Opinion
D077391
11-04-2021
GREGORY ALBERTINI et al., Plaintiffs, Cross-defendants and Appellants, v. ANNE ACEBO-HOULIHAN, Defendant, Cross-complainant and Respondent, JESSE HOULIHAN, Defendant and Respondent.
Lewis Brisbois Bisgaard & Smith and Lann G. Mclntyre, Peter L. Garchie for Plaintiffs, Cross-defendants and Appellants. Gregory M. Garrison and Kevin Thomas Rhine for Defendants, Cross-complainant and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2018-0003732-CU-NP-NC Robert P. Dahlquist, Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith and Lann G. Mclntyre, Peter L. Garchie for Plaintiffs, Cross-defendants and Appellants.
Gregory M. Garrison and Kevin Thomas Rhine for Defendants, Cross-complainant and Respondents.
O'ROURKE, J.
Plaintiffs, cross-defendants and appellants Gregory Albertini and Catherine Albertini appeal from a judgment entered on their complaint against defendants and respondents Anne Acebo-Houlihan and Jesse Houlihan, and on Acebo-Houlihan's cross-complaint arising out of disputes over the parties' adjoining homes. A jury awarded Acebo-Houlihan $500,000 in past and future economic and noneconomic damages on her cross-complaint's claims for nuisance and trespass; after a separate bench trial the court granted injunctive relief in Acebo-Houlihan's favor.
Jesse Houlihan was a named defendant in the Albertinis' complaint but he was not a cross-complainant. We refer to Anne Acebo-Houlihan and Jesse Houlihan together as the Houlihans.
The Albertinis contend: (1) no evidence supports the jury's economic damages award; (2) the economic damages award is duplicative and includes future damages that Acebo-Houlihan did not seek; (3) the evidence is insufficient to support a finding of trespass or nuisance; and (4) the judgment is the result of an unfair jury trial. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUNDS
When reviewing a judgment following a jury trial, "[w]e state the facts in the light most favorable to the jury's verdict, resolving all conflicts and indulging all reasonable inferences to support the judgment."(American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1459, fn. 1; accord, Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 778.)
The Albertinis and Acebo-Houlihan are owners of adjoining homes in Cardiff by the Sea. In 1987, Acebo-Houlihan and her late husband purchased their home, which has a lagoon and white water ocean view. The Albertinis moved into their unit in 2012. Acebo-Houlihan and her now husband Jesse Houlihan reside permanently elsewhere; Acebo-Houlihan used her house on weekends and for family vacations.
Disputes arose between the parties, and in 2018, the Albertinis sued the Houlihans for waste, trespass, nuisance, and breach of covenants, conditions and restrictions (CC&Rs) allegedly governing the properties. In part, the Albertinis alleged the Houlihans damaged common areas, diverted or interfered with utility connections, and tampered with electrical lines and equipment. The Albertinis additionally sought injunctive and declaratory relief.
Acebo-Houlihan filed a cross-complaint against the Albertinis seeking damages for waste, trespass, nuisance, breach of the CC&Rs, restitution and declaratory relief. She alleged, among other things, that the Albertinis had connected their washing machine to her separate water supply line and also watered landscaping for both units from water solely from lines connected and billed to her unit. Further, though the Houlihans later shut off the water to their unit while away and even removed the handle to the shutoff valve, they discovered that it was being turned back on when they were gone. Acebo-Houlihan alleged she sent a cease and desist letter to the Albertinis, but they continued to trespass on the Houlihans' property and access their electric panel and plumbing. She alleged the Albertinis capped off all of the sprinklers to her front landscaping so that the Houlihans had to pay a landscaper to water by hand. She alleged in part that the Albertinis' conduct had permanently diminished and depreciated the market value of her unit, and that she suffered other damages including the loss of ability to sell it, emotional distress, and expenses associated with repairs and investigations.
The matter proceeded to a jury trial on the parties' respective claims, with the Albertinis representing themselves. Days before trial, the court repeatedly admonished the Albertinis that if they did not exchange exhibits with opposing counsel or provide them to the court in advance of trial, they would likely not be able to introduce them during the trial. On the day of jury selection, the Albertinis advised the court they would not be exchanging exhibits with opposing counsel or providing them to the court, stating they would use any exhibits for impeachment. The court again advised the Albertinis that as a general rule they would be prohibited from admitting any exhibits into evidence; that it was highly likely they would not be able to use any exhibits during the trial even while questioning witnesses. The Houlihans' counsel presented the Albertinis with two general verdict forms; the court asked the Albertinis if they had comments or objections on them and both advised the court they did not.
During trial, the Albertinis took the position in part that they had entered common area space as defined in the properties' CC&Rs. For example, Catherine Albertini testified she accessed an area above Acebo-Houlihan's garage by cutting a hole on her side of the garage, stating that "[t]he garage attics are common area."
Acebo-Houlihan testified that from the time she purchased her property in 1987, she had never been aware of any homeowners association or rules governing its use. She historically paid the expenses for her half of the property, including for roofing. Describing her house as a "really a sanctuary," Acebo-Houlihan recounted how she loved going there to relax and spend time with family. Acebo-Houlihan described some of the things that happened after the Albertinis moved in. She testified that Catherine Albertini had turned off breakers to Acebo-Houlihan's house, leaving her alarm disabled and house unsecured, and pried on a water shut-off valve that Acebo-Houlihan had turned off while away from her property. The breaker box was in an area that only the Albertinis could access. After their panel was breached, Jesse Houlihan put a lock on it. Catherine Albertini also put a lock on the breaker box so Acebo-Houlihan could not access it. She refused to provide Acebo-Houlihan or her counsel with the combination.
"[W]hen I'd be going to Cardiff, I'd get off on Manchester [Avenue]. When I would get off on Manchester, this is the place that I'm going to really unwind. I would get butterflies in my stomach when I would see, you know, when I would just see this view and we're going to go here and relax, because the business world, like we all know, can be stressful. [¶] So we just loved going there. We always had family. I'm from a big family. . . . But we all- everybody loved to go to Cardiff. . . . All of my family has been there. All of Jesse's family has came [sic]. It's just a place of family times, walking the lagoon, going to the beach, and just creating great memories . . . ."
Acebo-Houlihan testified that the Albertinis parked their camper van constantly in front of her house, blocking her gate and making it difficult for contractors to enter or care for her front yard. The van posed a tripping hazard due to sprinkler placement. In 2016, she discovered that the Albertinis' washing machine was connected to her unit's water supply. Acebo-Houlihan eventually turned her water supply off, but would find it turned back on while she and her husband were gone. The Albertinis did not correct the situation until June 2017, after Acebo-Houlihan sent a cease and desist letter.
Acebo-Houlihan testified that in September 2017, she discovered that her sprinklers had been capped off by Catherine Albertini. At some point, Acebo-Houlihan installed cameras on her property, which on several occasions caught Catherine Albertini opening the breaker box and shutting off her power, damaging a plant in Acebo-Houlihan's front yard, and vandalizing a sprinkler. They also caught Gregory Albertini peering into their window and front door, at times holding an electromagnetic device. Catherine Albertini trained a spotlight on Acebo-Houlihan's driveway, and also placed spotlights on Acebo-Houlihan's property trained at other neighbors. The Albertinis parked their camper van in Acebo-Houlihan's driveway. According to Acebo-Houlihan, the Albertinis' invasions were "constant" and "stressful."
Acebo-Houlihan explained how the Albertinis' conduct changed her relationship with her Cardiff home: "A place that I have loved going to for 25, 26 years, where I used to get off on Manchester, and I would have butterflies going to this place that I just loved. It's now-you know what, it's become a living nightmare. I don't like going there anymore. I don't enjoy it. I love the property. I love Cardiff. I don't feel comfortable there. I don't feel safe there. [¶] ... [¶] When I get off the freeway now, I get anxiety, ... I get knots in my stomach as I'm pulling around the lagoon because I don't know what I'm going to. Maybe I haven't been there in three weeks. Are my sprinklers going to be capped? Is [Catherine Albertini] going to be crawling around in my attic above my garage? Is my landscape getting ripped out? You know, is my water pried on again? [¶] ... [¶] I mean, it's a living nightmare." She testified the Albertinis were "creeping around my front door, looking in my kitchen window . . . ."
Acebo-Houlihan's counsel asked whether it was fair to say Acebo-Houlihan did not go to the house as often. She replied: "O[h], I never go there as often. And this is my biggest investment I've had since I was 30 years old. I was going to retire there. And I'm going to have to sell it. I need to get out because my health and my husband's health is more important. And you know what, I had one husband die. I'm not going to risk my other husband. I'm going to take a huge loss. I've talked to realtors, and I'm going to take a 2- to $300,000 loss because I need to disclose what these people do. Can you imagine if you're somebody writing a letter to a neighbor saying that 'Anne Houlihan is going to try to electrocute me in my sleep [?'] I mean, I can't live next door to somebody like that. It's going to break my heart because, it's great because it has a low tax basis. Once I get something else, it's just way out of our league because of property taxes and stuff. This is like the loss of a dream. I have my mother and my family coming next month. I have a brother coming here that's never been to California. I can't take them to Cardiff because I don't feel safe there, so why would I expose my family to that. I've thought about renting it. The place across the street rents for $5,000 a month or [$]5, 700. But I can't rent it. How could I put tenants into that? I couldn't do that. My conscience wouldn't let me."
Counsel asked Acebo-Houlihan to give her opinion about the monthly rental value for her home. She testified she could rent her home for a minimum of $5,000 per month; the trial court overruled the Albertinis' objection that the answer was speculation. Counsel then asked Acebo-Houlihan the basis for her opinion; she responded without interruption or objection: "I base that on a rental across the street that's being leased for [$]5, 700. It's a little bigger than mine, but we have a better view. And I've had a real estate agent tell me that it would be at least $5,000 a month." Acebo-Houlihan stated that after disclosing the disputes with the Albertinis, the unit was "not rentable." She testified that for 33 years she planned to live at the Cardiff home after her retirement; she never considered selling her unit before the disputes with the Albertinis arose, but she felt she now had to sell the unit.
Counsel asked: "Without having to make disclosures about your dispute with the Albertinis, how much would the house be worth, in your opinion.
[¶]...[¶]
[Acebo-Houlihan]: [$]1.5 to [$]1.6 million. I did research.
[Counsel]: What did you look at?
[Acebo-Houlihan]: I looked at two or three homes [with] the same square footage as ours that sold in the last three months. Some of them are a little bit bigger square footage and they sold for [$]1.7 [million].
[Counsel]: In your neighborhood?
[Acebo-Houlihan]: Yeah, one on Cambridge [Avenue], one on Manchester, so yeah, same neighborhood.
[Counsel]: In your opinion, after making the disclosures about all the issues you've been dealing with the Albertinis, how much do you think you could sell the house for?
[Acebo-Houlihan]: Probably I would be lucky if I got [$]1.2 [million] after disclosing. I would need to disclose, 'If you own this property, you may be sued by the Albertinis.'" She testified she would also need to disclose "that [the Albertinis] come on to your property, that they creep up onto [sic] your garage attic. I would need to-well, I guess they're entitled to firearms, but- ... [¶] ... [¶] ... I would need-in addition to them suing me, just all the stuff[-]I would need to disclose everything. Otherwise, if I don't, I can get sued."
Acebo-Houlihan stated that regardless of the jury's verdict, she was probably going to sell her house. She continued: "[A]nd it's going to break my heart. It's the loss of a dream, and I'm probably going to sell it because I can't live with this anxiety. I go down, and I have this beautiful place and all these years of working hard, and you look out in the ocean and your stomach is in knots. The ocean doesn't mean anything, you know. So I'm going to have to choose peace and take a loss. Because who's going to want to buy it? Even if I was going to sell it for $300[, 000] less, who will buy it?" The court overruled the Albertinis' objection that this part of Acebo-Houlihan's testimony was speculation.
At the close of the Albertinis' case, the Houlihans moved for a nonsuit on the Albertinis' claims for waste, trespass, nuisance, and breach of covenants. The trial court granted the motion as to waste and breach of the CC&Rs. On the latter claim, the court reasoned there was no evidence of the existence or terms of the CC&Rs.
Following the presentation of evidence, Catherine Albertini sought to introduce two binder of exhibits into evidence (as well as individual papers within the binders), though she admitted she had not given them to the Houlihans' counsel, or to the court or court clerk. The court sustained Houlihans' counsel's objection and excluded the items on grounds they had not been presented to the other side or provided to the court before trial.
While the jury deliberated, the court conducted a bench trial on the parties' respective requests for injunctive and declaratory relief, as well as their equitable defenses. The Houlihans' counsel objected to admission of exhibits proffered by the Albertinis, which the court again sustained on grounds the exhibits were not provided to the court or counsel before trial, and some of the documents lacked foundation or constituted inadmissible hearsay. Acebo-Houlihan testified that despite the existence of CC&Rs, there were no common areas; no homeowners association ever existed or cared for common areas; there was never a board, meetings, votes or assessments; and she and the owners, including the Albertinis, controlled, managed and cared for their own utility lines and sides of their property as if they were their own. The Albertinis never asserted any right to common areas until January 2018, when the lawsuit began. The parties, not any homeowners association, paid taxes and insurance on their respective sides of the property.
The jury entered a general verdict in favor of Acebo-Houlihan and against the Albertinis on their claims for nuisance and trespass. It awarded Acebo-Houlihan $500,000 in damages as follows:
Past economic loss: $120,000;
Future economic loss: $230,000;
Total noneconomic damages: $150,000 (including emotional distress, grief, mental suffering, and anxiety):
Past noneconomic damages: $132,000;
Future noneconomic damages: $18,000.
The Albertinis filed a notice of appeal in February 2020.
The following month the trial court ruled on the equitable issues. It found the Houlihans and their expert to be credible, and the Albertinis not credible. It denied the Albertinis' requests for an injunction and judicial declaration. It entered a permanent injunction in Acebo-Houlihan's favor prohibiting the Albertinis from accessing Acebo-Houlihan's electrical panel or turning off the electricity to Acebo-Houlihan's residence; tampering with or turning on or off the water to her residence; using the water supplied to her residence to irrigate the landscaping associated with the Albertinis' unit; making changes to the landscape irrigation system for the landscaping associated with Acebo-Houlihan's unit; tampering with or altering the landscaping associated with Acebo-Houlihan's unit; and entering onto Acebo- Houlihan's property and yard, including the porch, stairway and walkway associated with her front entrance. The court declared the Houlihans the prevailing parties and ordered they recover costs of suit from the Albertinis.
In April 2020, the Albertinis served a notice of intention to move for a new trial. Their motion (for new trial and/or remittitur of damages and for judgment notwithstanding the verdict (JNOV)), was not file-stamped until May 26, 2020. On that day, the court also file-stamped the Albertinis' second notice of appeal from the judgment on both the jury and bench trials.
The Albertinis state: "Due to the court's closure, no hearing was held on the new trial and [JNOV] motions." They do not, however, make any argument on appeal that any error occurred in connection with the handling of these motions. They do ask this court to take judicial notice of March 18, 2020 and April 30, 2020 General Orders related to the Covid-19 pandemic. Though the orders were issued after the trial court entered judgment in this matter, the Albertinis maintain they are publicly available official acts relevant "to demonstrate the timeliness of various filings in the trial court relevant to this appeal due to the COVID-19 pandemic as well as explain the absence of any rulings on appellants' post-trial motions." They explain that in April 2020 they served their posttrial notice of intention to move for a new trial and for JNOV along with their supporting papers, but the pleadings were not file stamped until May 26, 2020, when the court reopened. They say no hearing was held on the motions "due to the court's closure . . . ." They argue this context is "relevant to the procedural background of this appeal and issues raised by appellants[ ] in their challenge to the judgment. . . ." The Albertinis do not expand further on the issues that necessitate our consideration of these general orders. Because we determine the Albertinis' claims either were forfeited or fail on the merits, we deny the request on grounds the orders are unnecessary to our resolution of the issues on appeal. (Accord, Contreras-Velazquez v. Family Health Centers of San Diego, Inc. (2021) 62 Cal.App. 5th 88, 99, fn. 3; County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.)
DISCUSSION
I. Standard of Review and Basic Appellate Principles
We review for substantial evidence challenges to a judgment entered following a jury trial. "It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury." (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Flores v. Liu (2021) 60 Cal.App. 5th 278, 298.) "Substantial evidence is evidence that is 'of ponderable legal significance,' 'reasonable in nature, credible, and of solid value,' and' "substantial" proof of the essentials which the law requires in a particular case.'" (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.) The testimony of a single witness, including a party, may be substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Flores v. Liu, at p. 297.)" 'Speculation or conjecture alone is not substantial evidence.'" (Minnegren v. Nozar (2016) 4 Cal.App. 5th 500, 507, citing Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) We do not reweigh the evidence or evaluate witness credibility when deciding whether substantial evidence supports a verdict. (Flores v. Liu, at p. 297; IIG Wireless, Inc. v. Yi (2018) 22 Cal.App. 5th 630, 640.) When applying the substantial evidence standard, we must be mindful of the preponderance-of-the-evidence standard of proof in civil cases. (Conservatorship of O.B., at pp. 1005-1009; see People v. Soriano (2021) 65 Cal.App. 5th 278, 284.)
II. Jury's Economic Damages Award
The Albertinis contend the jury's economic damages award is unsupported by substantial evidence. Citing the proposition that an appellate court should reject testimony that is an "impossibility," they maintain Acebo-Houlihan's testimony on the issue was inadmissible in that there was no foundation or substantiation for her opinion that her home diminished in value due to the Albertinis' actions, which she assertedly would have to disclose to buyers. They also maintain her valuation testimony was speculative; according to the Albertinis, Acebo-Houlihan "provided no evidence that she would be required to make these unsubstantiated 'disclosures,' or that if she did, that they would cause a diminution in the value of her property" and she "provided no basis for calculating the $200,000 to $300,000 figure she tossed out as the amount of diminution in value." Relying on Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, the Albertinis argue that an owner such as Acebo-Houlihan must provide the same foundation for an opinion of the value of their property as any other witness, and if based on comparable property sales, a proper foundation demonstrates that the comparable homes are" 'located sufficiently near the property being valued, and must be sufficiently alike in respect to character, size, situation, usability, and improvements, to make it clear that the property sold and the property being valued are comparable in value ....'" As for lost rental value, the Albertinis argue Acebo-Houlihan "did not testify what it would cost to rent a similar property, or that she was unable to use her own property" and thus "[t]here was no substantial evidence to support an award of rental costs as economic damages." They characterize Acebo-Houlihan's claim that she would be unable to rent her property to others as "self-serving speculation."
These arguments are unavailing, as the Albertinis did not lodge timely or specific objections below that Acebo-Houlihan's valuation and other opinions lacked foundation or were speculative. As a result, the Albertinis have forfeited such arguments on appeal. An evidentiary objection must be specific and timely. (Evid. Code, § 353, subd. (a); Orozco v. WPV San Jose, LLC (2019) 36 Cal.App. 5th 375, 396-397.) A party's"' "failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.' [Citation.] A proper objection must'" 'fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.'" '" (People v. Jackson (2016) 1 Cal.5th 269, 366.)" 'A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.'" (Ibid.) In Jackson, the defendant's general and unspecific objection forfeited his claim on appeal that a police officer's testimony lacked foundation. (Id. at pp. 366-367; accord, In re D.D. (2019) 32 Cal.App. 5th 985, 992 [substantial evidence supported factual findings based in part on text messages, as to which no objections were made below].)
Further, the Albertinis mischaracterize Acebo-Houlihan's damages claim. As the Houlihans point out, Acebo-Houlihan did not seek "loss of use" damages or testify that she sought to rent another property while she could not live at her Cardiff house; she testified she could not rent her Cardiff property to a third party renter.
Ultimately, the Albertinis ask us to assess the credibility or weight of Acebo-Houlihan's opinions, which we cannot do on our review for substantial evidence. This is not a case where Acebo-Houlihan's assertions are impossible or unbelievable per se (see People v. Young (2005) 34 Cal.4th 1149, 1181 [testimony of a single witness can be sufficient unless physically impossible or inherently improbable]; People v. Ennis (2010) 190 Cal.App.4th 721, 725 [inherently improbable evidence means it is unbelievable per se, such that it would not seem possible]), particularly where at trial Catherine Albertini herself estimated the value of her own adjoining home in January 2018 at $1.4 or $1.5 million. And the Albertinis acknowledge that as an owner, Acebo-Houlihan was able to offer a valuation opinion of her own home. (See Evid. Code, § 813, subd. (a)(2) [the "value of property may be shown only by the opinions of. . . [t]he owner . . . of the property or property interest being valued"].) It is true that a lay opinion about the value of property must be "based on matter perceived by or personally known to the witness or made known to the witness 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 as to the value of property" (Evid. Code, § 814) and that "a property owner is bound by the same rules of admissibility as any other witness regarding the value of real property." (Jones v. Wachovia Bank, supra, 230 Cal.App.4th at pp. 950-951.) Having owned it for years, Acebo-Houlihan was of course familiar with her own property and provided a factual basis for her opinions about depreciation and rental value; she testified without objection that she had looked at two or three homes in her neighborhood (even identifying the streets) having the same square footage that had sold in the last three months, and also spoke with a realtor who advised her on rental value as well as the sort of loss she would take having to make required disclosures to a buyer. Her opinions were not "drawn out of thin air" as the Albertinis maintain.
We are unpersuaded by the Albertinis' reliance on Jones v. Wachovia Bank, in which the trial court sustained an objection to the declaration of a realtor who performed a market analysis of foreclosed property. (Jones v. Wachovia Bank, supra, 230 Cal.App.4th at p. 951.) The realtor's comparable sales summary report did not identify the home or lot size, character, usability or improvements, and thus the Court of Appeal upheld the ruling, holding the evidence did not meet the foundational requirements of Evidence Code section 816. (Ibid.) Here, the Albertinis did not assert any objections to Acebo-Houlihan's testimony, which was based on recently sold similarly-sized homes in the neighborhood.
The Albertinis give us no reason to disturb the jury's factual determination of the amount of Acebo-Houlihan's past and future economic loss, which, as the Houlihans point out, corresponds to approximately two years of lost rent at $5,000 a month (starting from the Albertinis' filing of their complaint in January 2018 to the time of the February 2020 trial), plus $230,000 in depreciation given the disclosure obligations. The jury was not required to reach the amount of damages with absolute certainty as long as it used a reasonable basis as it did here, and we will not reassess its calculations. (Orozco v. WPV San Jose, LLC, supra, 36 Cal.App. 5th at pp. 398-400 [where the fact of damages is certain, the amount need not be calculated with absolute certainty as long as some reasonable basis of computation is used; further, the amount of damages is a question of fact, and Court of Appeal does not sit as a trier of fact or assess credibility of witnesses on the point], see also Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 774-775; GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873.)
In sum, Acebo-Houlihan's testimony constitutes substantial evidence to support the jury's economic damages award.
III. Claim of Impermissible Duplicate Damages and Unrecoverable Future Noneconomic Damage
A. Alleged "Windfall" Damages
The Albertinis contend the jury impermissibly awarded the Houlihans duplicative and "windfall" damages consisting of their property's diminution in value, loss of use, and lost rent. They argue the general measure of damages in a trespass or nuisance case is depreciation in market value or rental value; they assert there is no authority for recovery of all three types of damage and it was "error, as a matter of law, to instruct the jury that all three items of economic damages could be awarded." They maintain the error was prejudicial because "based on the evidence presented at trial, the $350,000 amount awarded for economic damages could only be achieved if the jury improperly included duplicative measures of damages."
The jury was instructed: "The following are the specific items of economic damages claimed by [Acebo-]Houlihan: ... [¶] 1. Diminution of value of [Acebo-]Houlihan's real property; [¶] 2. Loss of use of [Acebo-]Houlihan's real property; and [¶] 3. Lost rent from [Acebo-]Houlihan's real property. [¶] To recover damages for harm to property, [Acebo-]Houlihan must prove the reduction in the property's value. To determine the reduction in value, you must determine the fair market value of the property before the harm occurred and then subtract the fair market value of the property immediately after the harm occurred. The difference is reduction in value. [¶] Fair market value is the highest price for the property that a willing buyer would have paid to a willing seller, assuming that there is no pressure on either one to buy or sell, and that the buyer and seller know all of the uses and purposes for which the property is reasonably capable of being used. [¶] To recover for loss of use, [Acebo-]Houlihan must prove the reasonable cost to rent similar property for the time when she could not use her own property."
To the extent the jury's verdict was influenced by the court's instructions concerning the proper measure of economic damages, the Albertinis invited that error by failing to offer their own instructions or object to the jury instructions when they were proposed. During discussion of the jury instructions, the court asked defense counsel to review the [CACI No.] 3900 series of damages instructions so as to include the Albertinis' damage claims, as the Albertinis had not provided the court or counsel with a set of jury instructions. Catherine Albertini then advised the court that she wanted to add some instructions on damages. The court responded that it had repeatedly explained to her she needed to give opposing counsel and the court a hard copy of any proposed instruction, and whatever she presented would be subject to objection as untimely. The reporter's transcript for the following day's proceedings does not reflect the parties' further input on jury instructions, and the court read the instructions without further comment by the Albertinis. On this record, we cannot say who requested the damages instructions, and under the circumstances of a silent record, the invited error doctrine requires us to presume the Albertinis as appellants invited the instructional error. (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 592-593, citing in part Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 559 [absent "any indication before us which party requested the challenged instruction in the first instance . . ., it is presumed to have been given at appellant's request"].)
The court admonished: "[W]e've been saying this for weeks now. I have been saying it. In particular, since we had trial call, ... a week ago today, . . . four days in a row, we met, and I explained, I believe, on each of those four days that if you had some jury instruction that you wanted to submit, you needed to provide a hard copy to the other side so they could review it, and you needed to provide a hard copy to me. So far, you've provided nothing to me. [¶] So, yes, you can still provide it, but there may well be an objection that it's untimely or otherwise improper, but you're welcome to provide it to the other side and to me as soon as you have it."
In any event, on the merits we hold the Albertinis have not shown error. "The measure of damages for tortious injury to property is 'the amount which will compensate for all the detriment proximately caused thereby'" (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905, quoting Civ. Code, § 3333.) Diminution in value is one measure, but it "is not an absolute limitation on damages. [Citation.]' "There is no fixed, inflexible rule for determining the measure of damages for injury to . . . property; whatever formula is most appropriate to compensate the injured party for the loss sustained in the particular case will be adopted." '" (Id. at p. 904.) "[I]n some circumstances, recovery of damages exceeding the diminution in value are appropriate. (Ibid.; see also City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 464 [stating damages for a nuisance include diminution in market value, damages for annoyance or inconvenience, actual injuries to the land, and costs of minimizing future damages]; Starrh & Starrh Cotton Growers v. Area Energy LLC (2007) 153 Cal.App.4th 583, 599 ["In any trespass case, the proper measure of damages is the one that will fully compensate the plaintiff for damages that have occurred or can with certainty be expected to occur"].)
The jury here was given verdict forms to which the Albertinis did not object, allowing it to award both past and future economic damages. As stated above, Acebo-Houlihan did not seek damages for loss of use. And the jury could reasonably award Acebo-Houlihan $120,000 in past lost rental value as well as $230,000 in future diminution in market value based on her testimony about rental value and the anticipated loss of $200,000 to $300,000 in the market value of her home from her having to make required disclosures concerning the disputes with the Albertinis.
This was consistent with Acebo-Houlihan's counsel's argument to the jury about the different types of damages she was seeking: "What we're asking for, first of all, is the diminution in value of the real property. [¶] What does that mean? That means, based upon what you've seen, and the disclosures that have to be made to sell this property, how much money is going to be lost? How much money is [Acebo-Houlihan] going to have to lose in order to get out of this place? [¶] The evidence is, she said she thinks that house would have a $300,000 hit. That's based upon her investigation, looking at other properties, talking to real estate agents, et cetera. And, you know, she's the plaintiff. She might be high; she might be low. You might believe that; you might not. It's difficult to believe you're going to sell this property in this condition and not have a loss. I don't think that that's something that's unreasonable. And what you're trying to do is not give somebody punishment or put them in a place, you're trying to bring them back where they would be if this conduct had not happened and if this circumstance had not happened. [¶] So . . . if you mark yes against [Catherine] Albertini or [Gregory] Albertini, or both, only do damages one time. Do not let there be double recovery because that's not the law, and we follow the law. [¶] Past economic loss is in regard to two things: One, the loss of rent. What [Acebo-Houlihan] testified was she believed her property is worth at least $5,000 a month in rent. She wanted to rent it when this lawsuit was finally filed because she [had] had it. That happened to be on January 18th of 2018. We're just past January now. Call it 24 months. If you believe that that's reasonable, you would take [$]5, 000 and multiply it by 24 months and put the number for past economic loss. [¶] If you believe that's not reasonable, you don't do that. You figure out what you think is fair and right."
The Albertinis cite authority, Ingram v. City of Gridley (1950) 100 Cal.App. 2d 815, for the proposition that the measure of damages for a permanent nuisance is depreciation in market value or rental value. There, the Court of Appeal recited from a treatise (American Jurisprudence) stating the "true measure of damages for a nuisance is compensation for the loss or injury sustained, which is usually held to be the depreciation in the market or usable or rental value of the property, together with such special damages as may be proved." (Id. at p. 820, italics added.) Ingram also quoted the treatise as stating that "[a]s a general rule, where the injury to real property caused by a nuisance is of a permanent character, the damages are measured by the depreciation in the market value of the property injured." (Ibid., italics added.) Nothing in Ingram requires a plaintiff in a nuisance action to choose between diminution in market value and lost rental value, particularly in a case such as this one, where Acebo-Houlihan testified to different past and future losses.
B. Future Noneconomic Damages
The Albertinis contend we should vacate the judgment because the jury's $18,000 award of future noneconomic damages is not recoverable. They argue Acebo-Houlihan disclaimed future noneconomic damages when her counsel in closing argument told the jury she was not seeking such damages: "As far as future noneconomic damages, [Acebo-Houlihan is] not going to stay there. We're not asking for future noneconomic damages. She's going to leave because it's not worth it to her, and that makes me sad." According to the Albertinis, "[t]here was no evidence supporting future noneconomic damages, and the broad injunction and declaratory relief the court ordered precludes a finding that future noneconomic damages would be suffered."
Acebo-Houlihan does not respond to the argument. Nevertheless, we will not disturb the jury's verdict where the record contains substantial evidence to support the award. Acebo-Houlihan testified about her love for spending time at the Cardiff house, and the fact she did not visit it as often due to the Albertinis' conduct. She described the anxiety she felt going to the house and the anticipated loss of her biggest investment, a place where she planned to retire, as "the loss of a dream" that was going to "break her heart." "[T]he testimony of a single person, including the plaintiff, may be sufficient to support an award of emotional distress damages." (Knutson v. Foster (2018) 25 Cal.App. 5th 1075, 1096.) The jury's award of damages could stem from Acebo-Houlihan's feelings about losing the place she considered her "sanctuary" and valuable investment, to which she herself could and did testify. Such matters were within the jury's common experience, and expert testimony in such a case is unnecessary. (Accord, Knutson, at p. 1099; see also id. at pp. 1096-1098 [describing cases approving emotional distress damages based on testimony of plaintiffs].) The record here contains sufficient evidence supporting the jury's award to Acebo-Houlihan of future emotional distress damages.
IV. Sufficiency of Evidence of Trespass and Nuisance
The Albertinis contend there is insufficient evidence to support the jury's verdict in Acebo-Houlihan's favor on trespass and nuisance. They argue the sole evidence was that they lawfully entered their own property or common areas (landscaped area, their own driveway, parking on a public street or common area, and making common area repairs), which is insufficient as a matter of law to constitute trespass. According to the Albertinis, "the essential factual element of ownership of the property by the Houlihans was not established to support a trespass cause of action." As for nuisance, the Albertinis maintain the evidence did not demonstrate an "objectively substantial and unreasonable condition was created by [their] conduct" to support the judgment.
The premise of much of the Albertinis argument-that the areas they accessed were "common areas" under the CC&Rs assertedly governing their houses-fails. In granting Acebo-Houlihan's motion for nonsuit, the trial court expressly found, and the record shows, the Albertinis presented no evidence of CC&Rs or any other contract creating common areas. Rather, Acebo-Houlihan's testimony established that the homeowners each maintained their own units and landscaping as if it belonged to them. And Acebo-Houlihan's testimony alone is substantial evidence that one or both Albertinis accessed Acebo-Houlihan's entry, peered into her windows, tampered with her electrical power, water supply and landscaping without permission, placed spotlights on her property shining at other neighbors, and trained a spotlight on Acebo-Houlihan's driveway. The Albertinis repeatedly parked their vehicle on Acebo-Houlihan's driveway, and in front of her house, blocking contractors and posing a tripping hazard. Catherine Albertini admitted that she accessed an area above Acebo-Houlihan's garage by cutting a hole on her side of the garage. This constitutes substantial evidence of trespass and nuisance; it is the sort of substantial and unreasonable interference with use and enjoyment of property that would annoy and disturb any normal person. (See San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937; Wilson v. Southern California Edison Co. (2018) 21 Cal.App. 5th 786, 802-803.)
For an actionable nuisance, an invasion of a plaintiffs interest in the use and enjoyment of their land must be substantial, and cause substantial actual damage. (San Diego Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at p. 938; Wilson v. Southern California Edison Co., supra, 21 Cal.App. 5th at p. 802.) If normal persons in the locality would not be substantially annoyed or disturbed by the situation, the invasion is not significant. (Ibid.) The"' "interference . . . must not only be substantial, but it must also be unreasonable" [citation], i.e., it must be "of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land." [Citations.] The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant's conduct, taking a number of factors into account. [Citation.] Again the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but "whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable." [Citation.] And again this is a question of fact: "Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case." '" (Wilson v. Southern California Edison Co., at pp. 802-803, fn. omitted.) This record contains no evidence that the Albertinis' conduct had any social utility. Further, a finding of an actionable nuisance does not require a showing that the defendant acted unreasonably. (Id. at p. 804.) Here, the jury as a factual matter determined the Albertinis' conduct met the requirements for an actionable nuisance; because that factual finding is supported by substantial evidence, we will not disturb it.
The Albertinis rely on but mischaracterize the trial court's findings in connection with its ruling on equitable issues that CC&Rs were recorded in 1982. The trial court did not find them to be "valid CC&Rs" as the Albertinis assert in their brief. Rather, while it found CC&Rs were recorded, the court further found there had never been an active homeowners association managing the units or performing common area obligations. Further, the court expressly found that despite the Houlihans removing the handle to the shutoff valve for their unit's water supply in order to keep the water off, the Albertinis" 'were responsible for turning the water supply on to [Acebo-Houlihan's] unit when [the Houlihans] were gone.'" It further found the Houlihans had" 'video evidence from their security cameras showing [Catherine] Albertini repeatedly shutting off the power to the [Acebo-Houlihan] unit'" without permission to do so. The court found the Albertinis" 'continued to trespass on [Acebo-Houlihan's] property, including by continuing to improperly access [her] electric panel and ... by continuing to improperly access [her] plumbing.'" It found the Albertinis" 'had "capped" all of the sprinklers to [Acebo-Houlihan's] unit' and 'continue to water the landscaping in front of the Albertini unit with water derived from the Acebo[- Houlihan] unit.'" These findings are supported by the evidence recounted above.
V. Claim of Unfair Trial
The Albertinis contend the judgment must be reversed because they received an unfair trial as a result of the Houlihans' counsel's asserted misconduct during trial and in closing argument. They first maintain the jury was swayed by passion and prejudice and rendered an excessive verdict because the Houlihans' counsel "repeatedly suggested that the Albertinis were engaged in improper conduct in accessing their own property, the property was not a condominium governed by CC&Rs, the Houlihan property had diminished in value, and brought up irrelevant matters such as federal court filings by the Albertinis." The Albertinis further contend the Houlihans' counsel gave the jury the mistaken impression that it was required to award damages to the Houlihans even if jurors did not agree such an award was warranted. According to the Albertinis, the misconduct was prejudicial and warrants a new trial: "While the jury may have been inclined to award neither party damages, having been told they were required to award damages, they awarded only the Houlihans damages on their cross-complaint." They argue the "misconduct had its intended prejudicial effect, resulting in an excessive jury verdict in the Houlihan's [sic] favor finding no support in the evidence or the law." We disagree on both points.
In their reply brief, the Albertinis contend they received an unfair trial when the court allowed into evidence improper "character assassination" evidence consisting of Catherine Albertini's declarations filed in federal court matters. We do not consider claims of error raised for the first time in reply. (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App. 5th 467, 518.)
A. Counsel's Remarks About the Evidence
The Albertinis' first point fails because counsel simply made permissible comments on the evidence. "In conducting closing argument, attorneys for both sides have wide latitude to discuss the case. '"' "The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom." '" '" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795.) An attorney may draw any inference with respect to the facts or the credibility of witnesses of which the evidence is reasonably susceptible. (Janice H. v. 696 North Robertson, LLC (2016) 1 Cal.App. 5th 586, 604; McCullough v. Langer (1937) 23 Cal.App. 2d 510, 522.) Counsel may properly argue inferences that may arise from an opposing party's failure to produce witnesses or evidence. (See People v. Gonzales (2012) 54 Cal.4th 1234, 1275; CACI No. 203.)" "" "The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury ...."'"'" (Cassim, at p. 795.)"' "Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety." '" (Ibid.)
There is no misconduct in the Houlihans' counsel's discussion of the evidence, including the fact that the Albertinis did not introduce into evidence any CC&Rs for the properties so as to establish the existence of common areas. Nor have the Albertinis shown it was misconduct of counsel to refer to or use the Albertinis' sworn declarations from other actions to demonstrate that they made similar claims against others, including neighbors where they had previously lived, of privacy invasions, civil rights violations, assault, harassment, mail tampering, wiretapping, and trespasses.
In any event, the Albertinis have forfeited these points. "[T]o preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial and the party must also have moved for a mistrial or sought a curative admonition unless the misconduct was so persistent that an admonition would have been inadequate to cure the resulting prejudice. [Citation.] This is so because '[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.'" (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148; see Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 794-795; Janice H. v. 696 North Robertson, LLC, supra, 1 Cal.App. 5th at p. 604 [claim of counsel's misconduct is forfeited by failure to make a timely and proper objection and request for admonishment].) The Albertinis did not object to the vast majority of counsel's questions and remarks. And to the extent they did unsuccessfully make an objection, they do not establish with reasoned argument or authority that the court's ruling was error. We need not consider the points further. (Klem v. Access Ins. Co. (2017) 17 Cal.App. 5th 595, 610; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived' "].)
B. Claim of Excessive Verdict and Counsel's Comments on Damages
We reject the Albertinis' claim that the jury's damages award was excessive and motivated by passion or prejudice."' "The power of the appellate court differs materially from that of the trial court in passing on [the question of the amount of damages]. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury." '" (Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, 816, quoting Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299; see also Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507.) "In making this assessment, the court may consider, in addition to the amount of the award, indications in the record that the fact finder was influenced by improper considerations, including inflammatory evidence, misleading jury instructions, improper argument by counsel, or other misconduct." (Qaadir, at p. 816; Bigler-Engler, at p. 299.) But we" 'determine every conflict in the evidence in [the Houlihans'] favor, and must give [them] the benefit of every inference reasonably to be drawn from the record.'" (Qaadir, at pp. 816-817.)
The jury's damages awards here do not shock the conscience; they are consistent with Acebo-Houlihan's testimony recounted above. That is, the jury reasonably awarded Acebo-Houlihan $120,000 for the two years of lost rent she estimated at $5,000 per month, as well as $230,000 for the depreciation in the value of her home, in the lower range of her opinion. We have already concluded counsel's closing remarks on the evidence were not improper or misconduct, so we cannot say the jury was improperly influenced by them to reach unreasonable verdicts.
As for Acebo-Houlihan's counsel's closing arguments on damages, in addition to the remarks quoted above (see footnote 8, ante) he said:
"Judge Dahlquist told you something I think is very important in his first instruction. It's often not thought about by people, but it's what you all agreed to do. 'You must follow the law as I gave it to you, even if you disagree with it.'
"What does that mean? That means if you find that something was done wrong, you have to award these damages even if they're weird and you don't agree with it, wouldn't do it that way. The law requires it, and there's no other way to do it. And it is weird, but that's what you agreed to do, and I know you can do it because we talked about it. Anyone that didn't want to do that is not on this jury. So you follow his instructions. And his instructions say, 'In the event that there are damages'-[CACI No.] 3900? I'm going to just read to you[:] . . .
'If you decide that either of the parties has proved their claim against the other party, you must also decide how much money will reasonably compensate the prevailing party.'
"You must also decide. It is required. Otherwise, you can say[, ] 'They did it, but I don't want to award damages, I would feel bad about it.' We can't have that. It's not fair. We come here to try to get as much justice as we can in a civil courtroom.
"You're required to award damages. The amount of damages must include each item of harm that the wronged person suffered.
"If she was injured, if [Acebo-]Houlihan was injured, for each item harmed, she's entitled to a fair amount of damages, not a penny more and not a penny less."
In rebuttal, the Houlihans' counsel told the jury the Houlihans were not asking the jury to punish the Albertinis: "I want to emphasize, we aren't asking you to punish the Albertinis. We are here to ask you to reimburse [Acebo-]Houlihan for the harm caused to her. Whatever you guys decide is the fair value for damages, that's going to be what the order is. It's up to you guys to decide what the damage is. It's not up to us. It's not up to the Albertinis."
The Albertinis have not demonstrated they received an unfair trial so as to warrant the judgment's reversal. As a threshold matter, they did not object to counsel's remarks on damages, which were not persistent or pervasive, nor did they seek a curative admonition. Thus, they did not preserve the claim.
Setting the forfeiture aside, we conclude the remarks do not amount to prejudicial misconduct. Counsel repeated the court's damages jury instruction, and advised the jury that if either party proved their claim, they must proceed to decide damages. That remark correctly reflects the court's instruction. Though counsel may have misstated the law by telling the jury it was "required" to award damages, counsel's comments fairly recounted the evidence, and counsel immediately made clear that the damage award must be "fair" and "not a penny more and not a penny less." Further, the jury received instructions on damages for trespass and nuisance, stating that if those claims were proven, the "successful party may recover damages that would reasonably compensate the successful party for the annoyance or discomfort, including emotional distress or mental anguish caused by the injury to their peaceful enjoyment of the property that they occupy." (Italics added.) The court instructed the jury that "[t]he amount of damages must include an award for each item of harm that was caused by the non-prevailing party's wrongful conduct, even if the particular harm could not have been anticipated" and that the prevailing party did not have to prove the exact amount of damages that would provide reasonable compensation, but that the jury "must not speculate or guess in awarding damages." The court instructed that each side would present the types and amounts of damages they were seeking, and "[t]he party seeking an award of damages has the burden of proving their damages." It told the jury a claimant was "not entitled to recover damages for harm that the responding party proves could have been avoided with reasonable efforts or expenditures" but that the jury's award should include reasonable amounts spent in making reasonable efforts to avoid harm.
These instructions made it clear to the jury that a damages award was not mandated, but subject to the party's burden to prove harm caused by the wrongful conduct and not the product of speculation or guesswork. Because the damages awards were amply supported by Acebo-Houlihan's testimony and other evidence, we conclude even if counsel's fleeting suggestion that damages were mandatory was problematic, viewing the entirety of the record it did not result in a miscarriage of justice. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800.)
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.