Lee v. Greenridge LCF Association, B211973 (Cal. App. 9/15/2009)

• Decision Date: 15 September 2009
• Docket Number: B211973.
• Court: California Court of Appeals Court of Appeals
• Parties: PETER C. LEE et al., Plaintiffs and Appellants, v. GREENRIDGE LCF ASSOCIATION, Defendant and Respondent.

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PETER C. LEE et al., Plaintiffs and Appellants, v. GREENRIDGE LCF ASSOCIATION, Defendant and Respondent.

B211973.

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

September 15, 2009

Not to be Published in the Official Reports

Appeal from an order of the Superior Court of Los Angeles County, No. BC374283, Ralph W. Dau, Judge. Affirmed.

Lee Law Group, Robert Y. Lee and Kristian R. Meyer for Plaintiffs and Appellants.

Nelson Griffin and Edwin C. Mann for Defendant and Respondent.

TURNER, P. J.

I. INTRODUCTION

Plaintiffs, Peter C. and Jane M. Lee, appeal from a September 17, 2008 order dismissing this action against their homeowners association, defendant, Greenridge LCF Association. Plaintiffs alleged a leak in defendant's irrigation line, which ran beneath their property, damaged their home. The trial court struck the testimony of Avram Ninyo, the sole witness plaintiffs relied on to establish causation. Because there was no evidence the leak caused plaintiffs' damage, the trial court subsequently granted defendant's nonsuit motion and entered the order of dismissal. We conclude plaintiffs have not established an abuse of discretion or reversible error. Accordingly, we affirm the dismissal order.

II. BACKGROUND

In November 2005, plaintiffs noticed excessive water on their property. Upon investigation, it appeared neither their pool nor their irrigation system was the source of the problem. The water receded only when defendant's irrigation line, which ran beneath plaintiffs' property, was shut off and then capped. There was evidence of significant water damage to plaintiffs' residence, garage floor, and pool deck including: a warped hardwood floor in the family room; water damage to the family room carpet; mold in the garage, damaged drywall and base boards; and cracks in the brick and cement pool deck and patio.

Plaintiffs designated Avram Ninyo, a geotechnical engineer, as their sole witness on causation. Plaintiffs' counsel represented to the trial court that Mr. Ninyo would testify connecting alleged water damage to defendant's irrigation pipe. It was undisputed Mr. Ninyo had never visited plaintiffs' property. But his associates at Ninyo & Moore had conducted onsite testing and compiled data. The trial court ruled Mr. Ninyo could not testify concerning that data because he did not have personal knowledge and there was no foundation for the report. The trial court stated, "You do not have a foundation for what was put in the ground, when, what data was taken[,] when recorded, by whom."

Plaintiffs then called as a witness Michael Rogers, an engineering geologist with Ninyo & Moore. Mr. Rogers had performed the onsite testing at plaintiffs' property. Mr. Rogers testified in some detail about those tests. Defense counsel objected to allowing Mr. Rogers to testify about the test results on grounds plaintiffs had not designated Mr. Rogers as an expert witness. After questioning Mr. Rogers outside the jury's presence, the trial court agreed. The trial court concluded, consistent with Mr. Rogers's testimony, that he had relied on his expertise as an engineering geologist in setting up the onsite tests and obtaining data.

Following further discussion about Mr. Ninyo's proposed testimony, the trial court ordered an Evidence Code section 402 hearing. (All further statutory references are to the Evidence Code unless otherwise noted.) The trial court observed, "I want to know what [Mr. Ninyo's] opinions [are] and the basis of the opinion, what it's based on, what data, measurements, soil samples, et cetera [and, i]f it's based on work provided by his staff, I want to know what that is." Mr. Ninyo testified it was his opinion that a leak in defendant's irrigation line running beneath plaintiffs' property caused the damage to the residence. Mr. Ninyo further testified he based his opinion on the sequence of events Ms. Lee had related to him—particularly, that the water in her yard began to recede only when the water flow to defendant's irrigation line was shut off. Mr. Ninyo did not testify he based his opinion on Mr. Rogers's on-site testing and resulting report.

Mr. Ninyo subsequently testified to the same effect before the jury. Mr. Ninyo stated that in reaching his opinion he took into consideration: the facts made known to him by plaintiffs as to the history of their water leak problem; his own expertise and experience in geotechnology; his prior experience in dealing with situations where common association lines have failed and as a result have damaged property; deposition testimony to the effect that, "[defendant's] irrigation line does go north-south and . . . was originally constructed to irrigate the slope which was to be a homeowner's association slope"; and "the ability that you develop as an engineer to do logical thinking, to connect the dots, to look at cause/effect relationships."

On defendant's motion, the trial court struck Mr. Ninyo's testimony. The trial court ruled: "As a matter of law, there is no basis for the witness'[s] opinion. His entire testimony is stricken. [The] jury will be instructed to disregard it." The trial court later granted defendant's nonsuit motion, concluding: "The problem here is causation. It must be established by expert testimony. That has not been done." The dismissal order was subsequently entered. This appeal followed.

III. DISCUSSION

A. Standards of Review

The nonsuit motion resulting in the dismissal order followed the trial court's ruling striking Mr. Ninyo's testimony. A ruling excluding opinion testimony is reviewed for an abuse of discretion. (People v. Curl (2009) 46 Cal.4th 339, 359; People v. Mickey (1991) 54 Cal.3d 612, 688; Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390, 403.) A trial court has broad discretion to exclude unreliable opinion testimony. (People v. Carpenter (1999) 21 Cal.4th 1016, 1061 ["[T]he trial court retains discretion to exclude expert testimony, including hearsay testimony, that is unreliable or irrelevant, or whose potential for prejudice outweighs its proper probative value"]; see Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 704-705 [fire ranger who did not witness fire reported on cause of fire based on others' statements]; Ribble v. Cook (1952) 111 Cal.App.2d 903, 906 [traffic officer's opinion concerning collision based on witness statements].)

Our Supreme Court has explained a nonsuit order is reviewed as follows: "A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff's evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117.) A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor. (Id. at pp. 117-118; Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 395.) [¶] `In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . including every legitimate inference which may be drawn from the evidence in plaintiff['s] favor . . . ."' (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 118, quoting Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583; accord, Ewing v. Cloverleaf Bowl, supra, 20 Cal.3d at p. 395; Estate of Lances (1932) 216 Cal. 397, 400.) [¶] In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. `The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inference and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.' (Mason v. Peaslee (1959) 173 Cal.App.2d 587, 588; accord Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 699; Hughes v. Oreb (1951) 36 Cal.2d 854, 857.)" (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839; accord, Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)

B. Plaintiffs Have Not Demonstrated An Abuse Of Discretion

Plaintiffs contend the trial court abused its discretion when it excluded Mr. Ninyo's testimony. Plaintiffs assert that under section 801, subdivision (b), Mr. Ninyo properly relied on witness statements and data collected by members of his firm, Ninyo & Moore. Section 801 provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] . . . [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." Plaintiffs argue: Mr. Ninyo's opinion testimony was entirely proper because: although he did not personally conduct the onsite tests or collect the data from their real property, the matter was made known to him prior to trial; he analyzed the data and observations in the report prepared as a result of the onsite testing; and it was reasonable for Mr. Ninyo to rely on data obtained by other professionals.

We reject plaintiffs' argument for three reasons. First, plaintiffs have failed to provide an...