Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2007-00062618- CU-OR-ECEddie C. Sturgeon, Judge.
O'ROURKE, J.
Defendants and appellants Kazmer Leonard Pezdek and Charlene Mary Pezdek, individually and as trustees of the Pezdek Family Trust, appeal from a judgment in favor of plaintiffs and respondents Robby G. Hoggatt and Olariny Chhim-Hoggatt following a bench trial on the plaintiffs' verified complaint arising out of dispute over the boundary between the parties' adjacent properties and certain claimed physical encroachments by defendants. The trial court awarded plaintiffs injunctive and declaratory relief, damages and costs, in part finding they were entitled to a judicial declaration quieting title to specified property, they had established defendants' encroachments constituted a nuisance and trespass, and they had established $115,801 in cost-of-repair, diminution in value and general damages. It rejected defendants' "agreed-boundary" defense.
Hereafter, references to Pezdek and Hoggatt are to Kazmer Pezdek and Robby Hoggatt.
On appeal, defendants contend (1) the trial court erred by quieting title in plaintiffs' favor because undisputed evidence established the elements of the agreed-boundary doctrine; (2) the plaintiffs' trespass and nuisance causes of action are barred at least in part by the applicable three-year statute of limitations; (3) the trespass cause of action does not support the court's award of $15,000 in general damages (4) the injunction ordering them to remove all improvements within their legal setback exceeds the relief available to the plaintiffs and (5) the injunctive relief and money damages constitute an improper double recovery. With respect to the injunctive relief portion of the judgment, we order the trial court to modify the judgment so as to narrow the scope of injunctive relief in specified respects. As so modified and in all other respects the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
We take the factual background from the facts and evidence in the record and the trial court's statement of decision. We view the facts most favorable to the judgment under the principle requiring us to presume the judgment is correct and draw all inferences and presumptions necessary to support it. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 494.) " 'Where [the] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the [trial court's] decision.' " (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 342.) If the statement of decision is ambiguous or omits material factual findings, we will infer any factual findings necessary to support the judgment. (Ermoian v. Desert Hosp., at p. 494.)
Defendants unsuccessfully moved ex parte to set aside the judgment to allow the trial court to consider objections they had sought to make to its proposed statement of decision. They do not challenge the trial court's ruling on their ex parte application. Nor do they discuss the effect of their objections on the trial court's statement of decision or this court's consideration of the facts, other than to say the trial court's summary of the facts contains "errors...." Because defendants do not meaningfully challenge the trial court's rulings concerning the judgment or its written statement of decision, we shall apply the doctrine of implied findings and infer factual findings necessary to support the judgment. (Ermoian v. Desert Hosp., supra, 152 Cal.App.4th at pp. 494-495, 498-500.)
Plaintiffs own residential property at 10317 San Vincente Boulevard in Spring Valley, California. Defendants own adjacent property at 10315 San Vincente Boulevard immediately to the north and east of the plaintiffs' property. Pezdek has constructed various improvements, including a masonry wall, wooden fence and portions of a patio cover and roof overhang, that encroach across the legal boundary line onto plaintiffs' property.
Pezdek began constructing the wall and fence sometime in 1986, after he and the original owner of plaintiffs' property, Daniel Hawthorne, talked about placing fencing between their properties. Hawthorne and his wife desired privacy and they had a dog that they wanted to keep on their property, which at the time had no barriers with Pezdek's property. Pezdek knew Hawthorne desired a fence out of concern about the security of his children and pet, and that the fence was not intended to modify their property boundaries. Pezdek also desired the fence for security. His and Hawthorne's first discussion about the matter concerned where to put the fence, whether they could afford one, and who would do the job. They decided to do the work themselves, but needed to locate the property boundary.
The next day, Hawthorne and Pezdek looked for, but could not find, the property markers between their respective properties. The men dug into the ground where they thought the markers should be. They enlisted the help of Richard Webber, a neighbor who was also the general manager of the contractor who built the homes, but he likewise could not find the markers. Pezdek asked Webber to point out where he thought the line was. Webber pointed to areas along a berm that he thought demarcated the property line, and the men put stakes down at those points. Hawthorne and Pezdek agreed they would locate the fence along a berm or ridge between their properties and would consider that the property line. They eventually placed the fence on that location. After they erected the fence, they did not create documents to adjust the boundary between their properties nor did they reach any written agreement to keep the fence where it was located, rewrite the deed to indicate the fence location, or grant any easement to Pezdek for the fence location.
About two years later, Hawthorne and Pezdek extended the fence, but Pezdek later removed a portion of the extension when successor owners to Hawthorne asked that he remove it and a trash area on their property. Pezdek had no discussions about the property boundaries with Hawthorne's successor owners.
Plaintiffs moved into 10317 San Vincente Boulevard in March 2004. At the time of their purchase, they did not receive a copy of the subdivision map or perform a survey; when they closed escrow, they did not know the property line and nobody raised issues concerning the property lines before the sale. Within a few months after moving in, Hoggatt told Pezdek he would be putting a retaining wall between an air conditioner on his property and the Pezdeks' property to prevent eroding dirt from defendants' bank from building up onto into the compressor. Pezdek suggested they remove more dirt and extend the fence and retaining wall. Hoggatt asked Pezdek whether he knew where the boundary was and was told it was on the existing fence. Pezdek told him the new extension would come straight out along the boundary line toward the front of the properties. Hoggatt took Pezdek's word that the existing wall and fence was on the property line.
After construction began, Hoggatt noticed the wall extension was being built so that it angled toward his property about two feet from the existing fence line. Hoggatt had agreed to help pay for the wall and fence extension, but he did not agree or intend that Pezdek could take a portion of his property to construct it. Hoggatt approached Pezdek about the offset. Pezdek changed his story, telling Hoggatt that the preexisting wall was actually on his (Pezdek's) property and he was "getting back" some of his property by changing the location of the extension.
In March 2007 Hoggatt commissioned a survey, which revealed that both the preexisting and extended wall and fence were on his property. Several weeks later, he approached Pezdek and asked him to remove the wall and place it on his property. Pezdek offered to move the new wall in line with the preexisting wall, but Hoggatt declined. Hoggatt listed all of the encroachments that he wanted removed and demanded that Pezdek correct raised hardscape conditions that allowed dog urine and other runoff to drain into the Hoggatts' yard. Pezdek did not agree, but they decided to meet again within a couple of weeks. The Hoggatts met with Pezdek three additional times without resolution. At the final meeting, Pezdek took the position that the fence was an established boundary. He accused Hoggatt of extortion and abuse of process, and remarked he would do "whatever it takes" to stop the Hoggatts from pursuing the boundary issue.
The Hoggatts next interacted with the Pezdeks in August 2007. Hoggatt was outside with his wife and son cleaning their garage and driveway following a garage sale. The Pezdeks arrived home and Mrs. Pezdek yelled out, "You should be ashamed of yourself. You should be ashamed.... Not letting [the Hoggatts' son] talk to us and that's just no class, no class at all." When Mrs. Hoggatt began to reply, Pezdek, referring to Mrs. Hoggatt's Cambodian descent, remarked, "I guess that's how they are in the Jungles of Cambodia."
In October 2007, the San Diego County Planning Department issued an administrative citation to defendants for the encroaching construction and improvements and also for approximately 1500 feet of unpermitted additions to their home. At about this time, the Pezdeks began waiting for the Hoggatts to arrive home in order to rush to the property line and make comments, stare or grimace at them. At one point, Pezdek, looking very angry, said to Hoggatt in a low voice, "Just wait. What goes around comes around." Hoggatt began videotaping the interactions with the Pezdeks as they had accused him of harassment and he feared additional incidents by the Pezdeks. Hoggatt became concerned for the safety of himself and his child as well as about the use and enjoyment of his property. Later incidents involved Pezdek's profane outbursts; on one occasion he leaned over the wall and used a racial epithet, including telling Hoggatt, "Fuck you and the fucking gook you're married to." On another occasion, a neighbor saw Pezdek come at Hoggatt with his fist cocked and became so concerned that Pezdek might physically attack Hoggatt that he pulled out his cell phone and considered calling police. Hoggatt became stressed, anxious and nervous for himself and his son, and sought medical care for sleeplessness and hives as a result of the Pezdeks' conduct. He was also concerned by the fact the Pezdeks had threatened to report him for child abuse. The Hoggatts later obtained a restraining order against the Pezdeks.
In November 2007, plaintiffs filed a verified complaint for quiet title, nuisance, injunctive and declaratory relief, and damages. Alleging defendants had no legitimate claim, right, title, estate, lien or interest in their property, they sought to quiet title against all of defendants' claims, require defendants to remove the encroaching wall and improvements, and obtain a judicial declaration as to their ownership of the disputed portions of the property. Plaintiffs alleged defendants used their property as to constitute a nuisance due to a French drain and other permanent structures and drainage that caused water runoff, drainage and flooding onto their property. Plaintiffs alleged they had no adequate remedy at law for the injuries caused by the encroachments; that their property was unique, it would be difficult to ascertain the monetary damages sustained as a result of defendants' wrongful acts, and multiple judicial proceedings would be necessary to protect their interests by defendants' ongoing encroachment and trespasses on their property. They alleged they had suffered emotional distress and diminution in the value of their property.
The matter proceeded to a bench trial in which the Hoggatts presented testimony from Robert Russell, a professional land surveyor and principal of Kappa Surveying, who they had retained to conduct the survey. His firm had created the original subdivision map for the properties and had also performed a survey of the property in 2001 including a corner record map, which made it easy for him to reestablish and replace the boundary markers based on those documents and his survey techniques. Russell testified that from a surveying standpoint, it would have been easy to locate a back corner marker of the property that had been destroyed by the wall construction; likewise, in 1986, it would have been fairly simple to replace the missing corner boundary marker with the existing monumentation.
Hawthorne testified he had received a copy of the subdivision map setting forth the boundary locations and he understood a survey would be the most accurate way to locate the property markers, but he could not afford one. He testified he paid the full cost of his property taxes while he owned the property. Hawthorne specifically declined to characterize the issue concerning the boundary with Pezdek as a dispute; he described it as a "question" about the location of the property line. Pezdek testified he and Hawthorne intended to locate the fence at or close to the property line; Pezdek did not intend to give Hawthorne any portion of his property and he did not intend to take any of Hawthorne's property by the fence location.
The court took the matter under submission and in July 2009 issued its ruling in plaintiffs' favor. On July 16, 2009, defendants requested a statement of decision and in September 2009, the court signed and filed its statement of decision as well as a judgment in plaintiffs' favor. In its statement of decision, the court rejected defendants' agreed-boundary defense. It found the record title clearly described the boundary lines and that those descriptions and a survey would allow for an easy determination of the parties' property lines. The court found Hawthorne's testimony "supports a finding that the fence constructed between Hawthorne and Pezdek was merely a barrier and not an agreed boundary line" and that "the true line was not uncertain or unknown and therefore the agreed boundary doctrine did not apply." It ordered defendants to remove all improvements, including the encroaching wall, within defendants' legal setback area and any improvements, rocks and other materials located on plaintiffs' property. It awarded plaintiffs $56,401 in "cost of repair" damages, $44,400 for the permanent diminution in value of their property, $15,000 in general damages, and costs of suit. This appeal followed.
DISCUSSION
I. Quiet Title Based on the Agreed-Boundary Doctrine
Conceding that part of the fence and wall and other structures encroached on property described in the plaintiffs' deed, defendants contend the undisputed evidence shows that all of the land up to the fence and wall nevertheless belongs to them under the agreed-boundary doctrine, and that the court therefore erred in quieting title to the property in the plaintiffs' favor.
A. Forfeiture
As a threshold matter, we address the plaintiffs' forfeiture argument. They ask this court to treat defendants' contentions as waived for failure to set forth the evidence most favorable to the trial court's judgment. Plaintiffs maintain defendants also misapprehend the standard of review; that the issue is not whether evidence exists to support application of the agreed-boundary doctrine, but whether substantial evidence exists to support the court's ruling that the doctrine did not apply.
We decline to find forfeiture on this record. As defendants point out, the testimony concerning the historical circumstances of Hawthorne and Pezdek's agreement and their fence construction was essentially undisputed. Both men testified they could not locate the property markers and, after the former project manager pointed to what he thought was the boundary, agreed to locate the boundary and fence at a berm between their properties. It is undisputed that the men intended to install the fence out of a desire for privacy and/or security, and neither intended to modify the true boundary lines by placing the fence at its location. Hawthorne testified, without contradiction, that he knew a survey would have been the most accurate way to locate the boundary but he did not have the funds to commission one. For his part, Pezdek testified that he did not call a surveyor in 1986 and nothing prevented him from hiring one at that time.
In deciding whether these facts warranted application of the agreed-boundary doctrine, the trial court was permitted to - and apparently did - make deductions or draw inferences from those facts. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 301.) We have no power to substitute our deductions for those of the trial court. (McIntyre v. Doe and Roe (1954) 125 Cal.App.2d 285, 287.) Under these circumstances, plaintiffs are correct that we apply the substantial evidence test to the trial court's judgment. (See Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1304; accord, French v. Brinkman (1963) 60 Cal.2d 547, 549-550 [a finding that a plaintiff is or is not an owner of real property in a quiet title action is a finding of ultimate fact, not a conclusion of law, to which the substantial evidence standard applies].)
While defendants do not set forth a summary of the substantial evidence test in their brief, they do rely upon that standard and fairly summarize the material undisputed historical facts in their argument sections. Under the circumstances, we conclude no forfeiture occurred and shall address defendants' agreed-boundary arguments on the merits.
B. Legal Principles
The California Supreme Court summarized the applicable principles in Bryant v. Blevins (1994) 9 Cal.4th 47 (Bryant): "The agreed-boundary doctrine constitutes a firmly established exception to the general rule that accords determinative legal effect to the description of land contained in a deed. One early case thus explains the basis for the agreed-boundary doctrine: '[T]he rule has been established that when such [coterminous] owners, being uncertain of the true position of the [common boundary described in their respective deeds], agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.... [¶]... [¶]... If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds.' " (Bryant, 9 Cal.4th at pp. 54-55.)
"Although the agreed-boundary doctrine is well established in California, our case law has recognized that the doctrine properly may be invoked only under carefully specified circumstances.... 'The doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.' " (Bryant, 9 Cal.4th at p. 55.) "[T]he doctrine should not be applied broadly to resolve boundary disputes where there is no evidence that the neighboring owners entered into an agreement to resolve a boundary dispute and where the true boundary is ascertainable from the legal description set forth in an existing deed or survey. [Citations.] The common theme of [appellate court decisions on the question] is a deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication, through reliance upon unreliable boundaries created by fences or foliage, or by other inexact means of demarcation." (Ibid.)
The parties' intentions are "critical" to the validity of an agreement fixing a boundary, and the court should place itself in the position of the parties and ascertain their intent as in the case of any contract. (Armitage v. Decker (1990) 218 Cal.App.3d 887, 900 (Armitage); People ex rel. Brown v. Tehama County Bd. of Supervisors (2007) 149 Cal.App.4th 422, 437.) The parties to the agreement must intend not only to mark the true line, but also to accept the marked boundary as the true boundary. (Martin v. Lopes (1946) 28 Cal.2d 618, 626; Kirkegaard v. McLain (1962) 199 Cal.App.2d 484, 491.) Thus, courts have rejected the doctrine where the evidence showed builders of a fence fixed a fence line for occupancy or to enclose cattle, and not for the purpose of establishing title or a boundary line. (See Moniz v. Peterman (1934) 220 Cal. 429, 435-436 [citing cases].)
Courts have also rejected application of the agreed-boundary doctrine where parties not engaged in a boundary dispute are merely mistaken about the true boundary. " '[W]here a boundary fence is built on what the parties suppose to be the true line, and there is no dispute, and it is not known that there is any uncertainty, the establishment of a boundary by implied consent and acquiescence does not follow therefrom.' " (Kirkegaard v. McLain, supra, 199 Cal.App.2d at p. 491 ["mere acquiescence in what adjoining landowners mistakenly believe to be the true line, without any notion on their part of fixing a disputed or uncertain boundary, does not amount to an agreement fixing a disputed or uncertain boundary line"]; Pra v. Bradshaw (1953) 121 Cal.App.2d 267, 269 [" 'An agreement or acquiescence in a wrong boundary when the true boundary is known, or can be ascertained from the deed, is treated in both law and equity as a mistake, and neither party is stopped from claiming the true line' "].)
C. Analysis
The question in this appeal is not whether Hawthorne and Pezdek's testimony establishes the elements of an agreed boundary; the proper inquiry is whether the evidence, and reasonable inferences therefrom, supports the judgment including the trial court's finding - express or implicit - that in reaching their agreement to place the fence, Hawthorne and Pezdek were not operating under uncertainty about the boundary line and did not agree to fix a boundary. (Accord, Cottle v. Gibbon (1962) 200 Cal.App.2d 1.) In Cottle, the appellate court explained that the trial judge in a nonjury trial is the sole arbiter of conflicts in the evidence and conflicting interpretations and inferences, and may disbelieve witnesses even though their testimony is uncontradicted if there is rational ground for doing so. (Id. at p. 4.) The evidence of occupancy and acquiescence in Cottle (including the fact that the parties did not want to " 'get into a survey expense' ")supported conflicting inferences on the agreed-boundary issue, and the Court of Appeal held the trial court was not required to accept the inferences relied upon by the plaintiff in rejecting the doctrine. (Id. at p. 9.)
In the present case, the men never disputed the true boundaries of their property, did not intend to alter the boundaries, and installed the fence for reasons - security and privacy - unrelated to setting a boundary line. Hawthorne knew a survey would locate the correct boundaries, and the evidence shows that at all times, the property lines were easily ascertainable by that method. While Pezdek and Hawthorne both testified they did not know the true boundary location because they could not find the markers, we conclude that evidence by itself does not conclusively establish uncertainty for purposes of the doctrine; indeed, the men enlisted Webber's aid, who identified what he believed was the true boundary. Thus, the trial court could reasonably conclude that when Hawthorne and Pezdek reached their agreement to treat the fence as the boundary, the men in fact were not uncertain in that they believed, albeit mistakenly, they were placing it on the true boundary as pointed out by Webber. No evidence suggests the men were settling any kind of dispute in either choosing the location or placing their fence. On this record, the trial court was entitled to conclude there was no evidence that the fence "was erected to resolve uncertainty as to the location of the property boundary" (Bryant, supra, 9 Cal.4th at p. 58); it could find Hawthorne's and Pezdek's agreement to treat the fence as a boundary was not based on, or ensued from, any uncertainty as the true location of the line. "Where no evidence shows that prior owners of adjoining parcels agreed to resolve a boundary dispute and where legal records provide a reasonable basis for fixing the boundary, the agreed-boundary doctrine does not apply." (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1303; see Bryant, at pp. 53-54.)
These facts are akin to those in Pra v. Bradshaw, supra, 121 Cal.App.2d 267, in which the trial court quieted title in the plaintiffs' favor to land on which the defendants had constructed an encroaching brick wall, rejecting the defendants' agreed-boundary defense. (Id. at p. 268.) As here, when the defendant in Bradshaw had constructed the wall, no markers could be found, so he fixed the dividing line with the assistance of the seller and the owner of the adjoining lot (Milam) using a fence and telephone poles. (Ibid.) The defendant testified he had an express oral agreement with Milam to fix the common boundary along the south side of the wall. (Id. at p. 270.) The Court of Appeal nevertheless held the trial court was not obliged to adopt the defendant's testimony as true and upheld the judgment: "Inasmuch as the boundary was properly described in the deeds of both parties, there had been no dispute as to the boundary prior to the survey. There had been only a mistaken acquiescence in what was believed to be the true boundary. In such situation, [defendant] asserting the south side of the wall to be the south boundary of [his lot] and [plaintiffs'] acquiescing in such assertion, such acquiescence by [plaintiffs] in a wrong boundary is considered in both law and equity as a mistake and either party is free to claim the true line." (Id. at pp. 269-270; see also Kirkegaard v. McLain, supra, 199 Cal.App.2d at p. 491 ["Where... coterminous proprietors are in possession of land under a mutual mistake as to the division line, such possession has no effect upon their legal rights, nor is it adverse or conclusive against the assertion of any existing right based upon the true title"].)
The appellate court summarized the evidence as follows: "According to Mr. Bradshaw's testimony his conversation with his grantor, McDonald, was in progress when Milam stopped by to see what was going on. At that time there was no dispute as to the location of the line. All three men knew the deeds conveying Lots 38 and 39 contained the correct description of their boundaries and they knew that if they were not clearly marked by stakes on the ground they could be definitely ascertained by the transit and compass. Instead of using those scientific devices they attempted to fix the common boundary by taking turns at sighting from the telephone pole on the west side of Nicholson Avenue to the pole 600 feet to the east. Fixing an invisible line by sighting around one telephone pole to another is not proof of a zeal to be accurate when dealing with the rights of another. Since the conversation with Milam and McDonald occurred in 1936 and the construction of the wall did not commence until 1939 and inasmuch as instrumentalities were during those three years available for fixing the common boundary line between Lots 38 and 39, it is understandable why the trial court was not enthusiastic over the testimony of appellants and therefore could make no finding that Mr. Bradshaw had an express agreement with Mr. Milam as to the location of the dividing line between the two lots." (Pra v. Bradshaw, supra, 121 Cal.App.2d at pp. 270-271.)
Also analogous is this District's decision in Talmadge v. Moore (1950) 98 Cal.App.2d 481, in which the trial court similarly rejected the defendant's agreed-boundary claim. The defendant, challenging the sufficiency of the evidence on appeal, claimed that a dispute and uncertainty existed as to the location of a boundary line; that a survey was made and the line located by agreement with the plaintiffs' predecessor; and that the agreement was acquiesced in until a licensed surveyor established the true boundary. (Id. at p. 483.) At trial, the predecessor owner had testified that "he did not know where the line was, and being desirous of building a new fence, he called upon a surveyor to survey the lines so that he could erect a fence on it; that the fence was subsequently erected...; that an iron stake was driven in the ground at the southeast corner of the lot and that he had a conversation with the defendants prior to building the fence, the substance of which was that the line, as made by the survey, was satisfactory upon which to build it." (Ibid.) The predecessor also testified it was his "intention to claim 'clear up to the true property line, wherever it might be, irrespective of where the fence might be.' " (Ibid.)
The Court of Appeal stated that the predecessor's testimony "indicates that the agreement, if any, between the defendants and [the predecessor owner] was not as to a boundary line but was that the fence, where it was built, was satisfactory. It is apparent that [the predecessor] intended to claim the full width of his property, regardless of the location of the fence." (Talmadge v. Moore, supra, 98 Cal.App.2d at p. 484.) It reasoned, "Where, as here, the acquiescence in the fence was as a barrier and not as a boundary line, no agreed boundary line was established." (Ibid.) The court concluded that in view of the predecessor's testimony, it could not hold the record lacked substantial evidence to support the trial court's finding that no boundary line was established by agreement. (Ibid.)
Here, both Hawthorne and Pezdek testified similarly; Pezdek did not intend to give up any of his respective property by reaching his agreement with Hawthorne, and Hawthorne testified he did not take any steps to memorialize or document the property boundary as a result of the agreement. Under circumstances where the trial court could infer Hawthorne and Pezdek did not resolve any boundary issue by building the fence, and the fence was not built for that reason, it was entitled to conclude the men's agreement was merely intended to fix the location of the fence, which would serve as a barrier, not as a boundary. Whether the parties operated under a mistake or did not enter into the requisite agreement to fix a boundary, we reach the same result: that the evidence and reasonable inferences therefrom supports the trial court's rejection of defendants' agreed boundary defense. "Where the evidence does not satisfy the requirements of the doctrine, the law should not employ the agreed-boundary doctrine 'to trump the boundary established by the legal records.' [citation] and 'to disposses[s] an owner of his land when a legal means of establishing an accurate boundary lies quite readily and conveniently to hand.' " (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1304.)
Citing Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702 (Ernie), defendants urge that the line established by the agreed boundary doctrine may in fact be founded on a mistake. Ernie v. Trinity does not itself involve a claim of mistake. It cites Nusbickel v. Stevens Ranch Co. (1921) 187 Cal. 15 for the general proposition. (Ernie, at p. 708.) In Nusbickel, a 1921 opinion, the California Supreme Court merely observed that the possibility that a boundary line was established by mistake is always present where a division line is discovered not to be on the true boundary; "[t]he fact that [the division line] was founded on a mistake always appears, and must appear, else there would be no occasion to invoke the doctrine." (Nusbickel, 187 Cal. at p. 19.) But at about the same time, the high court decided Huddart v. McGuirk (1921) 186 Cal. 386, in which the circumstances were such that the court determined the parties operated under a mistake as opposed to an agreement to fix a disputed or doubtful boundary, and thus upheld the trial court's finding declining to apply the doctrine. (Id. at pp. 387-388.) Rather than focus on the doctrine of mistake, we believe the trial court properly focused on ascertaining the parties' intent and knowledge concerning the existence of the boundary and their agreements, if any, as to any boundary issue.
In Huddart v. McGirk, supra, 186 Cal. 386, as in this case, the two parcels at issue were originally unbounded, and there was no fixing or marking of the boundary. (Id. at p. 387.) The defendant stated he had later agreements to fix a ditch line as the boundary line. (Ibid.) The reviewing court found it "very doubtful" that the conversations, with the exception of one, could amount to agreements fixing a boundary line as to which there was a dispute, or as to whose true location the parties were in doubt, a necessary element in any agreement fixing the line as other than the true line. (Id. at p. 388.) The court said: "This is a very different thing from fixing a disputed or doubtful boundary, and if in fact the understanding of the parties as to the location of the true line was in error, they are not bound by their mistaken understanding." (Ibid.) It upheld the judgment, holding the evidence as a whole supported the trial court's implied finding that the acquiescence that was shown was "merely in what the parties mistakenly believed to be the true line without any notion on their part of fixing a disputed or uncertain boundary." (Id. at p. 389.) In Martin v. Lopes, supra, 28 Cal.2d 618, the court observed that Huddart was a case in which one of the elements of an agreed boundary was lacking. (Martin, at p. 626.) We perceive, as did the trial court in this case, the missing elements in this case to be " 'actual or believed uncertainty as to the true line' " (ibid.)and the requisite agreement to fix the fence as the boundary.
The controlling authority on the matter - Bryant, supra, 9 Cal.4th 47 and Armitage, supra, 218 Cal.App.3d 887, heavily relied upon by Bryant – compels us to conclude that under these circumstances, when existing legal records provide a basis for fixing a boundary, the trial court was warranted in drawing inferences against application of the doctrine. Bryant stated, "In our view, an unduly broad application of the doctrine tacitly encourages a lack of due diligence on the part of property owners by tempting them not to consult legal descriptions in an effort to reach amicable resolution of their disputes, and instead induces property owners to resort to the courts to resolve their boundary disputes. We should not promote such a potentially litigious alternative.... [M]indful of the objectively certain legal description of defendants' property and the absence of any evidence suggesting that uncertainty as to the true boundary led to the creation of a 'fence-made' agreed boundary, we... hold that defendants have failed to establish the 'uncertainty' and 'agreement' required in order to establish an agreed boundary." (Bryant, at p. 60.)
II. Statute of Limitations
Defendants contend plaintiffs' trespass and nuisance causes of action are barred by the three-year statute of limitations to the extent they are based on the encroachments of permanent structures, which defendants point out were constructed before plaintiffs purchased their property in March 2004. They maintain plaintiffs' November 2007 complaint was filed eight months past the expiration of the three-year statute of limitations. Plaintiffs respond that defendants' statute of limitations defense is untimely and waived, as it is raised for the first time on appeal. They further argue that assuming defendants did not waive the defense, the delayed discovery rule applies to defeat any statute of limitations defense, as they only discovered the encroachments after they commissioned the Kappa survey in March 2007.
Defendants pleaded the statute of limitations as an affirmative defense in their answer, argued the statute in closing arguments, and raised it in their objections to the trial court's statement of decision. However, the point was not raised in defendants' request for a statement of decision, and the court did not include mention of any statute of limitations defense in the final statement of decision, though it expressly discussed (and rejected) defendants' agreed boundary defense. It is not clear on this record whether defendants preserved their limitations defense. However, we need not decide the forfeiture issue, because we agree the evidence permits us to conclude the trial court implicitly applied the delayed discovery rule to defeat any statute of limitations defense.
There is authority for the proposition that even if raised in an answer, when the statute of limitations defense is not identified or litigated as a trial issue, it is abandoned. (See RRLH, Inc. v. Saddleback Valley Unified School Dist. (1990) 222 Cal.App.3d 1602, 1606, fn. 2; Van Buskirk v. Todd (1969) 269 Cal.App.2d 680, 690.)
A statute of limitation will not commence until a cause of action accrues. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox v. Ethicon).) In general a cause of action accrues at " 'the time when the cause of action is complete with all its elements' " including a wrongful act, causation, and injury. (Ibid.; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 389, 397-398; Shamsian v. Atlantic Richfield Company (2003) 107 Cal.App.4th 967, 979-980 (Shamsian).) In the case of damage to real property, a cause of action accrues when the defendant's act causes " 'immediate and permanent injury' " or when there is actual and appreciable damage to the property, so long as the owner "discovered, or ought to have discovered, " the harm. (CAMSI VI v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1534; Siegal v. Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 1005, 1009, 1014 [in case of latent defects or contamination, the cause of action belongs to the owner who first discovered, or ought to have discovered, the property damage; it is only then that some entity capable of maintaining a legal claim will have suffered a compensable injury].)
An important exception to the above accrual rules is the discovery rule, a common law rule designed to protect a plaintiff who is " 'blamelessly ignorant' " of the existence of a cause of action. (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 408, disapproved on another point in Trope v. Katz (1995) 11 Cal.4th 274, 292; Shamsian, supra, 107 Cal.App.4th at p. 980.) The discovery rule postpones accrual of the cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon, supra, 35 Cal.4th 797at p. 807.) " 'A cause of action under this discovery rule accrues when " 'plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence...' " [Citation.] The limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry. [Citation.] Subjective suspicion is not required. If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation.' " (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108, italics omitted.)
Accordingly, the discovery rule "does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ' " 'information of circumstances to put [them] on inquiry ' " ' or if they have ' " 'the opportunity to obtain knowledge from sources open to [their] investigation.' " ' [Citations.] In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation." (Fox v. Ethicon, supra, 35 Cal.4th at pp. 807-808; Shamsian, supra, 107 Cal.App.4th at p. 980.) It is the discovery of the facts, and not their legal significance, that starts the running of the statute. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1113.) The question of when a party actually discovered or reasonably should have discovered his or her cause of action is a question of fact unless the undisputed facts can support only one reasonable conclusion. (Jolly, at p. 1112; Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 640 [resolution of limitations issue can be a matter of law where " 'uncontradicted facts established through discovery are susceptible of only one legitimate inference' "].)
Here the undisputed trial evidence supports the trial court's implicit conclusion: that the Hoggatts were not aware of possible injury - Pezdeks' physical encroachment onto their property - until Pezdek began building the extended fence at an offset and Hoggatt questioned him about its location. It is true, as defendants point out in their reply brief, that Hoggatt testified that at the time of his and his wife's purchase of their property he did not receive a subdivision map. Defendants argue, presumably based on that fact, that plaintiffs had "every reason" to conduct an investigation concerning the boundary lines of their property when they purchased it in 2004. We disagree. A trier of fact can reasonably conclude that the mere lack of a subdivision or property map at purchase would not cause a reasonable person to suspect a problem or injury absent some other information that would suggest there was a boundary problem. Here, Hoggatt testified no boundary issue was raised or suggested before close of escrow, and shortly thereafter, he took Pezdek at his word that the property boundary rested at the existing fence line between their parcels. There is nothing in the record suggesting that, at the time the Hoggatts purchased their property, they were aware of any information or circumstance that would warrant an investigation into the true boundary lines.
In their reply brief, defendants maintain that in a delayed discovery situation, the statute of limitations is tolled only until such time as a reasonable investigation would have revealed its factual basis, and here, plaintiffs' own expert demonstrated that the true legal boundary was readily ascertainable by a simple survey. But this is an incomplete recitation of the delayed discovery doctrine: it is not enough that a survey would have easily determined the boundary, the doctrine requires that plaintiffs have some information that would put them on notice to conduct an inquiry into a possible boundary problem and seek that survey. (See Fox v. Ethicon, supra, 35 Cal.4th at pp. 807-808 [emphasizing plaintiffs are required to conduct a reasonable investigation "after becoming aware of an injury"].) The trial court could reasonably conclude, and we hold it implicitly did conclude, that those circumstances putting plaintiffs on inquiry notice did not occur until Pezdek began building his extended fence and wall. We thus hold the evidence supports the trial court's implicit rejection of defendants' statute of limitations defense.
III. Award of General Damages
In its statement of decision, the trial court stated plaintiffs' general damages were established "in part" by Hoggatt's testimony that the Pezdeks threatened to report the Hoggatts to child protective services, made ethnic slurs, and threatened Hoggatt with physical violence. It then entered judgment awarding plaintiffs "the sum of $15,000 for general damages." As plaintiffs point out, the trial court's $15,000 general damages award was not limited to the trespass cause of action, but extended to plaintiffs' nuisance claim, including "damages for detriment resulting after the commencement of the lawsuit or certain to result in the future."
Defendants apparently contend that, to the extent the award of general damages is based on a theory of trespass, it must be reversed because there is no evidence plaintiffs suffered emotional distress as a proximate result of the actual trespass (i.e., the permanent encroachments and increase of water runoff) as opposed to defendants' abusive behavior. Asserting that abusive behavior is not an invasion upon plaintiffs' property, they argue we must reverse the $15,000 general damages award and remand the matter for the trial court to determine "to what extent, if any, the plaintiffs suffered emotional distress arising from the alleged trespass on their property and the amount that would compensate the plaintiffs for any such distress."
Defendants' contention as to trespass damages is in substance a claim that the trial court awarded excessive damages, i.e., the award is inflated with a component of nonrecoverable damages. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2009) ¶ 18:162, p. 18-39.) Preserving such a claim for appeal requires it be first made in a new trial motion. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919; County of Los Angeles v. Southern California Edison Co. (2003) 112 Cal.App.4th 1108, 1121.) " 'A failure to timely move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or by the court. [Citation.] The power to weigh the evidence and resolve issues of credibility is vested in the trial court, not the reviewing court. [Citation.] Thus, a party who first challenges the damage award on appeal, without a motion for a new trial, unnecessarily burdens the appellate court with issues that can and should be resolved at the trial level. [Citation.] Consequently, if ascertainment of the amount of damages turns on the credibility of witnesses, conflicting evidence, or other factual questions, the award may not be challenged for inadequacy or excessiveness for the first time on appeal.' " (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 759.) Defendants do not argue that the court applied an improper measure of damages, which would be preserved regardless of a new trial motion. (Ibid.)
Here, resolution of defendants' contention turns on whether the trial court could reasonably conclude that defendants' trespass proximately caused the emotional distress testified to by the Hoggatts. The measure of damages for trespass or nuisance is "the amount which will compensate for all the detriment proximately caused thereby...." (Civ. Code, § 3333; see Armitage, supra, 218 Cal.App.3d at pp. 904-905.) While defendants set forth the general proximate cause standard for emotional distress damages in trespass and nuisance cases, they do not cite authority explaining causation in general or the proximate cause doctrine when applied to torts. Causation consists of two aspects: "One aspect of causation is cause in fact or actual cause: Was the defendant's conduct a ' "substantial factor in bringing about the injury." ' [Citation.] The other is legal or proximate cause. [¶] ' " 'Legal cause' exists if the actor's conduct is a 'substantial factor' in bringing about the harm and there is no rule of law relieving the actor from liability. [Citations.]" ' [Citations.] ' "The doctrine of proximate cause limits liability; i.e., in certain situations where the defendant's conduct is an actual cause of the harm, he will nevertheless be absolved because of the manner in which the injury occurred. Thus, where there is an independent intervening act which is not reasonably foreseeable, the defendant's conduct is not deemed the 'legal' or proximate cause." ' [Citation.] 'In general, if the risk of injury is reasonably foreseeable, the defendant is liable. An independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable.' " (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 665-666; Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, 1385.)
The general rule is that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass. (Armitage, supra, 218 Cal.App.3d at p. 905, citing Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 288; see also Acadia, California, Limited v. Herbert (1960) 54 Cal.2d 328, 337; Herzog v. Grosso (1953) 41 Cal.2d 219, 225-226; Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 172; but see Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456 [stating in dicta and relying on Colorado authority that annoyance and discomfort damages - intended to compensate for loss of peaceful occupation and enjoyment of property - are distinct from general damages for mental and emotional distress and not available for trespass].)
The question of whether damages are proximately caused by trespass is a factual inquiry, as is the issue of the foreseeability of harm. (See Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 37-38 [issue of proximate cause is essentially one of fact]; Weaver v. Bank of America Nat. Trust & Sav. Assn. (1963) 59 Cal.2d 428, 434 [foreseeability is a factual question]; see also Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506 [amount of damages is a fact first committed to the trier of fact and next to the discretion of the trial judge on a motion for new trial].) Defendants' challenge to the general damage award fails for their failure to first assert it on a new trial motion.
IV. Scope of Injunctive Relief
The judgment orders defendants "to remove all improvements 10 feet from the legal boundary, including the encroaching wall, which are within Defendants' legal setback area." (Emphasis omitted.) Defendants contend that to the extent the judgment requires them to cure setback violations along any property line other than that shared with plaintiffs, it exceeds the relief available to plaintiffs and must be reversed. The Hoggatts maintain the argument is irrelevant, moot and disingenuous because at all times the sole focus at trial was the side yard boundary line between their two properties, not any other boundary line, and the only evidence presented as to encroachments was to that particular boundary.
As written, the injunction may be interpreted to apply to the entire legal boundary of the Pezdeks' property. Given the Hoggatts' concession, and because injunctive relief should be tailored to the harm at issue (Butt v. State of California (1992) 4 Cal.4th 668, 695-696), we order the trial court on remand to modify the judgment to limit the injunction to the legal boundary between the Hoggatts' and Pezdeks' properties.
V. Double Recovery
Defendants contend the trial court's award to plaintiffs of $56,401 for cost of repairs and its simultaneous order that defendants remove all of the encroaching improvements, constitutes an improper double recovery. They point out that if they remove the wall, plaintiffs will not need to be compensated for any cost of repair. They suggest the court's $44,000 award for diminution in value suffers from the same flaw, since plaintiffs' expert was assertedly "unable to quantify what portion of the diminution in the property's value was due to the encroachment and what portion was due to the associated stigma." Defendants argue that once the encroachments are removed, they will not be causing any further diminution in value, and the payment of this element of damages would no longer be a compensatory award.
None of these arguments are supported by case authority or reasoned legal analysis. For that reason alone, we may reject them as forfeited. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214.) Nevertheless, we shall address the scope of the injunctive relief to clarify the injunctive order. The judgment requires defendants to remove "all improvements ten feet from the legal boundary, including the encroaching wall, which are within Defendants' legal setback area." It further provides: "Defendants are to remove any improvements located on Plaintiff's land. Part of the improvements to be removed are the unpermitted room additions, shop and shop foundation, constructed landscaping and hard-scape, and the French drain." Plaintiffs explain that the improvements and encroachments "within Defendants legal setback area" are all on defendants' property and would be those structures located in the 10-foot set-back from defendants' side of the true boundary line. They maintain that the judgment shows that the only improvements defendants are required to remove are items other than the fence and wall, which were the only items included in the cost of repair.
Plaintiffs' cost of repair expert, Timothy DeLise, testified about his opinion that $56,601.74 would be the cost to repair the Hoggatts' property. DeLise explained this amount encompassed removing the wall and fence from the Hoggatts' property, excavating the dirt behind it and installing drainage, and replacing the wall and fence on the true property line. It also encompassed removing a PVC pipe causing water to drain onto the Hoggatts' property. His estimate did not include the removal of certain hardscape and concrete, as well as a blue wall located on the Hoggatts' property that is attached to an arch and gate area on the Pezdeks' property.
It appears the trial court sought to require defendants to remove structures or improvements on plaintiffs' property other than the fence and wall, and other encroachments within their legal set back area. However, the injunction is not so tailored, as it further more broadly provides that "Defendants are to remove any improvements located on Plaintiff's land." This language arguably encompasses the fence and wall that expert DeLise included in plaintiffs' cost of repair damages awarded in the judgment. We acknowledge a trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed without a showing of a clear abuse. (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1180.) However, here, because the order requires defendants to remove all improvements on plaintiffs' property, it is duplicative to the extent it also awards plaintiffs their cost of removing the wall and fence on their property and placing it on the true property line. Such duplicative relief is prohibited. (See Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159.) On remand, the trial court should appropriately tailor the injunction to eliminate the duplicate relief.
Defendants' latter contention as to diminution in value is another claim that the trial court awarded excessive damages - the award is inflated with a component of nonrecoverable "stigma" damages. But resolution of the question depends on a factual assessment: Plaintiffs' expert testified that when the Hoggatts sell their property, they would be obligated to disclose to a potential buyer issues related to the Pezdeks' property with the encroachments, including the existence of litigation. He stated these kinds of negative issues affect the property and impact its value negatively, outside of the land value. On cross-examination, however, he admitted the stigma damage does not occur until the property actually sells; that technically there was no stigma if no sale occurred. He also admitted that he had not researched or been told the plaintiffs' property was up for sale. Accordingly, preserving such a challenge to this component of the diminution-in-value award requires it be first made in a new trial motion. (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at pp. 918-919; County of Los Angeles v. Southern California Edison Co., supra, 112 Cal.App.4th at p. 1121.)
DISPOSITION
The trial court is directed to modify the judgment so that defendants' obligation to remove improvements are limited to those within the legal setback area on the boundary of plaintiffs' and defendants' properties, and those within plaintiffs' property other than the fence and wall. As so modified, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.