Anderson v. Glantz
| Decision Date | 07 January 2020 |
| Docket Number | B294112 |
| Court | California Court of Appeals Court of Appeals |
| Parties | JOSEPH ANDERSON, Plaintiff and Appellant, v. WILLIAM GLANTZ et al., Defendants and Respondents. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC568443)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert B. Broadbelt, Judge. Affirmed.
Rovens Lamb and Douglas J. Rovens for Plaintiff and Appellant.
Hanger Steinberg Shapiro & Ash, Jody Steinberg and Nicholas S. Walls for Defendants and Respondents.
____________________
On September 7, 2018 the trial court granted a motion by William Glantz, Phyllis Glantz, and the Glantz Family Trust for summary judgment on the complaint by Joseph and Kathleen Anderson for trespass, negligence, private nuisance, and nuisance based on construction of a spite fence. Joseph Anderson (Anderson) argues the trial court abused its discretion in denying the Andersons' request to continue the hearing on the motion to allow them to correct the evidentiary defects in their opposition papers. Anderson also argues the court should have exercised its discretion to deny the Glantzes' motion for summary adjudication on the Andersons' spite fence cause of action under Code of Civil Procedure section 437c, subdivision (e),1 which gives the court discretion to deny a motion for summary judgment or summary adjudication where the motion is based on the credibility of a statement by the defendant about his or her state of mind. Finally, Anderson contends the court erred in ruling the statute of limitations barred the Andersons' other causes of action.
We conclude the trial court did not abuse its discretion in denying the Andersons' request for a continuance under section 437, subdivision (h), or in declining to deny the Glantzes' motion for summary adjudication on the Andersons' spite fence cause of action under section 437c, subdivision (e). We also conclude the trial court did not err in granting summary adjudication on the Andersons' remaining causes of action and in granting summary judgment. Therefore, we affirm.
The Andersons and the Glantzes owned neighboring residential properties in Rancho Palos Verdes, with the Andersons' property directly west of the Glantzes' property. The Andersons moved into their property between 1984 and 1986. After they moved in, Anderson and his wife Kathleen smelled fungus in the master bathroom. "[W]ith a flashlight and getting a little bit unusual in position," Kathleen saw "mildew" in the "tub area of a wall." Kathleen cleaned the area with bleach every few weeks, but the smell always returned. Anderson hired a "leak company" to investigate the source of the moisture responsible for the fungus, but the company could not locate any moisture and concluded there was no leak. Concerned for their family (Kathleen was pregnant), the Andersons moved out of the property in 1988.
The Andersons did not sell the property, and they occasionally visited it with their children. In 2002 they moved back into the house. The Andersons continued to smell fungus. Thinking an irrigation problem might be the cause of the smell, Anderson hired a contractor to dig up and recoat a planter box and to "completely waterproof[ ] that area." But the situation worsened. In 2011 Anderson noticed the smell had spread to the library next to the bathroom, although Kathleen had noticed the smell there years earlier.
In 2010 or 2012 Anderson dug trenches along the east side of his property near some broken concrete.2 The trenches filled with water, which caused Anderson to believe that water was migrating from the Glantzes' property to his property and that the water was causing mold, mildew, and termite damage.
The Andersons' property has south- and west-facing views of the ocean. In January 2014 the Glantzes replaced a row of 30-foot palm trees on the western boundary of their property with ficus trees. The ficus trees, which are 20 feet tall and border the eastern edge of Anderson's property, are visible from the Andersons' media room, which has a view of the ocean. According to Anderson, the row of ficus trees obstructs his landscape view and "some of" the ocean view. According to William Glantz, he and his wife planted the ficus trees primarily to give themselves some privacy and to beautify their property, not to annoy the Andersons or block their view.
The Andersons filed their initial complaint on January 13, 2015. They alleged causes of action for trespass and negligence based on the water migration, trespass based on a masonry wall the Andersons claimed encroached on their property, andconstruction of a spite fence and private nuisance based on the planting of the ficus trees.
On February 21, 2018 the Glantzes filed a motion for summary judgment or in the alternative for summary adjudication, reserving August 2, 2018 for the hearing on the motion. Among the evidence the Glantzes submitted in support of their motion were excerpts of Anderson's deposition testimony in which Anderson testified he dug the trenches on his property, saw them fill up with "[l]ots of water," and became aware water was migrating from the Glantzes' property in 2010.
The Andersons' opposition was due July 19, 2018, but counsel for the Andersons did not timely file it. Instead, on July 25, 2018 counsel for the Andersons filed an ex parte application to continue the hearing on the motion for summary judgment, claiming he had experienced turnover in his staff and made a scheduling error. The trial court, over the Glantzes' objection, granted the ex parte application and continued the hearing to August 23, 2018, giving counsel for the Andersons until August 9, 2018 to file his opposition to the motion, with the Glantzes' reply due by August 17, 2018.
The Andersons filed their opposition papers on August 9, 2018. In his declaration, Anderson stated that, although he testified in his deposition he dug the trenches on his property in 2010, he actually dug them in 2012. The Andersons also submitted unauthenticated expert reports. The Andersons did not file a notice of errata or any corrections to Anderson's deposition testimony, nor did the Andersons file declarations from the experts who had prepared the reports. On August 17, 2018 the Glantzes filed their reply and objected to the Andersons'expert reports and other evidence the Andersons submitted in opposition to the motion.
At the August 23, 2018 hearing on the Glantzes' motion, counsel for the Andersons asked for another continuance of the hearing for one day to allow him to authenticate the expert reports and to submit corrected deposition pages. Counsel did not bring the corrected pages of the deposition transcript to the hearing, but told the court he remembered Anderson mailed the corrections to an address in New York. When the court observed the Andersons' opposition papers did not include any corrections to Anderson's deposition testimony, counsel for the Andersons stated, "That slipped through my cracks as well." Counsel for Anderson explained it was only when his client "took a look at the reply and the tentative [ruling] did he indicate to me that he had indeed submitted his corrections to a New York address that came with his deposition . . . ."
The trial court denied the Andersons' request for a continuance of the hearing, finding counsel for the Andersons had not satisfied the requirements of section 437c, subdivision (h), for a continuance. The court stated that the case was three and a half years old and that the Andersons "had plenty of time to conduct discovery and obtain evidence to oppose the motion for summary judgment." The trial court also observed it had previously granted an ex parte application by the Andersons to continue the hearing.
The trial court sustained the Glantzes' objections to Anderson's declaration because it conflicted with his depositiontestimony. The trial court also sustained the Glantzes' hearsay and foundation objections to the expert reports. And the trial court excluded as inadmissible hearsay the alleged statement of an unnamed landscaper who, according to the Andersons, planted the Glantzes' ficus trees and said the Glantzes planted them maliciously to block the views from the Andersons' property.
The court granted the Glantzes' motion for summary adjudication on the Andersons' causes of action for trespass and negligence, ruling the applicable three-year statutes of limitations barred those causes of action, which accrued in 2010, more than three years before the Andersons filed this action in 2015. The court ruled that the statement in Anderson's declaration he first saw water in the trenches in 2012 contradicted his deposition testimony he first saw water in the trenches in 2010 and that the Andersons could "not create a triable issue of fact by presenting a declaration which directly contradicts [Anderson's] earlier testimony during his deposition." The court also ruled that the Andersons "failed to submit competent evidence to support the trespass cause of action based on the alleged encroachment of [the Glantzes'] masonry wall" and that, although the Andersons "submitted a narrative from a surveyor," the "evidence is inadmissible because it lacks foundation and is hearsay." The court also granted the Glantzes' motion for summary adjudication on the Andersons'...
To continue reading
Request your trial