Nassir v. Lunkewitz
Filed 6/19/13 Nassir v. Lunkewitz CA2/4
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
FARZIN NASSIR,
Plaintiff and Appellant,
v.
DANIELA LUNKEWITZ,
Defendant and Respondent.
B237434
(Los Angeles County
Super. Ct. No. BC403205)
APPEAL
from a judgment of the Superior
Court of
County, Sousann G. Bruguera, Judge. Reversed.
Ecoff
Blut, Lawrence C. Ecoff, and Philip H.R. Nevinny for
Plaintiff and Appellant.
Krakowsky
Michel, Shinaan S. Krakowsky, and Hayes F. Michel for Defendant and Respondent.
>
Plaintiff
Farzin Nassir appeals the grant of summary judgment in favor of his former
neighbor, defendant Daniela Lunkewitz.
We conclude that summary judgment was improperly granted, and thus we
reverse.
Nassir
filed the present action against Lunkewitz on December 4, 2008.
The operative complaint alleges that Lunkewitz entered Nassir’s property
without permission in October 2008, trimmed Nassir’s trees, and damaged his
bushes and landscaping, resulting in damages in excess of $45,000. The complaint asserted four causes of
action—(1) trespass, (2) negligence, (3) negligence per se, and (4)
violation of California Code of Civil Procedure section 733
sought treble damages.
Lunkewitz
moved for summary judgment on April 9,
2010.
title="">[2] She asserted that she formerly resided in the
Mt. Olympus
planned community in the Hollywood Hills.
Nassir’s property was located immediately uphill from Lunkewitz’s. The Mt.
Olympus covenants, conditions, and
restrictions (CC&R’s) prohibit any homeowner from growing trees or other
landscaping more than 10 feet above grade if the landscaping obstructs a
neighbor’s view. Over the course of
about a year, Lunkewitz asked Nassir many times to trim the trees on his
property in accordance with the CC&R’s.
In July 2008, the Mt. Olympus Property Owners Association (MOPOA)
sent Nassir a letter informing him that his trees were taller than permitted by
the CC&R’s, and asking him to “[t]rim and thin the offending trees†within
15 days. In September 2008, Lunkewitz’s
attorney sent Nassir a letter again asking Nassir to trim his trees and
attaching photographs documenting Lunkewitz’s obscured view. Eventually, Nassir agreed to allow his trees
to be trimmed at Lunkewitz’s expense and stated a “preference†that his
“handyman†do the work. When Lunkewitz
was unable to reach Nassir’s handyman, she hired her own gardener to top the
trees. Lunkewitz’s gardener trimmed
Nassir’s trees over two days, during which time no one from Nassir’s property
objected. To the contrary, the
homeowner, whom Lunkewitz believed to be one of Nassir’s parents, asked the
gardener to trim an additional tree.
Lunkewitz asserted that she was entitled to summary judgment because (1)
the CC&R’s gave her the right to enter Nassir’s property to cure his
violation, (2) her entry onto Nassir’s property was privileged because his
trees constituted a nuisance under the CC&R’s, and (3) there was no
evidence Nassir suffered any damages.
Nassir
opposed Lunkewitz’s motion for summary judgment. He asserted that Lunkewitz’s entry onto his
land was neither privileged nor done with his consent. Specifically, he asserted that (1) neither he
nor his parents agreed to allow Lunkewitz’s gardener to trim his trees, (2) the
terms of the CC&R’s are enforceable by the MOPOA, not by individual
homeowners, and (3) he suffered significant damages.
The
trial court granted Lunkewitz’s motion for summary judgment on October 6, 2010, on two alternative
grounds: (1) the CC&R’s authorized
Lunkewitz to trim Nassir’s trees because they exceeded the maximum height
permitted and obscured her view; and (2) Nassir had not established, and could
not establish, his alleged damages. The
court ordered Lunkewitz to submit a detailed proposed order pursuant to Code of
Civil Procedure section 437c, subdivision (g), which it signed and filed on December 23, 2010. The order stated in relevant part as follows:
“Lunkewitz
is entitled to summary judgment on Nassir’s claims as a matter of law as there
are no triable issues of material fact since the CC&Rs expressly gave
Lunkewitz ‘the right’ to enter Nassir’s property and cure the Violation, and
further, protect[ed] her from any liability from these actions. Specifically, the Hercules Property is
subject to the CC&Rs which are enforceable both by [the] MOPOA and Mt.
Olympus property owners who are
subject to the CC&Rs. Among other
restrictions, the CC&Rs require that property owners and Mt.
Olympus community residents ensure
maturing trees do not obstruct a neighbor’s right to a reasonable view. The failure to do so constitutes a nuisance,
and where such a nuisance exists, the CC&Rs legally authorize property
owners, like Lunkewitz, to abate or remove the nuisance. Most importantly, the property owner will
‘not thereby be deemed guilty of any manner of trespass for such entry,
abatement or removal.’ Because Lunkewitz
has successfully demonstrated that Nassir’s causes of action present no triable
issue of fact, the Court grants summary judgment in Lunkewitz’s favor.
“.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
“Nassir
cannot prove actionable trespass or negligence based on Lunkewitz’s alleged
unauthorized entry onto the Hercules Property because the CC&Rs expressly
gave Lunkewitz the legal authority to enter the Hercules Property to cure the
Violation. ‘The essence of the cause of
action for trespass is an “unauthorized entry†onto the land of another.’ Civic Western Com. v. Zila Indus., Inc.,
66 Cal.App.3d 1, 16 (1977). ‘Where there
is a consensual entry, there is no tort, because lack of consent is an element
of the wrong.’ Id.
at 16-17. Consensual entry exists where
a legal instrument provides for entry onto the land of another under specified
circumstances. See Id.
at 17. For example, ‘[a]n entry to
repossess property, as provided in the contract for the sale of that property,
is such a consensual entry, and is not a trespass.’ Id. . . .
“Here,
since the Hercules Property is bound by the CC&Rs and Lunkewitz is entitled
to enforce the CC&Rs against Nassir, Nassir cannot prove Lunkewitz acted
without Nassir’s consent. Accordingly,
Nassir cannot prove Lunkewitz unlawfully entered the Hercules Property.
“.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
“Similarly,
Nassir cannot prove actionable trespass or
negligence because Lunkewitz’s entry onto the property to cure the
Violation was privileged. ‘Necessity [is
a privileged entry which] often justifies an action which would otherwise
constitute a trespass . . . .’
People v. Roberts, 47 Cal.2d 374, 377 (1956) . . . ‘Entry on land by [the] possessor of
neighboring land to abate a private nuisance’ is also a privileged entry and
constitutes a defense to an unlawful entry claim. Witkin, 5 Summ. of Cal.
L., Torts § 697 (10th ed.)
“Here,
the CC&Rs declare Nassir’s Violation to be a nuisance. The privileged nature of Lunkewitz’s entry to
cure the nuisance negates Nassir’s claim that Lunkewitz did not have consent to
enter the Hercules Property. As such,
Lunkewitz is not liable to Nassir for trespass.
Further, [Lunkewitz] is not liable for negligence since the privileged
nature of Lunkewitz’s entry negates both any duty Lunkewitz allegedly possessed
to obtain consent from Nassir and the breach of such a duty.
“.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
“Nassir
cannot prove a violation of CCP § 733 and negligence per se arising from § 733
based on Lunkewitz’s alleged failure to obtain lawful authority before she
topped Nassir’s trees. To succeed on a
claim arising from CCP § 733, Nassir must show that Lunkewitz cut down, or
otherwise injured, a tree on the land of another without lawful authority. CCP § 733.
Here, the CC&Rs expressly gave Lunkewitz the lawful authority to enter the Hercules Property and top
Nassir’s trees to cure the nuisance he created.
Since Lunkewitz was lawfully authorized to cut Nassir’s trees, Lunkewitz
is not liable either for violating § 733 or negligence per se as the lack of
lawful authority is an essential element[] of these claims. Moreover, the CC&Rs expressly preclude
Lunkewitz from having any liability for entering the property and curing the
nuisance.†(Internal record citations
omitted.)
The
trial court also found that Nassir failed to establish damages and cited such
failure of proof as an alternative basis for granting summary judgment:
“. . .
Nassir pleads compensatory and treble damages.
However, Nassir has failed to establish a genuine issue of material
fact[] as to his alleged damages. Since
Nassir cannot establish his alleged damages with any sufficient reliability or
definitiveness, the Court concludes Nassir’s claims for damages are without
merit.
“.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . “To support his claim for
potentially admissible evidence offered is a November $44,600.00 draft upgrade
estimate (‘Draft Upgrade Estimate’) provided by Oscar Robles of the Robles
Landscape Service (‘Robles’) for ‘the installation of [a] landscape
upgrade.’ The Draft Upgrade Estimate
expressly states it is a ‘draft’ for the ‘installation of landscape upgrade.’ Likewise, Robles’ deposition testimony
revealed that the Draft Upgrade Estimate was . . . just that — an estimate
— a speculative draft meant to be revised before any contract was
finalized. In fact, the purported
purpose of the Draft Upgrade Estimate was to allow Nassir to get other estimates
and negotiate the price down with Robles.
“In
addition, the Draft Upgrade Estimate was an estimate for a landscape
upgrade. Robles himself described the
project as one to bring the landscape ‘up to par.’ To that end, the Draft Upgrade Estimate cannot
account for the actual alleged damage Lunkewitz purportedly caused, that is,
the difference to Nassir’s landscape before and after Lunkewitz’s alleged
unlawful entry. Thus, the Court finds
that the Draft Upgrade Estimate is not a reasonable approximation or a reliable
estimate which supports Nassir’s claim for compensatory damages.
“.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
“Neither
can Nassir use Robles as an expert in the ‘installation of landscape upgrade’
to support his claim for damages. A
person is qualified to testify as an expert only if he or she has sufficient
knowledge, skill, experience, training or education to qualify as an expert on
the subject matter of his or her testimony.
Cal. Evid. Code § 720(a).
The determinative issue is whether a witness has sufficient knowledge,
skill or experience in a field so that his or her testimony would likely
. . . assist the jury in the search for truth. [Citation.]
Here, Robles does not hold the required subcontractor’s licenses to
perform the work contemplated by the Draft Upgrade Estimate, e.g., landscaping
and tree trimming. As a result, Robles
is unqualified as a landscaping [or] tree trimming expert. [Citations.]
“Significantly,
Robles lacks the necessary expertise and special knowledge to testify as an
expert. Robles has not worked on a job
costing more than $500 since 2006, and certainly nothing over $1,000 since
2003. As for tree trimming and irrigation
repairs, Robles last commercially trimmed a tree in 2002 or 2003, and he has
hardly done any irrigation repairs since 2003.
The Draft Upgrade Estimate also contemplates use of a crane to install
five (5) palm trees. However, Robles
cannot recall the last time he worked on a job using a crane. Certainly, he has not used a crane since at
least 2003. As a result, this Court
cannot consider Robles’ testimony or the Draft Upgrade Estimate as evidence
supportive of Nassir’s compensatory claims.
“.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . “[Further], Nassir cannot rely on the pictures he
produced to support a claim for damages.
They lack a reliable foundation as Nassir testified he thinks Robles may
have taken the pictures, while Robles testified he did not take any
pictures. As a result, there is no
evidentiary basis to conclude Nassir’s pictures are an accurate representation of
Nassir’s landscaping after Lunkewitz’s gardener topped the trees, nor is there
any other reliable evidence that an expert can rely on to formulate an opinion
of Nassir’s alleged damages. In other
words, any estimate of Nassir’s alleged damages arising from the pictures is
speculative at best. And, since Nassir
cannot establish any amount of damages, the treble of zero dollars is still
zero dollars.†(Internal record
citations and fns. omitted.)
The
court entered judgment on June 24, 2011.
dismissed a related action. Nassir
timely appealed from the judgment.
STANDARD OF
REVIEW
“A
court may grant a summary judgment only if there is no triable issue of
material fact and the moving party is entitled to judgment in its favor as a
show that one or more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Id.,
subd. (p)(2).) The defendant can satisfy
its burden by presenting evidence that negates an element of the cause of
action or evidence that the plaintiff does not possess and cannot reasonably
expect to obtain evidence needed to establish an essential element. (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 460 (
burden shifts to the plaintiff to present evidence creating a triable issue of
material fact. (Code Civ. Proc., § 437c,
subd. (p)(2).)
“We
review the trial court’s ruling on a summary judgment motion de novo, liberally
construe the evidence in favor of the party opposing the motion, and resolve
all doubts concerning the evidence in favor of the opponent. (Miller,
supra, 36 Cal.4th at p. 460.) A different standard of review applies to the
court’s evidentiary rulings in connection with the motion, which we review for
abuse of discretion. (
(2010) 187 Cal.App.4th 1326, 1335.)†(
(2013) 214 Cal.App.4th 173, 180-181 (Garrett).)
DISCUSSION
I. Lunkewitz’s Authority Pursuant to the
CC&R’s to Enter Nassir’s Property to Trim His Trees
Facts
Lunkewitz’s
motion for summary judgment asserted that the CC&R’s permitted her, through
her gardener, to trim Nassir’s trees if they were more than 10 feet above grade
and obstructed her view. The CC&R’s
on which Lunkewitz rely state, in relevant part, that the “Declarant†(initially,
Financial Federation, Inc.; later, the MOPOA (Mount Olympus
Property Owners Assn. v. Shpirt (1997) 59 Cal.App.4th 885, 887-888)) “desires
to subject [the Mt. Olympus property] to . . . covenants, conditions,
restrictions and reservations for the mutual benefit of said property and its
present and subsequent owners,†including the following:
“5.03 No obstructions or trees having a height
greater than ten (10) feet above the finished graded surface of the ground upon
which it is located which would deprive any owner within a five hundred (500)
foot radius of such obstruction or trees of a view shall be erected or
maintained without the written approval of Declarant.â€
“10.05 If the owner of any lot or building site in
said property fails or neglects to perform such duties of maintenance or upkeep
as he is required to perform hereunder, Declarant may but shall not be required
to perform the same and present to the owner its charges therefor, and said
owner shall thereupon be and become liable for the prompt payment of such
charges.â€
“12.01 The provisions contained in this Declaration
shall bind and inure to the benefit of and be enforceable by Declarant and the
owners of any portion of said property, or their respective legal
representatives, heirs, successors and assigns.
Failure by Declarant or by any other property owner to enforce any of
the conditions, restrictions or charges contained herein shall in no event be
deemed a waiver of the right to do so thereafter.â€
“12.02 Any and all of the rights and powers and
reservations of Declarant herein contained may be assigned by Declarant to any
person, corporation or association which is now organized or which may
hereafter be organized and which will assume the duties of Declarant hereunder
pertaining to the particular rights and powers and reservations assigned; and
such person, corporation or association shall, upon its consent in writing to
accept such assignment and assume such duties, have the same rights and powers
to the extent of such assignment and be subject to the same obligations and
duties as are give[n] to and assumed by Declarant hereunder.â€
“12.03 Violation of any of the conditions or
restrictions herein contained shall give to Declarant, its officers, agents, or
representatives, the right to enter upon the property upon or as to which such
violation exists, and to summarily abate and remove, at the expense of the
owner thereof, any erection, thing or condition that may be or exist thereon
contrary to the intent and meaning of the provisions thereof; and they shall not
thereby be deemed guilty of any manner of trespass for such entry, abatement or
removal.â€
“12.04 The result of every act or omission[] whereby
any condition or restriction herein contained is violated, in whole or in part,
is hereby declared to be and constitute a nuisance, and every remedy allowed by
law or equity against a nuisance, either public or private, shall be applicable
against every such result, and may be exercised by
Declarant. . . .â€
B. Analysis
Paragraphs
10.05 and 12.03 of the CC&R’s are explicit that if a homeowner fails to
keep his or her trees properly trimmed—i.e., to no more than 10 feet above
finished grade—the homeowners’ association may enter the homeowner’s property
and trim his or her trees at the homeowner’s expense. By doing so, the homeowner’s association
“shall not thereby be deemed guilty of any manner of trespass.†(¶ 12.03.)
It thus appears that the MOPOA could have entered Nassir’s property and
trimmed his trees if they exceeded the height limitations specified in the
CC&R’s. At issue here, however, is
not whether the homeowners’ association had such a right, but whether Lunkewitz
did as well.
Lunkewitz
contends that because paragraph 12.01 provides that the CC&R’s provisions
“shall . . . be enforceable by Declarant and the owners of any portion of said property . . . ,â€
it “places the ‘Declarant’ on an equal footing with individual property owners
conditions contained in the CC&Rs.â€
Thus, Lunkewitz says, the remedies available to the declarant pursuant
to paragraphs 12.03 and 12.04—to enter another’s property to “summarily abate
and remove†a nuisance and to exercise “every remedy allowed by law or equity
against a nuisanceâ€â€”are equally available to the Mt. Olympus homeowners.
On
the present record, we cannot agree with Lunkewitz that, as a matter of law,
the CC&R’s authorized her to enter Nassir’s property and trim his
trees. Under well established principles
of contract interpretation, “‘[t]he whole of a contract is to be taken
together, so as to give effect to every part, if reasonably practicable, each
clause helping to interpret the other.’
(Civ. Code, § 1641.) ‘[E]ven if
one provision of a contract is clear and explicit, it does not follow that that
portion alone must govern its interpretation; the whole of the contract must be
taken together so as to give effect to every part.’ (Alperson
v. Mirisch Co. (1967) 250 Cal.App.2d 84, 90.) ‘An interpretation which renders part of the
instrument to be surplusage should be avoided.’
(Ticor Title Ins. Co. v. Rancho
Santa Fe Assn. (1986) 177 Cal.App.3d 726, 730.)†(Quantification
Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 799.)
Although
paragraph 12.01, considered by itself, arguably is susceptible of the interpretation
Lunkewitz urges, under the principles cited above we do not consider it
alone. Rather, we read it in connection
with the other relevant provisions. One
such provision, paragraph 10.05, provides that if a homeowner does not maintain
his or her property as the CC&R’s require, “Declarant may . . . perform [required maintenance] and
present to the owner its charges therefor . . . .†(Italics added.) Similarly, paragraph 12.03 provides that a
violation of any condition or restriction shall give “to Declarant, its
officers, agents or representatives, the right to enter upon the property upon
or as to which such violation exists, and to summarily abate and remove
[it].†(Italics added.) And, paragraph 12.04 provides that a
violation of the CC&R’s shall constitute a nuisance and “every remedy
allowed by law or equity against a nuisance . . . shall be applicable
. . . and may be exercised by
Declarant.†(Italics added.)
In
each of the three paragraphs quoted, the italicized language grants the rights
to enter a homeowner’s property to abate a nuisance or to seek other legal
remedies exclusively to the declarant
(now, the MOPOA),
not to individual homeowners. Had the
CC&R’s intended to grant these rights to homeowners, it would have been a
simple matter to have said so; because the CC&R’s do not explicitly grant
these rights to homeowners, on the record now before us, it appears no such
rights were intended. Further, paragraph
12.02 provides a mechanism for the declarant to assign its rights to others,
which “shall, upon [their] consent in writing . . . have the same
rights and powers.†The MOPOA, thus,
could have assigned to Lunkewitz the right to trim Nassir’s trees, but on the
present record there is no evidence that it did so. Thus, we cannot conclude that Lunkewitz’s
actions were authorized by the CC&R’s.
II. Nassir’s Parents’
Alleged Consent to the Tree Trimming
Lunkewitz
asserts that even if the CC&R’s did not authorize her to enter Nassir’s
property to trim his trees, Nassir’s parents, who apparently lived on the
property, gave their express consent. In
support, she points to the testimony of her gardener, Ricardo Juarez, who
testified at his deposition that when he arrived at the Nassir property in October
2008, he knocked on the front door and was greeted by a man and woman in their
50’s, subsequently identified as Nassir’s parents. He told the couple he was there to “[c]lean
the slope and trim the trees†and he asked them to open the garage side door. They did so.
The woman subsequently asked him to “cut a dry tree [in the back of the]
property,†but Juarez said he would have to charge her for that. Juarez and the woman could not agree on a
price, and so he did not do the work.
Lunkewitz
asserts that Juarez’s testimony is substantial evidence that Nassir’s parents
consented to Juarez’s tree trimming, but we do not agree. Juarez did not testify that Nassir’s parents
said that they allowed him on to the property and, subsequently, asked him to cut
a tree in the back of the property.
While Juarez’s testimony establishes Nassir’s parents’ knowledge that
Juarez was trimming trees on the property, it does not establish their consent. Further, there is no evidence that Nassir’s
parents, who apparently did not own the property, had the authority to
authorize Juarez to trim the trees.
Thus, Juarez’s deposition testimony does not constitute substantial
evidence that Lunkewitz or Juarez had Nassir’s permission to trim Nassir’s
trees.
III. Nassir’s Damages
As
an alternative basis for summary judgment, Lunkewitz contended that Nassir
could not prove “with any reliability or definitiveness the extent to which he
was allegedly damaged.†She asserted
that Nassir’s verified discovery responses stated that Nassir’s only damages
evidence was (1) a landscaping estimate provided by Oscar Robles, an unlicensed
landscaper, and (2) photographs of Nassir’s yard. Robles’s estimate was not reliable evidence
of Nassir’s damages, Lunkewitz asserted, because Robles was not a licensed
contractor, the estimate was to upgrade
Nassir’s landscaping, not to repair the damages Lunkewitz allegedly caused, and
Robles expected to revise his estimate downward before any contract was
finalized. The photographs also were not
reliable evidence of Nassir’s alleged damages because Nassir was not sure who
took the pictures or when they were taken.
Thus, Nassir could not establish that he suffered any harm as a result
of Lunkewitz’s actions.
Nassir
opposed the motion for summary judgment.
In support, he submitted his declaration, which stated in part as
follows: “Shortly after
Ms. Lunkewitz’s gardeners entered onto my property and destroyed my trees,
groundcover and sprinkler system, the damage to my property was photographed in
detail. Either my landscaper, Oscar
Robles, or I took the photographs of the extensive destruction at my
property. True and correct copies of
these photographs [are] attached hereto collectively as Exhibit ‘A.’†Attached to Nassir’s declaration were black
and white copies of photographs showing severely trimmed trees and bushes.
Nassir
also submitted in opposition to summary judgment the declaration of Kenneth
Kammeyer, a registered landscape architect.
The declaration stated that Kammeyer inspected the property on June 7,
2010, and reviewed numerous color photographs of the condition of the property,
trees, and foliage, which he was informed were taken November 2008. He further declared as follows:
“5. The trees and plants located at the subject
property, which I am informed and believe were cut or otherwise damaged by the
Defendant in this case, consist of the following:
“a. Schinus
molle – California Pepper Tree 3
multi-stemmed trees – pruned
“b. Washingtonia
filifera – California Fan Palm 5 trees
– removed
“c. Erthrina
caffra – Coral Tree 1
tree – pruned
“d. Ligustrum
japonicum – Japanese Privet 4
shrubs – dead
“e. Hedera
canariensis – Algerian Ivy 8,000
sq. ft. – dead
“6. In addition, I am informed and believe
that the irrigation system at the subject property was damaged by the
Defendant, and that due to her conduct, the property requires substantial
landscaping and repair.
“7. With respect to the previous value of the
aforementioned Pepper Trees, before ‘pruning’ in or about November, 2008, I
estimate their value at $40,000.00, $7,800.00, and $17,800.00,
respectively. After the cutting of the
trees by the Defendant, I estimate the value of the Pepper Trees at $28,400.00,
$5,600.00 and $12,600.00, respectively.
This represents a total diminution in value of the Pepper Trees cut by
the Defendant of $19,000.00.
“8. With respect to the previous value of the
aforementioned Palm Trees, as can be seen from the photographs of the property
and from my inspection of the property, those trees were completely cut down to
their stumps. Therefore, it is difficult
for me to assess their size, condition and height, and thus their value, prior
to their destruction by the Defendant.
Nevertheless, the replacement value of five immature California Palm
Trees is $11,139.00.
“9. With respect to the previous value of the
damaged irrigation system and landscaped 8,000 square foot slope, I estimate
the following expenses:
“a. Irrigation System
Remove
damaged irrigation pipe (lump sum) $ 500.00
Irrigation
Repair 1.00 x 8,000 $8,000.00
“b. Slope Repair
Weed .05 x
8,000 $ 400.00
Re-grade .05 x 8,000 $ 400.00
Mulch
4†.47 x
8,000 $3,760.00
Maintenance
60/days .06 x 8,000 $ 480.00
“c. Slope Planting
Ligustrum
Japonicum (4 15 gallon) $ 194.00
Hedera
Canariensis (8,000 rooted cuttings) $2,960.00
Irrigation
& planting design/observation $3,338.00
“The
foregoing costs associated with repairing the subject irrigation system and
landscaped slope to its pre-October, 2008 condition, total $20,032.00.
“10. My expert opinion of the reasonable value
of the trees, foliage and irrigation system at the subject property, and of the
damages caused to the Plaintiff in this case, is . . .
$50,171.00.â€
Lunkewitz
objected to Nassir’s photographs for lack of foundation, and to Kammeyer’s
declaration on a variety of grounds, including that it lacked foundation, was
speculative, relied on hearsay, assumed facts not in evidence, and constituted
inadmissible expert opinion. The trial
court sustained the objections in their entirety.
B. Analysis
Lunkewitz’s
motion for summary judgment assumed that damages were a necessary element of
each of Nassir’s four causes of action.
(“Damages are a necessary element of each of Nassir’s four causes of
action. [Citations.] Therefore, Lunkewitz’s motion seeking summary
judgment based upon Nassir’s inability to establish damages is appropriate.â€) In fact, Nassir need not establish damages to
establish actionable trespass: “Trespass
is an unlawful interference with possession of property. (Girard
v. Ball (1981) 125 Cal.App.3d 772, 788.) . . . [¶]
award of nominal damages where actual damages are not shown. (Allen
v. McMillion (1978) 82 Cal.App.3d 211, 219.)†(Staples
v. Hoefke (1987) 189 Cal.App.3d 1397, 1406, italics added; see also
Cal.App.2d 57, 60 [“Damages, even though nominal, are considered necessary to
support a judgment in a trespass tort action since it is essentially an action
for damages. This requirement presents
no obstacle where a jury is properly instructed, since every trespass is an
invasion of a legal right of another and carries with it the right to nominal
damages.â€].) Thus, the absence of actual
damages is not a defense to a cause of action for trespass and will not support
the trial court’s grant of summary judgment.
In
any event, we do not believe Lunkewitz has met her summary judgment burden of
presenting evidence that “the plaintiff does not possess and cannot reasonably
expect to obtain evidence needed to establish an essential element†of his
causes of action. (Garrett, supra, 214
Cal.App.4th at p. 181.) In support of
her motion for summary judgment, Lunkewitz submitted Nassir’s verified amended
interrogatory responses, which stated in relevant part as follows:
“In
or about October, 2008, . . . Defendant or her agent . . .
intentionally and unlawfully cut, removed, damaged and destroyed various trees,
roots, timber, foliage, bushes, landscaping, and sustenance on Plaintiff’s
property.â€
“[F]ive
palm trees . . . were growing on Plaintiff’s property from the time
he purchased it. They were mature and
healthy, until Defendant destroyed them.â€
“[G]round
cover . . . [was] growing on Plaintiff’s property from the time he
purchased it. It was mature and healthy
until Defendant destroyed it.â€
“[F]orty
(40) shrubs . . . were growing on Plaintiff’s property from the time
he purchased it. They were mature and
healthy, until Defendant destroyed them.â€
A
plaintiff is competent to testify about his or her own injuries and, in
appropriate cases, a plaintiff’s testimony alone is sufficient to support a
damages award. (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 381;
Cal.App.4th 757, 769 [“Plaintiff’s testimony alone was sufficient to support a
general damages award.â€].) In the
present case, Nassir was competent to testify about the condition of the trees
and shrubs on his property before Lunkewitz’s gardener trimmed them, as well as
to their condition after they were trimmed.
His testimony also was a proper basis on which an expert could base his
or her opinion about the value of the damage or the cost of repairing it.
the photographs attached to his declaration accurately represented the
condition of his property after Lunkewitz’s gardener trimmed his trees, even if
he did not himself take the photographs.
In view of Nassir’s testimony, therefore, we do not conclude that Nassir
cannot reasonably expect to obtain the evidence needed to establish his alleged
damages.
DISPOSITION
The
judgment and order granting summary judgment are reversed. Nassir is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J. MANELLA,
J.
name="_ftn1" title="">[1]
Civil Procedure section 733 provides:
“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, or on the street or highway in front of any person’s house,
village, or city lot, or cultivated grounds; or on the commons or public
grounds of any city or town, or on the street or highway in front thereof,
without lawful authority, is liable to the owner of such land, or to such city
or town, for treble the amount of damages which may be assessed therefor, in a
civil action, in any court having jurisdiction.â€
name="_ftn2" title="">[2]
discuss in greater detail below the evidence in support of and in opposition to
the motion for summary judgment.
