Tsang v. Engelberg CA1/5 ( 2024 )

Filed 1/22/24 Tsang v. Engelberg CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ELLEN TSANG, as Trustee, etc.,
Cross-complainant and A167276
Appellant,
v.
(San Francisco City & County
CHARLES ENGELBERG, Super. Ct. No. CGC-13-532835)
Cross-defendant and
Respondent.
Plaintiff Ellen Tsang, acting as trustee for the Arza Trust,
filed a cross-complaint that alleged trespass and nuisance causes
of action against her neighbor Charles Engelberg. The trial court
concluded, after a bench trial, that Tsang had proven neither
cause of action. Tsang appeals from the judgment entered in
Engelberg’s favor and from a postjudgment order denying her
motion for new trial. We conclude that she has failed to meet her
burden on appeal to show error and affirm.
BACKGROUND
A.
In 1997, Engelberg bought a house on North Point Street in
San Francisco. Tsang lives in the building next door, which is
owned by the Arza Trust. Tsang is the successor trustee. The
west wall of Engelberg’s home and the east wall of Tsang’s home
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abut the lot line. Engelberg’s exterior front gate—which is
perpendicular to the lot line—similarly abuts a retaining wall
that Tsang claims is completely on her side of the property line.
The two neighbors’ proximity has led to reoccurring
discord, especially when it comes to the cooperation needed to
make repairs. In 2013, Engelberg filed a complaint that sought
equitable and legal relief against Tsang—for alleged intentional
infliction of emotional distress and nuisance—after he tried to
repair his home’s siding.1 In response, Tsang filed a cross-
complaint that sought damages for Engelberg’s alleged trespass
and nuisance.
Things came to a head again in 2019. For some time before
the events at issue in Tsang’s operative cross-complaint,
Engelberg’s front gate had not been functioning optimally—it
stuck and took excessive effort to close. In May 2019, Engelberg
hired E.R. to fix the gate. On May 30, 2019, Tsang observed (and
photographed) E.R. touching (and resting tools) on the east
portion of the retaining wall. She later discovered that metal
fixtures, bolts, and holes had been left behind on that eastern
portion of the retaining wall. Tsang alleged two causes of
action—for trespass and nuisance—that arise out of that work.
B.
The matter proceeded to a bench trial. At trial, the
evidence focused on the events that occurred on May 30, 2019,
whether (and to what extent) the retaining wall was damaged as
a result of those events, the noise and vibration caused by
Engelberg’s continued slamming of his gate, and whether the
entirety of the retaining wall sits exclusively on Tsang’s side of
the property line.
1In 2015, Engelberg dismissed (with prejudice) his
complaint against Tsang.
2
It appears that the only real disputes concern whether the
retaining wall was damaged and where that wall sits in relation
to the property line. Tsang presented the expert testimony of
Steven Viani, a licensed civil engineer, who opined both on the
costs to repair the damaged retaining wall ($14,632) and its
location. Although Viani testified that he was legally authorized
to conduct land surveys because he had passed an engineering
exam in 1979, he admitted (on cross-examination) that he was
not a licensed land surveyor.
Using a fiberglass tape measure and a survey map created
by Engelberg’s land surveying expert, Viani measured the
distance between the eastern-most portion of the retaining wall
and a known monument at the corner of Hyde and North Point.
As a result of his measurement, Viani determined that the
entirety of the retaining wall was within the boundaries of the
trust’s property line. On cross-examination, Viani testified that
he would use different equipment, such as a Total Station, when
he conducts his next survey because it would provide a more
precise measurement.
Engelberg’s land surveying expert, James Moran, who is a
licensed land surveyor, testified that a survey—prepared by him
and his company’s employees—established that the retaining
wall extends two and one-half inches over the property line onto
Engelberg’s property. Tsang objected—on hearsay and People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez) grounds—to admission
of Moran’s survey itself and to Moran relaying any
measurements he had not personally made or observed. The trial
court overruled these objections and admitted the survey into
evidence.
C.
After hearing the testimony, considering the exhibits
admitted into evidence (numbering more than 25), and reviewing
counsel’s trial briefs, the trial court concluded that Tsang had not
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sustained her burden to prove either cause of action. In its
written order after trial, the court explained that it found
“Moran’s testimony as a professional land surveyor persuasive.”
The court entered judgment in Engelberg’s favor and denied
Tsang’s motion for new trial.
DISCUSSION
Tsang argues that the trial court abused its discretion in
admitting Moran’s survey and allowing Moran to relay case-
specific hearsay in support of his expert opinion, that the trial
court erred in denying her motion for new trial, and that the
evidence compelled judgment in her favor. We disagree.
A.
As an appellate court, we must presume the trial court’s
judgment is correct. The appellant bears the burden of
affirmatively demonstrating both error and prejudice arising
from such error. (Howard v. Thrifty Drug & Discount Stores
(1995) 10 Cal.4th 424, 443; Gould v. Corinthian Colleges, Inc.
(2011) 192 Cal.App.4th 1176, 1181.) To do so, the appellant must
provide an adequate record (Hotels Nevada, LLC v. L.A. Pacific
Center, Inc. (2012) 203 Cal.App.4th 336, 348) along with reasoned
and intelligible legal argument supported by references to the
record and pertinent authority. (Hernandez v. First Student, Inc.
(2019) 37 Cal.App.5th 270, 277; Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246.) “ ‘A necessary corollary to this rule is
that if the record is inadequate for meaningful review, the
appellant defaults and the decision of the trial court should be
affirmed.’ ” (Gee v. American Realty & Construction, Inc. (2002)
99 Cal.App.4th 1412, 1416.)
Here, Tsang elected to provide a record of the documents
filed in the superior court via an appendix, pursuant to California
4
Rules of Court, rule 8.124.2 But her appendix lacks much of what
is required by the rules. Specifically, an appellant’s appendix is
required to contain “[a]ll items required by rule 8.122(b)(1),
showing the dates required [to determine the timeliness of the
appeal.]” (Rules 8.122(b)(2), 8.124(b)(1)(A).) The items required
by rule 8.122(b)(1) include any “judgment appealed from and any
notice of its entry,” any notice of intent to move for new trial, and
the register of actions. (Rule 8.122(b)(1)(B), (D), (F), italics
added.)
Although Tsang provides us with the judgment and order
denying her motion for new trial, she fails to provide us with the
register of actions, the notice of entry of judgment, or her notice
of intention to move for new trial. As a result of these gaps, we
are unable to properly determine whether, as is required for
appellate jurisdiction, Tsang’s notice of appeal was timely filed.
(See rules 8.104(a), 8.108(b); Code Civ. Proc., § 659, subd. (a)(2);
Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather
Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“appellate court has no
power to entertain [an untimely] appeal”].)
Rule 8.124(b)(1)(B) also requires an appellant’s appendix to
contain “[a]ny item listed in rule 8.122(b)(3) that is necessary for
proper consideration of the issues, including . . . any item that the
appellant should reasonably assume the respondent will rely on.”
This includes any exhibit admitted in evidence that is necessary
for proper consideration of the issues. (Rules 8.124(b)(1)(B),
8.122(b)(3)(B).) “[A]ll exhibits . . . are deemed part of the record”
(rule 8.124(b)(4)), but we do not receive any unless they are
included in an appendix (rule 8.124(b)(1)(B), (c)), or they are
transmitted pursuant to rule 8.224.
2Undesignated rule references are to the California Rules
of Court.
5
Despite these rules, Tsang’s appendix fails to include the
parties’ trial briefs, motions in limine, Engelberg’s opposition to
her motion for new trial, and properly marked copies of exhibits
admitted at trial.3 Tsang’s appendix does purport to include five
exhibits she moved into evidence and one of Engelberg’s exhibits.
However, many of the purported exhibits included in the
appendix are poorly identified—as they lack exhibit markings
altogether or, in some instances, contain markings that do not
match Tsang’s identification. We do not know whether the
documents provided are accurate copies of the exhibits admitted
by the trial court.
For the above reasons, the record fails to provide an
adequate basis for meaningful review of the trial court’s
judgment and order denying motion for new trial. Accordingly,
they are both presumed to be correct and must be affirmed. (Gee
v. American Realty & Construction, Inc., supra, 99 Cal.App.4th at
p. 1416.)
B.
In any event, the record we have before us compels us to
reject Tsang’s primary argument on the merits. Tsang insists the
judgment must be reversed because the trial court allowed
Engelberg’s expert on land surveying (Moran) to disclose
inadmissible, case-specific hearsay in violation of Sanchez, supra,
63 Cal.4th 665. The trial court did not abuse its discretion. (See
People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith)
[standard of review].)
3Because Tsang’s appendix does not include the required
register of actions (rules 8.122(b)(1)(F), 8.124(b)(1)(A)), we only
learned of the existence of some of these missing documents from
independently reviewing the trial court’s web site.
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1.
In relevant part, Sanchez clarifies the proper application of
Evidence Code sections 801 and 802 to expert testimony.4
(Sanchez, supra, 63 Cal.4th at p. 670.) Sanchez bars an expert
from relating “as true case-specific facts asserted in hearsay
statements, unless they are independently proven by competent
evidence or are covered by a hearsay exception.” (Id. at p. 686,
italics added.) “When any expert relates to the jury case-specific
out-of-court statements, and treats the content of those
statements as true and accurate to support the expert’s opinion,
the statements are hearsay. It cannot logically be maintained
that the statements are not being admitted for their truth.”
(Ibid., italics added.)
The Sanchez court’s construction of state evidentiary rules
has been held to govern the admissibility of expert testimony in
civil proceedings and bench trials. (People ex rel. Reisig v. Acuna
(2017) 9 Cal.App.5th 1, 9-10 [bench trial on civil nuisance action];
People v. Bona (2017) 15 Cal.App.5th 511, 515.)
2.
Tsang does not identify any out-of-court statements
(§ 1200) that are inadmissible under the hearsay rule.
Regarding the first level of hearsay, we agree with
Engelberg that the trial court did not abuse its discretion in
concluding that the survey qualified for admission under the
business records exception to the hearsay rule (§ 1271). Moran
testified that the survey was created in the regular course of his
surveying business (as were the recorded measurements), at or
near the time of the event recorded, by persons whose job it was
to create the records. (See § 1271.) Moran also testified that he
himself both oversaw creation of the survey, stamped it, and
4 Undesignated statutory references are to the Evidence
Code.
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conducted (in 2014, together with company technicians) the first
of two sets of underlying measurements in the field. Although
Moran was not present when, in 2021, technicians returned to
Engelberg’s property to electronically collect (pursuant to
Moran’s directions) further measurements, he testified that the
later data agreed with the previous measurements.
Tsang suggests more is required to satisfy the business
records exception—that because Moran did not prepare the
survey alone, the company’s technicians were also required to
testify. She cites no authority for this proposition. The authority
is to the contrary. For a business record to be admissible under
the exception, the testifying witness need not be the custodian,
the person who created the record, or one with personal
knowledge of the transaction, so long as there is evidence about
the record’s mode of preparation and its source of information.
(Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322.) Moran’s
testimony easily satisfies this standard.
Tsang’s real concern appears to be with the second level of
purported hearsay—the underlying measurement data contained
within the survey. First, we observe that Sanchez likely has no
application here because the only part of an expert’s testimony
that may be excluded as hearsay “is that relating ‘case-specific
facts about which the expert has no independent knowledge.’ ”
(People v. Veamatahau (2020) 9 Cal.5th 16, 26, some italics added
and some italics omitted, quoting Sanchez, supra, 63 Cal.4th at p.
676.) Given Moran’s testimony about his involvement in taking
the 2014 field measurements, which “agreed” with the 2021
measurements, it is far from clear that he lacks personal
knowledge of any measurement relayed to the court or contained
within the survey. Tsang certainly fails to meet her burden to
affirmatively demonstrate as much.
However, even if we assume that Moran lacks personal
knowledge of at least one (unidentified) case-specific
8
measurement that was relayed to the court, we conclude the trial
court did not abuse its discretion in admitting it. The trial court
stated that the measurements at issue were not hearsay, relying
on the rule that electronically generated data is not a statement
of a person. (See Simons, Cal. Evidence Manual (2023) § 2:2, pp.
78-80; Evid. Code, §§ 225, 1200; Goldsmith, supra, 59 Cal.4th at
p. 274 [“ ‘[t]he Evidence Code does not contemplate that a
machine can make a statement’ ”]; People v. Lopez (2012) 55
Cal.4th 569, 583.)
In her opening brief on appeal, Tsang barely grapples with
the trial court’s reasoning. She merely attempts to distinguish
the authority the court relied on by asserting (without any
citation to the record) that the measurements taken in this case
“were not machine-generated raw data.”
This does not meet her burden to affirmatively demonstrate
an abuse of discretion. (Nwosu v. Uba, supra, 122 Cal.App.4th at
p. 1246 [“ ‘[i]f a party fails to support an argument with the
necessary citations to the record, . . . the argument [will be]
deemed to have been waived’ ”].) Moran testified that the
equipment he and his technicians used (Trimble Total Stations)
are instruments that use an electronic beam to measure
distances and angles, and that the data is recorded electronically
by the instrument itself and then electronically imported into the
survey. There might be a human role or statement implicit in
taking electronic measurements using a Trimble Total Station
that would distinguish this case from the computer-generated
information at issue in People v. Lopez, supra, 55 Cal.4th at p.
583 and Goldsmith, supra, 59 Cal.4th at p. 274. However, Tsang
failed to develop either her opening brief or the record below to
affirmatively establish as much.
We need not and cannot consider Tsang’s additional
arguments.
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DISPOSITION
The judgment and order denying Tsang’s motion for new
trial are affirmed. Engelberg is entitled to his costs on appeal.
(Rule 8.278(a)(1), (2).)
BURNS, J.
WE CONCUR:
JACKSON, P.J.
SIMONS, J.
Tsang v. Engelberg (A167276)
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