IBARRA v. PAPIERNIAK
California Court of Appeals, First District, Division Three
(May 10, 2018) UNPUBLISHED
McGuiness, Acting P.J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC10505792)
Appellant Martina M. Ibarra (Ibarra) appeals from a judgment entered after a jury found in favor of respondents Duane and Leslie Papierniak (together, the Papierniaks) and STC Construction and Engineering, Inc., (STC) in her action against respondents for damage to her condominium. She contends: (1) the trial court erred in ruling she had no standing to proceed on her claim for damage to the common area of the condominium building; (2) the court erred in declining to give three proposed special jury instructions; (3) there is insufficient evidence to support the jury's findings; (4) the court erred in denying her motion for a new trial; (5) the court erred in ruling that the Papierniaks's offer of settlement under Code of Civil Procedure, section 998 (998 offer) was valid, or alternatively, in finding that the expert fees the Papierniaks incurred—and which the court ordered Ibarra to pay pursuant to the 998 offer—were reasonable.
We conclude the trial court erred on the issue of standing and therefore reverse and remand the matter for a new trial on Ibarra's claim against STC for damage to the common area of the condominium building. We reject Ibarra's remaining contentions.
We affirm the judgment as to the Papierniaks as explained below.
FACTUAL AND PROCEDURAL BACKGROUND
Ibarra is the owner of 39 Lake Street, the upper unit of a two-unit condominium building located at 39-41 Lake Street in San Francisco. Her husband, Crisostomo Ibarra, was the previous owner but transferred title to her in 1998. The lower unit, 41 Lake Street, was owned by Sheryl L. Patterson, as trustee of the Jackson Kyle Patterson Investment Patterson Trust. Jackson Kyle Patterson (Kyle Patterson) was the beneficial owner and resident of that unit.
39-41 Lake Street is a common interest development that is governed by the 39-41 Lake Street Homeowners Association (HOA) and the applicable Covenants, Conditions, and Restrictions (CC&Rs). Under the CC&Rs, the HOA is an unincorporated nonprofit association and is vested with the power to control and maintain the common areas of 39-41 Lake Street, including the foundation. The owner of 39 Lake Street and the owner of 41 Lake Street each hold a 100 percent interest in their individual units as well as an undivided 50 percent interest in the common areas. Ownership of a unit includes a membership in the HOA, which cannot be severed or transferred unless ownership in the unit ceases or is transferred. Any action taken by the HOA requires an affirmative vote of 100 percent of the owners, and a tie vote must be resolved through arbitration.
The Papierniaks were the owners of 45 Lake Street, the property adjacent to the west of 39-41 Lake Street. In 2008, the Papierniaks decided to remodel their home. They hired licensed contractor and civil engineer, Sean Condry, and his company, STC, to perform work including drafting plans, obtaining approval of the plans by the City and County of San Francisco (the City), obtaining proper permits, and replacing the foundation.
Lesley Papierniak testified that more than 30 days before any construction began, she hand-delivered letters to all adjacent building owners, notifying them of the planned construction project, inviting them to their home to review the plans with the project architect, and providing an opportunity to ask any questions or express any concerns. She recalled dropping off a letter in the mail slot at Ibarra's front door. Ibarra and her husband testified they did not receive any notice from the Papierniaks that they were doing construction or replacing their foundation, and were also never notified as to when any construction or excavation would begin, or the depth of any excavation. Two neighbors including Kyle Patterson attended the meeting at the Papierniaks's home. Neither Ibarra nor her husband attended the meeting.
After the construction was complete, Ibarra and her husband sent a letter to the Papierniaks informing them that their construction work had caused damage to 39 Lake Street. Ibarra subsequently brought an action against the Papierniaks and STC. In her second amended complaint, which is the operative complaint, Ibarra, "individually and on behalf of 39-41 Lake Street Homeowners Association," alleged causes of action for general negligence and premises liability. She alleged that STC began the construction work without first receiving permits or licenses, and without taking precautions so as not to damage her property. She alleged that the damage Papierniaks and STC caused to her property included foundation damage and cracking on the ceilings, walls, and other interior surfaces.
Kyle Patterson and Sheryl L. Patterson, Trustee of the Jackson Kyle Patterson Investment Patterson Trust, were not parties to this lawsuit. According to Ibarra, Kyle Patterson did not wish to participate in the lawsuit.
On April 24, 2012, the Papierniaks made a 998 offer to Ibarra in the amount of $1,000, and made a separate 998 offer to the "plaintiff Homeowner's Association" in the amount of $9,000. Ibarra did not accept the 998 offers. On December 21, 2012, the Papierniaks made another 998 offer to the HOA in the amount of $70,000. The Papierniaks did not increase their 998 offer to Ibarra.
Code of Civil Procedure, section 998, "establishes a procedure for shifting the costs upon a party's refusal to settle. If the party who prevailed at trial obtained a judgment less favorable than a pretrial settlement offer submitted by the other party, then the prevailing party may not recover its own postoffer costs and, moreover, must pay its opponent's postoffer costs, including, potentially, expert witness costs. (§ 998, subd. (c)(1).)" (Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 798.)
During a jury trial, Ibarra and her husband testified that they saw cracks appear on their walls during the Papierniaks's remodel, and that the cracks began to increase across other walls as well as the ceiling. Crisostomo Ibarra testified that at some point, 39-41 Lake Street became visibly leaning towards 45 Lake Street.
Ibarra's experts—structural engineer Michael Buscovich and soil engineer Edward Lau—testified regarding their findings and opinions. Together, they conducted "test pits" in order to determine what the soil condition was underneath the building and the foundation footing, and to determine what kind of foundation footing supported the building. Based on their observations of the test pits, Buscovich and Lau testified that 39-41 Lake Street and 45 Lake Street were built on "dune sand" and that the foundation of 39-41 Lake Street was made of bricks. They testified that the excavation at 45 Lake Street went under the bottom of the foundation of 39-41 Lake Street.
In the first test pit, they found a gap between the bottom of the foundation of 39-41 Lake Street and the top of the soil, so that the foundation was floating on air. In the second test pit, they found a "void" of at least four feet long and at least eight inches in height, and that the foundation of 39-41 Lake Street at that section was essentially destroyed. They testified there were two rebars sticking from 45 Lake Street into 39-41 Lake Street, underneath the foundation, and wood right along the property line between the two properties. They did not see any evidence of grouting or underpinning. Buscovich and Lau opined that STC went under the foundation of 39-41 Lake Street without taking the appropriate measures, thereby destabilizing the sand underneath 39-41 Lake Street, causing it to run, and destroying its foundation. They opined that the presence of the rebar and wood reflected STC's attempt to hold the sand they found was collapsing into them—a technique known as "soil nailing."
Buscovich and Lau testified that the construction at 45 Lake Street caused damage to the foundation of 39-41 Lake Street, which then caused interior damage to the 39 Lake Street unit. Buscovich testified that the cracks were consistent with differential settlement as diagonal cracks, or "tension cracks." He testified that evidence of tension cracks could be seen in the walls of 39 Lake Street.
Defense experts Charles Allen and Lawrence Keil opined that the construction project did not cause damage to 39-41 Lake Street. Allen, a civil engineer, testified that the claimed damage to 39-41 Lake Street and Ibarra's unit pre-existed the remodeling project. There were several possible causes of such damage, including the fact that a post had been removed in the garage prior to Ibarra's ownership, and the fact that 39-41 Lake Street was a one-hundred-year-old building with a failing foundation that had caused the building to shift over time. Allen saw some damage to Ibarra's unit that was possibly new, but any new damage was solely cosmetic. Allen believed that STC performed "excellent" "high quality" work.
The defense presented evidence that when the building was converted into a condominium in 1985, certain support structures in the lower level garage of 39-41 Lake Street were removed to accommodate additional parking. Experts on both sides agreed that before the Papierniaks began construction on the building, the building's floors were sagging in the middle. According to the defense experts, this resulted from the prior removal of the support structure from the garage and/or the settlement of the remaining posts.
Keil testified that the foundation at 39-41 Lake Street, which was "probably over a hundred years old," was made of brick. The mortar that was used "doesn't hold up very well over time." The foundation at 39-41 Lake Street had deteriorated, and the mortar between the bricks were so loose and soft that they could simply be brushed away. Keil did not see any recent distress to the bricks. He saw significant prior decay and distress on the east side of 39-41 Lake Street, the side opposite from the Papierniaks's home. He opined that the foundation of 39-41 Lake Street had outlived its useful life and should have been replaced a decade before the Papierniaks's construction project.
Condry testified that during the process of replacing the Papierniaks's brick foundation with a concrete foundation, he inspected each section of the foundation as it was being dismantled and poured. The City's inspectors inspected the work for each section before the concrete was poured, and was never critical of the method that was used to replace the Papierniaks's foundation. The City conducted numerous inspections, all of which the construction project passed. According to Condry, there were no issues or problems with the soil on the Papierniaks's property. Rather, the soil was wet, stiff, and had body to it. He did not witness any "void" in or around the foundation of 39-41 Lake Street and was never told of any such void by any workers.
Allen and Keil did not dispute that the void existed, and also acknowledged the presence of the rebars and wood. They explained that STC placed the rebars and wood in order to hold the sand in place.
During trial, there was also testimony relating to whether Ibarra had the authority to bring a claim for damage to the foundation as a representative of the HOA. Ibarra testified she believed she was the president of the HOA by virtue of owning 39 Lake Street. Kyle Patterson testified there were no elections and that he did not recognize Ibarra as the HOA president. At the close of evidence, the Papierniaks and STC each moved for a partial directed verdict on the ground that the evidence presented at trial showed that Ibarra had no standing to claim damages to the foundation of 39-41 Lake Street because the foundation was a "common area" under the CC&Rs, and the right to sue for such damages was held by the HOA, not Ibarra individually.
The trial court granted the motion, ruling that Ibarra lacked standing to pursue a claim for damage to the common area—the foundation—of 39-41 Lake Street. The court found that because there was no evidence Ibarra had the authority to bring an action on behalf of the HOA, and because the HOA was not a party to the action, Ibarra's claim was limited to damage to her individual unit. The court stated, "[Civil Code, section 1368.3 [currently Civil Code, section 5980] does outline the homeowners association's standing to sue." Citing several cases in which courts allowed homeowners associations to pursue claims for damage to common areas under Civil Code, section 5980, the court found "that the real party in interest as to the damage of the common area is 39-41 Lake Street Condominium Association. Not Martina Ibarra, not Martina Ibarra on behalf of, because she has no standing to sue." The matter therefore proceeded only as to Ibarra's claim for damage to the 39 Lake Street interior, and not the foundation.
The jury unanimously found the Papierniaks were not negligent. The jury found that STC was negligent but that its negligence was not a substantial factor in causing damages to Ibarra's unit—39 Lake Street. Judgment was entered in favor of respondents and against Ibarra on October 3, 2013.
The next day, the Papierniaks filed a memorandum of costs based on their 998 offer and requested various costs including $84,355.95 in expert fees. Thereafter, Ibarra filed a motion for judgment notwithstanding the verdict (JNOV) and a notice of intention to move for a new trial. Among the reasons Ibarra cited in her motion for a new trial was the presence of new evidence. The following week, she filed a motion to tax the costs claimed by the Papierniaks. She asserted the Papierniaks's 998 offer could not form the basis of an order for costs because the offer was unreasonable and there was no probability of it being accepted. She also claimed the costs sought were unreasonable in amount.
On December 19, 2013, the trial court denied Ibarra's post-trial motion for a new trial, motion for JNOV, and motion to tax costs. The court awarded $77,378.14 to the Papierniaks in expert fees, then reduced the award to $60,878.71 after reviewing the correspondence between Ibarra's attorney and the Papierniaks's attorney regarding what each believed the expert fees award should be. The court awarded $22,429.28 in prevailing party costs to STC.
DISCUSSION 1. Standing - Damage to Common Area
Appellant contends the trial court erred in ruling she had no standing to pursue a claim for damage to the common areas of 39-41 Lake Street. We agree.
"Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute." (Code Civ. Proc., § 367.) "A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law." (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.) A real party in interest has " 'an actual and substantial interest in the subject matter of the action,' and stands to be 'benefited or injured' by a judgment in the action." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 54-55.) "[O]nly parties with a real interest in a dispute have standing to seek its adjudication." (Killian v. Millard, supra, 228 Cal.App.3d at p. 1605.) The issue of standing is a legal issue that we review de novo. (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974.)
In Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224 (Friendly Village), the court addressed whether a homeowners association had standing to pursue a claim for damage to the common areas of a condominium building it managed, where, as here, the individual unit owners owned the common areas as tenants in common and were responsible for the cost of any necessary repairs, in their proportionate shares. (Id. at p. 225.) Noting that "[a]n element of a cause of action for injury to real property is the plaintiff's ownership, lawful possession, or right to possession, of the property [citation]," the court held the association lacked standing because it had no ownership interest in the common areas. (Ibid.) The association argued that as managing body of the common areas, it was entitled to "concomitant standing to sue those responsible for the damage," but the court rejected this argument, effectively holding that only the individual homeowners had standing to pursue the claims. (Ibid.)
In 1976, in response to Friendly Village, the Legislature enacted Code of Civil Procedure, section 374, granting homeowners associations standing to bring actions for damage to common areas, without joining individual unit owners to the actions. (Stats. 1976, ch. 595, § 2, p. 1439.) The statute has been renumbered and recodified several times, without substantive change, and is now known as Civil Code, section 5980 (section 5980), which provides in relevant part: "An association has standing to institute, defend, settle, intervene in, litigation, arbitration, mediation or administrative proceedings in its own name as the real party in interest, without joining with it the members in matters pertaining to . . . [d]amage to the common areas."
We will refer to the various versions of this statute as section 5980 throughout this opinion, for ease of reference.
Ibarra contends the trial court's ruling regarding standing was in error because while section 5980 granted associations the right to sue for damage to common areas, there is nothing in the statute or its legislative history that suggests the Legislature intended to take away a homeowner's pre-statutory right to pursue a claim for damage to property he or she owns. Respondents argue that section 5980 was meant to provide associations with exclusive authority to pursue claims for damage to common areas. We agree with Ibarra.
Statutory interpretation begins with an examination of the statute's plain language. If the plain language is clear—providing an obvious indication of the Legislature's intent—our analysis stops at that point. If the plain language is not clear, e.g., it is susceptible to more than one meaning, we look to extrinsic aids to determine the Legislature's intent, such as legislative history, public policy, the purpose of the statute, contemporaneous administrative construction, and the overall statutory scheme of which the statute is a part. (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 519.)
We see nothing in the plain language of section 5980 that states that an association now has exclusive standing to pursue a claim for damage to common areas. Rather, we see it as a permissive statute that allows associations to pursue such claims, "without joining with it the members," who may or may not have, themselves, also brought actions against third party tortfeasors. (§ 5980.) To say that associations have standing in litigation involving common areas is not to say that all unit owners are precluded from exercising their pre-statutory right to pursue their own individual claims.
Respondents argue that the use of the word "the" in front of the word "real party in interest" shows that the association—and only the association—can be a real party in interest. STC also points out that in one case, the court referred to associations as "the owners of cause of action for damage to common areas." (Citing Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1173 (Windham).) It is settled, however, that there may be more than one real party in interest in any action. (E.g., Vaughn v. Dame Construction Co. (1990) 223 Cal.App.3d 144, 148 [" ' "there may be as many real parties in interest as there are rights of action by substantive law" ' "]; In re Patricia E. (1985) 174 Cal.App.3d 1, 6 ["Where the interests of two parties interweave, either party has standing to litigate issues that have an impact upon the related interests"], disapproved on other grounds in In re Celine R. (2003) 31 Cal.4th 45; 1 Schwing, Cal. Affirmative Def. (2d ed. 2018) § 19.1 ["a defendant asserting the absence of the real party in interest does not establish the affirmative defense merely by proving that a particular nonparty is a real party in interest"].) Thus, the fact that the statute gives standing to an association to bring an action "as the real party in interest" does not necessarily preclude other parties from prosecuting or intervening in actions as real parties in interest.
We also note that "when we are urged to find that a statute is intended to silently abrogate an established rule of law, we must heed the Supreme Court's admonition that 'it should not be presumed that the Legislature in the enactment of statutes intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication.' " (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1630 [a new statute immunizing volunteer officers of an association from civil tort liability could not be read to immunize individual owners from liability for tortious acts in the management and control of common areas].) We decline to read an exclusivity provision into the statute when it does not appear "by express declaration or by necessary implication." (Ibid.)
To the extent the language of section 5980 is ambiguous, we note that extrinsic aids support our reading of the statute. As noted, section 5980 was enacted in response to Friendly Village, and granted standing to associations as real parties in interest where they would have otherwise lacked standing. "[T]he Legislature adopted [the statute] as an exception to the real party in interest rule in section 367 of the Code of Civil Procedure." (Citizens Against Forced Annexation v. County of Santa Clara (1984) 153 Cal.App.3d 89, fn. 7.) "The rationale for allowing homeowners' associations to bring suit is that 'if the association does not have standing, the costs of prosecution would not be a common expense, thus greatly increasing the difficulty of individual owners seeking redress against a corporate defendant." (Raven's Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783, 792 (Raven's Cove).) Thus, the statute "reflects a legislative tendency to enlarge rather than restrict the group of persons and the causes of action available." (Ibid.)
The fact that section 5980 was created as an exception to the general rule that every action must be prosecuted in the name of a real party in interest is supported by the former language of Code of Civil Procedure, section 367, which stated: "Every action must be prosecuted in the name of the real party in interest, except as provided [in sections 369 and 374 (what is now section 5980)]." (Italics added.) In other words, section 5980 gave standing to the association as a complement to the standing of individual unit owners, who were the real parties in interest. After the enactment of section 5980, individual owners were no longer a required party; the association could also maintain suit on its own.
STC cautions that allowing individual homeowners to pursue their own claims would cause "the homeowners association and any owners (hundreds of them in some developments) to file separate lawsuits for damage to the common areas." The Papierniaks raise a similar concern, stating that "if this Court were to adopt Appellant's approach, a claim for damages to the foundation of a condominium building could be litigated piecemeal by each unit owner, subjecting defendants to defend multiple lawsuits." Since the enactment of section 5980, however, individual unit owners and their associations have successfully brought actions together for damage to common areas, without issue. (E.g., Orange Grove Terrace Owners Assn. v. Bryant Properties, Inc. (1986) 176 Cal.App.3d 1217 (Orange Grove) [five unit owners and an association]; Windham, supra, 109 Cal.App.4th at p. 1173 [an individual unit owner and an association]). Moreover, the availability of representative or class actions adequately addresses concerns relating to judicial economy and conflicting results. (See e.g., Salton City etc. Owners Assn. v. M. Penn Phillips Co. (1977) 75 Cal.App.3d 184, 191 [an association as class representative]; Raven's Cove, supra, 114 Cal.App.3d at p. 795 [allowing the association to sue in a representative capacity].)
Ibarra, on the other hand, argues that by giving associations the exclusive right to "institute, defend, settle, or intervene in litigation" in matters relating to common areas, homeowners could be deprived of any ability to recover for damages to property they partially own, "without ever expressly giving up that right." This is because homeowners would be precluded from pursuing their own actions against tortfeasors even if their associations refuse to file suit, and would not be allowed to intervene in actions brought by their associations even if the associations are not adequately representing the homeowners' interests.
Cases applying and interpreting section 5980 also support our conclusion. In particular, Windham, supra, 109 Cal.App.4th 1162, is instructive. There, both the homeowners association and an individual condominium unit owner by the name of Bernie Kastner brought an action against the developer of the condominium, alleging causes of action for breach of implied warranty, strict liability, negligence, and declaratory relief. (Id. at p. 1166.) The issue was whether the association had the requisite privity of contract to sue on a breach of implied warranty claim for construction defects in the common areas when it was the individual unit owners—and not the association—that had direct contracts with the developer. (Id. at p. 1166.) The association argued that section 5980 granted the association the authority to pursue the action; the developer argued that the statute gave the association authority to allege only tort causes of action for defective construction, and not contract causes of action such as breach of an implied warranty. (Id. at p. 1167.)
Noting that the "apparent purpose" of section 5980 is to allow prosecution of a case that may be cost prohibitive for an individual unit owner to pursue, and pointing out that "it would be a waste of resources" to require an association to join the individual homeowners in the action, the court in Windham held that section 5980 must be read to grant standing to the association "to sue as real parties in interest in all types of actions for damage to common areas, including breach of implied warranty." (Windham, supra, 109 Cal.App.4th at pp. 1173-1174.) The court stated, "Because individual owners generally do not have the right to repair common areas, it would be inefficient to require or allow only those owners, rather than their association, to sue for breach of implied warranty to recover for damage to common areas." (Id. at p. 1174, italics added.)
In response to the developer's argument that individual owners would be deprived of their individual privity of contract with the developer if the association were deemed to have privity, the court held the developer's argument was based on the incorrect premise that "our interpretation of [section 5980] would effect a transfer of an individual owner's privity of contract with the seller to the Association." (Windham, supra, 109 Cal.App.4th at p. 1176.) The court held, "Association has the requisite privity of contract not because privity is transferred from the owner of the condominium, but because the Legislature by statute has deemed Association to have the requisite privity of contract. An individual owner is not deprived of his or her privity of contract by our interpretation of section  giving Association the requisite privity to maintain as a real party in interest a cause of action for breach of implied warranty. In fact, an individual owner who is an original purchaser from [the developer], including Kastner in this case [the individual-unit-owner plaintiff], continues to have a privity of contract relationship with [the developer] and may maintain an individual cause of action against it for breach of implied warranty regardless of Association's section  cause of action for breach of implied warranty." (Id. at p. 1176.)
Courts in cases since Windham have also presumed that unit owners continue to have standing to pursue claims for damage to common areas. In Orange Grove, supra, 176 Cal.App.3d at page 1220, for example, five unit owners and the association brought an action against the developers for negligent repair of common areas. The association complained of damage to the common areas; the unit owners complained of damage to their own units and to the common areas. (Id. at pp. 1219-1220.) The court presumed the unit owners had standing to pursue claims for damage to common areas; it explained the jury had been instructed below that the unit owners were to be awarded damages for injury to the common areas " 'based only upon the percentage of ownership [each] plaintiff holds in the common areas.' " (Id. at p. 1220.) Similarly, in Ziani Homeowners Association. v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, the court, in addressing the timeliness of the individual unit owners' motion to intervene, presumed the owners had the right to intervene in a constructive defect action brought by their association.
Similarly, we conclude that section 5980 did not transfer a homeowner's right to bring a tort action for damage to common areas to the association. In the same way that the individual homeowner in Windham did not lose his pre-statutory right to bring his own contractual claim against the developer in Windham, Ibarra did not lose her pre-statutory right to pursue a claim for damage to property in which she has an ownership interest. The trial court erred in ruling that Ibarra lacked standing to pursue a claim for damage to the foundation.
Ibarra argues that if this court were to reverse on the issue of standing, she should be entitled to pursue her claim for damage to the foundation against both STC and the Papierniaks. We disagree. As noted, the jury found the Papierniaks were not negligent, i.e., that none of their acts or omissions constituted negligence. Thus, there are no issues remaining to be tried with respect to the Papierniaks, absent evidence of a separate negligent act or omission on the part of the Papierniaks that could have caused damage to the foundation. Ibarra did not cite to any such evidence in her briefs or when asked at oral argument. Accordingly, the jury's verdict in favor of the Papierniaks stands, and a new trial on remand shall be limited to Ibarra's claim for damage to the foundation against STC.
2. Jury Instructions
Ibarra contends the trial court erred in refusing to give three proposed special jury instructions, two of which related to strict liability as to the Papierniaks, and one of which was premised on the peculiar risk doctrine. We reject the contention.
"Each party is entitled to have his theory of the case submitted to the jury in accordance with the pleadings and proof [citation], and it is incumbent upon the trial court to instruct on all vital issues involved." (Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633.) "A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) For that reason, a trial court's refusal to give a proffered special instruction may constitute error. (Id. at p. 573.) However, "the duty of the court is fully discharged if the instructions given by the court embrace all the points of the law arising in the case." (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.)
To warrant reversal for demonstrated instructional error, the complaining party must also prove actual prejudice. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.) There is "no presumption that error is prejudicial, or that injury was done if error is shown." (Code Civ. Proc., § 475.) "A judgment may not be reversed on appeal, even for error involving 'misdirection of the jury,' unless 'after an examination of the entire cause, including the evidence,' it appears the error caused a 'miscarriage of justice.' " (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.)
a. Strict Liability Instructions
Ibarra contends the trial court should have given two proposed special instructions relating to strict liability as to the Papierniaks. The first proposed special instruction, entitled "Failure to Provide Lateral Support," begins with a historical explanation, as follows: "At common law, a landowner had a right to have the land in its natural state supported by the adjoining land; thus, a landowner who excavated was absolutely liable for collapse or other damage to the adjoining land, regardless of due care, because the liability that attaches was not for the negligent acts but for the invasion of the damaged owner's property right. [¶] California Civil Code section 832 modified this common law rule by eliminating absolute liability, as long as certain conditions in the code are followed, and, provided that negligence is not the proximate cause of the damage to the adjoining property."
The instruction then quotes Civil Code, section 832, in its entirety, as follows: "Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction or improvement, under the following conditions:
"[¶] 1. Any owner of land or his lessee intending to make or to permit an excavation shall give reasonable notice to the owner or owners of adjoining lands and of buildings or other structures, stating the depth to which such excavation is intended to be made, and when the excavating will begin. [¶] 2. In making any excavation, ordinary care and skill shall be used, and reasonable precautions taken to sustain the adjoining land as such, without regard to any building or other structure which may be thereon, and there shall be no liability for damage done to any such building or other structure by reason of the excavation, except as otherwise provided or allowed by law. [¶] 3. If at any time it appears that the excavation is to be of a greater depth than are the walls or foundations of any adjoining building or other structure, and is to be so close as to endanger the building or other structure in any way, then the owner of the building or other structure must be allowed at least 30 days, if he so desires, in which to take measures to protect the same from any damage, or in which to extend the foundations thereof, and he must be given for the same purposes reasonable license to enter on the land on which the excavation is to be or is being made. [¶] 4. If the excavation is intended to be or is deeper than the standard depth of foundations, which depth is defined to be a depth of nine feet below the adjacent curb level, at the point where the joint property line intersects the curb and if on the land of the coterminous owner there is any building or other structure the wall or foundation of which goes to standard depth or deeper then the owner of the land on which the excavation is being made shall, if given the necessary license to enter on the adjoining land, protect the said adjoining land and any such building or other structure thereon without cost to the owner thereof, from any damage by reason of the excavation, and shall be liable to the owner of such property for any such damage, excepting only for minor settlement cracks in buildings or other structures."
Finally, the proposed instruction states, "Failure to follow the conditions of Civil Code section 832, including, failure to give notice of the excavation, means that the common law duty to protect adjoining land in its natural state from lateral support damage applies, and failure to do so means that an owner is absolutely liable for the removal of lateral support. [¶] Wharam v. Investment Underwriters (1943) 58 Cal.App.2d 346, 349-350; Cal. Civ. Code § 832."
The second proposed special instruction was entitled "Joint Liability for Failure to Provide Lateral Support," and stated: "All who unite in depriving the landowner of the support for his or her land are jointly liable for the damage caused by the removal of the lateral support. [¶] Green v. Berge (1894) 105 Cal. 58-59; Wharam v. Investment Underwriters (1943) 58 Cal.App.2d 346, 351." Ibarra contends that these two proposed special instructions, together, would have properly presented to the jury the issue of whether the Papierniaks were strictly liable for removing the lateral support.
We conclude the contention fails for several reasons. First, the proposed instruction entitled "Failure to Provide Lateral Support" was flawed. A trial court has no duty to give an instruction that is erroneous or would be misleading to a jury. (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 717-718.) The court may chose to modify or replace defective instructions, but ordinarily is under no duty to do so: "Where a portion of a proposed instruction is erroneous, misleading or incomplete, the court may properly refuse the entire instruction, there being no duty on the court to cull out what is proper from what is not; nor is the court under a duty to modify such instruction or give others in lieu of it as long as the jury is properly instructed as to the law of the case." (Ibid.)
The first two paragraphs of the proposed special instruction contained language from Wharam v. Investment Underwriters (1943) 58 Cal.App.2d 346, 349-350 (Wharam), in which the court explained that Civil Code, section 832, was enacted as a modification to common law. "The admonition has been frequently stated that it is dangerous to frame an instruction upon isolated extracts from the opinions of the court. (Francis v. City & County of San Francisco (1955) 44 Cal.2d 335, 341; Merritt v. Reserve Ins. Co. (1973) 34 Cal.App.3d 858, 876, fn. 5 [judicial opinions are not written as jury instructions, are notoriously unreliable as such, and may have a confusing effect upon a jury].) The proposed historical explanation did little more than explain the evolution of the law regarding lateral support. Reciting what the law used to be before the enactment of a statute would have served no particular purpose in this case, and would likely have confused the jury.
The proposed instruction also contained paragraph four of Civil Code, section 832, which applies only to cases in which "the excavation is intended to be or is deeper than . . . nine feet." (Subd. (4).) Here, it was undisputed that any excavation did not go deeper than nine feet. Thus, there was no evidence to support the giving of that portion of the instruction.
Further, the proposed instruction's final paragraph contained language relating to "absolute liability"—an archaic term used in a statute that was enacted more than 150 years ago, and which could have had the effect of misleading the jury into believing it could imply liability for damages without proof of causation. The trial court did not err in declining to give the jury the proposed instruction because it contained inaccurate and misleading statements.
Second, Ibarra's contention fails for the additional reason that the trial court did provide the jury with a modified, more appropriate and accurate version of an instruction relating to Civil Code, section 832, as it applied to the case. The instruction, as given, excluded the historical explanation regarding common law, the fourth paragraph relating to excavation deeper than nine feet, and the last paragraph that included language regarding absolute liability. The instruction adequately instructed the jury regarding the standards to which the Paperniaks were held under the statute.
Ibarra complains that the trial court's instruction was inadequate because it did not contain a statement regarding strict liability, i.e., that the Papierniaks are strictly liable if they fail to comply with the standards set forth in Civil Code, section 832. Ibarra's argument fails because Civil Code, section 832, imposes strict liability only in situations in which the excavation goes deeper than nine feet. (Holtz v. Superior Court (1970) 3 Cal.3d 296, 301, fn. 3 (Holtz).)
In Holtz, the Supreme Court stated: "At common law a coterminous owner was strictly liable for damages resulting from the withdrawal of lateral support of land in its natural, unimproved state, but section 832 modified that rule by providing that 'lateral support' liability for damage to both land and improvements would generally result only if the excavator were negligent. (Civ. Code, § 832, subd. 2; Comment (1931) 20 Cal.L.Rev. 62, 63.) The section created an exception to this general negligence standard in the situation in which a neighboring building's foundation reached the 'standard depth' [i.e., nine feet]; under those circumstances, the excavator was strictly liable for any damage he caused if he, too, intended to reach standard depth (§ 832, subd. 4); Comment, supra, 20 Cal.L.Rev. 62, 67). Because plaintiffs' foundation did not reach 'standard depth,' it would appear that under section 832 a private coterminous owner would be liable for damage both to the land and to the improvement only if he were negligent." (Holtz, supra, 3 Cal.3d at p. 346, fn. 3, italics added.) Holtz makes it clear that strict liability applies only in situations in which the excavation is deeper than nine feet. Because, as noted, it is undisputed that any excavation did not go nine feet in this case, it would have been improper for the trial court to instruct on strict liability. We conclude the court did not err in declining to give the two proposed special instructions relating to strict liability.
b. Instruction Relating to the Peculiar Risk Doctrine
Ibarra contends the trial court erred in declining to give her proposed special instruction entitled "Owner Not Excused from Liability When the Contractor is Negligent." The proposed instruction stated: "An owner is not relieved from liability when an independent contractor he or she hires is guilty of negligence in excavating. [¶] (Green v. Berge (1894) 105 Cal. 58-59; Wharam v. Investment Underwriters (1943) 58 Cal.App.2d 346, 351; Privette v. Superior Court (1993) 5 Cal.4th 689, 693-696 (discussing the peculiar risk doctrine, stating: '[T]he origins of the [peculiar risk doctrine] can be traced to roughly the latter half of the nineteenth century, when a growing recognition developed in the courts that a landowner who chose to undertake inherently dangerous activity on his land should not escape liability for injuries to others simply by hiring an independent contractor to do the work. As a leading English decision from 1876 put it: '[A] man who orders work to be executed, from which in the natural course of things, injurious consequences to his neighbors must be expected to arise . . . cannot relieve himself of responsibility by employing someone else . . .' (Bower v. Peate (1876) 1 Q.B.D. 321, 326.)" We conclude there was no error.
At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. [Citations.] Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ' "no right of control as to the mode of doing the work contracted for." ' " (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) This general rule, however, is subject to exceptions. (Ibid.)
One such exception is the peculiar risk doctrine, which applies when the person who hires the independent contractor knows or should know that the contractor's work is likely to create a peculiar risk of physical harm to others unless special precautions are taken. (Privette v. Superior Court, supra, 5 Cal.4th at p. 695.) A purpose of the doctrine is "to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work would not have to depend on the contractor's solvency in order to receive compensation for the injuries." (Id. at p. 694.) Another purpose is to promote workplace safety by spreading the risk of loss to the person who primarily benefited from the hired work. (Ibid.)
STC asserts the peculiar risk doctrine is "primarily a personal injury" doctrine, and correctly points out that Ibarra has failed to cite to any cases in which the doctrine was applied to cases involving property damage. Assuming, without deciding, that the doctrine applies to cases involving property damage, we conclude it did not apply in this particular case.
Examples of construction projects to which the peculiar risk doctrine has been applied include cement work on a bridge 20 feet high with no scaffolding or railing to keep the worker from falling off (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361), erecting a 30-foot steel column for a water tower without safety equipment to keep the worker from falling off (Stilson v. Moulton-Niguel Water Dist. (1971) 21 Cal.App.3d 928), and building a bridge over high voltage wires, causing injury to a worker whose crane touched a wire (Walker v. Capistrano Saddle Club (1970) 12 Cal.App.3d 894). In Hughes v. Atlantic Pacific Construction Co. (1987) 194 Cal.App.3d 987, 999 (Hughes), the court emphasized that the doctrine applies only when the risk is "something other than an ordinary and customary danger which may arise in the course of the work or of normal human activity." In Hughes, therefore, the doctrine did not apply even though "the building plans envisioned a seismic joint of over 24-1/2 inches in width, running the length of the fifth floor of the west and central towers of this high rise project." (Id. at p. 999) Noting that "seismic joints are quite common in earthquake-prone California," the court held the construction project that caused injury to the subcontractor's employee did not pose a peculiar risk and did not come within the ambit of the doctrine. (Id. at p. 1000.)
Similarly, here, there was no evidence that the Papierniaks's construction project posed such an unusual risk of harm or inherent danger that it justified a jury instruction on the peculiar risk doctrine. Ibarra asserts that there was a peculiar risk in this case because "Respondents, in the process of excavating and building a new foundation, went underneath the foundation of 39-41 Lake Street," and "did so in very tricky soil (dune sand)." The trial court found that the replacement of a foundation—which involved "excavation [of] five feet at most"—done by "laypeople who hire a contractor to do work," involved only ordinary or customary risks. We agree with the trial court and conclude it did not err in declining to give the instruction.
We also conclude that Ibarra cannot demonstrate prejudice. Peculiar risk imputes liability of the independent contractor to the landowner. The jury, however, determined that STC's negligence, whatever that was, was not a substantial factor in causing harm to Ibarra. Thus, there was no liability to impute.
3. Sufficiency of the Evidence
Ibarra challenges the following two findings the jury made: (1) that the Papierniaks were not negligent; and (2) that STC's negligence was not a substantial factor in causing damage to 39 Lake Street. We reject the contention.
First, as to the finding of no negligence, Ibarra argues that no reasonable jury could have found that the Papierniaks were not negligent, because the Papierniaks failed to give adequate notice of excavation under Civil Code, section 832. "When a party contends insufficient evidence supports a jury verdict, we apply the substantial evidence standard of review. [Citations.] ' "[T]he power of [the] appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the [verdict]." ' " (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.) "We must 'view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor.' " (Ibid.) "[A] party 'raising a claim of insufficiency of the evidence assumes a 'daunting burden.' " (Ibid.)
As noted, Civil Code, section 832, provides in part, "Any owner of land or his lessee intending to make or to permit an excavation shall give reasonable notice to the owner or owners of adjoining lands and of buildings or other structures, stating the depth to which such excavation is intended to be made, and when the excavating will begin." (Subd. (1).) Assuming, without deciding, that the Papierniaks were required to give notice under this section, we conclude there was evidence from which a jury could reasonably find that adequate notice was given. The Papierniaks presented testimony that more than 30 days before any construction work began, they delivered letters to all adjacent building owners, notifying them of the planned construction project, inviting them to review the project plans with the architect, and providing an opportunity to ask any questions or express any concerns. Ibarra and her husband testified that they never received notice, but the jury, which was aware that other neighbors had received notice and attended the meeting, were free to make a credibility determination on the issue of whether notice had actually been given.
To the extent Ibarra is asserting that the notice was inadequate because it did not contain sufficient information regarding the depth or date of excavation, we note that it was Ibarra's burden as the plaintiff to establish every element of her cause of action by a preponderance of the evidence. "It is the appellants responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant's behalf." (See e.g., Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) Ibarra has not cited to any part of the record that shows the Papierniaks's notice did not contain the requisite information. Nor has she cited to any relevant authority to support her purported position that the notice the Papierniaks gave—which included an invitation to view the construction plans—did not constitute "reasonable notice" under Civil Code, section 832. Under these circumstances, we conclude she has failed to show that the jury's findings regarding the Papierniaks's negligence must be reversed.
Second, as to the finding that STC's negligence was not a substantial factor in causing damage to 39 Lake Street, Ibarra argues there was insufficient evidence to support the finding because even the defense experts acknowledged it was possible that the void underneath the foundation of 39-41 Lake Street was caused by the Papierniaks's construction project. A mere possibility of causation, however, is not enough, as it is the plaintiff's burden to prove causation by a preponderance of the evidence. (Ortega v. Kmart (2001) 26 Cal.4th 1200, 1205; Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 597.)
Although the defense experts testified they could not rule out that the void was caused by the construction project, they also provided ample testimony to support a finding that there were other, more substantial causes for any damage that occurred. There was testimony that the condominium building was one hundred years old, and that the foundation should have been replaced at least a decade before the construction project even began. There was testing and investigation that showed that the floor of the foundation was sagging towards the center because of prior removal of garage supports and the settlement of the remaining supports. Defense experts testified they saw no evidence of recent distress, cracking, or differential settlement. Accepting as true the evidence supporting the judgment, disregarding conflicting evidence, and drawing all reasonable inferences in favor of the judgment, we conclude the jury could have reasonably found that STC's negligent conduct was not a substantial factor in causing damage to 39 Lake Street.
4. Motion for a New Trial
Ibarra contends the trial court erred in denying her motion for a new trial because there was new evidence that justified the granting of the motion. We reject the contention.
In ruling on a motion for a new trial, the trial court must determine whether grounds for a new trial have been established. (Code Civ. Proc., § 657.) The procedure is statutory and the court has no inherent power to grant a new trial for any of the grounds not stated in the code section. (Smith v. Moffat (1977) 73 Cal.App.3d 86, 93.) One ground upon which a court may grant a new trial is where the party making the application can show she has "[n]ewly discovered evidence" that is "material" and "which [s]he could not, with reasonable diligence, have discovered and produced at the trial." (Code Civ. Proc., § 657, subd. (4); see also Plancarte v. Guardsmark, LLC (2004) 118 Cal.App.4th 640, 647 [the new evidence must also be admissible as evidence at trial].) A "general averment of diligence is insufficient. The moving party must state the particular acts or circumstances which establish diligence." (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 154.)
Here, the "new evidence" that Ibarra presented in support of her motion for a new trial was: (1) a complaint regarding the foundation of 39-41 Lake Street that she herself filed with the San Francisco Department of Building Inspection (SFDBI) two months after the trial ended, and before judgment was entered; and (2) a "Notice of Violation" the SFDBI issued in response to the complaint. She asserts the evidence shows that the SFDBI agrees there is a problem with the foundation of 39-41 Lake Street.
Assuming, without deciding, that the documents would be material or even admissible at trial, we conclude the argument fails because there is no evidence that Ibarra acted with reasonable diligence. If she felt a complaint was appropriate, she had the ability to file at any time after she was informed of the alleged condition of her foundation. She provides no explanation as to why she waited until two months after trial to file the complaint and obtain a Notice of Violation from SFDBI. The trial court properly denied her motion for a new trial.
5. 998 offer
Ibarra contends the trial court erred in ruling that the Papierniaks' 998 offer was valid. She contends that even assuming the 998 offer was valid, we should conclude that the expert fees the court ordered her to pay pursuant to the 998 offer were unreasonable. We reject both contentions.
As noted, Code of Civil Procedure, section 998, "establishes a procedure for shifting the costs upon a party's refusal to settle. If the party who prevailed at trial obtained a judgment less favorable than a pretrial settlement offer submitted by the other party, then the prevailing party may not recover its own postoffer costs and, moreover, must pay its opponent's postoffer costs, including, potentially, expert witness costs. (§ 998, subd. (c)(1).)" (Barella v. Exchange Bank, supra, 84 Cal.App.4th at p. 798.) The purpose of the statute is to encourage the settlement of litigation without trial. (Brown v. Nolan (1979) 98 Cal.App.3d 445, 449.)
A 998 offer is considered to be valid and in good faith if it is reasonable under the circumstances and carries some reasonable prospect of acceptance. (Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1024-1025.) The trial court uses a two-prong test to determine whether a 998 offer is valid and in good faith: (1) whether the offer was a reasonable prediction by the defendant of what the plaintiff may be awarded at trial; and (2) whether the plaintiff should have known the offer was reasonable. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 695-698.)
Where the defendant obtains a judgment more favorable than its offer, the judgment in and of itself "constitutes prima facie evidence that the offer was reasonable, and the burden of proving an abuse of discretion is on appellants, as offerees, to prove otherwise." (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1264.) Even offers that are "modest" in relation to the damages claimed may be in good faith if the defendant reasonably believes there is no liability. (Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531-533; Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1264 [a mere waiver of costs can be a good faith offer].) Whether a 998 offer was in good faith is a matter left to the sound discretion of the trial court. (Arno v. Helinet Corp., supra, 130 Cal.App.4th at pp. 1024-1025.)
Here, the jury's finding that the Papierniaks were not negligent resulted in zero liability for the Papierniaks and established the prima facie reasonableness of the 998 offer. The burden was therefore on Ibarra to establish unreasonableness or lack of good faith. Ibarra asserts the 998 offer was unreasonable because the Papierniaks's own expert testified that it would cost $3,400 to repair Ibarra's unit. Ibarra also asks, "[the] Papierniaks['s] claim of more than $60,000 in expert fees undermine their argument that the $1,000 was reasonable, because if they reasonably believed that the case was worth so little ($1,000), why did they spend so much?"
At the time the Papierniaks made the 998 offer, however, neighbor Kyle Patterson, who similarly had cracks in his unit, had accepted the Papierniaks's $1,000 offer for damage to his unit. Moreover, it was undisputed that 39-41 Lake Street was a one-hundred-year-old building that likely had pre-existing issues that were not related to the Papierniaks's construction project. As the trial court stated, "the Papierniaks [made an offer that was consistent with what they] felt were a result of their construction. They viewed the cracks, they made an offer that was commensurate with Mr. Patterson's. . . . And ultimately the jury didn't find for the plaintiff in this case."
As to the discrepancy between the $60,000 incurred in expert fees and the $1,000 settlement offer, we note, as the court did in Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710-711, that "it is consistent with the legislative purpose of section 998 for the defendant [who perceives himself to be fault free] to make a modest settlement offer. If the offer is refused, it is also consistent with the legislative intent for the defendant to engage the services of experts to assist him in establishing that he is not liable to the plaintiff. It is also consistent with the legislative purpose under such circumstances to require the plaintiff to reimburse the defendant for the costs thus incurred." The trial court correctly pointed out that this case involved a "battle of the experts," and that the defendants "had a right to defend themselves, and retain experts to do it." The fact that the Papierniaks incurred $60,000 in expert fees in order to defend the case does not show that their 998 offer was unreasonable or made in bad faith.
As to Ibarra's claim that the expert fees were unreasonable, we note that reasonableness of fees also falls squarely within the discretion of the trial court. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1488.) If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1266.) Ibarra asserts the fees of defense expert Charles Allen were unreasonably high, but as counsel for the Papierniaks argued below, Allen's work was extensive, and crucial to the defense of the case. Allen conducted a water survey and a civil survey, and engaged in a comprehensive evaluation that included six visits to the building. To the extent Ibarra asserts there were improper, duplicative charges, we note that the court reduced the expert fees award based on correspondence between Ibarra's attorney and the Papierniaks's attorney as to what the expert fees award should be. Ibarra has failed to show the court abused its discretion.
Although we affirm the award of costs as to the Papierniaks, we note that our reversal of the judgment as to STC necessarily compels the reversal of the trial court's award of costs to STC as the prevailing party. (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 ["After reversal of a judgment, 'the matter of trial costs [is] set at large' "].)
The judgment is reversed in part and affirmed in part. The matter is remanded for a new trial on Ibarra's claim against STC for damage to the foundation, and the trial court's award of costs to STC as the prevailing party is vacated. The judgment is affirmed in all other respects. All parties shall bear their own costs on appeal.
McGuiness, Acting P.J. We concur: