Hensley v. San Diego Gas & Electric Co. , 7 Cal. App. 5th 1337 ( 2017 )

Filed 1/31/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
WILLIAM MICHAEL HENSLEY et al., D070259
Plaintiffs and Appellants,
v. (Super. Ct. Nos.
37-2008-00093080A-CU-NP-CTL &
SAN DIEGO GAS & ELECTRIC 37-2008-00081779-CU-PO-CTL)
COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Richard E.
L. Strauss, Judge. Reversed.
Manuel Corrales, Jr., for Plaintiffs and Appellants.
Sempra Energy, Office of the General Counsel, San Diego Gas & Electric
Company Office of the General Counsel and Charles Larry Davis, Quinn Emanuel
Urquhart & Sullivan and Daniel H. Bromberg, Kenneth R. Chiate, Kristen Bird and
Jeffrey N. Boozell, for Defendant and Respondent.
After this court dismissed the appeal of plaintiffs and appellants William Michael
Hensley and Linda Hensley1 from a nonappealable stipulated judgment pursuant to a
settlement agreement, the Hensleys and defendant and respondent San Diego Gas &
Electric Company (SDG&E) entered into an amended stipulated judgment that they
assert now constitutes a final disposition of all of their claims. They contend the
amended stipulated judgment is final and appealable in that it was entered to facilitate an
appeal following the trial court's adverse in limine determination of a critical issue: the
Hensleys' legal ability to recover damages for William's emotional distress on trespass
and nuisance causes of action arising from a wild fire that damaged their house and
property. We now conclude the amended stipulated judgment is final and appealable and
our opinion, with respect to the trespass and nuisance claims only, is not advisory. On
the merits, we hold the Hensleys were legally entitled to present evidence of William's
emotional distress on their claims for trespass and nuisance as annoyance and discomfort
damages recoverable for such torts. Because the trial court excluded evidence of
emotional distress damages in their entirety, we reverse.
1 We refer to the appellants individually by their first names for clarity, not out of
disrespect.
2
FACTUAL AND PROCEDURAL BACKGROUND2
After sustaining fire damage to their home and property in 2007, the Hensleys
sued SDG&E alleging causes of action for inverse condemnation, negligence, trespass,
nuisance, negligence per se, violation of California Public Utilities Code section 2106,
intentional infliction of emotional distress, negligent infliction of emotional distress and
violation of Health and Safety Code section 13007. They alleged in part that the fire
caused soot, charring and other damage to their home; damage to their landscaping; and
the destruction of 155 avocado trees on their land. SDG&E moved for summary
adjudication of the Hensleys' intentional and negligent infliction of emotional distress
claims, arguing in part that they were barred from seeking damages for psychological
stress arising from property damages caused by the fire and its aftermath. After the
Hensleys conceded they did not seek emotional distress damages flowing from those two
causes of action, the trial court dismissed them.
During the course of the summary adjudication proceedings, the parties disputed
whether California law permitted the Hensleys to recover emotional distress damages
under their trespass and nuisance causes of action, including damages for the alleged
aggravation of William's preexisting Crohn's disease and ensuing losses (medical
2 We take judicial notice of our prior unpublished opinion (Hensley v. San Diego
Gas & Electric Company (Jan. 22, 2016, D068276)), in which this court dismissed the
Hensleys' first appeal as taken from a nonfinal judgment. The parties have incorporated
portions of the record from their prior appeal in this case. (Cal. Rules of Court, rule
8.147(b).)
3
expenses as well as lost employment income from his permanent disability) due to the
stress he claimed to have experienced as a result of the fire and its aftermath.
On SDG&E's unopposed motion, the court bifurcated the trial and ordered the
damages phase to take place before trial on the issue of liability. SDG&E thereafter
moved to exclude evidence of William's asserted emotional distress damages, arguing the
Hensleys were not legally entitled to recover the claimed damages under theories of
trespass and nuisance. In part, SDG&E argued that while damages for "annoyance and
discomfort" were permitted to compensate plaintiffs for an injury to their peaceful
enjoyment, emotional distress damages were different, and not permitted for a
"negligent" trespass or nuisance involving property damage.
The court granted the motion, ruling William's damages claim, including for lost
earnings and permanent disability as a result of his aggravated Crohn's disease, fell
within the rubric of "general" emotional distress damages, which under Kelly v. CBI
Constructors, Inc. (2009) 179 Cal. App. 4th 442 (Kelly), could not be categorized as the
"distinct" and "more minimal annoyance and discomfort" damages recoverable for
nuisance and trespass. It excluded all evidence, testimony and argument regarding his
emotional distress.
Rather than proceed to trial, the parties in May 2015 stipulated to a judgment
pursuant to a settlement agreement,3 and the Hensleys then appealed from that judgment.
3 In part, the parties' stipulation provided: "[T]o avoid trial on only a small part of
. . . [William]'s claimed damages, i.e., [his] property damage claims, and to avoid having
to try potential liability before seeking an appeal of the trial court's ruling, and if
4
This court dismissed the appeal, holding the stipulated judgment was not a final judgment
because its language was ambiguous in that it implied that no final determination had
been reached as to liability, and that after resolution of the appeal a trial on liability and
damages would transpire. (Hensley v. San Diego Gas & Electric Company, supra,
D068276.) We further held the stipulated judgment violated the one final judgment rule
because it did not completely resolve the issues of liability and damages, excluding the
contested emotional distress damages. (Ibid.) Because those issues remained unresolved,
the judgment was interlocutory and did not eliminate the possibility of further litigation
and appellate review regardless of the outcome of the first appeal on the availability of
emotional distress damages. (Ibid.) Finally, we held the ambiguity in the settlement
terms created the potential for a complete misunderstanding between the parties that
could necessitate additional postappeal trial court proceedings. (Ibid.)
Following our remittitur and an unsuccessful writ petition (Hensley v. Superior
Court, D069946), the parties entered into another stipulation in which SDG&E stated it
"denie[d] any liability for the damages claimed by the Hensleys but desire[d] to resolve
this dispute to avoid continuing and significant costs of litigating this dispute." The
successful on appeal, having to proceed to trial again to recover all of [William]'s claimed
damages, the parties agreed to settle this case in a way that allows [William] to seek an
appeal and the right to proceed to trial on all of [his] claimed damages before trying
liability, including the Crohn's disease related damages the trial court has ruled are not
recoverable[.]" Additionally, the stipulation provided that "the parties agree that the
Hensleys' appeal rights are preserved, despite entering into a settlement in which a
monetary amount shall be paid irrespective of the results of the Hensleys' subsequent
appeal[.]" The court ordered "that the Hensleys are entitled to judgment against . . .
SDG&E pursuant to an agreement between them which is without prejudice to the rights
of the Hensleys to appeal the trial court's ruling . . . ."
5
stipulation states the parties have entered into a settlement agreement "providing for a
payment, which already has been made, compensating the Hensleys for their alleged
property losses and provided [sic] that the Plaintiffs would receive another payment 'if
and only if a final order from the California Court of Appeal or California Supreme Court
is issued which reverses Judge Strauss's [order excluding evidence of William's
emotional distress] and remands for trial in which William . . . may attempt to prove and
is specifically allowed to seek damages relating to the alleged exacerbation of his Crohn's
disease under any cause of action or legal theory[.]" The stipulation acknowledges the
parties' May 2015 stipulated judgment and this court's dismissal of their ensuing appeal,
then provides:
"[T]he parties wish to enter into an amended stipulated judgment that is final and
appealable but reserves the right of Plaintiffs to appeal from the April 17, 2015 order;
". . . [T]he parties agree that the Court should enter a final judgment resolving all
of Plaintiffs' claims and the entire case consisting of the terms set forth below for the
purpose of facilitating Plaintiffs' appeal of the Court's April 17, 2015 order:
"1. Plaintiffs . . . shall take nothing on their claims against Defendant SDG&E for
inverse condemnation, negligence, negligence per se, violation of California Public
Utilities Code [section] 2106, intentional infliction of emotional distress, negligent
infliction of emotional distress, and violation of California Health and Safety Code
[section] 13007.
"2. Plaintiffs . . . also shall take nothing on their claims against Defendant
SDG&E for trespass and nuisance.
6
"3. Plaintiffs . . . shall take nothing on their complaint against Defendant SDG&E
for any asserted claims.
"4. This stipulated final judgment resolving all of the claims in this case is
without prejudice to the rights of Plaintiffs . . . to appeal this final judgment, including the
Court's April 17, 2015 order denying William . . . recovery of emotional distress damages
arising from his allegations of trespass and nuisance claims, which effectively precluded
him from recovering damages for the alleged exacerbation of his pre-existing Crohn's
disease allegedly caused by such mental stress."
Based on the stipulation, the court entered a judgment that the Hensleys "take
nothing from Defendant SDG&E." The Hensleys appeal from the amended stipulated
judgment.
DISCUSSION
I. Threshold Considerations
Following the filing of the notice of appeal, we again requested that the parties
brief whether (1) this appeal was taken from a nonappealable order or judgment, and (2)
the appeal seeks an advisory opinion. The parties respond that the judgment is final and
appealable in that it was taken to facilitate appeal, and provides the Hensleys shall take
nothing on all of their causes of action, thereby disposing of all of the claims in the case.
They maintain any opinion is not merely advisory in part because if the Hensleys succeed
on appeal, the parties' settlement agreement requires SDG&E to make an additional
payment to them.
7
A. Final Judgment
Here, the judgment is final and appealable because it disposes of all of the causes
of action in this case. The trial court's new judgment is one in which the Hensleys "shall
take nothing" on every cause of action against SDG&E. There is no pending cause of
action following the judgment, nor is there any longer a suggestion or indication in their
stipulation or the judgment that the parties seek to retain their right to undergo a trial on
any of their causes of action following the resolution of this appeal. Further, there is no
waiver of any statute of limitations or "carve-out" of any claim for refiling and/or
prosecution after remittitur, which would render the judgment nonappealable. (See
Kurwa v. Kislinger (2013) 57 Cal. 4th 1097, 1102-1105 [discussing cases in which
judgments were rendered nonappealable due to stipulations to waive applicable statutes
of limitation to allow for possible future litigation of unresolved causes of action]; Abatti
v. Imperial Irrigation District (2012) 205 Cal. App. 4th 650, 662-663 [same]; compare
Hill v. City of Clovis (1998) 63 Cal. App. 4th 434, 442, 445 [where parties' stipulation to
judgment dismissed two unadjudicated causes of action without prejudice and tolled the
statute of limitations until after remittitur, the judgment was not final and appeal would
be dismissed] & Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997)
60 Cal. App. 4th 79, 81-82 [judgment entered after summary adjudication of some but not
all causes of action not final where parties stipulated that the contemplated appeal " 'shall
not prejudice either party's future right to prosecute such claims and causes of action
which are being voluntarily dismissed by both parties following the conclusion of the
appeal process' "].) To be appealable, a stipulated judgment must fully resolve all claims
8
in the underlying litigation. (See McMahon v. Craig (2009) 176 Cal. App. 4th 1502, 1508,
fn. 1.) In McMahon, a stipulated judgment was final and appealable where it specified
that " 'plaintiff shall take nothing by her first amended complaint' " against any of the
defendants. (Ibid.) The judgment there was appealable because it "fully adjudicates
plaintiff's entire case." (Ibid.) Such is the case here.
Further, the parties' stipulation makes plain their consent judgment is intended to
facilitate appeal on the question of whether the Hensleys can recover a component of
damages on their trespass and nuisance causes of action. As we explain below, that
provision does not impact our ability to consider this issue.
B. Advisory Opinion
In responding to our request, SDG&E informs us that under the parties' settlement
agreement, there will be no proceedings on remand whether or not the Hensleys succeed
on appeal. Because the settlement resolves the Hensleys' claims in this action leaving
nothing to be litigated even after remand, we must consider whether our opinion is
advisory in the sense that it will resolve only a question of "academic importance" (TG
Oceanside, L.P. v. City of Oceanside (2007) 156 Cal. App. 4th 1355, 1385; Lester v.
Lennane (2000) 84 Cal. App. 4th 536, 566) and not an actual controversy that will result in
a judgment that offers effectual relief to the parties. (Paul v. Milk Depots, Inc. (1964) 62
Cal. 2d 129, 132; Panoche Energy Center, LLC v. Pacific Gas and Electric Company
(2016) 1 Cal.App.5th 68, 96; TG Oceanside, at p. 1385.) The policy behind this
mootness principle is that courts decide justiciable controversies and will not render
9
advisory opinions. (Center for Local Government Accountability v. City of San Diego
(2016) 247 Cal. App. 4th 1146, 1157.)
Normally, for example, a reviewing court will dismiss an appeal when the
underlying claim is settled or compromised, as the settlement ' "operates as a merger
and [bar] as to all preexisting claims and those alleged in the lawsuit that have been
resolved.' " (Larner v. Los Angeles Doctors Hosp. Associates, LP (2008) 168
Cal. App. 4th 1291, 1296; see also Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 400 [as a
general rule, a consent judgment is not appealable].) In this case, the parties' stipulation
to entry of judgment makes clear that despite their settlement, they reserve their right to
appeal the trial court's damages ruling. They seek to fall within an exception to the
general rule as to consent judgments that if the parties' consent to a judgment is " 'merely
given to facilitate an appeal following adverse determination of a critical issue, the party
will not lose his right to be heard on appeal.' " (Norgart v. Upjohn Co., at p. 400.) But
the parties' mutual intention to preserve an appeal does not control whether this appeal is
moot, which would render any decision on our part advisory. (Larner, 168 Cal.App.4th
at p. 1298; Watkins v. Wachovia Corp. (2009) 172 Cal. App. 4th 1576, 1588.) "The
parties' intent cannot compel this court to issue an advisory opinion on issues in which,
after the settlement [a party] no longer retains any individual, personal stake." (Larner, at
p. 1298.)
Pursuant to their stipulation, the parties' settlement is in part conditioned on the
outcome of this appeal on the issue of damages; if we reverse the order and conclude the
Hensleys were entitled to present evidence of William's emotional distress damages,
10
SDG&E will pay the Hensleys a previously agreed-upon sum of money. This sum
essentially represents a liquidation of the Hensleys' emotional distress damages for their
causes of action for trespass and nuisance, and is a matter still at stake between them. As
to those causes of action, we may conclude the matter is not moot but presents a live,
justiciable, controversy on which our opinion is not merely advisory. (See Havens Realty
Corp. v. Coleman (1982) 455 U.S. 363, 369, 371 [after appellate ruling on plaintiffs' lack
of standing on claims seeking monetary, declaratory and injunctive relief, parties agreed
plaintiffs would receive $400 contingent on Supreme Court's grant or denial of certiorari;
the case was not moot because their settlement agreement merely liquidated the monetary
damages that the plaintiffs were continuing to seek: "Given [plaintiffs'] continued active
pursuit of monetary relief, this case remains 'definite and concrete, touching the legal
relations of parties having adverse legal interests' "]; Nixon v. Fitzgerald (1982) 457 U.S.
731, 743-744 [after lower court ruling in respondent's favor, petitioner agreed to accept
liquidated damages conditioned on the U.S. Supreme Court's decision on the issue; this
agreement "left both petitioner and respondent with a considerable financial stake in the
resolution of the question presented in this Court" and was not moot under Havens
Realty]; Doe v. Abbott Labs. (9th Cir. 2009) 571 F.3d 930, 932-933 [merits were still at
issue despite contingent settlement providing for payment depending on outcome of
appeal]; compare Gator.com Corp. v. L.L. Bean, Inc. (9th Cir. 2005) 398 F.3d 1125,
1131-1132 [court could no longer grant plaintiff meaningful relief in its declaratory relief
action, rendering the appeal moot where the plaintiff in a settlement agreement
terminated its conduct and was released from liability for its past conduct; "[a]lthough the
11
parties have negotiated a 'side bet' concerning our resolution of this appeal, that wager
does not alter the fact that the personal jurisdiction issue is wholly divorced from any live
case or controversy"].)4 Our decision will have no effect on the parties' legal relations as
to any other cause of action brought by the Hensleys. The parties have fully and finally
settled those matters and we express no advisory opinion as to those causes of action.
Our conclusion that the appeal is not moot under these circumstances furthers the
strong public policy of encouraging settlements. (See Leung v. Verdugo Hills Hosp.
(2012) 55 Cal. 4th 291, 306.) But the contingent nature of the parties' settlement presents
a unique situation, implicating mootness principles. We discourage parties from reaching
agreements that arbitrarily stake payments or "bet" on the outcome of an appeal so as to
avoid rendering their case moot, or from creating an agreement divorced from the
controversy for the exclusive purpose of obtaining a decision on a matter. Where an
issue left to be decided is entirely unrelated to the controversy, parties risk a finding that
their settlement has mooted any appeal.
4 The matter also appears to fall within one of the discretionary exceptions to
mootness: that is, when a material question remains for the court's determination.
(Epstein v. Superior Court (2011) 193 Cal. App. 4th 1405, 1411 [citing cases].) A
material question exists when "the judgment, if left unreversed, would preclude a party
from litigating . . . an issue still in controversy." (Viejo Bancorp, Inc. v. Wood (1989)
217 Cal. App. 3d 200, 205.)
12
II. The Trial Court Erred as a Matter of Law by Excluding All Evidence of William's
Emotional Distress
A. Standard of Review
The parties agree that our review of the court's evidentiary ruling, which resolved
a question of law and applied law to undisputed facts, is de novo. Whether a plaintiff is
entitled to a particular measure of damages is a question of law subject to de novo
review. (Bermudez v. Ciolek (2015) 237 Cal. App. 4th 1311, 1324.) We emphasize that
the issue at hand is narrow: we do not address whether the Hensleys may maintain an
action for trespass or nuisance under these circumstances, SDG&E's liability under these
theories, or the sufficiency of the Hensleys' proof of the fact of emotional distress or its
extent. The question does not turn on factual disputes over the nature of William's
emotional distress and whether it in fact led to his aggravated physical conditions.
Indeed, any litigation of these issues is precluded by the parties' settlement, and any
exposition on them by this court is advisory. We merely decide whether some or all of
William's claimed damages for emotional distress are recoverable as a component of
annoyance and discomfort damages allowed in trespass and nuisance cases. If even a
part of those damages are recoverable, the trial court abused its discretion by excluding
evidence of all such damages, and we must reverse.
B. Underlying Undisputed Facts
The trial court had before it the following facts at the time of its ruling via lodged
discovery and other evidence. In 2007, the Hensleys resided at the property on Eastvale
Road in Poway, California with their daughter. On October 21, 2007, while William was
13
away on a business trip, wildfires occurred that required Linda and their daughter to
evacuate their home. Linda called William, who became worried about his family's
safety and was frustrated they were alone with no one to help them. He cut his travel
short and returned to San Diego, where he drove with Linda to a location and from a
distance watched the fire burn houses close to theirs, thinking there was a chance
everything was destroyed. Though their home was not completely destroyed, the
Hensleys were not able to return home permanently until late November 2007.
William has suffered from Crohn's disease since 1991. Before the fire, his Crohn's
disease symptoms were under control, though he had some flare ups and surgery was
required approximately once every five years. In discovery responses to whether he
claimed "physical injury" due to the fire, William answered that as a result of stress from
the fire, he experienced a substantial increase in his symptoms. He asserted that the fire
put his wife and daughter in danger, and he was "frustrated and upset that he couldn't help
them evacuate or do anything to help them save their property." When asked in
discovery if he was claiming damages for mental or emotional injury, William asserted
he suffered "annoyance, disturbance, inconvenience and mental anguish as a result of the
destruction wrought by the fire." He and Linda asserted that they purchased their
property for the large amount of trees on it; they both "looked forward to cultivating their
property and enjoying their trees" and "[s]ince the fire destroyed their trees, they have
lost their sense of privacy, which was really important to them." They stated that their
rebuilding process was frustrating and lengthy. William also claimed his exacerbated
Crohn's disease impaired his ability to work and caused him lost income. He stated he
14
incurred medical expenses for his Crohn's disease since the fire. In his deposition,
William described he had a "tremendous amount of stress" and worry as a result of the
fire, including due to working with the insurance adjuster, trying to get his losses
covered.
In 2012, William's treating physician wrote that "beyond a measure of reasonable
medical certainty . . . the stress created by the 2007 San Diego fires caused an increase of
[William's] disease activity, necessitating frequent visits, numerous therapies, and at least
two surgeries since that time."
C. Mental Distress Proximately Caused by a Trespass or Nuisance is Recoverable as
Annoyance and Distress Damages, Regardless of the Personal Physical Presence of the
Owners at the Time of the Trespass or Nuisance
The Hensleys contend the trial court erred by concluding based on Kelly, supra,
179 Cal. App. 4th 442 that emotional distress is not an element of recoverable damages for
trespass or nuisance. They maintain the court disregarded California Supreme Court and
appellate court precedent holding that emotional distress is a component of annoyance
and discomfort damages, and Kelly does not require actual physical presence or personal
observation to recover such damages for trespass or nuisance. According to the
Hensleys, Kelly merely requires that the plaintiff be a legal occupant and have legal
possession to recover for his or her annoyance and discomfort. They further point out
that William's claimed damages arise from distinct property torts, not merely negligent
conduct, and this court already recognized this principle in Gonzales v. Personal Storage,
Inc. (1997) 56 Cal. App. 4th 464.
15
SDG&E characterizes William's claim as for unrecoverable, "general" emotional
distress. It responds that under Kelly, supra, 179 Cal. App. 4th 442, emotional distress
damages are proper in trespass and nuisance actions "only if the distress naturally ensued
from trespass or nuisance—that is, annoyance or discomfort resulting from personal,
physical presence on the property invaded." According to SDG&E, William's alleged
stress is not compensable because it did not result from his personal physical presence on
the property during the fires, as he was out of town. SDG&E maintains his stress did not
result from his later physical presence on the property because he claimed to suffer
distress only because he and his family were forced to leave the property; he could not
help his wife and daughter and might not be able to return. They argue that his alleged
stress and exacerbated symptoms of Crohn's disease as a result of his repair projects, or
working with the insurance adjuster, did not naturally ensue from the trespass or
nuisance. SDG&E argues the Kelly rule is recognized by the Judicial Council and
incorporated into official jury instructions, and is in keeping with the "policies generally
restricting emotional distress damages." SDG&E further contends that we may affirm the
judgment on the theory that under Erlich v. Menezes (1999) 21 Cal. 4th 543 and other
authorities, emotional distress caused by negligent damage to property is not
compensable.
SDG&E does not dispute that emotional distress damages are recoverable in
trespass and nuisance cases. That proposition is indeed settled: Our high court and lower
courts have long held that once a cause of action for trespass or nuisance is established, a
landowner may recover for annoyance and discomfort, including emotional distress or
16
mental anguish, proximately caused by the trespass or nuisance. (Acadia, California,
Limited v. Herbert (1960) 54 Cal. 2d 328, 337 ["It is settled that, regardless of whether the
occupant of land has sustained physical injury, he may recover damages for the
discomfort and annoyance of himself and the members of his family and for mental
suffering occasioned by fear for the safety of himself and his family when such
discomfort or suffering has been proximately caused by a trespass or a nuisance"];
Herzog v. Grosso (1953) 41 Cal. 2d 219, 225-226; Kornoff v. Kingsburg Cotton Oil Co.
(1955) 45 Cal. 2d 265, 271-272 (Kornoff); Plotnik v. Meihaus (2012) 208 Cal. App. 4th
1590, 1607; Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal. App. 4th 153, 172,
disapproved on another ground in People v. Rogers (2013) 57 Cal. 4th 296, 330-331;
Armitage v. Decker (1990) 218 Cal. App. 3d 887, 905 ["The general rule is simply that
damages may be recovered for annoyance and distress, including mental anguish,
proximately caused by a trespass"]; Koll-Irvine Center Property Owners Assn. v. County
of Orange (1994) 24 Cal. App. 4th 1036, 1042, fn. 3 ["Damages for emotional distress can
be recovered in an action for private nuisance"; citing cases]; Smith v. County of Los
Angeles (1989) 214 Cal. App. 3d 266, 287-288 [" '[M]ental distress caused by the nuisance
created and maintained by the defendant is an element of loss of enjoyment' "; citing
Acadia, supra, 54 Cal.2d at p. 337]; Smart v. City of Los Angeles (1980) 112 Cal. App. 3d
232, 239-240; Alonso v. Hills (1950) 95 Cal. App. 2d 778, 780, 786-788.)
This is so even where the trespass or nuisance involves solely property damage.
(See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 986, fn. 10 ["precedent
in the law of nuisance and trespass establishes quite clearly that emotional distress
17
without physical injury is compensable"; citing cases]; Acadia, California, Limited v.
Herbert, supra, 54 Cal.2d at p. 337; Kornoff, supra, 45 Cal. 2d 265; Alonso v. Hills,
supra, 95 Cal.App.2d at pp. 786-788 [plaintiff suffered "distress in . . . mind, . . . mental
anguish and discomfort, annoyance, fright and shock" by reason of blasting operations
that caused weakened structural integrity to the building, exterior cracks to the building
and walls, damage to window sills and frames, and leaking plumbing].)
In Herzog v. Grosso, supra, 41 Cal. 2d 219, a neighbor blocked access to an
easement leading to a public road, forcing the plaintiff and his family to use a steeper and
more dangerous path. (Id. at pp. 222-223.) The trial court awarded the plaintiffs
damages for "nervousness, worry, and mental distress for the safety of themselves and
their daughter and others . . . ." (Id. at pp. 224, 225.) The California Supreme Court
upheld the award: "Once a cause of action for trespass or nuisance is established, an
occupant of land may recover damages for annoyance and discomfort that would
naturally ensue therefrom" and "in the present case the suffering caused by fear for the
safety of the daughter and visitors was a natural consequence of defendant's conduct and
an invasion of a protectable interest of an occupant of real property." (Id. at p. 226.)
Herzog was followed by Kornoff, in which the plaintiffs sued the owner and
operator of a cotton gin for damages to their real property and personal injury from
fumes, dust and lint. (Kornoff, supra, 45 Cal.2d at p. 266.) A jury initially found
plaintiffs had suffered injury only to their real property, not any personal injury. (Id. at
p. 267.) On a retrial of damages only, the jury was instructed that the plaintiffs were
entitled to discomfort and annoyance proximately caused by the trespass, and it reached
18
judgment again for the plaintiffs. (Ibid.) On appeal to the California Supreme Court, the
defendant argued that damages for annoyance and discomfort were error in the absence
of personal injury. (Id. at p. 271.) Before addressing that question, the court observed
that the plaintiffs had pleaded that the comfort and enjoyment of their home had been
diminished to the extent they had been unable to live normally and peacefully, and they
had suffered "severe nervous distress and mental anguish." (Id. at p. 272.) These
allegations, according to the high court, were "sufficient to permit damages for
discomfort and annoyance if such damages are otherwise proper." (Ibid.) The court held
they were proper in that case: "It appears to us that the discomfort and annoyance
suffered by plaintiffs is an injury directly and proximately caused by defendant's invasion
of their property and that such damages would naturally result from such an invasion. It
also appears to us that discomfort and annoyance may be suffered where there is no
physical injury suffered." (Ibid.)
Kornoff reviewed numerous cases including Alonso v. Hills, supra, 95 Cal. App. 2d
778, in which the Court of Appeal upheld a damage award for emotional distress as a
form of discomfort and annoyance even though the plaintiff was not home at the time of a
blast that caused a rock to destroy a bench near the plaintiff's daughter. (Alonso, at
p. 788.) The plaintiff testified in that case that he "could not rest or sleep because of fear
for his own security and that of his family . . . ." (Id. at p. 788.) According to the Alonso
court, "This is a form of discomfort for which plaintiff under the circumstances of this
case is entitled to recover, as well as for other discomfort not challenged on appeal. The
amount of the recovery for discomfort and annoyance is left to the sound judgment and
19
discretion of the trier of facts without necessity of specific evidence as to such amount."
(Ibid.) Kornoff also pointed out that in Green v. General Petroleum Corp. (1928) 205
Cal. 328, a trespass action in which the plaintiffs were forced to leave their home due to
oil drilling operations, the court upheld a damage award stating, " 'The law affords
redress by giving damages against a wrongdoer for the annoyance and discomforts
suffered in cases such as this.' " (Kornoff, supra, 45 Cal.2d at p. 274, quoting Green, at
pp. 336, 337.) It observed that in Judson v. Los Angeles Suburban Gas Co. (1910) 157
Cal. 168, "no impairment of plaintiff's health was involved"; in that case the plaintiff
asserted that smoke, odor, and noise produced by gasworks "interfered with his
comfortable enjoyment of his property . . . .' " (Kornoff, at pp. 274, 275.)
Kornoff thus upheld the award of emotional distress damages as part of the
plaintiffs' discomfort and annoyance even though the only injury plaintiffs suffered was
to their real property, rejecting the defendant's contention that the fear and shock
described in prior cases as part of annoyance and discomfort were personal injuries:
"While defendant's trespass here is not of the type to cause fright or shock or even
physical illness (as found by the jury), it obviously is of the type to cause plaintiffs much
annoyance and discomfort. Plaintiffs' property—lawns, flowers, shrubs, window screens,
hedges and furniture are, during the ginning season which lasts for approximately six
months of each year, covered with a thick coating of dust and lint and ginning waste.
This was specifically found to be a trespass and an injury to the real property. The
annoyance and discomfort suffered by plaintiffs as a result of the injury to the real
property is a natural consequence thereof." (Kornoff, supra, 45 Cal.2d at p. 273.)
20
Kornoff made clear that while the mental distress suffered by the plaintiffs there did not
rise to the level of fright or shock, it was nevertheless compensable.
Kornoff concluded: "The California cases appear to draw no distinction between
cases involving nuisance and those involving trespass in permitting an award of damages
for discomfort and annoyance directly resulting from an injury to real property. There
seems to be no sound reason to refuse [such an] award . . . since it is obvious that such an
injury may cause discomfort and annoyance without also causing an actual physical
injury to the person." (Kornoff, supra, 45 Cal.2d at p. 275.)
Under the above authorities, William's fear, stress and anxiety suffered as a direct
and proximate result of the fire and its attendant damage, loss of use and enjoyment are
compensable as damages for annoyance and discomfort. For purposes of the trial court's
in limine consideration of the damages issue, it was undisputed to a reasonable medical
certainty that William suffered stress due to the fire and its aftermath, even though he was
not physically present to see the fire ravage his house and land. It was undisputed based
on the parties' discovery that William's emotional distress in part encompassed fear for
his family's safety and feelings of helplessness while the fires forced their evacuation
without him. He suffered lost enjoyment of his property due to the destruction of
numerous privacy trees from the fire, and he is entitled to recover for attendant mental
suffering. (See Smith v. County of Los Angeles, supra, 214 Cal.App.3d at p. 288 [mental
distress caused by a defendant's nuisance "is an element of loss of enjoyment"].) The
notion that annoyance and discomfort, including emotional distress, "naturally ensues" or
is a natural consequence of an invasion of a protectable interest in real property is nothing
21
more than a recognition of the significance and importance of such interests. It cannot be
denied that annoyance and discomfort would naturally ensue when a fire damages a
family home and destroys unique and valued property features.
Given the posture of this case, it is not within our purview to decide whether
William's stress and ensuing exacerbation of Crohn's is unsupported by evidence,
unrelated to the fires, or too attenuated and speculative to be recoverable. The case has
not been tried to a jury, nor will it be. Having excluded any evidence of William's
emotional distress in its entirety on the theory that these damages are somehow distinct
from annoyance and discomfort, the trial court abused its discretion, and we reverse its
order.
2. Kelly is Unpersuasive Dicta on the Scope of Annoyance and Discomfort
Damages
We reject SDG&E's contention that in order for emotional distress damages to
"naturally ensue" from a trespass or nuisance, the owner or occupant must be personally
or physically present on the invaded property during the trespass or nuisance. As Kornoff
and Alonso demonstrate, the plaintiff need not be physically present when the invasion
occurs to recover for resulting emotional distress. Authorities decided since Kornoff are
in accord. Hassoldt v. Patrick Media Group, Inc., supra, 84 Cal. App. 4th 153, involved a
lawsuit including claims for trespass, nuisance, and intentional infliction of emotional
distress stemming from an improper and "severe[]" tree trimming that had occurred while
the plaintiffs were not present on their property. (Id. at pp. 158, 172.) On appeal from a
judgment in plaintiffs' favor, the Court of Appeal held that the trial court should have
22
granted a nonsuit on plaintiffs' cause of action for intentional infliction of emotional
distress because the plaintiffs' absence from their property precluded them from
establishing outrageous conduct personally directed at them. (Id. at p. 172.) However
the appellate court observed that its "ruling in no way affects the [plaintiffs'] right to
recover for emotional damage based on their remaining causes of action," including for
trespass and nuisance. (Hassoldt, 84 Cal.App.4th at p. 172, citing Kornoff, supra, 45
Cal.2d at p. 272 & Herzog v. Grosso, supra, 41 Cal.2d at p. 225.)
And SDG&E's proposition is not supported by Kelly, supra, 179 Cal. App. 4th 442.
SDG&E characterizes Kelly as the "leading case in California" on the scope of emotional
distress damages available in trespass and nuisance actions. We cannot agree with
SDG&E's characterization of the case. As we explain, Kelly is unpersuasive dicta on the
point, and relies on Colorado authority that we are not bound to follow.5
In Kelly, the defendant sparked a brush fire that caused significant damage to a
ranch owned by the plaintiff. On plaintiff's causes of action for trespass and negligence,
a jury awarded $543,000 in damages for the plaintiff's "discomfort, annoyance,
5 SDG&E urges us to follow Kelly because the Judicial Counsel cites to it in
comments to an official jury instruction, CACI No. 2031. Our rejection of Kelly resolves
that point. Though the Judicial Council endorses its official jury instructions and
encourages their use (Cal. Rules of Court, rule 2.1050(e)), "[t]he articulation and
interpretation of California law . . . remains within the purview of the Legislature and the
courts of review." (Cal. Rules of Court, rule 2.1050(b).) Moreoever, the fact the Judicial
Council adopted this instruction does not mean the prior BAJI instructions are defective
or outdated. (People v. Lucas (2014) 60 Cal. 4th 153, 294, overruled on other grounds in
People v. Romero and Self (2015) 62 Cal. 4th 1, 53, fn. 19; see also People v. Thomas
(2007) 150 Cal. App. 4th 461, 465.) No statute, rule of court or case mandates the use of
official jury instructions at the exclusion of other valid instructions. (See Thomas, at
p. 466 [addressing CALCRIM instructions].)
23
inconvenience or mental anguish" even though he did not reside on the property at the
time of the fire. (Kelly, supra, 179 Cal.App.4th at pp. 446-447, 450.) The trial court had
denied the defendant's in limine motion seeking to exclude evidence of plaintiff's
annoyance and discomfort damages on the ground he did not reside on the property at the
time the damage occurred, and its instructions to the jury made no reference to the
requirement that he occupy the property to recover such damages. (Id. at p. 455.)
The question on appeal was whether that omission in the jury instruction was
prejudicially erroneous; whether on the undisputed facts presented, plaintiff "legally . . .
occupied" the property so as to be eligible for such annoyance and discomfort damages.
(Kelly, supra, 179 Cal.App.4th at p. 455.)6 The court acknowledged that the parties had
agreed occupancy was required and that it entailed some physical presence on the
property, a proposition with which the court agreed. (Id. at p. 456.) The defendant on
appeal argued that an occupant was synonymous with "resident" and that only a resident
owner and or tenant could recover annoyance and discomfort damages. (Ibid.) The
plaintiff argued he "occupied" the property because he stored equipment and personal
property there. (Ibid.)
6 There was no question in Kelly that in general, damages for mental anguish
proximately resulting from a trespass are recoverable. The jury was instructed in part
that the plaintiff "may also recover damages that would reasonably compensate him for
the discomfort, annoyance, inconvenience and mental anguish proximately caused by the
Defendant's act of trespass. . . . The amount of damages to be awarded for discomfort,
annoyance, inconvenience and mental anguish, is left to the sound judgment and
discretion of the jury based upon the evidence." (Kelly, supra, 179 Cal.App.4th at p. 455,
fn. 3.)
24
The Court of Appeal held that by merely storing personal property on the land the
plaintiff did not occupy it for purposes of recovering such damages; but such damages
were only available to the "immediate and personal possessor" of property. (Kelly, supra,
179 Cal.App.4th at pp. 456, 457, 458.) In reaching that conclusion, it pointed out that the
California Supreme Court in Kornoff, supra, 45 Cal. 2d 265 recognized that damages for
annoyance and discomfort were recoverable by an "occupant of land" as long as the
damages would naturally ensue from a trespass. (Kelly, 179 Cal.App.4th at p. 456.) It
then stated: "We do not question that a nonresident property owner may suffer mental or
emotional distress from damage to his or her property. But annoyance and discomfort
damages are distinct from general damages for mental and emotional distress.
Annoyance and discomfort damages are intended to compensate a plaintiff for the loss of
his or her peaceful occupation and enjoyment of the property." (Ibid.) For these
propositions, the court relied on Colorado cases including Webster v. Boone
(Colo.Ct.App. 1999) 992 P.2d 1183, which Kelly stated were "consistent" with the
California Supreme Court's holding in Kornoff. (Kelly, 179 Cal.App.4th at p. 457.) Kelly
stated that "[l]imiting annoyance and discomfort damages to the immediate and personal
possessor of property is consistent with [California] authorities" and those cases
upholding such damage awards "have involved a plaintiff who was in immediate
possession of the property as a resident or commercial tenant." (Id. at pp. 457-458,
italics added, citing authorities including Kornoff, supra, 45 Cal.2d at p. 272 and Alonso
v. Hills, supra, 95 Cal. App. 2d 778.)
25
The Court of Appeal concluded that "the nature of the injury compensated by
annoyance and discomfort damages involves some personal effect that arises from the
plaintiff's personal, physical presence on the premises. Furthermore, the notion that
storage of personal property on the premises constitutes 'occupancy' is not consistent with
the general understanding of that term. . . . In common parlance, to 'occupy' means, as
relevant here, 'to reside in as an owner or tenant.' " (Kelly, supra, 179 Cal.App.4th at
p. 459.) Thus, it held a nonresident property owner who merely stores personal property
on the premises is not entitled to recover annoyance and discomfort damages from a
trespass. (Ibid.)
Kelly stands only for the proposition that legal occupancy is required to recover
damages for annoyance and discomfort in a trespass case, and that standard requires
immediate and personal possession, as a resident or commercial tenant would have.
Here, there is no dispute the Hensleys both owned and resided on their property, and they
meet the legal standard of occupancy necessary to claim damages for annoyance,
discomfort, inconvenience or mental anguish proximately caused by the trespass, as
the jury was instructed without controversy in Kelly. (Kelly, supra, 179 Cal.App.4th at
p. 455, fn. 3.) Kelly does not hold that an occupant must be personally or physically
present at the time of the harmful invasion to deem emotional distress damages "naturally
ensuing" therefrom. To the contrary, in citing authorities involving plaintiffs in
immediate possession as residents or commercial tenants, Kelly refers to Alonso v. Hill,
supra, 95 Cal. App. 2d 778, in which the plaintiff owner and occupant was not personally
present during one of multiple trespasses. (Kelly, at p. 458.) And Kelly's distinction
26
between "general" or "pure" emotional distress damages and damages for annoyance and
discomfort is not binding on us for two reasons. First, it was not a principle necessary to
the court's decision. (See City of San Diego v. Board of Trustees of California State
University (2015) 61 Cal. 4th 945, 958 [dictum is the statement of a principle not
necessary to the decision]; Simmons v. Superior Court (1959) 52 Cal. 2d 373, 378, 341
["Incidental statements or conclusions not necessary to the decision are not to be regarded
as authority"]; Contreras v. Dowling (2016) 4 Cal.App.5th 774, 787 [dictum is "binding
on no one"].) Second, it relies on Colorado authority, which we decline to follow.
(Episcopal Church Cases (2009) 45 Cal. 4th 467, 490 ["out-of-state decisions are not
binding on this court"]; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447, fn. 2.)
California law does not support the distinction in this context.
III. Negligence and Breach of Contract Cases Are Not Controlling in Cases Presenting
Tort Claims of Trespass and Nuisance
SDG&E asserts that Kelly is an application of the policies restricting damages for
emotional distress, and it reviews circumstances where such damages are not recoverable,
including for bystanders to medical procedures, breaches of contract, and negligence. It
points out that the restrictions ensure the validity and reliability of such damages, which
are less objectively verifiable than other types of injury; conserve judicial resources; and
avoid limitless liability. SDG&E argues that the trial court's ruling may be upheld on the
independent theory—stated in cases such as Erlich v. Menezes, supra, 21 Cal. 4th 543 and
Cooper v. Superior Court (1984) 153 Cal. App. 3d 1008—that emotional distress resulting
from property damage is not compensable. SDG&E argues this case presents a situation
27
where the Hensleys' "property was damaged by an invasion . . . resulting from the
defendant's alleged negligence . . . ."
The latter argument misapprehends the nature of the torts at issue. " 'The essence
of the cause of action for trespass is an 'unauthorized entry' onto the land of another.
Such invasions are characterized as intentional torts, regardless of the actor's
motivation.' " (Spinks v. Equity Residential Briarwood Apartments (2009) 171
Cal. App. 4th 1004, 1042; Church of Christ in Hollywood v. Superior Court (2002) 99
Cal. App. 4th 1244, 1252; Staples v. Hoefke (1987) 189 Cal. App. 3d 1397, 1402.)7
Nuisance, an unreasonable interference with the use and enjoyment of the plaintiff's land
without interference with possession (Wilson v. Interlake Steel Co. (1982) 32 Cal. 3d 229,
232; San Diego Gas & Electric. Co. (1996) 13 Cal. 4th 893, 938; Rancho Viejo, LLC v.
Tres Amigos Viejos, LLC (2002) 100 Cal. App. 4th 550, 562), also may be committed
without any element of negligence. (Sturges v. Charles L. Harney, Inc. (1958) 165
Cal. App. 2d 306, 318.)
7 Trespass may be committed "by consequential and indirect injury as well as by
direct and forcible injury." (Wilson v. Interlake Steel Co., supra, 32 Cal.3d at p. 232; see
Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal. App. 4th 1301, 1306.) The
only intent required to commit a trespass is an intent to enter the land regardless of
motivation; a trespass may be committed by an act that can be intentional, reckless or
negligent. (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 10, fn. 6,
quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 604, p. 704; see Miller v.
National Broadcasting Co. (1986) 187 Cal. App. 3d 1463, 1480-1481 [the intent of a
trespasser is simply an intent to be at the place on the land where the trespass allegedly
occurred, and a defendant "is liable for an intentional entry although he has acted in good
faith, under the mistaken belief, however reasonable, that he is committing no wrong"].)
28
Negligence and breach of contract cases are inapposite where the torts of trespass
and nuisance are involved. As we have summarized above, "precedent in the law of
nuisance and trespass establishes quite clearly that emotional distress without physical
injury is compensable." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965,
986, fn. 10; see Acadia, California, Limited v. Herbert, supra, 54 Cal.2d at p. 337;
Kornoff, supra, 45 Cal.2d at p. 272.) Where the sole damage from a trespass or nuisance
is to the property itself, emotional distress damages are not precluded. This is consistent
with the fact that in a tort case, the measure of damages is "the amount which will
compensate for all the detriment proximately caused thereby, whether it could have been
anticipated or not." (Civ. Code, § 3333; see Erlich v. Menezes, supra, 21 Cal.4th at p.
550; Miller v. National Broadcasting Co. (1986) 187 Cal. App. 3d 1463, 1481; see also
Rest.2d, Torts § 929(1)(c); Rest., Torts § 47, com. on clause b ["mental distress caused by
a tortious act is a matter to be taken into account in determining the damages recoverable
in an action of tort. This is so although the tort is one which is actionable even though no
tangible harm is done, as where the plaintiff recovers for a merely offensive and
intentional contact or where he recovers because the defendant has harmlessly intruded
upon his land"].)
The Hensleys correctly observe that this court previously recognized the
distinction in Gonzales v. Personal Storage, Inc., supra, 56 Cal. App. 4th 464, involving
plaintiff's claim of conversion of sentimental items of personal property. There, this
court explained that the restrictions on emotional distress damages involved in breach of
contract or negligence cases do not apply when a plaintiff's emotional distress is the
29
result of the defendant's commission of a tort arising from an invasion of a property
interest. (See Gonzales, at p. 475.) Gonzales distinguished negligence from the "distinct
torts" of conversion, trespass and nuisance, pointing out that "with respect to trespass, the
law is clear that '. . . damages may be recovered for annoyance and distress, including
mental anguish, proximately caused by a trespass.' " (Gonzales, at p. 475, quoting
Armitage v. Decker, supra, 218 Cal.App.3d at p. 905.) This court pointed out the
plaintiffs in Armitage were permitted to recover for distress they suffered " 'as a result of
having their property line buried under large amounts of dirt' " and that the evidence also
supported a conclusion that they "suffered distress due to the spillage of dirt onto their
property and the threat of interference with drainage on their property, as well as concern
over appellant's operation of the bulldozer on the berm." (Gonzales, at p. 475, citing
Armitage, at pp. 905-906.)
We emphasized the difference between negligent damage to personal property, for
which the law generally will not permit recovery of emotional distress damages, and the
conversion of personal property: " ' "The foundation for the action of conversion rests
neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted
interference by defendant with the dominion over the property of the plaintiff from which
the injury to the latter results. Therefore, neither good nor bad faith, neither care nor
negligence, neither knowledge nor ignorance, are of the gist of the action." [Citations.]'
[Citations.] Thus, where a warehouseman delivers stored household goods to a
corporation which appears to have a bona fide claim of ownership, the warehouseman
will be liable for conversion if the corporation is eventually unable to establish its title.
30
[Citations.] The liability of the warehouseman for conversion arises even though there is
no element of negligence involved." (Gonzales v. Personal Storage, Inc., supra, 56
Cal.App.4th at pp. 476-477.) This court also explained that the act of dominion would
provide the converter with very direct knowledge of the likely emotional consequence of
his or her interference, as opposed to the person who merely negligently destroys
personal property. (Id. at p. 477.) Accordingly, where the distinct tort of conversion is
involved, "there is far less likelihood that allowing recovery for emotional distress
damages will create liability which is out of proportion to the nature of the defendant's
act" and "considerably less justification for imposing the limits on emotional distress
damages which exist in negligence cases, such as Cooper [v. Superior Court, supra, 153
Cal. App. 3d 1008]."8 (Gonzales, at p. 477.) We concluded: "[N]otwithstanding further
developments in the law of negligence, damages for emotional distress growing out of a
defendant's conversion of personal property are recoverable." (Ibid.)
8 In Cooper v. Superior Court, supra, 153 Cal. App. 3d 1008, also relied upon by
SDG&E, the plaintiff's home was struck by defendant's tractor due to defendant's
negligence in permitting it to roll from where it was parked. (Id. at p. 1010.) In addition
to damages to her property, the plaintiff sought damages for emotional distress arising out
of the incident. (Ibid.) The defendant successfully moved for summary adjudication of
the emotional distress claim, contending the plaintiff could not state a cause of action for
emotional distress arising from damage to her property. (Ibid.) The Court of Appeal
upheld the summary adjudication, holding "recovery [for emotional distress arising out of
loss of property] is limited to cases where, at a minimum, a duty of care exists by virtue
of a preexisting relationship between the parties or where the damage arises out of an
intentional tort." (Id. at p. 1013.) SDG&E also points to Lubner v. City of Los Angeles
(1996) 45 Cal. App. 4th 525, in which plaintiffs sued the city for negligence after a city
trash truck rolled into the plaintiff's home, damaging the plaintiff's artwork. (Id. at pp.
528, 533.)
31
The same rationale is true for the torts of trespass and nuisance, invasions of
protectable interests in real property that may be committed regardless of negligence.
Gonzales supports the conclusion that emotional distress damages are available in cases
of trespass and nuisance where the mental anguish or emotional distress is proximately
caused by the invasion, and are not subject to the limitations on such damages imposed in
negligence cases.
SDG&E's reliance on Erlich v. Menezes, supra, 21 Cal. 4th 543 and other
negligence cases is unavailing. Erlich involved the defendant's breach of a contract to
build a house due to negligent construction. (Id. at pp. 549-550.) The court stated the
scope of its holding: "We granted review in this case to determine whether emotional
distress damages are recoverable for the negligent breach of a contract to construct a
house." (Erlich, at p. 548.) There, reviewing the differences between damages for torts
and damages for breach of contract, the court found the action did not support an award
of damages for emotional distress. (Id. at pp. 550-551, 554.) Though Erlich recognized
that certain conduct amounting to a breach of contract could become tortious, as where it
also violates a duty independent of the contract arising from principles of tort law (id. at
pp. 551-552), the jury there had concluded the defendant did not act intentionally or
commit fraud. (Id. at p. 554.) Thus, the mere negligent breach of contract in that case
was "not sufficient to support tortious damages for violation of an independent tort duty."
(Id. at p. 554.)
SDG&E points in isolation to Erlich's statement that " '[n]o California case has
allowed recovery for emotional distress arising solely out of property damage[.]' "
32
(Erlich v. Menezes, supra, 21 Cal.4th at p. 554, citing Cooper v. Superior Court, supra,
153 Cal.App.3d at p. 1012.) In making that statement, Erlich was observing that even if
the defendant's negligence gave rise to a sufficient independent duty to the plaintiffs,
such a finding would not entitle them to emotional distress damages: " 'The fact that
emotional distress damages may be awarded in some circumstances [citation] does not
mean they are available in every case in which there is an independent cause of action
founded upon negligence.' " (Id. at p. 554, italics added.) Because the plaintiffs' mental
suffering due to the negligent construction of the house " 'derive[d] from an inherently
economic concern,' " there was no precedent for an award of emotional distress damages
based on a finding of the defendant's negligence. (Id. at p. 558.) Erlich pertains only to
actions for negligent breaches of contract or negligence. It does not address nuisance or
trespass cases, or whether emotional distress damages are available in such cases at all.
Nothing in Erlich precludes or limits the Hensleys from seeking emotional distress
damages.
At oral argument, SDG&E’s counsel stated that under the settlement agreement
SDG&E will pay the Hensleys the additional sum of money if there is a trial on William's
emotional distress damages. But such a trial is precluded by the parties' conditional
settlement, which permitted this appeal. Our reversal gives the Hensleys what the
settlement contemplates, which is a determination in the Hensleys' favor on the legal
issue presented.
DISPOSITION
The judgment is reversed. The Hensleys shall recover their costs on appeal.
33
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
34