Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M79843
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Plaintiffs and respondents Mark and Marka Bennett purchased a residence on Holly Hill Drive in Salinas in 2005. To turn a vehicle around on their driveway and exit the property, it was necessary to use a portion of the property belonging to their neighbors to the east, the Garcias and the Linnemans, as a turnout. The Bennetts sued the Garcias and the Linnemans after they attempted to prevent the Bennetts from using the turnout. The parties reached a settlement in which the Bennetts obtained legal title to the turnout area.
The Bennetts subsequently sued defendants and appellants M. Lewis, Inc. (Lewis) and Larry Erickson for, among other things, negligent construction and negligent nondisclosure with respect to the location and construction of the residence and driveway on the Holly Hill Drive property. Lewis was the owner of the property between 1995 and 1997, and had hired Erickson, a general contractor, to construct a residence on the property during that timeframe. Following a court trial, the Bennetts were awarded damages on the negligent construction claim in the amount of $32,531.31, which reflected a portion of the attorney’s fees and other amounts that they had incurred in the litigation against their neighbors, the Garcias and the Linnemans.
On appeal, Lewis and Erickson contend that the trial court erred in awarding damages because the Bennetts failed to establish their claims for negligent nondisclosure and negligent construction. Because the Bennetts failed to establish either of these claims, Lewis and Erickson argue that the Bennetts were not entitled to recover as damages the attorney’s fees they incurred in the prior action against their neighbors under the “tort of another” doctrine. Lastly, Lewis and Erickson challenge the amount of damages awarded to the Bennetts.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Holly Hill Drive Property and the Turnout Area
The Bennetts’ property is located at 9160 Holly Hill Drive in Salinas. The Holly Hill Drive property is set back from the road. To reach the residence on the property, there is a single lane, asphalt driveway approximately one quarter mile in length from Holly Hill Drive to the residence. A portion of the driveway is on the edge of a hill. On the approach to the residence, there is a steep grade off to the right of the driveway, and the driveway makes a sharp left into the garage area of the residence.
It would be dangerous or difficult to back a vehicle down the driveway from the residence to Holly Hill Drive. Consequently, a vehicle exiting the garage area of the residence must be turned around so that it may proceed forward on the driveway towards Holly Hill Drive.
Near the garage area of the residence, and next to the driveway, is a turnout area. The turnout is approximately 733 square feet. At the time the Bennetts purchased the property, the turnout was located on an adjacent property to the east belonging to their neighbors.
Development on the Property by Lewis and Erickson
In 1995, Lewis, a mortgage broker, acquired the Holly Hill Drive property through foreclosure. Lewis hired Erickson, a licensed general contractor, to construct a residence on the property.
Erickson prepared the plans and specifications for the building permit. At some point, a decision was made to change the orientation of the residence on the property by rotating it approximately 48 degrees. The change was made to enhance the view and to make the driveway safer. According to Erickson, the driveway as originally proposed would not have been allowed by Monterey County because of its steepness and fire department requirements.
Erickson described a turnout that was created for a fire truck to turn around approximately 60 to 75 feet from the residence. A fire truck used this turnout during an inspection in 1997. The fire department approved the property after its inspection.
It was Erickson’s belief that a document pertaining to the change in the orientation of the residence was submitted to the county, but he testified that he did not have any independent recollection of doing so. The county did not have a record of any such approved site plan, nor did Erickson have a copy of a county-approved site plan for the reoriented residence. Erickson observed that the original site plan showed at least 40 feet between the proposed residence and the eastern boundary of the property, whereas the reoriented residence was 20 feet from the property line. Erickson reasoned that the county must have had the revised site plan, otherwise county inspectors would have told him there was a “problem” regarding the site plan and the location of the residence. County inspectors never complained to Erickson about the orientation of the residence or about the driveway.
Erickson explained that after construction was completed, he gave the plans for the property to the first purchasers, Mark Sydnor and Susan Radford, because Sydnor’s brother wanted to build a similar house. When Erickson later asked for the return of the plans, he was informed that Sydnor’s brother had lost them.
Erickson testified that when the residence was completed, there was no turnout area. There was only an asphalt driveway and “dirt all around.” According to Erickson, at the time the driveway was built, it was “very suitable for somebody to turn around, particularly a passenger vehicle. Something larger you might have to do a little bit of maneuvering like with a truck.”
The Sale of the Holly Hill Drive Property to Third Parties
In 1997, Lewis sold the property to Mark Sydnor and Susan Radford, who are not parties to this action. During the transaction, Sydnor and Radford were advised in writing that any representations regarding boundary lines were approximate and not guaranteed, and the “true boundary lines” could only be determined by a surveyor. Erickson testified that there were survey stakes showing the boundaries of the property when Sydnor and Radford purchased the property and when they moved in.
Erickson lived near the Holly Hill Drive property. He did not believe that Sydnor and Radford “used the turnout much at all for turning around.” He believed that they turned their vehicle around on the asphalt driveway in front of the garage and not on the adjacent turnout area. He acknowledged, however, that it was “obvious” that they were using the turnout area. At some point, Sydnor and Radford put gravel in the turnout area and rocks around it. Erickson testified that he told Sydnor and Radford that they were improving property that was not owned by them.
Sydnor and Radford also added landscaping to the Holly Hill Drive property, including a lawn and several trees in front of the residence.
The Bennetts’ Purchase of the Holly Hill Drive Property
In late August 2005, the Bennetts purchased the Holly Hill Drive property from Sydnor and Radford. Mark Bennett is a general contractor, although he does not build homes. Marka Bennett, after being a real estate agent for five months, acted as the real estate agent for her and her husband for the purchase of the property. She received a commission for the transaction.
Mark testified that if a vehicle near the garage area of the Holly Hill Drive property is backed into the turnout on the neighboring property and the driver engages in a three-point turn, the driver is able to turn the vehicle around and proceed forward on the driveway towards Holly Hill Drive.
The Bennetts visited the property several times before the close of escrow. They testified that they never had any question nor gave any consideration as to whether the turnout was part of the Holly Hill Drive property. Marka stated that it never occurred to her that the turnout was not part of the property. Mark testified that the sellers’ real estate agent “had no idea” where the property lines were but had represented that the turnout was on the Holly Hill Drive property.
In July 2005, the sellers informed the Bennetts in a “REAL ESTATE TRANSFER DISCLOSURE STATEMENT” that they were aware of “encroachments, easements or similar matters that may affect [the buyers’] interest in the subject property....” In the same disclosure statement, the sellers’ real estate agent noted that “[p]roperty boundaries are based on seller’s knowledge and not verified by agent.” The Bennetts thought the disclosure by the sellers pertained to an easement for the driveway, a portion of which went through state land.
The Bennetts testified that prior to buying the property, they never discussed the turnout with Bill Linneman, one of their neighbors from the adjoining property to the east. Mark Bennett also denied offering to buy the turnout area from Linneman before purchasing the Holly Hill Drive property.
Linneman acquired the adjoining property to the east of the Holly Hill Drive property in March 2005. Linneman testified that in early August 2005, he received a call from Mark Bennett. Mark told Linneman that he was interested in buying the residence at 9160 Holly Hill Drive and wanted to know what kind of residence Linneman was going to build next door. Linneman subsequently met with the Bennetts on August 6, 2005. Prior to the meeting, and based on a survey that had been conducted of the Linneman property, Linneman placed flags to mark the boundary between his property and the adjoining Holly Hill Drive property. After Mark arrived, Linneman showed him a copy of the plans of what was going to be built, showed him where the property corners were, and “indicated that there was a turnaround area that was encroaching on [Linneman’s] property....” At the time, the turnout had gravel on it with large boulders around the perimeter. According to Linneman, Mark asked whether he would consider taking $5,000 for the turnout area and getting a lot line adjustment. Linneman responded that he was not currently interested because of the process he had just gone through with the county to get a building permit, but that they could talk about it later after Mark purchased the Holly Hill Drive property.
Before escrow closed on the Holly Hill Drive property, the Bennetts complained to the sellers’ real estate agent about the adjacent landowners removing shrubs. The shrubs were on a conservation easement, and Mark was concerned about the location of the easement in relation to the property line. At trial, Mark testified that the turnout was on the conservation easement although he did not know it at the time he purchased the Holly Hill Drive property.
The sellers’ real estate agent subsequently sent a facsimile to Marka Bennett regarding the shrubbery removal, explaining that the sellers “do not have control over the actions of another landowner and what they do with their property.” The sellers’ agent further stated: “My clients provided information regarding the boundaries to the best of their ability. As referenced on page 3 of the TDS, it was stated that this information was not verified. As a result, your clients requested and were granted an extension of the contingency period... so that they could further investigate the boundary issue. Through the release of this same contingency..., it appeared that this issue was resolved. [¶] In addition, the buyers requested that they and the sellers split the cost of a survey to occur after the close of escrow... and the sellers agreed. The sellers have cooperated with the buyers throughout this transaction. And the sellers continue to cooperate with the buyers, evidenced by the attached addendum to resolve and settle any disputes regarding the boundary lines.” The addendum to the purchase agreement, executed by the sellers and the Bennetts, states: “Sellers made all legally required disclosures based upon their knowledge of the property boundaries. However in order to resolve and settle any disputes with regards to the boundary lines, seller agrees to provide payment of $6,375.00 upon close of escrow towards the cost of surveying the above-mentioned property. Survey to be conducted after the close of escrow.”
At trial, Mark Bennett testified that he had wanted a survey prior to the close of escrow because the property’s boundary lines were important to him. He wanted “a survey for the whole property to see what an acre and a quarter are” because he had “never bought an acre and a quarter of property before.” He also wanted to locate the northeast line of the property because he was worried about the nearby conservation easement. He denied wanting the survey due to any question or concern about the location of the turnout.
Mark Bennett testified that efforts were made to obtain the survey before the close of escrow, but those who provided estimates “couldn’t come out at the time.” When questioned about the agreement with the sellers to have the survey done after the close of escrow, Mark stated that there was no “urgency” regarding when the survey was to be done. He explained that he and his wife “wanted to buy the house” and the exact location of the boundary lines was not “that important to” them.
Marka Bennett similarly testified that it was not important to have the survey completed prior to the close of escrow. She “loved” the residence and did not want to lose it, and all the surveyors she contacted could not come to the property in time. She denied wanting a survey regarding the location of the turnout area. Rather, she only wanted to “make sure” that she could develop a different area of the property.
Brenda Wood, a real estate broker who testified as an expert witness, stated that a buyer’s broker breaches the standard of care if escrow closes before the buyer’s concern about property boundaries is satisfied. She explained that if her client is a prospective buyer and has a concern about boundaries, she would suggest that the client ask for an extension of the close of escrow so that the exact boundaries could be determined. She clarified, however, that the broker cannot force the buyer to conduct a survey. If the buyer’s broker evaluates the matter and raises the issue to the buyer, the broker has met the standard of care. She acknowledged that the Bennetts’ willingness to close escrow without a survey indicates that they were not concerned about having a survey prior to the close of escrow and there could be many reasons for that decision.
A land surveyor who was hired to perform survey work at the Holly Hill Drive property in 2005 testified that a vehicle may be turned around on the driveway without using the turnout on the neighboring property only if the vehicle is “backed up and [goes] forward about six or eight times” and another car is not in the way.
The Bennetts’ Litigation Against the Garcias and the Linnemans
The Bennetts eventually had the property surveyed after the close of escrow. The survey showed that a portion of the driveway and the entire turnout was not on their property.
At some point, one of the Bennetts’ neighbors, Mr. Garcia, from the adjoining property to the east, used a tractor to fill the turnout area with dirt. Mark removed the dirt and continued using the turnout area. After receiving notice that a fence was going to be built to stop the Bennetts from using the turnout, Mark saw Garcia and some workers preparing to build a fence.
The Bennetts filed a lawsuit against their neighbors from the adjoining property to the east, the Garcias and the Linnemans. The Bennetts sought to quiet title and claimed that they were entitled to a prescriptive easement on the turnout area. The Garcias and the Linnemans in turn filed a cross-complaint in which they also sought, among other things, to quiet title. The parties eventually reached a settlement in which the Bennetts agreed to pay $10,000 for legal title to the turnout area, and the Garcias and the Linnemans agreed to apply for and assume the cost of getting a lot line adjustment.
During the litigation, the Bennetts made a claim under their homeowner’s insurance policy. The insurance carrier, CSAA, agreed to provide “coverage” on the cross-complaint against the Bennetts. CSAA eventually paid 50 percent of the Bennetts’ attorney’s fees, after allotting 50 percent of the attorney’s time to the cross-complaint. In total, CSAA contributed $7,500 towards the settlement and $13,154.93 towards the Bennetts’ attorney’s fees and costs.
The Bennetts estimated that they had been damaged in the amount of $65,062.62 as a result of the attorney’s fees, costs, and other expenses that they had incurred in the litigation against their neighbors.
The Current Action
In June 2006, the Bennetts filed a complaint against M. Lewis, Inc. and Larry A. Erickson, alleging causes of action for negligent construction, intentional violation of building permits, negligent nondisclosure, and intentional nondisclosure. In the first cause of action for negligent construction, the Bennetts asserted that Lewis and Erickson “negligently and carelessly located and constructed the residence on [t]he [p]roperty such that the driveway and turnaround area are partially located and encroach upon the neighboring property to the east....” In the second cause of action for intentional violation of building permits, the Bennetts alleged that Lewis and Erickson intentionally violated the permits issued by the county for the location and construction of the residence and related improvements, and they reoriented the residence and constructed portions of the driveway and turnaround area on the neighboring property to the east. For both causes of action, the Bennetts claimed that they had been “damaged by reason of the attorney’s fees and costs they have incurred” in the action against their neighbors. They alleged that when their neighbors demanded that they stop using the “turnaround area” and threatened to block access to it, they “were required” to file a lawsuit against their neighbors “to obtain preliminary injunctive relief and establish what they assert to be their prescriptive rights to use that portion of the driveway and turnaround area located on the said neighbors’ property.”
Mark Frederickson was also named as a defendant. The Bennetts alleged in the complaint that Mark Frederickson and/or Lewis were the owners of the Holly Hill Drive property. The record on appeal indicates that a dismissal was entered as to Mark Frederickson in January 2007.
A court trial was held in November 2007. After the close of evidence, the Bennetts’ counsel stated that he was “not arguing” that there “was an intentional attempt to deceive people,” thus indicating that the Bennetts were no longer pursuing the fourth cause of action for intentional nondisclosure.
The Trial Court’s Statement of Decision
On December 13, 2007, the trial court filed a statement of decision. The court found that the position of the house had been rotated 48 degrees to make the driveway less steep and to take advantage of a more desirable view. The rotation occurred after governmental approvals were given for the construction. Although it was unclear if Michael Lewis, the principal of M. Lewis, Inc., was aware of the change, the court determined that he “may be charged with having knowledge of such a significant change.” The court observed that Erickson believed he had submitted a revised site plan to the county but he did not have a specific recollection of doing so. The court noted the county’s building department did not have a revised plan in its file. Significantly, the court found that “[i]n order to turn a vehicle around to exit the property it was a practical necessity to leave the paved driveway area and back onto a dirt, or dirt and gravel, turnaround area.”
Regarding the first cause of action for negligent construction, the trial court determined that there was a defective condition, but it also found negligence on the part of the Bennetts. It explained as follows: “The court finds that the loss of 22 feet of driveway turnaround area that did not appear on the existing site plan, and resulted from the building reorientation, produced a negative effect on the reasonable use of the home that qualifies as a defective condition. It is true that, as with most defects, steps could have been taken to mitigate those negative effects, such as paving part of the lawn and landscaped area. Nevertheless, there existed a state of diminished ability to engage in a reasonable use of the property at the time of purchase.
“However, the court finds that [the Bennetts] were on sufficient notice concerning property boundary issues to take affirmative steps to satisfy themselves before purchasing the property.... [The Bennetts] insisted on the sellers providing compensation for the purpose of conducting a survey, and the sellers acquiesced. Sellers also agreed to [the Bennetts’] request for an extension of the contingency period so that [they] could investigate the boundary issues. Although [the Bennetts] maintain their interest and concern over boundary issues had nothing to do with the driveway and turnaround, the weight of the evidence does not support that contention. Additionally, the court finds the testimony of Mr. Linneman, that he alerted [the Bennetts] regarding the boundary problems, to be generally credible. The court cannot be assured that he told [the Bennetts] that the turnaround was not on the property they sought to buy, but the court is convinced that he alerted them to the potential problem.”
“Under these circumstances it was negligent of the [Bennetts] to proceed with the purchase before securing a survey.”
The court determined that the negligence of the parties was “generally equal.” It found the amount of damages to be $65,062.62, apparently representing the attorney’s fees, costs, and other expenses incurred by the Bennetts in their lawsuit against their neighbors. The court determined that the “Collateral Source Rule” barred any reduction of the amount of damages but that it should be reduced by 50 percent “based upon the percentage of negligence attributable to” the Bennetts. The court ultimately awarded the Bennetts $32,531.31 for the first cause of action for negligent construction.
Regarding the second cause of action for intentional violation of building permits, the trial court determined that the Bennetts “failed to carry their burden of proof.” The court explained: “Although it is unclear what modified plans were submitted, or for that matter, what was even required, it is clear that the County approved the project as built. The court finds no violation of law.”
The trial court denied relief to Lewis and Erickson on a cross-complaint that they had filed for equitable indemnity and contribution. Lewis and Erickson had apparently taken the position that Marka Bennett, who acted as the real estate agent for her and her husband in buying the property, allowed “ ‘her clients to close escrow... without first obtaining the survey.’ ” The court determined that Lewis and Erickson could not seek equitable indemnity or contribution where no third party was involved, and the principle of comparative fault, instead, applied to the case. Further, the court reiterated that “Marka and her husband were on sufficient notice as to the boundary issue and elected to go forward with the purchase. It was not professional negligence or her failure to advise that resulted in the problem. Rather, it was the Bennetts’ decision, as buyers, to go ahead with the purchase.”
The cross-complaint is not part of the record on appeal.
Lewis and Erickson filed a notice of intention to move for a new trial on January 8, 2008. One week later, on January 15, 2008, a judgment was filed in favor of the Bennetts in the amount of $32,531.31. Thereafter, following briefing and a hearing on Lewis and Erickson’s motion for new trial, the motion was denied. An amendment to the judgment was filed on April 1, 2008, awarding the Bennetts costs as prevailing parties in the amount of $2,217.25. On April 3, 2008, a notice of entry of judgment and amendment to judgment was filed and served on Lewis and Erickson.
On April 7, 2008, Lewis and Erickson filed a notice of appeal from the judgment and amendment to the judgment.
In their opening brief on appeal, Lewis and Erickson do not challenge the award of costs to the Bennetts in the amendment to the judgment.
III. DISCUSSION
First, Lewis and Erickson contend that the trial court erred in awarding damages because the Bennetts failed to establish their third cause of action for negligent nondisclosure and first cause of action for negligent construction. Regarding the negligent construction claim, Lewis and Erickson assert that the Bennetts failed to support the claim with expert testimony, there was no other evidence of a construction defect, and the doctrine of avoidable consequences bars the Bennetts from claiming any damages. Second, because the Bennetts failed to establish a claim for negligent nondisclosure or negligent construction, Lewis and Erickson argue that the Bennetts were not entitled to recover as damages the attorney’s fees they incurred in the prior action against their neighbors under the “tort of another” doctrine. Third, Lewis and Erickson challenge the amount of damages awarded to the Bennetts.
On appeal, Lewis and Erickson do not raise any issue regarding the second cause of action for intentional violation of building permits (the trial court found in their favor on this claim) or regarding the fourth cause of action for intentional nondisclosure (the Bennetts’ counsel indicated after the close of evidence that the Bennetts were no longer pursuing this claim).
We will address each contention in turn.
Negligent Nondisclosure Claim
The trial court’s statement of decision did not specifically address the Bennetts’ negligent nondisclosure claim. On appeal, Lewis and Erickson make several arguments as to why the Bennetts failed to establish this claim at trial.
The Bennetts in their appellate brief do not assert that they proved at trial negligent nondisclosure by Lewis or Erickson. In a footnote, the Bennetts acknowledge that they alleged “a claim for non-disclosure” based on the assertion that Lewis and Erickson did not tell the original buyers, Sydnor and Radford, that the turnout was not part of the property. The Bennetts state, however, that they “did not pursue the claim due to the unavailability of those buyers.”
Because the Bennetts have chosen not to pursue the negligent nondisclosure claim, we find that they have abandoned this claim. Consequently, we need not address Lewis and Erickson’s arguments concerning the failure of proof regarding this claim.
Negligent Construction Claim
Lewis and Erickson contend that the trial court erred in awarding damages on the first cause of action for negligent construction because the Bennetts failed to support the claim with expert testimony and there was no other evidence of a construction defect. Lewis and Erickson further argue that the doctrine of avoidable consequences bars the Bennetts from claiming any damages.
We first address whether there was sufficient evidence of a construction defect before turning to the doctrine of avoidable consequences.
Evidence of a Construction Defect
In its statement of decision, the trial court found that “[i]n order to turn a vehicle around to exit the property it was a practical necessity to leave the paved driveway area and back onto a dirt, or dirt and gravel, turnaround area.” The court concluded that “the loss of 22 feet of driveway turnaround area that did not appear on the existing site plan, and resulted from the building reorientation, produced a negative effect on the reasonable use of the home that qualifies as a defective condition.”
To prove negligence, the plaintiff must show that the defendant had a duty to use due care, the defendant breached the duty, and the breach was the proximate cause of the resulting injury. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292.) “Standard of care and its breach in the construction defect context must usually be established through expert testimony, though lay testimony may suffice where construction defects ‘are of such common knowledge that men of ordinary education could easily recognize them.’ [Citations.]” (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 749.)
Whether there is sufficient evidence of a construction defect, with or without expert testimony, is a question we review under the substantial evidence test. The substantial evidence rule requires us to “examine the entire record to determine whether there is any substantial evidence, contradicted or uncontradicted, to support the court’s factual findings. Where the evidence conflicts or is capable of conflicting inferences, the appellate court will not substitute its deductions for those of the fact finder. [Citation.] Further,... this court will not reweigh evidence, reappraise the credibility of witnesses, or resolve factual conflicts contrary to the trial court’s findings, but only decide whether there is substantial evidence to support these findings. [Citation.]” (Eidsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189, 195, fn. omitted (Eidsmore).)
In Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689 (Miller), a homeowner and his daughter sued the homebuilder for negligence in design and construction after flooding destroyed the home, injured the homeowner and his daughter, and killed the homeowner’s wife. (Id. at p. 693.) The plaintiffs alleged that the builder failed “to take reasonable steps to guard against destruction of the home in case of flood.” (Id. at pp. 699-700.) Nonsuit was granted in the builder’s favor on the ground that the plaintiffs’ evidence did not establish a prima facie showing of negligence. (Id. at p. 694.)
On appeal, the plaintiffs argued that the trial court erred by requiring expert testimony about the practices of builders in the area in order to establish the proper standard of care applicable to the defendant builder. (Miller, supra, 8 Cal.3d at p. 701.) The California Supreme Court disagreed. The court explained that “[i]f the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case. [Citations.]” (Id. at p. 702.) In the case before it, the court concluded that “it was not for nonexpert minds to determine whether [the builder] failed to exercise due care in the construction of the home. Building homes is a complicated activity. The average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry. [¶] In the instant case, the issue as to whether or not the Miller home had been negligently constructed involved a multitude of subsidiary questions bearing not only upon the erection of the structure itself but also upon the location of the house on the particular lot, the elevation of the lot, the influence of the surrounding terrain, the possibility of run-offs and floods, and the existence of the debris dam. These were not questions which the jury could have resolved from their common experience and the trial judge properly concluded that the issue of the allegedly negligent construction of the Miller residence was one within the knowledge of experts only.” (Id. at pp. 702-703, fns. omitted.) In a footnote, the court also stated: “We exclude from consideration those failures on the part of the builder which are so obvious, if not bizarre, that they present no problem in the determination of his negligence, as for example the installation of a fireplace without a chimney or of a second floor without any means of access to it.” (Id. at p. 702, fn. 15.)
In this case, the trial court found that use of the turnout area was a “practical necessity” and that “the loss of 22 feet of driveway turnaround area... produced a negative effect on the reasonable use of the home that qualifies as a defective condition.” Based on the evidence presented at trial, we determine that expert testimony was not required to establish the standard of care or its breach, in view of the obvious nature of the defect. Given the width and length of the driveway, and the fact that at least a portion of the driveway is on the side of a hill with a steep grade, it is apparent that backing a vehicle down the driveway is not feasible. Indeed, Mark Bennett testified that “[y]ou cannot back out of the driveway all the way down a quarter mile.” In order to turn around near the house, the trial court found that “it was a practical necessity to leave the paved driveway area” belonging to the Bennetts and back out onto the turnout area on the neighboring property. An expert witness was not needed to explain the relationship between the orientation and construction of the driveway and the need to use the adjoining neighbors’ property. Further, there was testimony suggesting that the driveway could have been shaped differently or enlarged so that drivers would not need to use the turnout on the neighboring property. In this regard, Mark Bennett testified that a vehicle could turn around without using the turnout if it backed up and went forward “four times” and drove over the lawn. In sum, expert testimony was not required to show that the configuration of the driveway was defective where, as constructed, it required the use of the neighbors’ land as a matter of practical necessity.
We are not convinced by the argument of Lewis and Erickson that there was “overwhelming evidence... that the driveway as constructed was approved and functional.” Regarding construction approval, they contend that the reoriented residence and driveway complied with, among other things, the required engineering plan and fire safety plan, and “the county inspection teams did not find a defect in the residence or driveway.” However, the fact that certain aspects of the residence or driveway complied with the building code, for example, and were approved by county inspectors, does not relieve Lewis and Erickson from their duty to exercise due care in designing or constructing a driveway that could be used without driving on an adjoining neighbor’s property. (See Firemen’s Ins. Co. v. Indermill (1960) 182 Cal.App.2d 339, 342-343 [building inspector’s approval did not relieve contractors from liability for negligent construction]; El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1358 [building inspector’s approval of contractor’s work did not preclude a finding that contractor’s work fell below the standard of due care].)
Regarding their argument that the driveway was in fact “functional,” Lewis and Erickson point to testimony by Mark Bennett. His testimony, however, did not establish that the driveway was functional as constructed. Mark testified on direct examination that in order to turn a vehicle around, the driver has to use the turnout and do a three-point turn. He was subsequently asked twice at different points during cross-examination whether a car could be turned around without using the turnout if the driver did a “four-point turn.” He responded in the affirmative. On redirect examination, Mark explained that he was “not sure” what a “four-point turn” was, but assumed it meant “going forward and backing up four times.” He testified that after he “thought about it,” a person would have to drive over his lawn in order to turn around with a “four-point turn” and he did not think it was possible to “do a four-point turn around” with his truck.
In further support of their argument that the driveway was “functional,” Lewis and Erickson also point to Erickson’s testimony. They assert that Erickson’s testimony established that when the property was sold in 1997, “a three point turn could easily be made with autos and even construction trucks.”
Lewis and Erickson overstate Erickson’s testimony. Erickson testified that during construction, he drove “trucks to the premises when [he was] working on it,” and he never had “any problem making a turn to go back down the hill straight.” Erickson does not state whether those trucks could be turned around by using a three-point turn and whether it could be accomplished by using the driveway only. Erickson next testified that when the driveway was built, “it was very suitable for somebody to turn around, particularly a passenger vehicle. Something larger you might have to do a little bit of maneuvering like with a truck.” In characterizing the driveway as “suitable” for turning around a vehicle, Erickson again did not specify whether it could be accomplished with a three-point turn.
Moreover, even if Erickson’s testimony is broadly interpreted to mean that a vehicle could be turned around with relative ease by using the driveway only, there was conflicting testimony on this point from other witnesses.
On appeal, we “will not reweigh evidence, reappraise the credibility of witnesses, or resolve factual conflicts contrary to the trial court’s findings, but only decide whether there is substantial evidence to support these findings. [Citation.]” (Eidsmore, supra, 25 Cal.App.4th at p. 195.) Here, substantial evidence supports the trial court’s finding that there was a “defective condition” in the construction by Lewis and Erickson in view of the fact that use of the turnout on the adjoining neighbors’ property was a “practical necessity.” Mark Bennett, who purchased the property with his wife in 2005, testified that in order to turn a vehicle around, the driver must use the turnout and do a three-point turn. Further, a land surveyor who was hired to perform survey work at the property in 2005, testified that a vehicle could turn around on the driveway without using the turnout if the vehicle “backed up and went forward about six or eight times” and another car was not in the way.
Although the testimony by Mark Bennett and the land surveyor regarding the functionality of the driveway was based on the driveway’s condition in or after 2005, Lewis and Erickson do not direct our attention to any evidence in the record suggesting that the size or shape of the driveway near the garage changed significantly since completion of construction by Erickson several years earlier. Lewis and Erickson assert that “Erickson’s unrefuted testimony was that Sydnor and Radford [who owned the property before the Bennetts] had put an addition onto the side of the home, thereby taking up driveway space.” The testimony cited by Lewis and Erickson, however, does not support their assertion. Although Erickson testified about an addition to the house, Erickson did not state whether or to what extent the addition affected the size or shape of the driveway.
Lewis and Erickson assert that the Bennetts could have “pav[ed] a circular driveway around the tree in the front yard” instead of “claiming land that did not belong” to them. However, regarding a circular driveway around the tree, Mark Bennett testified at trial that “[y]ou couldn’t make the radius turn there. Too narrow.”
In sum, we conclude that expert testimony was not required in this case to prove negligent construction and that substantial evidence supports the trial court’s finding of negligence on the part of Lewis and Erickson.
Doctrine of Avoidable Consequences
Lewis and Erickson next contend that the Bennetts “are barred by the doctrine of avoidable consequences from claiming any damages....” Lewis and Erickson point out that the trial court determined that the Bennetts “were on sufficient notice as to the boundary issue and elected to go forward with the purchase” before securing a survey. Lewis and Erickson assert that “[b]y proceeding with the purchase,” the Bennetts “essentially self-inflicted the expenses and damages they seek from” Lewis and Erickson.
The Bennetts argue that Lewis and Erickson may not raise the doctrine of avoidable consequences on appeal, as it is an affirmative defense that Lewis and Erickson did not plead or otherwise raise in the trial court. Even if the issue had been raised below, the Bennetts contend that “the determination of its application is a fact issue that was addressed by the Trial Court in the context of assessing [the Bennetts’] comparative negligence which led to a 50% reduction in damages,” and the issue cannot be raised on appeal.
“In civil actions generally, the right to recover damages is qualified by the common law doctrine of avoidable consequences.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042 (DHS).) Under this doctrine, sometimes referred to as the doctrine to mitigate damages, “a person injured by another’s wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure. [Citations.] The reasonableness of the injured party’s efforts must be judged in light of the situation existing at the time and not with the benefit of hindsight. [Citation.] ‘The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law.’ [Citation.] The defendant bears the burden of pleading and proving a defense based on the avoidable consequences doctrine. [Citation.]” (Id. at pp. 1043-1044.)
Lewis and Erickson’s answer to the complaint is not included in the record on appeal. Consequently, we do not know whether a defense based on the avoidable consequences doctrine was pleaded by them. Although the record on appeal does not reflect that Lewis and Erickson specifically referred to the “doctrine of avoidable consequences” in the trial court, they did raise the issue of whether the Bennetts mitigated their damages.
On appeal, in arguing that the avoidable consequences doctrine should have been applied in this case to bar the Bennetts from claiming any damages, Lewis and Erickson point to the trial court’s determination that the Bennetts “were on sufficient notice as to the boundary issue and elected to go forward with the purchase” before securing a survey. This factual determination by the trial court pertains, however, to the Bennetts’ conduct before they purchased the property and thus before they suffered any injury by defendants. It has been stated that the avoidable consequences doctrine usually refers to the party’s conduct after the time of injury. (Portman v. Clementina Co. (1957) 147 Cal.App.2d 651, 658-659; see Valle De Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [obligation to mitigate damages usually “comes into play when the event producing injury or damage has already occurred and it then has become the obligation of the injured or damaged party to avoid continuing or enhanced damages through reasonable efforts”].) Moreover, as to the Bennetts’ pre-injury conduct before they purchased the property, the trial court took that conduct into consideration in deciding that they were negligent “to proceed with the purchase before securing a survey,” that their negligence was “generally equal” to that of Lewis and Erickson, and that their damages “must be reduced by 50%.” On appeal, Lewis and Erickson do not challenge these determinations by the trial court regarding comparative negligence.
In sum, we determine that Lewis and Erickson’s contention that the doctrine of avoidable consequences bars the Bennetts’ claim for damages fails because they presented no evidence to show that the Bennetts failed to reasonably mitigate damages after they purchased the property.
“ Tort of Another” Doctrine
In this case, the Bennetts sought to establish a claim for negligent construction against Lewis and Erickson in order to recover under the “tort of another” doctrine the attorney’s fees, among other expenses, that they incurred in the prior litigation against their neighbors. On appeal, Lewis and Erickson argue that the Bennetts were not entitled to recover those attorney’s fees under the “tort of another” doctrine because they failed to establish a claim for negligent construction.
As a general rule, each party must bear its own attorney’s fees unless a statute or an agreement of the parties provides otherwise. (Code Civ. Proc., § 1021; Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504 (Gray); see also Trope v. Katz (1995) 11 Cal.4th 274, 278-279.) However, “[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred. [Citations.]” (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620 (Prentice).) The “tort of another” doctrine thus “allows a plaintiff attorney fees if he is required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant. [Citation.]” (Gray, supra, 35 Cal.3d at p. 505.) In such case, where a defendant has wrongfully made it necessary for a plaintiff to sue a third person, “we are not dealing with ‘the measure and mode of compensation of attorneys’ [under section 1021] but with damages wrongfully caused by defendant’s improper actions.” (Prentice, supra, 59 Cal.2d at p. 621.) “[N]early all of the cases which have applied the [“tort of another”] doctrine involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees. [Citations.]” (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.)
Section 1021 provides in pertinent part: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties....”
As we have explained, substantial evidence supports the trial court’s finding of negligent construction on the part of Lewis and Erickson, and on appeal Lewis and Erickson fail to identify evidence that would support application of the avoidable consequences doctrine. Because the trial court’s finding of negligence must stand, and because Lewis and Erickson do not otherwise dispute the applicability of the “tort of another” doctrine in this case, we conclude that the Bennetts are entitled to recover damages under the “tort of another” doctrine.
Amount of Damages
The damages awarded to the Bennetts were based, in part, on the attorney’s fees the Bennetts incurred in the litigation against their neighbors. In that action, the neighbors filed a cross-complaint against the Bennetts. The Bennetts’ homeowner’s insurance carrier apparently paid one-half of the Bennetts’ attorney’s fees and costs for “coverage on the cross-complaint.”
On appeal, Lewis and Erickson attack the amount of the damages awarded to the Bennetts. We understand them to be asserting that because the Bennetts’ own wrongful conduct resulted in the cross-complaint, the damages award should be reduced by the amount of the attorney’s fees incurred by the Bennetts in defending against the cross-complaint. Lewis and Erickson contend that the Bennetts “and their attorney agreed with the insurer that the [Bennetts’] conduct resulted in 50% of the fees incurred....” Based on this purported agreement, Lewis and Erickson argue that the trial court should have taken the total amount of damages claimed by the Bennetts ($65,062.62), and divided it by one-half to reach the amount of $32,531.31, in order to reflect the Bennetts’ purported concession that their own conduct resulted in one-half of the fees generated by their attorney. After taking into account the trial court’s finding concerning the “equal” negligence of the parties, Lewis and Erickson contend that they are only responsible for one-half that amount, or $16,265.65. Lewis and Erickson maintain that their argument concerning a reduction in the damages “is not an issue of collateral source.”
“If an injured plaintiff gets some compensation for the injury from a collateral source such as insurance, that payment is, under the collateral source doctrine, not deducted from the damages that the plaintiff can collect from the tortfeasor. [Citation.]” (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 8; El Escorial Owners’ Assn., supra, 154 Cal.App.4th at p. 1359.) At oral argument, Lewis and Erickson acknowledged that they are not raising the collateral source doctrine. Consequently, we need not discuss the doctrine.
We do not find Lewis and Erickson’s argument compelling.
First, we observe that Lewis and Erickson’s argument is based on factual assertions that are not supported by appropriate references to the page(s) in the record where the facts may be found, as required by California Rules of Court, rule 8.204(a)(1)(C). Consequently, we may disregard those factual assertions. (Baron v. Fire Ins. Exchange (2007) 154 Cal.App.4th 1184, 1186, fn. 1 [reviewing court disregarding factual references that violated the California Rules of Court, rule 8.204(a)(1)(C)]; see City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16 [discussing California Rules of Court, former rules 14 & 15, now rule 8.204].)
Second, the Bennetts point out that their neighbors’ cross-complaint against them “did not increase the scope of the... lawsuit or require the expenditure of additional attorney’s fees.” (See Gray, supra, 35 Cal.3d at p. 505 [“tort of another” doctrine “allows a plaintiff attorney fees if he is required to employ counsel to... defend an action against a third party because of the tort of the defendant”].) In the action against their neighbors, the Bennetts sought to quiet title and claimed that they were entitled to a prescriptive easement on the turnout area. The Bennetts’ attorney in that action testified in the current litigation that, in her experience as an attorney whose practice is concentrated in real property litigation, it is “common in these kinds of disputes that cross-complaints” are filed. The attorney stated that “the nature of the cross-complaint” by the Bennetts’ neighbors was to quiet title and included “related” causes of action for trespass, ejectment, and nuisance. She explained that the cross-complaint pertained to the issue of whether the Bennetts had the right to use the driveway or turnout area. She characterized the other allegations in the cross-complaint as “sundries... in addition to the essential cause of action” and “minor accusations that people typically do... in an easement dispute.” The attorney determined that most of those other allegations were “not actionable.”
Thus, although the Bennetts’ insurance carrier apparently paid one-half of the Bennetts’ attorney’s fees and costs for “coverage on the cross-complaint,” the evidence at trial reflects that the neighbors’ cross-complaint essentially arose out of the same set of facts as the Bennetts’ complaint and primarily concerned the ownership and use of the turnout area. (See Gray, supra, 35 Cal.3d at p. 505.) We determine that in the case before us, substantial evidence supports the trial court’s award to the Bennetts of attorney’s fees incurred in the prior litigation against their neighbors, including in defending against the cross-complaint, and Lewis and Erickson fail to provide a factual basis for reducing the damages award.
Lastly, Lewis and Erickson argue that they did not cause the Bennetts’ damages. Lewis and Erickson argue that the Bennetts never established that they were required to bring the action against their neighbors, and the Bennetts “clearly knew before their purchase that the turnaround was not theirs.” Among other things, Lewis and Erickson point to testimony by the Bennetts’ neighbor, Linneman, who stated that although he declined an offer of $5,000 by Mark Bennett to purchase the turnout area, he was willing to talk about the issue after the Bennetts purchased the Holly Hill Drive property. Lewis and Erickson maintain that “[i]t was the Bennetts’ conduct that changed that arrangement to a litigious one.”
Lewis and Erickson fail to acknowledge that at trial, Mark denied making this offer to Linneman before purchasing the Holly Hill Drive property, and both Mark and Marka Bennett denied knowing that the turnout area was not on the Holly Hill Drive property before they purchased the property. There was also evidence that the Bennetts brought suit against their neighbors after the neighbors filled the turnout area with dirt and threatened to build a fence that would block the Bennetts’ access to the turnout area. Again, we emphasize that as an appellate court, we “will not reweigh evidence, reappraise the credibility of witnesses, or resolve factual conflicts contrary to the trial court’s findings, but only decide whether there is substantial evidence to support these findings. [Citation.]” (Eidsmore, supra, 25 Cal.App.4th at p. 195.) In this case, there was substantial evidence to support the trial court’s implicit findings that the Bennetts were only alerted to potential boundary problems before purchasing the Holly Hill Drive property and were unaware that the turnout was on their neighbors’ property, and that after they purchased the property they were required to bring the quiet title action against their neighbors to resolve the boundary dispute involving the turnout.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: Mcadams, J., duffy, J.