Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV031066
ELIA, Acting P. J.Nahum Guzik brought a lawsuit against his Palo Alto neighbors David and Joanne Lee and their predecessors in interest, his former neighbors George and Cornelia Haber, who allegedly eliminated a gate providing access to a pathway used by Guzik over their property before they sold the property to the Lees. Guzik also sued the City of Palo Alto, which allegedly had acquired public utility easements over the adjacent property by condemnation. Guzik claimed that he had acquired a prescriptive right to use a path across the Habers' property, now the Lees' property, which was referred to as the "Disputed Pathway," for purposes of pedestrian ingress and egress, walking his dog, accessing Robb Road where his water meter was located, and accessing the easements for water line and other utilities servicing his property. The path allegedly extended from Guzik's property, which had an address on Old Adobe Road, to Robb Road. Guzik sought to quiet title, and to abate the conditions tortiously interfering with his use and enjoyment of the "Disputed Pathway," declaratory and injunctive relief, and damages.
In the only cause of action against the Habers, Guzik sought to recover litigation costs incurred in suing the Lees as damages under the doctrine of "tort of another." Guzik maintains that his lawsuit against the Lees was the natural and proximate consequence of the Habers' conduct since "proximate consequence" "includes "reasonably foreseeable events, such as the Lees' continuation or maintenance of the nuisance created by defendants Haber." Guzik appeals from the trial court's order granting a judgment of nonsuit in favor of the Habers. We affirm.
A. Procedural History
Guzik's verified third amended complaint contained six causes of action: (1) an action to quiet title against the Lees and the City of Palo Alto, (2) an action to establish a prescriptive right of use against the Lees, (3) an action for declaratory and injunctive relief against the Lees, (4) an action for declaratory relief against the City of Palo Alto to confirm an implied easement over the city's public utility easements, (5) an action for injunctive relief and damages against the Lees based upon trespass and/or tortious interference with property and (6) an action for damages against the Habers under the doctrine of "tort of another." In the lawsuit, Guzik claimed to have acquired a prescriptive right to use the "Disputed Pathway." He alleged that, on an uncertain date, either the Habers or the Lees, without his permission, removed a shared gate that had allowed Guzik access to the "Disputed Pathway" and the easements and replaced it with a gateless fence. He also alleged that the Lees had installed landscaping and other improvements that interfered with his use of the "Disputed Pathway." He asserted that the gateless fence and the improvements were "continuing and abatable."
In the sixth, and only, cause of action against the Habers, Guzik alleged that if the Habers were responsible for the removal of the gate, their actions "constituted a continuing, abatable trespass and/or a continuing, abatable tortious interference with property . . . ." Guzik also alleged that such actions "foreseeably created a situation" requiring Guzik to bring an action against the Lees to vindicate his rights and "proximately caused Guzik to suffer damages, in the form of the attorney's fees and other costs incurred by Guzik in prosecuting the present action, in an amount subject to proof at trial." Guzik sought "compensatory damages proximately caused by the Habers' [sic] having foreseeably created the situation in which Guzik . . . was forced to bring, and to incur the costs associated with, the present action against the Lees" in order to vindicate his rights.
The trial court apparently sustained the City of Palo Alto's demurrer without leave to amend and dismissed the action against the city. During trial, appellant Guzik and the Lees settled and the action against the Lees was dismissed with prejudice.
At trial, Guzik testified that he had purchased his property at "[a]bout the end of the '80s" and a few months later he unnailed a gate which had been nailed shut. He claimed to have used a pathway on the adjoining property from 1989 until 2000 or 2001. According to Guzik, he used the path to access Robb Road, to walk his dog, repair his waterlines and check his meter. The Habers moved into the adjoining property in the summer of 1996 and at that time there was an old fence on the western side of their property. George Haber testified that he inspected the fence because they were having problems with their dog escaping from the yard and he did not see a gate in the southwest corner of their property. He stated that, if there had been a gate, he would have nailed it closed. Guzik introduced other evidence that a gate allowing access to the pathway existed at some time before the Habers sold their property to the Lees.
There was testimony that, in the Spring of 1998, the Habers had a contractor replace the old fence with a new fence built on the western boundary line between their property and Guzik's property and also had the contractor build a partial fence on the southern boundary of their property. The Habers sold their property to the Lees in February 2001. The Habers testified that they had never seen Guzik walking on their property.
The evidence indicated that, in April 2002, the Lees' contractor extended the fence on the southerly border toward Robb Road. The Lees' contractor testified that he did not observe a gate in the fence between the Lees' property and Guzik's property and saw nothing in the construction of the existing fence to indicate that a gate had been removed from that fence at any point.
After Guzik completed presentation of evidence on the issue of liability, the trial court considered the Habers' motion for nonsuit. (Code Civ. Proc., § 581c, subds. (a) and (c).) The Habers' counsel argued that it was not reasonably foreseeable at the time the gateless fence was built that Guzik would claim a prescriptive right after the Habers had sold the property and sue the Habers' successors in interest and the Habers' erection of a gateless fence did not require Guzik to sue the Lees. In opposition to the Habers' motion, Guzik's attorney argued that it became necessary to bring a lawsuit against the Lees because the Habers eliminated the gate and the lawsuit against the Lees was a proximate result of the Habers' conduct. He argued that the Habers had interfered with Guzik's prescriptive rights and it was reasonably foreseeable that a successor in interest would be sued for relief.
Code of Civil Procedure section 581c provides in pertinent part: "(a) Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit. . . . [¶] (c) If the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits."
The court questioned whether "any trespass or any interference with any right that would have occurred at the time the fence was erected would be barred by the statute of limitations." Guzik's attorney responded that "we have not actually sued the Habers for trespass or nuisance" and "[w]e don't have to."
The trial court found the evidence established that the Habers had built the fence that blocked Guzik's passage before selling their property to the Lees. It granted the motion for a judgment of nonsuit as to the Habers. The trial stated: "I think that the doctrine of tort of another is one that has been created so as to allow persons to recover damages that they suffered in having to take legal action that was caused exclusively by the tort of another." The court concluded: "[W]hile it's true that the Habers created it, and an action would have lied against the Habers during the appropriate statutory period to abate the nuisance and for any damages . . . as long as they owned the property[,] once [the Lees] owned the property, . . . the Lees became the people who needed to be sued by Mr. Guzik because of what the Lees didn't do," that is they did not remove the barrier. The court concluded that application of the doctrine of "tort of another" would constitute "an improper extension of that particular doctrine."
B. Nonsuit
"A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff's evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117 . . . .) A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor. [Citations.]" (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.)
"On review of a judgment of nonsuit, as here, we must view the facts in the light most favorable to the plaintiff. '[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant's motion for nonsuit if plaintiff's evidence would support a jury verdict in plaintiff's favor. [Citations.] [¶] In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor. . . ." ' (Campbell v. General Motors (1982) 32 Cal.3d 112, 117-118 . . . .) The same rule applies on appeal from the grant of a nonsuit. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 . . . .)" (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215.)
At one time there was "a conflict of authority in this state regarding the practice to be followed by appellate courts in reviewing an order granting a nonsuit" in regard to whether a reviewing court could consider grounds not specified in the motion. (Lawless v. Calaway (1944) 24 Cal.2d 81, 92.) The California Supreme Court recognized that "ordinarily the reviewing court will uphold the judgment or order of the trial court if it is right, although the reasons relied upon or assigned by the court are wrong." (Id. at pp. 93-94.) The court considered this principle of appellate review to be "sound and salutary in most situations since it prevents a reversal on technical grounds where the cause was correctly decided on the merits." (Id. at p. 94.) Nevertheless, the court found the principle was generally "not true as applied to nonsuits, for such a doctrine would frequently undermine the requirement that a party specify the ground upon which his motion for nonsuit is based in order to afford the opposing party an opportunity to remedy defects in proof." (Ibid.) It concluded: "The correct rule is that grounds not specified in a motion for nonsuit will be considered by an appellate court only if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion." (Ibid.)
The Habers did not bring, and the trial court did not grant, the motion for nonsuit on the ground that Guzik had failed to bring a tort cause of action against the Habers. The trial court had previously overruled the Habers' demurrer to the second amended complaint predicated on that ground. As previously stated, the sixth cause of action in the Third Amended Complaint for "Tort of Another" alleged that any action by the Habers in removing the gate was a "continuing, abatable trespass and/or a continuing, abatable tortious interference with property by the Habers."
C. Doctrine of "Tort of Another"
Code of Civil Procedure section 1021 codifies the general American rule requiring each party to bear the litigation cost of its own attorney fees. (Trope v. Katz (1995) 11 Cal.4th 274, 278-279.) This provision applies to tort actions despite the broad language of Civil Code section 3333 specifying the measure of tort damages. Aside from limited exceptions, "a consistent line of cases decided since 1872, when section 3333 of the Civil Code was enacted . . . deny attorney fees to the prevailing party in an action for tort. (See e.g., Howell v. Scoggins (1874) 48 Cal. 355, 356- 358; Bauguess v. Paine (1978) 22 Cal.3d 626, 636-640 . . . .)" (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 506.)
Civil Code section 3333 states, as it has since 1872: "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."
California's Supreme Court had rejected applications of Civil Code 3333 that would render Code of Civil Procedure section 1021 meaningless in tort actions. (Ibid.) But it does recognize the doctrine of "tort of another" or "third party tort," which was "created by the courts pursuant to their inherent equitable powers" and permits recovery of attorneys' fees as an item of damages in certain limited circumstances. (Id. at p. 505.)
The "tort of another" doctrine is "embodied in the Restatement of Torts and is generally followed in the United States. (Rest.2d Torts, § 914, subd. (2), and appen.)" (Gray v. Don Miller & Associates, Inc., supra, 35 Cal.3d at p. 505.) The Restatement Second of Torts, section 914 states: "(1) The damages in a tort action do not ordinarily include compensation for attorney fees or other expenses of the litigation. [¶] (2) One 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 reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action." (Rest.2d Torts, § 914, p. 492.) The Restatement's comment on subsection (2) indicates that the tort of another rule "applies when the preceding action was brought against the present plaintiff either by a third person or by the state, and also when the present plaintiff has been led by the defendant's tort to take legal proceedings against a third person." (Rest.2d Torts, § 914, com. b, p. 493.)
The Restatement contains two illustrations of the latter situation, where a plaintiff is forced to bring an action against a third party to protect his or her own interests. The first example is as follows: "A, fraudulently purporting to be an agent for B, contracts with C, who, upon B's failure to perform and in the belief that B is liable, brings unsuccessfully a suit against B. C can recover damages from A for the cost of the proceeding." (Rest.2d Torts, § 914, com. b, illus. 2, p. 493.) The second example states: "A, who is B's agent, collects money due from C to B. Later A represents to B that C did not pay him and B brings suit against C for the amount supposed to be due. B can recover from A the expenses of suit as well as the amount received by A." (Rest.2d Torts, § 914, com. b, illus. 3, p. 493.) Neither of these factual illustrations, which involve a plaintiff being fraudulently misled into bringing a lawsuit against a third party, is similar to the facts of this case.
In Prentice v. North Am. Title Guaranty Corp., Alameda Division (1963) 59 Cal.2d 618 (Prentice), California's seminal "tort of another" case, the California Supreme Court stated the "tort of another" rule this way: "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.]" (Id. at p. 620.)
In Prentice, the plaintiffs sold real property and agreed to accept the purchasers' deed of trust for most of the purchase price and to subordinate it to a lender's deed of trust if the purchasers obtained a loan for construction of an apartment building on the property. (Prentice, supra, 59 Cal.2d at p. 619.) "Upon completion of the sale, the Hortons [purchasers] had title to the land, subject to a first deed of trust in favor of Neal [lender] and a second deed of trust in favor of plaintiffs [sellers] for the balance due on the purchase price." (Ibid.) The purchasers obtained a loan but did not use the proceeds to construct an apartment house and eventually filed for bankruptcy. (Ibid.) The trial court found that defendant escrow holder had been negligent in closing the sale of the property and, as a result, the plaintiff sellers were required to protect their interests by bringing a quiet title action against the purchasers and the lender who held the first deed of trust. (Id. at pp. 619-620.)
The California Supreme Court explained: "When a paid escrow holder has, as in this case, negligently made it necessary for the vendor of land to file a quiet title action against a third person, attorney's fees incurred by the vendor in prosecuting such action are recoverable as an item of the vendor's damages in an action against the escrow holder. [¶] Here the natural and proximate consequence of defendant's negligence was to require plaintiffs to file an action seeking to quiet their title against claims by either [the purchasers or the lender who held the first deed]. Accordingly, under the rules herein above set forth, plaintiffs were entitled to recover from defendant as damages reasonable compensation for attorney's fees incurred by them in their litigation with such third parties." (Id. at p. 621.)
The high court in Prentice rejected an argument that the provisions of section 1021 of the Code of Civil Procedure precluded recovery of attorney fees, although it observed that the "section undoubtedly prohibits the allowance of attorney fees against a defendant in an ordinary two-party lawsuit. [Citations.]" (Prentice, supra, 59 Cal.2d at pp. 620-621.) It explained that section 1021 "is not applicable to cases where a defendant has wrongfully made it necessary for a plaintiff to sue a third person. [Citations.]" (Id. at p. 621.)
The California Supreme Court, in a divided decision, found the "tort of another" doctrine inapplicable in Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1 (Davis), a products liability case. Davis involved a buyer's claims of negligence, breach of warranty, and strict liability against the manufacturer and retailer of a defectively designed product. The California Supreme Court determined the trial court erred by ordering the manufacturer to pay the attorney's fees incurred by retailer in defending against "allegations of [the retailer's] own negligence and breach of warranty." (Id. at pp. 3-4, 6-8.) The court characterized the action as a "garden variety" products liability case in which both the manufacturer and retailer were held strictly liable for injuries. (Id. at p. 7.) It stated: "Since ultimate responsibility for the defect was placed on the manufacturer, it was required to pay plaintiff's damages. If the court upheld an award of attorney's fees in this wholly unexceptional case, the legislative mandate of section 1021 would be completely undermined. [Citation.]" (Ibid.)
The high court concluded that "Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d 618 . . . [did] not compel a different result." (Davis, supra, 22 Cal.3d at p. 6.) It explained: "[T]he Prentice exception was not meant to apply in every case in which one party's wrongdoing causes another to be involved in litigation with a third party. If applied so broadly, the judicial exception would eventually swallow the legislative rule that each party must pay for its own attorney. ([Code Civ. Proc.,] § 1021; Reid v. Valley Restaurants, Inc. (1957) 48 Cal.2d 606, 610 . . . .) To avoid this result, Prentice limits its authorization of fee shifting to cases involving 'exceptional circumstances.' (Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d at p. 620 . . . .)" (Ibid.)
The Davis holding was abrogated by the Legislature's enactment of a new statute permitting an indemnitee to recover attorneys' fees from an indemnitor under certain circumstances. Later Supreme Court cases have treated Davis as sui generis to products liability litigation and rejected the requirement of exceptional circumstances.
Code of Civil Procedure 1021.6 was enacted in response to the Davis decision. (John Hancock Mutual Life Ins. Co. v. Setser (1996) 42 Cal.App.4th 1524, 1532; Fidelity Mortgage Trustee Service, Inc. v. Ridgegate East Homeowners Assn. (1994) 27 Cal.App.4th 503, 513.) It states: "Upon motion, a court after reviewing the evidence in the principal case may award attorney's fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee's interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict." Here, we have no claim involving Code of Civil Procedure section 1021.6.
In Gray v. Don Miller & Associates, Inc., supra, 35 Cal.3d 498, the California Supreme Court considered the question whether the plaintiff buyer was "entitled to recover attorney fees on the basis of the 'tort of another' exception to the general rule because he was required to protect his interest by bringing an action against the sellers as the result of Fitch's [the realtor's] wrongdoing." (Id. at p. 507.) In Gray, a realtor falsely represented to the plaintiff that his offer to buy property had been accepted by the sellers and the plaintiff eventually brought an action against the sellers and the real estate brokerage for specific performance and damages. (Id. at p. 501.) Although the trial court denied relief against the sellers because they had not actually accepted the plaintiff's offer, the plaintiff recovered attorneys' fees as an element of the damages awarded against the brokerage. (Ibid.)
The Supreme Court concluded: "We can see no escape from the validity of plaintiff's ['tort of another'] claim in this regard. If Fitch had not first falsely notified plaintiff that his offer had been accepted and several months later told him that the sellers declined to sell the property, plaintiff would not have incurred attorney fees in seeking to obtain the property in a suit for specific performance against the sellers. Thus, Fitch's misrepresentation was the direct cause of plaintiff's action for specific performance against the sellers." (Gray v. Don Miller & Associates, Inc., supra, 35 Cal.3d at p. 507, fn. omitted.)
In distinguishing Davis, the Supreme Court observed: "[I]n a non-products liability context the rule of Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d 618, 620-621, has been applied when it has been found that the party seeking attorney fees was required by the wrong of the defendant to protect his interests by bringing or defending an action against a third person. [Citations.]" (Gray v. Don Miller & Associates, Inc., supra, 35 Cal.3d at p. 508.) The court rejected the defendant's contention that the "tort of another" doctrine did not apply because the case lacked "exceptional circumstances" as seemingly required by Davis. (Id. at pp. 508-509.) It noted that "the 'tort of another' exception as embodied in the Restatement of Torts does not contain an 'exceptional circumstances' requirement (Rest.2d Torts, § 914, subd. (2))" and no cases had been cited "from the many jurisdictions which apply this exception limiting its applicability to 'exceptional circumstances.' " (Id. at p. 509.) In Gray, the Supreme Court found that the plaintiff was entitled to an award of attorneys' fees incurred by him in bringing an action, albeit unsuccessful, against the sellers. (Ibid.)
In Brandt v. Superior Court (1985) 37 Cal.3d 813 (Brandt), the California Supreme Court considered Prentice and the "third party" tort situation in deciding that attorney fees reasonably incurred to compel payment of insurance policy benefits that an insurer had tortiously withheld were recoverable as damages since "[t]he attorney's fees are an economic loss-damages-proximately caused by the tort." (Id. at p. 817.) The court stated that "[w]hat we consider here is attorney's fees that are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action." (Ibid.) It recognized that in actions for false arrest and malicious prosecution, "damages may include attorney's fees incurred to obtain release from confinement or dismissal of the unjustified charges (Nelson v. Kellogg (1912) 162 Cal. 621 . . .) or to defend the prior suit (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 59 . . .)." (Id. at p. 818.)
In Brandt, supra, 37 Cal.3d 813, the Supreme Court commented that, in Gray, it had "narrowly interpreted" Davis and "confined the Davis limitations to products liability litigation." (Id. at p. 818, fn. 4.) It also noted that it had "rejected the notion that recovery under [the 'tort of another'] theory required exceptional circumstances." (Ibid.) In a concurring opinion, Justice Mosk called for "forthrightly" overruling the Davis decision. (Id. at p. 820.)
The doctrine of "tort of another" does not provide a substantive theory of tort liability. As Prentice, supra, 29 Cal.2d 618, made clear, the doctrine of "tort of another" does not deal with " 'the measure and mode of compensation of attorneys' but with damages wrongfully caused by defendant's improper actions." (Id. at p. 621.) "The theory of recovery is that the attorney fees are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action." (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310; see Brandt, supra, 37 Cal.3d at p. 817.)
Thus, Prentice's rule should not be applied where there is no tortious act. (See Lubner v. City of Los Angeles (1996) 45 Cal.App.4th 525, 534 [city's allegedly unjustifiable denial of claim under Government Claims Act "not a tortious act"].) Neither does Prentice apply where there is no causal connection between a tort and the third party litigation, such as where the third party action is unrelated to or independent of another's wrongdoing and not a natural and proximate consequence of the tort. (See Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1156-1157 [separate action to impose a constructive trust based on a third party's breach of fiduciary duty in persuading plaintiff not to bid on property at a foreclosure sale was independent of and not causally related to negligence of the title insurance company, which was acting as an escrow holder, in failing to verify the escrow instructions].) The rule of Prentice cannot be applied to "one of several joint tortfeasors in order to justify additional attorney's fee damages." (Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34, 57 [three joint tortfeasors in an action for defendants' misappropriation of plaintiffs' trade secrets].) "If that were the rule there is no reason why it could not be applied in every multiple tortfeasor case with the plaintiff simply choosing the one with the deepest pocket as the 'Prentice target.' Such a result would be a total emasculation of Code of Civil Procedure section 1021 in tort cases." (Ibid.)
The doctrine of "tort of another" may be invoked even where the "two causes (the one against the third person and the one against the party whose breach of duty made it necessary for the plaintiff to sue the third person) are tried in the same court at the same time. [Citation.]" (Prentice, supra, 59 Cal.2d at p. 621.) Thus, the tort cause of action against the tortfeasor may be asserted in the lawsuit against the third party or in a separate, subsequent lawsuit against the tortfeasor. Ordinarily, "a claim for attorney fees under the 'tort of another' doctrine may not be asserted by post-trial motion but rather must be pleaded and proved to the trier of fact. (Brandt v. Superior Court (1985) 37 Cal.3d 813, 819 . . .; Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34, 56 . . . .)" (Hsu v. Abbara (1995) 9 Cal.4th 863, 869, fn. 4.)
The parties have not cited, and we have not found, any case applying "tort of another" doctrine to an action for trespass or nuisance against the original property owner creating the offensive condition to justify the recovery of litigation costs of suing a subsequent owner who continued the trespass or nuisance. The Habers argue that, as a matter of law, there can be no tort claim against them because "[o]nce they sold their property in 2001 to the Lees, the Habers could not continue to commit any abatable tort; they were not the property owners." Their argument is not supported by substantive law.
California courts have determined that "both the parties who maintain the nuisance and the parties who create the nuisance are responsible for the ensuing damages." (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 343; see Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1137.) It is immaterial that a defendant who allegedly created the nuisance at some time in the past does not currently have a possessory interest in the property. (See Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1137.) "[L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance . . . ." (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38.) Where a nuisance is continuing, the statute of limitation does not run only from its original creation but from each daily continuance until abated. (See Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937, Kafka v. Bozio (1923) 191 Cal. 746, 751-752; cf. Williams v. Southern Pac. R. Co. (1907) 150 Cal. 624, 625-626 [trespass].)
Some California cases have stated that " 'third party tort exception' to the rule that parties bear their own attorney fees is not really an 'exception' at all but an application of the usual measure of tort damages" (Sooy v. Peter, supra, 220 Cal.App.3d at p. 1310 [but Prentice inapplicable where attorney defending lawsuit cross-complained on "tort of another" theory against another attorney who did not owe him a professional duty of due care]; see David v. Hermann (2005) 129 Cal.App.4th 672, 688 [but Prentice inapplicable to action to invalidate testamentary documents, which was not an action for damages on a tort theory of liability]) and it has been suggested that "Prentice merely holds that necessary attorney fees incurred in third party litigation which is proximately and foreseeably caused by a tortfeasor are recoverable as damages in an action against the tortfeasor. (Brandt, supra, 37 Cal.3d at p. 818.)" (Sooy v. Peter, supra, 220 Cal.App.3d at p. 1312.)
In the context of a private nuisance action, a plaintiff must prove that the defendant's "conduct was a substantial factor in causing the harm." (See CACI, No. 2021, p. 1103.)
The failure of new property owners to abate a nuisance on their property affecting an adjoining property might, under certain circumstances, possibly limit the liability of the former owners for damages resulting from the nuisance they created since liability for nuisance "extends to damage which is proximately or legally caused by the defendant's conduct, not to damage suffered as a proximate result of the independent intervening acts of others." (Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1565.) But even assuming that the Habers could be held generally liable for all damages resulting from the alleged nuisance originally created by them, it is our conclusion that the "tort of another" doctrine would not make them liable for the costs of litigation against the Lees.
Guzik alleged that the Habers' act of not providing a gate in the boundary fence created "a continuing, abatable trespass and/or a continuing, abatable tortious interference with property" forcing him to bring this action. It is indisputable that the Habers' conduct did not make it necessary for Guzik to bring an action against the Lees with respect to the landscaping and other improvements installed by the Lees only after the Lees acquired the property. The issue is whether Prentice's "tort of another" doctrine justifies recovery of litigation expenses incurred in suing the Lees for relief as to the gateless fence.
A nuisance is statutorily defined to include anything that is "an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . ." (Civ. Code, § 3479.) A nuisance that "may be discontinued at any time . . . is considered continuing in character . . . ." (Baker v. Burbank-Glendale- Pasadena Airport Authority, supra, 39 Cal.3d 862, 869.) "[T]he 'continuing' nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur." (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d 1125, 1147.) A nuisance is considered abatable if it "can be remedied at a reasonable cost by reasonable means." (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103.) For example, a locked gate that blocks access may be a continuing nuisance if it can be removed at any time. (See Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 108.) "Every repetition of a continuing nuisance is a separate wrong for which the person injured may bring successive actions for damages until the nuisance is abated, even though an action based on the original wrong may be barred. [Citations.]" (Id. at pp. 107-108.) "California's definition of trespass is considerably narrower than its definition of nuisance." (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 674.) A trespass requires an invasion of a party's interest in the exclusive possession of land whereas a private nuisance does not require interference with possession. (See Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233.) "[M]any activities will give rise to liability both as trespass and a nuisance, if they result in the violation of a person's right of exclusive possession of land, and also constitute an unreasonable and substantial interference with the use and enjoyment of the land. [Citations.]" (Rancho Viejo LLC v. Tres Amigos Viejos LLC (2002) 100 Cal.App.4th 550, 561-562, fns. omitted, italics added.) There was no evidence or factual allegation that elimination of the gate interfered with any right of Guzik to exclusive possession of land.
Civil Code section 3483 provides: "Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it." (Enacted 1872.) The Lees' potential liability for the alleged continuing "tortious interference" or nuisance was independently predicated upon their own acts or omissions after they acquired the property.
The successor owner must have knowledge of the nuisance to incur liability. (See Pierce v. German Sav. & Loan Soc. (1887) 72 Cal. 180, 183 ["[h]e who with full knowledge of the existence of a nuisance upon real estate for which the owner would be liable, purchases the reversionary interest in such real estate, and receives the rents thereof from the tenant in possession, thereby voluntarily assumes the responsibility of such nuisance, and becomes liable for the damages sustained in consequence thereof subsequent to his purchase"]; Reinhard v. Lawrence Warehouse Co. (1940) 41 Cal.App.2d 741, 747 [use of the word "neglect" in Civil Code section 3483 "imparts intent and intent presupposes knowledge"]; see also Coats v. Atchison, T. & S.F. Ry. Co. (1905) 1 Cal.App. 441, 446 [any prerequisite of a demand to abate nuisance was abrogated by Civil Code section 3483].)
Prentice indicates that the "tort of another" doctrine applies where "a defendant has wrongfully made it necessary for a plaintiff to sue a third person" (Prentice, supra, 59 Cal.2d at p. 621, italics added) and where "[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" (id. at p. 620, italics added). (See Gray v. Don Miller & Associates, Inc., supra, 35 Cal.3d at p. 508 ["plaintiff required to initiate action" seeking specific performance to enforce "what appeared at the time he filed suit against the sellers to be his right to buy the property" (italics added)]; cf. Brandt, supra, 37 Cal.3d at p. 817 ["When an insurer's tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action " (italics added)]; Nelson v. Kellogg (1912) 162 Cal. 621, 623, cited in Prentice and Brandt [false imprisonment action in which court recognized established rule "in actions for damages for tortious injuries is that the recovery may include special damages properly pleaded, consisting of a liability, incurred but not paid, for reasonable and necessary expenses caused by the wrongful act complained of, such as the fees of an attorney employed to obtain a discharge from an illegal arrest, physician's bills incurred for a cure of bodily injuries, and the like"].)
Even if appellant Guzik acquired a prescriptive right to use the "Disputed Pathway" before the Habers allegedly eliminated the gate providing access to that pathway, Guzik was not compelled by the alleged wrong of the Habers to bring an action against the Lees to protect his interests. If the Habers had not subsequently sold their property, Guzik's action against the Habers would be the typical two-party lawsuit not permitting the recovery of attorney fees. (See Prentice, supra, 59 Cal.2d at pp. 620-621.) Guzik was required to bring an action against the Lees because the Habers later sold their property to the Lees (not a tortious act) and the Lees, as the new owners, allegedly wrongfully continued the nuisance of the gateless fence and expanded the interference of Guzik's claimed prescriptive rights by installing landscaping and other improvements. Thus, the Habers' alleged tortious wrong did not compel or require a lawsuit against the Lees.
"The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years. [Citations.] . . . [¶] Further, the existence of a prescriptive easement must be shown by a definite and certain line of travel for the statutory period. [Citation.]" (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570-571.) Prescriptive rights once gained may then be lost by nonuse or adverse user. (See People v. Ocean Shore Railroad (1948) 32 Cal.2d 406, 419 ["it is not necessary to show an intent to abandon in order to prove loss of an easement acquired by prescription"]; Civ. Code, § 811, subd. 4 [a servitude acquired by enjoyment is extinguished "by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment"]; Glatts v. Henson (1948) 31 Cal.2d 368, 370-371 ["It is well settled that an easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory period"].) The trial court did not base its ruling on the motion for nonsuit on the existence or nonexistence of any prescriptive easement.
The judgment is affirmed.
WE CONCUR: MIHARA, J., McADAMS, J.