Fang v. Abuershard
Filed 9/6/13 Fang v. Abuershard CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
>
LINDA FANG et al., Plaintiffs and Appellants, v. NAZIH ABUERSHARD, Defendant and Respondent. | B241507 (Los Angeles County Super. Ct. No. KC056760) |
APPEAL from
a judgment of the Superior Court
of
County, Salvatore T. Sirna, Judge. Affirmed.
Kenner Law
Group and Jason J.L. Yang for Plaintiffs and Appellants.
Michael A.
Lotta for Defendant and Respondent.
Plaintiffs and appellants Linda Fang and Maria Luisa
Raymundo appeal from a judgment in their favor, following a court retrial on
the issue of damages to trees on their properties. They contend the trial court erred in its
award of damages because: (a) hearsay
testimony of defendant and respondent Nazih Abuershard concerning the
replacement cost of the trees was improperly admitted; (b) there was
insufficient evidence supporting the court’s calculation of damages; and (c)
the court incorrectly based its award solely on the fair market value of the
trees.
Appellants request reversal of the
damages award and take the position that damages should be awarded in an amount
consistent with the testimony of their expert.
We find no prejudicial error and affirm.
FACTS
In August,
2009, Abuershard approached Fang and offered to pay for a tree service to trim
pine and eucalyptus trees on Fang’s property.
Respondent said the trees were a fire hazard. Fang agreed.
Abuershard
hired Rodrigo Lopez from Cardinal’s Tree Service to perform the work.
same to a pine tree on a neighboring property which belonged to Raymundo.
Following a
jury trial, appellants prevailed on a negligence cause of action against Abuershard.
Raymundo prevailed on a trespass cause of action.
At the
court retrial on damages, Kerry Norman testified as an expert witness for
plaintiffs. He opined the tress were a total
loss. The appraised value of Raymundo’s
pine tree (#96) was $5,800. The
appraised value of Fang’s trees totaled $28,300, consisting of $9,100 for the
pine tree (#97), $5,800 for one of the eucalyptus trees (#98) and $6,700 each
for the remaining two eucalyptus trees (#99 & #100). Norman
calculated the replacement cost for each tree to be $2,964, including
installation.
Norman
was unable to determine whether the eucalyptus trees had been pruned or
otherwise maintained prior to the incident in this case. He agreed with the court that it appeared the
pine trees had not been maintained prior to Lopez’s work and were “kind ofâ€
like “big sprawling bushes.â€
When Norman
was shown recently taken photographs of the eucalyptus trees, he acknowledged
the trees had grown substantially since the original incident. Norman
opined the new growth was not securely attached to the trunk and would always
be subject to failure. However, Norman
had not visited the site to inspect the new growth.
No new
photographs of the pine trees were offered at trial. Abuershard had observed no significant change
in the pine trees since the incident; the trees showed very little sign of
growth.
Abuershard
testified that he went to the Oriental Nursery and was told by the owner that
the cost of a five foot replacement pine tree would be $1,200 and the cost of a
four foot eucalyptus would be $650. The
cost of a crane to move the trees would be $800.
The court found Fang’s damages to
be $3,500 for the pine tree #97, $2,000 for eucalyptus tree #98 and $2,500 each
for eucalyptus trees #99 and #100. The
court found Raymundo’s damages to be $2,000 for pine tree #96.
DISCUSSION
1. Abuershard’s testimony
Appellants contend the court abused its discretion in
admitting Abuershard’s testimony concerning the replacement cost of the
trees. We see no prejudice from any
error.
Evidence
Code section 813 does permit a view of the property being valued or “other
limited purpose of enabling†the trier of fact “to understand and weigh the
testimony given†by an expert or the property’s owner. (Evid. Code, § 813, subd. (b) [italics
added].)
Abuershard’s
testimony that small, relatively inexpensive trees were available from the
Oriental Nursery might have permitted the court to better understand and weigh Norman’s
testimony, but it was inadmissible hearsay.
Abuershard was simply repeating the nursery owner’s statement about
cost. (See Evid. Code, § 1200 [hearsay
is an out-of-court statement offered to prove the truth of the matter
stated].)
It is not clear the court admitted
the testimony as evidence of replacement cost.
testimony for this purpose, the error would not require reversal.
“A verdict or finding shall not be
set aside, nor shall the judgment or decision based thereon be reversed, by
reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection
to or a motion to exclude or to strike the evidence that was timely made and so
stated as to make clear the specific ground of the objection or motion;
and [¶]
(b) The court which passes upon the effect of the error or errors is of
the opinion that the admitted evidence should have been excluded on the ground
stated and that the error or errors complained of resulted in a miscarriage of
justice.†(Evid. Code, § 353.)
“In civil cases, a
declared only when the reviewing court, after an examination of the entire
cause, including the evidence, is of the opinion that it is
favorable to the appealing party would have been reached in the absence of the
error. [Citations.]†(O'Hearn
v. Hillcrest Gym Fitness Center, Inc. (2004) 115 Cal.App.4th 491,
500.)
There is no reasonable probability
appellants would have received a more favorable result in the absence of
Abuershard’s testimony. The court
expressly found his testimony to be of “minimal assistance in determining the
fair market value of the trees.†There
is nothing in the trial court’s award of damages to suggest the court was
influenced by Abuershard’s testimony that the total replacement cost was
$5,150. The court awarded $12,500 in
damages, more than twice the amount testified to by Abuershard. The court’s award was closer to Norman’s
replacement cost for the trees, which totaled $14,820.
Further, Abuershard’s testimony
showed the same replacement cost for the two pine trees ($1,200 each) and the
same cost for the three eucalyptus trees ($650 each). The trial court awarded differing amounts for
the two pine trees ($2,000 for one and $3,500 for the other) and for the
eucalyptus trees ($2,000 for one and $2,500 for the remaining two), again
showing the court was not influenced by his testimony. Any error in admitting the testimony was
harmless.
2. Sufficiency of the evidence
Appellants contend there is no
evidence to support the court’s award of damages in a lesser amount than the
appraised value shown by their expert’s testimony. They contend, in effect, that the court was
required to award the full amount of Norman’s appraised value. They are mistaken.
“‘The trier of fact . . . is not
required to accept the opinion testimony of any witness as to value[;] may
accept that part of such testimony [it] concludes worthy of belief and reject
that part which is unworthy of belief;. . . and, in determining the amount of
just compensation . . ., is not required to coincide his determination with the
specific amount fixed by the valuation testimony of any expert witness. . .
.’ [Citation.]†(Escondido
Union School Dist. v. Casa Suenos De
Oro, Inc. (2005) 129 Cal.App.4th 944, 982.)
“There is insufficient evidence to support a verdict ‘only when “no reasonable interpretation of
the record’ supports the figure . . . .’
[Citations.]†(
Bd. v. Cushman (1997) 53 Cal.App.4th 918, 931.)
Norman opined the trees were a
total loss. The court “did not find the
testimony of expert . . . Norman persuasive regarding the value of the damaged
trees.†The court “note[d] that Exhibits
A, B, C, D and E depict the [eucalyptus] trees in a state in which they appear
to be growing, and in any event well above the fence line between†the properties. Also, the pine trees “look[ed] like they have
never been maintained.†The court could
have reasonably reduced the amount of Norman’s valuation based on these
factors.
3. Measure of damages
Appellants
contend the court rejected Norman’s testimony solely because “it was not
indicative of the fair market value of the damaged trees,†and thereby erred
because there is no requirement damages be valued at fair market value.
requirement to use fair market value as a measure of damages, but it is equally
true there is no bar to using it.
“The measure of damages in
California for tortious injury to property is ‘the amount which will compensate
for all the detriment proximately caused thereby . . . .’ (Civ. Code, §
3333.) Such damages are generally
determined as the difference between the value of the property before and after
the injury. [Citations.] This measure of damages has been used to
compensate a plaintiff for damages resulting from injury to trees located on
his property. [Citation.] Diminution in market value, however, is not
an absolute limitation; several other theories are available to fix appropriate
compensation for the plaintiff's loss.
‘There is no fixed, inflexible rule for determining the measure of
damages for injury to, or destruction of, property; whatever formula is most
appropriate to compensate the injured party for the loss sustained in the
particular case, will be adopted.’
[Citations.]†(
858, 861-862.)
Here, the
court considered a number of factors, including the appearance of the trees
before the damage, the state of the trees at the time of the retrial, and the
cost of replacement trees. There was no
abuse of discretion in the trial court’s decision to award the fair market
value of the trees as damages, as opposed to the “appraisal†value offered by
Norman.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
TURNER,
P. J.
KRIEGLER, J
The two were named as defendants in the complaint in this manner, but
defaulted. The jury found Lopez
responsible for 30 percent of the harm to plaintiffs.
Cardinal Tree Service was also a defendant and also defaulted.
