(Super. Ct. No. 37-2008-00054578- CU-PO-NC) APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas III, Judge. Reversed.
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
This case involves a dispute between adjoining property owners over trees at or near their common border. Appellants Fred Starr (Fred) and Indra Starr (Indra) (together, the Starrs) own residential real property located at 7204 Babilonia Street, Carlsbad, California (Starrs' property). The Starrs purchased their home in 1998.
Respondents Eugene Vanderpol (Eugene) and Jenny Vanderpol (Jenny) (together, the Vanderpols) own residential real property located at 7165 Obelisco Circle, Carlsbad, California (Vanderpols' property). The Vanderpols purchased their home in 2000.
The Vanderpols sued the Starrs in 2009, alleging the Starrs "wrongfully maintained, planted and/or installed numerous trees, shrubs and/or similar plants . . . near the common property line [of the parties] at such a height and density so as to be annoying and damaging to [the Vanderpols]." The Vanderpols alleged a cause of action for private nuisance based on California's "spite fence" statute, Civil Code*fn1 section 841.14, and based on ordinary nuisance principles, sections 3479 and 3481, and sought injunctive and declaratory relief in their second and third causes of action, respectively.
In the special verdict form under the rubric of "Spite Fence Statute," the jury found in question No. 1 that the Starrs were "maliciously maintaining trees that unnecessarily exceed 10 feet for the dominant purpose of annoying [the Vanderpols]." The jury next found in question No. 2 that the Starrs' conduct was a "substantial factor in causing harm" to the Vanderpols.
In question No. 3 under the rubric of "Nuisance," the jury found that the Starrs did not "create a condition that was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." During its deliberations, the jury specifically asked whether question No. 3 of the special verdict "applie[d] to leaves, debris, and/or view?" Counsel of the parties stipulated that question No. 3 applied only to "leaves and debris, not view," and the jury was instructed accordingly. (Italics added.)
Despite the jury's finding on question No. 3, the verdict form directed the jury to question No. 9 to determine damages, if any. The jury awarded the Vanderpols $57,000 for their "[p]ast economic loss" based on the "lost value of property," but refused to award any damages for "other past economic loss" or for "[p]ast non-economic loss, including inconvenience and emotional distress."
At a subsequent hearing, the trial court relied on the jury's findings to enjoin the Starrs from maintaining any of their trees situated along the parties' property line "at a height in excess of fifteen feet, nine inches, when measured from the base of the tree to the top of each tree, for a period of more than thirty (30) consecutive days" as long as the Starrs "own or control for their benefit" their property.
The trial court, sitting in equity, issued the injunction and stated the Vanderpols would not get the damages awarded by the jury because with the trees trimmed as required by the injunction there would be no change in the market value of the Vanderpols' property.
On appeal, the Starrs contend the trial court erred when it entered judgment and a permanent injunction against them because the Vanderpols failed to prove they sustained a legally cognizable injury for purposes of sections 841.4 and 3479. The Starrs also contend for the first time in their reply brief that a row of trees cannot constitute a spite fence within the meaning of section 841.4.*fn2
The Vanderpols contend that once the jury made true findings on question Nos. 1 and 2 of the special verdict, they established a "nuisance per se" under a "spite fence theory" and thus were entitled to damages and injunctive relief.
As we explain, our interpretation of California's spite fence statute leads us to conclude: (i) a row of trees can be a "structure in the nature of a fence" for purposes of section 841.4 and (ii) the special verdict was defective and therefore, the Vanderpols did not satisfy the injury requirement under that statute. As such, the Vanderpols were not entitled to damages or injunctive relief based on the Starrs' maintenance, or lack thereof, of the trees.
The rear of the Vanderpols' property runs along the northern, rear border of the Starrs' property. The houses are situated on a hillside, with the Starrs' property located below the Vanderpols' property. Both houses have views of the Pacific Ocean.
When the Vanderpols purchased their home, they observed eucalyptus trees (trees) on the Starrs' property below. However, the trees then did not block their view and, in any event, the then-owner of the property indicated there was an arrangement with the property owner below to keep the trees trimmed to heights that would not disrupt the view. Eugene estimated the trees were then about nine to 12 feet tall and then observed the trees had recently been trimmed. Fred testified at trial that they had in fact trimmed the trees in 1999, shortly after they moved into their property.
In June 2001, Eugene approached the Starrs about trimming the trees. At a subsequent meeting at the Vanderpols' house, Indra said she did not want the trees trimmed to the point where she could see the Vanderpols "big ugly house" or words to that effect.*fn3 The Starrs agreed the trees could be ...