Hellman v. La Cumbre Golf & Country ClubCOUNSEL
(1992) 6 Cal.App.4th 1224
Delwiche & Von Dollen and S.C. Von Dollen for Plaintiffs and Appellants. [6 Cal.App.4th 1227]
Kosmo, Cho & Brown, Frederick W. Kosmo, Griffith & Thornburgh and John R. Rydell for Defendant and Respondent.
STONE (S. J.), P. J.
Anita Hellman and M. Stanley Goldberg appeal from a judgment in favor of
respondent La Cumbre Golf and Country Club against appellants on their
cause of action for damages and injunction for nuisance. They contend:
(1) the evidence is insufficient to sustain the finding that the rate of
golf balls landing on their property has been the same since 1957; (2)
failure to issue a proper statement of decision is reversible error per
se; (3) the doctrine of coming to a nuisance is no longer viable; (4)
the statute of limitations is inapplicable to a continuing nuisance; and
(5) they met their burden of proof in showing existence of a nuisance.
We affirm the judgment.
Appellants own a home adjacent to the 10th fairway of La Cumbre Golf and
Country Club in the Hope Ranch area of Santa Barbara. The club has been
in operation since 1957. Appellants' home was built in 1970 and they
visited the house on three occasions before purchasing the property in
August 1985. On one visit, Mr. Goldberg discovered a golf ball in the
gutter but the seller said golf balls did not pose a problem. On another
occasion, Mr. Goldberg walked from the 10th tee down the 10th fairway
to pace the distance to the property line. Since he could not see the
house from the fairway, which is 75 to 80 feet higher than the house, he
concluded that golf balls would not be a hazard. Ms. Hellman expected
that living adjacent to a golf course might result in some golf balls on
After moving in, appellants discovered five to ten golf balls on their
property every week. Since 1985, Mr. Goldberg has collected
approximately 1,300 golf balls which were not retrieved by their owners.
Golf balls land on the property every day of the week with the heaviest
concentration on weekends. On several occasions the balls have almost
hit appellants. Both appellants' automobiles have been dented by golf
balls and Ms. Hellman accepted $1,000 less for her vehicle due to golf
ball dents when she sold it. Appellants are afraid to have guests
outside during the daytime and do not use the swimming pool for fear of
being hit by golf balls.
The typical golf hole consists of a tee area, fairway and hole. Every
golf hole at La Cumbre has three tee locations, a women's, men's, and
championship tee. The championship tee is farthest from the hole, 486
yards, the [6 Cal.App.4th 1228] men's tee is 448 yards, and the
women's tee 445 yards. Appellants' expert, Johnstone, testified that the
dimension of the safety standard for a golf hole can be illustrated by a
cone or wedge shape, narrow at the tee, and spreading to a distance of
150 feet on each side of the center line of the fairway at a point 150
yards from the tee and continuing down the fairway.
Respondent's expert, Olson, agreed essentially with this description
except that he testified the spreading out of 150 feet on either side of
the fairway center line does not occur until 250 yards from the tee.
Appellants' expert opined that a condition exists that is more hazardous
than would be normally designed in a golf tee due to the elevation of
the tee, the inclination of most right-handed golfers to slice the ball,
and the narrowness of the fairway at the property line. Mr. Johnstone
proposed two solutions to minimize or eliminate golf balls landing on
appellants' property: (1) move all the tees down off the hill to the
lower area, across from the far corner of appellants' home or (2)
abandon the current men's tees, move them to the current women's tee and
then add a hedge along the right side of the tee to help catch errant
Mr. Olson opined that from a design and setbacks safety standpoint, the
course met the standard practice at the time it was built and acceptable
standards of today. He also stated that the 10th tee is almost a
"signature" tee. Changing it would affect the playability, increasing it
from a men's par four to a par five. He indicated that moving the tee
would affect sales value of membership and that the course rating is
based upon the degree of difficulty and challenge of the holes. He did
suggest that changes in the degree of tilt of the tee and adding a
marker pole could eliminate many of the errant balls. Respondent stated
that it intended to adopt Mr. Olson's recommendations regardless of the
outcome of the trial.
Respondent's experts and witnesses testified that the club has averaged
100 players daily and that since 1959, the tees were in the same place
except for the championship tee which did not exist at first. The golf
professional who had worked at the club since 1957 had personally
witnessed only three to six balls hit into appellant's property.
Appellants were the first persons to complain.
The court ruled, in its tentative decision, that the evidence supports
that balls have landed on appellants' property at the same rate since
the club opened in 1957 and that appellants have not established that a
nuisance exists. The court ruled that based on all the circumstances, it
could not find that respondent's use of its property is unreasonable or
that it constitutes a nuisance. It held unnecessary the resolution of
respondent's affirmative [6 Cal.App.4th 1229] defense which
alleged the existence of a prescriptive easement. Had it been called
upon to make that determination, the court indicated it would have
concluded that a prescriptive easement exists under the authority of
MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693 [140 Cal.Rptr. 367].
When appellants requested a statement of decision, the court essentially
adopted its tentative decision. Appellants filed objections and
requested that the court answer 19 questions concerning the factual and
legal basis of its decision. The court refused to do so.
[1a] Appellants claim that the primary ground of this appeal is lack of
substantial evidence to support the judgment, most clearly demonstrated
by the insufficient statement of decision, which, they assert, is
reversible error per se. They contend that the trial court did not
adequately discuss the issue of unreasonable interference of their use
and enjoyment of the property due to respondent's activity.
 However, a reviewing court will not find unsupported the trial
court's findings merely because it might reasonably draw different
inferences from those the trial court reasonably drew unless it clearly
appears that under no hypothesis is there substantial evidence to
support the trier of fact's finding. (Murphy v. Ablow (1954) 123 Cal.App.2d 853, 858, 859 [268 P.2d 80].) Questions of credibility and resolution of conflicting evidence are for the trier of fact. (Ibid.)
 In reviewing the sufficiency of the evidence, our task begins and
ends with a determination whether any substantial evidence exists,
contradicted or uncontradicted, which will support the trier of fact's
conclusion. (Louis & Diederich, Inc. v. Cambridge European Imports,
Inc. (1987) 189 Cal.App.3d 1574,
1584 [234 Cal.Rptr. 889].)  " 'An inference is a deduction of fact
that may logically and reasonably be drawn from another fact or group of
facts found or otherwise established in the action.' " (California
Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1,
44 [221 Cal.Rptr. 171]; Evid. Code, § 600, subd. (b).) A deduction
drawn from inferences is just as probative in resolving an issue of fact
as is direct evidence. (Ibid.) Whether a particular inference can be
drawn from certain evidence is a question of law, but whether, in a
given case, the inference shall be drawn is a question of fact for the
trier of fact's determination. (175 Cal.App.3d, at pp. 44-45; Louis
& Diederich, Inc. v. Cambridge European Imports, Inc., supra, 189 Cal.App.3d 1574, 1584.) [6 Cal.App.4th 1230]
[1b] Here, the trial court could reasonably infer from the evidence that
the rate of golf balls descending on appellants' property had been
constant since the club opened; the same number of players used the club
now as then, the tees were in the same location, and five to ten balls
descended on appellants' property weekly since they moved to the
property in 1985.
 In rendering a statement of decision under Code of Civil Procedure
section 632, a trial court is required only to state ultimate rather
than evidentiary facts; only when it fails to make findings on a
material issue which would fairly disclose the trial court's
determination would reversible error result. (In re Marriage of Garrity
and Bishton (1986) 181 Cal.App.3d 675, 686-687 [226 Cal.Rptr. 485]; Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518,
1525 [246 Cal.Rptr. 823].) Even then, if the judgment is otherwise
supported, the omission to make such findings is harmless error unless
the evidence is sufficient to sustain a finding in the complaining
party's favor which would have the effect of countervailing or
destroying other findings. (In re Marriage of Garrity and Bishton,
supra, 181 Cal.App.3d 675,
687.) A failure to find on an immaterial issue is not error. (Ibid.;
Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co., supra, 200 Cal.App.3d 1518,
1525.) The trial court need not discuss each question listed in a
party's request; all that is required is an explanation of the factual
and legal basis for the court's decision regarding the principal
controverted issues at trial as are listed in the request. (Nunes,
supra, at p. 1525.)
 Civil Code section 3479 defines a nuisance as "[a]nything which is
injurious to health, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, ..." Whether or not a use in
itself lawful constitutes a nuisance depends upon a number of
circumstances: locality and surroundings, the number of people living
there, the prior use, whether it is continual or occasional, and the
nature and extent of the nuisance and of the injury sustained therefrom.
(McIntosh v. Brimmer (1924) 68 Cal.App. 770, 777 [230 P. 203].) The law
relating to private nuisance is one of degree. (Ibid.) Whether the use
is unreasonable or not is an inference to be drawn from all the facts.
The basic concept underlying the law of nuisance is that one should use
one's own property so as not to injure the property of another. (Lussier
v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92,
100 [253 Cal.Rptr. 470].) [7a] An action for private nuisance is
designed to redress a substantial and unreasonable invasion of one's
interest in the free use and enjoyment of one's property. (Ibid.) " 'The
invasion may be intentional and unreasonable. It may be unintentional
but caused by negligent or reckless [6 Cal.App.4th 1231] conduct;
or it may result from an abnormally dangerous activity for which there
is strict liability. On any of these bases the defendant may be liable.
On the other hand, the invasion may be intentional but reasonable; or it
may be entirely accidental and not fall within any of the categories
mentioned above.' " (Ibid.; see also Rest.2d Torts, § 822.)
Determination whether something, not deemed a nuisance per se, is a
nuisance in fact in a particular instance, is a question for the trier
of fact. (206 Cal.App.3d at p. 106, fn. 10.)
[1c] Here, the trial court's statement of decision recounted the facts
stated supra. underlying the challenged conduct. [7b] The initial
determination of what constitutes a nuisance includes a consideration of
conflicting interests leading to a conclusion whether the harm suffered
outweighs the utility of the conduct. (11 Witkin, Summary of Cal. Law
(9th ed. 1990) Equity § 153, p. 833.) That the plaintiff has acquired or
improved his land after a nuisance interfering with it has come into
existence is not in itself sufficient to bar his action but is a factor
to be considered in determining whether the nuisance is actionable.
(Rest.2d Torts, § 840D; see also 11 Witkin, op. cit. supra, Equity §
150, p. 830.)
[1d] From the evidence the court reasonably inferred that circumstances
that exist today have existed since the course opened for play in 1957.
The court also set forth the factors to consider, i.e., locality,
surroundings, prior use, and the nature and extent of the injury caused
thereby. It also noted that appellants came to the property with
knowledge that it was next to a golf course, which put them on at least
constructive notice that golf balls would be landing on their property.
(See Friedman v. Pacific Outdoor Adv. Co. (1946) 74 Cal.App.2d 946, 952 [170 P.2d 67].)
The statement of decision sufficiently sets forth the factual and legal
basis of the court's decision that appellants failed to show that
respondent's actions were unreasonable. Moreover, had the court answered
all of appellants' proposed questions, their cause would not be
advanced; the trial court resolved the conflicting testimony of the
experts in respondent's favor and substantial evidence supports that
relocating the tee, as requested by appellants, would have been unduly
burdensome compared to the type of intrusion on appellants' property.
Substantial evidence supports the trial court's decision that respondent
is not operating a nuisance.
Since the judgment is supportable without a decision whether respondent
perfected a prescriptive easement, we need not discuss whether the
statement of decision is sufficient on that issue. [6 Cal.App.4th 1232] The judgment is affirmed. Each party to bear its own costs on appeal.
Gilbert, J., and Yegan, J., concurred.