Opinion
E050742 Super.Ct.No. RIC425395
10-27-2011
CHARLES W. LEE et al., Plaintiffs and Appellants, v. KAREN VESTAKIS et al., Defendants and Respondents.
Mark Brifman for Plaintiffs and Appellants. Maxie Rheinheimer Stephens & Vrevich, Jane A. Rheinheimer and Suzanne L. Smigliani for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Gloria Connor Trask, Judge. Affirmed.
Mark Brifman for Plaintiffs and Appellants.
Maxie Rheinheimer Stephens & Vrevich, Jane A. Rheinheimer and Suzanne L. Smigliani for Defendants and Respondents.
Plaintiffs and appellants Charles Lee and Beatrice Lee (plaintiffs) sued defendants and respondents Pickford Real Estate, Inc. (Pickford), Carol Bostwick (Bostwick), and various other parties for negligence, negligence per se, fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and breach of fiduciary duty. The trial court dismissed plaintiffs' case with prejudice as to Pickford and Bostwick (defendants). Plaintiffs raise two contentions on appeal. First, plaintiffs assert the trial court erred by concluding that plaintiffs would need an expert witness to interpret a parcel map. Second, plaintiffs contend the trial court erred by finding that plaintiffs could not prevail without an expert witness to set forth the duties of a realtor. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
We present the facts of the dispute, followed by the procedural history.
A. COMPLAINT
This subsection describes the facts and allegations in plaintiffs' complaint.
Plaintiffs reside in Monterey County. For over 16 years, plaintiffs owned a plant nursery in Monterey County, but they were interested in transferring their business to Temecula. Plaintiffs hired Bostwick to be their real estate buying agent. Pickford was plaintiffs' brokering agency. Plaintiffs informed Bostwick and Pickford of their intention to build a nursery on the property they purchased.
On or about May 4, 2004, plaintiffs entered into a written agreement to purchase a 10-acre parcel of property in Temecula (the property), with a purchase price of $850,000. From April 30 through May 4, 2004, defendants represented to plaintiffs that the property was fit for development. Plaintiffs hired Property I.D. Corporation to conduct a search of known disclosures related to the property. On May 11, 2004, plaintiffs received a report from Property I.D. Corporation, which failed to disclose that the property was located in a flood plain.
On June 15, 2004, after escrow closed, plaintiffs moved onto the property, and began applying for building permits to construct their plant nursery. On July 15, 2004, plaintiffs were informed that the property was in a flood plain, and the County of Riverside (County) prohibited building in flood plains.
In plaintiffs' complaint, they alleged that defendants failed to disclose to plaintiffs that the property was in a flood plain, and that building on the property was prohibited by the County. Plaintiffs' complaint listed causes of action for negligence, negligence per se, fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and breach of fiduciary duty.
B. MOTIONS
At a hearing on September 10, 2009, plaintiffs represented to the trial court that they would be proceeding against defendants only on the causes of action for negligence and breach of fiduciary duty. The theory of liability advanced by plaintiffs was that Bostwick was obliged "to make sure that the building department would allow [plaintiffs] to build greenhouses and that the property would not flood." Plaintiffs argued Bostwick voluntarily assumed the duty to check on the building regulations. In other words, plaintiffs were planning to pursue a theory of ordinary negligence, rather than professional negligence. At the hearing, the trial court questioned how plaintiffs would show exactly what Bostwick's duty was—what specific standard of care should be applied. The trial court requested that the parties brief the standard of care issue.
On September 21, 2009, defendants filed a document that included motions in limine and a motion for judgment on the pleadings (the motions document). The motions document raised four arguments. First, defendants argued that regardless of the duties Bostwick may have volunteered for, the standard of care that should be applied to her actions is that of "a reasonably prudent real estate licensee." Defendants asserted that the standard of care could be found in Civil Code sections 2079 through 2079.6, which relate to real estate brokers and agents. Defendants asked the trial court to find, as matter of law, that the Civil Code sections provided the standard of care for the instant case.
Second, defendants argued that if the court found Bostwick assumed a duty to guarantee that plaintiffs could build on the property, and that duty was separate and apart from her duty as a realtor, i.e., that plaintiffs had a claim for ordinary negligence rather than professional negligence, then the court should find in favor of defendants as a matter of law. Defendants argued a finding should be made in their favor because, based on the allegations in the complaint, the exercise of ordinary care would not have revealed that the property was in a flood plain. Defendants pointed out that, in the verified complaint, it was alleged that plaintiffs could not have discovered the property was in a flood plain through the exercise of ordinary care. Accordingly, defendants argued the exercise of ordinary care would not have allowed a person to discover that the property was in a flood plain. Therefore, defendants argued any claim for ordinary negligence should be decided in their favor as a matter of law, i.e., a judgment on the pleadings.
Third, defendants argued plaintiffs needed to present expert testimony regarding a real estate professional's standard of care. Defendants asserted that expert testimony would be needed to establish whether defendants, by virtue of their real estate expertise, should have known (1) specific County departments to go to in order to investigate the parcel map, and (2) specific questions to ask the County about the parcel map. Defendants argued that absent such testimony, plaintiffs would not be able to establish negligence or breach of fiduciary duty. Defendants requested that the trial court make a "foundational determination" that expert testimony was needed to prove the two causes of action. (Evid. Code, §§ 402, 403.)
Fourth, defendants argued plaintiffs should not be permitted to testify about how a County employee found a parcel map that identified the property as being in a flood plain, because such testimony would be hearsay. Defendants asserted that neither the parcel map nor plaintiffs' testimonies could assist the trier of fact in determining how the County employee went about finding the map in the County's records. Further, defendants argued that such testimony would not be useful in determining whether a real estate agent's standard of care was breached. Defendants argued plaintiffs' testimonies about the County employee finding the map, and the map itself, should be excluded. (Evid. Code, § 352.)
C. OPPOSITION
In plaintiffs' opposition to the motions document, plaintiffs asserted Bostwick's duty arose in two ways: (1) by principles of common negligence, and (2) by her relationship with plaintiffs as their agent. Plaintiffs argued Bostwick voluntarily assumed a duty to investigate whether a greenhouse could be built on the property. Therefore, plaintiffs argued Bostwick had a duty "based on the general [negligence] law." Additionally, plaintiffs asserted defendants had a professional fiduciary duty to disclose all material information about the property that they knew or reasonably should have known.
Plaintiffs argued liability was not premised on a regulatory statute, and therefore expert testimony was not required. Plaintiffs asserted liability in this case was based on the following idea: Bostwick told plaintiffs she had investigated the suitability of the property for building, found that building was permitted on the property, and the property was not likely to flood. Based on Bostwick's representation, plaintiffs bought the property. If Bostwick had "done what she voluntarily agreed to do, and what she was required to do by virtue of her agency relationship with Plaintiffs, Plaintiffs would never have made the offer to purchase the property." For example, plaintiffs rejected a different property Bostwick had brought to them solely because the property was in a flood plain.
D. HEARING
On December 3, 2009, the trial court held a hearing on the motions document. The trial court noted that in plaintiffs' verified complaint, they alleged the fact that the "property was in a flood plain was not reasonably discoverable by plaintiffs . . . through the exercise of reasonable and ordinary care." The trial court further noted the complaint alleged defendants "violated statutes, ordinances, [and] regulations, including, but not limited to, Civil Code Section[s] 1102.6 and 2079." The trial court concluded the verified complaint conflicted with plaintiffs' representations that a real estate expert was not needed, because Bostwick had been "acting as a regular person" when she undertook the responsibility to ensure the property was not on a flood plain.
Plaintiffs argued their positions were consistent and not conflicting. Plaintiffs asserted their theory was that Bostwick "breached her fiduciary duty as [their] agent, and she was negligent in not telling [them] what was going on." Plaintiffs requested that if the court found ordinary negligence was not included within the pleadings, then the court allow plaintiffs to amend their complaint.
The court moved on to the part of the motions document related to the real estate expert. The trial court concluded an expert witness would be needed in this case to explain the duties of a realtor. The court pointed out plaintiffs asserted in their complaint that a reasonable person could not have discovered the property was in a flood plain. Therefore, the court reasoned, an expert would have been needed to discover that the property was in a flood plain. As a result, expert testimony would be needed to explain how the discovery should have been made by a realtor.
Plaintiffs argued they were "not proceeding under that statute." As an aside, plaintiffs asserted that if they were proceeding under that statute, then it would be within the court's province, not an expert's province, to explain the statute to the jury. Further, plaintiffs argued that in their complaint they alleged they would not have been able to discover that the property was in a flood plain, which was different than alleging that a reasonable person would not have been able to discover that the property was in a flood plain. Plaintiffs explained they could not reasonably have discovered that the property was in a flood plain because they did not speak fluent English, whereas Bostwick could have reasonably discovered that the property was in a flood plain because "she was fluent in English, [and] she knew real estate." The court responded, "Precisely. [¶] . . . [¶] She's a real estate person. . . . [¶] . . . [¶] She is acting as a realtor. . . . You need an expert for that."
Next, the court addressed the need for an expert to explain the parcel map. The court concluded an expert would need to testify that plaintiffs could not build on the property, based upon the parcel map. Plaintiffs explained that their appraisal expert could testify about building being prohibited on the property. Defendants argued that the appraisal expert was designated only to offer testimony about the value of the property, not to interpret the parcel map.
The court asked plaintiffs how they would prove they were not allowed to build on the property. Specifically, the court asked, "Who's qualified to explain the tract map? Who is qualified to say they submitted a permit which was rejected or they submitted a permit but the permit said something different and they had to change all their plans?" Plaintiffs responded that plaintiffs would testify about not being allowed to build on the property. Plaintiffs suggested they would testify about being denied a building permit. The trial court informed plaintiffs that such testimony would be hearsay.
Plaintiffs disagreed that their testimony would be hearsay. The trial court explained that when a building permit is denied, the denial is usually accompanied by a list of explanations, and somebody has to testify about the explanations. Plaintiffs explained that the documents, such as the parcel map, would be entered into evidence, and that an interpretation of the documents by an expert was not necessary, because "anybody . . . can look at the map and read the English words on the map."
The court stated an expert would be needed to explain the parcel map. The court noted that the words "flood plain" were written on the map, but stated an expert was needed to explain the significance of those words. Plaintiffs explained the evidence would show that if they had known there was any possibility of the property being in a flood plain, even a suggestion of a flood plain, then they would not have bought the property. Accordingly, there was no need for an explanation about the map, because the words alone would have stopped plaintiffs from purchasing the property.
The court pointed out that just because plaintiffs would not have bought the property does not mean they suffered damages. Plaintiffs responded that "of course" they were damaged because "they paid [$]230,000 more for [the] property than it was worth." Plaintiffs explained the property was worth less because of the flood plain. The court pointed out that an expert was needed to explain the significance of the flood plain—to prove plaintiffs' damages. The court clarified for counsel that an expert was needed because a "flood plain" alone did not show damages; damages needed to be proven by showing the property could not be used in a particular manner. Plaintiffs again responded that the issue was whether they overpaid for the property, which they would not have bought if Bostwick had discovered that the property was in a flood plain. The trial court ruled that an expert, or experts, would be needed to explain (1) the reasonable conduct of a realtor, and (2) the parcel map.
Plaintiffs noted the court's ruling was essentially granting a motion for nonsuit, because plaintiffs did not have "such an expert." Nevertheless, plaintiffs explained the appraisal expert would interpret the parcel map in order to explain how he arrived at a value for the property. Defendants referred the court to the appraisal expert's deposition testimony, in which he said he did not have independent knowledge of the parcel map or expertise in interpreting a parcel map. Defendants argued that the foundation for the appraiser's expert opinion was missing.
The trial court offered to have an evidentiary hearing regarding the appraisal expert's testimony to determine if his testimony incorporated the proper foundation. (Evid. Code, § 402.) However, the court noted there would still be an issue establishing the standard of care for a realtor. The court noted that an expert would still be needed to explain what information a broker could be expected to know or reasonably discover in relation to a real estate transaction. Plaintiffs argued that whether information was "reasonable to obtain" is a question of fact for the jury, not an issue for an expert.
Plaintiffs then asked for leave to "designate somebody" to prove the duties of a realtor. However, plaintiffs then said they would not be providing expert testimony. Following plaintiffs' comments, an unreported discussion took place in chambers. When the parties and the court came back on the record, the court ruled that it would grant the motion in limine regarding needing expert testimony to (1) establish the standard of care for a real estate professional; and (2) explain the parcel map. The court set a hearing for an order to show cause re dismissal. Ultimately, the trial court dismissed the matter with prejudice.
The trial court's written judgment reads in part, "After hearing the motions in limine and motion for judgment on the pleadings filed by . . . Pickford [and] Bostwick, the Court granted [their] motions. [¶] 3. Judgment is for . . . Pickford [and] Bostwick, and the matter is dismissed, with prejudice, as to these defendants."
DISCUSSION
A. PROCEDURAL ISSUE
1. SUPPLEMENTAL BRIEFING
We requested that the parties provide this court with supplemental briefing. We asked the parties what motion formed the basis for the trial court's dismissal of the lawsuit, and if there was no specific motion, whether the judgment was appealable. We address this procedural issue before moving to the merits of the appeal.
Our need for supplemental briefing arose, because in the original briefing, plaintiffs asserted the judgment was based on a motion for nonsuit, while defendants seemingly described the final judgment as a judgment on the pleadings, which was really a judgment on the motions in limine, but asserted that the final judgment was not based on a motion for nonsuit. We could not determine from the record what motion formed the basis for the judgment; we asked the parties to provide briefing on the issue, so that we would know exactly what we were reviewing on appeal, as well as which standard of review to apply.
In response to our request for supplemental briefing, plaintiffs wrote: "[I]t seems plain from the record that the court and the plaintiff, if not the remaining defendants, treated the hearing as one for a judgment of nonsuit." In defendants' response, they summarized the procedural history of the case, and concluded, "The motion which formed the basis for the final judgment was a series of in limine rulings." Defendants did not provide a citation to the record following their conclusion. We surmise from reviewing the record, and from reading the parties' responses to our request for supplemental briefing, that it is unclear from the record exactly what motion formed the basis for the judgment of dismissal.
In an attempt to "rescue" this record, we considered whether it would be possible to reach the merits of plaintiffs' contentions if we treated the judgment as being based upon (1) a motion for judgment on the pleadings; (2) a motion to exclude all evidence; (3) a motion for nonsuit; or (4) a motion for summary judgment. The following is an analysis of each of these possibilities.
2. JUDGMENT ON THE PLEADINGS
A judgment on the pleadings may only be entered upon limited grounds. (Code Civ. Proc., § 438, subd. (c)(1).) If the moving party is the defendant, as it was in this case, then the grounds may only be (1) lack of subject matter jurisdiction; or (2) "[t]he complaint does not state facts sufficient to constitute a cause of action against th[e] defendant." (Code Civ. Proc., § 438, subd. (c)(1)(B)(i) & (ii).) In this appeal, plaintiffs' arguments relate to the trial court's evidentiary rulings. Since plaintiffs' arguments are not confined to (1) jurisdiction, or (2) the state of the pleadings, it appears that the appeal cannot be from a judgment on the pleadings, because a judgment on the pleadings is very narrow. (See Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1094-1095 [evidentiary issues are not compatible with a judgment on the pleadings].)
3. NONSUIT
In regard to a motion for nonsuit, a nonsuit may be granted "[o]nly after, and not before, the plaintiff has completed his or her opening statement." (Code Civ. Proc., § 581c, subd. (a).) The judgment in this case was entered prior to opening statements. Accordingly, it does not appear that the final judgment in this case could be based on a motion for nonsuit. Nevertheless, since plaintiffs argue that the judgment is based on a motion for nonsuit, we examine the nonsuit possibility further. On appeal from a nonsuit, we must look at plaintiffs' evidence and determine whether it supports a jury verdict in plaintiffs' favor. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.)
In the instant case, if we concluded plaintiffs were correct that the trial court erred in granting the motions in limine, such a conclusion would not support reversal of a nonsuit judgment, because the arguments fail to explain how plaintiffs have sufficient evidence to support a jury verdict in their favor. Further, since the trial had not begun, there is no way to determine exactly what evidence plaintiffs would have presented. For example, at one point, plaintiffs asked for leave to designate an expert, but then changed their minds. So, if we were to infer the trial court made the finding that without the expert testimony plaintiffs failed to produce the necessary quantum of proof, then we would still be at a loss. We could not evaluate plaintiffs' other evidence to determine if it "made up" for the lack of expert testimony, because it is not clear exactly what evidence would have been offered due to trial not starting before the motion was granted. For example, if plaintiffs artfully questioned Bostwick about her knowledge and daily duties as a real estate agent, it is possible that they could establish the standard of care for a real estate agent without a designated expert, but we cannot know what questions would have been asked of Bostwick, and therefore, cannot evaluate if a nonsuit was properly granted.
Moreover, we are mindful that rulings on motions in limine are not binding, which means the trial court could change its ruling related to expert testimony during trial. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 608 ["A ruling on a pretrial motion in limine is necessarily tentative because subsequent evidentiary developments may change the context."].) Therefore, the granting of the nonsuit motion was not a foregone conclusion, such that the granting of a proper nonsuit motion would have been a mere formality. (See Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 79 [discussing voluntary dismissal after a ruling on a dispositive motion, i.e. the "mere formality" test].)
In sum, the failure to start trial and develop a proper record means we cannot determine if a nonsuit motion was properly granted. Further, the motion in limine contentions raised by plaintiffs are not compatible with a judgment based on a motion for nonsuit due to the procedural posture of the case, in particular the lack of evidence in the record.
4. MOTIONS IN LIMINE
We have considered the possibility that the judgment of dismissal was based on the motions in limine, as argued by defendants. However, this basis for the judgment is also problematic, because there would need to have been a motion in limine to exclude all of plaintiffs' evidence, in order to justify the dismissal. (See Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451 [describing a motion to exclude all evidence].) Such a motion was not made in this case. We have considered the possibility of reviewing the issues as though a motion to exclude all evidence was granted; however, that would require a great leap in interpreting the record. The trial court did not go nearly so far as to exclude all evidence, in fact, the trial court seemed only to conclude that expert testimony was required. Since the trial court did not exclude evidence, it would be improper for this court to review the trial court's ruling as though it had excluded all evidence.
5. SUMMARY JUDGMENT
Finally, we considered the possibility that the judgment of dismissal was based on a motion for summary judgment. In regard to summary judgment, such a motion "shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." (Code Civ. Proc., § 437c, subd. (b)(1), italics added.) These statutory requirements are not optional. It is not sufficient for a defendant to "simply point out that the plaintiff did not possess, and could not reasonably obtain, needed evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)
In this case, it does not appear the motions in limine were accompanied by a separate statement setting forth the undisputed material facts with references to the supporting evidence. Accordingly, the motions in limine cannot be construed to be a motion for summary judgment. Nevertheless, it appears the rulings in this case are most closely aligned with a summary judgment. Specifically, in a pretrial motion, defendants pointed out plaintiffs lacked expert testimony, and plaintiffs conceded they likely would not be obtaining the expert testimony. As a result, it seems this matter amounts to an illegal summary judgment, in that a summary judgment was effectively granted, but the proper legal procedures were not followed.
An appellate court reviews a grant of summary judgment "de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.]" (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.) As set forth ante, in the "nonsuit" section, we do not know all the evidence plaintiffs may have presented. Since the summary judgment procedures were not followed in this case, the record is not developed in such a way that we can properly evaluate the trial court's ruling. Accordingly, we cannot determine if summary judgment was correctly granted.
6. PROCEDURAL ERROR
As set forth ante, it does not appear the judgment of dismissal is based on a motion that we can review given the current state of the record, i.e., the lack of evidence in the record and plaintiffs' vacillation regarding seeking leave to designate an expert. The record does not support review on the merits of a nonsuit judgment, judgment on the pleadings, a judgment on a motion to exclude all evidence, or summary judgment. It appears the parties merely stipulated to a judgment to secure appellate review without understanding the procedural constraints of this court: there must be a properly filed motion and developed record for the appellate court to review. As explained by the appellate court in Magana Cathcart McCarthy v. CB Richard Ellis, Inc. (2009) 174 Cal.App.4th 106, 121, "We simply cannot review the merits of a motion that was never made and which is in direct contravention of the mandated rules of procedure."
B. MERITS
1. ASSUMPTIONS
Despite the foregoing procedural problems, for the sake of thoroughness, we will review the merits of plaintiffs' contention concerning a parcel map expert. However, in order to complete this review, we will need to make several assumptions. First, we will assume the motion underlying the dismissal was a motion for nonsuit. We make this assumption because (1) it is plaintiffs' position that the judgment was based on a motion for nonsuit, and we will look at the record in the light most favorable to them, and (2) the court told plaintiffs, "I will not let [the matter] go to the jury without an expert," which could be interpreted as the trial court saying that its in limine decision was final and binding, and therefore, a nonsuit judgment was a foregone conclusion.
Second, we will need to assume what plaintiffs' evidence would have been. The record contains an offer of proof by plaintiffs. However, plaintiffs vacillated somewhat regarding their proof. For example, plaintiffs said, "We are not going to have an expert. We've not designated one, unless the court will allow us now to designate one, and I would—If the court thinks we need one, I guess I would ask for leave to designate somebody on that ground. If that's the court's opinion that we need an expert to come in and prove the duties of a realtor, we do not have that expert. And we will not be providing that evidence." Despite plaintiffs' inconsistent statements about offering expert testimony, we will assume for purposes of evaluating this hypothetical nonsuit that they did not have expert testimony to offer into evidence, because the court did not grant them leave to obtain the expert testimony.
Third, we will assume plaintiffs' offer of proof was akin to their opening statement. In the offer of proof, plaintiffs asserted that Bostwick originally found plaintiffs a different parcel of property, prior to the current property at dispute in this case, and once plaintiffs found the original parcel of property was in a flood plain, plaintiffs told Bostwick not to present the offer. Bostwick then found the current property. Plaintiffs told Bostwick to investigate whether the property was in a flood plain and to make sure greenhouses could be constructed on the property. Plaintiffs needed Bostwick to do this investigation because (1) plaintiffs were not in southern California (Bostwick was in southern California), and (2) plaintiffs do not speak fluent English (Bostwick presumably does speak fluent English).
Plaintiffs asserted the evidence would further show that Bostwick undertook the tasks given to her by plaintiffs, but delegated the tasks to a third person, Bill Harrell. The next morning, Bostwick told plaintiffs there was no risk of flooding on the property. As a result of Bostwick's representations, plaintiffs made an offer on the property. After the purchase was complete, plaintiffs discovered Bostwick "misrepresented to [plaintiffs] what was possible to be done."
2. CONTENTION
Plaintiffs contend the trial court erred by concluding that they needed to present expert testimony regarding interpreting a parcel map. Based on the foregoing assumptions, we will construe this contention as follows: The trial court erred by granting a nonsuit due to plaintiffs' failure to offer expert testimony regarding the interpretation of the parcel map. We disagree with the contention.
3. STANDARD OF REVIEW
"'On review of a judgment of nonsuit, as here, we must view the facts in the light most favorable to the plaintiff[s]. "Courts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant's motion for nonsuit if plaintiff[s'] evidence would support a jury verdict in plaintiff[s'] favor. [Citations.] [¶] In determining whether plaintiff[s'] evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff[s] must be accepted as true and conflicting evidence must be disregarded. The court must give 'to the plaintiff[s'] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[s'] favor . . . .'" [Citation.] The same rule applies on appeal from the grant of a nonsuit. [Citation.]' [Citation.]" (Tan v. Arnel Management Co., supra, 170 Cal.App.4th at p. 1095.)
4. NEGLIGENCE AND DAMAGES
The elements of a negligence cause of action are duty, breach, proximate cause, and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) The plaintiffs bear the burden of proving, with reasonable certainty, the damages they actually sustained as a result of defendants' wrongful acts, and the extent of those damages must be proven as a fact. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 83.)
Civil Code section 3343 provides the rules for determining damages relating to fraud in the sale of property; however, tort damages are generally covered by Civil Code section 3333. Since plaintiffs are suing under a theory of negligence, we will apply the rule set forth in section 3333, rather than the rules related to fraud. (See Brown v. Critchfield (1980) 100 Cal.App.3d 858, 871 [applying Civil Code section 3333 in a tort case involving the sale of real property].) Civil Code section 3333 provides that a plaintiff's damages are measured by determining "all the detriment proximately caused" by the defendant's breach. "The purpose of tort damages is to make the injured plaintiff whole," therefore, when property is injured, damages are usually measured by "the difference between the market value of the land before and after the injury." (Raven's Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783, 801-802.)
In this case, plaintiffs were injured by defendants' alleged failure to discover that the property was in a flood plain. Therefore, plaintiffs' damages would be measured by the value of the property when they bought it minus the value of the property once it was known to be in a flood plain.
5. EXPERT TESTIMONY
a) Procedural History
During the argument on the motions document, plaintiffs asserted they would prove their damages via the testimony of the appraiser, or valuation expert. Plaintiffs stated the appraiser could testify about how he interpreted the parcel map to reach his valuation of the property. Defendants argued the appraiser's opinion lacked foundation, because during the appraiser's deposition he stated he did not have independent knowledge of the parcel map or the prohibitions related to construction in flood plains, rather, his opinions were based on assumptions given to him by plaintiffs' attorney. Defendants argued the appraiser's opinion lacked foundation. The hearing then turned back to focusing on the standard of care for a realtor.
b) Rules
An expert witness does not possess carte blanche to express any opinion within his area of expertise. "For example, an expert's opinion based on assumptions of fact without evidentiary support . . . has no evidentiary value . . . ." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) "[A]n expert's opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist in the case before the jury, does not provide assistance to the jury because the jury is charged with determining what occurred in the case before it, not hypothetical possibilities. [Citation.]" (Ibid.)
c) Evidence Needed for Measuring Damages
In order for the appraiser to testify about the property's loss of value, there would need to be evidence related to (1) the fact the property was in a flood plain; and (2) that it was illegal to construct a building in a flood plain. This evidence would form the basis for the appraiser's opinion the property was not worth the money that plaintiffs paid. We can think of at least two ways for plaintiffs to establish these two facts: (1) via the testimony of an expert who looked at the parcel map, explained that plaintiffs' property was within the parcel map, explained the property was in a flood plain, and then explained it was illegal to construct a building in a flood plain; or (2) via an employee of the County who could explain that plaintiffs' building permits were denied because their property was in a flood plain, and it was illegal to build in a flood plain.
d) Evidence Offered for Measuring Damages
Plaintiffs offered a variety of evidence to prove the two facts listed ante; however, none of the evidence offered by plaintiffs would establish the two needed facts. As a result, we conclude a nonsuit was properly granted.
First, plaintiffs offered that the appraiser would "go through what he's got and show why he [came] up [with] his opinion." Assuming the appraiser independently read the parcel map and independently understood it was illegal to construct a building in a flood plain, the problem plaintiffs encounter is that the appraiser was not designated to testify about the parcel map. (Code Civ. Proc., § 2034.260, subd. (c)(2) [expert witness designation].) In other words, the appraiser was not designated to establish the facts that (1) the property was in a flood plain; and (2) it was illegal to build in a flood plain. When an expert testifies beyond the designated scope of his expertise, the opposing party is denied fair notice. (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147.) Accordingly, the failure to designate the appraiser as an expert on parcel maps would preclude the appraiser from establishing that (1) the property was in a flood plain, and (2) that it was illegal to build in a flood plain.
Second, plaintiffs offered to present the parcel map into evidence. Plaintiffs explained the parcel map would speak for itself, in that the words "flood plain" were written on the map. The problem with relying on the map, without testimony of an expert or County employee, is that it is not clear from the words "flood plain" that building was prohibited in flood plains. The trier of fact needs evidence that construction is prohibited in flood plains, so the trier of fact can understand why the appraiser has concluded the property is worth less than plaintiffs paid for it. In other words, for the trier of fact to evaluate the appraiser's opinion and measure plaintiffs' damages, there needs to be evidence it was illegal to construct a building in a flood plain.
Third, plaintiffs offered to present their own testimony that they were denied building permits. While plaintiffs could testify they were denied building permits, it would be hearsay for them to explain why the permits were denied. For example, it would be hearsay for plaintiffs to testify the County denied the building permits due to the property being in a flood plain, because that evidence should be provided by the testimony of a County employee. (Evid. Code, § 1200, subd. (a) ["'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated."].)
In sum, plaintiffs did not have evidence to explain they were unable to build on the property because it was in a flood plain, which is necessary evidence for measuring plaintiffs' damages. Without such evidence, it was correct to grant a nonsuit motion, because the damages portion of the lawsuit could not be fully established.
Plaintiffs argue they did not need to offer evidence regarding whether construction is allowed in a flood plain, because their theory of the case is that they were damaged simply by purchasing the property in a flood plain. Plaintiffs contend that prior to purchasing the property, Bostwick had brought them a different property, but they rejected it as soon as they discovered it was in a flood plain, because they did not want a property that was in a flood plain. Accordingly, plaintiffs argue they were damaged by being induced into buying a property in a flood plain—regardless of whether or not they are allowed to build on the property.
The flaw in plaintiffs' argument is that evidence of not being able to build on the property is needed for measuring damages. If plaintiffs were damaged simply by purchasing the property—regardless of being able to build on it or not—they cannot recover their whole purchase price as damages. Rather, they can recover the difference between the market value of the land before and after the injury. (Civil Code, § 3333.) In order to establish why the land has lost value, there needs to be evidence that building was not permitted on the property. The evidence is necessary to establish the measure of damages. Accordingly, we find plaintiffs' argument unpersuasive.
We do not address plaintiffs' argument related to needing a real estate expert because we have concluded that a nonsuit motion would have been properly granted.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.