Kelly v. Cb&I Constructors, Inc.

• Decision Date: 19 November 2009
• Docket Number: No. B205735.,B205735.
• Court: California Court of Appeals Court of Appeals
• Parties: MARTIN KELLY, Plaintiff and Respondent, v. CB&I CONSTRUCTORS, INC., Defendant and Appellant.

179 Cal.App.4th 442

102 Cal. Rptr. 3d 32

MARTIN KELLY, Plaintiff and Respondent, v. CB&I CONSTRUCTORS, INC., Defendant and Appellant.

No. B205735.

Court of Appeals of California, Second District, Division Five.

November 19, 2009.

Horvitz & Levy, Lisa J. Perrochet, Robert H. Wright; Lyddan Law Group and Jeffrey D. Lyddan for Defendant and Appellant.

Law Offices of Douglas G. Gray, Douglas G. Gray; Cotkin & Collins, Robert G. Wilson and Terry L. Kesinger for Plaintiff and Respondent.

OPINION

MOSK, J.

INTRODUCTION

A jury found that defendant CB&I Constructors, Inc. (defendant), negligently sparked a brush fire that caused significant damage to a ranch (the property) owned by plaintiff Martin Kelly (plaintiff). Because plaintiff had a personal reason to restore the property, the jury awarded plaintiff substantially more in damages to restore the property than the property was worth immediately before the fire. The trial court also instructed the jury that plaintiff could recover damages for annoyance and discomfort and the jury awarded such damages, although plaintiff did not reside on the property at the time of the fire. The trial court doubled the amount awarded by the jury for tree damage pursuant to Civil Code section 3346, and awarded plaintiff attorney fees pursuant to Code of Civil Procedure section 1021.9, which permits such awards in cases of trespass on property "under cultivation" or "intended or used for the raising of livestock."

We hold as follows: (1) defendant forfeited any error in the jury verdict form; (2) the jury's award of restoration damages in excess of the property's value was supported by substantial evidence and was not excessive as a matter of law; (3) the undisputed evidence established that plaintiff did not reside on the property at the time of the trespass, and his storage of personal property there was not the type of "occupancy" that would justify his recovery of annoyance and discomfort damages; (4) tree damage caused by a negligently spread fire is wrongful injury to trees caused by a trespass subject to mandatory doubling pursuant to Civil Code section 3346, notwithstanding the general provision governing fire damage in Health and Safety Code section 13007; and (5) substantial evidence supported the trial court's finding that plaintiff intended to use the property for raising livestock, entitling plaintiff to an award of attorney fees under Code of Civil Procedure section 1021.9.

BACKGROUND

A. Factual Background¹

1. The Property

The property at issue in this case is a 34-acre ranch located in oak woodland in Green Valley, California, in the hills of northern Los Angeles County between Santa Clarita and Lancaster. The property had three houses, referred to respectively as the upper ranch, middle ranch, and lower ranch. Each house had its own pasture. Other improvements included a vintage wooden barn, a garage, a kennel, chicken coops, tack buildings, stud barns, hay barns, and various utility buildings. The property had 150 to 200 oak trees and a running stream.

Plaintiff purchased the property in 1972. He moved into the upper ranch house with his family and lived there for 23 years. He sometimes rented out the middle and lower ranches, and used the rental income to keep current on the mortgage. He moved away from the property in 1994 or 1995, after he retired and his son joined the Army. Plaintiff always planned to return to the ranch, however, and maintained the ranch as his permanent residence address.

After he moved out, plaintiff rented out all three houses, and the houses were occupied by various tenants from 1995 to the date of the fire in 2002. Plaintiff did not rent out the entire property, however. He continued to store tools, equipment and firewood in storage buildings on the property.

At trial, plaintiff testified that he intended to move back to the property "as soon as possible" with his fiancée and his adult son. Plaintiff and his fiancée intended to marry and move to the property once plaintiff's fiancée had moved her business from Oxnard to Santa Clarita. Plaintiff's son, a veteran, was disabled. At the property, plaintiff could care for his son, but they could still live in separate houses and maintain some independence and privacy. Plaintiff had not returned to the property, however, because his fiancée required daily medical treatment at a hospital in Woodland Hills, which was far from the property.

2. The Fire

In June 2002, defendant was erecting a municipal water tank approximately 15 miles from the property. Sparks ignited a large brush fire known as the Copper Canyon fire. The fire spread over 20,000 acres, including the property.

The fire burned the brush on the hillsides surrounding the property and destroyed many trees, including a number of oak trees. The fire completely destroyed the vintage wooden barn and damaged several other structures. The roof and corner of the middle ranch house also sustained fire damage.

3. The Mudslides

Between 1972 and 2002, plaintiff "never had any erosion whatsoever" on his property. After the fire, heavy rains resulted in mudslides that caused extensive damage to the property. For example, the mudslides essentially destroyed the lower ranch house, and gouged a gully more than 200 feet long, 15 feet wide and 12 feet deep across one of the pastures. The fire was a substantial factor in causing the mudslide damage because it had destroyed the vegetation on the hills above the property.

4. The Damage

Plaintiff was a real estate broker before he retired. Plaintiff testified that his property was worth $1.6 million to $1.8 million at the time of the fire. Plaintiff testified that the property had no market value whatsoever in its current condition because of the repairs that were required and the danger of future mudslides.

Plaintiff's expert witness testified that the property was worth $1.8 million at the time of the fire.² She testified that the value of the property after the 2005 mudslide was very little or nothing because there was continuous debris flow, and one could not determine whether the flood control channels would be adequate or predict the final costs of restoring the property.

Plaintiff's expert estimated the total cost of restoration of the structures and land would be approximately $2.8 million. This amount included, inter alia, $437,000 to rebuild the vintage barn; $590,375 to build an erosion and flood control system; $477,641 to restore the stream to its former course; and $423,168 to remove the silt and sand from the pastures and cover the pastures with a mulching mixture.

Plaintiff's expert arborist appraised 91 trees on the property as of a time prior to their damage or destruction by the fire or subsequent mudslides, and valued them at $411,800. In addition, he valued 12 trees that had been washed away by the mudslides at $132,734, for a total of $544,534.

B. Procedural Background

In June 2003, plaintiff sued defendant and others for negligence and trespass. The trial court bifurcated the trial into liability and damages phases. In the liability phase, the jury rendered special verdicts finding that (1) defendant was negligent; (2) defendant's negligence was a substantial factor in causing the Copper Canyon fire; (3) defendant was 90 percent at fault, and another defendant was 10 percent at fault; (4) defendant caused a fire to enter plaintiff's property; (5) defendant was reckless; but (6) defendant did not act with malice.

As to the damages phase, the trial court instructed the jury, "If plaintiff has a genuine desire to repair the property for personal reasons, and if the costs of repair are reasonable given the damage to the property and the value after repair, then the costs of repair may be awarded even if they exceed the property's loss of value." The jury special verdict form asked the jury to determine if plaintiff had "a genuine desire to rebuild and repair his property for personal reasons" and, if so, "the present costs of rebuilding and repairing the [plaintiff's] real property." The jury found that plaintiff had a genuine desire to rebuild for personal reasons, and determined plaintiff's damages as follows: (1) $2,629,810 for the present costs of rebuilding and repairing the property, not including the value of trees; (2) $375,000 in tree damage; (3) $99,000 in past lost rental income; and (4) $543,000 for discomfort, annoyance, inconvenience or mental anguish. The jury thus determined plaintiff's total damages to be $3,646,810.

After trial, plaintiff moved pursuant to Civil Code section 3346 for an award of double the tree damages and for attorney fees pursuant to Code of Civil Procedure section 1021.9. As relevant here, the trial court granted both motions. The trial court awarded plaintiff $756,900 in attorney fees; costs of $22,771.81; and expert witness fees of $73,832.81. After adjusting the jury's damage award for defendant's comparative fault, the trial court entered judgment in the total amount of $4,721,014.12.

Defendant moved for a new trial, arguing that the damages were excessive as a matter of law. Defendant also moved for judgment notwithstanding the verdict, arguing that (1) plaintiff was not entitled to recover annoyance and discomfort damages because he did not occupy the property at the time of the fire, and (2) Civil Code section 3346 did not apply to fire damage, so that plaintiff was not entitled to an award of double the tree damages. The trial court denied both motions. Defendant timely appealed.

DISCUSSION

A. Award of Restoration Costs

1. General Damages Principles

(1) A plaintiff injured by tortious misconduct is entitled to recover damages in an "amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (Civ. Code, § 3333.) (2) For tortious injury to real property, the general rule is that the plaintiff may recover the lesser of (1) the diminution in the...