Grasshopper House v. Bosworth CA2/4 ( 2015 )

Filed 12/15/15 Grasshopper House v. Bosworth CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
GRASSHOPPER HOUSE, B254507
B256365
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. SC116537)
BRIAN BOSWORTH et al., ORDER MODIFYING OPINION
AND DENYING PETITIONS FOR
Defendants and Respondents. REHEARING
[CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on November 20, 2015, be modified as
follows:
1. The caption should include both appellate case numbers: B254507 and
B256365.
2. In the first section, under the heading “Introduction,” the last sentence should
be deleted and replaced with the following language:
We reverse on the issue of the property damage award, and vacate the related
awards of prejudgment interest, attorney’s fees and costs, but otherwise affirm.
3. In the last paragraph of the opinion, under the heading “Disposition,”
the following sentence should be deleted: We also vacate the award of prejudgment
interest, to be recalculated following the resolution of the issue of property damages.
In its place, the following language should be inserted:
We also vacate the awards of prejudgment interest and attorney’s fees and costs, to
be recalculated following the resolution of the issue of property damages.
The court has received and considered Respondent’s Petition for Modification or
Rehearing and Appellant’s Petition for Rehearing. These Petitions are DENIED.
________________________________________________________________________
EPSTEIN, P.J. WILLHITE, J. COLLINS, J.
2
Filed 11/20/15 Grasshopper House v. Bosworth CA2/4 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
GRASSHOPPER HOUSE, B254507
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.SC116537)
v.
BRIAN BOSWORTH et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Allan J.
Goodman, Judge. Reversed in part, remanded in part, and affirmed in part with
instructions.
Horvitz & Levy, Peder K. Batalden and Steven S. Fleischman; Law Office of
Thomas A. Nitti, Thomas A. Nitti for Plaintiff and Appellant.
Angelo & White, Alyssa Milman White for Defendants and Respondents.
INTRODUCTION
Plaintiff Grasshopper House LLC (Grasshopper) appeals from a judgment against
it following a jury trial. Grasshopper, which rented a home in Malibu from defendants
Brian and Katherine Bosworth1 for use as a drug and alcohol rehabilitation facility, sued
the Bosworths over problems related to the property’s septic system. The jury returned a
verdict in favor of the Bosworths and awarded $500,000 in property damage to Brian
based on his cross-complaint. Grasshopper raises the following issues on appeal: (1) the
trial court erroneously excluded its septic system expert; (2) several references to
mediation made in front of the jury by counsel for the Bosworths constitute grounds for a
new trial; (3) the jury lacked sufficient evidence to award $500,000 in property damages
to Brian; and (4) the trial court erred in its calculation of prejudgment interest. We
reverse on the issue of the property damage award, and vacate the related award of
prejudgment interest, but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
A. The Lease
Grasshopper, a licensed alcohol and drug rehabilitation facility, leases or owns
several residential properties in Malibu for use as rehabilitation facilities. It entered into
a lease for the Bosworths’ home on December 1, 2006. The residence, a six bedroom,
eight bathroom home, was built by the Bosworths in 2000. Grasshopper intended to use
the home as an additional alcohol and drug rehabilitation facility housing approximately
six clients.
The lease term ran for three years, through December 31, 2009. Grasshopper
agreed to pay rent for 2007 in advance, at a rate of $35,000 per month, along with a
$50,000 security deposit. Monthly rent increased to $37,500 in 2008 and $40,000 in
2009.
1
We refer to defendants individually by their first names to avoid confusion and
mean no disrespect.
2
Sewage disposal on the property was managed through a septic system. The lease
included a provision requiring Grasshopper to bear the cost of maintaining and repairing
the system and to provide a status report on the system from an “approved septic
company” twice a year.
B. Initial Litigation and Settlement Agreement
In late 2007, Brian discovered that Grasshopper had installed a “gray water
system” underground on the property. Brian claimed this system was illegally installed
and, together with Grasshopper’s extreme rate of water usage at the residence, caused
sewage to overflow from the septic pits and onto the public streets. Grasshopper denied
that the water used by the clients and staff at the property was as high as the rate reflected
in the water bills and claimed that the grey water system was an attempt to assist the
already ailing septic system. As a result of the sewage overflow, the City of Malibu
issued a citation and a cease and desist notice barring occupancy of the residence until the
septic issue was addressed.
Shortly thereafter, the Bosworths served Grasshopper with a three-day notice to
quit and the parties filed lawsuits against each other related to the problems with the
septic system. Both lawsuits were resolved pursuant to a settlement agreement effective
January 2, 2008. Under the agreement, Grasshopper agreed to: (1) pay an increase in
rent for 2008 and 2009; (2) pay the legal fees incurred by the Bosworths from the
litigation as well as fees already incurred by two septic experts, up to a specified amount;
and (3) pay the first $100,000 toward the design and installation of a new septic system,
plus 50% of any additional cost up to $10,000. The Bosworths agreed to handle the
design and installation of the septic system and Grasshopper agreed to pay to continue
pumping the existing system regularly until it was installed. The parties further agreed to
dismiss the pending litigation and mutually release “all known past liabilities, claims, and
causes of action except obligations expressed in the residential lease which shall remain
in effect except as modified” in the settlement agreement.
3
C. Continued Dispute
Despite the settlement, the dispute between the parties continued. Grasshopper
claimed that it was pumping out the septic system several times per week, but that
sewage overflowed onto the property grounds and backed up into the house, rendering
some or all of the house unusable for Grasshopper’s clients.
Brian claimed that he spent the latter half of 2008 consulting with experts
regarding construction of a new septic system and searching for the leak in the water line
that Grasshopper insisted must be causing the high water usage rate. Brian then asked
Grasshopper for an initial payment toward the new system in February 2009, but
Grasshopper refused. Grasshopper vacated the premises on March 31, 2009.
Grasshopper claimed that the delay in moving forward with installation of a new septic
system, along with the anticipated repair that was estimated to take another four months
and cause a “total disruption of the property,” meant that it would not get any benefit
from a new septic system until nearly the end of its lease term. Grasshopper made no
further rental payments and the Bosworths did not return the security deposit.
In March 2009, before Grasshopper vacated the premises, Katherine and a
Grasshopper representative conducted a walk-through of the property. The Bosworths,
along with their contractor, prepared a list of repairs they contended were Grasshopper’s
responsibility and Katherine then conducted a second walk-through in April 2009, after
Grasshopper had vacated but while its workers remained on the premises. The
Bosworths claim that Grasshopper left the home with extensive damage and
modifications that were never approved under the lease; Grasshopper, for its part, asserts
that it made the necessary repairs and returned the property to the Bosworths in
“excellent” condition. This action followed.
D. Complaint and Cross-Complaint
Grasshopper filed its complaint against the Bosworths on April 2, 2012, alleging
causes of action for breach of the lease agreement, constructive eviction, and breach of
contract based on a failure to return the security deposit. In its first cause of action for
breach of contract, Grasshopper alleged that the Bosworths breached the lease and
4
Settlement Agreement by “provid[ing] a septic system on the Property that was
defective;” and then failing and refusing to repair the septic system “despite the repeated
demands of Plaintiff that Defendants do so and despite Defendants’ clear obligation to do
so.” Grasshopper alleged that it surrendered the property to the Bosworths on March 31,
2009 as a result of these breaches and that it suffered $54,440 in damages between
January 2008 and March 2009 “related to the defective septic system and plumbing”
(including the cost of septic pumping and visits by leak detection companies) and
$150,000 during the same time period for loss of use of several of the bedrooms on the
property. In its second cause of action for constructive eviction, Grasshopper alleged that
the Bosworths’ wrongful conduct related to the septic system “rendered the Property, or a
material and substantial portion thereof, unfit for its intended purposes and deprived
Plaintiff of the beneficial use thereof for a material and substantial period of time.” In its
third cause of action, Grasshopper alleged that the Bosworths breached the lease by
failing to return its $50,000 security deposit or furnishing an itemized statement
indicating the basis for disposition of that amount. Grasshopper further alleged that the
claims in its complaint “were not extinguished by the Settlement Agreement” because
they “(1) arose subsequent to the effective date of the Settlement Agreement; and/or (2)
are based on obligations expressed in Lease which ‘remain in effect except as modified’
in the Settlement Agreement; and/or (3) are based on breaches of the Settlement
Agreement.”
Brian2 filed a cross-complaint against Grasshopper in September 2012, alleging
claims for breach of the settlement agreement and breach of the lease. Brian alleged that
“[i]mmediately, following execution of the Settlement, [he] initiated discussions with
several individuals in companies, including [Richard] Sherman, regarding the design and
construction of a new septic system,” but that “a study was needed to assess the
Property’s average daily water consumption.” Brian further alleged that the
“exceptionally high” rate of water usage by Grasshopper mandated “extensive repair and
2
The cross-complaint alleges that Katherine assigned her interest in the lawsuit to
Brian as part of their divorce settlement.
5
a specially designed septic system.” The cross-complaint details Brian’s alleged actions
between January 2008 and March 2009 toward the implementation of a new septic
system as well as measures taken to locate any leaks on the property due to
Grasshopper’s insistence that the high water consumption was due to a leak. Brian
contends that when he requested that Grasshopper submit payment toward a new system
in November 2008, Grasshopper refused and then “abandoned the Property” in March
2009, “leaving it in substantial disrepair.” Grasshopper failed to make any further rental
payments from April 2009 through the end of the lease term in December 2009. With
respect to damages, Brian alleged that the cost of repairs to “restore the Property to
marketable condition” totaled “over $407,587.50” and that “the damage caused to the
property by Grasshopper including [to] the septic system” reduced the sales price of the
property by $1 million.
E. Trial
Jury trial commenced on October 22, 2013. After a seven day trial, the jury
returned a verdict in favor of the Bosworths on Grasshopper’s complaint. On Brian’s
cross-complaint, it awarded damages totaling $604,150, including $500,000 in property
damage.
The court entered judgment on November 25, 2013 and denied Grasshopper’s
motions for new trial and for judgment notwithstanding the verdict on January 21, 2014.
Grasshopper timely appealed.
DISCUSSION
A. Exclusion of Grasshopper’s Expert
Grasshopper contends the trial court erred in granting the motion to exclude its
expert witness and that it was prejudiced by that exclusion. We disagree and affirm.
1. Relevant Background
As the case approached its scheduled trial date in October, 2013, the Bosworths
served a demand for exchange of expert witness information pursuant to section
2034.210. On August 26, 2013, the designated date of exchange, the Bosworths served
6
their designation pursuant to Code of Civil Procedure section 2034.260,3 naming
Lawrence Young as their expert expected to testify as to Grasshopper’s liability, the
damages suffered by the Bosworths, and, more specifically, regarding “the onsite water
system and septic system.” On the same date, Grasshopper provided a letter stating that
it “does not presently intend to offer any expert testimony.”
On September 16, 2013, Grasshopper served an “Expert Witness Designation”
designating Richard Sherman as an expert pursuant to section 2034.260. Grasshopper’s
designation stated that Sherman was expected to testify as to the Bosworths’ liability, the
damages suffered by Grasshopper, and, more specifically, regarding “the onsite water
system and septic system.”4
On September 24, 2013, the Bosworths filed a motion in limine to exclude expert
testimony by Sherman, on the grounds that Grasshopper “waited until after it had the
opportunity to review” the Bosworths’ expert designation before designating Sherman to
“testify regarding issues that it knew would be highly disputed [] at trial.” Grasshopper
filed an objection the following day, September 25, 2013, stating that the motion was
untimely, as it should have been filed no later than September 12, 2013 in order to be
heard at the final status conference.5 As a result of the belated filing, Grasshopper
complained that it had “no time to research and write any opposition on the merits.”6
3
Statutory references herein are to the Code of Civil Procedure unless otherwise
indicated.
4
Although Grasshopper’s designation is treated by both parties as a purported
supplemental designation under section 2034.280, it was not labeled as such and states
that the designation was made pursuant to section 2034.260, the section governing the
initial designation of expert witness information.
5
Grasshopper ignores the fact that the Bosworths could not have moved to strike
the supplemental expert designation on or before September 12, since Grasshopper did
not even serve that designation until September 16, 2013.
6
It appears from the record that Grasshopper also moved in limine to exclude
certain experts designated by the Bosworths or to strike their supplemental expert
designation. The court granted Grasshopper’s motion, but the record on appeal does not
contain any information regarding which experts designated by the Bosworths were
excluded. As discussed further below, Young testified as an expert for the Bosworths at
trial.
7
At the final status conference on October 4, 2013, the court granted the motion and
excluded expert testimony by Sherman at trial.
2. Legal Principles
“The Supreme Court has noted that the need for pretrial discovery is greater with
respect to expert witnesses than ordinary fact witnesses because the opponent must
prepare to cope with the expert’s specialized knowledge.” (Boston v. Penny Lane
Centers, Inc. (2009) 170 Cal. App. 4th 936, 951(Boston) [citing Bonds v. Roy (1999) 20
Cal. 4th 140, 147].) “The Legislature responded to this need by enacting detailed
procedures for discovery pertaining to expert witnesses.” (Boston, supra, at p. 951;
[citing § 2034.210 et seq.].)
Pursuant to section 2034.210, any party may issue a demand for the “mutual and
simultaneous exchange by all parties” of expert witness information. On or before the
date of exchange, each party must provide either: “(1) A list setting forth the name and
address of any person whose expert opinion that party expects to offer in evidence at the
trial;” or “(2) A statement that the party does not presently intend to offer the testimony
of any expert witness.” (§ 2034.260.) The provision of “supplemental expert witness
list” is governed by section 2034.280, which provides that “[w]ithin 20 days after the
exchange described in Section 2034.260, any party who engaged in the exchange may
submit a supplemental expert witness list containing the name and address of any experts
who will express an opinion on a subject to be covered by an expert designated by an
adverse party to the exchange, if the party supplementing an expert witness list has not
previously retained an expert to testify on that subject.”
Failure to comply with these requirements can have drastic consequences. “[O]n
objection of any party who has made a complete and timely compliance with Section
2034.260, the trial court shall exclude from evidence the expert opinion of any witness
that is offered by any party who has unreasonably failed to do any of the following:
[¶] (a) List that witness as an expert under Section 2034.260. . . .” (§ 2034.300.)
We generally review the trial court’s ruling on a motion to exclude expert
testimony for abuse of discretion, including its determination that a party “unreasonably”
8
failed to comply with an expert witness demand. (Boston, supra, 170 Cal.App.4th at p.
952.) “A trial court’s discretion is always delimited by the statutes governing the
particular issue but when the exclusion of expert testimony rests on a matter of statutory
interpretation, we undertake a de novo review. [Citations.]” (Staub v. Kiley (2014) 226
Cal. App. 4th 1437, 1445.)
Here, Grasshopper argues that the de novo standard applies, suggesting that the
issue is not a discretionary exclusion of an expert under section 2034.300. Rather,
Grasshopper contends it raises “a pure issue of law” as to whether a trial court may
“exclude a properly designated supplemental expert on the ground that the expert should
have been designated in a party’s original expert witness disclosure.” The cases
Grasshopper cites required statutory interpretation and are inapplicable to the facts of this
case. (See Staub v. Kiley, supra, 226 Cal.App.4th at pp. 1445-1446 [de novo review of
defendant’s standing under discovery statutes to seek to exclude plaintiffs’ experts, but
review for abuse of discretion of reasonableness of plaintiffs’ failure to comply with
expert exchange]; Gonsalves v. Li (2015) 232 Cal. App. 4th 1406; 1414 [de novo review of
whether discovery statutes permit introduction at trial of qualified denials contained in
responses to requests for admission].)
At bottom, Grasshopper’s challenge does not require an interpretation of the
discovery statutes; rather, Grasshopper asks us to examine the trial court’s reasonableness
determination and argues that it complied with section 2034.260 by providing a letter
tracking the statutory language. While Grasshopper contends that Sherman was properly
designated as a supplemental expert, his exclusion from trial was based on the
Bosworths’ motion (and the trial court’s subsequent order) arguing that he should have
been listed in the initial expert exchange. As such, abuse of discretion review is
appropriate.7
7
We note, however, that we would reach the same conclusion under a de novo
review.
9
3. Forfeiture
The Bosworths contend that by failing to substantively oppose their motion in the
trial court, Grasshopper forfeited its right to challenge the exclusion of its expert on
appeal. Grasshopper acknowledges that its only objection below to the motion to exclude
Sherman was that the motion was untimely. But Grasshopper contends that it raises a
question of law based on undisputed facts, which can be asserted for the first time on
appeal.
As discussed above, we disagree with Grasshopper’s characterization of the issue
as a question of law. In particular, where, as here, Grasshopper argues that it is entitled
to a new trial due to the prejudice suffered from exclusion of its expert, it was
Grasshopper’s burden to make a sufficient offer of proof regarding the reasonableness of
its expert witness disclosures and the lack of any gamesmanship or misconduct to allow
the trial court to conduct a full evaluation before ruling on the motion in limine. (See,
e.g., Evid. Code § 354, subd. (a) [judgment may not be set aside due to erroneous
exclusion of evidence unless the “substance, purpose, and relevance of the excluded
evidence was made known to the court by the questions asked, an offer of proof, or by
any other means”]; Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal. App. 4th 1103, 1114
[ordering new trial where plaintiff “gave the court sufficient notice of the substance,
purpose and relevance of the proposed expert witness testimony for the court to
understand the impact of its ruling on Nissan’s motion to strike”].) Grasshopper did not
do so, and therefore forfeits the right to raise this objection on appeal.8
8
We also reject Grasshopper’s suggestion that the rules of forfeiture should not
apply because the Bosworths’ motion in limine was untimely and Grasshopper had
inadequate time to “have researched and fully briefed” a substantive opposition. As
noted above, by the time Grasshopper served its supplemental expert disclosure, the
deadline for properly-noticed motions in limine had passed. (§ 1005, subd. (b); Los
Angeles Superior Court Rule 3.25(f)(2).) Moreover, while it is understandable that
Grasshopper would want to file its opposition as quickly as possible and felt it did not
have time to “fully brief[]” the substantive issues, it has not demonstrated that it made
any attempt to even raise the possibility of a substantive objection—neither in the written
opposition it filed on September 25, 2013, nor at the hearing on the motion held over a
10
4. Determination that Grasshopper Unreasonably Failed to Comply With
Expert Disclosure Statutes
Moreover, even if we were to reach the merits, we would find no error in the trial
court’s exclusion of Grasshopper’s expert. The Bosworths relied on Fairfax v. Lords,
supra, 138 Cal.App.4th at p. 1019 in support of their motion to exclude Grasshopper’s
expert. In Fairfax, a medical malpractice action, the defendant physician responded to
the demand for exchange of expert witness information with a document stating he
“‘hereby gives notice that he is not designating any retained experts for the first exchange
of expert witness information’” but that he “‘expressly reserves the right to designate
experts in rebuttal to [Fairfax’s] designations.’” (Id. at p. 1022.) Plaintiff designated a
physician expert witness. (Ibid.)
Defendant then served a “‘Second Designation of Expert Witnesses’” naming two
newly retained experts (presumably pursuant to section 2034.280) to counter the expected
testimony of plaintiff’s expert. (Fairfax, supra, at p. 1023.) Plaintiff moved to strike,
arguing that compliance with the standard of care was a key issue in a medical
malpractice case, and that defendant could not “avoid a simultaneous exchange by
labeling his expert on that key issue as merely a ‘rebuttal’ witness.” (Ibid.) In opposing
plaintiff’s motion, defendant’s counsel did not dispute that he waited to designate any
defense experts until he saw plaintiff’s initial designation. (Ibid.)
The Court of Appeal held that defendant had violated the requirement of a
“‘simultaneous exchange’” of expert information set forth in section 2034.9 (Id. at p.
1026-1027.) Defendant’s initial expert witness exchange “did neither of the things
required by [section 2034.260]—it neither listed any experts that he ‘expected’ to call as
week later, nor in its post-trial motion seeking a new trial. We also note that counsel for
the Bosworths raised substantive objections to Grasshopper’s designation, including a
citation to Fairfax v. Lords (2006) 138 Cal. App. 4th 1019 (Fairfax), in a meet and confer
letter sent to Grasshopper’s counsel on September 19, 2013, five days before the
Bosworths filed their motion.
9
The expert witness discovery provisions in sections 2034.210 through 2034.310
were previously codified in section 2034, subdivisions (a) through (m). The relevant
language remains unchanged.
11
witnesses, nor did it state that he had no present intention to offer expert testimony. . . .
The effect of Lords’ expert designation was to delay his own list of ‘expected’ witnesses
until after he had seen the list put forth by Fairfax.” (Id. at pp. 1025-1026.) That conduct
was “simply inconsistent with the clear statutory requirement of a ‘simultaneous’
exchange.” (Id. at p. 1026.) The court further rejected defendant’s contention that he
could not determine what claims were at issue until he reviewed plaintiff’s expert witness
list, noting that plaintiff had designated an expert to address “the only real disputed issue
in this case—i.e., whether Lords’ treatment of Fairfax complied with the standard of care.
Because Lords had every reason to anticipate such a designation, he had a corresponding
obligation to designate whatever expert he expected to have testify on the issue at the
same time. . . . Our system requires that defendants participate in the litigation essentially
simultaneously with plaintiff. Section 2034 expressly requires it with respect to expert
designations.” (Id. at pp. 1026-1027.)
Similarly, here, Grasshopper did not designate any expert on the date of the initial
expert exchange, and waited until the last day permissible for identification of a
supplemental expert witness (the Monday following the 20th day after the initial
exchange) to identify Sherman as an expert expected to testify as to liability, damages,
and the property’s water and septic systems. In effect, Grasshopper avoided the requisite
simultaneous exchange of expert witness information, only to then designate Sherman, an
expert in support of its affirmative claims, as a purported rebuttal witness. Under those
circumstances, it was not error for the trial court to conclude that Grasshopper
unreasonably failed to designate Sherman as an expert in the initial exchange and
therefore to exclude his testimony under section 2034.300.
Grasshopper attempts to distinguish Fairfax by noting in that case, the defendant’s
initial response did not adhere to the language set out in section 2034.260, while
Grasshopper’s initial response did. In essence, Grasshopper suggests that because its
initial response was timely and recited the statutory language, the trial court lacked
discretion to consider whether the rebuttal designation of Sherman was improper.
12
We disagree, in light of the concerns regarding fair and simultaneous expert
disclosure articulated in Fairfax and similar cases, and the discovery statutes themselves.
(See Fairfax, supra, 138 Cal.App.4th at pp. 1026-1027; Bonds v. Roy, supra, 20 Cal.4th
at pp. 146-147 [“the very purpose of the expert witness discovery statute is to give fair
notice of what an expert will say at trial. . . . ‘Late disclosure of experts . . . frustrates the
very purposes of the discovery statutes, and should be permitted, with appropriate
safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.’
[Citation.]”].) Grasshopper cites no authority suggesting that a court lacks discretion to
consider whether a party should have named an expert in its initial response to a demand,
rather than waiting for its opponent’s disclosures, as part of the reasonableness
determination for potential exclusion under section 2034.300.
Moreover, the cases cited by Grasshopper arise under different circumstances, as
each involves instances where a party named experts in its initial disclosure and then
provided supplemental disclosures that included additional experts. For example, while
Grasshopper claims that “[r]oughly the same sequence of events occurred” in Kennedy v.
Modesto City Hospital (1990) 221 Cal. App. 3d 575, it ignores the fact that the plaintiff in
that case named several experts in her initial expert disclosure and then designated a
rebuttal expert upon whom she relied in opposing summary judgment. (Id. at p. 577.)
Thus, while the court, in dicta, suggested that it “seriously doubt[ed]” that exclusion of
the rebuttal expert’s declaration was correct, it did not do so in the context of the issue
presented here, namely, a plaintiff who declines to initially designate any expert and then
purports to designate a rebuttal expert on key issues. (Id. at p. 580, fn. 3.)
Here, the record supports the conclusion that Grasshopper should have initially
disclosed Sherman as an expert witness pursuant to section 2034.260. Grasshopper
contends that “the issues with the septic system were resolved by the settlement
agreement” and it needed only to present evidence at trial to show Brian unreasonably
delayed in installing the new system; thus, it “did not require expert testimony” to
support its claims until it discovered that the Bosworths planned to litigate the septic
system issues at trial. But Grasshopper’s claim is belied by the allegations of its own
13
complaint and the language of its expert disclosure. Specifically, Grasshopper’s
complaint alleged that the Bosworths breached the lease by “provid[ing] a septic system
on the Property that was defective” and sought damages “related to the defective septic
system and plumbing.” Grasshopper continued to allege at trial that the septic system
had a “pre-existing” condition that caused it to fail. And Grasshopper’s expert disclosure
broadly designated Sherman to testify as to the Bosworths’ liability and Grasshopper’s
damages, as well as more specifically regarding the water and septic systems. Therefore,
Grasshopper cannot divorce its affirmative claims from the septic system issues. As
witnesses for both parties testified, a determination of whether Brian acted reasonably
regarding installation of the new system would necessarily include evidence related to the
reasons behind the high water consumption rate on the property and measures needed to
design a system that could accommodate Grasshopper’s use. As such, we find no error in
the trial court’s exclusion of Sherman based on Grasshopper’s failure to timely designate
him as an expert.10
B. References to Mediation
Grasshopper claims that counsel for the Bosworths improperly referred to the
parties’ prior mediation in front of the jury and that such references must result in a new
trial. We conclude that Grasshopper has forfeited its right to raise this issue for the first
time on appeal, and, in any event, that the references to mediation here do not warrant a
new trial.
1. Relevant Background
The lease contained a mediation provision requiring the parties to pursue
mediation in order to seek attorneys’ fees in any subsequent litigation. The parties held a
mediation in mid-2012, after Grasshopper filed the instant lawsuit. During trial, the
10
Even if the exclusion was in error, we agree with the Bosworths that
Grasshopper has failed to demonstrate that the error was sufficiently prejudicial to
warrant a new trial. In particular, several of Sherman’s reports regarding his findings
were offered as evidence during the trial. Further, despite Sherman’s involvement with
the property, Grasshopper did not attempt to call him as a percipient witness to testify to
his direct observations of the problems with the water and septic systems.
14
Bosworths elicited testimony from several witnesses regarding the date, location and
identity of the attendees of the mediation. Further, during closing argument, counsel for
the Bosworths argued that Brian waited to file his lawsuit against Grasshopper based on
the understanding that the parties were going to mediate the case, but that Grasshopper
filed its lawsuit prior to the mediation, “maybe . . . to get a head start or maybe . . . to
look like the first person to sue.” Grasshopper did not object to this evidence or
argument and there was no discussion at trial regarding the substance of the mediation.
2. Legal Principles
“In order to encourage the candor necessary to a successful mediation, the
Legislature has broadly provided for the confidentiality of things spoken or written in
connection with a mediation proceeding.” (Cassel v. Superior Court (2011) 51 Cal. 4th
113, 117 (Cassel); see also Foxgate Homeowners’ Assn. v. Bramalea California, Inc.
(2001) 26 Cal. 4th 1, 14 [confidentiality is essential to effective mediation].) The
statutory scheme for mediation confidentiality, Evidence Code sections 1115 to 1128,
therefore protects “the confidentiality of mediation proceedings, with narrowly delineated
exceptions.” (Simmons v. Ghaderi (2008) 44 Cal. 4th 570, 574 (Simmons).)
Pursuant to Evidence Code section 1128, “[a]ny reference to a mediation during
any subsequent trial is an irregularity in the proceedings of the trial for the purposes of
Section 657 of the Code of Civil Procedure.” Section 657 permits granting of a new trial
based on an “[i]rregularity in the proceedings of the court, jury or adverse party, . . . by
which either party was prevented from having a fair trial” and where such incident
“materially affect[s] the substantial rights of” the aggrieved party.
Both parties urge interpretation of the scope of phrase “[a]ny reference to a
mediation” in Evidence Code section 1128. Grasshopper argues for a broad
interpretation and contends that the necessity of such statutory interpretation requires a de
novo standard of review. The Bosworths argue that we should interpret Evidence Code
section 1128 to bar references at trial only to “the narrow category of mediation-related
communications.” We need not resolve this issue, as even assuming all of the references
to mediation here fall within the ambit of the statute, we conclude that none of them
15
qualified as an “irregularity” sufficient to warrant a new trial. As such, no statutory
interpretation is necessary and we review the admission of evidence regarding mediation
for an abuse of discretion. (People v. Williams (1997) 16 Cal. 4th 153, 196–197; Pannu v.
Land Rover North America, Inc. (2011) 191 Cal. App. 4th 1298, 1317.)
3. Forfeiture of Issue on Appeal
Grasshopper argues, for the first time on appeal, that the trial court erred in
allowing statements and evidence at trial related to the mediation. By failing to object to
the testimony or argument regarding mediation below, Grasshopper forfeited this issue on
appeal. (Evid. Code, § 353, subd. (a).) To obtain reversal based on the erroneous
admission of evidence, defendant must show a timely objection making “clear the
specific ground of the objection. . . .” (Ibid.; Duronslet v. Kamps (2012) 203 Cal. App. 4th
717, 725-726.) “Lack of such objection deprives the proponent of the evidence an
opportunity to establish a better record or some alternative basis for admission,” and
deprives the trial court of the ability to rectify any error. (Duronslet v. Kamps, supra, 203
Cal.App.4th at p. 726.)
Grasshopper admits that it did not raise this issue before the trial court, either
during trial or as part of its motion for new trial. Instead, it relies on Simmons v. Ghaderi,
supra, 44 Cal.4th at p. 570, for the proposition that forfeiture principles do not apply to
mediation confidentiality. In Simmons, the parties reached an oral settlement agreement
during mediation, and the plaintiffs sought to introduce evidence of the agreement in a
subsequent action for breach of contract. The Court of Appeal held that the defendant
was estopped from asserting mediation confidentiality at trial because she had failed to
object to evidence of the mediation during pretrial proceedings and relied on such
evidence in a motion for summary judgment. (Id. at p. 577.) The Supreme Court
reversed, holding that a party cannot “impliedly waive mediation confidentiality through
litigation conduct” and therefore that “mediation confidentiality is to be strictly enforced”
absent “express waiver or where due process is implicated.” (Id. at pp. 582, 585-588.)
In attempting to apply Simmons to the instant case, Grasshopper blurs the
distinction between waiver, referring to “a party’s intentional relinquishment or
16
abandonment of a known right or privilege,” and forfeiture, referring to “the loss of a
right resulting from the failure to assert it in a timely fashion.” (Smith v. Adventist Health
System/West (2010) 182 Cal. App. 4th 729, 739, fn. 7.) The court in Simmons was
concerned with the defendant’s ability to rely on the confidentiality of mediation
communications and therefore bar introduction of mediation communications as evidence
at trial. The Supreme Court held that she did not impliedly waive that confidentiality by
her prior litigation conduct. Here, on the other hand, Grasshopper raised mediation
confidentiality for the first time on appeal, leaving no opportunity for the Bosworths or
the trial court to address the purported problem. Grasshopper has therefore forfeited its
right to assert error on appeal.11
4. References to Mediation Do Not Require New Trial
While the forfeiture issue is dispositive, we also reject Grasshopper’s argument on
the merits and conclude that the references to mediation did not warrant a new trial.
Ignoring the requirements of section 657, Grasshopper makes no attempt to show
how the references to mediation here “materially affected [its] substantial rights” and
prevented it from having a fair trial. Instead, Grasshopper suggests that “[a]ny reference
to a mediation warrants a new trial.” However, none of the cases Grasshopper cites
support that contention. All of those cases involve attempts to use the substance of a
mediation as evidence in subsequent proceedings. (See Simmons, supra, 44 Cal.4th at pp.
585-588; Foxgate Homeowners’ Assn. v. Bramalea California, Inc., supra, 26 Cal.4th at
pp. 3-4 [vacating sanctions order based on mediator’s report of conduct during
mediation]; Amis v. Greenberg Traurig LLP (2015) 235 Cal. App. 4th 331, 333 [barring
malpractice plaintiff from introducing evidence of former attorney’s acts or omissions
during mediation].) Grasshopper provides no authority suggesting that a handful of
references to the logistics of a mediation would prevent a party from having a fair trial,
11
The Bosworths’ argument that Grasshopper waived its mediation confidentiality
by affirmatively questioning witnesses regarding mediation logistics at trial is squarely
covered by Simmons, since Grasshopper never expressly waived mediation
confidentiality. This argument is therefore without merit.
17
and makes no showing that such was the case here. We therefore conclude that no error
occurred.
C. Property Damage Award
Grasshopper contends that the jury’s award of $500,000 in property damage to
Brian was not supported by substantial evidence. We agree.
1. Relevant Background
During trial, the Bosworths offered testimony of several witnesses regarding the
damage they claimed Grasshopper caused to the property. In response to a question
regarding why he did not immediately attempt to re-rent the property, Brian estimated “it
would be somewhere close to half a million dollars to put it back in the condition that it
would be rentable.” He also testified that it would cost $3,000 to replace a tree that
Grasshopper cut down.
Katherine testified as to a number of repairs that were done before she resumed
living in the home, including repairing the entry gates and phone system, cleaning the
pool and spa, repairing garage doors, and landscaping, totaling $10,000. She also gave
estimates as to the cost of other items, based on costs when the Bosworths first moved
into the house, such as repainting the interior, staining and sealing all of the hardwood
floors, and recarpeting. In total, Katherine provided dollar amounts for approximately
$255,000 in repairs. Mr. Young, the septic system expert for the Bosworths, also
testified that it would cost an estimated $100,000 to install a new septic system.
Daniel Gottlieb, who owns a real estate company, purchased the property from the
Bosworths in early 2011. Gottlieb testified that he toured the property in summer of 2009
and early fall of 2010. He received estimates regarding the cost of repairs from a
landscaper, an electrician and a general contractor and used those estimates in
determining his purchase price offer on the house. The court sustained Grasshopper’s
hearsay objection as to the amounts of the estimates. Gottlieb stated that he also received
disclosures from Brian.
Ultimately, Gottlieb paid $6,050,000 for the property. Over Grasshopper’s
objection, he testified that, based on his real estate experience and the information he was
18
given, he felt the property “needed very close to a million dollars’ worth of repair. So I
took that off of my calculations off of what I felt it was worth [sic].” He also testified
about some of the needed repairs: staining and re-sanding wood floors, painting “inside
and out,” stucco work, landscaping, tile work, repairing and replacing fixtures, and
repairs to the pool, which was in “bad shape.” He also had to “do a lot of work” to repair
the septic system. He gave no other dollar figures.
In closing, Bosworths’ counsel argued that Gottlieb’s estimate was evidence of the
reduction in value of the property. Alternatively, she cited testimony by the Bosworths
supporting cost of repair. She itemized about $225,000 worth of damages, but then
estimated that the total cost of repairs was “in the range of” $700,000 to $1.3 million.
The jury was instructed pursuant to CACI No. 3903F that it could award damages
to Brian for harm to the property in the amount of “the reduction in the property’s value
or the reasonable cost of repairing the harm.” In the event the jury found evidence of
both, it was instructed to award the “lesser of the two amounts.” The jury awarded Brian
$500,000 in property damage and no amount for diminution in value. When polled,
jurors confirmed that they had determined that the diminution in value was greater than
$500,000, therefore, they did not award damages in that category.
2. Standard of Review
We review a challenge to the sufficiency of the evidence in support of the verdict
under the substantial evidence standard. (Lenk v. Total-Western, Inc. (2001) 89
Cal. App. 4th 959, 968.) “‘“[T]he power of an appellate court begins and ends with a
determination as to whether there is any substantial evidence, contradicted or
uncontradicted,” to support the findings below. [Citation.] We must therefore view the
evidence in the light most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor. . . .’ [Citation.]” (Thompson
v. Tracor Flight Systems, Inc. (2001) 86 Cal. App. 4th 1156, 1166.)
3. Evidence of Property Damage
The parties agree that the jury was properly instructed that it could award property
damages based on the reduction in fair market value or the cost of repairs, whichever was
19
less. Grasshopper contends that the record lacks evidence to support the jury’s award of
$500,000 in repairs; specifically, Grasshopper takes issue with the testimony of Gottlieb,
Brian, and Katherine in support of the damages award.
First, Grasshopper acknowledges that Gottlieb, as the owner, could testify as to the
value of the property under Evidence Code section 813; on the other hand, it argues that
Gottlieb’s testimony cannot be considered evidence in support of an award for cost of
repairs. Over Grasshopper’s objection, Gottlieb claimed that the fair market value of the
property was reduced by $1,000,000, based on his estimate of the cost of repairs (which,
in turn, was based on estimates received from others). Although he was a real estate
professional, Gottlieb was not designated as an expert at trial, nor did he offer any
evidence regarding the cost of repairs he actually performed.
Evidence Code section 813 permits an opinion on the value of a property offered
by either a qualified expert witness or the owner. “It is also the law that having expressed
an opinion as to the value of his property, the owner should be permitted to give his
reasons for such opinion, since it is the general rule that an opinion is worth no more than
the reasons on which it is based. (Long Beach City High School Dist. v. Stewart (1947)
30 Cal. 2d 763, 772-773; People v. Nahabedian (1959) 171 Cal. App. 2d 302, 309.)”
(Kitchel v. Acree (1963) 216 Cal. App. 2d 119, 124.) “However, ‘[i]n stating his opinion
as to the value of property, the owner is bound by the same rules of admissibility of
evidence as is any other witness.’ [Citation.]” (Ibid.) Thus, for example, courts have
refused to allow a property owner to introduce hearsay evidence, such as a repair estimate
received from a third party, under the guise of offering that information as a basis for the
owner’s opinion on the value of the property. (See id. at p. 125 [testimony of homeowner
concerning cost to repair defective work was based upon inadmissible hearsay estimate
from plastering contractor]; Garfinkle v. Montgomery (1952) 113 Cal. App. 2d 149, 158-
159 [trial court properly excluded lessor’s damage testimony based on repair estimate
that was “pure hearsay”].) Similarly, Evidence Code section 813 does “not extend to the
giving of testimony as to the cost of repairs, especially where such testimony is merely a
repetition of the statements of other persons to the witness.’ [Le Brun v. Richards (1930)
20
210 Cal. 308 at pp. 319-320.].” (McCoy v. Gustafson (2009) 180 Cal. App. 4th 56, 111,
fn. 26 [property owner claimed that she should have been able to read construction
company’s excavation estimate to jury].)
Here, Gottlieb’s testimony was couched as valuation testimony pursuant to
Evidence Code section 813. But he should have been precluded from offering an opinion
as to the cost of repairs, as he was not qualified as an expert and his repair testimony was
premised on inadmissible hearsay evidence. Although the Bosworths reference the broad
premise that a party may rely on properly admitted evidence of the cost of repairs, they
cite no case permitting lay witness testimony of the cost of repairs under Evidence Code
section 813. Moreover, even if Gottlieb’s million dollar figure was admissible evidence
of the reduction in the property’s value under Evidence Code section 813, there was no
basis to admit that same testimony as evidence of the cost of repairs. Tellingly, in her
closing argument, counsel for the Bosworths tied Gottlieb’s estimate only to an award for
reduction in value, not cost of repairs. Thus, the Bosworths cannot rely on Gottlieb’s
estimate to support the jury’s $500,000 award for property damage.
Next, Grasshopper argues that Brian’s testimony was too conclusory to support a
property damage award. We agree. While Brian’s testimony certainly established his
familiarity with the property and knowledge of the alleged damages to it, he provided no
details about how he reached the $500,000 estimate for repairs. Moreover, Brian was not
qualified as an expert and did not testify as to the cost of repairs actually made. (See
People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 606 [expense report
showing cost of repair was sufficient to satisfy plaintiff’s burden “to prove the elements
of its damage with reasonable certainty”]; Smith v. Hill (1965) 237 Cal. App. 2d 374, 388
[“If repairs have in fact not been made, the estimated cost of repairs reasonably necessary
calls for expert testimony. [Citation.]”].) As such, his testimony estimating the cost of
21
repair at $500,000 was an insufficient basis for the jury’s award, particularly where, as
here, that testimony lacked corroboration from any other evidence in the record.12
Finally, absent the estimates from Gottlieb and Brian, Grasshopper contends that
there is insufficient evidence in the record to support an award of $500,000 in cost of
repair damages. Grasshopper disputes the validity and admissibility of some of the
repairs claimed by the Bosworths, arguing, for example, that Katherine’s testimony about
the initial cost to install carpeting and wood floors throughout the house was not relevant
to the cost to repair any damage by Grasshopper. But even assuming all of the items
were admissible to prove cost of repairs, the total amount for which there was evidentiary
support is, at most, $358,000. The Bosworths point to the general evidence regarding the
condition of the house after Grasshopper vacated it, including photographs and a video,
and suggest that the jury had a sufficient basis to reach the $500,000 amount. But the
Bosworths have never—not at trial during presentation of evidence or closing and not in
their brief on appeal—been able to articulate specifically how they sustained $500,000 or
more in cost of repair damages. As such, they failed to provide sufficient evidence to
support the jury award and reversal is warranted.
D. Award of Prejudgment Interest
Grasshopper also challenges several aspects of the trial court’s award of
prejudgment interest to Brian. Although the precise calculation issues are now moot,
given our reversal of the $500,000 property damage award herein, we nevertheless briefly
discuss the issues raised by Grasshopper for the guidance of the court and the parties
upon remand.
12
The Bosworths contend that Grasshopper waived its right to challenge Brian’s
testimony by failing to object or move to strike his response at trial. We need not reach
this issue—even assuming Grasshopper was barred from challenging the admissibility of
Brian’s statement estimating $500,000 in repairs, it may still contend, as it does here, that
Brian’s statement alone was insufficient evidence to support the jury’s property damage
award for that amount.
22
1. Relevant Background
As discussed above, the jury awarded $500,000 to Brian for property damages.
The jury also awarded him $88,500 in lost rent, $2,125 in late fees, and $13,500 for
insurance (reflecting the increase in the Bosworths’ insurance premiums from
Grasshopper’s use of the property).
Following the trial, the Bosworths submitted a motion for attorney fees and costs,
including a request by Brian for prejudgment interest. Brian claimed that the following
amounts were liquidated damages under Civil Code section 3287(a): $104,125 for lost
rent, late fees and insurance, as well as $115,000 of the $500,000 property damage award
for septic system damages.13 He calculated prejudgment interest for this amount starting
on March 31, 2009, the date Grasshopper vacated the property and thereby breached the
lease agreement. Additionally, Brian contended that the remaining property damage
amount was subject to prejudgment interest as of February 28, 2012. On that date, the
Bosworths sent a settlement proposal to Grasshopper, including a sheet of “estimated
damages” listing $110,000 in septic system damages and $407,587.50 for “other damage
to property.” The letter also attached an itemized proposal dated October 10, 2011 with a
breakdown of the repairs included in the latter amount. In total, Brian requested
$173,078.95 in prejudgment interest.14
In a minute order issued March 10, 2014, the court set the date for calculating
prejudgment interest as February 28, 2012, “as that is the date for which defense counsel
provided calculations.” The court then awarded $173,078.95 in prejudgment interest, the
entire amount requested by Brian. Grasshopper filed a motion to correct the award,
noting that the court had set February 28, 2012 as the date for calculation of all
prejudgment interest, but then adopted the calculations done by Brian, which used March
31, 2009 as the date for a portion of the interest requested and February 28, 2012 for the
13
The $115,000 calculation is based on the maximum amount Grasshopper agreed
to pay for a new septic system under the settlement agreement.
14
Brian originally requested $174,967.07 in prejudgment interest. He then
submitted a supplemental brief, based on the same numbers, recalculating the interest due
as $173,078.95. The parties do not otherwise challenge these calculations on appeal.
23
remainder. On May 8, 2014, the court amended its prior minute order nunc pro tunc,
changing the start date for all prejudgment interest calculations to March 31, 2009. The
court offered no explanation for why it used March 31, 2009 as the date for the entire
amount, a result requested by neither of the parties. Grasshopper timely appealed the
court’s order awarding prejudgment interest. We consolidated this appeal with
Grasshopper’s earlier appeal.
2. Legal Principles
An award of prejudgment interest is governed by Civil Code section 3287.
Subsection (a) provides for interest on liquidated damages: “A person who is entitled to
recover damages certain, or capable of being made certain by calculation, and the right to
recover which is vested in the person upon a particular day, is entitled also to recover
interest thereon from that day. . . .” Two competing policies provide the framework for
an award of prejudgment interest under the statute. First, “interest traditionally has been
denied on unliquidated claims because of the general equitable principle that a person
who does not know what sum is owed cannot be in default for failure to pay.”
(Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal. App. 3d 901, 906
[citing Cox v. McLaughlin (1888) 76 Cal. 60, 67] (Chesapeake).) “Thus, no prejudgment
penalty is assessed against a litigant for failing to pay a sum which is unascertainable
prior to judgment. [Citation.]” (Ibid.) On the other hand, the countervailing policy
instructs that parties should be compensated for the loss of the use of their money during
the period between the accrual of a claim and the rendition of judgment, resulting in a
“generally liberal construction of ‘certainty’ under section 3287.” (Ibid. [citations
omitted].) As a result, the test for recovery under this section focuses on “‘whether
defendant actually know[s] the amount owed or from reasonably available information
could the defendant have computed that amount. [Citation.]’” (Children’s Hospital and
Medical Center v. Bontá (2002) 97 Cal. App. 4th 740, 774 (Children’s Hospital).) Interest
may not be awarded under this section “where the amount of damage, as opposed to the
determination of liability, ‘depends upon a judicial determination based upon conflicting
24
evidence and it is not ascertainable from truthful data supplied by the claimant to his
debtor.’ [Citations.]” (Ibid.)
3. Interest Award Issues Raised By Grasshopper
Grasshopper first contends that the trial court improperly awarded prejudgment
interest on $110,000 in septic system damages, when that amount was never awarded by
the jury. The Bosworths argue that the amount of septic system damages was made
certain under the settlement agreement, as Grasshopper agreed to pay up to $115,000
toward a new septic system. The Bosworths further claim that the evidence presented at
trial “clearly shows that the jury came to the property-damage award by taking into
consideration the septic-system damage.”
Ultimately, this issue is moot, as the entire property damage award is subject to
retrial. But we note that the Bosworths’ argument here lacks merit. There was certainly
evidence at trial to support an award for septic system damages in the amount the
Bosworths claim, had the jury specified such an award. But there is no indication in the
record to establish what part, if any, of the lump sum of $500,000 the jury awarded for
property damages was attributed to septic system damages. The special verdict form did
not contain a separate section for septic system damages and the jury made no mention of
that particular category of damages in its award. As such, any future award for
prejudgment interest based on septic system damages must be supported by a finding of
damages relating specifically to the septic system.15
Second, the parties disagree regarding the appropriate start date for calculating
interest on the property damage award. Grasshopper contends that these damages were
unliquidated as they were “vigorously disputed” and interest should therefore be
calculated as of the date of Brian’s cross-complaint, September 17, 2012, under Civil
15
We do not reach the issue of whether and what amount of septic system
damages might properly be claimed as liquidated as of the date of the contract breach.
25
Code section 3287(b).16 The Bosworths claim that the amount of property damage was
made certain as of February 28, 2012, when they provided an itemized proposal in their
settlement letter. We agree. As noted above, interest is available under section 3287(a)
where a defendant “actually knows the amount owed or from reasonably available
information could . . . have computed that amount. [Citation.]’” (Children’s Hospital,
supra, 97 Cal.App.4th at p. 774; see also Esgro Cent., Inc. v. General Ins. Co. (1971) 20
Cal. App. 3d 1054, 1060-61 [“Damages are deemed certain or capable of being made
certain within the provisions of subdivision (a) of section 3287 where there is essentially
no dispute between the parties concerning the basis of computation of damages if any are
recoverable but where their dispute centers on the issue of liability giving rise to damage.
[Citations.].”]; Continental Bank v. Blethen (1970) 7 Cal. App. 3d 178, 187 [“[T]he fact
that the obligor denies any liability at all does not make the damages uncertain within the
meaning of section 3287.”].) While the parties here vigorously disputed who was liable
for damages to the property, the itemized estimate provided by the Bosworths on
February 28, 2012 gave Grasshopper the information needed to compute the amount of
those damages.
Finally, Grasshopper argues that, even if the itemized proposal could otherwise
“start the clock” on prejudgment interest, the trial court could not rely on it here as it was
part of a confidential settlement communication. Evidence Code section 1152 prohibits
admission of settlement offers for the purpose of proving liability. However, as the trial
court here found, the repair estimate was not offered to prove liability, but rather the date
on which the amount of property damages alleged by Brian was reasonably ascertainable.
As Grasshopper acknowledges, settlement communications are admissible for purposes
other than proof of liability. (See Volkswagen of Am., Inc. v. Superior Court (2006) 139
Cal. App. 4th 1481, 1491 [Evidence Code section 1152 is not an “absolute bar[] to
16
Civil Code section 3287(b) provides: “Every person who is entitled under any
judgment to receive damages based upon a cause of action in contract where the claim
was unliquidated, may also recover interest thereon from a date prior to the entry of
judgment as the court may, in its discretion, fix, but in no event earlier than the date the
action was filed.”
26
admissibility, since a settlement document may be admissible for a purpose other than
proving liability”].) Grasshopper provides no authority to support the proposition that the
settlement letter was inadmissible on the issue of when damages were ascertainable, and
we conclude that the trial court did not err in admitting that evidence.
DISPOSITION
That portion of the judgment awarding $500,000 in property damages to Brian
Bosworth is reversed. We remand for a limited retrial or alternative resolution on the
issue of property damages as claimed in Brian’s cross-complaint, in accordance with the
views herein expressed. We also vacate the award of prejudgment interest, to be
recalculated following the resolution of the issue of property damages. In all other
respects the judgment is affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
27