Filed 5/11/20 Hewette v. CC-La Jolla, Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAMES B. HEWETTE, JR.,

Plaintiff and Appellant,

v.

CC-LA JOLLA, INC. et al.

Defendants and Respondents.

D075812

(Super. Ct. No. 37-2017-00050489- CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed.

Law Offices of Robert R. Massey and Robert R. Massey for Plaintiff and Appellant.

Law Offices of Brian C. Gonzalez, Brian C. Gonzalez; Law Office of Martin N. Buchanan and Martin N. Buchanan for Defendants and Respondents.

James Hewette is a resident of Vi at La Jolla Village (Vi), a luxury retirement community owned and operated by CC-La Jolla, Inc. (CC-La Jolla), CCW-La Jolla, LLC (CCW), and Classic Residence Management Limited Partnership (Classic Residence) (CC-La Jolla, CCW, and Classic Residence; collectively Respondents). Hewette brought seven causes of action against Respondents based on two alleged wrongs: he must valet park his car at Vi, and the water pressure in his unit allegedly is not up to code (it is too low).

Respondents successfully moved for summary judgment. Hewette appeals from the judgment following Respondents’ motion, contending that Respondents improperly amended an agreement governing parking at Vi and that a disputed material fact exists as to the water pressure in his unit. We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Vi is a retirement community located in La Jolla that is home to about 600 senior residents who live in two high-rise towers. The South Tower was originally built in 1994. In 1998, CCW purchased Vi out of bankruptcy. The North Tower was built after CCW purchased Vi.

After the North Tower was completed and residents began to move in, it became clear there would be a shortage of parking spaces in the garage. To accommodate all residents and their vehicles, Vi management realized it would eventually become necessary to transition to valet parking only. Accordingly, Vi revised its Residency Agreement and Resident Handbook to notify potential residents and authorize the adoption of a valet-only parking policy. To this end, paragraph 2.1.9 of the revised Residency Agreement stated: “One car per home may be kept at the Community . . . . Provider [CCW and CC-La Jolla] may require some or all parking to be on a valet basis.” (Boldface and italics omitted.) Page 23 of the revised Resident Handbook stated: “We may require some or all resident parking to be on a valet basis. Currently, we permit you to decide whether you prefer to valet park or self-park your automobile.” (Boldface and italics omitted.) These revisions were made before Hewette moved into Vi.

In December 2011, Hewette signed a Residency Agreement to occupy a unit in Vi’s South Tower. In the version Hewette signed, the agreement stated Vi “may require some or all parking to be on a valet basis.” (Boldface and italics omitted.) He also was provided a copy of the revised Resident Handbook stating that “[w]e may require some or all resident parking to be on a valet basis.” (Boldface omitted.)

At that time, the Residency Agreement also stated: “Provider may adopt policies to preserve the health, safety and peaceful enjoyment of the Community by all residents . . . and for all other reasonable and lawful purposes. Many of these policies and rules are set forth in the Resident Handbook.” The agreement additionally provided: “You agree to abide by the rules and regulations of the Community as they now exist or as they may later be amended by the Provider in its discretion. Provider reserves the right to amend its policies (including the resident handbook) from time to time, and you agree to abide by the policies, as adopted and amended.”

On July 11, 2014, Vi’s executive director sent a memo to residents advising them of a new community policy requiring valet-only parking, effective September 1, 2014. The executive director instituted this policy because of the shortage of parking spaces and the increasing number of safety issues involving residents driving in and out of the garage. The increased number of resident vehicles made it necessary to ” ‘stack park’ ” the garage, which narrowed the lanes and made it more difficult to navigate.

Hewette was the only one of the residents at Vi who refused to comply with the valet-only policy and continued to drive his vehicle in and/or out of the garage himself. He complained that he did not want to have to walk to the front of his building to wait for his vehicle. The executive director met with Hewette and tried to work out an arrangement with him. She instructed the valet service to bring Hewette’s car around to another South Tower entrance each morning at an agreed time, so that he would have direct access to his car when he left for work. She also instructed the valets to assist Hewette loading and unloading the carts used for transporting items into and out of his vehicle.

In addition to being bothered by the valet requirement, Hewette took issue with the water pressure in his unit at Vi. Beginning in 2014, Hewette complained repeatedly that the water pressure in his 20th floor unit was too low. Vi management attempted to address Hewette’s concerns, inspecting the water pressure in Hewette’s unit multiple times. A Vi representative always found the water pressure within a range of 25 to 30 pounds per square inch (psi), in compliance with all applicable codes.

Not satisfied, Hewette complained about the water pressure to the City Code Enforcement Division. The city took no action. Hewette also complained to a representative for residents of the Vi community, who conducted an investigation and determined there was no water pressure problem.

Not reaching a resolution regarding the parking and water pressure issues, Hewette originally sued Respondents in March 2016. After 18 months of litigation, Hewette dismissed the suit without prejudice in September 2017 right before trial was to begin.

Two months later, Hewette instigated the instant action regarding the same valet parking and water pressure issues. In April 2018, he filed the operative first amended complaint. In that complaint, Hewette alleged seven causes of action. The first two causes of action (declaratory relief and breach of contract) were based on the valet parking requirement. CC-La Jolla and CCW were the named defendants in these causes of action.

The remaining five causes of action were aimed at all Respondents and consisted of the following: nuisance, negligence per se, negligence, breach of the warranty of habitability, and breach of the covenant of quiet enjoyment. The linchpin of these five claims was Hewette’s allegation that “the residual water pressure in [Hewette’s] shower is approximately (10-14 psi), which is not to code.”

Respondents filed a motion for summary judgment, arguing: (1) they had the right to institute a valet-only policy under the plain language of the Residency Agreement; (2) Hewette’s water pressure is and always has been code compliant; and (3) Hewette had sustained no injury or damages. Among other evidence, Respondents submitted opinions from Saum K. Nourmahammadi, Ph.D., an expert in plumbing design; a declaration from Jas Podgursky, the director of engineering for Vi who had investigated Hewette’s water pressure complaints several times; and the October 2016 water pressure testing results of a licensed plumbing firm, A.O. Reed.

In opposition, Hewette submitted his own declaration and attached some exhibits. Critical to his position, he asserted that the residual water pressure in his shower was 9 to 12 psi. Hewette submitted no expert declaration. However, Hewette stated that he had retained McParlane & Associates (McParlane) to provide an opinion about the water pressure, but did not submit a declaration from a representative of that company.

In reply, Respondents maintained that all of Hewette’s opinions regarding water pressure (including his own measurements) were irrelevant, lacking in foundation, and speculative.

The superior court granted the motion for summary judgment. As to the first two causes of action relating to valet parking (declaratory relief and breach of contract), the court found that the language of the revised Residency Agreement and Resident Handbook was “clear and unambiguous” and “provided that the Vi had the discretionary right to require valet parking.” As to the five causes of action relating to water pressure (nuisance, negligence per se, negligence, breach of the warranty of habitability, and breach of the covenant of quiet enjoyment), the court found that Respondents had submitted evidence that the residual water pressure for Hewette’s unit was at least 25 psi the entire time he lived there, which is higher than the 15 psi minimum required by code. The court also concluded that Hewette had failed to establish a triable issue of fact on the issue: “Aside from [Hewette’s] own declaration asserting that the water pressure is 9-12 psi, [Hewette] provide[d] no foundation to support his conclusions. No expert opinion has been provided.”

In the alternative, the court determined that: (1) Hewette “ha[d] not provided evidence of damages”; (2) the nuisance cause of action was barred by the statute of limitations; and (3) Hewette had not identified any basis for liability against CCW or CC-La Jolla.

Hewette timely appealed the ensuing judgment.

DISCUSSION

I

SUMMARY JUDGMENT

A. Standard of Review and Governing Law

Summary judgment may be granted only if “there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).) A defendant moving for summary judgment must show “one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If defendant meets this burden, the burden shifts to plaintiff to produce admissible evidence showing a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.)

We review de novo the trial court’s grant of summary judgment. (Hampton, supra, 62 Cal.4th at p. 347; Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.) We take the facts from the record that was before the trial court and consider all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (Code Civ. Proc., § 437c, subd. (c); Hampton, at p. 347.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; accord, Hampton, at p. 347.)

B. Hewette’s Contentions Regarding The First Two Causes of Action

Hewette’s first two causes of action for declaratory relief and breach of contract are based on the Residency Agreement. He contends that Respondents breached the Residency Agreement when Vi management required all residents to valet park (free of charge). He further argues that Vi management could only require that residents valet park if the Residency Agreement was properly amended. Respondents disagree, arguing that the Residency Agreement allowed CCW or CC-La Jolla to require residents to use valet parking. Because the parties dispute the meaning of the parking provision found in the Residency Agreement, we must interpret that agreement to resolve the issue before us.

C. Analysis

“The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting.” (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955.) In ascertaining the parties’ intent, the court applies an objective standard. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) ” ‘We interpret words [in a contract] in accordance with their ordinary and popular sense, unless the words are used in a technical sense or a special meaning is given to them by usage.’ ” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 961.) ” ‘We consider the contract as a whole and interpret its language in context so as to give effect to each provision . . . .’ ” (Ibid.) We review the trial court’s legal conclusions de novo, and the court’s resolution of disputed extrinsic evidence under a substantial evidence standard. (Founding Members, at pp. 955-956.)

Here, Hewette claims that CCW or CC-La Jolla did not have the right, under the Residency Agreement, to require residents at Vi to use valet parking. To make such a requirement, Hewette maintains that the Residency Agreement had to be amended.

Paragraph 2.1.9 of the Residency Agreement is the only portion of the agreement that speaks to parking at Vi. That paragraph provides:

“One car per home may be kept at the Community, provided you have a valid driver’s license, insurance, and a currently registered automobile. This right is not assignable. Provider may make additional parking spaces available for an extra one-time fee and/or additional monthly fee, space permitting. The additional monthly fee for parking may be modified, from time to time, upon thirty (30) days’ advance notice to you. Provider may require some or all parking to be on a valet basis.”

We agree with the superior court that this language is clear. CCW and/or CC-La Jolla could require some or all parking to be on a valet basis. The agreement does not give any resident the right to self-park. The Vi Handbook at the time Hewette became a resident at Vi, which the Residency Agreement incorporates by reference, echoed the agreement’s language that CCW and CC-La Jolla have the discretion to require residents to use valet parking. The handbook stated, “We may require some or all resident parking to be on a valet basis. Currently, we permit you to decide whether you prefer to valet park or self-park your automobile.”

Hewette argues that the use of the word “may” makes the Residency Agreement ambiguous. Put differently, Hewette insists the word “may” only provides CCW or CC-La Jolla with the discretion to amend its parking policy. Therefore, according to Hewette, the language telling residents that CCW or CC-La Jolla “may require” them to use valet parking simply serves to inform residents that CCW or CC-La Jolla could amend the Residency Agreement (as to parking) per the requirements of paragraph 12.11. We disagree.

The use of the word “may” in paragraph 2.1.9 of the Residency Agreement provides CCW and CC-La Jolla with the discretion to require residents to use valet parking. (Cf. Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433; Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1389; Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 208.) CCW and CC-La Jolla exercised this discretion to make valet parking a requirement, which they were permitted to do by the express language of the Residency Agreement. No amendment to the Residency Agreement was required.

Hewette essentially ignores the plain language of the Residency Agreement and argues that he was given “sole discretion of whether to valet-park or self-park.” However, he points to no portion of the Residency Agreement that provides him that discretion. Instead, the Residency Agreement explicitly provides CCW and CC-La Jolla with the discretion to require residents to use valet parking. Indeed, the handbook underscores this discretion by specifically telling residents that CCW or CC-La Jolla were permitting residents to choose valet parking or self-parking at that time, but cautioning residents that CCW or CC-La Jolla “may require some or all resident parking to be on a valet basis.” (Italics added.) In other words, it was not the Residency Agreement that provided Hewette with the option to self-park when he first moved into Vi. Instead, CCW or CC-La Jolla exercised their discretion under paragraph 2.1.9 of the Residency Agreement to allow Hewette, as well as the other Vi residents, to choose to self-park at that time. However, under the Residency Agreement, CCW and CC-La Jolla retained the discretion to change that determination.

Also, we are not persuaded by Hewette’s argument that interpreting paragraph 2.1.9 to provide CCW and CC-La Jolla with discretion to require valet parking renders paragraphs 11.3 and 12.11 superfluous. Paragraph 12.11 provides that an amendment to the Residency Agreement must be made in writing and signed by the parties or their legal representatives. Paragraph 11.3 states, in relevant part: “You agree to abide by the rules and regulations of the Community as they now exist or as they may later be amended by Provider in its discretion. Provider reserves the right to amend its policies (including the resident handbook) from time to time, and you agree to abide by the policies, as adopted or amended.” Neither of these paragraphs are impacted by the decision to require valet parking. The Residency Agreement at the time Hewette executed it already gave CCW and CC-La Jolla the authority and discretion to require residents to use valet parking. Consequently, there was no need to amend the Residency Agreement, and paragraphs 11.3 and 12.11 are not rendered superfluous by such an interpretation.

In short, the Residency Agreement, at the time Hewette executed it, explicitly provided CCW and CC-La Jolla with authority to require residents to use valet parking. Thus, when Vi’s executive director informed residents in 2014 that they needed to use valet parking, she did so under the discretion provided in the Residency Agreement. There was no breach. As such, Hewette’s causes of action for declaratory relief and breach of contract must fail as a matter of law.

D. Hewette’s Contentions Regarding Remaining Causes of Action

The remaining five causes of action Hewette alleged in the operative complaint all depend on his claim that the residual water pressure in his shower was not up to code. He argues the superior court erred in granting summary adjudication as to the third through seventh causes of action because a triable issue of material fact exists as to the amount of water pressure in his unit. Specifically, Hewette contends that his declaration was sufficient to create a triable issue of fact in response to Respondents’ expert witness’s declaration. We disagree.

E. Analysis

In support of their motion for summary judgment, Respondents submitted, among other things, the declarations of Nourmahammadi and Podgurski as well as the water pressure tests results conducted by licensed plumbing contractor A.O. Reed. The water pressure tests showed water pressure above 25.84 psi in the lavatory and shower in the master bathroom as well as the lavatory and the shower in the guest bathroom. In his declaration, Podgurski, who is the director of engineering at Vi and has a general contractors license in California, observed A.O. Reed’s testing of the water pressure in Hewette’s unit and authenticated the test results. It is Nourmahammadi’s declaration, however, which figures most prominently in the superior court’s granting of the motion for summary judgment.

Per Nourmahammadi’s declaration, he is a licensed mechanical, electrical, and civil engineer with undergraduate, masters, and doctorate degrees in engineering. He is certified in plumbing design and a fellow in the American Society of Plumbing Engineers. Nourmahammadi is a licensed engineer in 30 states, including California. He has held many positions, including president, of the Los Angeles and Orange County chapters of the American Society of Plumbing Engineers. He also has served on the National Legislative Committee as well as the National Examination for Plumbing Design Certification.

Nourmahammadi spent “140 hours working on the water pressure analysis including numerous trips to the Vi Community to test the water pressure personally.” He “studied the construction blue prints and the entire plumbing and water system at” Vi. Nourmahammadi “constructed measuring tools to specifically measure the residual water pressure” on Hewette’s unit’s floor at Vi. He used “several different [showerhead] designs [to] ensure the residual water pressure was accurately measured regardless of the [showerhead] being used.”

Nourmahammadi explained:

“I tested and analyzed the residual water pressure, the total water pressure, the theoretical value and the true value of the water pressure for the 20th Floor at the Vi facility where Mr. Hewette lives and it is my opinion that the water pressure is and at all times over the past several years has been in full compliance with all applicable codes and requirements.”

Nourmahammadi subsequently reiterated:

“The residual water pressure for the 20th Floor at the Vi facility where Mr. Hewette lives is and at all times over the past several years has been at least 25 psi, which is in full compliance with all applicable codes and requirements. I was able to confirm this measurement on each of my personal testing sessions. I was able to confirm this through my calculations of the true value of the psi. After conducting extensive research and analysis, my findings and personal testing results have confirmed, and my opinion is that the water pressure on the 20th floor of the Vi facility where Mr. Hewette lives is and at all times over the past several years has been in full compliance with all applicable plumbing and building codes and regulations.”

Also, Nourmahammadi was deposed twice and “testified at length to [his] investigation, findings, conclusions and the basis for [his] opinions.”

We agree with the superior court that Nourmahammadi’s declaration clearly negates the foundation of Hewette’s remaining five claims, namely that the water pressure in Hewette’s unit is not code compliant. “When the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party’s claims, the opposing party’s burden is to produce a competent expert declaration to the contrary.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761-762 (Bozzi); see Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 (Bushling).)

Here, Hewette did not offer the declaration of an expert witness. Instead, he offered his own declaration wherein he opined that the water pressure in his unit was below the applicable code requirements. The superior court found Hewette’s declaration insufficient to create a triable issue of material fact. In doing so, the court implicitly found that Hewette was not an expert witness (“No expert opinion has been provided.”). Additionally, the court determined that Hewette “provide[d] no foundation to support his conclusions.”

Hewette contends the superior court abused its discretion when it did not consider his “expert opinion.” To this end, Hewette claims that he was competent, as an expert, to testify about the inadequate water pressure in his home. We agree with the implicit finding of the superior court that Hewette failed to provide the appropriate foundation to qualify as an expert on plumbing and water pressure issues.

Before expert opinion testimony may be offered, the expert must be shown to have “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) These qualifications “may be shown by any otherwise admissible evidence, including his own testimony.” (Id., subd. (b).) “[T]he qualifications of an expert must be related to the particular subject upon which he is giving expert testimony.” (People v. Hogan (1982) 31 Cal.3d 815, 852.) Consequently, “the field of expertise must be carefully distinguished and limited” (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 37), and “[q]ualifications on related subject matter are insufficient” (Hogan, at p. 852).

“Whether a person qualifies as an expert in a particular case . . . depends upon the facts of the case and the witness’s qualifications.” (People v. Bloyd (1987) 43 Cal.3d 333, 357.) ” ‘[T]he determinative issue in each case must be whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth . . . .’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969.)

“The essential questions which must be favorably answered to qualify a witness as an expert are two: Does the witness have the background to absorb and evaluate information on the subject? Does he have access to reliable sources of information about the subject? Two aspects of the witness’s history are thus involved: the first, a subjective aspect, the capacity of the witness to understand and report; the second, an objective aspect, the witness’s access and exposure to relevant data on the subject matter on which his opinion is sought.” (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658.) Here, Hewette did not favorably answer these two questions with his declaration or any other evidence he provided in opposition to the motion for summary judgment.

On appeal, Hewette points out that he is a civil engineer with 49 years of experience. That might be so, but he does not explain how that experience makes him an expert on plumbing and water pressure issues. In his opening brief, he further claims that he designed plumbing systems in the past. Yet, Hewette’s citation to the record to support this assertion does not show that he has the claimed experience. In his declaration, Hewette stated that he had “supervised the design and construction of office and laboratory buildings[,] which included their plumbing systems and parking.” That statement does not explain what his supervision entailed or how involved he was with the design and construction of plumbing systems. Alternatively stated, Hewette provides no background information showing that he is a qualified expert about plumbing and/or water pressure issues.

Other information Hewette provided in his declaration does not help establish his credentials as an expert here. He stated that he graduated with a Bachelor of Science degree, “which included Civil Engineering.” He earned a California civil engineering license in 1970 and a master’s degree in civil engineering a few years later. His “engineering specialty is structural engineering.” And Hewette declares that he still works every day as an in-house engineering consultant. Hewette does not explain how his degrees and license makes him a plumbing expert.

As noted ante, the expert’s qualifications must be related to the particular subject upon which he is giving expert testimony. The instant action concerns plumbing with the particular issue involved being the water pressure in Hewette’s unit. Yet, there is no evidence in the record that Hewette has experience with, observation of, or association with plumbing issues in general or measuring water pressure specifically. At most, Hewette stated that he supervised the design and construction of plumbing systems. But without further information, we are left to guess, as was the superior court, what Hewette’s supervision entailed and how such supervision would provide him with the experience and knowledge needed here to qualify as an expert witness.

Also, we are not persuaded by Hewette’s reliance on Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173. In that case, the appellate court explained that, in reviewing a summary judgment motion, the court must liberally construe the evidence submitted in opposition with respect to both the admissibility and its sufficiency to create a triable issue of fact. (Id. at p. 189, citing Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332-1333; see Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126 [in considering opposition to summary judgment, court liberally construes declarations of plaintiff’s experts].) In light of that rule, an opposing expert’s declaration that includes a reasoned explanation “need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial. [Citations.]” (Garrett, at p. 189.)

However, Garrett does not address whether an individual is qualified to be an expert as a threshold matter. As we discuss ante, Hewette did not establish he possesses the “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (See Evid. Code, § 720, subd. (a).) Nothing in Garrett helps Hewette establish his suitability to be an expert witness in the instant action.

Additionally, Garrett does not diminish a court’s duty to act as gatekeeper in evaluating proposed expert testimony, so as to exclude opinion based on speculation, conjecture, irrelevant material, or unsupported assumptions. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770-772.) The expert’s opinion “may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.” (Bushling, supra, 117 Cal.App.4th at p. 510.)

In the instant matter, Hewette stated that he tested the “residual water pressure on numerous occasions with a calibrated water pressure gage [sic]. Under maximum demand conditions, the residential water pressure in [his] shower is between (9-12 psi), which is not to code.” Nonetheless, the superior court did not seem satisfied that Hewette established that he knew how to properly test the water pressure or sufficiently explained his process of measuring the water pressure. We do not find the court abused its discretion in making that determination here. Hewette simply failed to lay the proper foundation to establish that his water pressure readings were reliable.

We also observe that Hewette admitted that he retained McParlane to provide an opinion about the water pressure in his unit. If Hewette believed himself to be a qualified expert on plumbing and water pressure issues, it begs the question why he felt the need to hire an expert witness to opine on those very topics. Yet, he did, but he did not submit a separate declaration from McParlane in opposition to Respondents’ motion for summary judgment. Instead, he submitted a two-page document that McParlane purportedly created, claiming that the water pressure was below code. However, Hewette admitted in deposition that McParlane did not do any of its own testing of the water pressure but, instead, used the measurements Hewette provided the company. Thus, McParlane does nothing to bolster Hewette’s expert credentials or support Hewette’s opinion. McParlane did not even comment on Hewette’s method of measuring water pressure or opine that Hewette correctly measured the water pressure. Rather, it appears McParlane simply accepted the information provided by Hewette without question.

Against this backdrop, we do not find that the superior court abused its discretion in refusing to consider Hewette as an expert in this matter. Hewette failed to establish his qualifications (see Evid. Code, § 720, subd. (a)) and did not sufficiently explain that he correctly measured the water pressure or was capable of doing so. Respondents offered a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party’s claims. Consequently, it was Hewette’s burden to produce a competent expert declaration to the contrary. (Bozzi, supra, 186 Cal.App.4th at pp. 761-762.) He did not do so. Summary adjudication thus was appropriate as to causes of action three through seven.

Finally, even if Hewette’s declaration was sufficient to create a triable issue of material fact, his opposition to the summary judgment would still fail because he has offered no evidence that he has been damaged. In his declaration, Hewette claims that the low water pressure in the shower doubles his shower time. He notes that the additional shower time increases the chance that he might slip and fall. Nevertheless, he concedes that he has not slipped or fell in the shower and has suffered no physical injury based on the water pressure.

In his declaration, Hewette also claims that he loses time because of the additional time spent in the shower. As such, he is seeking $50,000 for his inconvenience, $50,000 for his emotional distress, $50,000 for his annoyance, $50,000 for his loss of time, and $50,000 for the loss of value of leasehold. He also is seeking $250,000 in punitive damages. Hewette’s declaration merely states the damages he is seeking. It does not establish that he is entitled to those damages or explain how he has suffered damages in the amount he is seeking. Further, in his opening brief, he cites no authority that damages are recoverable for lost time without a corresponding loss of income, or that mere inconvenience is a compensable harm. Without providing us with any authority or evidence that he is entitled to damages, none of his causes of action can survive summary judgment. (Cf. San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937-938 [” ‘It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience, and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends on the principle of “give and take, live and let live,” and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person’s conduct has some detrimental effect on another.’ “].)

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.