Kling v. Varastehpour CA2/1

Filed 4/24/23 Kling v. Varastehpour CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ANTHONY N. KLING et al., B308292
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC682319)
v.
ALIREZA VARASTEHPOUR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michelle Williams Court, Judge. Reversed.
Homan, Stone & Rossi, Gene S. Stone and Omar Subat for
Defendant and Appellant.
Law Office of David Knieriem, David Knieriem; Kling Law
Firm and Anthony N. Kling for Plaintiffs and Respondents.
____________________________
Defendant Alireza Varastehpour appeals from a judgment
in favor of plaintiffs and respondents Anthony N. Kling and
Cliffwood LLC (collectively, plaintiffs). Cliffwood LLC owns, and
Kling resides at, property neighboring a property owned during
the relevant period by Varastehpour. Kling controls Cliffwood
LLC through an intermediary entity.
Plaintiffs asserted two general claims at trial: First,
Cliffwood LLC, but not Kling, sought damages after a large tree
fell from Varastehpour’s property and damaged structures and
vegetation on Cliffwood LLC’s property; second, Cliffwood LLC
and Kling both sought nuisance damages arising from overgrown
vegetation and debris from Varastehpour’s property intruding
onto Cliffwood LLC’s property. The overgrown vegetation and
debris at issue in the second claim were unrelated to the fallen
tree that was the subject of the first claim.
The jury found in plaintiffs’ favor on all causes of action
against Varastehpour, and awarded identical damages to both
Kling and Cliffwood LLC. On appeal, Varastehpour contends the
identical damages awards make no sense given the different
claims brought by the parties, and argues the jury instructions
and testimony at trial confused the jury as to which damages
each plaintiff was entitled.
We agree the jury likely was misled by an instruction
erroneously stating that Kling was entitled to economic damages
for the fallen tree’s destruction of property, which Cliffwood LLC,
but not Kling, owned. The identical damage awards demonstrate
the prejudice caused by that erroneous instruction, which likely
caused the jury to conflate the two plaintiffs and their claims.
Accordingly, we reverse and remand for a new trial.
2
BACKGROUND
1. Parties and pleadings
This case involves neighboring properties at 160 North
Cliffwood Avenue (plaintiff property) and 170 North Cliffwood
Avenue (defendant property). During the period relevant to this
case, Cliffwood LLC owned plaintiff property, and Kling resided
there. Kling controlled Cliffwood LLC through an intermediary
LLC of which Kling was the sole member.
Varastehpour purchased defendant property in 2014 as an
investment property to rent out. In March 2017, Varastehpour
formed 170 Cliffwood LLC and transferred ownership of
defendant property to that entity.
Kling and Cliffwood LLC filed suit against Varastehpour on
November 3, 2017, adding 170 Cliffwood LLC as a defendant in
the second amended complaint filed November 13, 2018. The
allegations and causes of action in the pleadings narrowed by the
time of trial, and thus we do not describe the pleadings in detail.
In essence, plaintiffs sought damages for a tree that had fallen
from defendant property onto plaintiff property, damaging trees,
vegetation, and structures. Plaintiffs also sought damages for
foliage from defendant property that had overgrown onto plaintiff
property, including a tree, different from the aforementioned
fallen tree, that allegedly caused skin rashes.
2. Evidence at trial1
Trial took place in March 2020. Kling testified a 60- or
70-foot high acacia tree located on defendant property fell onto
1 We limit our summary to evidence relevant to resolution
of this appeal.
3
plaintiff property on January 22, 2017. According to Kling, the
fallen tree destroyed a lath house and arbor, damaged a portion
of a custom fence, and badly damaged a number of large fruit
trees and wisteria vines. Plaintiffs’ expert, a general contractor,
estimated that repair of the lath house, arbor, and fence would
cost $146,174. Plaintiffs’ second expert, a landscape architect
and arborist, estimated it would cost more than $300,000 to
replace the damaged trees and wisteria vines.
Apart from the fallen acacia tree, Kling testified regarding
other problems with overhanging vegetation from defendant
property. He testified trees on defendant property were dropping
leaves onto plaintiff property, and defendants had failed to trim
back hedges, weeds, and ivy hanging over plaintiff property. He
further claimed defendants’ gardeners would blow debris onto
plaintiff property. He testified a primrose tree2 on defendant
property overhanging onto plaintiff property had gotten into the
power lines, requiring the Los Angeles Department of Water and
Power to trim it back. The primrose tree also produced a bloom
that was a skin irritant, and Kling could not go near it. Kling
testified these problems had been ongoing since Varastehpour
purchased the property in 2014, forcing Kling to spend time and
money cleaning up debris and engage in repeated discussions
with defendants’ gardeners and leasing agent to address the
problems. There was no evidence at trial as to how much money
2 An arborist at trial identified the tree as Lagunaria
patersonii, and referred to it by the common name of “primrose.”
Other witnesses used a different name for the tree, which the
court reporter transcribed as a “colic” tree. This may be a
mistranscription; we therefore refer to the tree as a primrose tree
regardless of the term a particular witness used.
4
Kling had spent dealing with the overhanging vegetation and
debris.
Varastehpour called his own experts, an arborist and a
contractor. The arborist estimated the damage to the fruit trees
and wisteria from the fallen acacia tree totaled $9,250. The
contractor estimated it would cost $54,800 to rebuild the
damaged structures, an estimate that dropped to $44,162 if he
excluded a damaged concrete slab.
Both plaintiffs’ and defendants’ arborists agreed primrose
trees can cause skin irritation.
3. Conference regarding jury instructions
Following the close of evidence, the trial court and the
parties discussed what jury instructions to provide. The trial
court asked for clarification as to “which plaintiffs are making
which claims of which defendants.” The court stated that prior to
the conference, it had prepared a set of proposed jury instructions
based on the second amended complaint, “but I could not make it
work in a way that seemed logical to me all the way through, so I
think I’m probably misunderstanding what the claims are in the
case.”
Plaintiffs’ counsel stated there were two “basic claims.”
First, Cliffwood LLC was suing Varastehpour “for the damage
caused by the fall of the tree.” The causes of action underlying
this claim were negligence, trespass, and trespass to timber.
Second, Cliffwood LLC and Kling were suing Varastehpour and
170 Cliffwood LLC for nuisance arising from the overhanging
5
vegetation, the debris blown by defendants’ gardeners onto
plaintiff property, and the skin-irritating primrose tree.3
After further discussion, the trial court reiterated it had
had “trouble” preparing jury instructions “because I could not
come up with a logical way to talk about the damages, but now I
think we’ve got it.” Varastehpour’s counsel stated, “If the jury is
not already confused, they are going to become confused.”
Plaintiffs’ counsel responded, “My closing argument will make
this crystal clear.”
The trial court and parties then discussed the individual
jury instructions. Because the jury instructions are central to our
resolution of this appeal, we summarize that discussion in detail.
Without objection, the trial court made a number of
changes to the draft instructions to clarify the parties and issues
on particular claims. For example, the trial court removed
Kling’s name from instructions on negligence and trespass,
causes of action to which he was not a party, and specified on the
trespass and trespass to timber instructions that the alleged
trespass was from the fallen acacia tree, not the overhanging
foliage and debris. Unlike the trespass and trespass to timber
instructions, however, the private nuisance instruction did not
specify any particular conduct underlying that cause of action
(i.e. the overhanging vegetation as opposed to the fallen tree),
instead containing a general instruction that the jury must find
that Varastehpour and 170 Cliffwood LLC created a condition
3 170 Cliffwood LLC was not formed and did not assume
ownership of defendant property until after the acacia tree fell,
which is why it was a defendant solely on the nuisance cause of
action for overhanging vegetation and debris, and not the causes
of action arising from the fallen tree.
6
that was harmful to health, indecent or offensive to the senses, or
was an obstruction to the free use of property.
Following discussion of how to characterize Cliffwood LLC’s
and Kling’s different legal relationships to plaintiff property, the
trial court, with the parties’ acquiescence, amended the private
nuisance instruction to state “[t]hat Anthony Kling and Cliffwood
LLC owned/occupied the property at 160 North Cliffwood
Avenue.”
The parties jointly had proposed certain instructions
pertaining to damages that the trial court rejected because they
did not conform to CACI. The trial court replaced those
instructions with its own instructions, as modified after
discussion with the parties. The court and parties first discussed
the court’s proposed instruction No. 3900, entitled “Introduction
to Tort Damages—Liability Contested.” (Boldface & some
capitalization omitted.) The finalized instruction stated, in
relevant part, “The following are the specific items of damages
claimed by Anthony Kling and Cliffwood LLC: [¶] LOSS OR
DESTRUCTION OF PERSONAL PROPERTY (ECONOMIC
DAMAGE) [¶] A. The loss of Anthony Kling[’s] and Cliffwood
LLC[’s] trees, wisteria, lath house, arbor and fence. [¶] To
recover damages for the loss, Anthony Kling and Cliffwood LLC
must prove the fair market value of the trees, wisteria, lath
house, arbor and fence just before the harm occurred.” 4
4 As we address in more detail in our Discussion, post, the
parties’ proposed instruction No. 3900, although different in a
number of respects from the instruction the trial court ultimately
gave, did indicate, as did the finalized instruction, that Kling was
also seeking economic damages from the fallen tree, including the
damage to plaintiff property’s trees, wisteria, and structures. On
7
Instruction No. 3900 then listed the available items of
noneconomic damage, specifically “[p]ast loss of use or
enjoyment,” further stating, “No fixed standard exists for
deciding the amount of these noneconomic damages. You must
use your judgment to decide a reasonable amount based on the
evidence and your common sense.”
Later, the parties discussed the trial court’s proposed
instruction No. 3903, “Items of Economic Damage.” (Boldface &
some capitalization omitted.) This instruction was nearly
identical to the section on economic damages in instruction
No. 3900, stating that Kling and Cliffwood LLC were seeking
damages for the trees, wisteria, and structures. When discussing
instruction No. 3903, the trial court asked whether the damaged
plants and structures belonged to Kling or Cliffwood LLC. Kling
stated Cliffwood LLC was the owner. Accordingly, the trial court
deleted Kling’s name from instruction No. 3903. The finalized
version thus listed “the specific items of economic damages
claimed by Cliffwood LLC” as “[t]he loss of Cliffwood LLC’s trees,
wisteria, lath house, arbor, and fence.” Kling’s name remained in
the economic damages section of instruction No. 3900, however,
and the record does not indicate that the trial court and parties
discussed that aspect of the instruction further. The jury
ultimately received both instruction No. 3900 and instruction
No. 3903.
The trial court and parties also discussed instruction
No. 3934, “Damages on Multiple Legal Theories.” (Boldface &
some capitalization omitted.) This instruction listed the causes of
our own motion, we take judicial notice of the parties’ proposed
joint instruction No. 3900. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).)
8
action and available damages for each plaintiff, and instructed
the jury not to award the same item of damages on multiple
theories. Specifically, the finalized version of instruction No.
3934 read: “Kling and Cliffwood LLC seek damages from Alireza
Varastehpour under more than one legal theory. However, each
item of damages may be awarded only once, regardless of the
number of legal theories alleged.”
Instruction No. 3934 then stated the jury was to “decide
whether Alireza Varastehpour and 170 Cliffwood LLC are liable
to Anthony Kling” for “[n]uisance.” “The following items of
damages are recoverable only once under all of the above legal
theories: [¶] 1. Loss of use or enjoyment.”
Instruction No. 3934 further instructed the jury to “decide
whether Alireza Varastehpour is liable to Cliffwood LLC” under
theories of negligence, trespass, trespass to timber, or nuisance.
The items of damages, “recoverable only once under all of the
above legal theories,” were “1. Loss or destruction of property; or
[¶] 2. Loss of use or enjoyment.” At the request of 170 Cliffwood
LLC’s counsel, the trial court removed 170 Cliffwood LLC from
this portion of the instruction because it was not a defendant on
the negligence, trespass, or trespass to timber causes of action.5
5 The trial court appeared to err in entirely eliminating
170 Cliffwood LLC as a defendant from the portion of instruction
No. 3934 pertaining to Cliffwood LLC. It is true 170 Cliffwood
LLC was not a defendant on the negligence, trespass, or trespass
to timber causes of action, but it was a defendant on Cliffwood
LLC’s nuisance claim. The parties have not raised this issue on
appeal; therefore we do not address if or how this issue affected
the verdict.
9
After the trial court and parties finalized the jury
instructions as well as a special verdict form, the court instructed
the jury.
4. Closing argument
Following the jury instructions, the parties presented
closing argument. Plaintiffs’ counsel described for the jury “two
fundamental claims,” the first being the fallen acacia tree, and
the second being “all the junk that came over from [defendant
property] to [plaintiff property].” Counsel explained on the first
claim, the plaintiff was Cliffwood LLC and the defendant was
Varastehpour, “because, at the time the tree fell, they were the
owners of the two properties.” On the second claim, counsel
explained there were two plaintiffs, Cliffwood LLC as owner and
Kling as occupier of the property, and two defendants, because
ownership of defendant property shifted from Varastehpour to
170 Cliffwood LLC in 2017.
Plaintiffs’ counsel further described the first claim,
reiterating it was “the one with the one plaintiff and the one
defendant involving the giant acacia tree falling over,” and
stating the three legal theories underlying that claim were
negligence, trespass, and trespass to timber. “[F]ortunately,”
stated counsel, “[A]ll those three claims have the same basic
question you have to answer: Did Mr. Varaste[h]pour act as a
normal and reasonable person would act in regard to this tree
that fell over?” After recounting the evidence at trial indicating
liability, plaintiffs’ counsel added up the damages established by
plaintiffs’ experts, coming to $146,000 for the damaged structures
and $347,800 for the trees and wisteria.
Turning to the second claim, plaintiffs’ counsel stated it
was a nuisance claim arising from the “six years of junk that’s
10
coming over from Mr. Varaste[h]pour’s property and the [skin-
irritating tree] that makes the back corner of [Kling’s] property
unusable.” As to damages, counsel referred the jury to the jury
instructions, and stated, “[Y]ou are supposed to use your common
sense.”
Varastehpour’s counsel, in closing, questioned the evidence
of the condition of the acacia tree, challenged Kling’s credibility,
and noted the lack of evidence to support plaintiffs’ claimed
damages.
170 Cliffwood LLC’s counsel, in closing, stressed again for
the jury that the only claim against that entity was for nuisance
arising from overhanging foliage and blown debris, and argued
there was a lack of evidence to establish nuisance or damages.
In rebuttal, plaintiffs’ counsel challenged some of the points
raised by defendants’ counsel, and then addressed the special
verdict form. Counsel told the jury, inter alia, that the damages
line item on the verdict form for trespass to timber was “just for
the value of the trees. That’s what you write in there.”
Addressing the line item for Kling’s damages, counsel stated,
“[T]his is the claim, as I told you, for nuisance against Al[i]reza
Varaste[h]pour. That was the claim for nuisance for the first
three years they were there. And the claim against 170 Cliffwood
that was for the second three years from 2017 to 2020. Again,
this is the numbers I said use your common sense.”
Plaintiffs’ counsel then turned to the line item for Cliffwood
LLC’s damages, which counsel stated “is likely to be the largest
number you write on here.” Counsel stated, “That number
encompasses a whole lot of things,” including “damage to the
tree,” “damages to the lath house, to the arbor, to the fence,
basically, all of the damages as a result of the tree falling. “[I]n
11
addition,” counsel stated, “[I]t encompasses the claims for
nuisance,” against Varastehpour for the first three years he
owned the property, and against 170 Cliffwood LLC starting in
2017.
5. Verdict 6
In Sections 1 and 2 of the special verdict form, entitled
“Anthony Kling’s Claims” and “Cliffwood LLC’s Claims,”
respectively, the jury found Varastehpour liable to Kling on the
nuisance claim, and to Cliffwood LLC on the negligence, trespass,
trespass to timber, and nuisance claims. The jury found in favor
of 170 Cliffwood LLC on both plaintiffs’ nuisance claims, thus
leaving Varastehpour as the only liable defendant.
Under the portion of Section 2 addressing the trespass to
timber claim, the form stated, “If you find in favor of Cliffwood
LLC and against Alireza Varastehpour on its claim for trespass
to timber, what are Cliffwood LLC’s actual damages?” The jury
wrote in damages of $9,250.
In Section 3 of the verdict form, entitled “Anthony Kling’s
Damages,” the form instructed, “Complete this section only if you
find in favor of Anthony Kling on at least one of his claims (as
indicated in Section 1.)” The form then asked, “What are
Anthony Kling’s damages against Alireza Varastehpour?” The
jury wrote in damages of $57,640.
Section 4 of the verdict form, entitled “Cliffwood LLC’s
Damages,” similarly instructed the jury to “[c]omplete this
section only if you find in favor of Cliffwo[o]d LLC on at least one
6 In quoting the special verdict form, we omit boldface and
some capitalization. For ease of reading, we do not indicate each
specific instance in which we do so.
12
of its claims (as indicated in Section 2.)” The form asked, “What
are Cliffwood LLC’s damages against Alireza Varastehpour?”,
and the jury wrote in damages of $57,640, the same amount
listed for Kling’s damages.
6. Postverdict motions
Varastehpour filed a motion for a new trial or, in the
alternative, judgment notwithstanding the verdict.
Varastehpour argued the verdict constituted a double recovery,
because “[t]here was no evidence at trial that the ‘injury’ to each
Plaintiff was divisible, separate and distinct. There is only one
owner of the property . . . and that is the only Plaintiff to which
any harm could be caused.” Varastehpour further argued Kling’s
lack of ownership of plaintiff property deprived him of standing,
and that Cliffwood LLC was an unregistered foreign limited
liability company not authorized to bring an action in California
court.
Plaintiffs filed their own motion requesting the trial court
double their damages pursuant to the trespass to timber statutes
and Fulle v. Kanani (2017) 7 Cal.App.5th 1305.7
Following a hearing, the trial court ruled on both motions
in a single minute order. The court denied Varastehpour’s new
trial motion, finding Kling and Cliffwood LLC had “separate
claims for damages, one as an owner of the property and one as
the party occupying the property,” and the nuisance claim was
supported by substantial evidence.
7 Code of Civil Procedure section 733 and Civil Code
section 3346, subdivision (a) provide for damage multipliers when
a defendant, inter alia, injures trees on a plaintiff’s property.
13
The trial court granted plaintiffs’ motion, concluding under
Fulle that plaintiffs’ could recover double damages pursuant to
the trespass to timber statutes for “ ‘[a]nnoyance and discomfort
damages resulting from injuries to trees.’ ” In Kling’s case, the
court ruled the jury had found in his favor on the nuisance claim
“based [on] the trespass caused by Varastehpour’s tree,” and
therefore he was entitled to double damages, as was Cliffwood
LLC on the trespass and trespass to timber claims.8
7. Judgment
The trial court entered judgment in favor of Kling and
Cliffwood LLC against Varastehpour. The court awarded Kling
$115,280, which was the jury’s damage award doubled under the
trespass to timber statutes, and awarded an identical amount to
Cliffwood LLC. The court also awarded interest and costs.
Varastehpour timely appealed.
DISCUSSION
On appeal, Varastehpour argues the jury’s verdict
awarding identical damages to Cliffwood LLC and Kling was
“absurd,” given that Kling sought damages solely for nuisance,
whereas Cliffwood LLC sought additional damages under
8 The trial court’s conclusion that Kling’s nuisance claim
was based on the fallen acacia tree appears to conflict with
plaintiffs’ position at trial that Kling’s claim arose exclusively
from the overgrown vegetation and debris. Varastehpour,
however, does not challenge on appeal the trial court’s ruling
doubling plaintiffs’ damages, and we therefore need not resolve
this issue. In any event, our reversal of the judgment necessarily
reverses the damages awards, including the doubling of the
awards under Fulle.
14
theories of negligence, trespass, and trespass to timber.
Varastehpour contends “[s]pecial verdicts awarding identical
damage amounts on multiple theories of recovery . . . constitute
evidence of impermissible duplicative damages.” (Boldface
omitted.) He attributes the purported duplicative damages to
testimony at trial and jury instructions he claims confused the
jury as to whether Kling or Cliffwood LLC owned plaintiff
property.
We agree the jury instructions, specifically instruction
No. 3900, contained an error of law that requires reversal in this
case. “We review de novo whether a jury instruction correctly
states the law.” (Bader v. Johnson & Johnson (2022)
86 Cal.App.5th 1094, 1131 (Bader).) Although Varastehpour
does not discuss or specifically challenge instruction No. 3900 in
his appellate briefing, we have the discretion to raise issues on
our own motion, and at our request, the parties filed
supplemental briefing in compliance with Government Code
section 68081. (See San Joaquin Raptor/Wildlife Rescue Center
v. County of Stanislaus (1994) 27 Cal.App.4th 713, 741, fn. 12.)
Instruction No. 3900 stated that both Cliffwood LLC and
Kling were entitled to economic damages based on the fallen
acacia tree destroying structures and vegetation on plaintiff
property. This instruction was contrary to the evidence, the law,
and plaintiffs’ theory of the case. The evidence was undisputed
that Cliffwood LLC, not Kling, owned plaintiff property along
with the property’s structures and trees. Thus, Kling could not
suffer economic loss from the damage to those structures and
trees, and was not entitled to those damages. Indeed, plaintiffs’
counsel made clear, both to the trial court and to the jury during
closing argument, that Kling sought only noneconomic damages.
15
Those noneconomic damages, moreover, were not based on the
damage caused by the fallen tree, but instead, for loss of use and
enjoyment arising from the separate issue of the overhanging
vegetation and debris.9
The trial court itself implicitly confirmed the error in
instruction No. 3900 when it discussed with the parties the
materially identical instruction No. 3903, and realized Kling’s
name should be removed from that latter instruction. Neither
the trial court nor the parties, however, returned to instruction
No. 3900 to correct it, and therefore the jury received both the
incorrect instruction No. 3900 and the correct instruction
No. 3903.
The error in instruction No. 3900 was prejudicial. (Bader,
supra, 86 Cal.App.5th at pp. 1131–1132 [“ ‘Instructional error in
a civil case is prejudicial “where it seems probable” that the error
“prejudicially affected the verdict.” ’ ”].) The strongest indicator
of that prejudice is the jury’s award of identical damages to the
two plaintiffs, which we agree with Varastehpour makes little
sense given the substantially different claims asserted by each
plaintiff. The major items of damages at trial were the structures
and trees damaged by the fallen acacia tree, and the parties’
competing experts focused almost exclusively on those damages.
The nuisance damages for the overgrowth and debris were almost
9 We express no opinion whether Kling, as an occupant of
plaintiff property, could seek noneconomic damages for the
destruction to the property from the fallen tree, such as loss of
use and enjoyment. We merely note that plaintiffs’ counsel, in
his explanation to the trial court of plaintiffs’ claims, and in his
closing argument, disclaimed that Kling was seeking damages
from the fallen tree.
16
an afterthought, with no evidence offered to support a particular
award of noneconomic damages. It is difficult to imagine the jury
believed Kling was entitled to as much in damages for that
nuisance as Cliffwood LLC was for the destruction from the fallen
tree. It is more probable the jury, misled by instruction No. 3900,
erroneously awarded both plaintiffs the same damages from the
same underlying tortious conduct, the fallen tree. At the very
least, given the erroneous instruction, we cannot be confident the
jury did not do so.
We acknowledge, regardless of plaintiffs’ theory at trial, the
nuisance instruction did not limit the jury to awarding damages
based solely on the overgrowth and debris—the instruction
did not refer to any particular nuisance, instead stating
generally, inter alia, that the jury could impose liability based on
obstruction to the free use of property. Thus, it is conceivable the
jury awarded Kling nuisance damages arising from the fallen
tree, that is, the loss of use and enjoyment after the acacia tree
obstructed Kling’s use of plaintiff property.10 Those damages,
one may assume, would be greater than the damages for the
overgrowth and debris. Even under that scenario, however, it is
unlikely the jury would award Kling identical damages to
Cliffwood LLC, which asserted claims both for nuisance and
property damage. The greater probability is the jury wrongly
awarded Kling economic damages, either instead of or in addition
to nuisance damages.
10 We express no opinion whether a nuisance claim based
on the fallen tree is legally tenable, just that the instructions
themselves did not preclude the jury from imposing liability and
awarding damages on that basis.
17
Plaintiffs concede instruction No. 3900 was erroneous, but
dispute that it was prejudicial. Plaintiffs argue the jury did not
in fact issue identical awards to each plaintiff. Plaintiffs note the
verdict form listed trespass to timber damages of $9,250,
awarded solely to Cliffwood LLC. If that amount is subtracted
from Cliffwood LLC’s total award of $57,640, Cliffwood LLC’s
award for everything but the damaged trees is $48,390, which is
different from the $57,640 awarded to Kling on his nuisance
claim.11 Plaintiffs further claim there was no prejudice because
the other jury instructions were correct “and made clear the
position of the parties and the damages they sought,” as did
plaintiffs’ closing argument.
We reject these arguments for reasons similar to those
already discussed. Assuming the jury intended to award Kling
nuisance damages, and nothing more, while awarding Cliffwood
LLC the $9,250 for the damaged trees, as well as damages for
nuisance and the destroyed structures, it is exceedingly unlikely
the totals on these vastly different claims would be identical. The
identical awards belie plaintiffs’ contention that the jury followed
the correct jury instructions rather than the erroneous
instruction No. 3900. Again, the more reasonable probability is
the jury, confused by incorrect jury instructions, failed to
differentiate between the plaintiffs and awarded them the same
damages.
11 The special verdict form arguably is ambiguous as to
whether the jury intended the $9,250 for trespass to timber to be
included in the $57,640 as opposed to an additional award of
damages. We accept for purposes of this appeal the trial court’s
implicit conclusion that the $9,250 is included within the
$57,640.
18
Plaintiffs argue Varastehpour cannot challenge any errors
in the jury instructions on appeal because he failed to object to
them below. “ ‘[W]hen a trial court gives a jury instruction which
is prejudicially erroneous as given, i.e., which is an incorrect
statement of law, the party harmed by that instruction need not
have objected to the instruction or proposed a correct instruction
of his own in order to preserve the right to complain of the
erroneous instruction on appeal.’ [Citation.]” (Maureen K. v.
Tuschka (2013) 215 Cal.App.4th 519, 530 (Maureen K.); see Lund
v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7 [“A party
may . . . challenge on appeal an erroneous instruction without
objecting at trial.”].) As we have explained, jury instruction No.
3900 misstates the law by allowing Kling to recover economic
damages for property he does not own, and Varastehpour need
not have objected to the instruction below to challenge it now.
It is true that when a jury instruction is correct on the law,
but “ ‘ “is too general, lacks clarity, or is incomplete,” ’ ” an
appellant may not challenge the instruction on appeal unless the
appellant requested a different instruction in the trial court.
(Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1131.)
Plaintiffs suggest the error in instruction No. 3900 is factual, not
legal, in that it wrongly implies Kling is an owner of plaintiff
property entitled to economic damages. We fail to see how an
instruction stating a party is entitled to damages to which he is
not actually entitled is not legal error.
Plaintiffs further argue Varastehpour has forfeited any
challenge to instruction No. 3900 under the doctrine of invited
error. “The doctrine of invited error provides that a party may
not assert as a ground for reversal an error that he or she
induced the trial court to commit. [Citations.] ‘At bottom, the
19
doctrine rests on the purpose of the principle, which prevents a
party from misleading the trial court and then profiting
therefrom in the appellate court.’ [Citation.]” (Maureen K.,
supra, 215 Cal.App.4th at p. 530; Perlin v. Fountain View
Management, Inc. (2008) 163 Cal.App.4th 657, 667 [rejecting
challenge to erroneous jury instruction requested by appellants].)
Courts have held that “the invited error doctrine requires
affirmative conduct demonstrating a deliberate tactical choice on
the part of the challenging party.” (Huffman v. Interstate Brands
Corp. (2004) 121 Cal.App.4th 679, 706 (Huffman) [no invited
error when appellant did not request erroneous instruction and
there was no evidence appellant made a tactical choice to
permit the instruction]; see Khoiny v. Dignity Health (2022)
76 Cal.App.5th 390, 419–420 [no invited error as to jury
instruction in absence of evidence appellant misled the trial
court, and no invited error as to special verdict form to which
appellant agreed but for which appellant did not advocate].)
Plaintiffs contend the affirmative conduct test is satisfied
here because the parties jointly submitted a proposed instruction
No. 3900 that, similar to the instruction actually given, stated
that both Kling and Cliffwood LLC were suing for damages
arising from the fallen acacia tree, including damage to “their”
trees, wisteria, lath house, arbor, and fence. The implication of
plaintiffs’ argument is that, although the trial court ultimately
gave its own instruction No. 3900 rather than the one proposed
by the parties, Varastehpour was responsible for the error in that
instruction because he jointly submitted a proposed instruction
with the same error.
Plaintiffs are correct that the joint proposed instruction
also was erroneous, but the record does not support a conclusion
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that the instruction ultimately given was a product of any
“affirmative conduct demonstrating a deliberate tactical choice”
by Varastehpour. (Huffman, supra, 121 Cal.App.4th at p. 706.)
The parties’ proposed joint instruction was drafted and submitted
before plaintiffs’ counsel, at the beginning of the jury instruction
conference, clarified the theory of the case and the relationship of
the various claims and parties. The trial court and parties then
immediately set about reviewing and correcting the court’s own
packet of instructions, leaving no time for Varastehpour or
anyone else to consider the full implications of plaintiffs’ counsel’s
clarification. Mistakes were made apparently by all—not only in
inclusion of Kling’s name in instruction No. 3900, but also, in
omission of 170 Cliffwood LLC as a defendant on Cliffwood LLC’s
nuisance claim in instruction No. 3934. (See fn. 5, ante.) Even
when the trial court realized its mistake regarding Kling when it
reached instruction No. 3903, it failed to go back and make the
same correction on instruction No. 3900. Varastehpour’s counsel
made no comments as to including or not including Kling’s name
in instruction No. 3900. Under these circumstances, it appears
the error in instruction No. 3900 was an inadvertent oversight on
the part of the trial court and the parties, rather than a
deliberate choice on Varastehpour’s part. Accordingly, the
invited error doctrine does not bar a challenge to instruction no.
3900.
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DISPOSITION
The judgment against Alireza Varastehpour is reversed,
and the case is remanded for a new trial. Varastehpour is
awarded his costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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