Opinion
NOT TO BE PUBLISHED
Ventura County Super. Ct. No. CIV240255, Glen Reiser, Judge.
Horvitz & Levy LLP, Curt Cutting, Mary-Christine Sungaila, Bradley S. Pauley, James A. Sonne; Benton, Orr, Duval & Buckingham, Bruce Alan Finck for Defendants and Appellants.
Lowthorp, Richards, McMillan, Miller & Templeman, Alan R. Templeman, Dean W. Hazard; Lasher & Lascher, Wendy Cole Lascher, Eric R. Reed for Plaintiffs and Respondents.
COFFEE, J.
Albert Beserra and California Watercress, Inc., (collectively Beserra) appeal an injunction that requires the removal of a rock groin and levee and adjacent arundo vegetation from the Santa Clara River. The trial court issued the injunction after a jury rendered negligence and trespass verdicts in favor of Airport Ranch Co. and its codefendants (collectively Airport Ranch). The jury rejected a nuisance claim. Beserra contends that the jury's rejection of the nuisance claim precluded the court from issuing the injunction; the court lacked the power to compel the arundo removal because the complaint did not request that relief; the injunction usurps and conflicts with administrative agencies' authority; and the court abused its discretion in issuing the injunction for several other reasons. Respondent seeks statutory attorneys fees on appeal. We affirm, grant such fees to respondent, and remand to the superior court.
FACTUAL AND PROCEDURAL BACKGROUND
The parties operate neighboring farms in a floodplain along the Santa Clara River near Fillmore. A floodplain is "the total width of the land that you could expect to flood [in] a 100-year flood [which] could include the bed and banks and lands adjacent to the bed and banks of the [river] channel." The farms along the river near Fillmore have experienced erosion, flooding and damage, particularly along its south side.
Watercress grows on the 260-acre Beserra farm on Telegraph Road, on the north side of the river. Beserra has operated its farm for decades. Downstream from Beserra, on the south side of the river, the 113-acre Airport Ranch grows citrus crops. Its prior owners grew citrus crops for decades, before Airport Ranch purchased the property in 2003.
Land owners along the river use structures called berms or groins, which are forms of levees or revetments, to try to protect their property from erosion, flooding and damage. Groins extend from land and often include rocks. Berms typically consist of soil or river bottom material, bulldozed into place.
Prior to 1982, a fish hatchery adjacent to and north of the Beserra farm installed a rock groin. In 1982, Bessera hired contractors to extend that groin to protect the Beserra watercress beds. Contractors used several hundred truckloads of rock and other material to extend the fish hatchery groin, in a southwest direction, 800 or 1000 feet into the river. The Beserra groin reached a height of 10 feet in places.
In 1985, Bessera installed a berm, at the end of the extended groin, in an east-west direction. Together, the Beserra groin and berm were shaped like a hockey stick. Beserra testified that he did not obtain a permit for the groin or berm, or that he could not recall that he did so.
In 2005, the river flooded twice and damaged 37.85 acres of Airport Ranch. Sixteen of those acres lost so much soil that they can no longer support citrus crops.
In 2006, Airport Ranch filed this action against Beserra, seeking damages and other relief for nuisance, negligence, negligence per se, and trespass. During trial, Airport Ranch presented expert witnesses, including Dr. William Dietrich, a geomorphology specialist, to explain how the Beserra groin and berm interfered with natural processes by trapping sediments and debris that encouraged and allowed vegetation to accumulate. (Hereafter we refer to Beserra's groin and berm as the "groin and levee, " the term used in the injunction.)
Dietrich explained that accumulation of vegetation in the river includes arundo donax, a hardy, fast-growing, invasive, non-native plant. Extensive efforts are required to remove arundo. Arundo invades and degrades local wetland streams and squeezes out native plants and animals. Arundo spreads flames during fires. Because arundo has shallow roots, a major flood can remove an arundo forest from a river.
The Beserra groin and levee and consequent accumulation of vegetation narrowed the river channel by as much as 50 percent, which caused a 40 percent increase in the river's depth and velocity, according to Dietrich. The groin and levee and related vegetation also altered the river course from west to southwest, with increased erosion on the south bank.
Beserra presented several expert witnesses who attributed the 2005 flooding of Airport Ranch to factors other than the groin and levee, including a highway bridge. Beserra presented other witnesses to support his theory that Airport Ranch failed to maintain adequate protection from flood damage.
The jury rejected the nuisance claim and returned verdicts in favor of Airport Ranch on trespass and negligence. It assigned Airport Ranch 33 percent of the responsibility for the harm to its property caused by negligence. It determined that Airport Ranch suffered damages of $1,244,235.
Post-Verdict Rulings
After the jury reached its verdict, Airport Ranch asked the court to enjoin Beserra from maintaining the groin and levee. The court conducted hearings on several dates from July 2008 through mid-September 2008, before issuing an injunction.
In its September 18, 2008, order issuing an injunction, the court stated that the removal of Beserra's groin and levee "would periodically destroy [its] ongoing watercress operations in favor of historic river flow; a farming operation which by virtue of its size alone provides significant economic benefit to the local community." It further stated that the adjoining arundo forest provided "no economic benefit to anyone; [and] jeopardiz[ed] the local environment and the economic rights of cross-river farming operations."
Thus, instead of ordering the removal of the groin and levee, the injunction prohibited Beserra from growing or maintaining arundo anywhere within its property, and required the annual removal of all arundo from its property and the adjacent segment of the river before October 31. It granted Airport Ranch the right to conduct such removal at Beserra's expense if Beserra failed to remove it. The injunction also stated that absent the use of chemical controls, there would be "no need for any party under this order... to be obligated to obtain regulatory approval from the County... or the State[.]"
The injunction specified that "[t]o the extent state agency objections or federal permitting requirements render the application or enforcement of this order problematic, th[e] Court will retain jurisdiction for purposes of its modification, including but not limited to reconsideration of the Court's current refusal to order defendants to remove their rock groin and levee." In addition, the injunction stated that it could be "publicly recorded by [Airport Ranch] as a covenant running with [its] land, and as servitude upon the river parcels; for so long as [Beserra's] rock groin and levee remain standing."
Beserra moved for reconsideration of the injunction. During the October 21, 2008, hearing on that motion, counsel for Beserra indicated that the biggest concern was "the portion of the order that put[] it in perpetuity." Counsel also objected to the "covenant runn[ing] with the land." He further stressed that the forest was "very mixed" and included huge willow trees, and other native species, as well as Artesian fixtures, and a bog. Counsel estimated that the arundo probably comprised no more than 25 percent of the vegetation and that its removal would involve substantial regulatory issues and procedures and multiple agencies. In addition, counsel could not advise a client to comply with provisions of the injunction that could expose them to regulatory penalties.
The court vacated and reissued the same injunction, with a minor modification to specify that the mandated work should begin in 2009. It entered judgment on October 30, 2008. Several state agencies filed a motion to quash the injunction.
Airport Ranch and Beserra filed motions for new trial and judgment notwithstanding the verdict. (Airport Ranch challenged the comparative negligence finding.) On December 31, 2008, the court heard those motions. After allowing counsel to present argument, the court denied the motions for new trial and judgment notwithstanding the verdict and vacated its original injunction. It also signed a "second reissued order granting permanent injunction" on December 31, 2008. That injunction, which was filed on January 7, 2009, is hereafter called the 2009 injunction.
The 2009 injunction enjoins Beserra from "maintaining" its "illegal groin and berm" and mandates a one-time removal of the arundo. Unlike the original injunction, it neither provides that it will operate as a covenant running with the land nor exempts anyone from obtaining regulatory approval. The state agencies took their motion to quash the original injunction off calendar following the filing of the 2009 injunction.
The 2009 injunction provides as follows: "IT IS ORDERED: [¶] Mr. Beserra shall permanently remove the entirety of his artificial rock groin and berm; and the adjacent Arundo forest (including the entire rhizome root mass) on Mr. Beserra's land; on or before October 31, 2009. If not so accomplished, [Airport Ranch is] authorized to enter upon Mr. Beserra's land, at Mr. Beserra's expense, to conduct such remedial work. No mechanical operations shall be conducted within the active channel (i.e., within flowing water). Arundo donax removed by heavy equipment shall be hauled off site and/or buried outside the floodway as defined by FEMA. Any party conducting such work shall use best efforts to minimize loss of native vegetation, including willows and cottonwoods. No mechanical work under this order may be performed during the nesting season of the least Bell's vireo and southwestern willow flycatcher. The parties shall use best efforts to minimize collateral loss of native vegetation, including willows and cottonwoods. Any party performing Arundo removal shall consult with a wildlife biologist in order to minimize any such losses."
DISCUSSION
The Jury Verdict Did Not Preclude the Court From Weighing the Harm and Benefit of the Berm
Beserra argues that "the jury's determination that the berm did not constitute a nuisance precluded the [trial] court from reweighing the harm and benefit of the berm." This argument does not withstand close scrutiny. It is based on the false premise that the jury "necessarily concluded that the... element [of] the balancing of equities... weighed in Beserra's favor [and that] [i]f the jury had found in favor of Beserra on any other element, that finding would have been inconsistent with the jury's finding against Beserra on the trespass claim."
The court instructed the jury regarding the five elements of trespass and the eight elements of nuisance. Nuisance and trespass share several common elements. The equity-balancing element is not the only nuisance element that is not an element of trespass. Unlike trespass, nuisance also requires "that [the] condition created by the defendant's act or failure to act was an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property[;] and that an ordinary person would be reasonably annoyed or disturbed by defendant[s]' conduct." In rejecting the nuisance claim, the jury may have concluded that Airport Ranch failed to prove any of the several unique nuisance elements. Thus, it cannot be said that it necessarily balanced the equities and concluded that they favored Beserra.
The 2009 Injunction Does not Usurp Administrative Agencies' Jurisdiction
We reject Beserra's claim that the 2009 injunction usurps and conflicts with the oversight of multiple administrative agencies. This claim would be more persuasive if the 2009 injunction contained the provision of the earlier injunction purporting to excuse any party from obtaining certain regulatory approvals while complying with the injunction. It does not.
Although the court vacated the original injunction, some of Beserra's arguments appear to challenge the original injunction as well as the 2009 injunction. In its reply brief, Beserra abandoned its challenge to the court's jurisdiction to modify the injunction.
The trial court expressed its willingness to modify the 2009 injunction should the parties encounter regulatory issues. Beserra argues that the court thereby adopted "the role of overseer of both the agencies and the parties in connection with enforcement of the injunctions." We reject this argument because it is based on the speculation or assumption that if the parties seek modification after encountering such issues, the court will oversee the agencies.
We also reject Beserra's argument that the injunctive relief "'pull[ed] the court deep into the thicket' of a parallel court-created enforcement mechanism where a legislatively approved administrative scheme already exists." In so arguing, Beserra relies upon inapposite cases, including Desert Healthcare District v. PacificCare FHP, Inc. (2001) 94 Cal.App.4th 781, 796 and Alvarado v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292, 1298. In Desert Healthcare District, the trial court sustained a demurrer in an unfair competition law case after concluding that there was no unfair competition. In affirming that ruling, the reviewing court observed, in dicta, that judicial intervention would not be appropriate because that case involved "complex economic policy." (Id. at p. 795.) In Alvarado, the trial court declined to try a class action that would require oversight of more than 20 convalescent hospitals' compliance with regulations requiring their provision of 3.2 nursing hours per patient day. In affirming, the reviewing court observed that the trial court otherwise would have been required to "classify employees into different categories including aides, nursing assistants, orderlies, registered nurses, licensed vocational nurses, directors of nursing and licensed psychiatric technicians who perform direct nursing services... and calculate the hours they worked." (Alvarado, supra, at p. 1305)
Here, the trial court did not assume or interfere with administrative agency functions by issuing the 2009 injunction. Unlike the earlier injunction, the 2009 injunction did not purport to excuse compliance with certain regulatory requirements. The administrative agencies took their motion to quash the injunction off calendar after the trial court issued the 2009 injunction.
The 2009 Injunction Does Not Exceed the Scope of the Complaint
Beserra contends that the court lacked power to order Beserra to remove the arundo because Airport Ranch did not seek that relief in its complaint. We disagree.
A party cannot recover on a cause of action not pled in the complaint. (Griffin Dewatering Corp. v. Northern Ins. Co. of N.Y. (2009) 176 Cal.App.4th 172, 179.) In Griffin, the plaintiff could not recover damages on an oral contract that was made after the written contract alleged in the complaint. (Ibid.) In this case, however, Airport Ranch did not receive damages or injunctive relief for any cause of action that was not in the complaint. Airport Ranch alleged negligence and trespass and sought injunctive relief based on those torts. The complaint prayed for an injunction ordering removal of the berm (groin and levee) "so that [Airport Ranch] will not suffer significant injury to the usefulness, economic value and comfortable enjoyment of their property." The court ordered such removal based "[u]pon the jury finding that [Beserra was] liable to [Airport Ranch] for negligence and trespass."
Airport Ranch presented evidence to show that the groin and levee interfered with natural processes by trapping sediments and debris that encouraged and supported vegetation to accumulate. It also presented proof that the groin and levee and the consequent accumulation of vegetation, including arundo, narrowed the river channel, which caused the river's depth and velocity to increase, and altered the river course from west to southwest, with increased erosion on the south bank. Airport Ranch suffered damage as a result of the combined impact of the groin, levee and adjacent accumulation of arundo and other vegetation, and the jury found that Beserra's conduct was a substantial factor in causing that harm. The complaint sought removal of the groin and levee. The evidence linking the groin and levee to the arundo supports the court's decision to order its removal. (See, e.g., Erskine v. Upham (1942) 56 Cal.App.2d 235, 248. ["[W]hen a party comes into a court of equity pleading facts which entitle him to some equitable relief, ... notwithstanding the form of the pleading, [the court] will disregard the specific prayers in order to grant the relief which the proof warrants as within the equities of the entire case"].)
The Court Acted Within Its Discretion in Issuing the 2009 Injunction
Beserra argues that for multiple reasons, the court abused its discretion by issuing the 2009 injunction. We disagree.
"The trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.]" (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) We review the trial court's factual findings under a substantial evidence standard and resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court's order. (Horsford v. Bd. of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.) We exercise our independent judgment as to the law and its application to the ultimate facts found. (Shapiro, supra, at p. 912.)
Beserra argues that the court abused its discretion by awarding injunctive relief and provided Airport Ranch a double recovery where the $1,244,235 damages award fully compensated it. We disagree.
"A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate." (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 646.) Beserra claims that the injunction provides a double recovery, because the amount of the damage award corresponds exactly with the amount that its expert attributed to the lost land, including the decrease in the fair market value of its property and lost future income. In Salton Bay Marina, Inc. v. Imperial Irrigation District (1985) 172 Cal.App.3d 914, 965, the reviewing court concluded that the trial court did not abuse its discretion in denying a preliminary injunction because Salton Bay "received full compensation for the flooded property[.]"
In this case, the damage award is not adequate to prevent the erosion of more acreage from Airport Ranch during future floods. The record suggests that such erosion is probable. Beserra concedes that "[a]bsent an injunction, Airport Ranch might suffer similar flooding of its Clementine orchards again, with the attendant loss of crops and land." The court acted within its discretion in granting injunctive relief to prevent the berm, groin, and additional vegetation accumulation from diverting water and eroding additional Airport Ranch acreage during future floods.
Beserra claims that the trial court abused its discretion by failing to balance the relative hardships of the parties. The record belies its claim.
Before issuing an injunction, a court in equity considers the circumstances, the consequences of granting the injunction, and the equities of the case to determine whether an injunction will be granted. (Thompson v. 10, 000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964.) The trial court expended considerable time and effort in assessing the parties' relative hardships. It allowed Beserra to present evidence in several post-verdict proceedings before issuing any injunction.
Because it recognized that removal of the groin and berm would interrupt Beserra's operation "periodically, " the trial court did not mandate their removal in the original injunction. That injunction required Beserra, its agents, successors and assigns to perform annual arundo removal and further provided that the order could be recorded as a covenant running with its land and as servitude upon the river parcels "for so long as [Beserra's] rock groin and levee remain standing." Beserra vigorously fought the original injunction, and expressed major concerns with those provisions.
In claiming that the court failed to balance the parties' relative hardships, Beserra emphasizes the trial court's observation that its farming operation "[b]y virtue of its size alone, provides significant economic benefit to the local community" and that removal of the berm and groin would eliminate flood protection and "periodically destroy... ongoing watercress operations[.]" Beserra does not, however, argue that their removal would destroy its land or interrupt its operation on any long-term basis. The record contains no suggestion that watercress must be cultivated for several years before it yields productive crops. In contrast, it shows that citrus trees do not yield productive crops for several years.
After hearing the parties' concerns regarding the original injunction, the trial court vacated it. The terms of the 2009 injunction reflect the court's attempt to accommodate some of Beserra's concerns. For example, it lacks any covenant running with the land or "perpetuity" provision, and does not purport to excuse compliance with regulatory requirements. The court properly balanced the equities, including the parties' relative hardships, under challenging circumstances.
Beserra also asserts that the one-time removal of arundo will be futile because arundo roots will be carried downstream from other property, and again accumulate in the same river location. We disagree. According to Dietrich, the arundo and other vegetation that accumulated in that river location (and diverted the river's flow) were able to do so because the groin and levee trapped sediments and debris which supported vegetation growth. The removal of the groin, levee, and the related arundo accumulation, including its root mass, should substantially reduce the growing base in which the fast-growing arundo could thereafter accumulate in the same location. Similarly, the removal of that and other arundo, including its root mass from Beserra's river and land acreage, will reduce significant sources of arundo that will drift to and root in that river location.
In challenging the mandated groin, levee and arundo removal, Beserra further asserts that their removal will require substantial time and work coordinating with and obtaining approval from multiple regulatory agencies. These claims do not require reversal of the 2009 injunction, which provides Beserra the option of allowing Airport Ranch to perform the removal at Beserra's expense. In addition, the trial court encouraged the parties to seek modification of the injunction should they encounter regulatory issues.
We reject Beserra's claim "that the trial court improperly relied on evidence outside the record when crafting the arundo portion of the injunction." This claim concerns the court's reference to negative information concerning arundo from the state Fish and Game Department's internet website, and a United States Geologic Survey Map from a federal internet website. On this record, we cannot find that the court failed to give proper notice of the challenged material by withholding its source or denying the parties an opportunity to challenge its accuracy, as Evidence Code section 455, subdivision (b) requires. In fact, appellant referenced the survey map in a July 31, 2008, trial brief, months before the court first issued its original injunction. Even if the cited instances were improper, they were not prejudicial. The agency website information was cumulative to the testimony of Courtney, a Fish and Game Department employee, regarding the negative characteristics of arundo. The record does not suggest that the survey map influenced the court's rulings. It heard testimony of multiple witnesses and admitted the parties' exhibits in considering the flow patterns of the river.
Beserra further argues that the 2009 injunction is inconsistent with public policy. Beserra cites the "'common enemy doctrine'" that applies to water drainage cases allowing a property owner to protect against flood waters even to the detriment of others. (Waver v. Bishop (1988) 206 Cal.App.3d 1351, 1353-1354.) The doctrine rested on "the 'generally perceived reasonableness' of actions taken to protect one's property and on a policy of encouraging the preservation of land resources. [Citation.]" (Id. at p. 1357.) The court instructed the jury that "[a] person is negligent if he... does something... or fails to do something that a reasonably careful person would not do in the same situation." The jury's determination that Beserra was negligent defeats its public policy challenge to the injunction.
Attorneys Fees
The trial court awarded Airport Ranch attorneys fees for its trespass claim pursuant to Code of Civil Procedure section 1021.9. Airport Ranch is entitled to recover attorneys fees incurred on appeal for that claim. (See Morcos v. Bd. of Retirement (1990) 51 Cal.3d 924, 927.) The trial court shall determine the appropriate amount of such fees on remand. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1610.)
DISPOSITION
The judgment is affirmed. On remand, the trial court shall determine the appropriate amount of attorney fees that Airport Ranch may recover for the appeal of its trespass claim. Costs on appeal are awarded to Airport Ranch.
We concur: YEGAN, P.J., PERREN, J.