Opinion
Review Granted Dec. 30, 1993.
Review Dismissed and Cause Remanded July 28, 1994.
Review Granted Previously published at: 18 Cal.App.4th 1145, 23 Cal.App.4th 952 [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
[22 Cal.Rptr.2d 903] Richard A. Grossman, Zemanek & Mills, and John D. Zemanek, Los Angeles, for defendant and appellant.
Tucker & Baum and Michael C. Baum, Beverly Hills, for plaintiffs and respondents.
OPINION
CHARLES S. VOGEL, Associate Justice.
This action arises from the purchase of a residence that was defectively constructed. The parties stipulated to submit, on a theory of strict liability, claims for property damage and emotional distress to trial by a court-appointed referee. The referee recommended an award of property damages that included the cost of repairs plus damages for diminished value and an award of emotional distress in favor of plaintiff and respondent Nancy Salka. Defendant and appellant Dean Homes, Inc., contends that the referee applied the wrong measure for property damages and that damages for emotional distress arising from property damage are not recoverable. We hold that Dean Homes is barred from appealing the property damages award because it failed to take exception to the referee's report pursuant to Code of Civil Procedure section 645. We further conclude that purchaser of a defective residence may recover for emotional distress where the defect is so substantial as to be continuously disruptive of the use, comfort, and security which reasonably ensues from ownership of a personal residence.
FACTS
In 1980, Robert and Nancy Salka purchased a new home at 9832 Denbigh Drive, in the Deep Canyon area of Beverly Hills, California, from the builder, Dean Homes of Beverly Hills, Inc.
The area was developed by grading the natural topography to create building pads to accommodate the construction of residences. The Salka home is built on fill ranging from 40 to 80 feet in depth. Although the soils compaction report for the tract recommended houses be constructed on reinforced slabs, Dean Homes constructed the Salka home on a raised foundation with a subfloor of 18 to 24 inches below the exterior grade, thereby creating a basin for the collection of both surface and groundwater. The slope of the building pad exacerbated the accumulation of water.
From the beginning of their occupancy in 1981 the Salkas experienced flooding, standing water, and ground saturation. Dampness resulted in the floor buckling, condensation collecting in, under, and around the house causing the wallpaper to peel and producing a " damp, dungy smell." Water accumulated by the front door, invaded the windows, and affected the French doors. The Salkas hired various contractors to mitigate these problems. Ultimately, they moved out of their residence, leasing a condominium until the water problem could be corrected. In 1982, the Salkas filed an action in the superior court against Dean Homes of Beverly Hills, Inc., for breach of warranty, negligence, fraud, and strict liability. Their complaint sought compensatory and punitive damages. Dean Homes answered, asserting various affirmative defenses.
In 1988, the Salkas and Dean Homes stipulated that the Salkas would bring to trial only the issue of compensatory damages on the assumption that Dean Homes's liability had been decided in the Salkas's favor based upon strict liability. The claims for breach of warranty negligence and fraud were dismissed. It was also stipulated that the trial would be conducted by reference according to Code of Civil Procedure section 638 et seq. On June 28, 1988, the Honorable Earl F. Riley, retired judge of the superior court, was appointed and proceeded to take evidence and hear argument.
We requested and received a copy of the settlement agreement referred to in the stipulation for trial by reference. It provides, in part, as follows:
[22 Cal.Rptr.2d 904] In compliance with Code of Civil Procedure section 643, the referee filed separate reports for the property damage claims and for the emotional distress claims. The recommended property damage award was composed of: (1) $202,391 for the costs of repair plus ancillary expenses to mitigate and correct the water problems while the condition remained unabated; and, (2) $65,000 " stigma" damages representing diminution of value. The total $267,391 recommended property damage award was reduced by 20 percent because of the Salkas's contribution to the water problem. In addition, the referee awarded Nancy Salka $50,000 as emotional distress damages but denied Robert Salka's claim for the same relief.
Dean Homes filed a Request to Referee to Modify Report, Findings, and Recommendations objecting to the award of emotional distress damages and a Notice of Motion and Motion to Set Aside Report, Findings and Recommendations of Referee (Phase II) and Motion for Judgment Regarding Emotional Distress Issues Notwithstanding the Referee's Findings and Recommendations pursuant to Code of Civil Procedure section 645. Both were denied. The trial court approved the referee's reports and recommendations and confirmed the award of property damages in favor of the Salkas in the amount of $213,913 and an award of $50,000 to Nancy Salka for emotional distress damages. Dean Homes did not file any objection or motion with the referee or trial court concerning the award of property damages.
DISCUSSION
Dean Homes contends that the award of property damages is contrary to established principles of law. It argues that the Salkas are entitled to recover as property damages only the lesser of the cost of repair or the diminution in value and that damages for emotional distress are not recoverable in an action for strict liability not involving physical injury.
I
Waiver of Objection to Award of Property Damages
The Salkas contend that Dean Homes may not appeal the award of property damages because it did not comply with Code of Civil Procedure section 645 by objecting to the referee's findings or moving the trial court to set them aside. We agree and decline to review the award of property damages.
Code of Civil Procedure section 645 provides: " The decision of the referee or commissioner may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the decision reported has the effect of a special verdict."
In Martino v. Denevi (1986) 182 Cal.App.3d 553, 227 Cal.Rptr. 354, the trial court ordered a reference under section 639 and appointed an accountant as a special referee to review financial records to determine the respective partnership interest of the parties. The report of the referee was approved over oral objection as a conclusive finding of the partnership interest. The trial court ruled that the plaintiff waived his right to object by failing to file a written objection pursuant to section 645. The appellate court upheld the ruling: " The failure to file a written objection to the contents of the referee's report or to [22 Cal.Rptr.2d 905] properly move to set aside the report [in the trial court] results in the waiver of the right to object to the referee's findings. [Citation.]" (182 Cal.App.3d at p. 557, 227 Cal.Rptr. 354.)
Dean Homes demonstrated its knowledge of these procedures by filing an objection with the referee taking exception to the award of damages for emotional distress and filing a motion with the trial court to set it aside.
Dean Homes argues that Martino is distinguishable because it involves a factual finding and not a question of law. It contends section 645 does not require a party to object when the referee applies the wrong measure of damages. In other words, because Dean Homes is appealing the issue of the measure of damages, and not a factual finding, it contends, as an issue of law, it is preserved on appeal whether or not it is raised in the underlying proceedings.
The requirement of raising an objection to the referee's report is not limited to findings of fact but is applicable to conclusions of law where a general reference is ordered.
The reference in Martino v. Denevi was made with the consent of the parties under section 639 ordering an examination of partnership records and the preparation of an accounting of partnership interests. Essentially, the accounting was ordered to provide the trial court with specific factual information and the referee was not directed to hear and decide the whole issue. The reference in Martino was by its terms a special reference. Therefore, the recommendation of the referee would pertain to a factual issue only. For that reason, any objection would necessarily be limited to a finding of fact.
Here the reference was ordered by stipulation of the parties under section 638, subdivision 1.4 The stipulation provides: " The issue of compensatory damages relating to plaintiffs' strict liability cause of action against Dean Homes shall be tried through a retired judge of the Los Angeles Superior Court, pursuant to the specifications, terms and procedures set forth in the attached Settlement Agreement." By its terms, the parties consented to, and the court ordered, a general reference in which the referee was authorized to try any and all issues of fact and law and to report a statement of decision to the court. Since the referee was empowered to decide both issues of fact and law, it was incumbent on Dean Homes to file objections, if any, to both findings of fact and conclusions of law.
Our analysis is enhanced by the Martino court's reliance on Branger v. Chevalier (1858) 9 Cal. 351, which held " when the alleged error consists in the final conclusions of law or fact drawn from the testimony, and the evidence is certified to the Court by the referee, the proper course is to move to set aside the report, and for a new trial." (Id. at p. 362.) The vitality of Branger v. Chevalier is confirmed by Estate of Zucker (1990) 218 Cal.App.3d 1198, 268 Cal.Rptr. 4. There the trial court ordered a reference to determine if Corporations Code section 15042 did not apply where a partnership agreement specified a contrary method of valuation upon the death of a partner. The referee's report necessarily included a legal conclusion concerning the applicability of the Corporations Code to the agreement. On appeal one of the parties argued that the referee's conclusion was erroneous. The appellate court held that the issue was waived for failure to file an objection or to move to set aside the report. (Id. at p. 1206, 268 Cal.Rptr. 4.)
Estate of Zucker, supra, 218 Cal.App.3d 1198, 268 Cal.Rptr. 4, firmly establishes that a prerequisite to appellate review of a consensual general reference, in which all issues of fact and law are decided by a [22 Cal.Rptr.2d 906] referee, is the filing of written objections to the findings and conclusions of the referee's report. Alternatively, a party may file a timely motion in the trial court to set aside the referee's report. Either procedure will comply with section 645. The objective is to afford the referee and the trial court an opportunity to correct unsupported findings and errors of law which may avoid an appeal.
Dean Homes's failure to file objections or to file a motion in the trial court taking exception to the referee's report recommending the Salkas be awarded the costs of repair and diminution in value constitutes a waiver of its right to object that the wrong measure of damages was applied. This failure precludes Dean Homes from having the issue reviewed on appeal.
Dean Homes's contention, based on authorities cited in 9 Witkin, California Procedure (3d ed. 1985) Appeal, section 314, pages 325-326, that because its appeal from the award of property damages raises an issue of law it may be reviewed even though it was not raised by a motion for new trial, is without merit. The waiver derives from Dean Homes's failure to comply with section 645, not section 657, governing motions for new trial. To hold otherwise would emasculate an important provision applying to trials by reference.
II
Emotional Distress
Nancy Salka testified that upon learning of the pooling of water in her home she experienced tightening in her stomach and heart and light-headedness, became distressed, and developed a feeling of despair. She continued to experience anxiety, tension, and outbreaks of a preexisting eczema condition because of her concern and apprehension over the condition of her home. Nancy Salka's condition persisted over a seven-year period during which the water problem remained uncorrected. Her emotional distress was exacerbated by her fear that the dampness would weaken the floor and cause injury. The parade of workmen and " so-called experts" advising her that the problems were monumental and possibly beyond repair added to her sense of despair. Among her primary complaints was the musty, damp odor which she found bothersome and embarrassing. She testified that her husband was in the type of business where he did a lot of home entertaining. Because of the odor and damp condition of her home, she stopped entertaining because she was embarrassed and humiliated over these circumstances.
Nancy Salka's distress was intensified around 1987 when she and her husband made a decision not to sell the house but to undertake additional and necessary repairs. It was their third home during their 31-year marriage and it was the house in which they planned to retire. Having decided to keep and repair their " dream house," the Salkas temporarily moved into a two-bedroom condominium until the water problem was abated. She found moving and storing their belongings an unsettling and frustrating upheaval in her personal life.
Although Nancy Salka did not receive any medical care for her emotional distress, she used nonprescription analgesics and herbs for relief and informally counseled with a relative who is a psychologist.
Nancy Salka was awarded $50,000 damages for her emotional distress. Dean Homes argues that she is not entitled to emotional distress damage as a matter of law. It relies on an array of cases, including Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 and Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, and their progeny. Dillon and Molien involve emotional distress claims arising from witnessing the injury of another or emotional distress ensuing from a breach of duty owed to a third party. Here, Nancy Salka's claim for emotional distress is simply a component of the compensatory damages arising from Dean Homes's admitted liability. Her claim is a direct result of the disruption flowing from the defective construction of her home. More relevant to the resolution of this claim are [22 Cal.Rptr.2d 907] those cases which consider the recoverability of emotional distress damages arising solely out of claims for property damage.
Dean Homes contends that Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 200 Cal.Rptr. 746 absolutely bars the recovery of emotional distress damages. We disagree and hold as a matter of law that emotional distress damages, ancillary to property damages, are recoverable where (1) there is an existing relationship between the parties, (2) it is reasonably foreseeable that emotional distress would be a probable incident to property damages arising from the sale of a new but defective home, and (3) the doctrine of strict product liability is applicable.
In Cooper v. Superior Court, supra, 153 Cal.App.3d 1008, 200 Cal.Rptr. 746, the defendants negligently parked a tractor near the plaintiff's home. The tractor broke loose and rolled down a hill into her home, causing damage to the house, grounds, and swimming pool. Although the plaintiff and her family were away when the accident occurred, she sought psychological therapy for her emotional distress caused by the accident. The trial court granted the defendants' motion for summary adjudication of the emotional distress claim. Plaintiff petitioned the Court of Appeal for extraordinary relief to overturn that ruling. After issuing an alternative writ, the court concluded the trial court's ruling was correct. In holding against the recovery for emotional distress, the court stated: " No California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort." (Cooper v. Superior Court, supra, 153 Cal.App.3d at p. 1012, 200 Cal.Rptr. 746.) The court discussed and distinguished two earlier cases which had allowed recovery for emotional distress arising out of property damage claims, Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal.App.3d 917, 122 Cal.Rptr. 470 and Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 88 Cal.Rptr. 39, noting that both of those cases involved preexisting relationships. The distinction is critical because, as the court emphasized, " The existence of a preexisting relationship affects the determination of reasonable foreseeability." (Cooper v. Superior Court, supra, 153 Cal.App.3d at p. 1013, 200 Cal.Rptr. 746.)
At least one court has expressed its disagreement with Cooper. In Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040, 13 Cal.Rptr.2d 133, footnote 1, the court, in the context of analyzing whether emotional distress damages could be recovered in a legal malpractice action, stated: " To the extent Cooper stands for the proposition the mere existence of a preexisting relationship suffices to support recovery for mental suffering where another's negligent conduct results in only economic injury, we disagree and decline to follow it."
The referee's statement of decision includes a specific finding that there was a preexisting relationship between Dean Homes and the Salkas, that of home builder to home purchasers. Since the parties stipulated that " The Salkas may bring to trial the issue of compensatory damages only against Dean Homes as if the issue of Dean Homes' liability had been decided in the Salkas' favor based on the strict liability cause of action in the Action," it follows that the liability of Dean Homes coincides with the holding of Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 74 Cal.Rptr. 749, where a mass producer of homes was held strictly liable to a purchaser based on the failure of a heating system. Consistent with the holding of Kriegler v. Eichler Homes Inc., supra, the Salkas reasonably relied on the skill and experience of Dean Homes to provide them with a home fit for its intended purpose; one that they could occupy free of pooling water, accumulated condensation, dank and dungy odors and free of frequent but necessary interruptions by workmen hired to mitigate the water problem. In accordance with the stipulated theory of recovery, the Salkas were entitled to be compensated for all damages ensuing from the defective condition of the home they purchased from Dean Homes. (See also [22 Cal.Rptr.2d 908] Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898, 909-911, 176 Cal.Rptr. 886.)
Strict product liability is not available in actions involving isolated or occasional construction and sale of homes. (Oliver v. Superior Court (1989) 211 Cal.App.3d 86, 89, 259 Cal.Rptr. 160.) The record does not clearly reveal if the Salka home was " mass produced housing," but because the parties stipulated that the claim proceed as if Dean Homes were strictly liable, that is the standard we apply.
In Windeler v. Scheers Jewelers, supra, 8 Cal.App.3d 844, 88 Cal.Rptr. 39, the defendant's negligence caused the loss of jewelry entrusted to it by the plaintiff who had emphasized the sentimental value of the items. Upon learning of the loss, the plaintiff suffered emotional distress. The appellate court held that the jury could properly award the plaintiff money damages to compensate for her emotional distress. Noting that the plaintiff had apprised the defendant of the sentimental value of the jewelry, the court held: " This was a special circumstance known to both of the parties at the time the contract was entered into. Since that contract was one whose terms related to matters directly concerning the happiness and comfort of plaintiff, and were such as to move her affection and tender feelings, the jury was entitled ... to include in the damages recoverable for the loss of the rings by reason of defendant's negligence, damages for physical suffering or illness proximately resulting from such loss, in addition to the damages sustained because of the actual loss." (Id. at p. 852, 88 Cal.Rptr. 39.)
In Jarchow v. Transamerica Title Ins. Co., supra, 48 Cal.App.3d 917, 122 Cal.Rptr. 470, plaintiffs were awarded damages for emotional distress for the negligent failure of a title insurer to list a prior recorded deed in a preliminary title report. The appellate court held that " When a title insurer breaches its duty to abstract title accurately, it is liable, in tort, for all the damages proximately caused by said breach. (Civ.Code, § 3333.) Since the ‘ impact or injury’ requirement presents no bar to plaintiffs' complaint— and the elements of an action for negligence have successfully been set forth— the trial court acted with propriety in determining that a cause of action for negligently inflicted emotional distress was pleaded and proved." (48 Cal.App.3d at pp. 939-940,122 Cal.Rptr. 470, fn. omitted.) The Jarchow court specifically held: " It was entirely foreseeable that plaintiffs would suffer mental anguish and distress when they were apprised of defendant's negligence since they relied on the preliminary report before purchasing the property." (Id. at p. 939, 122 Cal.Rptr. 470.)
If a jeweler is liable for emotional distress triggered by his negligent loss of personal property and a title insurer is liable for emotional distress for negligently abstracting title, a home builder selling a defective home must logically be held to the same standard given the personal significance of the purchase: a primary family residence.
Here, the buyer-seller relationship distinguishes the present case from Cooper v. Superior Court, supra, 153 Cal.App.3d 1008, 200 Cal.Rptr. 746, because in Cooper, the defendants had no existing or antecedent relationship with the plaintiff but instead appeared to merely be doing construction work on a property near the plaintiff's home. (See also Sher v. Leiderman (1986) 181 Cal.App.3d 867, 883-885, 226 Cal.Rptr. 698 [neighbor relationship is insufficient to avoid the Cooper holding].) We are cognizant that the Cooper court requires a threshold showing of " some preexisting relationship" for the recovery of emotional distress damages. (153 Cal.App.3d at p. 1012, 200 Cal.Rptr. 746, emphasis added.) However, we do not find any merit in the requirement that the relationship be preexisting in the specific context of a strict liability claim where the relationship and the acquisition of the defective product originate concurrently by definition.
We also reject Dean Homes's argument that because the Salkas's theory of liability was strict liability rather than negligence, Nancy Salka should be precluded from recovering for her emotional distress. In our view, the determinative issues are whether Nancy Salka's emotional distress was foreseeable; whether this is the type of emotional [22 Cal.Rptr.2d 909] harm that society dictates should be absorbed without compensation; and whether there is a sufficient indicia of trustworthiness to her claim. (See, e.g., Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 587-588, 195 Cal.Rptr. 902, and Shepard v. Superior Court (1977) 76 Cal.App.3d 16, 20, 142 Cal.Rptr. 612.)
It is important to emphasize that the Dean Homes's construction of the foundation was contrary to the recommendation of the Soils Compaction Report filed with the governing body which approved subdivision tract 23290. It is hardly reaching to conclude that a builder of homes should foresee that the construction of a defective foundation, a fundamentally important component of home construction, may not only result in significant property damages, but induce emotional distress as well. Given that home ownership is often referred to as the essence of the American dream, Nancy Salka's distress at first learning that her home was defectively constructed and thereafter being forced to live in a borderline uninhabitable state until all of the problems were remedied was quite foreseeable.
Moreover, this is not the type of emotional distress the homeowner should be expected to absorb. The doctrine of strict liability applies to home builders because the buyer is relying upon the skill of the builder and " ‘ its implied representation that the house will be erected in a reasonably workmanlike manner and will be reasonably fit for habitation,’ " and because the buyer, not being on an equal footing with the seller, is unable to protect him or herself. (Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d at pp. 227-228, 74 Cal.Rptr. 749, quoted with approval in La Jolla Village Homeowners' Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1143, 261 Cal.Rptr. 146.) As these factors are present whether recovery is sought for personal injuries, property damage, or emotional distress, we do not believe that the homeowner should be expected to absorb emotional distress damages.
When the theory of recovery is trespass or nuisance, the homeowner's right to recover for emotional distress is uncontroverted. " [R]egardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance. [Citations.]" (Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337, 5 Cal.Rptr. 686, 353 P.2d 294.)
Lastly, the particular facts of this case supply the necessary guarantee of trustworthiness for Nancy Salka's claim. She was compelled to endure continuous apprehension about the safety, stability, and comfort of her home, and she experienced the disruption of moving to and living in temporary quarters. Nancy Salka was prevented from enjoying a home where she could live without wetness and exposure to obnoxious odors, a home in which she could entertain and her privacy would not be violated by a continuing parade of workmen. Her exposure to the unrectified defects enumerated above extended over a seven-year period during which it was not known when the problems would ultimately be corrected. Taken together, these facts provide that " there is some assurance of the validity of the claim." (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 926, 167 Cal.Rptr. 831.) Given this record, we reject Dean Homes's contention that Nancy Salka's claim for emotional distress was not sufficiently severe to justify the award of $50,000. The record contains substantial evidence to support her claim.
Nothing in the recent cases denying recovery for emotional distress in situations in which the plaintiff suffered only economic loss undercuts our present analysis. The linchpins of those opinions are the findings that the primary interest protected was economic loss and that serious emotional distress was not a foreseeable consequence of the defendant's tortious conduct but rather only had a tenuous connection thereto. (See, e.g., Smith v. Superior Court, supra, 10 Cal.App.4th 1033, 1037-1041, 13 Cal.Rptr.2d 133 [legal malpractice]; [22 Cal.Rptr.2d 910] Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 797-801, 8 Cal.Rptr.2d 182 [negligent misrepresentation]; Devin v. United Services Auto. Assn. (1992) 6 Cal.App.4th 1149, 1161-1162, 8 Cal.Rptr.2d 263 [fraud and negligent misrepresentation]; and Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 7-11, 4 Cal.Rptr.2d 87 [legal malpractice].) As we have already explained, emotional distress is patently within the ambit of the foreseeable risk assumed by Dean Homes when it markets defective homes and is therefore a recoverable item of damage. The significant distinction to be made here is that the purchase of a home is not only the largest investment most people make in their lifetime, it is also a highly personal choice concerning how and where one lives his or her life. Generally, no other material acquisition is of equivalent personal importance. It is much more than an economic investment. Therefore, the current spate of cases disallowing emotional distress damages where the " interest protected is typically economic, as in the loss of damages or the imposition of damages," are not applicable. (Merenda v. Superior Court, supra, 3 Cal.App.4th at p. 10, 4 Cal.Rptr.2d 87.) Here the interest to be protected is not simply or typically economic. The purchase of a home involves an individual's personal values and private life.
Furthermore, even in a legal malpractice action, emotional distress damages are recoverable when the interest invaded is not solely an economic one. In Holliday v. Jones (1989) 215 Cal.App.3d 102, 264 Cal.Rptr. 448, Jones's constitutionally deficient representation of Holliday in a criminal prosecution resulted in Holliday's conviction and incarceration for involuntary manslaughter. The conviction was reversed on appeal and, on retrial, Holliday was acquitted. In Holliday's subsequent legal malpractice action against Jones, he recovered damages for emotional distress. The Court of Appeal upheld that award because Holliday's liberty interest, as opposed to just an economic interest, had been invaded by Jones's professional negligence.
Similarly, in this case, Nancy Salka's emotional distress embraced more than the mere grief associated with being forced to spend additional unanticipated sums to correct a condition not her fault; the defendant's actions invaded more than her economic interest and involved more than a passing, trivial inconvenience; it included the foreseeable distress caused by a substantial disruption of her right to use and enjoy her home for a seven-year period. Given the nature of the interest harmed, Nancy Salka is entitled to recover damages for her emotional distress.
DISPOSITION
The judgment is affirmed.
ARLEIGH M. WOODS, P.J., and RAPPE, J., concur.
Assigned by the Chairperson of the Judicial Council.
" The Dean parties and the Salkas hereby agree as follows:
" 3.1 [T]he term ‘ compensatory damages' does not include punitive or exemplary damages. In addition, the Salkas contend that emotional distress damages are recoverable as compensatory damages, while the Dean parties contend that such damages are not recoverable.
" 3.2 The Salkas may bring to trial the issue of compensatory damages only against Dean Homes as if the issue of Dean Homes' liability had been decided in the Salkas' favor based on the strict liability cause of action in the Action.... [T]he Salkas will be entitled to attempt to establish the nature and extent of their damages including: [¶ ] (i) Past repairs to their property, if any; [¶ ] (ii) The cost of future repairs to the property, if any; and [¶ ] (iii) The diminution in market value of their property, if any.
" Trial of the compensatory damages shall proceed as set forth in sections 3.2, 3.3 and 3.4 herein."
Hereinafter, all references are to the Code of Civil Procedure unless otherwise indicated.