Tartre v. City of Poway
Filed 6/29/12 Tartre v. City of Poway CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LEE TARTRE,
individually and as Trustee, etc. et al.,
Plaintiffs, Cross-defendants and
Appellants,
v.
CITY OF POWAY,
Defendant, Cross-complainant and
Appellant;
WEST COAST
ARBORISTS, INC.,
Defendant and Respondent.
D056319
(Super. Ct. No. 37-2008-00076297-
CU-NP-CTL)
APPEALS
from a judgment of the Superior Court of
County, Frederic L. Link, Judge.
Affirmed in part, reversed in part.
These
cross-appeals concern the scope of the City of Poway's (the City) sewer
easement across multiple properties, including one owned by Lee Tartre and her
husband, Don Tartre, and another by Diane Armstrong and Alex Armstrong
(together with Tartre, Plaintiffs).
After Plaintiffs sued the City and West Coast Arborists, Inc. (WCA), a
company the City hired to remove trees on the easement, a jury found the City
was negligent in the tree removal. The
trial court later partially granted Plaintiffs' motion for judgment notwithstanding
the verdict (JNOV), concluding that the City also violated Plaintiffs' civil
rights under 42 U.S.C. section 1983 (section 1983).
The
City appeals, contending the trial court erred in: (1) granting Plaintiffs' motion for JNOV on
the section 1983 claim; and (2) denying its request for an injunction requiring
Tartre to remove a tennis court on its easement. Plaintiffs also appeal, contending the trial
court erred in: (1) denying their motion
for JNOV against the City on their inverse condemnation, trespass and trespass
to trees claims; (2) finding WCA was not liable under section 1983; and (3)
denying their motion for JNOV against WCA on the trespass and trespass to trees
claims.
We conclude the
trial court erred when it granted Plaintiffs' motion for JNOV on the section
1983 claim because substantial evidence
supported the jury's verdict denying this claim. Accordingly, we reverse the judgment on this
claim. In all other respects, the
judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Preliminarily,
we point out that the parties' factual recitations and briefing are of little
assistance to us because their record citations are not supported with
references to the volume and page number of the record where the matter
appears, as required by California Rules of Court, rule 8.204(a)(1)(C). We remind the parties that we are not
required to search the record to determine whether it contains support for
their contentions. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539,
545.) With that admonishment, we
continue with our consideration of this case.
In 1974, before
the City was incorporated, the City's predecessor received an easement for
sewer maintenance over Plaintiffs' properties.
Shortly thereafter, the predecessor quitclaimed most of the easement
area back to the property owners, leaving only a 10-foot wide easement.
In 2002, Tartre
sought approval from the City to build a tennis court on her property. During the application process, Tartre met
with Lisa Mercurio, a planner in the City's Department of Development
Services. On a site plan showing the
proposed location of the tennis court, Mercurio noted the location of the
City's sewer easement. The site plan,
which was part of Tartre's permit application, showed the tennis court
encroaching or abutting the easement.
After City Council members visited Tartre's property, they approved the
permit for the tennis court and Tartre completed its construction in 2003.
In 2007, the
City engaged WCA to clear trees on its sewer easement. To determine the easement area, the City
relied on a mapping system of as-built drawings rather than running a title
search. The City had used this mapping
system for more than 30 years to track and delineate easement boundary
lines. The as-built plans showed the
easement over Plaintiffs' properties was significantly larger than the actual
easement area.
The City sent
written notice to Plaintiffs that it needed to perform work on the
easement. City employees later met with
Tartre and Diane Armstrong at their properties and showed them the trees that
would be removed, which had previously been marked. Plaintiffs consented to allowing the City to
trim or remove trees on the easement.
The City showed
WCA the marked trees and instructed it to cut them down. In accordance with the City's directions, WCA
removed the marked trees. Many of those
trees, however, were outside of the City's easement area.
After the trees
were removed, Tartre complained that the City cleared trees beyond the scope of
its easement. Diane Armstrong also
informed the City that the easement, according to her documents, was much
smaller than the City's records reflected.
At that point, the City did a title search on the properties and discovered
the quitclaim deeds transferring portions of the easement back to
Plaintiffs. The City acknowledged that
it relied on "faulty documents that resulted in [] tree removal . . .
outside the boundaries of the City's sewer easement."
Plaintiffs sued
the City and WCA, alleging trespass to trees, trespass, nuisance, conversion,
negligence, negligent and intentional infliction of emotional distress,
violation of their civil rights under section 1983, and inverse
condemnation. The City cross-complained
seeking, among other things, an injunction requiring Tartre to remove her
tennis court, which encroached on its 10-foot wide easement.
By special
verdict, the jury found that the City was negligent in the tree removal and
apportioned 80% of the negligence liability to the City and 20% to
Plaintiffs. The City's negligence caused
damages to Tartre in the amount of $119,810.40 and to the Armstrongs in the
amount of $67,462.40. The jury found in
favor of the City and WCA, however, on the trespass, trespass to trees, and
section 1983 causes of action. In regard
to the section 1983 claim, the jury found that the City did not intentionally
use and WCA did not intentionally rely upon an outdated document in the tree
removal project. The trial court
separately rendered a decision in favor of the City on Plaintiffs' inverse
condemnation claim and denied the City's request for an injunction, thereby
permitting Tartre to maintain her tennis court on the easement.
Plaintiffs moved
for a new trial and for a partial JNOV, arguing that the evidence did not
support the judgment on the section 1983 claim against the City, the negligence
claim against WCA, the trespass and trespass to trees claims against the City
and WCA, and the inverse condemnation claim.
The court partially granted the motion for JNOV, finding the City was
liable under section 1983 because it "intentionally used a system and
engaged in a policy of using outdated . . . as-built[] [maps]." Accordingly, the court entered an amended
judgment that included the City's liability under section 1983 and awarded
Plaintiffs attorney fees in the amount of $407,138.75.
DISCUSSION
I. The City's Appeal
A. JNOV on Section 1983 Claim Against the City
The
City argues the trial court erred in granting the JNOV motion on the section
1983 claim because substantial evidence supported the jury's findings that this
case involved negligence and not a section 1983 violation. We agree.
A trial court
may grant a JNOV motion if there is no substantial evidence to support the
verdict. (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86
Cal.App.4th 1053, 1057-1058.) In
deciding whether to grant the motion, the trial court cannot weigh the evidence
or assess credibility (Castro v. State of
California (1981) 114 Cal.App.3d 503, 512) and must view the evidence in
the light most favorable to the verdict, disregard conflicting evidence, and
indulge in every legitimate inference to support the verdict. (Paykar
Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal.App.4th 488,
493-494 (Paykar).) "On appeal, we determine de novo whether
there is substantial evidence to support the verdict and whether the moving
party is entitled to judgment in its favor as a matter of law." (Id.
at p. 494.)
Section 1983
provides in pertinent part: "Every
person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress." A municipality can be
held liable as a "person" under section 1983 where its policy or
custom violates constitutional rights or exhibits deliberate indifference to
constitutional rights and thereby causes such a violation. (Monell
v. New York City Dept. of Social Services (1978) 436 U.S. 658, 694;
Cir. 2002) 290 F.3d 1175, 1185-1186.)
The Due Process
Clause is not implicated by negligent acts causing unintended losses. (Daniels
v. Williams (1986) 474 U.S. 327, 328.)
Rather, it protects against "deliberate
decisions of government officials to deprive a person of life, liberty, or
property." (Id. at p. 331, second italics added.) " 'Inadvertent
errors, honest mistakes, agency confusion, even negligence in the performance
of official duties, do not warrant
redress under [section 1983].' " (Galland
v. City of Clovis (2001) 24 Cal.4th 1003, 1034 (Galland); see also Aaitui v.
Grange Properties (1994) 29 Cal.App.4th 1369, 1382-1383 [stating "the
Fourteenth Amendment does not guarantee appropriate bureaucratic
decisions"].)
Here, both sides
engage in a considerable discussion regarding the contours of section 1983
liability. However, the critical issue
is whether substantial evidence supported the jury's findings on the section
1983 claim. The parties appear to agree
that where a policy or custom is not unconstitutional on its face, section 1983
liability requires more than mere negligence; rather, it requires deliberate
indifference or a deliberate flouting of the law.
The jury found
that the City was negligent, but in regard to the section 1983 claim, it found
the City did not "intentionally
use an outdated document to plan [the] tree removal project." (Italics added.) Indulging all inferences in favor of the
verdict, as we must, this finding is tantamount to a determination that the
City did not make a deliberate
decision to deprive Plaintiffs of their property. Thus, we turn to whether the finding is
supported by substantial evidence.
Plaintiffs
contend that the use of the outdated as-built plans constitutes substantial
evidence of the City's deliberate indifference to the rights of property
owners. We are not persuaded that the
City's use of the as-built plans was a deliberate decision to deprive Plaintiffs
of their rights such that it rises to the level of a section 1983 violation
because there was evidence from which the jury could have concluded that the
City's conduct was unintentional negligence.
Brad Voorhees,
who was in charge of the tree trimming project for the City, testified that
when he undertook to determine the easement boundary lines, he relied on
as-built maps and believed the easement on Plaintiffs' properties extended 10
feet north and approximately 50 to 60 feet south of the sewer main. He did not learn that the easement was much
narrower until the project was completed.
Similarly, David Vigliotti, who was at the site supervising the tree
removal for the City, stated that he showed Tartre the as-built plans and
believed that was the only information the City had regarding the easements. Tom Howard, the City's Public Works Utilities
Manager, testified that he was unaware of the narrowed scope of the easement
until after the project was completed.
"When
reviewing the validity of a judgment notwithstanding the verdict, an appellate
court must resolve any conflict in the evidence and draw all reasonable
inferences therefrom in favor of the jury's verdict. [Citations.]" (Henrioulle
v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 515.) Here, we conclude the jury could reasonably
infer from the evidence that the City's actions were not deliberate and were
not intended to harm Plaintiffs. Rather,
the City's actions amounted to a mistake.
While the City's use of the as-built plans was somewhat inept and proved
to be faulty, it did not amount to a deprivation of Plaintiffs' constitutional
rights. Inadvertent errors, honest
mistakes, and even negligence do not give rise to section 1983 liability. (Galland,
supra, 24 Cal.4th at p. 1034.) Accordingly, we must reverse the JNOV on
Plaintiffs' section 1983 claim.
B. Injunction
The
City challenges the trial court's denial of its request for an injunction
requiring Tartre to remove her tennis court from the sewer easement. Specifically, the City argues the trial court
was required to evaluate the relative hardships between the parties, but
instead relied on the doctrine of equitable estoppel. We reject the City's contentions, and uphold
the denial of the injunction.
1.
The Relative Hardship Doctrine
It is well
established that a trial court has discretion to issue a mandatory injunction
ordering removal of a structure that encroaches on the plaintiff's property or
other rights. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572
(Warsaw); Christensen v. Tucker (1952) 114 Cal.App.2d 554 (
removed, the court has discretion to deny a mandatory injunction if the
equities show an injustice would result if the injunction were granted. (Warsaw,
at p. 572; Hirshfield v. Schwartz
(2001) 91 Cal.App.4th 749, 758-759 (Hirshfield).)
In
Hirshfield, the court of appeal
labeled this process of evaluating the equities the "relative
hardship" doctrine:
"California courts have long applied the relative hardship doctrine
in determining whether to grant an injunction to enjoin a trespass by
encroachment on another's land.
[Citations.] Under this doctrine,
once the court determines that a trespass has occurred, the court conducts an
equitable balancing to determine whether to grant an injunction prohibiting the
trespass, or whether to award damages instead." (Hirshfield,
supra, 91 Cal.App.4th at pp.
758-759.) Undertaking this analysis, the
court begins with the premise the party who has encroached on the servient
owner's right is a wrongdoer, and that doubtful cases should be decided in the
servient owner's favor. (
In
rejected a substantial line of authority suggesting that, where a trespass was
shown, a court had no discretion to deny a mandatory injunction compelling
removal of the encroaching structure. (
the trier of fact to deny such an injunction in certain cases, holding the
court must find the following factors:
"1. Defendant must be
innocent—the encroachment must not be the result of defendant's willful act,
and perhaps not the result of defendant's negligence. In this same connection the court should
weigh plaintiff's conduct to ascertain if he is in any way responsible for the
situation. 2. If plaintiff will suffer irreparable injury
by the encroachment, the injunction should be granted regardless of the injury
to defendant, except, perhaps, where the rights of the public will be adversely
affected. 3. The hardship to defendant by the granting of the
injunction must be greatly disproportionate to the hardship caused plaintiff by
the continuance of the encroachment and this fact must clearly appear in the
evidence and must be proved by the defendant." (Id.
at pp. 562-563.)
Following
Court summarized the test as follows:
" '[W]here the encroachment does not irreparably injure the plaintiff,
was innocently made, and where the cost of removal would be great compared to
the inconvenience caused plaintiff by the continuance of the encroachment, . .
. the equity court may, in its discretion, deny the injunction and compel the
plaintiff to accept damages.' " (Brown
Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858, citing
"When the court finds, however, that there is [irreparable] injury
or that the defendant was not innocent, it should grant an
injunction." (Brown Derby, at p. 858.)
2.
The Trial Court's Ruling
The
trial court stated that the City "should be equitably estopped from
seeking the removal of the tennis court because of its previous actions in this
case[,] because it allowed it, it permitted it, and approved it." Challenging this finding, the City argues the
trial court erred in relying on the doctrine of equitable estoppel because it
was not supported by the evidence and instead should have undertaken an
analysis under the relative hardship doctrine.
Although
the trial court termed its holding as one based on equitable estoppel, it
appears the trial court utilized the relative hardship doctrine. During the hearing on the matter, the court
considered and weighed each of the Christensen
factors. In regard to the first
factor of Tartre's innocence and the City's responsibility for the situation,
the trial court found that Tartre "jump[ed] through all of the hoops"
to obtain a permit for the tennis court and the City approved it with knowledge
of where the sewer line was located. As
to the second factor concerning whether the City would suffer irreparable
injury if the encroachment was not removed, the Court found that the City must
have another way to access the sewer pipes and that in the case of an
emergency, it would be in Tartre's best interest to allow access to the sewer
line. The trial court's findings on the
second factor are also relevant to the third factor concerning the hardships to
the parties. In addition, relative to
the third factor, the trial court stated that it would be unfair to require
Tartre to remove the tennis court after the City approved it and she spent a
significant sum of money constructing it.
3. The
Evidence Supported the Trial Court's Decision
The evidence
showed that Tartre was innocent and that the City was responsible for creating
the encroachment on its easement. Tartre
sought approval from the City to build the tennis court and met with Mercurio
several times at the property. Mercurio
had knowledge of the sewer easement and noted its location on a site plan
showing the proposed location of the tennis court. City Council members also visited Tartre's
property before approving the permit for the tennis court. Based on this evidence, the City is hard
pressed to argue that Tartre is more culpable than it in creating the
encroachment. Even if Tartre had notice
of the easement, the City did as well and approved the tennis court regardless
of the sewer location. Thus, the first
Tartre.
On the second
factor, there was conflicting evidence regarding the City's need to access the
sewer line from Tartre's property.
Although Howard testified that the City was unable to conduct a full
cleaning and video inspection of the sewer line because it could not access a
manhole on Tartre's property, he also stated that for routine maintenance and
ordinary cleaning and video inspection, the City could avoid the manhole on Tartre's
property. Based on this evidence, we
cannot conclude that the City will suffer irreparable injury if the injunction
is not granted.
Lastly, in
regard to the hardships to the parties, the City has not pointed to any
evidence other than its alleged inability to maintain the sewer line. As we have already stated, the evidence in
this regard was conflicting and Howard stated that routine maintenance was
possible without accessing Tartre's property.
Tartre, on the other hand, would lose the value of her tennis court if
the injunction was granted. Accordingly,
we do not find that that balancing of hardships weighs in the City's favor.
Based
on the evidence and the trial court's findings, we conclude the trial court
properly denied the City's requested injunction against Tartre.
II. Plaintiffs' Appeal
A. Claims Against the City
Plaintiffs
argue the trial court erred in denying their motion for JNOV on their inverse
condemnation, trespass and trespass to trees claims against the City. We disagree.
1.
Inverse Condemnation
"[I]nverse
condemnation actions implement the constitutional rule that private property
may not be 'taken' (U.S. Const., 5th Amend.) or 'taken or damaged' (Cal.
Const., art. I, § 19) for public use without just compensation." (San
Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893,
939-940.) "[I]n order to prove the
type of governmental conduct that will support liability in inverse
condemnation it is enough to show that the entity was aware of the risk posed
by its public improvement and deliberately chose a course of action—or
inaction—in the face of that known risk."
(Arreola v. County of Monterey (2002)
99 Cal.App.4th 722, 744.)
"Where
damage results from the acts of employees, and not from a policy decision, there
is no taking. Recovery, if any, lies in
a tort action, such as negligence.
[Citation.] In the case of
alleged shoddy maintenance, as here, it is the plan of maintenance which must be unreasonable to establish a
taking. Poor execution of a maintenance plan does not result in a taking. [Citations.]" (Paterno
v. State of California (1999) 74 Cal.App.4th 68, 87.)
Here, we agree
with the trial court that the City's actions amounted to poor execution of a
maintenance plan, which does not result in a taking. The evidence showed that the City's plan in
this case was to clear trees on its sewer easement. The plan itself was not negligent. Rather, it was the way that City employees
executed the plan that caused the destruction of trees on Plaintiffs' properties. Because negligent execution of a plan does
not result in inverse condemnation, we conclude the trial court properly denied
Plaintiffs' motion for JNOV on this issue.
2.
Trespass
"The
essence of the cause of action for trespass is an 'unauthorized entry' onto the
land of another. Such invasions are
characterized as intentional torts, regardless of the actor's motivation. Where there is a consensual entry, there is no
tort, because lack of consent is an element of the wrong. 'A peaceable entry on land by consent is not
actionable.' " (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d
1, 16-17.) However, "[a] trespass
may occur if the party, entering [land] pursuant to a limited consent, i.e.,
limited as to purpose or place, proceeds to exceed those limits by divergent
conduct on the land of another." (
230 Cal.App.3d 1125, 1141.)
Here,
the jury found that the City negligently, recklessly or intentionally entered
Plaintiffs' properties, but did so with Plaintiffs' permission. Plaintiffs argue that the trial court should
have granted their motion for JNOV on the trespass claim because while they
consented to allowing the City to remove trees on the sewer easement, the City
exceeded the scope of that consent by removing trees that were not within the
easement area.
Viewing the
evidence in the light most favorable to the jury's verdict and indulging all
legitimate inferences to support the verdict, as we must (Paykar, supra, 92
Cal.App.4th at pp. 493-494), we conclude there was substantial evidence to
support the jury's finding. Plaintiffs
signed a consent form authorizing the City "to trim and/or remove trees to
access City sewer utilities." Even
if the scope of that consent was limited to trees within the easement area,
City employees also met with Tartre and Diane Armstrong at their properties and
showed them all of the trees that would be removed, which had previously been
marked. Plaintiffs did not object to the
scope of the project. Based on this
evidence, the jury could have reasonably inferred that Plaintiffs consented to
the City's entry onto their properties.
Thus, the trial court did not err in denying Plaintiffs' motion for JNOV
on the trespass claim.
3. Trespass to Trees
In addition to
the common law principles generally governing the tort of trespass, the
Legislature has enacted a statute to augment the amount of damages to be
awarded when a trespass results in damage to trees. In that regard, Civil Code section 3346, subdivision
(a), provides: "For wrongful
injuries to timber, trees, or underwood upon the land of another, or removal
thereof, the measure of damages is three times such sum as would compensate for
the actual detriment, except that where the trespass was casual or involuntary,
or that the defendant in any action brought under this section had probable
cause to believe that the land on which the trespass was committed was his own
or the land of the person in whose service or by whose direction the act was
done, the measure of damages shall be twice the sum as would compensate for the
actual detriment . . . ." In order
for this damages provision to apply, plaintiff must prove that he did not give
permission to cut down the trees or that defendant exceeded the scope of
plaintiff's permission. (CACI No. 2002.)
Here,
the jury found that the City had permission to cut down trees on Plaintiffs'
properties. Plaintiffs argue that the
City exceeded the scope of their permission by cutting down trees that were not
on the easement. However, as with the
trespass claim, we find substantial evidence in the record to support the
jury's finding. Based on Plaintiffs'
written authorizations and their conduct when City employees showed them the
marked trees that would be removed, the jury could reasonably infer that the
City had Plaintiffs' consent to cut down the trees. Accordingly, we reject Plaintiffs' argument
that the trial court erred in denying their motion for JNOV on the trespass to
trees claim.
B. WCA's Liability Under Section 1983
Plaintiffs
argue the trial court erred in finding that WCA was not liable under section
1983 along with the City. Specifically,
they claim WCA was liable under that section because it was a "state
actor." However, Plaintiffs waived
this contention by failing to raise it below.
(Cabrini Villas Homeowners Assn.
v. Haghverdian (2003) 111 Cal.App.4th 683, 693.) Plaintiffs never argued in their new trial or
JNOV motions that WCA was liable under section 1983. Rather, Plaintiffs' section 1983 arguments
were limited to the City's liability and the arguments as to WCA were focused
on negligence. Further, we note that
although Plaintiffs argue that "the trial court determined as a matter of
law that WCA did not share in [the City's] section 1983 liability,"
Plaintiffs did not provide any citations to the record for this finding.
In
any event, we reject Plaintiffs' argument that WCA was liable under section
1983 as a state actor. In order to be a
state actor for purposes of section 1983 liability, the private party must be a
"willful participant" in the challenged conduct. (Dennis
v. Sparks (1980) 449 U.S. 24, 27-28.)
Having found that the City was not liable under section 1983 (
be liable under that section as a state actor.
This is, especially true in this case where WCA did not have any
involvement in selecting which trees would be removed and cut down only those
trees identified by the City. Without
any knowledge of the alleged wrongdoing or responsibility for determining the
scope of the easement, we conclude WCA was not a "willful
participant" for purposes of section 1983 liability and thus was not a
state actor.
C. Trespass and Trespass to Trees Claims Against
WCA
Plaintiffs
argue the trial court also erred in denying their JNOV motion against WCA on
their trespass and trespass to trees claims.
They essentially make the same arguments that they did regarding those
claims against the City. Having found
that the trial court properly denied the JNOV motion as to the City (
reach a different result with respect to WCA.
DISPOSITION
The
judgment is reversed on Plaintiffs' section 1983 claim against the City and the
jury's verdict on that claim is reinstated.
The judgment is also reversed with respect to the attorney fee award to
Plaintiffs based on their section 1983 claim.
In all other respects the judgment is affirmed. The parties shall bear their own
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
