Laurance v. Lopez

Filed 8/19/09 Laurance v. Lopez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Stanley Weisberg, Judge. Affirmed.

Law Office of Rick Gaxiola and Rick Gaxiola for Defendants and Appellants.

Azema Law Group and David M. Azema for Plaintiff and Respondent.

______________________

Appellants Edward Lopez (Lopez), Jose Luis Ordonez (Ordonez), and Hortencia Ordonez (all three collectively referred to as Appellants) and Respondent Brandy Laurance were adjoining residential property owners. Laurance sued Appellants for property damage allegedly caused by Appellants renovations to their property. A bench trial resulted in a $47,775 judgment in favor of Laurance and against Appellants jointly and severally. Appellants contend that the trial court erred in finding them liable, in admitting certain testimony, and in awarding damages. We conclude that the trial courts findings are supported by substantial evidence and that the trial court did not abuse its discretion in admitting testimony. The trial courts award of damages is supported by substantial evidence. We accordingly affirm.

BACKGROUND

Laurance owns property on San Miguel Street in Woodland Hills, California. Laurances property adjoins Appellants property, which is on Don Pio Drive, adjacent to Laurances backyard, which runs along Appellants driveway for about 60 feet. Appellants property is elevated in relation to Laurances property, sloping from about three and a half feet to approximately five and a half feet. Laurance purchased her property approximately five years prior to the commencement of this action, and shortly thereafter, she replaced a chain link fence in the backyard with a wood privacy fence, about a foot and a half in from her property line.

Ordonez purchased the Don Pio property in late 2005, but he never lived there. In January 2006, Ordonez transferred the property to Lopez as security for legal fees Ordonez owed to Lopez, who is an attorney, but Lopez transferred the property back to Ordonez in August 2006.

The house was not in livable condition when Ordonez first purchased the property, so he began major renovations to the house after closing escrow. Ordonez monitored the work being done on the property, despite the transfer of the property to Lopez. Ordonez and Lopezs contractor, Freddy Flores, told Ordonez that he obtained permits throughout the renovation process.

Ordonez testified that he had no work done to the driveway, other than cleaning it and painting it. There were no cracks in the driveway, although he did have an opening installed for water drainage as part of an irrigation system for the landscaping. Around March 2006, Flores installed a small block wall along the property line with Laurances property. The wall was about eight feet long, and its foundation was four or five layers of concrete blocks deep. Ordonez stated that, when he purchased the property and throughout the time he was renovating his property, there was no soil from his property built up against Laurances fence.

One of Ordonezs employees told Ordonez that Laurance complained that someone had placed heavy material or equipment against her fence, causing the fence to tilt and damaging approximately eight feet of the length of the fence. Ordonez instructed his employees, who were carpenters, to repair the fence, but Laurance told them to stop.

Laurance noticed that her fence was no longer straight in April 2006. The fence had buckled, there were gaps in the fence, and some of the boards had popped off completely. When she walked around to see the fence from Appellants side of the fence, she saw that a bunch of soil had fallen over against the fence, and . . . the bottom part of the fence had been pushed, and thats what destroyed the fence. There was no soil along the bottom of the fence when it was first built.

After Laurance discovered the damage to the fence, she called Lopez, who stated that he was the owner of the property and agreed to meet to discuss the damage. However, despite multiple efforts to meet with Lopez, Laurance stated that Lopez never came to any of the arranged meetings. Laurance therefore contacted a surveyor to ensure that the fence was on her side of the property line, which it was, and she contacted several contractors to determine what needed to be done to replace her fence. She was told that she needed a retaining wall, so she retained a contractor to construct the wall.

After Laurance retained an attorney, she and her attorney met with Lopez, Flores, Ordonez, and Lopezs assistant in May or June of 2006. According to Laurance, Lopez offered to have Flores build the retaining wall, but he would not obtain permits to do so. Laurance stated that she needed to have permits for safety reasons. Lopez also agreed to dig up the dirt that had fallen on Laurances property and attempted to fix the fence, but the fence became even more unstable. Lopez then attempted to attach [the] fence to one of these trees and pull the rope backwards to keep the fence more vertical, but Laurance stopped his workers from doing this because [she] wanted to use the fence after the retaining wall was built.

Laurance hired a contractor, Ron Schweiger, in May 2006. Laurance paid Schweiger approximately $45,000 to build a retaining wall to prevent the dirt from coming on to her property.

Laurance sued Appellants, alleging negligence, private nuisance, and trespass, and seeking damages, a permanent injunction, and to establish boundary and quiet title. Lopez filed an answer and a cross-complaint.

A three-day bench trial commenced in November 2007. Richard Dockus, a building mechanical inspector for the Department of Building and Safety, testified that he had inspected the retaining wall built by Laurance. He testified that, when he inspected Laurances property, the elevation difference between her property and Lopezs property required Laurance to obtain permits and to build a wall over three and a half feet high. Dockus stated that, where two adjacent properties have a slope between them, a vertical cut over five feet requires a retaining wall.

Dockus stated that the reason he was called to Laurances property was to inspect the retaining wall and that the footing for the wall was already completed when he first came. When Dockus inspected the wall, he saw a vertical slope greater than five feet with footing dug for the wall. He told Laurance that the wall needed to be moved because there was an eight-foot easement because they did not have permission from Lopez. Dockus also explained to Laurance that she needed an engineering detail for the wall.

Upon further questioning by the court, Dockus stated that, even if the footing had not already been dug, the city would have required a retaining wall between the two properties. The court clarified whether that meant that there should have been a retaining wall there all along, from 50 years ago, and Dockus replied, As far as I know, that is correct. The court further asked Dockus who would have been responsible for building the retaining wall, and Dockus stated that his understanding was that the property that was elevated would have had the responsibility.

Dockus further testified that a retaining wall would have been required because of the weight of the vehicles on the elevated propertys driveway. He stated that, even if Laurance had cut into the slope, the wall would have been the responsibility of the elevated property because its their lot thats posing the imminent danger.

Lopez testified that, when Laurance said that she wanted a retaining wall built, Flores said that it was not necessary and would be much more expensive than the wall Flores proposed to build. Lopez did not recall any discussion regarding permits, although, after being shown the cross-complaint he had filed against Laurance, he stated that Flores proposed building a small wall that would not require permits, in order to reinforce the fence.

Schweiger, the contractor Laurance hired to build the retaining wall, testified that his original contract with Laurance was for $21,770, which was for demolishing the existing wood fence, removing the dirt, building the wall, leveling the concrete pad on the side of the house, and demolishing a tool shed. He further testified that, after they had already started digging, the City required them to excavate a new foundation to move the wall two feet into Laurances property. They were required to give notice to Lopez, stop work for 30 to 45 days until we did not receive any notice from the neighbor, and then resume work. On cross-examination, Schweiger stated that he previously did not know about the 30-day notification of intent to excavate form, which gives notice to adjoining properties. The City further asked Schweiger to put gravel behind the retaining wall for drainage purposes. Schweiger told Laurance that the extra work would cost $12,773.

In August 2006, Laurance hired Vigen Gharibian, a structural engineer, to design the retaining wall. He testified that the five- to six-foot elevation difference between the two properties required a retaining wall in order to keep the soil from falling, and that a wood fence was not capable of supporting the soil. On cross-examination, however, he conceded that he had not been to the property before designing the wall, and that he had relied on information from the architect to conclude that there was a five- to six-foot difference. He did not know, until he actually visited the property, that, because of the slope of the property, the elevation difference decreases to about two and a half feet at one end.

The trial court asked for written arguments and took the matter under submission after the briefs were filed. The trial court entered judgment in favor of Laurance and against Appellants, jointly and severally, in the amount of $47,775.04.[1] Appellants timely appeal from the trial courts judgment.

DISCUSSION

Appellants contend that the evidence is insufficient to support the trial courts finding that they were responsible for the costs of building Laurances retaining wall. Appellants further challenge the admission of the testimony of Dockus and the amount of damages awarded.

I. Sufficiency of the Evidence

[T]he trial courts resolution of disputed factual matters is subject to review under the substantial evidence standard. [Citation.] Under this familiar standard, evidence must be reviewed in the light most favorable to the prevailing party, giving the benefit of any reasonable inferences and resolving all conflicts in favor of the trial courts finding. [Citation.] (Brack v. Omni Loan Co., Ltd. (2008) 164 Cal.App.4th 1312, 1320.) Where, as here, no statement of decision is requested, any conflicts in the evidence are construed in favor of upholding the judgment. (Tyler v. Childrens Home Society (1994) 29 Cal.App.4th 511, 529.)

Viewing the evidence in the light most favorable to Laurance, the following evidence was before the trial court. From the time that Laurance purchased the property and built the wood privacy fence, in approximately 2002, until the time that Appellants began renovating the adjoining property in early 2006, there was no dirt behind Laurances fence. Laurance looked at the fence in August 2005 and did not notice any dirt against the fence. After Appellants began renovations, Laurance saw dirt along the bottom of the fence and noticed damage to the fence. Because the dirt appeared level with Appellants property, it seemed to Laurance that the dirt had accumulated when Appellants were working on their driveway and digging to install landscaping. In addition, one of Ordonezs employees told Ordonez that they had damaged Laurances fence by leaning something heavy against the fence.

Dockus testified that the property that was elevated should have built a retaining wall even prior to the time that he inspected the property. Although Lopez offered to have Flores build a wall, the evidence is that Flores would have built a wall without permits, and that was unacceptable to Laurance. Dockus testified that permits were required for such a wall. Although there was some testimony from Dockus implying that Laurance may have contributed to the problem by excavating prior to Dockuss inspection, the evidence indicates that Laurances fence was not damaged until after Appellants began their renovations.

Appellants contend that causation has not been established. However, Appellants concede that there was a conflict in the evidence as to what caused the damage to Laurances fence. Where there is conflicting evidence, we will infer findings in favor of the judgment, because no statement of decision was requested. (Tyler v. Childrens Home Society, supra, 29 Cal.App.4th at p. 529.) The trial courts finding that Appellants were responsible for the damage to Laurances fence is supported by substantial evidence.

Appellants also argue that Laurances testimony lacks credibility. They contend that, although Laurance initially testified that she did not know whether there was dirt along the fence prior to Appellants renovations, on the following day of trial, she testified that she did see that there was no dirt when she looked at it in 2005. [W]itness credibility is in the province of the trial court. (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1015, fn. 9.) The substantial evidence standard of review requires us to defer to the fact finders assessment of a witnesss credibility because the fact finder was able to observe the witnesss demeanor. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 213.) Appellants have failed to establish that the trial court abused its discretion in assessing the credibility of Laurances testimony.

II. Admission of Testimony

Appellants second contention is that the trial court erred in allowing Dockus to testify because Laurance should have qualified Dockus as an expert witness regarding whether soil slippage or soil subsidence caused the damage to Laurances fence. [T]rial courts have broad discretion in ruling on the admissibility of evidence. (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 265.) The trial courts admission of expert testimony similarly is reviewed for abuse of discretion. (People v. Watson (2008) 43 Cal.4th 652, 692.)

A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. . . . A witness special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony. (Evid. Code, 720.) The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown. [Citation.]. (McCleery v. City of Bakersfield (1985) 170 Cal.App.3d 1059, 1066.)

Dockus testified that he was certified by the City of Los Angeles to inspect all facets of retaining walls. He had been working with the Department of Building and Safety for three and a half years and had worked in the construction field prior to that. Dockus did not have any schooling in engineering, architecture, or soils engineering, but one of his job responsibilities was to determine whether retaining walls were necessary. He followed the guideline of the Department of Building and Safety, requiring a retaining wall where properties have over a five-foot vertical cut between them.

The trial court asked Dockus several questions about his qualifications. Although Dockus may not have had a soils engineering background, he was trained and certified by the City of Los Angeles to inspect retaining walls and determine their necessity. Appellants have failed to establish that the trial courts admission of Dockuss testimony constituted a manifest abuse of discretion. (McCleery v. City of Bakersfield, supra, 170 Cal.App.3d at p. 1066.)

III. Amount of Damages

Appellants final contention is that the trial court erred in awarding any damages and in the amount of damages awarded. Appellants argue that Laurance is not entitled to any damages because they were not responsible for building the retaining wall and the evidence indicates that there was no need to build a retaining wall at all. The evidence is viewed in the light most favorable to Laurance to determine whether substantial evidence supports the trial courts award of damages. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 65.)

Appellants contentions merely rehash the arguments they have already made. As discussed above, the trial courts finding that they were responsible for the costs of building the retaining wall is supported by substantial evidence. Moreover, contrary to Appellants contention, the evidence does not indicate that there was no need to build a retaining wall. Rather, the testimony consistently showed that there was a need for a retaining wall. The only question was whether or not Appellants renovations caused the damage to Laurances fence. [G]iving the benefit of any reasonable inferences and resolving all conflicts in favor of the trial courts finding, we conclude that the trial court did not err in its resolution of the conflicting evidence. (Brack v. Omni Loan Co., Ltd., supra, 164 Cal.App.4th at p. 1320.)

Appellants contend that the damages should have been limited to the cost of restoring the property to its condition prior to the injury. There is no indication in the record that Appellants raised this issue in the trial court. The party appealing has the burden of overcoming the presumption of correctness. For this purpose, it must provide an adequate appellate record demonstrating the alleged error. (Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859.) Appellants have failed to provide an adequate record on the issue to demonstrate the error. We therefore affirm the trial courts damages award. (Id. at pp. 859-860.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

MALLANO, P. J.

JOHNSON, J.

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[1] Appellants stipulated at trial that any liability would be joint and several.