Quinn v. Bay Harbor Investment Properties CA2/1 ( 2023 )

Filed 8/1/23 Quinn v. Bay Harbor Investment Properties CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LAWRENCE D. QUINN, et al., B312947
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC666284)
v.
BAY HARBOR INVESTMENT
PROPERTIES, LLC, et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven J. Kleifield, Judge. Vacated and
remanded with directions.
DiJulio Law Group, R. David DiJulio, and Tiffany Hyatt
Krog for Plaintiffs and Appellants.
Law Offices of Craig D. Weinstein and Craig Weinstein for
Defendants and Respondents Kenneth Lorenzo and Kevin
Lorenzo.
__________________________________
Appellants Lawrence D. Quinn and Olivia Saunders
(Quinn/Saunders) each own real property on Thelma Avenue in
Los Angeles. Respondents Kenneth Lorenzo and Kevin Lorenzo
(the Lorenzos) own real property on Eastern Avenue (the Eastern
Property), which they purchased from respondent Bay Harbor
Investment Properties (Bay Harbor). Quinn/Saunders’ properties
abut the Eastern Property. In 2017, Quinn/Saunders sued Bay
Harbor and the Lorenzos, claiming that an allegedly faulty
retaining wall located on the Eastern Property had caused
cracking in Quinn/Saunders’ properties.1 After a seven-day
bench trial, the trial court found in favor of Bay Harbor and the
Lorenzos and against Quinn/Saunders.
On appeal, Quinn/Saunders contend that, because their
properties were being continuously damaged by the ongoing
refusal of Bay Harbor and the Lorenzos to repair the retaining
wall, the trial court erred (1) in failing to apply section 366 of the
Restatement Second of Torts (Section 366); and (2) in finding Bay
Harbor and the Lorenzos could not be liable for nuisance or
negligence solely because they were not involved with the
construction of the retaining wall. We hold that the trial court
did not err in not applying Section 366 but did err in determining
that Bay Harbor and the Lorenzos could not be liable for
nuisance and negligence. We therefore vacate the judgment and
remand for further proceedings.
1 Marisela Halachian—apparently the sole member of Bay
Harbor—was also named as a defendant but, in a nonpublished
August 2020 opinion, we affirmed the trial court’s grant of
summary judgment in her favor. (Quinn v. Halachian (Aug. 28,
2020, B296272).) Bay Harbor has not filed an appellate brief.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Lawsuit
In June 2017, Quinn/Saunders filed a complaint. They
declined to include that complaint in the appellate record, but we
can discern the gist of the litigation from the parties’ trial briefs
(which are in the appellate record).
Quinn/Saunders contended in their trial brief that they
owned real properties located on Thelma Avenue, and that the
Eastern Property was owned by Bay Harbor from July 2016 to
July 2017, and by the Lorenzos thereafter. The western end of
Quinn/Saunders’ properties abut the eastern end of the Eastern
Property. Quinn/Saunders claimed that, in “late 2016,” a
retaining wall on the Eastern Property began to crack because
Bay Harbor failed to maintain it. Appellants alleged Bay Harbor
also “destroyed the top portion” of the retaining wall.
Quinn/Saunders contended the failure to maintain the wall and
the removal of the top portion of the wall “caused a subsidence of
the earth and soil on” Quinn/Saunders’ properties, “as well as the
cracking and settlement of the improvements thereon.”
Appellants stated they had alleged causes of action for “(1)
Damages and Permanent Injunction (Removal of Lateral
Support), (2) Private Nuisance and (3) Negligence.” For the
second and third causes of action, Quinn/Saunders alleged they
were suffering “ongoing damages” from the respondents’ failure
to repair the retaining wall.
Bay Harbor’s trial brief claimed that the retaining wall—
located in the backyard of the Eastern Property—was in
existence when Bay Harbor purchased the Eastern Property.
Bay Harbor disagreed with Quinn/Saunders’ contention that the
wall needed to be replaced, citing a Los Angeles city inspector
3
who had inspected the wall and “concluded that the wall was in
good condition and therefore did not need to be replaced, or
repaired.” Bay Harbor also disputed appellants’ claim that its
removal of cinder blocks from the top of the retaining wall caused
any soil subsidence, and further insisted it had only removed
cinder blocks from the portion of the wall abutting Saunders’s
property—the blocks on top of the wall abutting Quinn’s property
had fallen off before Bay Harbor purchased the Eastern Property.
Bay Harbor further contended the city of Los Angeles had
ordered it to remove the cinder blocks. Bay Harbor believed the
primary cause of the damage to Quinn/Saunders’ properties was
the failure to properly grade and compact soil that was added to
their properties, which occurred long before Bay Harbor
purchased the Eastern Property. Bay Harbor also claimed that
any “tilting” of the retaining wall occurred before it purchased
the Eastern Property in July 2016, and was not caused by Bay
Harbor.
According to the Lorenzos’ trial brief, they purchased the
Eastern Property from Bay Harbor in July 2017. The Lorenzos
disclaimed responsibility for any damages resulting from the
failing wall because they had done nothing to cause the wall to
fail.
B. Trial and Judgment
A seven-day court trial began on December 3, 2019,
continued through December 6, 2019, resumed one year later on
December 14, 2020, and concluded on December 18, 2020.
Because no court reporter was present at any portion of the trial,
there is no transcript of the trial proceedings.
On December 28, 2020, the court issued a minute order
setting forth its tentative decision. The court found
4
Quinn/Saunders had “pursued two theories regarding the wall.
First, they claimed that the original cement retaining wall was in
disrepair and should have been replaced. Second, they claimed
that Defendant Bay Harbor removed the cinder blocks from on
top of the wall, thereby lessening the support and causing
movement of the structures above, leading to the cracking.”
As to the first theory, the court found the wall did not need
to be replaced. It cited to the testimony of the “qualified,
credible, and unbiased” Los Angeles city inspector, who “did an
extensive examination and consulted with other City inspectors”
about the wall and concluded that although the wall was
“ ‘cracked and clearly aging, . . . it was largely the same as when
it was originally permitted over 70 years ago’ ” and the city
“ ‘could not determine that it must be replaced or rebuilt.’ ”
As to the second theory, the court cited the inspector’s
conclusion that the “ ‘top courses of block on top of the original
wall were clearly added later, had failed and were removed as
they should have been.’ ” The court added that it did not believe
that Bay Harbor had removed any cinder blocks abutting Quinn’s
property. As to the cinder blocks abutting Saunders’s property,
the court found that those blocks were “loose and not shoring up
anything.” The court concluded that appellants’ theory that
removing the cinder blocks had caused the damage was “factually
unsupported.”
The court noted that Quinn/Saunders’ expert witness had
attributed the cracking on their properties to “ ‘long-term
rotation’ ” of the retaining wall and the removal of the cinder
blocks. The court reiterated there was no evidence to support the
cinder-block-removal theory. As to the long-term rotation theory,
the court noted Bay Harbor and the Lorenzos were not
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“responsible for ‘long-term rotation’ of the wall. These properties
were developed in the late 40’s and early 50’s. Bay Harbor owned
the Eastern property for one year. There is no evidence that
anything they did or did not do contributed to ‘long-term rotation’
of the wall and damage to Plaintiffs’ property.” The court
concluded that “[t]he factual predicates to Plaintiffs’ theories
were not proved.”
The court continued: “Much expert testimony was
presented concerning the causes of the cracking on Plaintiffs’
properties. Plaintiffs’ theory was presented above. Defendant’s
[sic] expert testimony was to the effect that the cracking was due
to settling of the structures over the course of many years due to
the inadequate grading and compression of the soil in the
construction process. Due to the failure of proof on the facts it is
unnecessary to reach the issues regarding causation. The Court
did, however, find Mr. Farrell’s testimony and report to be
convincing.”2
The court noted that Bay Harbor had owned the Eastern
Property from July 2016 to July 2017, when it sold the property
to the Lorenzos, and “[t]o the extent anything was done or not
done before either Defendant took possession of the property,
Defendants bear no legal responsibility for it.” The court
analogized to Lee v. Takao Building Development Co. (1985) 175
Cal.App.3d 565 (Lee), quoting its holding that “ ‘a landowner who
took title and possession after the occurrence of the act causing
the removal of the lateral support, and uncontrovertedly did not
2 Keith Farrell was an expert witness who testified for
defendants.
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participate in the act that resulted in the removal of the support,
is not responsible in damages.’ ”
The minute order ended by saying that “[p]ursuant to CRC
3.1590(c)(4), this tentative decision will become the statement of
decision unless, within 10 days after service of this tentative
decision, a party specifies those principal controverted issues as
to which the party is requesting a statement of decision or makes
proposals not included in the tentative decision.”3 The minute
order was served on appellants on December 28, 2020.
On February 8, 2021, the court issued a judgment in favor
of Bay Harbor and the Lorenzos and against Quinn/Saunders, in
which it noted no party had timely specified controverted issues
as to which the party was requesting a statement of decision or
made proposals not included in the tentative decision, and
therefore the tentative decision had become the statement of
decision.4 Appellants timely appealed.
3 (Cal. Rules of Court, rule 3.1590(c)(4) [“The court in its
tentative decision may: [¶] . . . [¶] (4) Direct that the tentative
decision will become the statement of decision unless, within 10
days after announcement or service of the tentative decision, a
party specifies those principal controverted issues as to which the
party is requesting a statement of decision or makes proposals
not included in the tentative decision”].)
4 On January 14, 2021 (i.e., more than ten days after
service of the tentative decision), Quinn/Saunders filed an
objection to the tentative decision, but it appears the trial court
disregarded this filing. Appellants have not contended the court
erred in doing so.
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DISCUSSION
“When a statement of decision does not resolve a
controverted issue, or if the statement is ambiguous and the
record shows that the omission or ambiguity was brought to the
attention of the trial court . . . prior to entry of judgment . . . , it
shall not be inferred on appeal . . . that the trial court decided in
favor of the prevailing party as to those facts or on that issue.”
(Code Civ. Proc., § 634.) “The clear implication of this provision,
of course, is that if a party does not bring such deficiencies to the
trial court’s attention, that party waives the right to claim on
appeal that the statement was deficient in these regards, and
hence the appellate court will imply findings to support the
judgment.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,
1133–1134; see also SFPP v. Burlington Northern & Santa Fe Ry.
Co. (2004) 121 Cal.App.4th 452, 462 [when statement of decision
issued, “a ‘party must state any objection to the statement in
order to avoid an implied finding on appeal in favor of the
prevailing party. . . . [I]f a party does not bring such deficiencies
to the trial court’s attention, that party waives the right to claim
on appeal that the statement was deficient . . . and hence the
appellate court will imply findings to support the judgment’ ”].)
Here, Quinn/Saunders failed to raise a timely objection to
the court’s statement of decision. Thus, where the statement of
decision is silent or ambiguous, we imply findings to support the
judgment against appellants.
A. Section 366 of the Restatement Second of Torts
Quinn/Saunders contend the court erred by not applying
“Restatement Second of Torts section 366 because Appellants
sued for damages to their respective real properties caused by a
structure which was unreasonably dangerous to Appellants and
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which existed on the Eastern Property during the time of its
possession by the Respondents, i.e., the deteriorating Retaining
Wall” as opposed to a single act that had caused the loss of lateral
support. Section 366 provides: “ ‘One who takes possession of
land upon which there is an existing structure or other artificial
condition unreasonably dangerous to persons or property outside
of the land is subject to liability for physical harm caused to them
by the condition after, but only after, [para. ] (a) the possessor
knows or should know of the condition, and [para. ] (b) he knows
or should know that it exists without the consent of those affected
by it, and [para. ] (c) he has failed, after a reasonable opportunity,
to make it safe or otherwise to protect such persons against it.’ ”
(Lee, supra, 175 Cal.App.3d at p. 568, fn. 2.) By its terms, Section
366 applies only when a party takes possession of land upon
which there is a structure or condition that is “unreasonably
dangerous.”
Section 366 is inapplicable because the trial court implicitly
rejected the theory that the retaining wall was unreasonably
dangerous when it found that it did not need to be replaced. The
court credited the testimony of the “qualified, credible, and
unbiased” city inspector, who had concluded the retaining wall
was “ ‘largely the same as when it was originally permitted’ ” and
did not need to be replaced or rebuilt. While the trial court did
not explicitly find that the wall was not unreasonably dangerous,
such a finding is consistent with the court’s conclusion that the
wall did not need to be replaced and, under the doctrine of
implied findings, we imply such a finding was made. If the
retaining wall was not unreasonably dangerous, Section 366 is
inapplicable.
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B. Nuisance and Negligence
A plaintiff must prove three elements to establish a cause
of action for private nuisance: “First, the plaintiff must prove an
interference with its use and enjoyment of its property. Second,
the invasion of the plaintiff’s interest in the use and enjoyment of
the land must be substantial, i.e., it caused the plaintiff to suffer
substantial actual damage. Third, the interference with the
protected interest must not only be substantial, it must also be
unreasonable, 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.” (Today’s IV, Inc. v. Los Angeles
County Metropolitan Transportation Authority (2022) 83
Cal.App.5th 1137, 1176.) “The essential elements of a cause of
action for negligence are: (1) the defendant’s legal duty of care
toward the plaintiff; (2) the defendant’s breach of duty—the
negligent act or omission; (3) injury to the plaintiff as a result of
the breach—proximate or legal cause; and (4) damage to the
plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)
While, as discussed above, the trial court did not find the
retaining wall was unreasonably dangerous, the court expressly
refrained from deciding whether the alleged long-term rotation of
the wall was causing cracking on Quinn/Saunders’ properties,
finding it “unnecessary to reach the issues regarding causation”
because neither Bar Harbor nor the Lorenzos were involved in
the construction of the retaining wall.5 Quinn/Saunders contend
the court erred in doing so. We agree.
5 Presumably for the same reason, the court also made no
findings on whether the cracks sustained by Quinn/Saunders’
properties constituted “substantial actual damage” or whether
(Fn. is continued on the next page.)
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“Every successive owner of property who neglects to abate a
continuing nuisance upon, or in the use of, such property, created
by a former owner, is liable therefor in the same manner as the
one who first created it.” (Civ. Code, § 3483; see also Phillips v.
Pasadena (1945) 27 Cal.2d 104, 107–108 [nuisance that “may be
discontinued at any time it is considered continuing in character”
and “[e]very repetition of a continuing nuisance is a separate
wrong for which the person injured may bring successive actions
for damages until the nuisance is abated”]; Sager v. O’Connell
(1944) 67 Cal.App.2d 27, 33 [“[t]he fact that a prior owner was
negligent in permitting the bulkhead to decay will not excuse a
subsequent owner from a continuing negligence”]; cf. Turlock v.
Bristow (1930) 103 Cal.App. 750, 754–755 [that appellants did
not create continuing public nuisance did not absolve them of
responsibility to abate it].)6
Bay Harbor’s and the Lorenzos’ refusal to repair the wall was
unreasonable.
6 Lee, which the trial court cited, is inapposite.
There, the
plaintiffs and defendant owned adjoining pieces of real property.
(Lee, supra, 175 Cal.App.3d at p. 567.) Before the defendant
purchased its property, a building sitting thereon had been
demolished by order of the city. (Id. at pp. 567–568.) The
plaintiffs sued, alleging “the demolition of the building [on the
defendant’s property] removed the lateral support of the soil
supporting the foundations of their building.” (Id. at p. 568.) Lee
affirmed a grant of summary judgment for the defendant, holding
that: (1) Section 366 was inapplicable because the plaintiffs
failed to establish that “a structure or other artificial condition
which was unreasonably dangerous to appellants existed on
[defendant] Takao’s property during the time of its possession of
the property”; and (2) while the plaintiffs were “suing for damage
(Fn. is continued on the next page.)
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Were the trial court to find that Bay Harbor’s and the
Lorenzo’s failure to repair the retaining wall interfered with
Quinn/Saunders’ enjoyment of their properties, that the cracks
sustained in the properties constituted substantial actual
damage, and that Bay Harbor and the Lorenzo’s failure to repair
the wall was unreasonable, then respondents’ lack of involvement
with the original construction of the wall would not absolve them
of liability for nuisance. Similarly, were the trial court to find
that Bay Harbor’s and the Lorenzos’ failure to repair the
retaining wall breached a duty to Quinn/Saunders and caused
the cracking on their properties, respondents would be liable for
negligence. We therefore conclude the trial court erred in finding
that, as a matter of law, neither Bay Harbor nor the Lorenzos
could be liable for nuisance or negligence solely because neither
respondent was involved in the initial construction of the
retaining wall.
DISPOSITION
The judgment is vacated. On remand, the trial court is to
determine whether Quinn/Saunders have proven the elements
necessary to recover under their private nuisance and negligence
caused by the negligent removal of the foundation wall of the
demolished building, which allegedly caused appellants’ building
to lose its lateral support,” the defendant did not remove the
foundation. (Id. at pp. 568–569.) Here, by contrast,
Quinn/Saunders were not seeking to hold Bay Harbor and the
Lorenzos liable for the improper construction of the retaining
wall, but rather because they alleged respondents’ continued
failure to repair the wall was causing “ongoing damages” to their
properties.
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causes of action and issue a new judgment accordingly.
Appellants are awarded their costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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