Connolly Ranch v. Department of Parks and Recreation CA3 ( 2023 )

Filed 5/2/23 Connolly Ranch v. Department of Parks and Recreation CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
CONNOLLY RANCH, INC., C092009
Plaintiff and Appellant, (Super. Ct. No. STK-CV-
URP-2016-12394)
v.
DEPARTMENT OF PARKS AND RECREATION et
al.,
Defendants and Respondents.
Plaintiff Connolly Ranch, Inc. (Ranch) sued defendants Department of Parks and
Recreation and its Off-Highway Motor Vehicle Recreation Division and Off-Highway
Motor Vehicle Recreation Commission (collectively Department) for breach of contract,
breach of the covenant of good faith and fair dealing, trespass, nuisance, and declaratory
relief. The trial court bifurcated the legal and equitable claims; the jury heard and
decided the legal claims first. The jury returned verdicts in favor of the Department. The
trial court thereafter considered whether to conduct a bench trial on the Ranch’s
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injunctive and declaratory relief requests. The trial court found the jury’s factual findings
bound the trial court and precluded equitable relief. The trial court thus found a further
bench trial unnecessary. The Ranch appeals.
The Ranch presents a myriad of arguments challenging the trial court’s denial of
its requests for permanent injunctive relief and declaratory relief, including that the trial
court misinterpreted two of the jury’s special verdict findings and abused its discretion in
finding the requested equitable relief was moot and unwarranted. The Ranch also
challenges the jury’s adverse finding on the trespass cause of action, asserting it is
contrary to law and unsupported by substantial evidence. Finally, the Ranch challenges
two evidentiary rulings: (1) the trial court’s exclusion of certain testimony and evidence
the Ranch wished to present through its retained expert, Leonard Job; and (2) the trial
court’s admission of testimony referencing explosive testing on two properties in the
vicinity of the Ranch’s property.
We find no merit in these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND 1
We initially admonish the Ranch for failing to provide record citations for each
fact presented in its statement of facts. Some of the background facts stated herein were
unsupported by citations to the record; however, the parties agreed on the unsupported
facts, which we treat as mutual concessions. (Meddock v. County of Yolo (2013)
220 Cal.App.4th 170, 175, fn. 3.) We set forth the general background here and provide
additional factual background pertinent to the Ranch’s arguments in the Discussion post,
as necessary.
1 The Ranch’s late filed application for permission to accept the manual
transmission of trial exhibits on electronic media is denied. The Ranch submitted the
application and exhibits to this court after briefing had concluded, even though the Ranch
cited to certain trial exhibits in its opening brief. The Ranch has provided no good reason
for its tardiness in transmitting the exhibits.
2
The Department manages the Carnegie State Vehicular Recreation Area
(recreation area), which consists of a vast area dedicated to public off-highway recreation
riding. The Ranch is located adjacent to the recreation area. SRI International operates
an explosive testing facility that borders both the recreation area and the Ranch.
In 1990, the Ranch and the State of California (State) entered into an Agreement
and Grant of Easement (Agreement). The same year, the trial court entered a judgment,
attaching a copy of the Agreement and incorporating and ordering the terms and
conditions set forth therein (1990 Judgment).
In the Agreement, the State granted to the Ranch “a nonexclusive easement to use,
maintain, inspect, repair and replace an existing private roadway” generally referred to as
SRI Road (1990 Easement). SRI Road traverses from Corral Hollow Road, a public
road, through the recreation area and onto the Ranch’s property, crossing Corral Hollow
Creek at a low-water crossing or spillway made of concrete. In addition to the Ranch and
Department, SRI International also uses the 1990 Easement.
The 1990 Judgment provides the Department “shall erect fences or place other
barriers along portions of the easement to discourage use by the public entering the
[recreation area]. The [Department] shall designate crossings at certain points on the
Easement to allow users of the park to cross the road. [The Ranch] shall have the
opportunity to review and comment on the proposed locations of the fence and crossings.
The [Department] shall post at both points at which the Easement terminates, and at any
crossings or points at which the fence does not separate the road from the park, signs
stating that the Easement is closed for use by the users of the park and warning that large
vehicles use the easement. The [Department] shall maintain said fence, signs and
designated crossings so long as current uses exist. [The Ranch] shall not call upon [the
Department], nor shall [the Department] have any responsibility to perform any
maintenance work or to make any repairs or improvements on said road, except that the
[Department] shall repair and maintain any damage caused by the use [or] users of the
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park. As to those portions of the Easement closed to users of the park, if [the Ranch]
feels more maintenance or repair work is needed than is actually performed by [the
Department], [the Ranch] may perform such repairs or maintenance at [the Ranch’s] own
expense.”
The Ranch sued the Department in 2016. In its operative complaint, the Ranch
asserted causes of action for trespass, nuisance, breach of contract, breach of the covenant
of good faith and fair dealing, and declaratory relief. 2 The Ranch alleged the Department
was interfering with and obstructing the Ranch’s use of the 1990 Easement as described
in the Agreement, and was using the servient tenement in a manner inconsistent with the
Ranch’s authorized uses. The Ranch sought damages for the Department’s breach of
contract in the amount of $205,102.03 to remove and replace the spillway crossing.
As to declaratory relief, the Ranch asserted an actual controversy existed
concerning the parties’ “respective rights and duties in that [the Ranch] own[s] and [is]
entitled to continued possession, use, and quiet enjoyment of [the 1990 Easement]
without unreasonable interference from recreational off-highway vehicle use and public
access and the continued possession, use, and enjoyment of [its] adjoining property
without being exposed to excessive and hazardous noise, runoff, and erosion.” The
Ranch further asserted the Department believes it has “a right to allow off-highway
vehicle and public access to, and use of, the [1990 Easement] between the termination of
the [1990 Easement] on Corral Hollow Road, across the Corral Hollow creek crossing
and to the point at the base of the Carnegie Ridge where the easement has been fenced to
prevent recreational off-highway vehicle use and public access, and to operate the
Carnegie off-highway vehicle park without buffers as exist in other parks causing
excessive, and hazardous noise, and runoff and erosion on [the Ranch’s] property.”
2 Declaratory relief is an equitable remedy and not a cause of action. (Faunce v.
Cate (2013) 222 Cal.App.4th 166, 173.)
4
In its prayer for relief, the Ranch sought an injunction on “all causes of action”
(capitalization, underlining, & boldface omitted) and a declaration providing: (1)
“[r]ecreational off-highway vehicle use or public use or access be enjoined on the [1990
Easement] except at designated crossings as shown on [attached exhibits]”; (2) “[p]ublic
off-highway vehicle use, recreational use and public use or access of the Corral Hollow
spillway crossing be enjoined”; (3) “[t]he [Department], to the extent that any non-public
use of the cement spillway crossing is allowed, be enjoined from us[ing] the spillway
crossing other than crossing on the cement spillway structure, and be enjoined from
crossing downstream or upstream of [the] spillway crossing resulting in its expansion of
the crossing beyond the width of the cement spillway structure”; (4) the Department “be
enjoined from erecting any structures, including but not limited to split rail fences, which
divert or channel water across the spillway crossing or over or along the [1990
Easement]”; (5) the Department “be enjoined from erecting or placing facilities or
structures, including but not limited to dumpsters, split rail fences, car barriers, large
boulders or bales of hay used as barriers which block [the Ranch’s] use of the [1990
Easement]”; (6) “[o]ff-[h]ighway vehicle use, public access, or off-highway recreational
trails be enjoined and allowed only as shown on [attached exhibits], or a greater or lesser
distance to be established at trial, of the [1990 Easement] in any area where such use will
interfere with the use and enjoyment of the [1990 Easement] or adversely physically
impact the [1990 Easement] be enjoined”; (7) “[r]ecreational [o]ff-[h]ighway vehicle use
or public access of any designated crossing of the easement be enjoined unless the
crossing is paved by [the Department], the pavement is maintained by [the Department]
and at least once every 12 hours during and after off-highway vehicle use or more
frequently if necessary, to keep the crossing free from mud, rocks, dirt and debris”; (8)
“[t]he use of the termination point of the easement on Corral Hollow Road as a public
entrance or exit, for special events or any other public purpose, be enjoined”; (9) “[t]he
use of signs or posters directing the public into or out of the termination point of the
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easement on Corral Hollow Road as a public entrance or exit, for special events or any
other public purpose, be enjoined”; (10) “[p]ublic or recreational use of the [1990
Easement] . . . on Corral Hollow Road, across the Corral Hollow creek crossing and to
the point at the base of the Carnegie Ridge where the easement has been fenced to
prevent recreational off-highway vehicle use, be enjoined other than at [designated]
crossings”; and (11) “[p]rohibiting [the Department] from allowing public recreational
off-highway vehicle use in any area that drains into [the Ranch’s] property.” The Ranch
further sought a declaration that the 1990 Easement “includes the right to exclude
recreational public use and the right to prevent public recreational trails above, below and
on the easement, which damage it, as necessary for the use and full enjoyment of the
easement for its expressly intended purpose.”
The trial court granted the Ranch’s request for two preliminary injunctions prior to
trial. The first preliminary injunction provided the Department was “prohibited from
allowing any public use and from allowing its employees, agents, assigns and contractors
with vehicles in excess of 15,000 [pounds] from using the spillway crossing of the Corral
Hollow Creek located on the SRI road, a Connolly Ranch easement” during the pendency
of the action. The second preliminary injunction provided the Department was
“prohibited from allowing any public use of the easement from Corral Hollow Road to
the base of the Carnegie Ridge, a Connolly Ranch easement.”
The Ranch filed a motion in limine seeking to bifurcate its request for declaratory
relief and requesting to have the court trial on the equitable relief be held first. The
Ranch argued a threshold issue was whether the 1990 Judgment and the Agreement were
clear and unambiguous as to the parties’ respective duties and obligations, including
whether the Department was required “to fence the easement and restrict public use.”
The Ranch asserted, following the trial court’s determination in that regard, “The jury
c[ould] then be instructed on those duties and obligations in determining the remaining
causes of action.”
6
During oral argument on the Ranch’s bifurcation motion, the parties agreed any
ambiguity as to the Agreement and 1990 Judgment was a threshold issue to be
determined by the trial court. The Ranch argued the jury would decide the factual
arguments pertinent to the remaining causes of action. The trial court granted the
Ranch’s request to bifurcate the trial. The trial court explained , “Both sides agree that the
Court must try the equitable claims including the declaratory relief action, and the legal
claims are subject to a jury trial.” The trial court ruled it made more sense to hold the
jury trial first because the legal claims made up the “lion’s share of the causes.” The trial
court noted it “would concurrently hear the evidence, and then, after the jury trial, allow
additional evidence, if any, to be presented on the remaining equitable causes of action
. . . and any equitable issues outstanding.” The trial court “invit[ed] Counsel to present
either a joint or separate outline of the various causes of action and issues to be
determined by jury and Court, respectively.”
Prior to trial, the trial court issued an order interpreting the Agreement and the
1990 Judgment in response to three motions in limine filed by the parties. The trial court
found: (1) the Agreement and the 1990 Judgment are “unambiguous and did not allow
public use over the low water crossing”; (2) the Department “never designated a crossing
as required by the contract/judgment of 1990”; (3) the Department “accepted
responsibility to maintain and repair areas of the easement open to the public use for
damage caused by such use,” which “use was to be limited to designated crossings”; (4)
the Department had a “duty to fence and install signage”; and (5) the Ranch was to
maintain the easement except for areas damaged by the public.
The jury trial took approximately three weeks. We do not discuss the specific
evidence presented at trial, except as presented in the Discussion post, because it is
irrelevant to the issues presented on appeal.
The trial court instructed the jury, among other things: “By a Judgment and
written agreement entered in 1990 between [the Department] and [the Ranch], [the
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Ranch] was granted an ‘easement’ or legal right to use a road located on the [recreation
area property] in order to access a public road. The easement requires the Department
. . . not allow public use of the road except at designated crossings. It requires the
Department . . . to fence the road and install signs on the road. The Department . . . is
responsible to maintain, and repair areas of the road easement open to the public for
damage caused by such use. [The Ranch] is responsible to maintain areas of the road
where the public is excluded unless damaged by the public.
“[The Ranch] contends the Department . . . breached the Judgment and Agreement
by allowing public use of the road other than at designated crossings, failing to designate
crossings and exclude the public from the easement, damaging the low water crossing
and road, failing to maintain and repair the road open to the public, and failing to fence
the road and install signs. [The Ranch] contends that the [Department’s] interference
with the use of the road easement is a nuisance and a breach of the covenant of good faith
and fair dealing.
“The Department . . . denies each of these allegations and alleges the damage to
the road at the low water crossing was caused by a 2017 storm for which it is not
responsible. The Department . . . further denies the allegations on the grounds that [the
Ranch] by its conduct gave up its right to enforce certain contract terms.
“[The Ranch] and the [recreation area] also share a common boundary that is
approximately one and a quarter miles. [The Ranch] contends that the Department . . .
has caused a nuisance and trespass by causing erosion, sedimentation, noise, dust, trash
and vibration to enter [the Ranch] property[,] which the Department . . . denies.”
The jury presented its findings on special verdict forms. On the breach of contract
claim, the jury found: the Ranch did all or substantially all “of the significant things that
the contract required it to do”; the Department failed “to do something that the contract
required it to do or do something the contract prohibited it from doing”; but the Ranch
was not harmed.
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On the breach of the implied covenant of good faith and fair dealing cause of
action, the jury found: the Ranch did all or substantially all “of the significant things that
the contract required it to do”; but the Department did not “unfairly interfere with [the]
. . . Ranch’s right to receive the benefits of the contract.”
On the trespass cause of action, the jury found: the Department did not
intentionally cause or, “although not intending to do so, recklessly or negligently cause”
vibrations or noise causing damage to the land or structures or other improvements on the
Ranch’s land; the Department did intentionally cause or, “although not intending to do
so, recklessly or negligently cause” garbage, mud, rocks, and sediment from erosion to
enter the Ranch’s property; but the Department did not enter the Ranch’s property
without permission.
On the private nuisance cause of action as to the Ranch’s three lots adjacent to the
recreation area, the jury found: the Department, by acting or failing to act, created noise,
garbage, mud, rocks, and sediment from erosion (but did not create vibrations or dust) “to
exist that was offensive to the senses or an obstruction to the free use of property, so as to
interfere with the [Ranch’s] comfortable enjoyment of life or property”; the Department’s
“conduct in acting or failing to act [was] intentional and unreasonable . . . or
unintentional, but negligent or reckless”; but the “condition” created did not
“substantially interfere with [the] Ranch’s use or enjoyment of its land.”
On the private nuisance cause of action as to the Ranch’s right to use the
nonexclusive easement along SRI Road, the jury further found: the Department did not
create or permit erosion that undermined the road “that was offensive to the senses or an
obstruction to the free use of property, so as to interfere with the comfortable enjoyment
of life, property or the easement”; the Department created or permitted to exist conditions
“other than erosion that undermined [the] Road -- that were offensive to the senses or an
obstruction to the free use of property, so as to interfere with the comfortable enjoyment
of life, property or the easement”; the Department’s “conduct in acting or failing to act
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[was] intentional and unreasonable . . . or unintentional, but negligent or reckless”; but
“this condition [did not] substantially interfere with [the] Ranch’s use or enjoyment of its
land.”
Following the jury’s verdicts, the trial court said it needed to determine next steps
and asked the Ranch whether it wanted to continue with a bench trial and intended to put
on additional evidence. The Ranch responded affirmatively to both questions. The
Ranch explained the trial court already interpreted the Agreement and 1990 Judgment
and the jury “deemed there was a breach of that contract.” The Ranch argued the jury’s
“no harm” finding did not preclude injunctive relief because “[t]he jury has basically
determined there’s a continuing ongoing violation of the contract.” The Ranch
specifically sought “injunctive relief particularly as to the area between Corral Hollow
Road and the gate at the base of the Carnegie Ridge” because the jury determined there
was a contract and the Department breached that contract.
The trial court requested briefing as to whether any equitable relief remained to be
ruled upon, noting “[t]here’s disagreement as to what this verdict means.” The court
explained: “All we’re doing is trying to interpret the verdict vis-a-vis the equitable action
that’s left, if any.”
In its brief, the Ranch argued it had “shown a prima facie case for equitable relief,
including specific performance and injunctive relief prohibiting future breach,” based on
the evidence presented at the preliminary injunction hearing, the evidence presented
during the jury trial, and the jury’s special verdict finding that the Department had
breached the Agreement and 1990 Judgment. The Ranch asked to also “present further
evidence in support of that equitable relief.” The Ranch argued the jury’s lack of harm
finding did not preclude equitable relief.
The trial court issued a tentative ruling denying the Ranch’s request for an
equitable bench trial. The trial court said the request for a permanent injunction was
moot and no further proceedings were warranted. The trial court detailed the jury’s
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findings and reviewed the requirements under Civil Code section 3422 and Code of Civil
Procedure section 526. The trial court found Civil Code section 3422 inapplicable
because the Ranch was “basing its request for a permanent injunction on the threat of
future harm, not yet realized.” The trial court further found Code of Civil Procedure
section 526 inapplicable because, in order to obtain a permanent injunction under that
statute, the Ranch had to “show that specific performance of the easement/contract is
available.” The trial court noted the Ranch was seeking leave to amend the complaint to
“ ‘conform to proof’ ” “to include a cause of action for specific performance of the
easement/contract.” The trial court denied the request because it disagreed that the Ranch
had made a prima facie case showing it was entitled to specific performance, and
explained the Ranch could not show the inadequacy of a legal remedy element for
specific performance “because [the] Ranch sought damages for the alleged breach
thereby implying that monetary damages are adequate.” (Citing Real Estate Analytics,
LLC v. Vallas (2008) 160 Cal.App.4th 463, 472 [listing elements to obtain specific
performance after a breach of contract].)
The trial court further wrote the Ranch “for the first time” argued in its reply brief
a trial on equitable issues remained warranted as to the declaratory relief “cause of
action.” The trial court disagreed. The trial court explained, “[T]he declaratory relief
‘cause of action’ seeks a declaration by the Court of what [the Department] may and may
not do; what is allowed and what is not allowed under the easement/contract. [¶] During
Phase 1, the jury found [the Department] has breached the easement/contract, but also
found that such breaches – to date – have not harmed [the] Ranch. [¶] Thus, after the
jury verdict, there is not a controversy about what is or is not allowed under the
easement/contract. [The] Ranch alleges that State is allowing or creating conditions
which go beyond what is allowed by the easement. The jury agreed. [¶] A judicial
determination is not necessary or appropriate on those issues now. A judicial
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determination of what is or is not allowed under the easement/contract resolves nothing.
The easement/contract sets forth the contract terms.
“[The] Ranch may argue that there is a probable future dispute warranting
declaratory relief, but that dispute will be about whether [the] Ranch has been harmed
and whether damages or other equitable relief is warranted. That is not what is being
requested by the declaratory relief ‘cause of action.’ And, so, the declaratory relief
requested does not appear to be necessary.” (Boldface omitted; citing Code Civ. Proc.,
§ 1061 [“The court may refuse to exercise the power granted by this chapter in any case
where its declaration or determination is not necessary or proper at the time under all the
circumstances”].)
The trial court continued, “[T]here is no present controversy about what is and is
not allowable under the easement/contract. The jury agreed with [the] Ranch. The
controversy [the] Ranch finds itself in is whether the breaches interfered with [the]
Ranch’s use or otherwise harmed [the] Ranch. And because there is no controversy
about what is and what is not allowable under the easement/contract, the Court’s
declaration of what is or is not a breach serves no purpose; i.e., is not necessary or proper
and would be superfluous. [¶] Accordingly, there is no reason to have a Phase 2 [trial] or
further evidentiary hearing. Declaratory relief as an equitable remedy is not warranted
under the facts found to exist by the jury. [¶] In the event [the] Ranch argues that it
wishes to amend the request for declaratory relief ‘to conform to proof;’ that is, to ask for
a declaration as to what constitutes compensable harm or interference, that argument
would likewise be unavailing since defining future possible harm is speculative and
beyond the scope of a declaratory relief request.”
During the hearing that followed, the Ranch extensively argued its reasons against
the analysis in the tentative ruling. One of the arguments resonated with the trial court—
whether the trial court should include its “ruling as far as the meaning of the settlement
agreement” as a declaration in the judgment. The trial court requested briefing on that
12
issue. The trial court noted, however, “[T]he biggest problem here is the Hoopes v.
Dolan case.” (Italics added; citing Hoopes v. Dolan (2008) 168 Cal.App.4th 146(Hoopes).) The trial court dissolved the preliminary injunctions, stating it did not find
any basis to conduct any further proceedings in that regard ; the Ranch did not object.
The Department asked whether the trial court wanted to sign the proposed order
denying a further court trial. The trial court told the Department to run the order by the
Ranch and said it would then review the order. The Ranch responded that denying the
equitable trial “would depend on what the Court determine[d]” at the next hearing based
on the briefing. The trial court disagreed: “No, the [next hearing] is whether or not my
interpretation of the contract from [February 20, 2019,] goes into the verdict or not as a
declaration, as the Court having made that declaration.” The trial court explained that it
was “bound by what the jury said” and understood the arguments; it was just “trying to
figure out which is correct on that one last piece,” which was “very limited” as to
whether the trial court’s findings regarding the contract interpretation “should be
included in the judgment or not.”
At the hearing that followed, the trial court reiterated the hearing was to determine
“the limited issue of whether or not the judgment should include the Court’s ruling on the
contract interpretation which was a motion in limine prior to the jury trial.” The trial
court ruled there was no “pending case or controversy” for declaratory relief because the
jury’s findings established no right to declaratory relief, including the finding that “there
was no harm whatsoever.” The trial court said it believed Hoopes, supra,
168 Cal.App.4th 146 “is dispositive on” the issue and thus the court was “declining to
add the ruling regarding the contract interpretation to the judgment.”
The Ranch appeals.
DISCUSSION
Before we delve into the merits of the Ranch’s argument, we note appeals are
subject to rules. When an appellant fails to follow those rules, we may deem arguments
13
forfeited. For example, we may deem arguments forfeited when the appellant discusses
or raises lurking or tangential arguments without providing proper headings identifying
the arguments as issues to be decided on appeal. (Pizarro v. Reynoso (2017)
10 Cal.App.5th 172, 179 [“Failure to provide proper headings forfeits issues that may be
discussed in the brief but are not clearly identified by a heading”]; Imagistics Internat.,
Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 593, fn. 10
[appellate courts have no duty to respond to improperly headed lurking or tangential
arguments].) “We may and [also] do ‘disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the reasoning by which the
appellant reached the conclusions he wants us to adopt.’ ” (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) Finally, “ ‘ “[a]rguments
should be tailored according to the applicable standard of appellate review.” [Citation.]
Failure to acknowledge the proper scope of review is a concession of a lack of merit,’ ”
rendering the arguments subject to forfeiture. (Ewald v. Nationstar Mortgage, LLC
(2017) 13 Cal.App.5th 947, 948 (Ewald).) We deem several of the Ranch’s arguments
forfeited under the foregoing legal principles, as discussed post.
I
The Trial Court Did Not Repudiate Its Bifurcation Order,
Nor Did It Deny The Ranch Due Process Of Law
The Ranch argues, “The court’s repudiation of its own bifurcation order and its
refusal to allow the Ranch to offer evidence supporting its equitable claims denied the
Ranch due process of law.” (Boldface omitted.) The Ranch asserts that, “when a party is
denied the right to present his or her case with supporting evidence, its due process rights
are contravened.” After citing general propositions of law pertinent to due process rights,
the Ranch states, “When the court cancelled the equitable phase, it refused the Ranch any
opportunity to present evidence supporting any of its equitable claims. There were many
14
unresolved claims and the uncertainty in the parties’ rights and duties persists. Prejudice
is abundant and apparent.” There are several issues with the Ranch’s argument.
First, the trial court did not repudiate its bifurcation order. The order stated the
trial court would concurrently hear the evidence for purposes of the legal and equitable
phases of trial and would “allow additional evidence, if any, to be presented on the
remaining equitable causes of action.” (Italics added.) Following the jury’s verdict, the
trial court determined no equitable issues remained and thus no further evidence needed
to be introduced. This finding was consistent with the language of its bifurcation order,
and we thus find no basis for concluding the trial court repudiated its prior order.
Second, we find no basis for concluding the trial court “misled the Ranch into
foregoing a complete presentation of its evidence in the jury phase – the last chance it
would have to do so,” as the Ranch asserts. Darbun Enterprises, Inc. does not support
the Ranch’s assertion in that regard. (Citing Darbun Enterprises, Inc. v. San Fernando
Community Hospital (2015) 239 Cal.App.4th 399, 411.)
In Darbun Enterprises, Inc., the plaintiff brought an action for breach of contract
and sought specific performance as well as damages. (Darbun Enterprises, Inc. v. San
Fernando Community Hospital, supra, 239 Cal.App.4th at p. 404.) The trial court
bifurcated the trial into two phases, limiting the first phase to the equitable issue of
whether specific performance was an appropriate remedy. (Id. at p. 405.) The court
reserved the breach of contract issue for the jury. (Id. at p. 406.) “At the end of the
equity phase, however, the trial court stated it could not decide on the specific
performance issue until it heard additional evidence, to be presented at the jury trial. The
jury, which already had been seated and sworn, was called and the second, legal, phase of
trial commenced. After [the plaintiff] presented its case, [the defendant] moved for
nonsuit. The trial court granted that motion as to specific performance only. It found
that, after weighing the evidence and making credibility determinations as the equity fact
finder, the lease could not be specifically performed, and that [the plaintiff] had failed to
15
perform its obligations under the lease. Nevertheless, the trial continued, and after [the
defendant] rested, [the defendant] moved for a directed verdict. The court denied that
motion. The jury found in favor of [the plaintiff] and awarded damages; the court entered
judgment for [the plaintiff]. [The defendant] then filed a motion for judgment
notwithstanding the verdict . . . . That motion was granted. The court based its decision
on findings it had made on the motion for nonsuit. The court reasoned that since it
already had found the lease to be ‘unenforceable’ and [the plaintiff] had failed to perform
its obligations, there was no substantial evidence to support the jury verdict in favor of
[the plaintiff].” (Id. at p. 402.)
The appellate court held the trial court improperly granted the defendant’s motion
for judgment notwithstanding the verdict because it “made a finding on breach after
explicitly reserving that issue for the jury.” (Darbun Enterprises, Inc. v. San Fernando
Community Hospital, supra, 239 Cal.App.4th at p. 413.) Here, in contrast, the trial court
said it believed the jury’s factual findings precluded equitable relief; the trial court did
not disregard findings reserved for the jury, as the trial court did in Darbun Enterprises,
Inc.
Further, although “[i]t is well settled that, in the second phase of a bifurcated trial,
the parties may present evidence that was not presented during the first phase,” as the
Ranch asserts, “this principle does not compel the trial court to hold an otherwise
unnecessary second phase trial merely because a party contends it can present additional
evidence.” (Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017)
12 Cal.App.5th 252, 361, italics added.) The Ranch never identified to the trial court the
additional evidence it intended to put on in the equitable phase. In its trial brief, the
Ranch simply wrote it “must be allowed to present further evidence in support of [its]
equitable relief and th[e] Court must make a determination on the merits of [its] claim for
equitable relief.” The Ranch thereafter argued it had made a prima facie case for
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equitable relief because neither injunctive relief nor specific performance requires harm
or damages.
The Ranch did not in its trial brief or during the hearing that followed make an
offer of proof as to the evidence it intended to present in the subsequent bench trial. An
offer of proof was necessary in order for us to assess prejudice on appeal. (See People v.
Anderson (2001) 25 Cal.4th 543, 580 [rule requiring offer of proof in the trial court
(Evid. Code, § 354, subd. (a)) “is necessary because, among other things, the reviewing
court must know the substance of the excluded evidence in order to assess prejudice”];
Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [“the failure to make an
adequate offer of proof in the court below ordinarily precludes consideration on appeal of
an allegedly erroneous exclusion of evidence”].) The Ranch’s view that it “suffered
irretrievable prejudice” because “the scope and contents of [the additional evidence it
could have offered] can no longer be ascertained” thus rings hollow.
An offer of proof was also necessary for us to determine whether there was a
denial of due process rights. As the Ranch acknowledges, a party’s due process right “to
present evidence is limited to [the presentation of] relevant evidence of significant
probative value to the issue before the court.” (Maricela C. v. Superior Court (1998)
66 Cal.App.4th 1138, 1147, italics added.) Here, the Ranch had an opportunity to present
its case to the jury. The only question is whether the trial court denied the Ranch’s due
process rights to present additional evidence in the equitable phase of the trial. The
Ranch has the burden of proving the trial court violated its rights in that regard; it has not,
however, presented us with any basis for concluding the trial court excluded evidence
relevant to and probative of its equitable claims.
Finally, to the extent the Ranch attempts to challenge the trial court’s decision to
conduct the legal phase of the trial first, the argument has been forfeited for failing to
raise the argument under a separate and identifiable heading and failing to acknowledge
and apply the abuse of discretion standard of review pertinent to the trial court’s decision.
17
(Pizarro v. Reynoso, supra, 10 Cal.App.5th at p. 179; Ewald, supra, 13 Cal.App.5th at
p. 948.)
II
The Trial Court Was Bound By The Jury’s
Factual Findings On Common Issues
It appears the Ranch asserts the trial court was not bound by the jury’s special
verdict findings because the Ranch’s rights under the Agreement and the 1990 Judgment
were equitable claims “that were not and could not have been addressed by the jury.”
The Ranch asserts it “needed no special verdict findings to qualify for complete equitable
enforcement of its stipulated judgment and easement claims,” because its rights are
“independently enforceable in equity.” (Boldface omitted.) While the Ranch did not
need the jury’s special verdict findings to obtain equitable relief, the trial court was
bound by the jury’s factual findings in considering whether equitable relief could issue.
“Historically, there were separate law and equity courts. [Citation.] The law
courts dealt with ordinary property rights, debts, and trespasses and adjudicated disputes
by live testimony before a lay jury. [Citation.] The equity courts dealt with ethical
matters and adjudicated disputes by written testimony before a judge. [Citation.] The
separate law and equity courts were merged, but the distinction between law and equity
remains to this day. The right to a jury trial for civil actions is generally limited to those
causes of action (and their analogues) that were historically triable in a court of law.
[Citations.] Those causes of action that were historically tried to a judge remain triable to
a judge today because it is thought that the exercise of equitable powers ‘depend[s] upon
skills and wisdom acquired through years of study, training and experience which are not
susceptible of adequate transmission through instructions to a lay jury.’ [Citation.]
“While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. [Citation.]
The factual findings are purely advisory because, on equitable causes of action, the judge
18
is the proper fact finder. [Citation.] ‘[W]hile a jury may be used for advisory verdicts as
to questions of fact [in equitable actions], it is the duty of the trial court to make its own
independent findings and to adopt or reject the findings of the jury as it deems proper.’
[Citation.] In contrast, a judge is bound by a jury’s verdict rendered on legal causes of
action. [Citation.] A jury is not ‘a mere advisory body’ in deciding legal causes of
action. [Citation.] It has long been held that, ‘where a party is entitled to a jury as a
matter of right, the court is without authority to enter a judgment contrary to the verdict
and that the determination of a jury is conclusive unless set aside upon the granting of a
motion for a new trial or unless the general verdict is inconsistent with special findings of
fact made by the jury.’ [Citation.]
“Complications arise when legal and equitable issues (causes of action, requested
remedies, or defenses) are asserted in a single lawsuit. The lawsuit is rarely treated as a
single unit for purposes of determining the right to a jury trial. [Citations.] In most
instances, separate equitable and legal issues are ‘kept distinct and separate,’ with legal
issues triable by a jury and equitable issues triable by the court. [Citations.]
“The order of trial, in mixed actions with equitable and legal issues, has great
significance because the first fact finder may bind the second when determining factual
issues common to the equitable and legal issues.” (Hoopes, supra, 168 Cal.App.4th at
pp. 155-156.) In cases where legal issues are tried before equitable ones (as was done
here), it is “clear that a jury’s determination of legal issues may curtail or foreclose
equitable issues” (id. at p. 157) and “the trial court must follow the jury’s factual
determinations on common issues of fact” (id. at p. 158).
“[T]here are solid policy reasons for giving one fact finder’s determinations
binding effect in a mixed trial of legal and equitable issues. The rule minimizes
inconsistencies, and avoids giving one side two bites of the apple. [Citation.] The rule
also prevents duplication of effort.” (Hoopes, supra, 168 Cal.App.4th at p. 158.)
19
As explained in Hoopes, a trial court is bound by the jury’s factual findings on
factual issues common to the legal and equitable claims, as the trial court explained here.
We see no reason to address the Ranch’s attempts to distinguish Hoopes or its arguments
that (1) the Ranch is not urging defiance of jury factfinding but instead offering
interpretations of the jury’s findings that support equitable relief; (2) the trial court was
not asked to substitute its own factfinding for that of the jurors but instead to “complete”
the verdict “by supplying equitable remedies based on separate equitable elements and
findings”; and (3) the trial court in Hoopes usurped the jury’s role and altered its findings
“outside the scope of regular new trial review.” None of those arguments assist in
determining whether the trial court erred in this case.
III
The Jury’s Permission Finding On Trespass Stands
The Ranch challenges the jury’s trespass finding that the Department did not enter
the Ranch’s property without permission. It argues, “The jury’s permission finding on
trespass is contrary to law and unsupported by substantial evidence” and thus does not
bar equitable relief. (Boldface omitted.) We disagree.
Initially, the Ranch asserts a landowner may revoke a person’s permission to use
the landowner’s land at any time. In that vein, the Ranch argues “the permission finding
is hopelessly ambiguous or incomplete” (boldface omitted) “because it did not address
any of the indisputable evidence of revocation, inform the jury of the effect of revocation,
or explain how the jury should address this evidence.” The Ranch further asserts, “The
jury’s failure to render a verdict with findings on the dispositive issue of revocation of
permission was also compounded by fatal omissions in the jury instructions.” The Ranch
relies on two trial exhibits and its complaint to show that revocation was at issue in this
case. We reject the arguments for several reasons.
20
First, the Ranch’s argument hinges on two trial exhibits, neither of which are
properly before us because we have denied the Ranch’s request to submit the trial
exhibits late, as explained ante.
Second, the Ranch did not raise the argument that the special verdict was
ambiguous or incomplete in the trial court. We can find no objection or request in the
record and the Ranch identifies none. An objection to the form of questions in a special
verdict must be raised in the trial court or the issue may be deemed forfeited on appeal.
(Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 700.) The
Ranch also did not raise the ambiguity or incompleteness concern with the trial court
after the jury rendered its verdict, nor did it ask to have the jury correct or clarify the
verdict before the court discharged the jury. (Code Civ. Proc., § 619 [“When the verdict
is announced, if it is informal or insufficient, in not covering the issue submitted, it may
be corrected by the jury under the advice of the Court, or the jury may be again sent
out”].) “ ‘Failure to object to a verdict before the discharge of a jury and to request
clarification or further deliberation precludes a party from later questioning the validity of
that verdict if the alleged defect was apparent at the time the verdict was rendered and
could have been corrected.’ ” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-264,
italics omitted.) Here, the alleged defect in the special verdict was apparent at the time
the verdict was rendered and could have been corrected, if necessary and appropriate.
The Ranch further did not preserve the issue by raising it in a motion for new trial. (All-
West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1220 [challenge to use of
verdict forms may be raised for first time in motion for new trial].) In its new trial
motion, the Ranch merely argued there was no evidence of consent to support the jury’s
finding. For these reasons, we deem the Ranch’s ambiguity and incompleteness
argument forfeited.
Third, to the extent the Ranch is asserting the trial court erred in failing to instruct
the jury that permission may be revoked, we disagree. A trial court’s duty “is fully
21
discharged if the instructions given by the court embrace all the points of the law arising
in the case.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.) The Ranch has
not shown that the issue of revocation was closely and openly connected with the facts
presented at trial. Further, a plaintiff who fails to request any additional or qualifying
instructions forfeits the right to argue instructional error on appeal. (Metcalf v. County of
San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.)
We also find no merit in the Ranch’s argument that no substantial evidence
supported the jury’s permission finding. “ ‘We generally apply the familiar substantial
evidence test when the sufficiency of the evidence is at issue on appeal. Under this test,
“ ‘we are bound by the established rules of appellate review that all factual matters will
be viewed most favorably to the prevailing party [citations] and in support of the
judgment . . . . “In brief, the appellate court ordinarily looks only at the evidence
supporting the successful party, and disregards the contrary showing.” [Citation.] All
conflicts, therefore, must be resolved in favor of the respondent.’ ” [Citation.]
“ ‘But this test is typically implicated when a defendant contends that the plaintiff
succeeded at trial in spite of insufficient evidence. In the case where the trier of fact has
expressly or implicitly concluded that the party with the burden of proof did not carry the
burden and that party appeals, it is misleading to characterize the failure-of-proof issue as
whether substantial evidence supports the judgment. This follows because such a
characterization is conceptually one that allows an attack on (1) the evidence supporting
the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion
that the party with the burden did not prove one or more elements of the case [citations].
“ ‘Thus, where the issue on appeal turns on a failure of proof at trial, the question
for a reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial determination that it was
22
insufficient to support a finding.” ’ ” (Sonic Manufacturing Technologies, Inc. v. AAE
Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466, italics added in last two paragraphs.)
Here, the case posed evidentiary conflicts. The Ranch had the burden to prove the
Department did not have permission to enter its property. The jury concluded the Ranch
failed to carry this burden. The Ranch relies on two excluded trial exhibits and its
complaint in seeking to reverse the jury’s verdict. Plainly, the Ranch has not shown it
was entitled to a finding in its favor as a matter of law.
For these reasons, the jury’s permission finding on trespass stands.
IV
The Trial Court Did Not Misinterpret The Jury’s Special Verdicts
The Ranch challenges the trial court’s interpretation of the jury’s special verdicts
on the breach of contract and nuisance causes of action in determining equitable relief
was unwarranted. We analyze the special verdict form de novo and find no merit in these
arguments. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005)
126 Cal.App.4th 668, 678.)
A
Nuisance
The Ranch argues the trial court erred in finding injunctive relief was barred by
the jury’s nuisance findings that the conditions created by the Department did not
substantially interfere with the Ranch’s use or enjoyment of its land. The Ranch asserts
no case “has addressed the question of what elements may be required to obtain
injunctive relief against a private nuisance as compared with damages.” The Ranch
argues, “Under the Restatement[ Second of Torts] rule, the Ranch might seek an
injunction against an interference with the use and enjoyment of Ranch property that was
23
unreasonable. Substantial or significant present harm would not be necessary.” We
disagree.
“Unlike public nuisance, which is an interference with the rights of the community
at large, private nuisance is a civil wrong based on disturbance of rights in land.
[Citation.] . . . [T]o proceed on a private nuisance theory the plaintiff must prove an
injury specifically referable to the use and enjoyment of his or her land. The injury,
however, need not be different in kind from that suffered by the general public.” (Koll-
Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036,
1041.) In San Diego Gas & Electric Co., our Supreme Court, in part relying on the
Restatement Second of Torts, identified two additional elements to establish a private
nuisance. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937-
938.) “The first additional requirement for recovery of damages on a nuisance theory is
proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land was
substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage’ ”
(substantial damage requirement). (Id. at p. 938.) “The second additional requirement
for nuisance is superficially similar but analytically distinct: ‘The interference with the
protected interest must not only be substantial, but it must also be unreasonable’
[citation], i.e., it must be ‘of such a nature, duration or amount as to constitute
unreasonable interference with the use and enjoyment of the land’ ” (unreasonable
interference requirement). (Ibid., italics omitted.)
The Ranch asks us to “reexamine California nuisance law in light of the position
taken by the Restatement Second of Torts” in sections 821F and 822. The Restatement
Second of Torts, section 821F, comment b, page 105 provides the significant harm
requirement “applies only to tort liability in an action for damages.” The Restatement
Second of Torts, section 822, comment d, pages 110 to 111 provides: “Action for
damages distinguished from suit for injunction. A potent cause of confusion as to the
meaning and scope of private nuisance lies in the failure to distinguish the action at law
24
from the suit for injunction in equity. Cases in equity are cited as precedents in actions at
law without regard to their differences.” (Italics omitted.)
Although our Supreme Court cited to the Restatement Second of Torts, in addition
to other treatises, when it identified the substantial damage and unreasonable interference
requirements as elements of a private nuisance cause of action, the court did not
expressly limit its holding to claims for damages. The Ranch cites to no case (nor have
we found one) that limits San Diego Gas & Electric Co. to an action for damages. To the
contrary, the Fourth District Court of Appeal has applied the substantial damage and
unreasonable interference requirements to a case involving solely a request for injunctive
relief.
In Mendez, homeowners filed a complaint against a resort for, among other things,
private nuisance seeking a permanent injunction for violation of zoning and noise
ordinances. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th
248, 254-255, 258.) The Mendez court held the substantial damage and unreasonable
interference requirements were applicable and consequential in a complaint seeking only
a permanent injunction for a private nuisance. (Id. at pp. 262-263.) The Mendez court
stated, “[P]laintiffs still must demonstrate that the use of this public address system in
this way constitutes an interference with plaintiffs’ use and enjoyment of their land that is
substantial and unreasonable.” (Id. at p. 270, italics omitted.)
We find no basis for disagreeing with the Mendez court’s conclusion that the
substantial damage and unreasonable interference requirements apply in a case seeking
injunctive relief for a private nuisance.
Here, the jury found the Ranch failed to prove the conditions of which the Ranch
complained substantially interfered with the Ranch’s use or enjoyment of its land . The
Ranch thus failed to prevail on its private nuisance causes of action and no injunctive
relief was available. (Mendez v. Rancho Valencia Resort Partners, LLC, supra,
3 Cal.App.5th at p. 260 [“ ‘ “A permanent injunction is a determination on the merits that
25
a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable
relief is appropriate” ’ ”].)
B
Breach Of Contract
The Ranch asserts the trial court erred in interpreting the breach of contract special
verdict as a finding that the Ranch failed to establish a breach of contract. The Ranch
believes the special verdict findings support equitable relief because “the jury agreed with
the Ranch that it had performed the contract and that the [Department] had breached the
contract in multiple respects.” The Ranch posits the jury’s “no harm” finding simply
means it found no damages to award, which has no bearing on its equitable claims. We
disagree.
“To be entitled to damages for breach of contract, a plaintiff must plead and prove
(1) a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
breach, and (4) damage to plaintiff.” (Walsh v. West Valley Mission Community College
Dist. (1998) 66 Cal.App.4th 1532, 1545.) “Implicit in the element of damage is that the
defendant’s breach caused the plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009)
171 Cal.App.4th 1305, 1352.) “Civil Code section 3300 [also] generally requires proof
of causation: ‘For the breach of an obligation arising from contract, the measure of
damages . . . is the amount which will compensate the party aggrieved for all the
detriment proximately caused thereby, or which, in the ordinary course of things, would
be likely to result therefrom.’ ” (Troyk, at p. 1352.)
Here, it was undisputed the Ranch and the Department had a contract. The jury
found: The Ranch did all or substantially all of the significant things it was required to
do under the contract; the Department “fail[ed] to do something that the contract required
it to do or do something the contract prohibited it from doing”; and the Ranch was not
harmed. In considering the Ranch’s request for a bench trial on its equitable claims, the
trial court said the jury “did not find that a breach of contract cause of action was
26
established” because it determined the Ranch was not harmed by the Department’s
breach.
The Ranch asserts “[h]arm is not expressly defined in the special verdict or in the
contract elements in the court’s instructions” and must thus be “defined and understood
in the context of the entire body of instructions.” The Ranch urges the term “is used
throughout the court’s instructions and in the trial of this case to refer only to damages,
i.e., compensation measurable in monetary terms and awarded on account of specific past
events, i.e., damage to the [low-water crossing]. When the instructions are read as a
whole and in context as they must be, harm equals [low-water crossing] money damages
– nothing else.” (Italics omitted.)
We interpret the special verdict by considering its language in connection with the
pleadings, evidence, and instructions, and conclude it was clear to the jury that the term
“harm” was not synonymous with damages, as the Ranch asserts. (Woodstock v. Fontana
Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457.)
The special verdict form required the jury to answer “yes” to the following two
questions before it could consider the question of damages: (1) Was the Ranch “harmed”
by the Department’s failure to do something that the contract required it to do or because
it did something the contract prohibited it from doing; and (2) was the Department’s
breach of contract a substantial factor in causing the Ranch’s “harm”? The jury answered
no to the first question and did not address the second. The unanswered damages portion
of the special verdict form asked: “What are Connolly Ranch’s breach of contract
damages for damage to the SRI crossing?”
The trial court instructed the jury: “[The] Ranch claims that the Department . . .
breached its obligations under the contract by allowing public use other than at
designated crossings, failing to designate crossings and exclude the public from the
easement, damaging the low-water crossing and adjacent paved road, failing to maintain
and repair areas of the easement road open to the public, failing to fence and install signs,
27
[and] unreasonably interfering with [the] Ranch’s use and enjoyment of the easement. [¶]
[The] Ranch claims that the Department[’s] breaches of the contract caused damage to
the low-water crossing and adjacent paved road for which the [Department] should pay.”
The trial court further instructed the jury: “To recover damages from the
Department . . . for breach of contract, [the] Ranch must prove all of the following: That
[the] Ranch and the Department . . . entered into a contract. This fact is not in dispute.
That [the] Ranch did all or substantially all of the significant things that the contract
required it to do. That the Department . . . failed to do something that the contract
required it to do. That [the] Ranch was harmed and that the Department[’s] breach of
contract is a substantial factor in causing [the] Ranch’s harm.” The trial court then
instructed the jury on the question of damages, as follows: “If you decide that [the]
Ranch has proved its claim against the Department . . . for breach of contract, you also
must decide how much money will reasonably compensate [the] Ranch for the harm
caused by the breach. This compensation is called damages. The purpose[] of such
damages is to put [the] Ranch in as good a position as it would have been if the
Department . . . had performed its promise.”
From the foregoing, it is clear the term “damages” was used to denote a sum of
money, whereas the term “harm” was used to denote an injury or loss proximately caused
by the Department’s breach. The jury thus understood it could find harm occurred but
could nonetheless decide not to award damages as compensation. Indeed, the special
verdict form allowed the jury to assess an amount for damages only if it first found that
the Ranch was harmed by the breach of contract, the Department’s breach of contract was
a substantial factor in causing the Ranch’s harm, and none of the Department’s
affirmative defenses applied.
Plainly, the jury found the Ranch failed to prove an element of its breach of
contract cause of action, i.e., proximate causation. The trial court thus did not err in its
interpretation of the special verdict.
28
V
The Trial Court Did Not Deny The Ranch A
Fair Hearing On Its Equitable Claims
The Ranch argues the trial court’s posttrial rulings were infected with prejudicial
errors that denied it a fair hearing on its equitable claims, because: (1) there were no
legal deficiencies in the Ranch’s declaratory and injunctive relief claims; (2) the
injunctive relief claims should have been tried on their merits; (3) the declaratory relief
claims should also have been tried on their merits; (4) the trial court “erred in refusing to
enter a declaratory judgment based on its legal rulings regarding the [1990 Judgment and
the Agreement] or trying any remaining defenses in equity or bench trying the remaining
claims and defenses” (boldface omitted); and (5) the trial court “erred in dissolving its
two preliminary injunctions against the [Department] without considering permanent
injunctive relief” (boldface omitted).
We do not specifically address the Ranch’s arguments under the heading, “there
were no legal deficiencies in the Ranch’s declaratory and injunctive relief claims.”
(Boldface & capitalization omitted.) The arguments presented under that heading, to the
extent they raised an issue for determination, are addressed and rejected elsewhere in this
opinion.
A
The Trial Court Did Not Abuse Its Discretion In Denying
The Ranch’s Permanent Injunctive Relief Request
The Ranch argues the trial court’s application of Code of Civil Procedure section
526 was erroneous because: (1) “the [1990 Judgment and the Agreement] are in a
different legal class than mere claims for breach of an ordinary contract”; and (2) the
Ranch is entitled to specific performance because “it satisfies prima facie all the elements
of specific performance – even without ever having been given the opportunity to present
29
any evidence directed to those elements” (italics omitted). 3 We find no merit in these
arguments.
Neither of the two cases cited by the Ranch provides any insight into the Ranch’s
claim of error. (Citing Aspen Grove Condominium Assn. v. CNL Income Northstar LLC
(2014) 231 Cal.App.4th 53, 63-64, LeDeit v. Ehlert (1962) 205 Cal.App.2d 154, 158-
159.) There is no quibble with the general propositions tendered by the Ranch that “an
injunction to protect property or easement rights may be awarded even if a jury awards
[z]ero [d]amages” (italics omitted) and the consideration of equitable relief falls within
the province of the trial court, and not the jury. There is also no quibble with the
argument that the 1990 Judgment and the Agreement may be enforced in equity. 4 The
quibble lies with whether the trial court erred in denying the Ranch’s request for a
permanent injunction. As already explained, “ ‘ “[a] permanent injunction is a
determination on the merits that a plaintiff has prevailed on a cause of action . . . against
a defendant and that equitable relief is appropriate.” ’ ” (Mendez v. Rancho Valencia
Resort Partners, LLC, supra, 3 Cal.App.5th at p. 260, italics added.) Here, as noted by
the trial court, the Ranch failed to prevail on any of its causes of action against the
Department. The Ranch fails to explain why, that being the case, it is nonetheless
entitled to a permanent injunction.
3 As noted ante, the trial court denied the request for a permanent injunction under
both Code of Civil Procedure section 526 and Civil Code section 3422. The Ranch does
not challenge the trial court’s denial of a permanent injunction under Civil Cod e section
3422, except to attack the trial court’s interpretation of the jury verdicts, which we have
already addressed.
4 We further agree the trial court has the power to compel obedience and enforce
compliance with its judgments, as the Ranch asserts. The Ranch did not, however, bring
a motion to compel in this case.
30
As to the Ranch’s specific performance argument, the Ranch fails to acknowledge
that it did not seek specific performance in its operative complaint. The trial court treated
the Ranch’s specific performance argument as a request for leave to amend the complaint
to “ ‘conform to proof’ ” and denied the request. The trial court’s denial of a request for
leave to amend the complaint to conform to proof “will not be disturbed on appeal unless
it clearly appears that such discretion has been abused.” (Trafton v. Youngblood (1968)
69 Cal.2d 17, 31.) The Ranch does not acknowledge the applicable standard of review,
or present its argument tailored to that standard of review. The Ranch, instead, asks us to
independently determine that it has satisfied the elements for specific performance. We
decline to do so and deem the argument forfeited. (Ewald, supra, 13 Cal.App.5th at
p. 948 [failure to tailor argument to the applicable standard of review is a concession of
lack of merit].)
In conclusion, the Ranch has presented no meritorious argument challenging the
trial court’s denial of permanent injunctive relief.
B
The Trial Court Did Not Abuse Its Discretion
In Denying Declaratory Relief
“Declaratory relief is available to a party ‘who desires a declaration of his or her
rights or duties with respect to another . . . .’ [Citation.] A complaint for declaratory
relief is legally sufficient if it sets forth facts showing the existence of an actual
controversy relating to the legal rights and duties of the parties and requests that the
rights and duties of the parties be adjudged by the court.” (Monterey Coastkeeper v.
California Regional Water Quality Control Bd., etc. (2022) 76 Cal.App.5th 1, 13.) “A
party seeking declaratory relief must show a very significant possibility of future harm.”
(Ibid.)
A trial court “may refuse to exercise the power granted” by the Code of Civil
Procedure as to declaratory relief, “in any case where its declaration or determination is
31
not necessary or proper at the time under all the circumstances.” (Code Civ. Proc.,
§ 1061.) “Whether a determination is proper in an action for declaratory relief is a matter
within the trial court’s discretion and the court’s decision to grant or d eny relief will not
be disturbed on appeal unless it is clearly shown its discretion was abused.” (Dolan-
King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974.)
The Ranch argues the trial court had “no discretion to refuse declaratory relief in
this case for two reasons”: (1) the trial court “ignored both constraints” that it had to
exercise its discretion “only within legal bounds and after consideration of all material
facts”; and (2) “the court also disregarded the established rule that there is no discretion
to refuse declaratory relief in cases where the parties have ongoing permanent jural
relationships – such as easements or property rights or perpetual contracts embodied in
consent judgments – that require the court’s guidance in resolving disputes regarding
their continuing rights and duties.” (Citing Steinberg v. Chiang (2014) 223 Cal.App.4th
338, 343-344.)
The Ranch’s first assertion of error hinges on the argument that the trial court
“allowed and considered no evidence” before exercising its discretion and “it got the law
of declaratory relief wrong.” First, the trial court heard the evidence presented during the
jury trial; the Ranch’s assertion the trial court considered no evidence is thus incorrect.
Second, the Ranch provides no analysis or reasoning as to how the trial court purportedly
“got the law of declaratory relief wrong.”
The trial court set forth the law pertinent to declaratory relief, noting among other
things, “declaratory relief ‘need not be awarded if the circumstances do not warrant.’ ”
(Quoting Artus v. Gramercy Towers Condominium Assn. (2018) 19 Cal.App.5th 923,
930.) The trial court noted the Ranch sought a declaration of what the Department “may
and may not do; what is allowed and what is not allowed under the [1990 Judgment and
the Agreement].” (Boldface omitted.) The trial court explained there was no existing
controversy for determination because the jury found the Department breached the 1990
32
Judgment and the Agreement but found the Ranch suffered no harm. The trial court
further wrote “[a] judicial determination of what is or is not allowed under the [1990
Judgment and the Agreement] resolves nothing” because the documents “set[] forth the
contract terms.” Any future controversy, the trial court explained, would be “whether
[the] Ranch has been harmed and whether damages or other equitable relief is
warranted.” (Boldface omitted.) The Ranch presents no argument as to why the
foregoing analysis constitutes an abuse of discretion or is contrary to established law
discussed ante.
We also find no merit in the Ranch’s second argument. Nothing in Steinberg
provides that the trial court had no discretion to deny declaratory relief in this case. In
that case, the parties disputed whether the State Controller rightfully decided a budget bill
was not balanced when the bill’s revenue estimates exceeded the total appropriations and
thus warranted withholding legislators’ salaries until the Legislature presented a balanced
budget to the Governor. (Steinberg v. Chiang, supra, 223 Cal.App.4th at pp. 341-342.)
This court held declaratory relief was proper because the State Controller’s responsibility
for distributing legislative salaries created an ongoing relationship between the parties,
“the refusal to grant declaratory relief would work a serious hardship on the Legislature”
in that it put the Legislature at risk for even more forfeited wages, and the parties
continued to disagree over events that were reasonably expected to recur. (Steinberg, at
pp. 345; id. at pp. 343-344.)
While it is true that one of the factors this court considered in Steinberg to
determine whether the trial court abused its discretion in denying d eclaratory relief was
whether the parties had an ongoing relationship, another key factor was whether the
refusal to grant relief would cause a serious hardship on one of the parties. (Steinberg v.
Chiang, supra, 223 Cal.App.4th at pp. 343-344.) It is this latter factor that the trial court
found lacking in this case. Indeed, the trial court expressly stated , “the jury found that
[the department] ha[d] breached the easement/contract, but also found that such breaches
33
– to date – have not harmed [the] Ranch” and thus, “after the jury verdict, there is not a
controversy about what is or is not allowed under the easement/contract.” (Boldface
omitted.) The Ranch does not attempt to explain with reasoned analysis why the trial
court abused its discretion in that regard.
The Ranch further merely asserts the jury’s special verdict did not resolve “many
of the Ranch’s claims – including those pertaining to protection of the easement and the
Ranch’s property.” That assertion does not, in and of itself, establish that the trial court
abused its discretion. Nothing in Doan, a case upon which the Ranch relies and the
application of which is unsupported by any reasoned analysis, leads us to the conclusion
that the trial court had no discretion but to grant the declaratory relief requested. (Citing
Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1095-1096.)
C
The Ranch Has Shown No Error Regarding The Trial
Court’s Denial Of Its Request To Enter The Contract
Interpretation Findings As A Declaration In The Judgment
The Ranch argues, “The court erred in refusing to enter a declaratory judgment
based on its legal rulings regarding the [1990 Judgment and the Agreement] or trying any
remaining defenses in equity.” (Boldface omitted.) The Ranch merely notes the trial
court instructed the jury with its prior legal ruling interpreting the 1990 Judgment and the
Agreement and then summarily states the trial court “could also have included other
easement issues.” The Ranch continues: “If, as the court intimated, the [Department]
had unresolved defenses that might have affected the provisions it interpreted, it could
have allowed the promised equitable phase of trial to address those defenses. What the
court could not do was enter the judgment against the Ranch in the face of its legal
rulings in its favor. Reversal is required.”
The Ranch provides no reasoned argument with citation to authority for the
foregoing proposition, nor does it identify and apply the pertinent standard of review.
34
We thus disregard the argument. (United Grand Corp. v. Malibu Hillbillies, LLC, supra,
36 Cal.App.5th at p. 153; Ewald, supra, 13 Cal.App.5th at p. 948.) It is true the trial
court interpreted the 1990 Judgment and the Agreement as unambiguous and clear when
it ruled on three of the parties’ motions in limine. The trial court’s ruling in that regard
does not, standing alone, support a conclusion that the trial court erred when it declined
to include the interpretation in the judgment. The trial court explained there was no
pending case or controversy requiring declaratory relief regarding the interpretation of
the Agreement and the 1990 Judgment. The Ranch does not explain how that finding
was erroneous.
D
The Trial Court Did Not Err In Dissolving The Preliminary Injunctions
The Ranch argues, “The court erred in dissolving its two preliminary injunctions
against the [Department] without considering permanent injunctive relief.” (Boldface
omitted.) The Ranch discusses the two preliminary injunctions issued prior to trial and
summarily states: “In the face of the two injunctions, the court should at least have held
the equitable phase hearing to address a permanent resolution of the matters enjoined in
light of the evidence.” We do not address this argument because the Ranch provides no
reasoned argument with citation to authority for the foregoing proposition, nor does it
identify and apply the pertinent standard of review. We thus disregard the argument.
(United Grand Corp. v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 153; Ewald,
supra, 13 Cal.App.5th at p. 948.) Moreover, as already established, the trial court did
consider whether to grant a permanent injunction and determined it was unwarranted
under the facts of this case. The Ranch further did not object when the trial court
dissolved the preliminary injunctions. We thus see no basis for concluding the trial court
abused its discretion in dissolving the preliminary injunctions.
35
VI
The Trial Court Did Not Err By Excluding Job’s Testimony
The Department filed a motion in limine to limit the testimony of Job, plaintiff’s
disclosed expert, regarding his proposed cost allocation formula for repair of the low-
water crossing, his opinion “on excess sedimentation,” and his opinion regarding the
original design of the low-water crossing. Following an Evidence Code section 402
hearing, the trial court found Job was not qualified to testify “regarding the cost
allocation in this particular case” because he did not have “a proper basis for the
opinion.” The trial court further found Job did not have “a proper basis” to give an
opinion that there was “an excessive or very high sediment load at the site.” The Ranch
challenges the trial court’s findings in that regard.
The Ranch argues the trial court committed prejudicial error by excluding Job’s
testimony because the trial court misunderstood or misperceived the law and thus per se
abused its discretion under Sargon. (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747 (Sargon).) The Ranch asserts it can show prejudice
because: (1) the trial court’s decision to admit or exclude expert evidence is not
unlimited and implicates the party’s ability to present its case; and (2) the Department’s
“overarching theme in oral argument was that there was nothing ‘substantial’ in any
aspect of the Ranch’s case.” We find no basis for concluding the trial court
misunderstood or misperceived the scope of its discretion under Sargon.
Evidence Code section 801 provides: “If a witness is testifying as an expert, his
[her or their] testimony in the form of an opinion is limited to such an opinion as is: [¶]
(a) Related to a subject that is sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact; and [¶] (b) Based on matter . . . that is of a type
that reasonably may be relied upon by an expert in forming an opinion upon the subject
to which his testimony relates, unless an expert is precluded by law from using such
matter as a basis for his opinion.” Under Evidence Code section 801, “the trial court acts
36
as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Sargon, supra,
55 Cal.4th at p. 770.) “ ‘[T]he expert’s opinion may not be based “on assumptions of fact
without evidentiary support [citation], or on speculative or conjectural factors . . . . [¶]
Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an
inherent corollary to the foundational predicate for admission of the expert testimony:
will the testimony assist the trier of fact to evaluate the issues it must decide?” ’ ” (Ibid.)
Evidence Code section 802 also imposes an important gatekeeping function on the
trial court. That statute provides: “A witness testifying in the form of an opinion may
state . . . the reasons for his opinion and the matter . . . upon which it is based, unless he is
precluded by law from using such reasons or matter as a basis for his opinion. The court
in its discretion may require that a witness before testifying in the form of an opinion be
first examined concerning the matter upon which his opinion is based.” (Evid. Code,
§ 802.) “This section indicates the court may inquire into the expert’s reasons for an
opinion. It expressly permits the court to examine experts concerning the matter on
which they base their opinion before admitting their testimony. The reasons for the
experts’ opinions are part of the matter on which they are based just as is the type of
matter. Evidence Code section 801 governs judicial review of the type of matter;
Evidence Code section 802 governs judicial review of the reasons for the opinion. ‘The
stark contrast between the wording of the two statutes strongly suggests that although
under [Evidence Code] section 801[, subdivision ](b) the judge may consider only the
acceptability of the generic type of information the expert relies on, the judge is not so
limited under [Evidence Code] section 802.” (Sargon, supra, 55 Cal.4th at p. 771.)
“Thus under Evidence Code sections 801, subdivision (b), and 802, the trial court
acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a
type on which an expert may not reasonably rely, (2) based on reasons unsupported by
the material on which the expert relies, or (3) speculative.” (Sargon, supra, 55 Cal.4th at
pp. 771-772.) “Except to the extent the trial court bases its ruling on a conclusion of law
37
(which we review de novo), we review its ruling excluding or admitting expert testimony
for abuse of discretion.” (Id. at p. 773.)
In its opening brief, the Ranch focuses on Job’s qualifications, even as to the basis
for Job’s opinions, and relies solely on Evidence Code section 801, arguing Job’s
opinions “arose directly from his expertise and experience” with regard to low-water
crossings. The trial court was, however, specific that it was excluding Job’s testimony
because he did not have “a proper basis” for his opinions, which falls within the trial
court’s discretion under Evidence Code section 802. The trial court did not exclude Job’s
testimony because he was not qualified to give opinions regarding the type of matter
proposed, but instead excluded it because it found no basis for Job’s reasons in reaching
the opinions he proposed to relate to the jury. We find no abuse of discretion in that
regard.
A
The Trial Court Did Not Abuse Its Discretion
By Excluding Testimony Regarding The Cost Allocation Formula
During the Evidence Code section 402 hearing, Job, a civil engineer who has
designed “about six” low-water crossings and has dealt with “maintenance and operation
of dozens of them,” testified he inspected the low-water crossing at issue in this case by
spending the better part of a morning evaluating the site and walking up and down the
stream for approximately 250 feet in each direction. Job took photographs and looked at
the condition of the road, “evidence of erosion,” and the split rail fence. He observed
broken and cracked concrete, exposed rebar, “some spalled concrete,” “a fair amount of
gravel, bedload from the stream that had imbedded itself in the mouth of the culverts,”
and “a significant amount of erosion that resulted when the stream evulsed around the
low-water crossing and went coursing down the road.” When asked what factors “might
have damaged the low-water crossing,” Job responded, “[t]here are several modes of
failure for those types of structures”—geomorphologic factors (i.e., things that are caused
38
by the stream), erosion, sediment deposition, the bedload that moves through a culvert,
and “the impact of the concrete, the cracks, and the exposed rebar.”
As to the cause of the damage to the low-water crossing, Job testified he
considered the split rail fence that accumulated a large amount of weighted debris and
organic material, the broken concrete and exposed rebar, and the traffic “on the upstream
inlet to those culverts which tends to compact the gravel.” He also considered the impact
of “the February 2017 storm” in his opinions but provided no further clarification in that
regard.
Job explained he created a formula that he had previously used in prospective
applications and applied the formula retrospectively in this case. The formula is
generally accepted to be reliable in the scientific community. The “inputs” of the
formula were based on vehicle classes:5 light vehicles, such as cars and light pickups;
medium trucks, approximately 15,000 pounds to 45,000 pounds; and, heavy trucks, like
water trucks, cement trucks, or a semi-truck. Job then made assumptions about the
velocity at which those vehicle classes would travel across the low-water crossing. He
explained a vehicle’s weight and its velocity of travel creates an impact on the road; the
greater the speed of travel, the greater the impact on the road by a square function. For
example, if a vehicle goes four miles per hour rather than two miles per hour, it will have
eight times more of an impact on the road “because of the square function.”
Job first “determined an estimate for the impact of a light vehicle,” and then
divided the other classes “by that impact for the light vehicle,” meaning the “light vehicle
is [the] one for reference, and then the other classes of vehicles had other numbers based
on their weight and velocity.” Job acknowledged the formula was not perfect and
5 Job referred to four vehicle classes but only discussed three vehicle classes. From
the record, it appears the fourth vehicle class pertained to dirt bikes, but that class was not
mentioned during the Evidence Code section 402 hearing.
39
explained, in order for the formula to be perfect, there would have to be “a tollbooth [at
the low-water crossing] that had a weigh station attached to it.” Job testified, if he were
provided assumptions as to vehicle weights and number of trips across the low-water
crossing by various vehicles, he could use the hypothetical inputs in his formula.
During cross-examination, Job acknowledged his cost allocation was based on
prospective application and testified the equation allocated the “use factor, load factor . . .
based on trips only” and did “not include weather.” Job acknowledged, “There are
multiple sources of wear and tear on the road. One of them is traffic. The other is
weather.” He also explained that traffic on a wet road “causes more damage.” Job
further testified that “weather damaged the crossing at some point,” “[c]ompounded by
the ridiculous split rail fence built in a floodplain.” Despite these causes of damage, Job
acknowledged neither the weather nor the constructed features in the floodplain was
taken into account in his cost allocation formula. Job explained the formula envelops “all
of the factors [he] found contributed to damage to [the] SRI crossing” “by saying that
whoever used it the most gets to pay the most share for the weather.” He continued:
“The weather doesn’t happen just to the property owner. It doesn’t happen just to
somebody else. It says that the weather happens to everybody and everybody based on
their use of the structure then gets to pay a share of that weather-related damage.” When
asked whether the retroactive application of the formula was “reasonably certain to divide
up costs based on what actually happened or is . . . just useful as an approximation,” Job
responded it “is an approximation.”
After the Department noted Job’s opinion as to the cost allocation “is literally only
based on [a] number of trips” and “doesn’t take into [account] storm damage,” the trial
court said Job’s proposed testimony was not “a proper opinion.” During redirect, Job
noted there was damage caused “to the low-water crossing by the railing that was
presented” but explained, although his “formula d[id] not include a function for weather
or maintenance,” he took those aspects into account in formulating his opinion. He
40
confirmed his estimate broke apart the impact to the road and asphalt, and the impact to
the concrete “would be use related, wear and tear related by users.” When asked his
opinion concerning the cause of the damage to the low-water crossing, Job said: “My
opinion is that many parties, several parties made use of it, took advantage of it and in,
you know, most of the venues I’ve been involved in, people pay a fair share for repair
and replacement of structures they enjoy, the use of [sic] proportional to their use of the
facility.” Job reiterated his allocation was just a determination regarding the proportion
of use.
The Ranch then addressed the trial court and argued: “The formula applies the
wear and tear usage cost allocation formula apprised to the Portland cement concrete
structure which was not damaged by the storm event of February 2017. The asphalt
portion of it, of the roadway and the channeling that occurred was caused by the storm
event and can be separated out. So it is possible to separate these two out. And that’s a
decision that the jury will have to make, how much is caused by the storm, how much is
caused by wear and tear. [¶] He’s basically going to be saying the damage to the low-
water crossing concrete structure is blank dollars. The damage to the asphalt related to
the storm is blank dollars. The jury can reject the formula completely and find it’s all due
to the storm or it can find that there’s no damage due to the storm, it’s just strictly wear
and tear.” The trial court responded that the Ranch had not changed the court’s mind
because Job did not have “a proper basis for the opinion.”
In its opening brief, the Ranch repeatedly addresses Job’s qualifications in terms
of his education, training, knowledge, skill, and experience but fails to acknowledge or
provide any argument as to how or why the trial court abused its discretion or did not
understand the scope of its discretion when it found inadequate the bases for Job’s
proposed testimony regarding the cost allocation formula. It is clear the trial court
excluded Job’s testimony regarding the proposed cost allocation formula because the trial
court did not believe that Job had an adequate basis for giving an opinion regarding the
41
application of the cost allocation formula given the reasons provided during the Evidence
Code section 402 hearing. Job provided no reasons or basis for his usage calculations by
vehicle class, or his estimates regarding the velocity of travel pertinent to the different
vehicle classes as to this low-water crossing. He presented no trip study or other
information from which to glean his calculations were anything but speculative. He
further acknowledged there were other causes of damage to the low-water crossing but
reiterated his damages calculation was based on proportion of use alone. We can find no
basis for concluding the trial court abused its discretion by excluding Job’s testimony
regarding the cost allocation formula. (Sargon, supra, 55 Cal.4th at p. 772 [the trial court
“conducts a ‘circumscribed inquiry’ to ‘determine whether, as a matter of logic, the
studies and other information cited by experts adequately support the conclusion that the
expert’s general theory or technique is valid’ ”].)
B
The Trial Court Did Not Abuse Its Discretion
By Excluding Testimony Regarding Excess Sediment
The Department sought to exclude Job’s anticipated testimony regarding excess
sediment in the watershed. The Department argued Job “ ‘continually states that excess
sediment in the watershed due to [off-highway vehicle use] is partially responsible for the
damage, but he did no sediment transport study, did not review any sediment transport
study, does not have information about [the Department’s] management and did not even
visually inspect the [off-highway vehicle] trails he claims are the cause.’ ”
During the Evidence Code section 402 hearing, Job testified it was his opinion that
“[t]he geomorphologic indicators at the site are that there’s an excessive sediment load.
Not necessarily excessive, but a very high sediment load that’s got quite a bit of
aggregation or gravel piled up on the upstream side of the low-water crossing.” Job said
he did not “go out and do any trail surveys or anything like that.” He explained he also
did not need to review sediment transport studies to reach his conclusion; his review of
42
Google Earth footage and his walk “about 250 feet up and down the channel” led to the
conclusion that “there’s too much sediment in that stream.” When asked whether he
attributed all of the sediment to the recreation area, Job said “not at all” but added, “on
the other hand, nobody else has a cleanup and abatement order either.” He
acknowledged, however, he knew that the “watershed also contains the tailing from the
Hetch Hetchy mine.” The trial court excluded Job’s testimony regarding the excess
sediment load at the low-water crossing because it did not believe Job had “a proper basis
to give that opinion here.” The Ranch challenges the trial court’s ruling.
As with the cost allocation formula, the Ranch merely relies on Job’s
qualifications in terms of his education, training, knowledge, skill, and experience but
fails to acknowledge or provide any argument as to how or why the trial court abused its
discretion or did not understand the scope of its discretion when it found inadequate the
bases for Job’s proposed testimony regarding the excess sediment in the watershed. It is
clear the trial court excluded Job’s testimony regarding excess sediment in the watershed
because the trial court did not believe that Job had an adequate basis for the opinion after
hearing the reasons he articulated in formulating his opinion during the Evidence Code
section 402 hearing. We find no abuse of discretion in that regard.
Job’s anticipated testimony regarding the Department’s role in causing excess
sediment in the watershed was speculative; he presented no reasons to support any
opinion as to causation or the sources of excess sediment in the watershed. He merely
reviewed Google Earth footage and once made a visual observation of the stream. He did
not research, analyze, or inspect the causes of the sediment deposits, nor did he inspect
and analyze any sediment contributions from the off-highway vehicle trails. Any
testimony as to the Department’s role in causing sediment deposits was thus unsupported
by the material upon which Job sought to rely, and the trial court did not abuse its
discretion in excluding such testimony.
43
VII
The Trial Court Did Not Abuse Its Discretion
In Permitting Testimony Regarding Explosive Testing
The Ranch argues the trial court, “with no explanation, reversed its own ruling on
a motion in limine and permitted the [Department] to argue to the jury that SRI
[International], a third party, had conducted explosive testing in the surrounding area,
even though there was no evidence of any causal connection or demonstrable impact on
habitat or Ranch operations.” Not so. Not only did the trial court provide an explanation
for its ruling, but we also find no basis for concluding it abused its discretion in that
regard.
The Ranch filed a motion in limine to exclude reference, argument, evidence,
exhibits, maps, drawings, or comments showing or referencing the Lawrence Livermore
National Laboratory, Site 300 (laboratory site). The recreation area is located between
the laboratory site and the Ranch. The Ranch explained the laboratory site is “an
experimental site” and it anticipated the Department was intending to argue that
explosions at the laboratory site showed the noise from the Department’s activities did
not have any effect on the Ranch’s property. The trial court agreed with the Ranch.
The trial court explained it believed there was no evidence the Ranch was
impacted by the laboratory site and any testimony or evidence regarding the laboratory
site was more prejudicial than probative because it “would necessitate mini trials in a
trial, confuse issues, and confuse the jury.” After hearing further argument, the trial court
granted the motion “in its entirety” but cautioned the Department to “[b]e vigilant in case
a door happens to be opened.”
During trial, the Ranch’s expert, John Vollmar, testified there were concerns in
marketing a conservation easement on a portion of the Ranch’s property that borders the
recreation area because incompatible land uses within 0.7 to 1.3 miles from wildlife
habitat impact the ability to market and sell the easement. Vollmar acknowledged he was
44
not familiar with SRI International, except for knowing “they own some property in the
area” that might be located to the east of the Ranch. Vollmar did not take SRI
International into account in performing his analysis and testified that, in his opinion, but
for the neighboring recreation area, he would be able to market, sell, and complete a
mitigation conservation easement on a 1,000 foot 100-acre area of the Ranch’s bordering
property.
Fraser Shilling, a retained ecological expert for the Ranch, testified regarding
specific species’ sensitivity to noise and ground vibrations and how such species react to
it. He said loud noises may “reduce the size of the population” of certain species
“because they’re too sensitive to the type of disturbance, in this case noise” or noise
might impact reproductive success. He further testified ground vibrations “can harm”
burrowing animals by confusing their natural signals as to when to emerge from the
ground.
Shilling performed a sound survey and analyzed the sound impacts generated by
the recreation area at different distances from the Ranch; he focused on the sound impacts
of motorcycles. He explained the “maximum noise [measurement] is the one that would
disturb . . . certain wildlife” and thus “the maximum sound is the biologically most
important sound, not the average.” Shilling created a map that identified where 45 and
greater decibels and 55 and greater decibels, respectively, would reach the Ranch. He
explained the map was based on “the state park threshold for motorcycles in State
Vehicle Recreation Areas if they were operating near the fence line or at the fence line,
the boundary fence.” The 45 and 55 decibel levels represented levels at which wildlife
would be disturbed. Shilling then testified, in his opinion, a motorcycle in the recreation
area is estimated to be a 120-decibel sound source when it climbs a hill and, at the
Ranch’s property line, would approximately “be the equivalent of [hearing] a freight
train” go by.
45
Following Vollmar’s and Shilling’s testimony, the Department filed an offer of
proof regarding the existence of controlled explosions conducted at the laboratory site
and on SRI International’s property. The Department argued the Ranch’s “experts
testified to the impacts of surrounding land uses on [the] Ranch’s property. The
testimony, [taken] together, asserts that, if not for the existence of [the recreation area],
these impacts would not exist.” The Department explained Vollmar and Shilling both
“started from the assumption that [off-highway vehicle] use was the most harmful land
use in the area,” without accounting for “[t]he existence and activities of [the laboratory
site] and SRI International—both neighboring facilities to [the] Ranch[’s] Lots A, B, and
C.” The Department argued the Ranch thus “open[ed] the door for [the Department] to
challenge the limited scope upon which the experts’ opinions were based.”
The Department requested to introduce lay witness testimony to rebut the
foundational facts relied on by the Ranch’s experts as to noise and vibration. The
Department explained the evidence was necessary for the jury to evaluate the Ranch’s
nuisance cause of action because surrounding land uses are relevant to d etermining if a
normal person would be substantially annoyed by noise—an element of nuisance.
In its written offer of proof, the Department stated Tara DeSilva, a Department
employee, could testify regarding her observations about explosions at the laboratory site
and the SRI International property, and “may also testify to her own reactions to noise.”
The Department further argued: “Robert Borunda can testify that SRI International has a
remote testing facility directly adjacent to [the] Ranch’s Lot C, at issue in this case.
According to SRI [International’s] own website, SRI [International] operates one of the
largest explosively driven shock tube testing facilities in the United States, using up to
100 pounds of explosives at a time. Its clients include the Department of Defense and
NASA. [¶] [The laboratory site] is a non-nuclear explosives test facility. It fabricates
explosives and conducts outdoor experiments. [¶] Explosions are loud enough at SRI
International that SRI [International] notifies the county and the fire department
46
whenever it has an explosion planned for 25 pounds or higher. [Citations.] Explosions
are loud enough that, in the past, [the laboratory site] has heard an explosion and called
SRI International to do a welfare check. [Citation.] Mr. Borunda of SRI International—
SRI International’s [person most knowledgeable]—can testify that he has received
reports that explosions have been felt as far as downtown Tracy.”
The Ranch argued the Department’s offer of proof did not “change the fact that
there are no sound measurements taken by any expert as to SRI [International]” and thus
there was no admissible evidence regarding the explosions. The Ranch further argued it
was the Department and not the Ranch who opened the door when the Department asked
whether the experts considered SRI International.
The trial court noted, however, the Ranch questioned Shilling regarding wildlife’s
sensitivity to vibration and noise. The trial court asked the Department for its offer of
proof, explaining the Ranch argues “the rulings from the motions in limine on this topic
haven’t changed at all.” The Department responded: “[T]he fact that there are no sound
measurements done by [the] Ranch’s experts is almost precisely the point because they
admitted that these land uses within this range would be relevant to their conclusions”;
“lay witness testimony about the experience of sound and vibration is relevant”; and
“[the] Ranch -- Mark Connolly has already testified to his experiences with noise and
vibration as a layperson, as well as his observations of how his cows respond to noise and
vibration, and [the Department] ha[d] a witness who has experienced noise and vibration
from SRI International or [the laboratory site].”
The trial court again pressed the Department as to who would present the
testimony and what the scope of the anticipated testimony would be. The Department
responded DeSilva lives at the recreation area, has felt the vibrations, and has had picture
frames falling “off her wall from these explosions.” The Department also said Borunda
could explain “that explosions have been felt as far away as Tracy.” After noting the
47
Department would likely draw hearsay objections with regard to such testimony, the trial
court granted the Department’s request.
The trial court explained there was “great detail in [the Department’s] offer of
proof” and the trial court believed “the door ha[d] been opened, and it’s limited.” The
trial court said the testimony had to be tailored and was “not a free-for-all.” In the
absence of testimony regarding occurrences on the neighboring properties, the trial court
believed “the jury w[ould] have an improper perception,” “especially in light of th[e]
conservation easement” testimony because the Ranch was “claiming a loss as to
marketability of [a] conservation easement.” The trial court said it “seem[ed] like [the
testimony] would absolutely impact a conservation easement” and the jury had a right to
hear the testimony for the limited purpose of determining whether the Ranch’s expert
gave a proper opinion. The trial court clarified the Ranch could still object to any
hearsay statements made during the testimony. The Ranch raised a concern that it might
have to call additional witnesses in response to the testimony; the trial court deferred a
discussion and decision in that regard.
The trial court later gave the jury the following limiting instruction: “The Court
allowed testimony concerning explosive testing at SRI International. This evidence was
admitted for the limited purpose of determining the credibility of the evidence and
plaintiff’s experts Shilling and Vollmar. The evidence should be considered only for this
purpose and no other.”
The Ranch asserts the trial court “committed prejudicial error in allowing
reference to explosive testing.” (Capitalization & boldface omitted.) The Ranch first
details the proceedings that led to the trial court granting its motion in limine to exclude
evidence regarding explosive testing, stating “the court’s ruling was impeccably correct.”
The Ranch next generally discusses the Department’s offer of proof and the trial court
proceeding in that regard, and then details some of the testimony Borunda and DeSilva
presented to the jury thereafter. The Ranch argues “the court’s evidence admission
48
order” was based on “pure speculation in defiance of the evidence” and thus constituted
“error and abuse of discretion.” The Ranch’s argument in support of this assertion is
somewhat difficult to discern.
To the extent the Ranch attempts to argue the trial court’s evidentiary ruling
allowing the limited testimony regarding explosions on other properties constituted
prejudicial error based on the Department’s offer of proof, we are not persuaded. The
Ranch briefly asserts the Department’s “suggestion that the Ranch had somehow ‘opened
the door’ to its admission is fanciful,” and DeSilva’s and Borunda’s testimony was
“irrelevant to any issue in the case” and “irrelevant to determining the credibility of any
of the Ranch’s evidence.”
The Ranch, at a minimum, put at issue whether the noise from the recreation area
had a substantial impact on the Ranch in terms of its ability to obtain a conservation
easement. Vollmar testified the recreation area was an incompatible land use within 0.7
to 1.3 miles of wildlife habitat at the Ranch and, but for the recreation area, he would be
able to market, sell, and complete a mitigation conservation easement. Shilling supported
Vollmar’s testimony by testifying the noise created by motorcycles in the recreation area
would disturb wildlife. The Ranch’s experts were thus portraying to the jury that the
noise from the recreation area was the reason the Ranch could not obtain the mitigation
conservation easement it was trying to obtain. Vollmar, however, testified he was not
familiar with SRI International and did not take activities on that parcel into account in
formulating his opinion. This opened the door as to the experts’ credibility in
determining the recreation area was the “but for” cause for the Ranch not being able to
obtain the conservation easement.
The Department made an offer of proof that it had two witnesses who could testify
as to explosive testing on parcels adjacent to the Ranch’s property. DeSilva, who lives
within the recreation area, could testify as to her observations of explosions at the
laboratory site and the SRI International property. And Borunda could testify to the
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nature of the explosions at SRI International. The trial court said the testimony had to be
“specifically tailored” and was “not a free-for-all.”
We find no basis for concluding the trial court abused its discretion in finding the
testimony regarding DeSilva’s and Borunda’s personal observations and knowled ge were
relevant to assessing the credibility of the Ranch’s experts’ opinions. Testimony as to
personal observations and knowledge of a given occurrence is not speculative, as the
Ranch asserts. (People v. Rodriguez (2014) 58 Cal.4th 587, 631 [testimony is not
speculative and court did not abuse its discretion in permitting testimony based on the
witnesses’ personal observations].) Nor must a witness be designated as an expert to
testify to such matters. (See People v. Murphy (2022) 80 Cal.App.5th 713, 733 [“Cases
allowing lay opinion testimony uniformly hold that a lay opinion based on a witness’s
personal observation, including observation about the speed of a vehicle, is admissible”].)
The Ranch repeatedly asserts neither DeSilva nor Borunda could testify, nor was
there any other evidence or testimony, that the explosive testing could be heard on the
Ranch’s property or had impacted animals on its property. The Ranch provides no
analysis or reasoning why the Department’s offer of proof required such a showing and
why the purported lack of such an offer of proof demonstrates the trial court abused its
discretion when it granted the Department’s motion. In our view, the argument goes to
the weight of the evidence and not its admissibility. The Ranch was free to make
evidentiary objections during the witnesses’ testimony (e.g., lack of foundation), free to
question the witnesses as to their personal experiences, and free to argue the pertinent
import of the witnesses’ testimony. The Ranch thus could have argued to the jury that
the witnesses had no personal experience with the explosions from the perspective of the
Ranch’s property, and their testimony thus presented no basis to undermine Vollmar’s
and Shilling’s opinions as to the recreational area’s sound effects on the Ranch.
To the extent the Ranch asserts the trial court’s evidentiary ruling allowing for
limited testimony regarding explosions on other properties constituted prejudicial error in
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light of the testimony actually presented by Borunda and DeSilva at trial, we do not
consider the argument. The testimony presented at trial is relevant only to the
determination of prejudice, if any, because the testimony was not before the trial court
when it granted the Department’s motion. Having concluded the Ranch has failed to
demonstrate the trial court abused its discretion, an analysis of prejudice is unnecessary.
In that regard, we also do not consider the Ranch’s quibble with the trial court’s
limiting instruction. First, the Ranch did not challenge the limiting instruction under a
separate heading, identifying it as an issue on appeal. (Pizarro v. Reynoso, supra,
10 Cal.App.5th at p. 179.) Second, the limiting instruction does not provide any context
for determining whether the trial court abused its discretion in granting the Department’s
motion based on the offer of proof.
For the foregoing reasons we conclude the Ranch has failed to show the trial court
abused its discretion when it granted the Department’s motion to admit the limited
evidence as to the explosions on properties in the vicinity of the Ranch.
VIII
We Decline The Request To Reverse And Remand For A New Jury Trial
The Ranch argues, even if its other claims of error fail, we should reverse and
remand for a new jury trial limited to the breach of contract cause of action and a court
trial on the remaining causes of action. The Ranch summarily asserts, because “[n]one of
the other five forms of verdict[, except for the breach of contract cause of action] called
upon the jury to perform any task within its province as a legal claim factfinder, e.g.,
determine a claim for damages,” it was improper to have the jury render verdicts on the
other causes of action.
When the trial court, however, considered the sequence of the trial, the Ranch
expressly stated and agreed with the trial court that the jury would decide all the causes of
action, except for the declaratory relief “cause of action,” because they were legal claims.
The Ranch indeed specifically argued the jury would conclusively decide the factual
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issues as to whether a nuisance existed. The Ranch fails to explain the change in its
position and theory on appeal. It further fails to cite authority and explain why all except
the breach of contract cause of action should be decided by the trial court. The Ranch
merely cites general propositions of law that equitable claims are to be tried by the trial
court. While that may be true, the relief requested does not determine the nature of the
claim; we look at the gist of the action. (C & K Engineering Contractors v. Amber Steel
Co. (1978) 23 Cal.3d 1, 9-10.)
Based on the argument presented, we find no basis for granting the Ranch the
relief it seeks. The Ranch got what it wanted—the jury decided the breach of contract,
nuisance, trespass, and breach of the implied covenant of good faith and fair dealing
causes of action. It cannot now complain without any pertinent legal analysis that the
trial court erred in submitting those causes of action to the jury.
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DISPOSITION
The judgment is affirmed. The Department shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
/s/
ROBIE, Acting P. J.
We concur:
/s/
DUARTE, J.
/s/
BOULWARE EURIE, J.
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