Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County., Super. Ct. No. 616488 William A. Mayhew, Judge.
Law Office of Brian C. Davis and Brian C. Davis for Plaintiffs and Appellants.
Triebsch & Frampton and Cory B. Chartrand for Defendants and Respondents.
OPINION
HILL, P.J.
Plaintiff appeals from a judgment entered after a court trial; the trial court found in plaintiff’s favor on the nuisance cause of action and awarded him nominal damages of $1. Plaintiff contends there was undisputed evidence he sustained damages of $300,000 to $400,000. Defendants have moved to dismiss the appeal, asserting plaintiff cannot appeal on the ground the damages are inadequate because he failed to move for a new trial on that ground in the trial court. Defendants’ motion has merit, and we will dismiss the appeal.
The complaint named Charles Harris and his wife, Nancy, as plaintiffs. During the course of the litigation, Nancy passed away. At trial and in this appeal, Charles is the only plaintiff.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, Dennis Douglas Gregory, owned a car wash and gas station located at 1400 Geer Road in Turlock from approximately 1987 to August 2006, when he sold it to defendant, Gagan Enterprises. In 2004, due to a change in the law, Gregory was required to install pans under the gas pumps and to test the soil beneath the pumps. In June 2004, after review of the soil tests, the Stanislaus County Department of Environmental Resources notified Gregory that there had been a release of hazardous materials from the underground storage tank system. Nathan Christman, a geologist with ATC Associates (ATC), an environmental consulting firm, began investigating in September 2004, to determine the nature and extent of any groundwater contamination on the site. He found the soil and groundwater had been affected by petroleum hydrocarbons and volatile organic compounds, including benzene and methyl tertiary butyl ether (MTBE). Subsequent monitoring revealed that contaminants from Gregory’s underground storage tanks had migrated to plaintiff’s adjacent property at 1366 Geer Road.
Gregory applied to the state water board’s Underground Storage Tank Cleanup Fund (UST fund) for assistance. The UST fund provides a qualified applicant with money to pay for consulting services and cleanup work to investigate and remediate the release of hazardous materials from an underground storage tank system. Gregory qualified for funds and he was notified there was up to $1.5 million available for the cleanup of his property and plaintiff’s.
The UST fund is described as a program funded by a wholesale tax on petroleum fuels that is used to reimburse parties responsible for the cleanup of contamination associated with leaking underground storage tanks for the costs of site cleanup.
Christman prepared an action plan and conducted pilot studies to determine which remedial methods would be most appropriate and cost effective. Monitoring of the contaminant levels showed that the contamination of plaintiff’s groundwater was decreasing. At the time of trial, a remedial action plan was in place with the county and in the process of construction. The plan for remediation of both defendants’ and plaintiff’s properties calls for implementation of soil vapor extraction and air-sparging near the source of the contaminants. Christman estimated the onsite remedial process should run continuously for one year, then would likely go to pulse mode, in which the system would be turned on for a week, then off for a week. He expressed confidence the remediation plan would work, based on pilot studies.
“Soil vapor extraction utilizes vapor extraction wells that are screened above soil groundwater. It is done with a vacuum.… It will remove vapor phase volatile organic compounds from the subsurface. And it has a burner that will burn these hydrocarbons before emitting into the atmosphere.”
“Air-sparging is the injection of ambient air into the subsurface to create volatilization in groundwater. It enhances the remedial process through volatilization.”
Plaintiff sued defendants, alleging causes of action for nuisance and negligence. At trial, plaintiff stipulated he was seeking only the cost of repairing his property, and not damages for diminution in value. The trial court ruled in favor of defendants on the negligence cause of action, finding defendants acted reasonably, there was no evidence any regulatory violations caused or contributed to the contamination, and there was no evidence plaintiff incurred any legally cognizable damages. It found the contamination constituted an actionable nuisance, but plaintiff failed to prove the amount of any legally cognizable damages he incurred as a result. The contamination was being cleaned up at the expense of the UST fund, and the groundwater had met state drinking water standards for five quarters. The trial court awarded plaintiff nominal damages of $1. Plaintiff appeals, challenging only the amount of damages awarded on the nuisance cause of action.
DISCUSSION
I. Failure to File Motion for New Trial
A party wishing to move for a new trial must serve and file a timely notice of his intention to move for a new trial, which designates the ground on which the motion will be made. (Code Civ. Proc., § 659.) The grounds on which such a motion may be made include “[e]xcessive or inadequate damages.” (Code Civ. Proc., § 657.) “[A] failure to move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or a court without a jury. [Citations.]” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122 (Glendale Federal).)
“[W]here the ascertainment of the amount of damage requires resolution of conflicts in the evidence or depends on the credibility of witnesses, the award may not be challenged for inadequacy or excessiveness for the first time on appeal.” (Glendale Federal, supra, 66 Cal.App.3d at p. 122.) “‘The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on motion for new trial. They see and hear the witnesses and frequently … see the injury and the impairment that has resulted therefrom.’” (Da Silva v. Pacific King, Inc. (1987) 195 Cal.App.3d 1, 12.) “‘The trier of the facts is [also] the exclusive judge of the credibility of the witnesses.’” (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170.) “‘The appellate court has not seen or heard the witnesses, and has no power to pass upon their credibility.’” (Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 558.) Consequently, permitting a plaintiff to appeal on the ground of the inadequacy of the damage award without first filing a motion for new trial would unnecessarily burden the reviewing court with issues that can and should be resolved at the trial court level. (Glendale Federal, supra, 66 Cal.App.3d at p. 122.) “The failure to move for a new trial, however, does not preclude a party from urging legal errors in the trial of the damage issue such as erroneous rulings on admissibility of evidence, errors in jury instructions, or failure to apply the proper legal measure of damages. [Citations.]” (Ibid.)
Defendants moved to dismiss this appeal on the ground plaintiff failed to move for a new trial in the trial court before filing the appeal. They contend plaintiff’s appeal is based on his claim the damages awarded are inadequate and, because plaintiff failed to move for a new trial in the trial court, he is precluded from raising that issue on appeal. Plaintiff contends his appeal is not barred, because his challenge to the adequacy of the damages does not turn on the credibility of witnesses, conflicting evidence, or other factual issues. He asserts the only evidence of the amount of his damages was the uncontroverted testimony of one witness, whose credibility was not challenged. We conclude plaintiff’s challenge to the adequacy of the damage award depends upon factual issues determined by the trial court. Because he failed to move for a new trial, he is barred from appealing on that basis and his appeal should be dismissed.
Plaintiff does not contend the trial court erroneously admitted or excluded evidence relating to damages. He does not assert it failed to apply the proper legal measure of damages. There was a discussion at trial of the proper measure of damages in an action for a continuing nuisance; plaintiff formally withdrew any claim to damages for diminution in the value of his real property and the parties agreed the cost of repair was the appropriate measure. Plaintiff continues to seek cost of repair damages in this appeal. His only contention is that the amount of damages awarded was inadequate because there was undisputed evidence the cost to remediate his contaminated property would be $300,000 to $400,000.
A nuisance is “[a]nything which is injurious to health … or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” (Civ. Code, § 3479.) There are two types of nuisances: permanent and continuing. A permanent nuisance is one “where ‘“by one act a permanent injury is done, [and] damages are assessed once for all.”’ [Citations.]” (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868.) If the nuisance is permanent, plaintiff ordinarily must bring one action for all past, present and future damage. (Id. at p. 869.) A continuing nuisance is one which can be discontinued or abated at any time; a plaintiff harmed by it may bring successive actions for damages until the nuisance is abated. (Ibid.) Recovery is limited to the actual injury suffered prior to judgment, including loss of use of the property; prospective damages may not be recovered. (Ibid; Renz v. 33rd Dist. Agricultural Assn. (1995) 39 Cal.App.4th 61, 68; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 982.)
Plaintiff proceeded on a continuing nuisance theory and sought damages for the cost of cleaning up his property. Defendants did not dispute that the nuisance, if any, was abatable and continuing, rather than permanent; the evidence showed defendants, with the assistance of a consulting firm and the approval of county authorities, were in the process of having the source of the contamination remediated. Thus, plaintiff could recover only for actual damages he sustained prior to judgment; he could not recover for any prospective damages. He bore the burden of proving the amount of his recoverable damages. (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 268.)
Plaintiff points to the testimony of Vicki Smith Jones, a senior resource management specialist with the Stanislaus County Department of Environmental Resources, as evidence of his damages; he contends that, because her testimony was uncontradicted, the trial court was bound to accept it and award damages accordingly. The evidence at trial indicated a contamination plume originated on defendants’ property and migrated onto plaintiff’s property, contaminating the soil and groundwater; its source was defendants’ underground storage tank system. ATC, the environmental consulting firm retained by defendants, prepared a remedial action plan to clean up the contamination, and the cleanup was underway. When examined by plaintiff’s counsel, Jones testified:
“Q. And you and I have discussed on one occasion the estimated cost to clean up Mr. Harris’s property. [¶] Is it your opinion that it would be somewhere in the range of 300, 000 to 400, 000?
“A. Yes, that’s very possible.
“Q. Okay.
“A. Already 220 -- more than $220,000 has been spent by the cleanup fund.”
On cross-examination, her testimony was clarified:
“Q. Okay. Now, you mentioned a moment ago you had given Mr. Davis an estimate that it would cost between $300,000 and 400, 000 to remediate, clean up this site. [¶] Do you recall that testimony?
“A. Yes.
“Q. And that is through the remediation plans proposed by ATC, correct?
“A. Yes.
“Q. And approximately 200, 000 of that 400, 000 has already been spent in monitoring the site, correct?
“A. I don’t know the detail, if some of that has been spent on remediation equipment or not.”
Christman testified ATC’s remediation plan was for cleanup of defendants’ property. It had no separate plan to clean up plaintiff’s property. Christman estimated the cost to clean up defendants’ property to be $300,000 to $400,000. He stated he did not see any need to remediate plaintiff’s property separately, because cleaning up the source of the contamination would remediate the entire site, including the groundwater flow; cleaning up plaintiff’s property without remediating the source would not be effective. The best way to eliminate the contamination on plaintiff’s property was to eliminate the source of the contamination on defendants’ property. Christman explained his understanding of Jones’s testimony was that the $300,000 to $400,000 she mentioned was for remediation of both properties; it was the cost of the project as a whole, not any one specific property.
Thus, although no attempt was made to impeach Jones’s credibility and no counter estimate of the cost of cleaning up plaintiff’s property was given, Jones’s cost estimate was not uncontroverted. She testified her estimate was based on ATC’s remediation plan, and Christman testified ATC had no plan for remediating plaintiff’s property separately from defendants’. Christman testified the $300,000 to $400,000 amount was for the entire project, and cleaning up defendants’ property would result in the remediation of plaintiff’s as well. Consequently, the evidence regarding the cost of cleaning up the contamination of plaintiff’s property presented factual issues that had to be determined by the trial court. Because ascertainment of the amount of damages to be awarded required resolution of conflicts in the evidence, plaintiff was required to file a motion for new trial in the trial court before challenging the adequacy of the damages in this court. We grant defendants’ motion to dismiss this appeal.
II. Sufficiency of Evidence to Support Award of Damages
Even if we were to consider the appeal on its merits, we would find no reversible error. As discussed above, the evidence regarding cleanup costs supported a conclusion it would cost between $300,000 and $400,000 to remediate the entire contaminated site, including plaintiff’s property. Defendants’ consulting firm monitored the contamination, conducted pilot studies, and prepared a remediation plan which the county approved. The monitoring indicated the contamination in plaintiff’s groundwater was already generally decreasing; at the time of trial, the contaminant levels were within acceptable levels for drinking water. Defendants obtained a commitment of funds from the UST fund, which was anticipated to cover the entire cost of cleaning up both properties. At the time of trial, the necessary equipment had been ordered and paid for, and ATC was awaiting issuance of a building permit by the City of Turlock to begin construction of the necessary facilities.
Plaintiff did not testify that he incurred or paid any amount to repair his property; he did not testify he sustained any out-of-pocket loss as a result of the contamination. He testified his house was on city water; thus, he did not rely on the groundwater for his drinking water. He did not make any claims of personal injury as a result of the contamination. He did not claim any loss of use of his property. He testified that he was only seeking money to clean up his property. The evidence indicated cleanup is already underway, at the expense of the UST fund. Awarding plaintiff damages measured by the cost of cleaning up the contamination, which was already being cleaned up at another’s expense, would result in a windfall to plaintiff. Substantial evidence supports the judgment of the trial court awarding plaintiff only nominal damages.
DISPOSITION
The motion to dismiss the appeal is granted. Defendants are awarded their costs on appeal.
WE CONCUR: CORNELL, J., DETJEN, J.