Quinn v. Bay Harbor Investment Properties CA2/1

Filed 8/1/23 Quinn v. Bay Harbor Investment Properties CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LAWRENCE D. QUINN, et al., B312947

Plaintiffs and Appellants, (Los Angeles County

Super. Ct. No. BC666284)

v.

BAY HARBOR INVESTMENT

PROPERTIES, LLC, et al.,

Defendants and

Respondents.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Steven J. Kleifield, Judge. Vacated and

remanded with directions.

DiJulio Law Group, R. David DiJulio, and Tiffany Hyatt

Krog for Plaintiffs and Appellants.

Law Offices of Craig D. Weinstein and Craig Weinstein for

Defendants and Respondents Kenneth Lorenzo and Kevin

Lorenzo.

__________________________________

Appellants Lawrence D. Quinn and Olivia Saunders

(Quinn/Saunders) each own real property on Thelma Avenue in

Los Angeles. Respondents Kenneth Lorenzo and Kevin Lorenzo

(the Lorenzos) own real property on Eastern Avenue (the Eastern

Property), which they purchased from respondent Bay Harbor

Investment Properties (Bay Harbor). Quinn/Saunders’ properties

abut the Eastern Property. In 2017, Quinn/Saunders sued Bay

Harbor and the Lorenzos, claiming that an allegedly faulty

retaining wall located on the Eastern Property had caused

cracking in Quinn/Saunders’ properties.1 After a seven-day

bench trial, the trial court found in favor of Bay Harbor and the

Lorenzos and against Quinn/Saunders.

On appeal, Quinn/Saunders contend that, because their

properties were being continuously damaged by the ongoing

refusal of Bay Harbor and the Lorenzos to repair the retaining

wall, the trial court erred (1) in failing to apply section 366 of the

Restatement Second of Torts (Section 366); and (2) in finding Bay

Harbor and the Lorenzos could not be liable for nuisance or

negligence solely because they were not involved with the

construction of the retaining wall. We hold that the trial court

did not err in not applying Section 366 but did err in determining

that Bay Harbor and the Lorenzos could not be liable for

nuisance and negligence. We therefore vacate the judgment and

remand for further proceedings.

1 Marisela Halachian—apparently the sole member of Bay

Harbor—was also named as a defendant but, in a nonpublished

August 2020 opinion, we affirmed the trial court’s grant of

summary judgment in her favor. (Quinn v. Halachian (Aug. 28,

2020, B296272).) Bay Harbor has not filed an appellate brief.

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FACTUAL AND PROCEDURAL BACKGROUND

A. The Lawsuit

In June 2017, Quinn/Saunders filed a complaint. They

declined to include that complaint in the appellate record, but we

can discern the gist of the litigation from the parties’ trial briefs

(which are in the appellate record).

Quinn/Saunders contended in their trial brief that they

owned real properties located on Thelma Avenue, and that the

Eastern Property was owned by Bay Harbor from July 2016 to

July 2017, and by the Lorenzos thereafter. The western end of

Quinn/Saunders’ properties abut the eastern end of the Eastern

Property. Quinn/Saunders claimed that, in “late 2016,” a

retaining wall on the Eastern Property began to crack because

Bay Harbor failed to maintain it. Appellants alleged Bay Harbor

also “destroyed the top portion” of the retaining wall.

Quinn/Saunders contended the failure to maintain the wall and

the removal of the top portion of the wall “caused a subsidence of

the earth and soil on” Quinn/Saunders’ properties, “as well as the

cracking and settlement of the improvements thereon.”

Appellants stated they had alleged causes of action for “(1)

Damages and Permanent Injunction (Removal of Lateral

Support), (2) Private Nuisance and (3) Negligence.” For the

second and third causes of action, Quinn/Saunders alleged they

were suffering “ongoing damages” from the respondents’ failure

to repair the retaining wall.

Bay Harbor’s trial brief claimed that the retaining wall—

located in the backyard of the Eastern Property—was in

existence when Bay Harbor purchased the Eastern Property.

Bay Harbor disagreed with Quinn/Saunders’ contention that the

wall needed to be replaced, citing a Los Angeles city inspector

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who had inspected the wall and “concluded that the wall was in

good condition and therefore did not need to be replaced, or

repaired.” Bay Harbor also disputed appellants’ claim that its

removal of cinder blocks from the top of the retaining wall caused

any soil subsidence, and further insisted it had only removed

cinder blocks from the portion of the wall abutting Saunders’s

property—the blocks on top of the wall abutting Quinn’s property

had fallen off before Bay Harbor purchased the Eastern Property.

Bay Harbor further contended the city of Los Angeles had

ordered it to remove the cinder blocks. Bay Harbor believed the

primary cause of the damage to Quinn/Saunders’ properties was

the failure to properly grade and compact soil that was added to

their properties, which occurred long before Bay Harbor

purchased the Eastern Property. Bay Harbor also claimed that

any “tilting” of the retaining wall occurred before it purchased

the Eastern Property in July 2016, and was not caused by Bay

Harbor.

According to the Lorenzos’ trial brief, they purchased the

Eastern Property from Bay Harbor in July 2017. The Lorenzos

disclaimed responsibility for any damages resulting from the

failing wall because they had done nothing to cause the wall to

fail.

B. Trial and Judgment

A seven-day court trial began on December 3, 2019,

continued through December 6, 2019, resumed one year later on

December 14, 2020, and concluded on December 18, 2020.

Because no court reporter was present at any portion of the trial,

there is no transcript of the trial proceedings.

On December 28, 2020, the court issued a minute order

setting forth its tentative decision. The court found

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Quinn/Saunders had “pursued two theories regarding the wall.

First, they claimed that the original cement retaining wall was in

disrepair and should have been replaced. Second, they claimed

that Defendant Bay Harbor removed the cinder blocks from on

top of the wall, thereby lessening the support and causing

movement of the structures above, leading to the cracking.”

As to the first theory, the court found the wall did not need

to be replaced. It cited to the testimony of the “qualified,

credible, and unbiased” Los Angeles city inspector, who “did an

extensive examination and consulted with other City inspectors”

about the wall and concluded that although the wall was

“ ‘cracked and clearly aging, . . . it was largely the same as when

it was originally permitted over 70 years ago’ ” and the city

“ ‘could not determine that it must be replaced or rebuilt.’ ”

As to the second theory, the court cited the inspector’s

conclusion that the “ ‘top courses of block on top of the original

wall were clearly added later, had failed and were removed as

they should have been.’ ” The court added that it did not believe

that Bay Harbor had removed any cinder blocks abutting Quinn’s

property. As to the cinder blocks abutting Saunders’s property,

the court found that those blocks were “loose and not shoring up

anything.” The court concluded that appellants’ theory that

removing the cinder blocks had caused the damage was “factually

unsupported.”

The court noted that Quinn/Saunders’ expert witness had

attributed the cracking on their properties to “ ‘long-term

rotation’ ” of the retaining wall and the removal of the cinder

blocks. The court reiterated there was no evidence to support the

cinder-block-removal theory. As to the long-term rotation theory,

the court noted Bay Harbor and the Lorenzos were not

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“responsible for ‘long-term rotation’ of the wall. These properties

were developed in the late 40’s and early 50’s. Bay Harbor owned

the Eastern property for one year. There is no evidence that

anything they did or did not do contributed to ‘long-term rotation’

of the wall and damage to Plaintiffs’ property.” The court

concluded that “[t]he factual predicates to Plaintiffs’ theories

were not proved.”

The court continued: “Much expert testimony was

presented concerning the causes of the cracking on Plaintiffs’

properties. Plaintiffs’ theory was presented above. Defendant’s

[sic] expert testimony was to the effect that the cracking was due

to settling of the structures over the course of many years due to

the inadequate grading and compression of the soil in the

construction process. Due to the failure of proof on the facts it is

unnecessary to reach the issues regarding causation. The Court

did, however, find Mr. Farrell’s testimony and report to be

convincing.”2

The court noted that Bay Harbor had owned the Eastern

Property from July 2016 to July 2017, when it sold the property

to the Lorenzos, and “[t]o the extent anything was done or not

done before either Defendant took possession of the property,

Defendants bear no legal responsibility for it.” The court

analogized to Lee v. Takao Building Development Co. (1985) 175

Cal.App.3d 565 (Lee), quoting its holding that “ ‘a landowner who

took title and possession after the occurrence of the act causing

the removal of the lateral support, and uncontrovertedly did not

2 Keith Farrell was an expert witness who testified for

defendants.

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participate in the act that resulted in the removal of the support,

is not responsible in damages.’ ”

The minute order ended by saying that “[p]ursuant to CRC

3.1590(c)(4), this tentative decision will become the statement of

decision unless, within 10 days after service of this tentative

decision, a party specifies those principal controverted issues as

to which the party is requesting a statement of decision or makes

proposals not included in the tentative decision.”3 The minute

order was served on appellants on December 28, 2020.

On February 8, 2021, the court issued a judgment in favor

of Bay Harbor and the Lorenzos and against Quinn/Saunders, in

which it noted no party had timely specified controverted issues

as to which the party was requesting a statement of decision or

made proposals not included in the tentative decision, and

therefore the tentative decision had become the statement of

decision.4 Appellants timely appealed.

3 (Cal. Rules of Court, rule 3.1590(c)(4) [“The court in its

tentative decision may: [¶] . . . [¶] (4) Direct that the tentative

decision will become the statement of decision unless, within 10

days after announcement or service of the tentative decision, a

party specifies those principal controverted issues as to which the

party is requesting a statement of decision or makes proposals

not included in the tentative decision”].)

4 On January 14, 2021 (i.e., more than ten days after

service of the tentative decision), Quinn/Saunders filed an

objection to the tentative decision, but it appears the trial court

disregarded this filing. Appellants have not contended the court

erred in doing so.

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DISCUSSION

“When a statement of decision does not resolve a

controverted issue, or if the statement is ambiguous and the

record shows that the omission or ambiguity was brought to the

attention of the trial court . . . prior to entry of judgment . . . , it

shall not be inferred on appeal . . . that the trial court decided in

favor of the prevailing party as to those facts or on that issue.”

(Code Civ. Proc., § 634.) “The clear implication of this provision,

of course, is that if a party does not bring such deficiencies to the

trial court’s attention, that party waives the right to claim on

appeal that the statement was deficient in these regards, and

hence the appellate court will imply findings to support the

judgment.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,

1133–1134; see also SFPP v. Burlington Northern & Santa Fe Ry.

Co. (2004) 121 Cal.App.4th 452, 462 [when statement of decision

issued, “a ‘party must state any objection to the statement in

order to avoid an implied finding on appeal in favor of the

prevailing party. . . . [I]f a party does not bring such deficiencies

to the trial court’s attention, that party waives the right to claim

on appeal that the statement was deficient . . . and hence the

appellate court will imply findings to support the judgment’ ”].)

Here, Quinn/Saunders failed to raise a timely objection to

the court’s statement of decision. Thus, where the statement of

decision is silent or ambiguous, we imply findings to support the

judgment against appellants.

A. Section 366 of the Restatement Second of Torts

Quinn/Saunders contend the court erred by not applying

“Restatement Second of Torts section 366 because Appellants

sued for damages to their respective real properties caused by a

structure which was unreasonably dangerous to Appellants and

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which existed on the Eastern Property during the time of its

possession by the Respondents, i.e., the deteriorating Retaining

Wall” as opposed to a single act that had caused the loss of lateral

support. Section 366 provides: “ ‘One who takes possession of

land upon which there is an existing structure or other artificial

condition unreasonably dangerous to persons or property outside

of the land is subject to liability for physical harm caused to them

by the condition after, but only after, [para. ] (a) the possessor

knows or should know of the condition, and [para. ] (b) he knows

or should know that it exists without the consent of those affected

by it, and [para. ] (c) he has failed, after a reasonable opportunity,

to make it safe or otherwise to protect such persons against it.’ ”

(Lee, supra, 175 Cal.App.3d at p. 568, fn. 2.) By its terms, Section

366 applies only when a party takes possession of land upon

which there is a structure or condition that is “unreasonably

dangerous.”

Section 366 is inapplicable because the trial court implicitly

rejected the theory that the retaining wall was unreasonably

dangerous when it found that it did not need to be replaced. The

court credited the testimony of the “qualified, credible, and

unbiased” city inspector, who had concluded the retaining wall

was “ ‘largely the same as when it was originally permitted’ ” and

did not need to be replaced or rebuilt. While the trial court did

not explicitly find that the wall was not unreasonably dangerous,

such a finding is consistent with the court’s conclusion that the

wall did not need to be replaced and, under the doctrine of

implied findings, we imply such a finding was made. If the

retaining wall was not unreasonably dangerous, Section 366 is

inapplicable.

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B. Nuisance and Negligence

A plaintiff must prove three elements to establish a cause

of action for private nuisance: “First, the plaintiff must prove an

interference with its use and enjoyment of its property. Second,

the invasion of the plaintiff’s interest in the use and enjoyment of

the land must be substantial, i.e., it caused the plaintiff to suffer

substantial actual damage. Third, the interference with the

protected interest must not only be substantial, it must also be

unreasonable, i.e., it must be of such a nature, duration, or

amount as to constitute unreasonable interference with the use

and enjoyment of the land.” (Today’s IV, Inc. v. Los Angeles

County Metropolitan Transportation Authority (2022) 83

Cal.App.5th 1137, 1176.) “The essential elements of a cause of

action for negligence are: (1) the defendant’s legal duty of care

toward the plaintiff; (2) the defendant’s breach of duty—the

negligent act or omission; (3) injury to the plaintiff as a result of

the breach—proximate or legal cause; and (4) damage to the

plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

While, as discussed above, the trial court did not find the

retaining wall was unreasonably dangerous, the court expressly

refrained from deciding whether the alleged long-term rotation of

the wall was causing cracking on Quinn/Saunders’ properties,

finding it “unnecessary to reach the issues regarding causation”

because neither Bar Harbor nor the Lorenzos were involved in

the construction of the retaining wall.5 Quinn/Saunders contend

the court erred in doing so. We agree.

5 Presumably for the same reason, the court also made no

findings on whether the cracks sustained by Quinn/Saunders’

properties constituted “substantial actual damage” or whether

(Fn. is continued on the next page.)

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“Every successive owner of property who neglects to abate a

continuing nuisance upon, or in the use of, such property, created

by a former owner, is liable therefor in the same manner as the

one who first created it.” (Civ. Code, § 3483; see also Phillips v.

Pasadena (1945) 27 Cal.2d 104, 107–108 [nuisance that “may be

discontinued at any time it is considered continuing in character”

and “[e]very repetition of a continuing nuisance is a separate

wrong for which the person injured may bring successive actions

for damages until the nuisance is abated”]; Sager v. O’Connell

(1944) 67 Cal.App.2d 27, 33 [“[t]he fact that a prior owner was

negligent in permitting the bulkhead to decay will not excuse a

subsequent owner from a continuing negligence”]; cf. Turlock v.

Bristow (1930) 103 Cal.App. 750, 754–755 [that appellants did

not create continuing public nuisance did not absolve them of

responsibility to abate it].)6

Bay Harbor’s and the Lorenzos’ refusal to repair the wall was

unreasonable.

6 Lee, which the trial court cited, is inapposite.

There, the

plaintiffs and defendant owned adjoining pieces of real property.

(Lee, supra, 175 Cal.App.3d at p. 567.) Before the defendant

purchased its property, a building sitting thereon had been

demolished by order of the city. (Id. at pp. 567–568.) The

plaintiffs sued, alleging “the demolition of the building [on the

defendant’s property] removed the lateral support of the soil

supporting the foundations of their building.” (Id. at p. 568.) Lee

affirmed a grant of summary judgment for the defendant, holding

that: (1) Section 366 was inapplicable because the plaintiffs

failed to establish that “a structure or other artificial condition

which was unreasonably dangerous to appellants existed on

[defendant] Takao’s property during the time of its possession of

the property”; and (2) while the plaintiffs were “suing for damage

(Fn. is continued on the next page.)

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Were the trial court to find that Bay Harbor’s and the

Lorenzo’s failure to repair the retaining wall interfered with

Quinn/Saunders’ enjoyment of their properties, that the cracks

sustained in the properties constituted substantial actual

damage, and that Bay Harbor and the Lorenzo’s failure to repair

the wall was unreasonable, then respondents’ lack of involvement

with the original construction of the wall would not absolve them

of liability for nuisance. Similarly, were the trial court to find

that Bay Harbor’s and the Lorenzos’ failure to repair the

retaining wall breached a duty to Quinn/Saunders and caused

the cracking on their properties, respondents would be liable for

negligence. We therefore conclude the trial court erred in finding

that, as a matter of law, neither Bay Harbor nor the Lorenzos

could be liable for nuisance or negligence solely because neither

respondent was involved in the initial construction of the

retaining wall.

DISPOSITION

The judgment is vacated. On remand, the trial court is to

determine whether Quinn/Saunders have proven the elements

necessary to recover under their private nuisance and negligence

caused by the negligent removal of the foundation wall of the

demolished building, which allegedly caused appellants’ building

to lose its lateral support,” the defendant did not remove the

foundation. (Id. at pp. 568–569.) Here, by contrast,

Quinn/Saunders were not seeking to hold Bay Harbor and the

Lorenzos liable for the improper construction of the retaining

wall, but rather because they alleged respondents’ continued

failure to repair the wall was causing “ongoing damages” to their

properties.

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causes of action and issue a new judgment accordingly.

Appellants are awarded their costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.

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