Filed 1/10/20 McMillan v. Exir Co., Inc. CA4/3

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RICHARD V. MCMILLAN,

Plaintiff and Appellant,

v.

EXIR CO., INC., et al.,

Defendants and Respondents.

G056576

(Super. Ct. No. 30-2012-00564599)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed in part, reversed in part, and remanded with instructions.

Richard V. McMillan in pro. per., for Plaintiff and Appellant.

Law Office of Victor W. Luke and Victor W. Luke for Defendants and Respondents.

* * *

Plaintiff Richard V. McMillan prevailed in a private nuisance action against defendants Exir Co., Inc., and Abraham Nassiri Mourshaki for erosion of land on plaintiff’s property due to water flow from defendants’ property. In a prior opinion, we affirmed the jury’s finding of liability in favor of plaintiff, but determined the verdict form was fatally ambiguous because the jury awarded $655,000 in damages against each defendant, but it was not clear whether they jointly owed $655,000, or whether each severally owed $655,000. We reversed the damages award and remanded for a new trial solely on the issue of damages. (McMillan v. Exir Co., Inc. (Nov. 8, 2016, G051982, G051985) [nonpub. opn.].)

On retrial, defendants introduced new evidence—which the court described as “dramatically revealing”—that most of the water damage to plaintiff’s property was from a different source. As a result, after a bench trial the court awarded plaintiff substantially less than the award in the first trial: $53,524. The principal issue on appeal is whether the court properly admitted evidence on defendants’ new theory of causation.

The court did not err. We remanded for a completely new trial on damages. A defendant is liable for only those damages the defendant caused, and thus it is impossible to have a trial on damages without addressing causation. In a completely new trial on damages, the defendants were free to argue they should be liable for less than the amount awarded by the first jury. Accordingly, we affirm that aspect of the judgment.

Additionally, McMillan contends the court erred by failing to include language from the prior judgment concerning disparagement of title, which the parties had previously stipulated to. We agree and will order the judgment amended to include that language. We reject his remaining contentions.

FACTS

We begin with a note about the record. In the prior opinion we observed that the story of this case—the various water flows, streams, creeks, contiguous land parcels, trenches, walls, culverts, etc.,—was largely a visual story told with the assistance of maps and photographs. Neither party provided us those visual aids on appeal, which hampered our ability to reconstruct the facts. (McMillan v. Exir Co., Inc., supra, G051982, G051985.) Notwithstanding our prior admonishment, the parties have once again failed to provide any visual aids to help us reconstruct the facts. In particular, the second trial seemed to turn largely on exhibit No. 108, which the court described as “dramatically revealing” and placed at the center of its analysis. From various places in the record we have pieced together that exhibit No. 108 is a video taken by a neighbor of a flood event at the heart of this case. However, we do not have a copy of the video in our record. So we are once again hamstrung in our ability to reconstruct the details of what occurred. Given the absence of a helpful record, together with the fact that the issue on appeal does not turn on a detailed factual account, we provide here only a very general overview of the facts.

This case concerns three contiguous parcels of land on a hill. At the highest elevation was the Lin property (the owner of which is not a party to this lawsuit). Defendants’ property was below the Lin property. Plaintiff’s property was below defendants’ property, toward the bottom of the hill. Williams Canyon Creek ran across plaintiff’s property. Historically, water from the higher properties would flow sheet-style at a gentle gradient down the hill, ultimately draining into the creek. (McMillan v. Exir Co., Inc., supra, G051982, G051985.)

In 2007 and 2008 a double-whammy hit: a brush fire destroyed much of the vegetation on the Lin property (the highest elevation), followed by abnormally heavy rainfall. The increased water flow to defendants’ property apparently prompted them to make certain changes to their property that interrupted the historic sheet-flow of the water down the hill to plaintiff’s property. This, according to plaintiff, had dramatic consequences two years later when, in December 2010, the rainfall was so heavy that it created a 100-year flood (i.e., a flood so intense that it is likely to occur only once in 100 years). The gist of plaintiff’s claim is that the changes defendants made to their property altered the natural drainage of water so as to concentrate the flow of water onto plaintiff’s property, resulting in erosion of the creek bank (i.e., widened the creek), which deprived plaintiff of available land. Also, plaintiff claimed defendants erected a concrete wall that encroached on his property. (McMillan v. Exir Co., Inc., supra, G051982, G051985.)

Plaintiff sued defendants for private nuisance and trespass. A jury found in favor of plaintiff and against both defendants, awarding the identical amount of $655,000 in damages against each defendant for private nuisance. It also awarded an identical $1,750 in trespass damages against each defendant. On appeal, we generally affirmed the judgment as to the liability finding, but we determined the verdict was hopelessly ambiguous as to whether the defendants were each liable for $656,750, for a total of $1,313,500, or whether they were jointly and severally liable for a total of $656,750. Although plaintiff suggested that the jury likely meant the defendants were jointly and severally liable for $1,313,500, we concluded we could not correct the award in that manner under our high court’s holding in Aynes v. Winans (1948) 33 Cal.2d 206. Accordingly, we reversed the judgment and remanded the cause “for a new trial on the issue of damages only.” In all other respects, we affirmed the judgment. (McMillan v. Exir Co., Inc., supra, G051982, G051985.) Plaintiff did not petition for rehearing or petition for review to the California Supreme Court.

On remand the parties agreed to a bench trial. Defendants introduced the testimony of Jamie Davis, an owner of land upstream from plaintiff along the Williams Canyon Creek. She apparently did not testify in the first trial. She was present for the catastrophic flood in December 2010 and took a video of it, which was played at trial. Although we do not have the video, it apparently shows an enormous amount of water rushing down Williams Canyon Creek—which is not on defendants’ property—toward plaintiff’s property. Moreover, Davis testified that she did not see any water coming down the hill from defendant’s property toward plaintiff’s property, and that she would have noticed any such flows because they would have been so unusual. Davis testified that the water she observed on plaintiff’s property was “largely, if not exclusively, from . . . Williams Canyon.” Plaintiff objected to the video on relevance grounds, but the court overruled it. Based on this evidence, defendants’ expert opined that damage to plaintiff’s property along the Williams Canyon Creek bank was largely caused by water from upstream rather than water from defendants’ property.

Ultimately, the court agreed, describing exhibit No. 108 as “a dramatically revealing exhibit regarding the course of the water flow in the December 2010 rainstorms that devastated the area.” The court concluded, “From the evidence, it is clear that a substantial amount of the damages to [plaintiff’s] property was caused by the upstream flow of water coming down Williams Canyon Creek during the December 2010 rainstorm. Again, see exhibit [No.] 108.”

However, recognizing our prior opinion limited the issue to damages, the court found that defendants damaged a more limited area of plaintiff’s property. The court ultimately concluded it would cost $53,524 to repair those damages and entered judgment on that amount against defendants jointly and severally. Plaintiff timely appealed.

DISCUSSION

Did the court err in admitting causation evidence that was not presented in the first trial? No. The law on this issue is well settled.

“The effect of an unqualified reversal . . . is to vacate the judgment, and to leave the case ‘at large’ for further proceedings as if it had never been tried, and as if no judgment had ever been rendered.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 869, p. 928.) “An unqualified partial reversal has the same effect on the part reversed as an unqualified general reversal.” (Id. § 888, p. 950, italics added.) “The parties are entitled to retry the issues anew—meaning they can present any evidence in support of or against the allegations in the complaint. An unqualified reversal cannot restrict the presentation of evidence on remand.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) § 14:143, p. 14-47.) “The reversal and remand also reopens the time for discovery so that the last date for completing discovery as of right (pursuant to [Code of Civil Procedure section] 2024.020) is 15 days before the date initially set for the new trial of the action.” (Id. § 14:144.1, p. 14-47.) As our high court explained, “In the typical case, when a new trial is required, the nature and scope of the issues will have been affected, requiring substantial investigation of new points or issues that were not adequately addressed in the original proceedings. The parties are afforded a trial de novo, along with ‘“the right to introduce any evidence on the issue involved, not only the evidence introduced at the prior trial but also any additional and new evidence.”’” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 253.)

Although the rules above are subject to an exception where the appellate court’s clear intent is to disallow any further trial (Stromer v. Browning (1968) 268 Cal.App.2d 513, 518-519), here we explicitly ordered a new trial on damages without limitation. If plaintiff thought we should have issued a more tailored remand order, he could have sought such an order in a petition for rehearing, but he did not. (See English v. Olympic Auditorium, Inc. (1935) 10 Cal.App.2d 196, 201 [“If a court of review inadvertently omits to include in its instructions to a trial court upon the reversal of a judgment essential elements within the issues necessarily determined on the appeal, the aggrieved party has his remedy in a petition for rehearing. A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal of the judgment on appeal and add thereto conditions which it assumes the reviewing court should have included”].) Given our disposition, based on the principles above, the court correctly held an entirely new trial on damages. Plainly, this entitled defendants to argue that the damages they caused were less than the amount award by the first jury. (See Gararden v. Olinger (1960) 177 Cal.App.2d 309, 311 [“in granting the retrial as to damages, the court did not curtail its power to determine, either upon additional evidence or upon fresh consideration of the evidence already produced, the causal connection between defendants’ acts and damages”].) On the other hand, it also entitled plaintiff to seek more than awarded by the first jury. Ultimately, the court was required to make its determination based on evidence properly admitted in the second trial, which it did.

Plaintiff’s only response to this is to argue that our partial affirmance enshrined the jury’s prior factual findings on causation, resulting in law of the case. But we find nothing in our prior opinion to support that reading. Moreover, it has long been held that the law-of-the-case doctrine applies only to legal principles, not factual findings. (Sneed v. Osborn (1864) 25 Cal. 619, 629 [“If this Court states the evidence in a cause, whether correctly or incorrectly, the statement in no manner controls the Court below, and cannot prejudice the parties, where a new trial is had. It is upon questions of law, that the decision of the appellate Court becomes the law of the case, and not upon questions of fact”]; Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1368-1369 [“The doctrine of law of the case applies only to legal principles applied on appeal; it has no application to factual determinations”].) There was no error.

The court did err, however, in failing to include stipulated language in the judgment concerning McMillan’s disparagement of title claim. In the 2015 judgment, the court included the following stipulated language concerning McMillan’s disparagement of title claim: “‘1. Defendants EXIR CO, INC. and ABRAHAM NASSIRI MOURSHAKI agree that the bridge over Williams Canyon Creek, commonly known as the Zahn Bridge, is wholly located on the property owned by Plaintiff RICHARD V. MCMILLAN, and they claim [an] interest in the Zahn Bridge or in the property upon which it is constructed.

“2. Defendants EXIR CO, INC. and ABRAHAM NASSIRI MOURSHAK.I agree that the property line between the property owned by Defendant EXIR CO, INC. And the property owned by Plaintiff RICHARD V. MCMILLAN is correctly reflected in the survey prepared by Bradley K. Owens on February 1, 2012, and claim no interest, except the 40 foot recorded easement, in the McMillan property as depicted in said survey.

“3. Plaintiff RICHARD V. MCMILLAN and Defendants EXIR CO, INC. and ABRAHAM NASSIRl MOURSHAKI agree that the Court enter judgment for McMillan on the third cause of action for disparagement of title as stated in the First Amended Complaint consistent with this Stipulation.

“4. This Stipulation does not constitute an admission of liability for any other cause of action as stated in the First Amended Complaint, and shall not alone establish Plaintiff as the prevailing party in this action.

“5. This Stipulation shall not change the status of Defendants’ access over the Zahn Bridge.

“As the Defendants agreed that Plaintiff should have judgment on Count Three of the First Amended Complaint, Disparagement of Title, . . . the issue was not placed before the Jury for determination.”

The court did not include this language in the 2018 judgment, and instead simply stated, “JUDGMENT is entered in favor of Plaintiff Richard V. McMillan on Plaintiff Richard V. McMillan’s claim for disparagement of title. On this claim, Plaintiff Richard V. McMillan shall take nothing.” The 2018 judgment also contains the following recitation: “This judgment supersedes and replaces all prior judgments in this case, all of which are hereby vacated.”

McMillan contends it was error to omit the stipulation from the 2015 judgment, and we agree. The 2018 judgment effectively vacated the stipulation. That was error because the stipulation was the only basis for avoiding a trial on that claim. Moreover, our limited remand on the issue of damages did not confer upon the court’s jurisdiction to modify the judgment as to the disparagement of title claim. Accordingly, we will remand with instructions to include the stipulated language.

DISPOSITION

The judgment on the disparagement of title claim is reversed with instructions to enter judgment for McMillan using the stipulated language from the 2015 judgment. In all other respects, the judgment is affirmed. Defendants shall recover their costs incurred on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.