Opinion
NOT TO BE PUBLISHED
Appeals from a judgment and orders of the Superior Court of Orange County, Super. Ct. No. 06CC03911, Gregory Munoz, Judge.
Law Offices of Andrew D. Weiss and Andrew D. Weiss for Defendant, Cross-complainant and Appellant.
Law Offices of Richard A. Jones and Richard A. Jones for Plaintiffs, Cross-defendants and Appellants.
OPINION
MOORE, J.
This case arises out of an acrid dispute between neighbors. Following litigation of a number of causes of action on a complaint and cross-complaint, judgment was entered quieting title to a small strip of land along the parties’ mutual boundary line in favor of Wayne T. Hetman and awarding a total of $327,000 in compensatory damages and $75,000 in punitive damages in favor of James Michael Harm and Soraya Maria Harm, on causes of action for slander of title, negligence, intentional infliction of emotional distress, and nuisance. Each party appeals.
The Harms do not challenge the quiet title ruling in favor of Mr. Hetman, although they contend the court erred in awarding him both a prescriptive easement in and an irrevocable license to the 18-foot by 4-inch strip of land at issue. We agree. We reverse the portion of the judgment pertaining to Mr. Hetman’s quiet title cause of action and remand the matter to the trial court with directions to award only a prescriptive easement with respect to the sliver of land.
The Harms also contend that the trial court erred in enjoining them from constructing a stucco block wall on their own property and erred in failing to enjoin Mr. Hetman from harassing them. We agree as to each point. The trial court abused its discretion in enjoining the Harms from constructing the stucco block wall in accordance with the plans approved by their homeowners association and the City of Lake Forest. It also abused its discretion in denying the Harms’ request for a “keep away” injunction against Mr. Hetman. We reverse the portions of the judgment granting an injunction against the Harms and denying an injunction against Mr. Hetman. We order the trial court to modify the judgment to include a narrowly tailored “keep away” injunction against Mr. Hetman, after notice to the parties and an opportunity to be heard with respect to the scope of the injunction.
Mr. Hetman contends that there is no substantial evidence to support the finding that he committed slander of title with respect to the Harms’ property and furthermore, that the award of damages was both unsupported by the evidence and excessive in any event. We conclude that substantial evidence supported the finding and the damages award and that Mr. Hetman has failed to show that the award of damages was excessive.
Mrs. Harm and one of her sons testified as to an incident in which Mr. Hetman purportedly tried to run the two of them down with his car. Mr. Hetman claims the jury arbitrarily disregarded the testimony of his expert accident reconstruction witness, who opined that the incident could not have occurred in the manner Mrs. Harm and her son stated. Mr. Hetman also maintains that the award of punitive damages against him is excessive and unsupported by the evidence, inasmuch as the Harms failed to put on adequate evidence of his financial condition to support the award. We reject these contentions.
However, we agree with Mr. Hetman that the judgment is deficient to the extent it fails to identify the Harms in their capacities as trustees of their living trust, with respect to several causes of action. We remand the matter to the trial court to modify the judgment as more particularly provided herein. We affirm in part, reverse in part, and remand.
I
FACTS
In September 2003, the Harms purchased a home in Foothill Ranch next door to Mr. Hetman. They moved in with their four children. The first day they were there, Mr. Hetman came over to introduce himself and lay the ground rules. According to Mrs. Harm, Mr. Hetman “said he didn’t want the neighborhood turning into a teenage hangout, wasn’t going to tolerate cars parking in front of his house or ours.” He also told her that “[h]e wasn’t going to tolerate any dog barking.” The following week, Mr. Hetman came over and told Mrs. Harm that “he didn’t appreciate all that trash on our side yard he first saw when he came out of his front door.” Mrs. Harm testified that the trash was not visible from the street and would only have been visible if someone were looking over their wall into their backyard. Thereafter, Mr. Hetman complained to Mrs. Harm almost daily about the trash.
Matters only degenerated from that point. Among other things, Mr. Hetman complained to the Harms about the condition of their lawn, the fact that they did not have enough colorful plants in their backyard, the fact that he thought the windows on one side of the house were ugly and should be taken out, and the fact that he hated their shutters and wanted them removed. Within the first six months the Harms lived there, Mr. Hetman began complaining to them four or five days a week.
He also peered over the fence and told Mrs. Harm, “I just want you to know I’m watching you.” He would stand at the edge of the two properties and just stare at the Harms. By June 2005, he had begun sticking his head up over the fence and taking pictures of the Harms’ backyard.
Over time, problems worsened dramatically. Among other things, Mr. Hetman turned his hose on Mr. Harm, splashed mud on Mrs. Harm and her daughter, threw fertilizer on Mrs. Harm, put snail poison in the Harms’ front yard, irately demanded that Mrs. Harm cease planting on the Harms’ property, and nearly ran down Mrs. Harm and one of her children with his car. Finally, the Harms decided to put up a wall on their side of the property. When the workmen began work, Mr. Hetman insisted that he owned the property they were working on and called the police, with the result that the contractor ceased work and the Harms were unable to erect a wall between themselves and their disruptive neighbor.
The Harms filed a suit against Mr. Hetman for quiet title, slander of title, nuisance, negligence, intentional infliction of emotional distress, declaratory relief and injunctive relief. Mr. Hetman cross complained against the Harms for quiet title, injunctive relief, negligence, and slander. Because the Harms had transferred title to their residential property into a living trust, the parties stipulated, and the court ordered, that the Harms, as trustees of The Harm Family Living Trust dated May 26, 2005, were added as new party plaintiffs for the purposes of prosecuting and/or defending the causes of action for quiet title, slander of title, and declaratory relief, and that the Harms’ answer to the first, second and fourth causes of action asserted in the Mr. Hetman’s cross-complaint was deemed to be an answer by the Harms in their capacities as trustees.
Following a special verdict, the trial court entered judgment awarding $327,000 in compensatory damages and $75,000 in punitive damages to the Harms, quieting title to the 18-foot by 4-inch sliver of land in favor of Mr. Hetman, denying injunctive relief to the Harms with respect to harassment by Mr. Hetman, denying injunctive relief to Mr. Hetman with respect to certain trees the Harms had planted, and granting injunctive relief to Mr. Hetman with respect to the Harms’ proposed front yard stucco block wall. Mr. Hetman filed an appeal and the Harms filed a cross-appeal. The Harms also filed a related appeal from a postjudgment order denying their motion for attorney fees. (Harm v. Hetman (G040454, app. pending).)
II
DISCUSSION
A. One Final Judgment Rule:
Mr. Hetman contends that the judgment violates the one final judgment rule inasmuch as it does not mention the trust in its operative provisions, but only mentions the trust in its caption. That is to say, the judgment bears a double caption reflecting the Harms in their individual capacities as plaintiffs and the Harms in their capacities as both individuals and trustees, as cross-defendants. While the body of the judgment specifies that relief is granted on behalf of or against the Harms, as to the various causes of action, it does not specify whether the Harms are acting in their capacities as individuals or in their capacities as trustees of the trust, with respect to the relief granted. In his opening brief, Mr. Hetman complains that he now has a judgment quieting title against persons who do not own the property, and claims he “was required to appeal [from] the Judgment to seek a determination of its invalidity due to the failure to include the Trust.”
The Harms concede that the trust was inadvertently omitted from the judgment. They maintain that while the one final judgment rule would permit this court to dismiss Mr. Hetman’s appeal, a better course of action would be to amend the judgment to include the trust, as intended by the trial court.
In response, Mr. Hetman points out that he objected to the judgment when proposed because of its failure to include the trust. Accordingly, he says the Harms’ failure to submit a properly prepared judgment was invited error. He also asserts that amending the judgment nunc pro tunc to include the trust would deprive him of the opportunity to bring posttrial motions as against the trust, including a motion for attorney fees. Mr. Hetman concludes that the appeal and cross-appeal should be dismissed, albeit with instructions to enter judgment against the trust and to resolve all posttrial motions against it.
“A judgment that disposes of fewer than all the causes of action framed by the complaint is not final in the fundamental sense as to any parties between whom another cause of action remains pending. [Citation.]” (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307.) “An appeal from a judgment that is not final violates the one final judgment rule and must therefore be dismissed [citations], unless the violation can be cured by amending the judgment. [Citation.]” (Id. at pp. 307-308.)
Here, Mr. Hetman does not allege that the court failed to dispose of all of the causes of action. Rather, he points out that the judgment fails to articulate the capacities of the Harms. In other words, an inarticulate judgment was entered failing to clarify the capacity of the Harms with respect to each cause of action, in accordance with the prior stipulation and order on the topic. It is an unfortunate oversight given the fact that Mr. Hetman did object to a proposed judgment on this ground. Nonetheless, the matter is easily remedied. On remand, the trial court shall modify the judgment so as to specify the Harms’ capacities relative to each cause of action, consistent with the July 16, 2007 stipulation and order on the topic.
B. Quiet Title Remedy re Mr. Hetman’s Brick Planter Wall:
In their second amended complaint, the Harms alleged that Mr. Hetman had constructed a three-foot-tall brick planter wall, for the purpose of holding plants, not for the purpose of a retaining wall, along the northwesterly boundary line between the Harm and Hetman properties. The brick planter wall was already in place when the Harms purchased their property. The Harms also alleged that a portion of the wall, approximately 18 feet in length and 4 inches wide, encroached onto their property. In addition, they stated their belief that former owners of their property, Darrell and June Wong, had given Mr. Hetman permission to leave the wall in place despite the encroachment. The Wongs and Mr. Hetman entered into a written agreement concerning the matter, that was neither notarized nor recorded.
The record contains a copy of the agreement, dated June 15, 1993, which provided: “We, Darrell and June Wong, owners of 44 La Perla, Foothill Ranch, CA give Wayne Hetman, owner of 42 La Perla, Foothill Ranch, CA permission for his brick wall to cross over onto our property (front yard slope area). This small strip measures approximately 18 feet long by 4 inches wide. We are authorizing this small piece of property to be given to Wayne Hetman without further reservation or restriction. Payment has been received in full in the amount of $1.00.”
In his cross-complaint, Mr. Hetman sought to quiet title to the 18 foot by 4 inch strip of land. He requested either an irrevocable license to maintain the brick planter wall in its current location or, in the alternative, a prescriptive easement for that purpose. The court quieted title in favor of Mr. Hetman. It awarded him both an irrevocable license and a prescriptive easement.
The Harms argue that it is illogical to award both an irrevocable license and a prescriptive easement, inasmuch as the requirements of each of those rights differ. They request that the judgment be corrected to grant one or the other, but not both. Mr. Hetman frames the question as whether the use of property in accordance with an irrevocable license given by a prior owner of the burdened property can ripen into a prescriptive easement as against a subsequent owner of the burdened property. While conceding that he has found no authority on point, he argues that the answer must be “yes.” Mr. Hetman also says that if the court determines that a choice must be made between an irrevocable license and a prescriptive easement, he prefers a prescriptive easement.
“[A] license is a personal, revocable and unassignable privilege conferred either by writing or parol to do one or more acts on the land without possessing any interest therein.” (Belmont County Water Dist. v. State of California (1976) 65 Cal.App.3d 13, 17.) However, “‘[u]nder certain circumstances a license which is ordinarily revocable at will may become irrevocable by the licensor, when the licensee, acting in good faith under the terms of the instrument, constructs valuable improvements on the property....’” (Ibid.; italics omitted.) With respect to the claim of an irrevocable license, the jury in the case before us found: (1) Mr. Hetman had the permission of the Wongs to build the brick planter wall; and (2) Mr. Hetman expended money and/or the equivalent in labor to construct the brick planter wall. In other words, it found that the requirements for an irrevocable license had been met.
“‘An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership. [Citation.]’ [Citations.]” (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1598.) “The elements of a prescriptive easement are ‘(a) open and notorious use; (b) continuous and uninterrupted use; (c) hostile to the true owner; (d) under claim of right; and (e) for the statutory period of five years. (Civ. Code, § 1007; Code Civ. Proc., § 321.)’ [Citations.]” (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045.)
With respect to the claim of a prescriptive easement, the jury found: (1) the existence of the brick planter wall was open and notorious; (2) it existed continuously and without interruption for at least five years; (3) the existence of the brick planter wall was hostile to the Harms and their immediate predecessors in interest, the Jacksons; and (4) the existence of the brick planter wall was under claim of right. In other words, the jury, in addition to finding that the requirements of an irrevocable license were met, also found that the requirements of a prescriptive easement were met.
At first blush, these findings seem somewhat contradictory. The jury found that the brick planter wall was built with the permission of prior owners of the burdened property but that the existence of the brick planter wall was hostile to subsequent owners of the burdened property. Mr. Hetman suggests, albeit without citation to authority, that his use of the sliver of property, originally made pursuant to an irrevocable license given by the Wongs, later ripened into a prescriptive easement as against subsequent owners of the burdened property.
Although the parties have furnished no authority on point, we have found one meager case — Ricioli v. Lynch (1923) 65 Cal.App. 53. That case stated: “Adverse use for five years after the license... became irrevocable is sufficient to establish title by prescription. [Citations.]” (Id. at p. 58.) At least one commentator has questioned this case, stating that the Ricioli “statement appears contradictory. A license is based on express or implied consent and if used by permission it should not ripen into a prescriptive right. In theory, either the licensee has permission, and because of his or her expenditures the license has become irrevocable for the necessary period under the circumstances, or the licensee did not have permission and he or she has used the property adversely and under a claim of right.” (6 Miller & Starr, Cal. Real Estate (3rd ed. 2006) § 15:2, p. 15-15, fn. 30.)
This commentary raises an interesting question as to the soundness of the decision in Ricioli v. Lynch, supra, 65 Cal.App. 53. Nonetheless, the jury in the case before us found that the elements of an irrevocable license had been met. It also found that the requirements of a prescriptive easement had been met. The Harms care not whether the judgment gives Mr. Hetman the license or the easement, provided it does not give him both. Mr. Hetman would like the portion of the judgment granting him a prescriptive easement to remain in tact. The Harms having failed to provide any authority contradicting Ricioli, we harmonize the jury’s two findings by holding that Mr. Hetman originally acquired an irrevocable license from the Wongs, but later acquired a prescriptive easement as against the subsequent owners of the burdened property who did not give their permission for his use of the sliver of property. We reverse the portion of the judgment granting Mr. Hetman an irrevocable license and remand the matter to the trial court with directions to modify the judgment to grant Mr. Hetman a prescriptive easement only.
C. Slander of Title:
In their complaint, the Harms also alleged that in June 2005 Mr. Hetman began making claims to themselves and certain neighbors that he owned portions of the Harm property. Mr. Hetman appeared to claim title not only to the sliver of property covered by the brick planter wall, but also to portions of the front slope of their property leading from the property line separating the two properties, down to the Harms’ driveway. Allegedly, Mr. Hetman even placed some roofing tiles on the Harms’ property along the front slope area leading from the brick planter wall to a fire hydrant next to the front sidewalk.
Because of the difficulties the neighbors were experiencing, the Harms hired a contractor to build a stucco block wall on their property leading from an existing shared block wall towards the front sidewalk. The homeowners association approved the construction plans. The Harms alleged that when their contractor began work, “he was immediately harassed by [Mr.] Hetman, who called the police and took the position that [the Harms] could not start construction because [Mr.] Hetman owned the land in that area.”
(1) Motion in limine
Mr. Hetman filed a motion in limine in which he requested, inter alia, that the court exclude all evidence and argument with respect to the Harms’ cause of action for slander of title. The abuse of discretion standard applies to rulings on motions in limine (Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 699-700), and Mr. Hetman says the trial court abused its discretion in denying his motion. As a preliminary point, although Mr. Hetman cites no portion of the record containing a trial court ruling on the motion, given the fact that the cause of action proceeded to litigation, Mr. Hetman must be correct in his representation that the trial court ruled against him.
In his motion in limine, Mr. Hetman argued that a slander of title claim must be predicated on “a recorded document or an oral statement that interferes with an actual sale.” He also contended that if an oral statement was the ground, the statement must have been widely disseminated. Mr. Hetman said that no sale was impeded, inasmuch as Mr. Harm had testified at deposition that he and his wife had never listed their property for sale. Mr. Hetman also said that inasmuch as the Harms had admitted that the purported oral statements were made to less than 10 people, the statements could not have been widely disseminated, so no cause of action for slander would lie.
“‘The elements of the tort [of slander of title]... have traditionally been held to be publication, falsity, absence of privilege, and disparagement of another’s land which is relied upon by a third party and which results in a pecuniary loss.’ [Citation.]” (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630.) Contrary to Mr. Hetman’s assertion, interference with a sale is not required. “Although the extant cases deal mainly with the loss incurred as the result of losing a purchaser, it is clear in California that a slander of title can result where no purchaser is present. [Citation.]” (Appel v. Burman (1984) 159 Cal.App.3d 1209, 1215.)
Appel v. Burman, supra, 159 Cal.App.3d 1209 also involved a dispute between neighbors. There, plaintiff property owners decided to add onto their home. They informed defendant neighbors of their plans. The plaintiffs disclosed that a fence and a utility pole would need to be relocated in order to proceed with the project. (Id. at pp. 1211-1212.) The defendants then contacted the department of water and power and asserted that the location of the fence, not the location of the actual boundary line between the properties, was the agreed upon boundary line. The result was that the department of water and power refused to move the utility pole. This resulted in a two-year delay in the construction of the addition, during which time construction costs rose. (Id. at p. 1212.) The court held that the pecuniary loss in the form of increased construction costs was sufficient to support a cause of action for slander of title. (Id. at p. 1215.) As Appel shows, slander of title may be found even where no sale of the property is thwarted.
As for Mr. Hetman’s assertion that the dissemination, if oral, must be widely made, we disagree. Mr. Hetman cites Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, which stated that slander of title may take place not only when a particular sale is thwarted, but also when a plaintiff loses a market for his or her property due to the wide dissemination of disparaging matter. (Id. at p. 424.) The language in question addressed certain possible causes of pecuniary loss, but was not phrased in limiting language. Glass simply did not state that if the purported disparaging statement was oral, it had to be widely disseminated in order to support a cause of action for slander of title, no matter the context.
The trial court did not abuse its discretion in ruling on the motion in limine.
(2) Motion for directed verdict
Next, Mr. Hetman argues that the trial court erred in denying his motion for directed verdict on the slander of title cause of action. He claims there was no substantial evidence to show that he made any statement claiming ownership of the Harms’ property, that any such statement either interfered with an actual transaction or was widely disseminated, or that any damages resulted from the alleged slander.
“In reviewing the denial of a motion for... directed verdict, appellate courts, like trial courts, must evaluate the evidence in the light most favorable to the plaintiff. [Citation.] Reversal of the denial of a motion for... directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiff’s case.” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 263.) As we shall show, substantial evidence supports the slander of title cause of action.
Stone mason Antonio Aceves testified at trial. He had been hired by the Harms to build a stucco block wall on their property. In fact, Aceves had been instructed to build the wall three inches in from the property line, entirely on the Harms’ property. After Aceves started jackhammering to dig a trench for the footing, Mr. Hetman came out to talk to him. Aceves was standing on the Harms’ property, on the sloped area in question, when Mr. Hetman pointed where Aceves was standing and said, “This is my property.” The incident was videotaped. At some point, the police arrived. Given the incident, Aceves decided to stop construction on the wall. The jury saw the videotape of the incident where Mr. Hetman confronted Aceves.
In addition, Mr. Harm testified that during the incident, Mr. Hetman repeatedly stated, “This is my property,” while pointing to the area where the workmen were situated. Mr. Harm also testified that Mr. Hetman said the same thing to the police. In addition, Mr. Harm testified that Mr. Hetman was the one who called the police and that the police recommended that a property line survey be obtained. Also, Mr. Harm testified that, earlier in the day, before the police were called, Mr. Hetman had told him personally that the property where the Harms were proposing to build the block wall was his property.
Mrs. Harm, who videotaped the incident, said she heard Mr. Hetman say, “This is my property,” while pointing to the slope area. She also testified that the police showed up.
There was substantial evidence to show that Mr. Hetman told Aceves that the property he was standing on, where Aceves was starting construction on the block wall, was Mr. Hetman’s property, and further that this resulted in the cessation of construction. There was also substantial evidence to show that Mr. Hetman made his claim of ownership in the presence of the police. This disposes of the assertion that there was no substantial evidence of a claim of ownership.
Although Mr. Hetman says that there is no substantial evidence that any statement interfered with a transaction or was widely disseminated, as we have previously stated, it is not the case that the disparagement of title must result in the loss of a property sale or that the disparagement, if oral, must be widely disseminated. However, we observe that there was indeed substantial evidence of interference with a transaction, that is, the construction of a block wall.
That leaves the allegation that there was no substantial evidence of any damages resulting from the alleged slander. We disagree, as we shall discuss below.
(3) Excessive damages award
In addition to claiming there was no substantial evidence of damages to support a cause of action for slander of title, Mr. Hetman also claims the Harms were not entitled to damages for slander of title because they did not prevail on a quiet title claim, and that the damages award was excessive. He also states that he brought a new trial motion with respect to damages, but the motion was denied. He impliedly challenges the order denying his new trial motion. However, he makes no particular argument directed to the denial of his new trial motion, so we need not address it. (R. A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 801-802, fn. 3 [appellate court need not address issue unsupported by cognizable legal argument].) We address his other points.
Mr. Hetman currently says that the Harms, at trial, requested two items of damages with respect to the slander of title cause of action. They sought compensation, in the amount of $900, for the increased cost of building the wall due to the delay caused by litigation over the ownership of the slope area. They also requested attorney fees incurred to resolve the slander of title. Mr. Hetman omits to mention that, in his new trial motion, he stated that the Harms also requested surveyor fees, in the amount of $1,000 to $1,500.
Mr. Hetman points out that the Harms did not present any expert testimony with respect to increased construction costs due to the delay in building the block wall. Aceves testified that when he undertook work in 2005, he was going to charge $2,000 or $3,000 for the construction of the block wall. He also testified that construction costs had increased in the two years since he had begun work. However the testimony Aceves offered as to the amount of the increase in costs was stricken, because Aceves was not designated as an expert witness.
After the construction of the wall was halted, the Harms hired Attorney Gregory Page to represent them. Attorney Page testified that his entire legal bill was approximately $150,000 to $160,000. He further testified that the portion of the bill devoted to the slander of title and intertwined quiet title issues, from the time of hire in November 2005 through January 2007, was $93,000. At the time of trial in July and August 2007, the Harms were represented by Attorney Richard Jones.
As Appel v. Burman, supra, 159 Cal.App.3d 1209 shows, a successful plaintiff in a slander of title cause of action may recover the increase in construction costs due to delay (id. at p. 1215), and attorney fees incurred “‘in removing the doubt cast by the disparagement of title....’” (Id. at p. 1216.) There was substantial evidence to show that construction costs had increased, although the exact amount of the increase in the cost of the construction of the wall was not shown. There was also substantial evidence to show that attorney fees incurred in removing the doubt as to title caused by Mr. Hetman’s aspersions cost $93,000 for Attorney Gregory Page’s services prior to trial.
The jury awarded $96,200 in damages with respect to the slander of title cause of action. This is somewhat more than the sum of the $900 requested for the increased construction costs, the $93,000 in attorney fees for Attorney Page’s time, and the approximately $1,500 request for the surveyor’s fee. Although we are uncertain as to the reason for the discrepancy, the jury knew that attorney fees were a proper element of damages and that the attorney fees did not stop accruing in January 2007, but that they continued to accrue through trial. The discrepancy may represent a reasonable estimate for attorney fees through trial. Since we consider the evidence in the light most favorable to the verdict, we must uphold the findings here. (Appel v. Burman, supra, 159 Cal.App.3d at p. 1215.)
Mr. Hetman attacks the portion of the award attributable to attorney fees. He emphasizes that the $93,000 amount for Attorney Gregory Page’s attorney fees arose out of services rendered with respect to both the slander of title cause of action and quiet title issues. He concedes that plaintiffs in a slander of title action can recover attorney fees incurred with respect to quiet title issues, citing Glass v. Gulf Oil Corp., supra, 12 Cal.App.3d at pages 438-439. However, he insists that no attorney fees relating to quiet title issues should be recoverable in this case because the Harms did not prevail on any quiet title causes of action.
In their second amended complaint, the Harms asserted numerous causes of action, including one for slander of title and one for quiet title. In their quiet title cause of action, they sought to quiet title to both the slope area in the front of their property where they sought to build the stucco block wall and to the area where Mr. Hetman’s brick planter wall encroached on their property. In his cross-complaint, Mr. Hetman sought to quiet title to the area where his brick planter wall encroached onto the Harms’ property.
The Harms prevailed on the slander of title cause of action. While neither the special verdict nor the judgment articulated a finding on their quiet title cause of action, it is implicit in both documents that the front slope area of the Harms’ property where the Harms sought to erect their stucco block wall was adjudicated as belonging to them. On the other hand, Mr. Hetman prevailed on his quiet title cause of action with respect to the brick wall planter box, the court granting him both a prescriptive easement and an irrevocable license to use the encroachment area. In other words, the Harms prevailed on the portion of their quiet title cause of action pertaining to the front slope area where they sought to build a stucco block wall, and lost the battle only as to the portion of their quiet title cause of action pertaining to the four-inch wide encroachment area covered by Mr. Hetman’s brick planter wall. Mr. Hetman is in error in claiming that the Harms did not prevail on any quiet title issue.
In short, the Harms were entitled to recover as damages the costs of a survey and attorney fees to press their slander of title claim, as well as increased construction costs with respect to their stucco block wall. Mr. Hetman has not shown that the award of damages for slander of title was excessive.
D. Injunction re Harms’ Proposed Stucco Block Wall:
(1) Introduction
The party seeking an injunction has the burden to “prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief.... [Citation.]” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) “‘A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action... against a defendant and that equitable relief is appropriate.’ [Citation.] The grant or denial of a permanent injunction rests within the trial court’s sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.] The exercise of discretion must be supported by the evidence and, ‘to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] review such factual findings under a substantial evidence standard.’ [Citation.] We 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. [Citation.]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.)
In the second cause of action of his first amended cross-complaint, Mr. Hetman sought an injunction prohibiting the Harms from constructing the proposed stucco block wall along the property line. He alleged that the construction of the wall would violate sections 7.6 and 7.16 of the applicable CC&R’s, would obstruct his view and thereby constitute a nuisance, would require a permit from the City of Lake Forest, and would reduce subjacent and lateral support for his brick planter wall.
The court granted the requested relief. In the judgment, the court stated: “Under the evidence and circumstances of this case the court finds that the erection of such a wall would be in violation of the CC&R’s and would impair [Mr. Hetman’s] view of his right of quiet enjoyment of his property. The court comes to this conclusion, despite the testimony of Patricia Ayres who gave evidence that the City of Lake Forest and the Homeowners Association had apparently approved the erection of the wall.”
In their initial briefing on appeal, the Harms claimed that Mr. Hetman had failed to prove his entitlement to an injunction and the court had abused its discretion in granting the relief. They explained that their construction of the proposed stucco block wall would violate neither section 7.6 nor section 7.16 of the CC&R’s. However, the record on appeal did not contain a complete copy of the CC&R’s. We issued an order requesting the Harms to file a complete copy of the CC&R’s and asking the parties to provide supplemental briefing addressing whether the CC&R’s prohibited the construction of the wall as proposed. The Harms filed a supplemental appendix containing a complete copy of the CC&R’s, as filed with the trial court. The parties filed supplemental letter briefs as requested.
(2) Nuisance
While the court found that the construction of the proposed stucco block wall would violate the CC&R’s, it did not articulate which section of the CC&R’s would be violated. Since Mr. Hetman had cited two different sections, we address each one.
Section 7.6 of the CC&R’s provides: “Nuisances. No rubbish or debris of any kind shall be placed or permitted to accumulate anywhere within the Properties, and no odor shall be permitted to arise therefrom so as to render the Properties or any portion thereof unsanitary, unsightly, or offensive from any public or private street or from any other Lot... in the vicinity thereof or to its occupants. No noise or other nuisance shall be permitted to exist or operate upon any portion of a Lot... so as to be offensive or detrimental to any other Lot... or to its occupants. Without limiting the generality of any of the foregoing provisions, no exterior speakers, horns, whistles, bells or other sound devices..., noisy or smoky vehicles, large power equipment or large power tools, unlicensed off-road motor vehicles or other items which may unreasonably disturb other Owners... shall be located, used or placed on any portion of the Properties without the prior written approval of the Architectural Committee....”
The Harms say section 7.6 of the CC&R’s pertains only to odors and noise disturbances. Clearly, the language of section 7.6 focuses on odors, noises, and unsanitary or unsightly conditions. However, as Mr. Hetman points out, section 7.6 does include a catch-all provision stating that “[n]o noise or other nuisance shall be permitted to exist... upon any portion of a Lot... so as to be offensive or detrimental to any other Lot....” (Italics added.)
The question is whether the proposed stucco block wall could be considered a nuisance within the meaning of section 7.6. Mr. and Mrs. Harm each testified that there already existed a shared, five-foot stucco block wall separating the backyards of the two properties. The wall they propose to build would be a stucco block wall matching the existing stucco block wall in terms of appearance and starting at the terminus of that existing wall. Where the new segment of the stucco block wall would adjoin the existing portion, it would be the same height as the existing stucco block wall and run parallel to Mr. Hetman’s brick planter wall, but would be located entirely on the Harms’ property. At the point where the brick planter wall ends, the proposed stucco block wall, so as not to impair any view from a driveway, would drop down to three feet in height as it proceeded down the slope to the fire hydrant. The plans approved by the City of Lake Forest contain a description of the proposed stucco block wall that is consistent with this testimony.
The parties disagree as to whether the proposed stucco block wall would be described properly as five feet or six feet in height. The Harms state that the wall would be five feet in height above ground, with an additional one foot below ground. Mr. Hetman disagrees with this characterization, saying that the proposed wall is a full six feet in height and that its description ought not be determined by the amount of dirt placed against it in any one location. The resolution of this point is not outcome determinative.
Mr. Hetman does not explain how a stucco block wall that would match an existing wall in terms of appearance could be construed as a nuisance, within the meaning of section 7.6 of the CC&R’s. He does not suggest that it would be unsightly, unsanitary, noisy or odorous. He gives no indication of how a wall of the same appearance as the existing stucco block wall could be offensive or detrimental.
We independently interpret the terms of the CC&R’s and construe them “‘strictly against the person seeking to enforce them, and any doubt will be resolved in favor of the free use of land.’” (Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, 622.) Mr. Hetman, as the party seeking the injunction, had the burden to prove the elements of the cause of action (City of South Pasadena v. Department of Transportation, supra, 29 Cal.App.4th at p. 1293) and this court reviews the sufficiency of the evidence in support of the finding that the construction of the proposed stucco block wall would violate the CC&R’s (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 390). We conclude there is no evidence to support a finding that the proposed stucco block wall would constitute a nuisance within the meaning of section 7.6 of the CC&R’s. Consequently, Mr. Hetman was not entitled to an injunction based on an alleged violation of section 7.6. We turn now to section 7.16.
(3) View obstruction
(a) arguments
Section 7.16 of the CC&R’s provides in pertinent part: “View Obstructions. Subject to the provisions of Article VIII hereof, no... Improvement, or other obstruction shall be... constructed... on any Lot... in such location or of such height as to unreasonably obstruct the view from any other Lot....”
In his initial supplemental letter brief, Mr. Hetman contends that the Harms “have not challenged the Court’s factual findings.” This is a curious contention considering that, in their initial brief on appeal, the Harms argued that, “in light of the evidence presented at trial,” the court erred in concluding that the proposed stucco block wall would violate section 7.16 of the CC&R’s. We construe this as a challenge to the evidentiary support for a factual finding that the construction of the proposed stucco block wall would violate section 7.16. Contrary to Mr. Hetman’s assertion, the Harms did not waive the issue for failure to raise it in their initial appellate brief.
They also did not waive it for failure to raise it in the trial court, as Mr. Hetman further asserts. In their posttrial brief, the Harms argued that the homeowners association and the City of Lake Forest had approved the construction of the proposed stucco block wall, there was no authority to enjoin the construction, and Mr. Hetman had “failed to produce any evidence at trial contrary to” the evidence regarding the homeowners association and city approvals. Mr. Hetman characterizes the Harms’ posttrial brief as failing to “address any factual issues” concerning the impact of the proposed stucco block wall on his view. However, the Harms’ charge that Mr. Hetman had failed to produce evidence contradicting the approvals may be construed as an argument that he failed to produce evidence that the proposed stucco block wall would violate section 7.16 of the CC&R’s or impair his view. To the extent it may be construed otherwise, the Harms nonetheless are not barred from raising the evidentiary issue on appeal.
“As a general rule, failure to raise a point in the trial court [constitutes] a waiver and appellant is estopped to raise the point on appeal. [Citation.] However, whether the general rule shall be applied is largely a question of the appellate court’s discretion. [Citation.] There are several exceptions to the general rule. For example, an error may be raised on appeal although it could have been made the basis of a motion to vacate judgment or a motion for new trial. [Citations.]” (Lilly v. Lilly (1982) 129 Cal.App.3d 925, 928-929.) Here, the alleged error could have been raised in a motion for a new trial on the basis of insufficiency of the evidence to justify the decision. (Code Civ. Proc., § 657.) This being the case, and trial having concluded before the brief in question was filed, the consideration of the matter on appeal will not prejudice Mr. Hetman.
Further contrary to Mr. Hetman’s suggestion, the Harms’ attack on the evidence does not go beyond the scope of this court’s request for supplemental briefing. We specifically asked “whether the CC&R’s prohibit the construction of the stucco block wall proposed to be built by [the Harms.]” Since section 7.16 of the CC&R’s generally prohibits construction of an improvement that unreasonably obstructs an owner’s view, part and parcel of the question on appeal is whether the record contains evidence to show that the proposed stucco block wall would obstruct Mr. Hetman’s view.
(b) evidence
Turning now to the question of substantial evidence, in their initial brief on appeal, the Harms argued that the homeowners association’s approval of their plans was evidence that the construction of the wall would not violate section 7.16; they cited no portion of the record to support the contention that the construction of the wall would constitute a violation of section 7.16. At trial, it was up to Mr. Hetman, as the party seeking the injunction, to put on evidence to show that the proposed wall would violate section 7.16 by unreasonably obstructing his view. (City of South Pasadena v. Department of Transportation, supra, 29 Cal.App.4th at p. 1293.) In their supplemental briefing, the Harms assert that “[t]here was no testimony at the time of trial as to what view rights the proposed stucco wall obstructed or whether [Mr.] Hetman sustained any damages as a result of the wall.”
Mr. Hetman does not directly contradict this assertion. He simply disputes the Harms’ suggestion that the proposed stucco block wall would be only two feet higher than his brick planter wall. In support of his position that the proposed stucco block wall would really be five feet higher than his brick planter wall, at least at a certain point, he cites exhibit No. 382, a copy of which he attached to his second supplemental letter brief. He also cites the portion of the record wherein the exhibit was moved into evidence. That took place during a portion of James Harms’ testimony wherein he was asked questions about a trench dug along the brick planter wall and about a birch tree planted nearby. Mr. Hetman cites no portion of the record wherein he himself provided any testimony concerning exhibit No. 382 or wherein he provided any testimony concerning how the construction of the proposed stucco block wall would impact his view.
That notwithstanding, exhibit No. 382 was placed in evidence and, with or without the testimony of Mr. Hetman, provides some evidence of a potential impact on his view. The photograph shows that certain of the first story windows on one side of Mr. Hetman’s house directly face the existing stucco block wall. It is not apparent from the photograph that any other side-facing windows would be impacted by the continuation of the stucco block wall. However, one might surmise that if a person were standing inside the house, directly in front of the windows, and looking not straight ahead towards the existing stucco block wall, but rather sideways towards the street, one might be able to look out across a portion of the Harms’ front yard. Having no information on the height of those windows, it is unclear whether, if the proposed stucco block wall were built, it would at least partially obstruct that sideways view. It is conceivable that the answer is “yes,” but the extent of any possible obstruction is unknown. Nonetheless, exhibit No. 382 provides some evidence that a possible sideways view obstruction, of unknown scope, would result if the proposed stucco block wall were built.
(c) abuse of discretion
The question then is whether the proposed stucco block wall would “unreasonably obstruct the view from” Mr. Hetman’s property, within the meaning of section 7.16 and whether the trial court abused its discretion in awarding injunctive relief. Section 7.16 “contain[s] no specific type of standard as to how much obstruction is not to be tolerated, such as a given percentage of the originally available view. The guide is simply not to be unreasonable.” (Seligman v. Tucker (1970) 6 Cal.App.3d 691, 697.) “[T]he court carries out the function of determining what is reasonable or unreasonable in light of the matter and the circumstances involved....” (Ibid.)
Here, we have an allegation that the construction of the proposed stucco block wall would obstruct Mr. Hetman’s view. In support of that allegation, we have one photograph, with no testimony concerning the height of the windows in the photograph or even the scope of the current view. The photograph shows that the windows face the existing wall and it is pure speculation how the extension of that wall would affect a sideways view from those windows. Assuming there would be some degree of obstruction of a sideways facing view, we ask whether that obstruction would be unreasonable in light of the circumstances. (Seligman v. Tucker, supra, 6 Cal.App.3d at p. 697.)
Unlike Seligman v. Tucker, supra, 6 Cal.App.3d 691, 693, where the view restriction protected “panoramic views of the lower San Fernando Valley,” and Zabrucky v. McAdams, supra, 129 Cal.App.4th 618, 623, where the view restriction protected “beautiful ocean view[s],” there is no indication in the matter before us of the particular nature of any views section 7.16 was designed to protect or of the specific view Mr. Hetman stands to lose. There is, however, substantial evidence of the need for a wall between the front yards of the Harm and Hetman properties.
There was testimony to the effect that Mr. Hetman turned his hose on Mr. Harm, splashed mud on Mrs. Harm and her daughter, threw fertilizer on Mrs. Harm, put poison on the Harms’ property, claimed ownership of a portion of the Harms’ front yard, demanded that the Harms cease planting a portion of their front yard that he claimed as his own, pulled out some of their ground cover, and halted construction work on their property.
Mrs. Harm testified as to one incident of particular note. On the morning of June 29, 2005, she was out planting a bush known as a “silver sheen” in her front yard. Mr. Hetman came out, claimed she was working on his property, and demanded that she cease. Mr. Hetman went into a “tirade. He was so angry, he turned blood red, just blood red, was trembling and shaking, and when he spoke, spit came out of his mouth.” Mrs. Harm told Mr. Hetman she “wasn’t going to argue with him,” and she went into her backyard. Mr. Hetman “followed [her] into [her] backyard, still screaming at [her].” She told him: “‘Get off my property. I’m calling the police.’” Then he left.
When Mrs. Harms’ mother came over later in the day, she informed Mrs. Harm that Mr. Hetman was on her property “‘pulling something out of the ground.’” Mrs. Harm thought it best to ignore him. However, when Mrs. Harm and her mother returned to the house later on after having gone out to lunch, Mrs. Harm saw that some strawberry ground cover “had been ripped out and thrown on [her] lawn” and that “out of the blue there were red Spanish clay roof tiles lined up between [Mr.] Hetman’s property and” hers. There were two rows of tiles, placed on the Harms’ property, smashing their ground cover.
Around 6:00 o’clock that evening, Mrs. Harm and her then 11-year-old daughter went into the front yard to plant some flowering ground cover, around the silver sheen that had been planted in the morning. The two of them were on their hands and knees doing the planting. Mr. Hetman dragged a hose from near his front door, down to the sidewalk area, and watered the mud so that it splashed up on Mrs. Harm and her daughter. Mrs. Harm started yelling at him and he started yelling back, again turning “blood red,” “shaking,” and “spitting.”
The jury was clearly convinced of Mr. Hetman’s ill behavior towards the Harms, inasmuch as it returned a special verdict for $327,000 in compensatory damages and $150,000 in punitive damages to the Harms. Without a wall separating the two properties, the Harms have a reasonable fear that they will not even be able to landscape their own front yard without being subjected to further tortious conduct by Mr. Hetman.
Here, there was little evidence of any significant obstruction of the view from Mr. Hetman’s property and there was strong evidence that, given the need for a wall between the properties, the obstruction in question would not be unreasonable. Under the circumstances of the case, the trial court abused its discretion in enjoining the Harms from constructing the proposed stucco block wall as approved by the homeowners association and the City of Lake Forest. We reverse the portion of the judgment enjoining the Harms from building the wall as approved by those two entities.
E. Expert Testimony re Auto Incident:
Mr. Hetman brought his new trial motion on several grounds, one of which was the assertion that the jury arbitrarily disregarded his expert’s testimony with respect to an incident in which he purportedly tried to run down Mrs. Harm and her son with his car. He claims the court erred in denying his new trial motion.
Mrs. Harm testified that on July 1, 2005, she and her 14-year-old son James were out walking their dog. Mrs. Harm was wearing shorts and sandals. She was walking nearest the curb, close to the street. Her “son screamed and yelled, ‘look out.’” She first started to look away from the street towards her son, then felt intense heat on her leg. As soon as she felt the heat on her leg, she looked to the left and saw “Hetman’s car right there.” Mrs. Harm testified that Mr. Hetman’s car scraped the curb and came with two to four inches of her leg. She made eye contact with Mr. Hetman, who had “an incredibly angry look on his face.” After his car scraped the curb, “all of a sudden his car went on the wrong side of the road,” so that he was “in the opposite lane of travel.”
Mrs. Harm, her son, and the dog went straight home. When they got there, Mr. Hetman was standing in his driveway, with his arms folded. “The look on his face was — something else.” Mrs. Harm said Mr. Hetman “was just staring us down, looked like he wanted to continue fighting from the day before....” She and her son avoided him, and went in the house. Mrs. Harm said that her son was extremely shaken up. Mr. Harm said she should call the police. However, Mrs. Harm was afraid that if she did so, it would only make the situation with Mr. Hetman worse, so she chose not to.
The Harms’ son, James, also testified at trial. He described the incident in essentially the same manner as Mrs. Harm did. He said that he and his mother were walking the dog. His mother was closest to the curb. He heard “a car accelerating pretty fast,” coming from behind them. James turned to look and saw Mr. Hetman “accelerating, swerving towards the curb.” When James first saw Mr. Hetman’s car, it was about three car lengths behind them. He yelled “look out” to his mother. Mr. Hetman’s car bounced off the curb and then Mr. Hetman “veered, like lost control for a couple of seconds, veered off to oncoming traffic, no one there, and corrected himself.” James estimated that the car came within a few inches of his mother. It scared both of them. They went home and he went straight to his room, because he “was really shaken up about the whole experience.”
When asked if he could estimate the speed of the vehicle, James said, “No way.” He acknowledged that he had estimated a speed of 40 miles per hour in his deposition, but he explained: “I was just assuming because I know that was the speed limit.” When asked whether it could have been a number other than 40 miles per hour, he said, “Yeah.” When asked if he was then certain about how fast Mr. Hetman’s vehicle was traveling, James, who had just gotten his learner’s permit the week before he testified, replied that he was “[s]till not very good with speed.”
Mr. Hetman called Dr. Kenneth Solomon as an accident reconstruction expert. Dr. Solomon expressed his opinion that the incident could not have occurred as James and his mother had described. He based his opinion on his inspection of the street and Mr. Hetman’s vehicle, a number of other items of information, physics, human reaction time, and the testimony of James and his mother. Dr. Solomon repeatedly referenced the testimony of teenage James as to the speed and distance of the vehicle, the angle of approach, the angle of departure, and the fact that the vehicle purportedly wound up in the oncoming traffic lane.
In support of his assertion that the jury ignored Dr. Solomon’s testimony, Mr. Hetman cites the portion of the special verdict having to do with the cause of action for slander against him. The jury answered “yes” to the following question: “Did Soraya Harm make the following statement to persons other than Wayne Hetman? Wayne Hetman tried to run down Soraya Harm and her son with his car.” The jury also answered “yes” to the question whether Mrs. Harm’s statement was substantially true.
The general rule is “that ‘expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary.’ [Citation.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.) Mr. Hetman argues that, because the Harms did not present any expert testimony of their own, the jury’s apparent rejection of Dr. Solomon’s testimony must be considered arbitrary and unreasonable. We disagree.
“The exceptional principle requiring a fact finder to accept uncontradicted expert testimony as conclusive applies only in professional negligence cases where the standard of care must be established by expert testimony.” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 632.) “Because the instant case does not present any issues of professional negligence or medical malpractice, there was no reason to require the trier of fact to accept as ‘conclusive’ the uncontradicted testimony of appellant[’s] experts. Instead, the general rule applies. Under this rule,... the opinion of any expert witness ‘is only as good as the facts and reasons on which it is based....’ [Citation.]” (Id. at pp. 632-633.) The trier of fact “must give to each opinion the weight which it finds that opinion deserves.” (Id. at p. 633.)
Here, the expert witness based his opinion to a significant extent on the description of young James Harm, who was not even a licensed driver at the time of the incident, as to the speed of the vehicle, the angle of approach and departure, and the distance of the vehicle from the persons involved when James first saw it. Although Dr. Solomon said he took into consideration the possibility that James’s description was not perfectly accurate as to those factors, and considered different variables as to those factors, he nonetheless placed considerable emphasis on the testimony of a youngster’s description of those items.
At the same time, both James and Mrs. Harm testified as to the basic premise that Mr. Hetman had very nearly hit Mrs. Harm with his vehicle, a matter purely within their knowledge and scope of understanding, irrespective of whether their description of the particulars was precise. It is up to the jury to weigh the credibility of the witnesses. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) “Because the verdict was supported by substantial evidence, the trial court did not err in denying... the motion for a new trial. [Citation].” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 636.)
F. Injunction against Mr. Hetman:
In their second amended complaint, the Harms alleged that Mr. Hetman engaged in actions including: “a) attempting to kill or injure plaintiff Soraya Harm and her son James by running them over with [his] car while they were walking on a public sidewalk; b) hosing down plaintiff Soraya Harm and her daughter Megan with a garden hose while they were gardening on [their] Property; c) throwing fertilizer granules or pellets at plaintiff Soraya Harm while she was gardening on [her] Property; d) following plaintiff Soraya Harm and her son James to the local grocery store and blocking plaintiffs’ car with defendant’s car to prevent plaintiff and her son from leaving the parking lot; e) pulling plaintiffs’ plants out; f) threatening to pull plaintiff[s’] plants out; g) trespassing on the [plaintiffs’] Property; h) poisoning plaintiffs’ trees and shrubs; i) following plaintiff Soraya Harm at a close distance when she took a walk on a public sidewalk with the intent to harass and intimidate plaintiff; j) turning the garden hose on plaintiff James Harm while he was gardening on [his] Property; k) following or attempting to follow plaintiffs and their children while traveling on public streets; l) intimidating and harassing plaintiffs and their family by staring at, spying on, and attempting to come near to plaintiffs and their children while plaintiffs attempt to use and enjoy [their] Property; and m) intimidating and harassing plaintiffs and their family by taking photographs of [their] Property in areas where plaintiffs have a reasonable expectation of privacy.” These alleged actions were described in more detail in paragraphs 30 through 39 of their second amended complaint, pertaining to their nuisance cause of action.
The Harms sought both damages and an injunction with respect to that cause of action. The jury awarded $42,625 in damages to Mr. Harm and $32,625 in damages to Mrs. Harm, for nuisance. In addition, on related matters, the jury awarded intentional infliction of emotional distress damages of $69,500 to Mr. Harm and $59,500 to Mrs. Harm, and negligence damages of $18,500 to Mr. Harm and $8,500 to Mrs. Harm.
Where the injunction for nuisance is concerned, the Harms sought to have Mr. Hetman restrained “from committing, or continuing with the commission of, the acts alleged and/or described in Paragraphs 30 through 39 of [the Second Amended] Complaint, which constitute a nuisance and harassment, and which have interfered with plaintiffs’ quiet use and enjoyment of [their] Property[.]”
After the jury rendered its verdict, the court asked the Harms’ attorney to prepare a judgment. In addressing the need for a ruling on reserved issues, the attorney raised the issue of the requested injunction “against Mr. Hetman to stay so many feet away from [the Harms].” The court replied: “That should be incorporated in the judgment, the wording, so defense counsel has an opportunity to review it, comment on it, object to it if he feels that there are objections to it.”
The Harms’ attorney prepared a proposed judgment that contained a 14-paragraph injunction against Mr. Hetman. Some of those paragraphs were devoted to requiring Mr. Hetman to maintain a certain distance from the Harm family members under given circumstances, and other paragraphs addressed other topics, such as interference with the quiet use and enjoyment of the Harm property or the posting of signs within 25 feet of the Harm property. One of the distance restrictions would have prohibited Mr. Hetman from “coming within... 50 feet of [the Harms or their] relatives, visitors, guests, contractors, agents or representatives while [they were] on the [Harms’ property] and [Mr. Hetman was] located on the Hetman Property[.]” Other distance restrictions would have required Mr. Hetman to stay 100 feet away from the Harms when they were in a public place including a public street or sidewalk.
Mr. Hetman filed objections to the proposed judgment. Among other things, he asserted that the proposed injunctive language was “overly broad, vague and ambiguous, would prevent [Mr. Hetman] from occupying his property, and [would constitute] a prior [restraint] on his freedom of speech.” He further asserted that the language would effectively bar him from occupying his own home. He explained that, given the sizes of the respective properties, the 50-foot stay-away limitation would prohibit him from occupying a portion of the interior of his home if the Harms were standing in the center of their home. Mr. Hetman also said that, given the 100-foot stay-away limitation, he would be unable to leave his own property or return to it if the Harms were on the sidewalk in front of their home.
At a hearing on the Harms’ motion for attorney fees, held nearly two months after the conclusion of trial, the issue was addressed whether the motion was premature because issues pertaining to the parties’ respective requests for injunctive relief remained unresolved. When the Harms’ attorney expressed his understanding that the court had ruled in favor of his clients on their request for an injunction against Mr. Hetman, the court questioned whether the injunctive relief had been granted and suggested ordering a transcript. The attorney for Mr. Hetman suggested that the parties simply submit briefs addressing the requests for injunctive relief, as equitable issues that had not been submitted to the jury. The court adopted the suggestion and ordered posttrial briefing on injunctive relief. The parties each filed their posttrial briefs.
Without an additional hearing, the court, in a minute order, denied the Harms’ request for injunctive relief. The minute order stated that “[t]he injunction sought [was] overly broad, vague, ambiguous and impractical for [the] [c]ourt to monitor and enforce for most of the reasons cited by [Mr. Hetman] in his brief” and that “a court of equity cannot enjoin the commission of a crime so as to deprive the offender of a jury trial by punishing him for contempt, [citation].” The ruling was then incorporated into the judgment.
In their initial appellate brief, the Harms stated that they “requested that the Court order [Mr.] Hetman to stay a certain distance from the family when he is not at his Foothill Ranch home. These types of injunctions are routinely granted and can be worded so that a person can determine what they cannot... do and can do under the injunction.” Because the record on appeal did not contain copies of their proposed judgment, including the proposed injunctive relief, or Mr. Hetman’s objections thereto, this court requested that the Harms supplement the record with those items and also requested that the parties submit supplemental briefing on “whether this court may remand the issue of an injunction against [Mr.] Hetman to the trial court for further consideration and the preparation of an injunction that contains a narrowly drawn restriction keeping him a specified distance from [the Harms] (see Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141).”
In their supplemental briefing, the Harms contend that “the Trial Court initially granted [their] request for an injunction and subsequently denied it without giving [them] an opportunity to narrow the language in the judgment following special verdict. Accordingly, this Court should reverse and remand to allow the Harms an opportunity to present the Trial Court with narrowly tailored language in the ‘keep away’ injunction.” Mr. Hetman counters that the Harms “never proposed or requested a more limited injunction in the trial court.” However, the record indicates that the court, having the Harms’ proposed judgment under consideration, issued an order denying the request for injunctive relief without giving the Harms an opportunity to draft a more narrowly tailored version.
“‘A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.’ [Citation.]” (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1166-1167.)
Here, the jury awarded the Harms damages for nuisance, so there was a determination on the merits that they had prevailed on that cause of action. However, given the serious nature of Mr. Hetman’s ongoing behavior towards the Harms, including but not limited to the instance when he drove his car towards Mrs. Harm and her son, an award of damages was an inadequate remedy and injunctive relief should have been awarded. At the same time, we agree that an injunction worded so as to preclude Mr. Hetman from occupying the interior of his home or entering and exiting his property would be overly broad. Nonetheless, it was an abuse of discretion for the trial court to deny a “keep away” injunction on the basis that the proposed language was overly broad, without giving the Harms an opportunity to draft a more narrowly tailored injunction. We remand the matter to the trial court to fashion an injunction of appropriate breadth, following notice to the parties and an opportunity to be heard on the matter. (See Balboa Island Village Inn, Inc. v. Lemen, supra, 40 Cal.4th at p. 1162 [remand for further proceedings when injunction overly broad]; Farley v. Cory (1978) 78 Cal.App.3d 583, 590-591 [remand for further proceedings re requested injunctive relief].)
G. Punitive Damages:
The jury awarded to the Harms punitive damages in the amount of $150,000. Mr. Hetman challenged the punitive damages award in his new trial motion. The court found that the evidence pertaining to Mr. Hetman’s financial condition did not justify the amount of the punitive damages award. Consequently, the court conditionally granted Mr. Hetman’s new trial motion on the issue of punitive damages, unless the Harms accepted a reduction in the punitive damages award to $75,000. The Harms accepted the reduction, with the result that the new trial motion was denied.
Mr. Hetman maintains that even the reduced punitive damages award is unsupported by the evidence, and that, indeed, the evidence of his financial condition was insufficient to support any punitive damages award at all. He correctly notes that it was the Harms’ burden to show his financial condition (Adams v. Murakami (1991) 54 Cal.3d 105, 119), and says that they failed to do so because they put on no evidence of his liabilities or expenses. In addition, Mr. Hetman maintains that the Harms failed in their effort to show that he fraudulently transferred his prior home to his mother shortly before the lawsuit was commenced. Finally, Mr. Hetman reminds us that individual retirement accounts are exempt from execution “to the extent ‘necessary to provide for the support of the judgment debtor when the judgment debtor retires..., taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires.’ [Citation.]” (McMullen v. Haycock (2007) 147 Cal.App.4th 753, 755-756.) With those arguments in mind, we turn now to the evidence.
Mr. Hetman testified at trial that his current home was worth approximately $800,000, but that it had about $800,000 in liens against it. He claimed to be current on the first deed of trust and about 10 months, or $20,000, in arrears on the second.
Mr. Hetman further testified that he had a 1988 Toyota that he owned free and clear, that had a value of about $500. He also said he had a Mustang with a new car loan of $9,000 against it. In addition, Mr. Hetman testified that his credit card debt was about $5,000.
Mr. Hetman said he received about $36,000 per year in disability payments. He claimed to have only about $1,000 in a savings account and about $200 in a checking account. He said the only other money he had at a banking institution was $50,000 in an individual retirement account. He claimed to have no stocks, no bonds and no investments of any other kind. He estimated his net worth at zero.
Interestingly, Mr. Hetman owned other significant property which he transferred away shortly before the Harms filed their initial complaint. Mr. Hetman testified that he bought a home in Santa Ana in 1987 for approximately $125,000. In 1992, he purchased his current home, next to what is now the Harms’ property, for approximately $251,000. Mr. Hetman testified that his mother moved into the Santa Ana home in 1992, that she was purchasing the property from him “on a rent to buy basis” and that he transferred title to her “when the mortgage was paid off[.]” However, while he stated that the mortgage was paid off in 2003, he did not transfer title to the Santa Ana property to his mother until February 2006, about three months after he hired an attorney with respect to the boundary line dispute. Mr. Hetman claimed not to know the value of the property when he transferred it to his mother in February 2006. In March 2006, the Harms filed their complaint against Mr. Hetman.
Mrs. Harm testified that about the time she first moved into their home, in September 2003, she had a conversation with Mr. Hetman in which he mentioned owning a second house, in Santa Ana. She said that he told her he had sole ownership of the house, and that he did not mention any arrangement with his mother. Mrs. Harm also said that she asked Mr. Hetman how he could own a second house on a teacher’s salary. She stated that he told her he bought it with the proceeds of other lawsuits.
We turn now to Mr. Hetman’s points. “Because the quintessence of punitive damages is to deter future misconduct by the defendant, the key question before the reviewing court is whether the amount of damages ‘exceeds the level necessary to properly punish and deter.’ [Citations.]” (Adams v. Murakami, supra, 54 Cal.3d at p. 110.) “A reviewing court cannot make a fully informed determination of whether an award of punitive damages is excessive unless the record contains evidence of the defendant’s financial condition.” (Ibid.) It is not the case, as Mr. Hetman suggests, that the Harms put on no evidence of his financial condition. The Harms called him to testify about his financial condition and he did so. It was up to the jury, and then the trial court when it reduced the award, to evaluate that evidence.
“The determination of whether an award is excessive is admittedly more art than science.” (Adams v. Murakami, supra, 54 Cal.3d at p. 112.) The Adams court reiterated “the well-established rule that a punitive damages award is excessive if it is disproportionate to the defendant’s ability to pay. [Citations.]” (Id. at p. 112.) Although the Adams court noted that different courts had applied different ratios to support the results in the cases before them (id. at pp. 112-113), it declined itself “to prescribe any rigid standard for measuring a defendant’s ability to pay.” (Id. at p. 116, fn. 7.) Taking the Adams court’s lead, we decline to accept any of the limiting ratios Mr. Hetman suggests as a hard and fast rule that would prohibit the imposition of punitive damages in this case.
“‘The purpose of punitive damages is to punish wrongdoers and thereby deter the commission of wrongful acts. [Citations.]’ [Citation.]” (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1689.) We reverse “‘“as excessive only those judgments which the entire record, when viewed most favorable to the judgment, indicates were rendered as the result of passion and prejudice....” [Citation.]’ [Citation.]” (Ibid.) There are “three factors to consider in reviewing whether an award is excessive: (1) the reprehensibility of the acts of the defendant in light of the record as a whole; (2) the amount of compensatory damages awarded; and (3) the wealth of the particular defendant. [Citation.]” (Ibid.) “Under California law an award is presumed to be the result of passion and prejudice where it is grossly disproportionate to compensatory damages. [Citations.]” (Id. at p. 1695.)
While Mr. Hetman focuses on only the third factor, we must consider all three. (Adams v. Murakami, supra, 54 Cal.3d at p. 111.) Here, the jury awarded a total of $327,000 in compensatory damages and $150,000 in punitive damages. The court reduced the punitive damages to $75,000. Unlike some cases where the punitive damages award is several times the amount of the compensatory damages award, here, the original punitive damages award was less than half of the amount of the compensatory damages award. It has been reduced to less than a quarter of the amount of the compensatory damages award. We cannot say that the amount of the punitive damages award is grossly disproportionate to the amount of the compensatory damages award.
Having looked at Mr. Hetman’s financial condition and the amount of compensatory damages awarded, we turn now to the reprehensibility of his conduct. The jury heard testimony concerning escalating conduct from the minor to the egregious. In addition to halting the construction of their stucco block wall by claiming to own property he did not, Mr. Hetman turned his hose on Mr. Harm, splashed mud on Mrs. Harm and her daughter, threw fertilizer on Mrs. Harm, tore up the Harms’ plants and put poison in their yard, intimidated the Harms’ teenage daughter on the roadway, used his vehicle to block Mrs. Harm’s vehicle in a public parking lot, and, most egregiously, nearly ran her down with his car. This conduct transcends that arising out of a common boundary line dispute or out of run of the mill differences as to the storage of trash cans. It legitimately placed the Harms in fear of their safety.
Clearly, the jury, having heard testimony on the nature of Mr. Hetman’s wrongdoing, felt that a $150,000 award was necessary to deter him from future conduct. The court, giving consideration to Mr. Hetman’s testimony about financial condition, chose to reduce the award, but it chose not to reduce the award to zero. We “give great deference to the trial court’s findings.... [Citation.]” (Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at p. 1698.) “‘The trial court is in a far better position than an appellate court to determine whether a damage award was influenced by “passion or prejudice.” [Citation.] In reviewing that issue, moreover, the trial court is vested with the power, denied to us, to weigh the evidence and resolve issues of credibility. [Citation.]’ [Citation.]” (Id. at p. 1689.) We affirm the award.
III
DISPOSITION
We reverse the portions of the judgment awarding Mr. Hetman both a prescriptive easement and an irrevocable license, enjoining the Harms from building the stucco block wall as approved by the homeowners association and the City of Lake Forest, and denying injunctive relief in favor of the Harms and against Mr. Hetman. We direct the trial court to modify the judgment: (1) to reflect the capacities of the Harms either as individuals or as trustees, consistent with this opinion; (2) to award Mr. Hetman a prescriptive easement only with regard to his brick planter wall; and (3) to award a narrowly tailored “keep away” injunction against Mr. Hetman, after notice to the parties and an opportunity to be heard on the scope of the same.
In all other respects, we affirm the judgment. The Harms shall recover their costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.