Connor v. Katzen

Filed 8/30/07 Connor v. Katzen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Doris Katzen appeals from a judgment directing her to permit plaintiff Lindsay Connor to restore a ditch on Katzens property at Katzens expense and awarding Connor $32,805, including $10,000 in compensatory damages for emotional distress.

We will affirm the judgment.

FACTS

This case involves three adjacent lots in Aptos, an unincorporated area in Santa Cruz County. The uphill lot lies to the south and shares a coextensive east-to-west border with the two downhill lots. In 1976, Anthony Espinoza bought the two downhill lots in order to develop them. The county would not let Espinoza build until he had constructed a ditch to keep water from running onto the downhill lots from the uphill lot and possibly damaging any improvements that might be built on the downhill lots, so Espinoza built a ditch on the upper lot with that lot owners consent or acquiescence. The ditch ran parallel to and slightly above the property line dividing the uphill lot from the downhill lot that would later become Connors, then turned downhill through the other downhill lot, connecting to a drainage ditch paralleling Day Valley Road, which forms the northern boundary of the two downhill lots. Espinoza sold one of the two downhill lots to Connors predecessors in interest, keeping the other for himselfthe lot burdened by the ditchand building a house on it.

In 1989 Katzen and her husband, who is now deceased, bought the uphill lot. In 1998 Connor and his wife bought their lot and became Espinozas and Katzens neighbors, although at the time of trial Espinoza did not live on his property.

In 2002, Katzen and her late husband filled in the ditch for horticultural reasons. The rains that followed caused sand-filled runoff to collect on Connors property, damaging the landscaping, swimming pool, patio area, and rock walls, and causing loss of use. Connor also suffered emotional distress from the runoff damage. It was very depressing to walk out and see silt and mud all over the patio and frogs in the swimming pool, Connor testified. I dont want to go in my backyard. Every time I look up that hill it makes me sick. For a time Connor and his wife feared that their daughter, who was two years old at the time of trial, could fall into their swimming pool despite their installation of alarms and borders around it and that the pools turbidity would complicate a rescue.

Connor sued to enjoin Katzen from allowing water to flow from her property onto his and for damages of $4,140 attributable to property damage. Although the complaint also sought such other relief as the court may deem proper, it did not specifically plead emotional distress damages as a consequence of the damage to Connors property.

After a court trial, the trial court entered judgment compelling Katzen to permit Connor to reconstruct the ditch at Katzens expense, creating an appurtenant easement for the benefit of Connors property that included a requirement of the continued existence of the ditch, and awarding damages as previously described. The judgment did not require anything of Espinoza, who was not a party to the case.^[1]

DISCUSSION

I. Validity of Equitable Relief

Katzen claims that the trial court abused its discretion in granting Connor equitable relief in the judgment. In particular, she maintains that the courts injunction is invalid under equitable principles because it required nothing of Espinoza and has the effect, according to expert testimony, of shifting the runoff problem from Connors parcel to Espinozas.

A. Standard of Review

 A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate. [Citation.] The trial courts decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion.  (Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964.) Notwithstanding its discretionary component, a permanent injunction must be supported by substantial evidence in the record (ibid.) to the extent the trial court had to review the evidence to resolve disputed factual issues (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) In this case, however, little of the evidence is disputed; the issues we are asked to consider are predominantly or purely legal, so the unadorned abuse-of-discretion standard governs. (See Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.)

B. Equitable Remedies to Correct the Removal of the Ditch

A court of equity will in a proper case award a mandatory injunction for the protection and preservation of an easement, including, where the remedy is appropriate, an order for the removal of an obstruction already erected. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 712-713.) The evidence at trial showed that Katzens property was subject to what was in effect an easement in Connors favor, namely the ditch that protected Connors property, and that the dirt Katzen used to fill in the ditch obstructed that de facto easement. (As noted, the trial court formalized the de facto easement as part of its equitable decree.)

The parties agree that the propriety of the injunction rested on the trial courts evaluation of the following factors: The character of the interest to be protected[;] the relative adequacy to the plaintiff of injunction and of other available remedies such as damages; plaintiffs delay in bringing suit[;] plaintiffs misconduct, if any; the relative hardship likely to result to defendant if the injunction is granted and to plaintiff if it is denied; the interest of third parties and of the public[;] and the practicability of framing and enforcing the order or judgment. (Pacific Gas & Elec. Co. v. Minnette (1953) 115 Cal.App.2d 698, 709.) The appropriateness of injunction is to be determined as of the time of the order or judgment unless special circumstances otherwise require. (Ibid.)

The dispute here centers on the interest of Espinoza, as a third party who did not appear in the case and whose own property might be affected by the ditchs restoration. Katzen relies on the testimony of an expert witness who opined at one point that if a three-foot-deep ditch were restored on her property and nothing were done to the ditch on Espinozas property, too much water [would be] going onto Espinoza[s property] . . . and flooding him out.

Katzen reads more into the experts testimony than we do. Defense counsel asked the expert on cross-examination: And you have likewise calculated the amount of water that the Espinoza ditch, as you understand it currently to be configured, could receive or handle? The witness answered: I dont think I ever calculated that number, but just looked at it and said the ditch was smaller than the three-foot ditch and [had] a flatter slope, so it wouldnt carry as much. Counsel asked: Doctor, the capacity of the Espinoza ditch to receive water is less than the capacity of the [Katzens] ditch to deliver [it], correct? Yes, the witness replied. Counsel asked: And without further engineering, further construction to exit the water off the Katzens property, [this situation] would result in what? It was at this point that the witness replied it would flood Espinozas property.

In our view, the witness was only testifying about the obvious: a larger ditch can deliver more water than a smaller ditch can receive. The predicate of the question and answer to which Katzen points concerned only the ditches capacities, not their past or predicted performance.

For the foregoing reasons, we also reject Katzens argument that Connor improperly failed to join Espinoza as an indispensable party. (Indeed, neither Connor nor Katzen sought to join Espinoza as a party.) A person is indispensable only if (as a necessary but not sufficient condition (see Code Civ. Proc.,  389, subd. (b)) in his absence complete relief cannot be accorded among those already parties or he claims an interest relating to the subject of the action . . . . (Id., subd. (a).) Katzen does not point to anything in the record that would establish that Espinoza fit in either category. Complete relief was afforded to Connor with regard to the ditch protecting Connors property, and Espinoza did not, from all we are told, formally claim an interest in the litigation at any time. That suffices to keep him outside the definition of an indispensable party.

As part of this claim, Katzen points us to a letter Espinozas counsel sent to Connors counsel. On November 19, 2005, Espinozas counsel wrote to Connors counsel that Connor and his wife were thereby forewarned that they will be . . . responsible for any damages to the Espinoza property due to any overburden from drainage water that enters the Espinoza property. The letter also asserted that redigging the ditch on Katzens property to the maximum size permitted in the judgment would trigger a significant overburden of drainage onto the Espinoza property unless Espinoza enlarged his own ditch.

To overcome Connors response that the letter is hearsay and postdates the original judgment, Katzen observes that the trial court considered the letter before entering its revised judgment. She is correct. Nonetheless, we may leave aside any questions about the courts authority to consider the letters contents. The contents themselves establish nothing. They present only counsels assertion that redigging the ditch to the maximum permitted size will cause excessive drainage onto Espinozas property and force him to enlarge his own ditch. The trial court was not required to accept counsels mere speculation . . . . (People v. Thornton (2007) 41 Cal.4th 391, 448.) And in fact the court did not accept counsels allegations; it commented that the water thats come down is the same water thats always come down . . . . The court later ruminated that the judgment you received is only partially effective, because of the fact that Mr. Espinoza wasnt in front of the Court. If Espinoza did not cooperate, water would run into a wall when it gets to [his] property . . . [resulting in] a long hot dog[]like lake behind their house that will . . . spill over. But the courts offhand remarks do not constitute a ruling but rather a conjecture about contingencies that might materialize if Espinoza did not cooperate and a large rainfall later occurred, and as with all conjectures it may never become a fact. Connors counsel stated that Connor and his wife would really like for all the neighbors to get along and work cooperatively, and they may be able to achieve that goal. In the October 17, 2005 hearing on Katzens postjudgment motion to set aside the original judgment, the court commented, I understand there is an issue with Mr. Espinoza, but I was always told during the trial that Mr. Espinoza was on board . . . . Most of that ditch still runs behind [sic] his property, and he has the same interests in maintaining that ditch all the way to the far side of his property that he always had, which is why I felt comfortable making an order that in effect required his cooperation.

In sum, the trial court did not abuse its discretion in granting equitable relief to Connor.

II. Emotional Distress Damages

As noted, of the $32,805 in damages the trial court ultimately awarded to Connor, $10,000 was for emotional distress. Connor did not specifically allege emotional distress damages in his complaint, nor did he seek to amend the complaint to include such damages at a later stage. As noted, however, he did introduce evidence that he suffered emotional distress as a result of Katzens filling in of the ditch.

Katzen claims that the trial court erred in permitting the award of emotional distress damages even though Connor never sought to amend his complaint to expressly include them.

As Connor observes, however, his complaint pleaded loss of use and enjoyment of his property. The complaint alleged that [m]ud, silt, and debris have been deposited on plaintiffs property, rendering certain portions of the land unusable . . . .

We agree with the trial courts conclusion during the hearing on Katzens postjudgment motion to set aside the original judgment that emotional distress damages are properly awarded on a plea of loss of use and enjoyment if the evidence justifies awarding them. It is settled that . . . [an] occupant of land . . . may recover damages for the discomfort and annoyance of himself . . . and for mental suffering . . . when such discomfort or suffering has been proximately caused by a trespass or a nuisance. (Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337; see also Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 323.) Emotional distress is a natural and probable consequence of the loss of use and enjoyment of ones residential property; as expressed in Dillon v. Legg (1968) 68 Cal.2d 728, damages to compensate for that distress are permissible if the mental injury [is] in aggravation of, or parasitic to, an established tort. (Id. at p. 738.) Although Katzen asserts that the emotional distress issue never appeared in the pleadings or arose in discovery proceedings, she has not demonstrated that the emotional distress evidence undermined her defense or caught her by unfair surprise, as might be the case if emotional distress were not a natural and probable corollary or consequence of loss of use and enjoyment of property. The award was proper.

DISPOSITION

The judgment is affirmed.

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Duffy, J.

WE CONCUR:

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Mihara, Acting P. J.

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McAdams, J.

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^[1]The trial court entered an original judgment on August 26, 2005, which included an award of $10,000 in punitive damages. On September 15, 2005, Katzen filed a motion to set aside the judgment in which she asked that the court vacate the punitive damages award, vacate or reduce the award of compensatory damages for emotional distress, and vacate portions of the equitable relief ordering restoration of the ditch on Katzens property. At a hearing on October 17, 2005, the court vacated the punitive damages award and modified the equitable decree in a minor respect not relevant to this appeal. The court declined to set aside the compensatory damages award for emotional distress. Following further postjudgment proceedings, the court entered its revised judgment on December 9, 2005. Unqualified references to the judgment in this opinion are to the revised judgment.