Filed 5/20/16 Ebert v. Press CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

VIRGINIA EBERT, D068153

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2012-00095315-CU-PO-CTL) THELMA PRESS, Individually and as Trustee, etc.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Judgment dismissing defendant individually affirmed, appeal otherwise

dismissed.

Law Office of Susan M. Goldbeck and Susan M. Goldbeck for Plaintiff and

Appellant.

Koeller, Nebeker, Carlson & Haluck, Robert C. Carlson, Sharon A. Huerta and

Scott A. Davis for Defendant and Respondent Thelma Press, and Nonparty and

Respondent Travelers Property Casualty Insurance Company. After a neighbor's tree fell in her yard, plaintiff Virginia Ebert (Ebert) sued the

neighbor, defendant Thelma Press, individually (Press) and in her capacity as trustee of

the living trust that owned the land on which the tree grew (Trustee) (together the Press

defendants), for negligence, trespass and nuisance. The trial court granted summary

adjudication of the negligence and trespass causes of action and dismissed Press from the

case before allowing the case to proceed to trial against Trustee.

Ebert appeals and argues the court erred by: (1) dismissing Press, (2) granting

summary adjudication as to the negligence and trespass causes of action, and (3)

awarding sanctions against Ebert and her counsel as a result of a motion to quash a

subpoena served on third party Travelers Property Casualty Insurance Company

(Travelers). The Press defendants and Travelers moved to dismiss the appeal in part,

arguing the summary adjudication and sanctions orders are not appealable at this time in

the absence of a final judgment.

We grant the motion to dismiss the appeal in part, declining to reach the sanction

order and limiting our discussion of the summary adjudication orders to those issues

properly raised in connection with an appeal from the judgment dismissing Press, and

affirm the judgment dismissing Press.

FACTUAL AND PROCEDURAL BACKGROUND

Ebert owned and lived on property (the Ebert property) adjacent to property

occupied by Press and owned by the Louis M. and Thelma Press Living Trust (the Press

property). In April 2011, a eucalyptus tree (Tree 1) growing on the Press property fell

2 onto the Ebert property. The tree was 80 to 100 years old, 117 feet tall, and weighed

approximately 29 tons, and, when it fell, caused damage to Ebert's fence, garden boxes,

landscaping and slope, diminution in the value of Ebert's property and emotional stress to

Ebert. The following October, the Presses' insurance carrier paid for a tree care service to

remove the fallen tree from Ebert's property. However, there was a second large

eucalyptus tree (Tree 2) on the Press property from where its limbs continued to drop

onto the Ebert property. Ebert asked the Press defendants to remove or prune Tree 2 but

they refused to do so.

In April 2012, Ebert filed a complaint against the Press defendants.1 In February

2013, Tree 2 was removed but part of the tree remained lying on the Press property in the

canyon near Ebert's property. Thereafter, Ebert filed a first amended complaint (the

FAC), alleging a cause of action for general negligence and four separate causes of action

for "intentional tort" against the Press Defendants. The FAC does not specifically

identify the intentional torts but appears to assert claims for trespass, private nuisance,

and public nuisance related to Tree 1 and private nuisance related to Tree 2.

Before trial, the Press defendants filed a motion for summary judgment or

summary adjudication, attaching a declaration from Robert W. Walton, Jr. (Walton), a

certified and registered consulting arborist. In his declaration, Walton stated he inspected

Tree 1 the month after it fell and concluded it fell because the root system buried beneath

1 The Complaint also asserted a single cause of action (fifth) against another neighbor but the court later dismissed that cause of action. That cause is not at issue on this appeal. 3 the soil was infected with brown cubicle rot. Walton concluded the decay could not have

been detected from visual inspection of the tree before it fell and the rot would not have

been apparent absent excavation of the soil around the tree's root system; something a

reasonable person would not have done because doing so could destabilize the tree,

causing it to fall.

Ebert opposed the motion, relying in large part on declarations from herself and

two arborists, Ronald Matranga and Joseph Bileci, Jr. Ebert, although not an arborist or

otherwise qualified as an expert, described her own inspection and observations of Tree

1. Matranga described his examination of Tree 1, which occurred over five months after

it fell, and stated he observed indicia of decay but admitted he could not determine if that

indicia was visible before the tree fell. Bileci, who never examined the tree himself,

relied solely on the declarations of Walton, Ebert and Matranga, and concluded a

professional arborist inspecting the tree before it fell likely would have recommended

removal or further inspection via root collar excavation.

Meanwhile, nonparty Travelers moved to quash two subpoenas Ebert had served

on it. The subpoenas sought the claim file related to Tree 1, documents related to

Travelers's general procedures for handling claims, and documents related to the Presses'

insurance policy, among other items, as well as the deposition of a person most

knowledgeable from Travelers. Travelers argued the subpoenas were overbroad and

constituted an abuse of discovery, and requested sanctions against Ebert. The court

4 granted the motion to quash and awarded Travelers $1,500 in sanctions for plaintiff's

misuse of the Discovery Act.

The trial court then granted the Press defendants' motion for summary adjudication

as to the causes of action for negligence and public nuisance. In finding the Press

defendants were not negligent, the court relied on the declaration of Walton for the

conclusion that no reasonable homeowner would have concluded the tree was diseased

and likely to fall, found Matranga's declaration did not present a triable issue of fact,

struck Bileci's declaration in its entirety but also found it did not present a triable issue of

fact, and found Ebert had not established notice of the tree's diseased state or that the

failure to act absent such notice constituted negligence. The court also struck several

sentences related to trespass to timber statutes, finding the motion for summary

adjudication of the second cause of action moot as a result, and denied the motion as to

Ebert's cause of action for private nuisance. Accordingly, the court stated the case would

proceed to trial on Ebert's causes of action for common law trespass as to Tree 1,

common law nuisance as to Tree 1, and common law nuisance as to Tree 2.

The Press defendants filed a motion for reconsideration, arguing the FAC did not

actually state a cause of action for common law trespass, as opposed to trespass to timber,

and, to the extent the court was now construing the complaint to state such a cause of

action, the court should grant summary adjudication in favor of the Press defendants as

the court had previously found Tree 1 did not fall as a result of negligent or intentional

conduct by the Press defendants. The court allowed the parties to provide supplemental

5 briefing on the common law trespass cause of action and, following the briefing and

argument, granted summary adjudication as to the trespass cause of action as well.

Thereafter, the Press defendants listed Press's liability as an individual as a legal

issue for the court to decide in the joint trial readiness conference report and argued in

their trial brief that no liability remained against Press as an individual as a result of the

court's previous orders. Ebert did not address this issue in her trial brief. The court

raised the issue at the pretrial conference and asked Ebert's counsel for her position. The

court heard argument, noted the prior summary adjudication ruling regarding negligence,

and found no liability remained against Press because the trust, not Press, owned and

controlled the two trees at issue. The court thereafter issued a judgment of dismissal as to

Press.

The trial as to nuisance proceeded2 and, during trial, Travelers produced certain

documents Ebert had requested in the subpoenas. Ebert filed a motion for

reconsideration of the prior sanctions order and Travelers opposed, arguing all of the

documents produced by Travelers at trial had been previously produced as part of a third

party adjuster's file. The court granted Ebert's motion and reduced the sanctions to 300

dollars.

2 The jury found Press, as Trustee, liable for nuisance and awarded damages. However, a second portion of the trial, on abatement, was set for October and later stayed as a result of the present appeal. The court has not yet entered final judgment as between Ebert and Trustee. 6

ANALYSIS

I

Motion to Dismiss

We first address the motion to dismiss Press and the proper scope of issues on

appeal with respect to the judgment dismissing her as an individual.

A

Pursuant to Code of Civil Procedure, section 904.1, subdivision (a)(1), an appeal

may be taken from a final judgment. The "one final judgment" rule, a fundamental

principle of appellate practice, prohibits appellate review of intermediate rulings until

final resolution of the case. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th

688, 697.) However, there is a recognized exception to the one judgment rule in cases

with multiple parties—a judgment, such as a dismissal, which leaves no issue to be

determined as to a particular party is appealable before entry of final judgment as to the

remaining parties in the case. (See Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437

[final judgment as to one defendant appealable in multiparty case].) The exception

applies where a party brings an action against another party in multiple capacities and a

judgment is entered disposing of all issues related to a party in one capacity. (See First

Security Bank of Cal. v. Paquet (2002) 98 Cal.App.4th 468, 474-475 [judgment

dismissing cross-complaint brought against individuals was appealable despite continued

pendency of claims brought by the same individuals in their capacity as shareholders];

7 Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237 [appellant's capacity as estate

administratix was a separate party for purposes of appeal].)

An order granting summary judgment or summary adjudication is not an

appealable order. (Stolz v. Wong Communications Limited Partnership (1994) 25

Cal.App.4th 1811, 1816.) However, on appeal from a judgment of dismissal, the

appellate court may review "any intermediate ruling, proceeding, order or decision which

involves the merits or necessarily affects the judgment or order appealed from or which

substantially affects the rights of a party . . . ." (Code Civ. Proc., § 906; Jennings v.

Marralle (1994) 8 Cal.4th 121, 128; Stolz, at p. 1816.)

Here, the judgment of dismissal of Press as an individual is final as to Press and is

therefore appealable. (See Nguyen v. Calhoun, supra, 105 Cal.App.4th at p. 437; First

Security Bank of Cal. v. Paquet, supra, 98 Cal.App.4th at pp. 474-475.) Further, as the

trial court relied on its prior summary adjudication orders when dismissing Press, the

summary adjudication orders are reviewable on appeal from the judgment of dismissal to

the extent they involve the merits or necessarily affect the judgment of dismissal of Press.

(See Stolz v. Wong Communications Limited Partnership, supra, 25 Cal.App.4th at

p. 1817.) We therefore review the summary adjudication orders but limit our discussion

to the court's adjudication of causes of action alleged against Press.

B

We also consider the appealability of the sanctions order. Code of Civil

Procedure, section 904.1 provides a statutory scheme for appeals from orders awarding

8 sanctions, allowing appeals from interlocutory orders directing payment of monetary

sanctions, by either a party or an attorney for a party, only if the amount exceeds 5,000

dollars. (Id., subd. (a)(11).) Sanction orders of 5,000 dollars or less may be reviewed on

appeal by the party after entry of final judgment in the main action, or, at the discretion

of the Court of Appeal, on a writ petition. (Id., subd. (b), italics added.) Here, the

sanctions order awards sanctions of only 300 dollars and is not appealable under the

statute until entry of final judgment in the main action.

Ebert incorrectly asserts the sanctions order is nevertheless appealable as a

postjudgment order under Code of Civil Procedure, section 904.1, subdivision (a)(2), as it

was made after entry of the judgment dismissing Press. The purpose of subdivision

(a)(2) is to prevent a situation in which an order is issued after a final judgment and is

therefore not appealable because the judgment was already appealed or the time to appeal

had lapsed. (Ibid.) Thus, despite the broad statutory language, not every postjudgment

order is appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.)

To be appealable, a postjudgment order must satisfy two additional requirements: (1) the

issue raised by appeal from the order must be different from those arising from the

judgment, and (2) the order must affect the judgment or relate to it by enforcing it or

staying its execution. (Id. at pp. 651-652; see SCC Acquisitions, Inc. v. Superior Court

(2015) 243 Cal.App.4th 741, 748 [postjudgment orders that do not meet these

requirements include orders preliminary to a later judgment that can be challenged by

appeal of the later judgment].) Here, the sanctions order does not affect or relate to the

9 judgment dismissing Press and is, therefore, more appropriately raised on appeal

following a final judgment in the main action, after all issues regarding the evidence have

been resolved.

Ebert also asserts the sanctions order is immediately appealable as a collateral

matter. An order is collateral and immediately appealable if it is substantially the same as

a final judgment in an independent proceeding. (See In re Marriage of Skelley (1976) 18

Cal.3d 365, 368.) Here, the court has already reduced the sanctions order once as a result

of a motion for reconsideration unexpectedly arising out of conduct of the parties at trial,

indicating the sanctions order is not collateral. Further developments in the case prior to

final judgment may similarly reflect on the propriety of Ebert's discovery requests to

Travelers and, thus, the court's order on sanctions. Allowing an appeal at this juncture

would result in the type of costly and oppressive multiple appeals the single judgment

rule attempts to avoid. (See Griset v. Fair Political Practices Com., supra, 25 Cal.4th at

p. 697.)

Based on the foregoing, we grant the motion to dismiss the appeal in part and

decline to address the sanctions order at this time. The appropriate time for an appeal of

that order is after entry of final judgment in the main action as to all parties.

II

The Judgment Dismissing Press as an Individual

Having determined the proper scope of issues on appeal, we turn to the merits of

the judgment dismissing Press as an individual. We first address the court's grant of

10 summary adjudication as to the negligence and trespass causes of action asserted against

Press.

A

The court grants a motion for summary adjudication if it completely disposes of a

cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code

Civ. Proc., § 437c, subd. (f)(1).) A defendant moving for summary adjudication bears the

burden of establishing either a complete defense or that the plaintiff cannot establish one

or more elements of a cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 850; see Code Civ. Proc., § 437c, subd. (p).) The defendant may show the

plaintiff cannot establish a particular element by presenting facts that, if undisputed,

"conclusively negate" the element (Aguilar, at p. 853) or by demonstrating the plaintiff

does not possess, and cannot reasonably obtain, evidence necessary to prove the element.

(Id. at p. 855.) If the defendant does so, the burden shifts to the plaintiff to set forth facts

demonstrating the existence of a triable issue of fact. (Aguilar, at p. 850.)

On appeal, we review summary adjudication orders de novo and are not bound by

the trial court's stated reasons. (Blue Shield of California Life & Health Ins. Co. v.

Superior Court (2011) 192 Cal.App.4th 727, 732.) We consider all of the evidence and

inferences reasonably drawn from the evidence, and view the evidence in the light most

favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at

p. 843.)

11 1. Negligence

To prove negligence, a plaintiff must establish duty, breach, causation, and

damages. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) A duty of due

care with regard to a natural condition on a piece of land can arise out of possession

alone, as opposed to ownership of title. (Sprecher v. Adamson Companies (1981) 30

Cal.3d 358, 367-368.) A possessor of land has a duty to maintain the land in a reasonably

safe condition. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) The test is whether the

possessor acted as a reasonable person in his or her management of the property in view

of the probability of injury to others. (Alcaraz, at p. 1156; Rowland v. Christian (1968)

69 Cal.2d 108, 118-119, abrogated in part by statute as stated in Calvillo-Silva v. Home

Grocery (1998) 19 Cal.4th 714, 722); Alpert v. Villa Romano Homeowners Assn. (2000)

81 Cal.App.4th 1320, 1330, fn. 9.)

Here, Ebert contends the court's summary adjudication was improper because the

Press defendants' motion addressed only negligent inspection and not negligent

maintenance but this is a distinction without a difference. Press's duty was to act

reasonably in light of the potential risks. (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1156

[defining the appropriate inquiry as whether possessor managed the property in her

possession and control in a reasonable manner in view of the potential injury]; Sprecher

v. Adamson Companies, supra, 30 Cal.3d at pp. 365, 372 [recognizing a single duty of

reasonable care under the circumstances in the maintenance of property, including trees].)

Applying the appropriate legal framework, Press argued she did not know, or have reason

12 to know, of the dangerous condition of the tree and, therefore, did not act, or fail to act, in

a manner causing damage to Ebert's property. Expert arborist Walton examined Tree 1

and concluded a visual inspection of the tree before it fell would not have indicated the

tree was in danger of falling and no reasonable layperson would have known there was a

problem requiring him or her to act. Walton also concluded even an arboricultural expert

would not have foreseen the risk the tree would fall as the fungus causing the tree's

eventual demise would only have been discovered through an inherently dangerous, and

therefore unreasonable, root excavation procedure.

The only evidence Ebert presented regarding inadequate maintenance was a single

paragraph in the declaration of Ebert's arborist expert, Bileci, in which he noted a large

open wound near the base of the fallen tree he saw in a photograph taken by Ebert and

concluded "[s]uch fungal infection can often be prevented or minimized by facilitating

healthy trees with proper care and maintenance, by minimizing wounds, by removing

dead and diseased limbs, and proper pruning of dead branches." This statement does not

indicate the actual cause of rot in Tree 1, what sort of maintenance a reasonable possessor

would have taken, or that such reasonable maintenance would have prevented Tree 1

from becoming diseased or falling. Further, Bileci never examined the tree himself and it

is unclear when Ebert took the photograph, where on the tree the wound appears and

whether the wound was visible before the tree fell. Thus, even if Bileci's general,

speculative statement is considered, it alone cannot support a claim of negligence against

Press. (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197 [an issue

13 of fact cannot be created by speculation or conjecture, or cryptic, broadly phrased, and

conclusory assertions].) Considering the foregoing evidence, the court determined Ebert

could not establish Press had actual or constructive notice Tree 1 posed any danger or

that a reasonable possessor in Press's position would have taken any action that would

have prevented the tree from falling.

Absent credible evidence a reasonable occupant in the same situation as Press

would have been aware the tree presented a risk to others or would have otherwise taken

some action that may have prevented the tree from falling, Ebert could not prove Press

caused her damage by breaching a duty owed to her. The trial court correctly granted

Press's motion for summary adjudication of the negligence cause of action against her.

2. Common Law Trespass

Common law trespass is an intentional tort and requires the trespass to be the

result of a purposeful, negligent or reckless action or an extra hazardous activity

undertaken by the defendant. (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233.)

Where a cause of action for trespass is based on the continued presence of material on

another's land, the defendant is liable only if he or she tortiously placed the material on

the land in the first instance. (Newhall Land & Farming Co. v. Superior Court (1993) 19

Cal.App.4th 334.)

Here, Ebert asserted trespass because of negligence, incorporating the negligence

allegations into her second cause of action for trespass. The trial court therefore properly

based its summary adjudication of trespass on its finding that Press was not negligent.

14 On appeal, Ebert contends only that we should reverse the trial court's order on her

trespass claim if we reverse the order on her negligence claim. As we conclude summary

adjudication was proper as to the negligence claim asserted against Press, summary

adjudication was also proper as to the trespass claim asserted against Press.

B

Having determined the court did not err in granting summary adjudication with

respect to negligence and trespass, we now turn to the court's dismissal of Press as an

individual. Ebert argues the trial court erred by denying her due process before

dismissing Press and determining Press was not liable for nuisance as a matter of law.

1. Ebert Was Afforded Due Process

The court, rather than the jury, properly decides issues of pure law. (Evid. Code,

§ 310, subd. (a); Code Civ. Proc., §§ 589, 591, 592; Estate of Torregano (1960) 54

Cal.2d 234, 243.) Although a noticed motion is preferable to sua sponte action by the

court, the trial court does have inherent powers to conduct hearings and formulate rules

of procedure as justice may require. (Walker v. Superior Court (1991) 53 Cal.3d 257,

267-268, 271.) When the court exercises such discretion, due process requires that all

parties have the opportunity to be heard at a meaningful time and in a meaningful

manner. (Mathews v. Eldridge (1976) 424 U.S. 319, 333.) The right to due process is

flexible, however, and requires those procedural protections as the particular situation

demands. (Id. at p. 334; People v. Hansel (1992) 1 Cal.4th 1211, 1219.) On appeal, we

review issues of pure law and claims regarding procedural due process de novo.

15 (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108;

Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)

Here, the parties submitted numerous briefs on the issues of negligence, trespass

and nuisance, and Ebert was well aware of the court's summary adjudication rulings on

negligence and trespass. The issue of Press's remaining individual liability was flagged

as an issue for the court in the joint trial readiness report and argued as one of only three

"disputed legal issues for court resolution" in Press's trial brief. Although Ebert neglected

to address the issue in her own trial brief, she should have been aware of the issue and

prepared to address it when the court raised it at the pre-hearing conference. Although

Ebert's counsel was unable to cite specific cases, the court did provide her with an

opportunity to be heard and she did state her position. She did not, however, raise a due

process objection or ask the court to allow the parties to brief the issue. As Ebert had

notice and an opportunity to be heard, the court did not violate her due process rights in

ruling on the issue at the pretrial conference.

2. No Cause of Action Remained Against Press

A cause of action for nuisance requires conduct that directly and unreasonably

interferes with or creates a condition that interferes with another's free use of his or her

property. (Civ. Code, § 3479; Lussier v. San Lorrenzo Valley Water Dist. (1988) 206

Cal.App.3d 92, 103-104.) A plaintiff can state a cause of action for nuisance without

asserting the defendant acted negligently, but when the cause of action for nuisance

16 asserts a failure to prevent the nuisance in the first instance, negligence is required. (Id.

at p. 105; City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1237.)

The court determined Tree 1 did not fall because of the negligence of Press and

the complaint, even as amended at the pretrial hearing, did not contain any allegation that

Press personally acted intentionally or negligently with respect to Tree 2. As such, any

claim for nuisance remaining against Press related only to Press's failure to remove Tree

2 or any remnants of either Tree 1 or Tree 2 from Ebert's property. But it is the owner of

land, if anyone, and not the possessor, who is responsible for removing portions of his or

her trees lying on another's property. (See Mattos v. Mattos (1958) 162 Cal.App.2d 41,

43; Bonde v. Bishop (1952) 112 Cal.App.2d 1, 6.) Press did not personally have any right

or obligation to remove the trees and, thus, could not be liable for nuisance. As no cause

of action remained for which she could be liable as a matter of law, the court properly

dismissed her as an individual.

Ebert argues Press is personally liable under Probate Code sections 18001 and

18002, but those statutes explicitly state the trustee is personally liable only if the trustee

is personally at fault. Here, we have already determined Press was not personally at fault

for Tree 1 falling or parts of either tree remaining on Ebert's property. It was the trust, or

Trustee acting on behalf of the trust, that was potentially responsible for the removal of

trees and any action taken, or not taken, by Press in that regard was in her capacity as

Trustee. Probate Code Sections 18001 and 18002 are not applicable.

17 Moreover, even if the court did err, any error was harmless beyond a reasonable

doubt even under the more stringent federal standard expressed in Chapman v. California

(1967) 386 U.S. 18, 24. Nothing in the record, or Ebert's arguments on appeal, indicates

the verdict would have been any different had the causes of action for nuisance been

asserted against both Press and Trustee, rather than only Trustee.

DISPOSITION

The judgment dismissing Thelma Press individually is affirmed. The appeal is

otherwise dismissed. Respondents are awarded costs on appeal.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

18