judgment debtors. Indeed, such a declaration is abandoned by implication "whenever a homestead declarant establishes another residence as his or her principal dwelling . . . ." (Webb v. Trippet (1991) 235 Cal.App.3d 647, 652, fn. 2.)
With respect to the special power of attorney, as Djavaherian and Refahityat point out in their briefing, the document shows that Refahityat lives in London, not California. In addition, the document does not authorize Djavaherian to accept service of process on behalf of Refahityat. Rather, it gives Djavaherian authority to act as Refahityat's agent for purposes of executing a mortgage on the property. The Eppersons offer no additional evidence suggesting the special power of attorney created an agency for purposes of service of process or that they relied on the document in deciding to ignore the Hague Convention. (See Summers v. McClanahan, supra, 140 Cal.App.4th at pp. 411-412 [default vacated on appeal where plaintiff offered no evidence to show purported "agent" was authorized to accept service].)
The Eppersons also argue that granting Refahityat's request for relief from the judgment would unfairly prejudice them, and that this is not an exceptional case that warrants relief from judgment under section 473. That provision allows a defaulted party to request relief from default within a specific timeframe, if the default was obtained by mistake, inadvertence, surprise, or excusable neglect. (§ 473, subd. (b).)
Compliance with the statutory procedures for service, however, " 'is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]' [Citation.] Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) However, when a judgment is void because the court lacked jurisdiction to enter it, the judgment is " ' "vulnerable to direct attack or collateral attack at any time." ' " (Strathvale Holdings v. E.B.H., supra, 126 Cal.App.4th at p. 1249.) As discussed, the Eppersons were aware that Refahityat lived abroad. Rather than serve Refahityat according to the Hague Convention, they chose to rely on the default. Any subsequent prejudice was the result of that decision, not Refahityat's failure to challenge the default earlier.
In sum, the evidence before the trial court supported its finding that Refahityat lived in the United Kingdom throughout the proceedings in this case. The Eppersons have not met their burden to show Refahityat lived in California or that she appointed her daughter to act as her agent for service of process. Because Refahityat was never adequately served, the judgment entered against her is void.
II
Djavaherian argues that there was insufficient evidence to support the trial court's imposition of treble damages against her under Civil Code section 3346 and Code of Civil Procedure section 733. Specifically, Djavaherian contends the Eppersons failed to prove by clear and convincing evidence that she vandalized the tree and, even if they did establish she was the culprit, failed to prove she acted willfully with the intent to vex, harass, annoy or injure the plaintiffs.
A
A trespass occurs when the defendant makes an unauthorized entry onto the land of the plaintiff, regardless of the defendant's motivation. (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480.) " '[T]he intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the trespass allegedly occurred . . . . The defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.' " (Id. at pp. 1480-1481.) Further, even if the defendant does not subjectively intend to make an unauthorized entry, he or she may be liable for trespass if the entry was reckless or negligent—i.e., if the entry resulted from conduct which created an unreasonable risk of entry. (See Gallin v. Poulou (1956) 140 Cal.App.2d 638, 642, 645.)
The measure of damages for trespass is "the amount which will compensate for all the detriment proximately caused thereby . . . ." (Civ. Code, § 3333; Heninger v. Dunn (1980) 101 Cal.App.3d 858, 861-862.) There is no fixed rule to determine the amount of compensation, and any formula that is reasonable and appropriate to compensate the injured party for the loss in the particular case may be used. (Heninger v. Dunn, supra, at pp. 862, 865.) In addition to these common law principles that govern generally the tort of trespass, Civil Code section 3346 and Code of Civil Procedure section 733 augment the amount of damages to be awarded when a trespass results in damage to trees. These statutes, commonly referred to as "trespass to timber," do not create a cause of action truly distinct from common law trespass, but provide for an increased award of damages when the trespass involves the destruction of trees. (Ibid.)
Section 733, states: "Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person, . . . without lawful authority, is liable to the owner of such land . . . for treble the amount of damages which may be assessed therefor . . . ." Similarly, Civil Code section 3346, subdivision (a) states: "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 . . . had probable cause to believe that the land on which the trespass was committed was his own . . . the measure of damages shall be twice the sum as would compensate for the actual detriment . . . ."
Reading these two code sections together, courts have identified two measures of augmented damages applicable in a trespass to timber case, depending on the nature of the trespass: (1) treble damages for willful and malicious trespass; and (2) mandatory double damages for casual, involuntary, or mistaken trespass. (Drewry v. Welch (1965) 236 Cal.App.2d 159, 180-181 (Drewry); Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138.) Treble damages are permissible when the trier of fact finds the defendant acted willfully and maliciously, with the " ' "intent to vex, harass, or annoy or injure the plaintiff." ' " (Drewry, at pp. 171-172.) In the absence of a malicious intent finding—that is, when the defendant engages in a casual, involuntary, or mistaken trespass—double damages are mandatory. (Id. at pp. 179-181.)
Whether the defendant has the requisite intent " ' " 'to vex, harass, or annoy or injure" ' " ' the plaintiff is a question of fact for the trial court. (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 646.) Civil Code section 3346 and Code of Civil Procedure section 733 " 'prescribe the degree of penalty to be invoked [and] commit to the sound discretion of the trial court the facts and circumstances under which it shall be invoked.' " (Ibid.) In reviewing Djavaherian's challenges "to the sufficiency of the evidence, we are bound by the substantial evidence rule. All factual matters must be viewed in favor of the prevailing party and in support of the judgment. All conflicts in the evidence must be resolved in favor of the judgment." (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1747.)
B
Djavaherian asserts that because only circumstantial evidence linked her to the vandalized tree, the evidence was insufficient. The lack of direct evidence, however, does not mean the court's finding was not sufficiently supported. (See People v. Holt (1997) 15 Cal.4th 619, 668 [Sufficient evidence standard of review is the same when the evidence is circumstantial.].) Rather, Djavaherian's argument amounts to a request for this court to reweigh the evidence and conclude that the testimony that supported her version of events was more plausible. This is not our role.
Here, ample evidence suggested Djavaherian was responsible for harming the Eppersons' pine tree. Her prior aggressive actions concerning the Eppersons' landscaping and other trees in the neighborhood showed her malicious motivation. The ability for Djavaherian to easily access the property, the fact that Maughan was away for several weeks before the tree was harmed, and Djavaherian's odd conduct after the vandalism occurred all supported the trial court's findings. This evidence also showed the vandalism by Djavaherian was willful and was specifically intended to injure the Eppersons' property. Additionally, although no criminal charges were filed against Djavaherian, the police report entered into evidence does not exonerate her in the manner she argues. To the contrary, the report draws no final conclusion, notes Djavaherian's odd interaction with the officers, and refers the matter to a detective. In sum, there was sufficient evidence to support the trial court's finding that Djavaherian intentionally damaged the tree.
Djavaherian asserts the court's findings that she (1) "never really denied" involvement in the vandalism, (2) "goes onto other peoples' properties to remove the things she does not like," and (3) "has no particular regard for her actions when it comes to her neighbors" are not supported by the record. This assertion is not accurate. The trial court's statement that Djavaherian did not outright deny involvement was correct, and the testimony of the neighbors concerning Djavaherian's trespass and meddling on their properties directly supported the court's other findings.
Djavaherian also claims treble damages were not properly imposed because the only evidence concerning her state of mind was speculative. She argues that the trial court's finding that the vandalism was an intentional, malicious act because she was obsessed with the tree did not show malice, only that she was concerned with fire danger. This argument amounts to another request for this court to reweigh the evidence and reject the trial court's credibility determination that Djavaherian's destruction of the tree was intentional and malicious. We have no authority to revisit the trial court's determination in this regard because the evidence concerning Djavaherian's motivations was sufficient to support the court's findings.
C
Djavaherian also contends that the treble damage award against her must be reversed because the damages are disproportionate to the harm caused and there was no evidence of her ability to pay. As she points out, however, the treble damages available under Civil Code section 3346 and Code of Civil Procedure section 733 are statutory. The court was required to double the damages, and had the discretion to triple the damage award if it found that Djavaherian's conduct was willful. The statute does not impose the additional proportionality and ability-to-pay requirements advanced by Djavaherian.
With respect to proportionality, Djavaherian asserts that because her actions were "taken under the assumption that the trimming of the trees in her neighborhood was in the public's interest," the imposition of the punitive treble damage award was disproportionate. This argument relates to Djavaherian's underlying motivations for her actions and was rejected by the trial court. As discussed, it is not this court's role to revisit credibility determinations made by the trial court that were supported by the evidence. The trial court rejected Djavaherian's story that she was simply trying to protect her home from neighbors who were "uncooperative and hostile." Instead, the court concluded that Djavaherian was hostile toward Maughan and other neighbors. The court also concluded she was obsessed with improving the sunlight to her home and had no boundaries when it came to other people's property.
With respect to Djavaherian's argument concerning the lack of evidence about her ability to pay, we reject her contention that because treble damages were discretionary, evidence of her financial condition was required. The trespass to timber statutes mandate at least double damages, and authorize triple damages when the destruction is willful. (Drewry, supra, 236 Cal.App.2d at pp. 180-181.) Unlike the punitive damages awarded in the cases Djavaherian relies on, the treble damages authorized by Civil Code section 3346 and Code of Civil Procedure section 733, while penal in nature, are statutory damages. "[I]n the context of a statutory penalty, the issue of defendant's financial condition will at most be a matter for the defendant to raise in mitigation." (Rich v. Schwab (1998) 63 Cal.App.4th 803, 817.) Djavaherian offered no mitigating evidence concerning her ability to pay.
III
Djavaherian also asserts that because "there was no timber cut by anyone other than the owner" and "no profit, misappropriation, or financial gain obtained by Djavaherian from the Eppersons' tree," the claim is outside the spirit of the trespass to timber statutes to "protect timber from being cut by others than the owner." (Gould v. Madonna (1970) 5 Cal.App.3d 404, 408.) This argument is not well taken. Civil Code section 3346 allows treble damages for "wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof . . . ." (Italics added.) This language plainly encompasses the vandalism at issue here. (See also Heninger v. Dunn, supra, 101 Cal.App.3d at p. 868 ["Neither the language of the statute nor past judicial constructions supports respondents' contention that it is applicable only to injuries to trees that are valuable as timber."].)
IV
Djavaherian next argues the Eppersons' trespass to timber claim was barred by the three-year statute of limitations that applies generally to the tort of trespass under section 338, subdivision (b). However, the more specific statute under which the Eppersons' claims were brought, Civil Code section 3346 contains a five-year limitations period. The limitations provision states "[a]ny action for the damages specified by subdivisions (a) and (b) of this section must be commenced within five years from the date of the trespass." (Civ. Code, § 3346, subd. (c).) This more specific limitations period controls the Eppersons' claim. (See Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310 ["If conflicting statutes [of limitations] cannot be reconciled, later enactments supersede earlier ones [citation], and more specific provisions take precedence over more general ones [citation]."].) The vandalism at issue was first discovered in March 2011. The Eppersons added their claim for trespass to timber within the applicable five-year limitations period by their amended complaint filed on January 20, 2015.
Djavaherian also asserts the trial court should have barred the Eppersons' claim under the doctrine of laches. The doctrine of laches is an equitable time limitation on a party's right to bring suit. Under the doctrine, individuals "who neglect their rights may be precluded from obtaining relief in equity." (13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 16.) The defense of laches requires both unreasonable delay and " 'prejudice to the defendant resulting from the delay.' " (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68.) " ' "The prejudice must be caused by the delay and may be of either a factual nature or some prejudice in the presentation of a defense." ' " (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1348.)
Djavaherian presented no evidence or argument in the trial court concerning any prejudice she suffered as a result of the Eppersons' delay in filing their trespass to timber claim. Likewise, on appeal she has not explained what harm the delay caused her. Accordingly, we reject Djavaherian's assertion that the Eppersons' trespass to timber claim should have been equitably barred under the doctrine of laches. (See In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [" 'The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.' "].)
V
Finally, Djavaherian asserts that Maughan's voluntary dismissal of her petition for a restraining order should have collaterally estopped the Eppersons from asserting their claim for trespass to timber.
"Collateral estoppel (more accurately referred to as 'issue preclusion') 'prevents relitigation of previously decided issues,' even if the second suit raises different causes of action. [Citation.] Under California law, 'issue preclusion applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.' " (Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, 1088.) These elements were not satisfied here.
Djavaherian argues that because an award of treble damages under the trespass to timber statutes require intent to "vex, harass, or annoy or injure the plaintiff" the issues were identical to Maughan's request for a restraining order to prevent future harassment by Djavaherian. We disagree. The prevention of ongoing harassment is not identical to the issue of whether or not Djavaherian intentionally destroyed the Eppersons' tree. (See Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 125 [" ' "The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings . . . ." ' "].) Similarly, because of the different issues in this case and in Maughan's petition for a restraining order, the alignment of interests required to find privity is also lacking. Maughan's request for a restraining order sought to prevent Djavaherian from engaging in continued aggressive and harassing behavior toward Maughan. Maughan's request was entirely unrelated to Djavaherian's liability for vandalizing the Eppersons' tree.
DISPOSITION
The judgment against Refahityat is reversed. In all other respects the judgment is affirmed. Each party shall bear their own costs of appeal.



HALLER, J.

WE CONCUR:




HUFFMAN, Acting P. J.




NARES, J.