Postag v. Boggs
Filed 1/4/13
Postag v. Boggs CA1/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION FOUR
ANN POSTAG, Individually and as Trustee, etc.,
Plaintiff and
Appellant,
v.
LOIS BOGGS,
Defendant and
Respondent.
A134138
(Alameda County
Super. Ct. No.
RG09454220)
In this appeal, appellant Ann Postag
(Postag), individually and as trustee of the Bette B. Postag Trust, seeks a
remand to the trial court for additional damages to adequately compensate for
the market value of her home. We affirm.
Postag and respondent Lois Boggs
live on Presley Way in the Rockridge District of Oakland, across the street and a few
houses apart from one another. Helene
Miller lives next door to Postag.
In October 2003 Boggs parked her
truck in front of Postag’s house. Postag
asked Boggs to move the truck but she refused.
Postag asked “Why not?†and Boggs responded, “Well, you know what you
did.†After the truck had been there for
about two weeks, Postag asked Ellen Koch, Boggs’s domestic partner, to
intervene. Koch said the truck would be
removed the next day—it was—and told Postag to call her if there were any
further incidents. Postag learned
through others that Boggs believed Postag had reported her for blight.
Around this time Postag began keeping
an “harassment log†detailing
incidents occurring on Presley
Way involving neighbor
Boggs. Incidents recorded in the 16-page
log included leaving furniture on her property; putting campaign signs on her
property and car; putting a sticky, smelly liquid on the porch and other areas
and food waste and debris on the lawn; and spreading feces on the door handle
of her car and her door knob. Many
incidents occurred “under the cover of darkness.â€
In late 2007 Postag purchased and
installed a surveillance camera to monitor nighttime incidents. She spent over 1,300 hours watching
videotapes; at trial she presented less than 15 minutes of relevant footage.
During this time Postag never
approached Koch again, never asked Boggs to stop the offending behavior
although she was the prime suspect, and never contacted the police or the
district attorney.
Postag sued Boggs in May 2009 for
trespass and nuisance.
name="_ftnref1" title="">[1] Before Boggs retained an attorney she sent a
letter of apology to Postag, admitting many of the offending acts, as well as a
letter seeking reconciliation. She also
left a bag of plums on Postag’s doormat.
Prior to the commencement of trial,
the court issued rulings on defendants’ motions in limine, including a ruling
that Postag would be limited to allegations set forth in the complaint, and
noting that she never requested leave to amend to allege additional instances
of trespass, nuisance, and damages. Therefore, the court limited the scope of
trial to certain specified incidents and related evidence.
In Boggs’s opening statement,
counsel admitted 24 of the allegations and indicated Boggs was remorseful and
embarrassed by her own conduct. Thus the
issue at trial was the amount of damage Postag sustained.
At trial Postag testified that
during the timeframe between 2005-2007, the value of her house was “[c]lose to
$1.2 million . . . based on the quality of the property, location of the
property, and the superior finishes.â€
She said she formed the intent to sell the property, but never listed it
because of the “activities that were happening with Ms. Boggs in the
middle of the night, as well as Ms. Miller hadn’t complied with all of the
terms of the earlier litigation with her,[
and I was uncomfortable putting the house on the market for those
reasons.†Postag posited that the value
of her house declined to $875,000 at the end of 2007 and was worth about
$775,000 in August 2011. She sought
damages based on the diminution in value that occurred because she was
precluded from selling at the top of the market in 2007 due to “the ongoing
need to make the disclosure about Ms. Boggs’ activity and the fact that Miller
is still unresolved.â€
Boggs’s expert, Alison Teeman, is a
licensed general appraiser with a focus on
residential real property. She
testified that the value of the property had declined between $95,000 to
$100,000 from the peak of the market to the time of trial, based on market
trends. Teeman has appraised many
properties where the issue of neighbor disagreement arises. She explained that whether a dispute impacts
the value of a property depends on “if it’s going to be an ongoing problem.†Where it is the seller of the property who is
complaining, “it seems likely that with that sale the problem will cease to
exist.†Teeman did not think the acts of
harassment involved in this case would have a significant impact on the final
selling price of the property. In fact,
the effect of the dispute would be of a magnitude within the margin of error
inherent in the appraisal function.
Postag also testified that she
suffered emotional distress, including upset stomach, which got to the point
“where it was every morning I was waking up with dreadedness [
find and what I was going to have to clean up.â€
As well Postag experienced anxiety and anger, and was “very hurt that
these things were happening to me.â€
There was an ongoing level of stress and apprehension; the stress
affected her right hand such that it was cracked, swollen, and bleeding. The feces incident was upsetting and
“ill-making.†Postag did not claim any
past or future medical expenses, nor did she see a therapist, healthcare
practitioner, or professional, or life coach because of the acts of Boggs.
The trial court ruled that all
claims for trespass and nuisance against Boggs based on acts occurring prior to
May 26, 2006, were barred by the three-year statute of limitations for trespass
and nuisance. It further concluded that
Postag did not sustain her legal obligation to mitigate damages, noting that
she “did nothing to stop Boggs other than one successful telephone call to
[Koch].†The court entered judgment in
favor of Postag in the amount of $1,500 in actual damages, $1,500 for annoyance
and emotional distress, and $3,000 for malice.
The actual damages award was based on “the totality of the
circumstances,†the amount tied to what would be reasonable to compensate a
laborer to clean up the various messes.
With respect to Postag’s claim that Boggs’s actions caused her property
to lose value, the court found she “never made any affirmative steps to sell
her Home and her opinions as to the potential loss were not credible and based
upon speculation. Further, the evidence
was persuasive that in the Rockridge neighborhood real estate market, the
Boggs would not have had a significant impact on a potential buyer. No evidence was proffered that other
neighbors were experiencing the same issue with Boggs.â€
As to emotional distress and
punitive damages,
title="">[3] the court concluded that
while Postag did not mitigate, that did not excuse Boggs for her actions. Therefore, Postag should be awarded a
reasonable amount to compensate her for the annoyance and emotional distress
suffered and to deter Boggs.
Nonetheless, the court viewed Postag’s demand as “inflated,†revealing
“that greed, more than distress or outrage, fueled this litigation. Had significant emotional distress been at
the core of this dispute, a reasonable person would have moved sooner to file
suit, to seek help from the police or the district attorney or from the Court’s
expedited and routine civil harassment calendar. Had Plaintiff been motivated by anything other
than anger and greed and the desire to punish, relief could have come years
ago. . . . [T]his court will not be used
as a mechanism to line one’s pockets with cash because of the childish,
pathetic conduct of an infirmed neighbor.â€
Finally, the court issued a
restraining order to stop harassment protecting Postag from further contact
with Boggs for a period of three years.
This appeal followed.
As Postag remarks at the outset, she
appeals the judgment only insofar as it awarded her insufficient damages. However, to the extent she challenges the
sufficiency of the evidence as to the emotional distress and actual damages
awards, these claims are waived for failure to move for a new trial on the ground
that damages were inadequate. A litigant
may not raise a claim of inadequate or excessive damages on appeal unless the
error was first urged in a timely motion
for new trial. (Code Civ. Proc.,
§ 657, subd. (5); Greenwich S.F.,
LLC v. Wong (2010) 190 Cal.App.4th 739, 759.) “ ‘The theory is that trial courts are
in a better position than appellate courts to resolve disputes over the proper
amount of damages. [Citations.]’ ‘A failure to timely move for a new trial
ordinarily precludes a party from complaining on appeal that the damages
awarded were either excessive or inadequate, whether the case was tried by a
jury or by the court. [Citation.] The power to weigh the evidence and resolve
issues of credibility is vested in the trial court, not the reviewing court.’
†(Ibid.)
Where, as here, the court awards
damages in a cause tried without jury, on a motion for new trial the court may
“change or add to the statement of decision, modify the judgment, in whole or
in part, vacate the judgment, in whole or in part, and grant a new trial on all
or part of the issues, or, in lieu of granting a new trial, may vacate and set
aside the statement of decision and judgment and reopen the case for further
proceedings . . . .†(Code Civ.
Proc., § 662.)
Failure to move for a new trial,
however, does not prevent a party from asserting error in the trial of issues
related to damages such as erroneous evidentiary rulings, instructional errors,
or the failure to apply the correct measure of damages. (Greenwich
S.F., LLC v. Wong, supra, 190 Cal.App.4th
at p. 759.)
Postag did not move for a new trial
below on the matter of inadequate damages, and hence she cannot complain of the
same on appeal.
A. Emotional
Distress Damages; Mitigation
Postag’s assertion that the emotional damages award was inadequate
is based largely on the evidence adduced at trial and the inferences therefrom,
and thus should have been addressed in a motion for new trial. Clearly, the trial court doubted Postag’s
credibility on the issue of the extent of emotional distress suffered,
questioning Postag’s motives and delay in seeking relief. The trial court is the proper venue to
resolve disputes about such credibility determinations.
Nonetheless, whether the doctrine of
mitigation was misapplied raises a legal question which is properly before this
court. The trial court cited
support of its ruling that Postag did not sustain her legal obligation to
mitigate damages. There, the Bezeneks’
teenage sons made unauthorized use of the carrier’s access and authorization
codes to make long distance phone calls without paying for them. The carrier quickly learned of the hacking
and thereafter identified the Bezeneks’ home as the source. However, it never contacted or complained to
the Bezeneks after the hacking episode and instead filed suit for damages. The teenagers again hacked the system and
overburdened it such that some subscribers were denied access to phone
lines. (Id. at p. 1564.) At trial,
the father testified that he would have stopped the hacking immediately had he
been advised of his children’s activities.
Nevertheless the trial court awarded damages for both events. Reversing, the reviewing court held the
Bezeneks were not liable for damages related to the second incident, because
the simple expedient act of picking up the telephone and calling the family or
sending a letter would have averted the second episode. (Id.
at pp. 1568-1569.)
In the case at hand, Boggs’s partner,
Koch, orchestrated, upon Postag’s request, the moving of Boggs’s truck in 2003
and told Postag to call her if there were further difficulties with Boggs. This was evidence of a possible course of
mitigation which Postag did not pursue.
Instead, for nearly six years she kept a painstaking journal of
accumulating incidents, purchased a video system and watched hundreds of hours
of videotapes, and then brought suit.
The doctrine of mitigation in the context of this dispute tasks Postag
with making some reasonable effort to protect her own interest in the quiet
enjoyment of her home and property, such as a phone call to Boggs, Koch, or to
a public agency. This she failed to
do. The trial court did not misapply the
doctrine of mitigation.
It is also apparent that while the
trial court did charge Postag with failure to mitigate, in this context the
failure to mitigate reflected the trial court’s distrust of Postag’s claim to
have suffered significant emotional distress.
Again, this is a credibility issue.
The trial court, viewing the totality of circumstances, determined that
the demand for emotional distress damages was inflated, revealing greed, anger,
and the desire to punish more than distress or outrage. In the last analysis, the trial court’s assessment
of damages was based on its view of the evidence and in particular the
credibility of Postag. The power to
weigh evidence and resolve credibility issues is vested in the trial court, not
the reviewing court.
B. Diminution
in Value of Postag’s Home
Postag
is adamant that the trial court erred in failing to award her approximately
$425,000, representing the reduction in value of her home which she ascribes to
“the ongoing but intermittent harassment of Boggs.†She argues that one is not required to sell a
house or even list it for sale in order to recover damages under these
circumstances. Postag misses the
point. Again, these matters go to
credibility. The court was not persuaded
that Postag intended to sell her home, noting that she took
and her opinions as to potential loss were not credible and based on
speculation. These matters should have
been, but were not, addressed in a motion for new trial.
In any event, the trial court
further concluded, based on the evidence, that in the Rockridge market, the
personal conflict between Postag and Boggs would not have a significant effect
on a potential buyer. In other words,
the court weighed and gave credence to Teeman’s expert testimony (described
above) on the issue of proximate cause, another example of a factual matter
that should have been resolved through a motion for new trial.
C. Amendment
to Conform to Proof
In her opening brief, Postag comments that the trial court
“improperly†limited her damages to items identified in the complaint, rather
than allowing the pleadings to be conformed to proof after presentation of
evidence. Prior to trial the court did
limit Postag to the allegations in the complaint, noting that Postag never
requested leave to allege additional instances of trespass, nuisance, and
damages. Nothing in the record indicates
that Postag objected to this ruling or proffered any additional such instances
at that time.
title="">[4] In any event, Postag has provided no details
as to how she would have amended the pleadings and thus has failed to carry her
burden of affirmatively showing reversible error on this point. (In re
Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278; see also
(2011) 194 Cal.App.4th 939, 956.)
We affirm the judgment.
_________________________
Reardon,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Rivera, J.
name="_ftn1" title=""> [1]
In December 2009, Postag named Helene Miller as a Doe defendant on allegations
that Boggs was acting as Miller’s agent and the two were coconspirators for
each of the alleged acts. The court
granted Miller’s motion for judgment pursuant to Code of Civil Procedure
section 631.8.
name="_ftn2" title=""> [2]
Postag sued Miller twice.
