Filed 9/6/23 Petersen v. Alvocado CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
ROBERTA PETERSEN,
Plaintiff and Appellant, E078660
v. (Super.Ct.No. MCC1800520)
ALVOCADO, LLC et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed.
Law Office of John M. Boyko and John M. Boyko for Plaintiff and Appellant.
Reid & Hellyer and Michael G. Kerbs for Defendant and Respondent, Alvocado,
LLC.
1 Law Office of Dirck J. Edge and Dirck J. Edge for Defendant and Respondent,
Sierra Pacific Farms, Inc.
The Biondi Law Firm and Glen J. Biondi for Defendant and Respondent, Burchett
Grading, Inc.
I. INTRODUCTION
Plaintiff and appellant Roberta Petersen filed a civil action against defendants and
respondents Alvocado, LLC (Alvocado), Sierra Pacific Farms, Inc. (Sierra Pacific), and
Burchett Grading, Inc. (Burchett), alleging causes of action for negligence, nuisance, and
trespass. According to plaintiff, in 2011, defendants converted an existing avocado grove
into a citrus grove on property owned by Alvocado (the Alvocado Property), but they did
so in a manner that “altered the natural course of water flow” on the Alvocado Property.
Plaintiff alleged that, as a result of defendants’ actions, her neighboring property was
damaged by excessive water, mud, and debris following heavy rainstorms in 2015 and
2017.
Defendants alleged an affirmative defense based upon Civil Code1 section 3482.5,
subdivision (a)(1), which provides: “No agricultural activity . . . conducted . . . for
commercial purposes, and in a manner consistent with proper and accepted customs and
standards, . . . shall be or become a nuisance . . . due to any changed condition in or about
the locality, after it has been in operation for more than three years if it was not a
nuisance at the time it began.” (§ 3482.5, subd. (a)(1).)
1 Undesignated statutory references are to the Civil Code.
2 The trial court ordered a bifurcated trial on the affirmative defense to be conducted
first, directed a verdict in favor of defendants following the trial,2 and entered judgment
in favor of defendants. Plaintiff appeals, arguing (1) the trial court erred in excluding
evidence of Riverside County Ordinance No. 457.103 (Ordinance 457.103), which
purportedly required defendants to obtain a permit before performing agricultural grading
on the Alvocado property, and (2) the trial court erred in directing a verdict on the
affirmative defense set forth in section 3482.5, subdivision (a)(1). We conclude that each
of these contentions has been forfeited and, even in the absence of forfeiture, we would
find no error in the record warranting reversal.
2 We recognize that in this case, the trial court took defendants’ motion for directed verdict under submission and granted the motion only after the jury returned a verdict in favor of plaintiff in the bifurcated trial. “Typically, if a defendant believes that the plaintiff has not presented substantial evidence to establish a cause of action, the defendant may move for a nonsuit if the case has not yet been submitted to the jury, a directed verdict if the case is about to be submitted, or a judgment notwithstanding the verdict . . . following an unfavorable jury verdict.” (Fountain Valley Chateau Blanc Homeowner’s Ass’n. v. Dep’t of Veterans Affairs (1998) 67 Cal.App.4th 743, 750 (Fountain Valley); Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 572 (Cooper).) Thus, as a technical matter, the trial court’s actions here amount to directing entry of judgment notwithstanding the verdict. Nevertheless, “[w]hile made at different times, the three motions are analytically the same and governed by the same rules.” (Cooper, at p. 572.) On appeal “[t]he title given to the relief requested is not determinative,” and the mislabeling of a motion “does not require reversal of the judgment if the motion was otherwise well taken.” (Carachure v. Scott (2021) 70 Cal.App.5th 16, 28 (Carachure).) Because the parties and the trial court in this case have uniformly referred to the trial court’s order as an order directing a verdict, for consistency and clarity, we will also use that term in this opinion.
3 II. FACTS AND PROCEDURAL HISTORY
A. Pleadings and Procedural History
According to the operative complaint, plaintiff and Alvocado own neighboring
agricultural properties separated by a public road. The Alvocado property had been used
to cultivate avocados at least since 1977. In 2011, Alvocado purchased the Alvocado
property and hired Sierra Pacific and Burchett to convert the property to grow citrus
instead of avocados. As part of this process, defendants uprooted and buried the existing
avocado trees on the property. According to plaintiff, this practice “altered the natural
course of water flow” from the Alvocado property, eventually causing damage to her
neighboring property during storms in 2015 and 2017. As a result of these allegations,
plaintiff asserted causes of action for negligence, nuisance, trespass, and permanent
injunction against defendants.
Defendants’ answer to the complaint asserted, among other things, that section
3482.5, subdivision (a)(1), constituted an affirmative defense to plaintiff’s claims. The
trial court determined that section 3482.5, subdivision (a)(1), if proven, would constitute
an absolute defense to all of plaintiff’s claims and ordered a bifurcated trial on the
affirmative defense to be conducted first.
In a pretrial ruling, the trial court also excluded evidence of defendants’ purported
violation of Ordinance 457.103, which plaintiff claimed defendants violated by failing to
obtain a grading permit prior to performing their work on the Alvocado property.
4 B. Relevant Evidence at Trial
1. Testimony of Sierra Pacific Owner
The owner of Sierra Pacific testified that his company operated and managed
farms on behalf of property owners, with a specialization in growing avocado and citrus.
He had a college degree in farm management and had been working on farms for more
than forty years. During the course of his career, he had operated farms in Santa Barbara,
Ventura, San Diego, Orange, and Riverside counties. His farms specialized in growing
avocados and lemons. The owner had previously served on the board of a public water
district, had previously served two terms on the board of the California Avocado
Commission, and had previously been qualified to testify as an expert in litigation
involving farm management.
The owner testified that during the course of his career, he had been involved in
the conversion of avocado groves into lemon groves on more than 40 occasions,
involving more than 800 acres of farmland, in Riverside and San Diego counties. At the
time of trial, Sierra Pacific managed farms on behalf of forty different owners, totaling
over 600 acres of farmland in the immediate area of the Alvocado property.
With respect to the Alvocado property, Sierra Pacific had managed the property
for approximately four years on behalf of the previous owner of the property. However,
the avocado trees in the grove began suffering from disease, which could not be
controlled at the time, and the property owner “was struggling to make a profit.” In 2006
or 2007, the property owner decided to abandon the avocado grove on the Alvocado
property and terminated Sierra Pacific’s management agreement. Alvocado purchased
5 the property and decided to hire Sierra Pacific to redevelop the property in 2011. Both
Alvocado and Sierra Pacific agreed that the avocado grove on the property had not been
properly cared for in years and was “basically dead,” and that it would be a better
economic decision to convert the grove to a Meyer lemon grove. Alvocado intended to
grow the lemons on the property for commercial sale.
The owner of Sierra Pacific testified that he personally visited the Alvocado
property every other day during the course of its redevelopment. As part of the
redevelopment, agricultural grading was performed on the Alvocado property sometime
in August 2011. At the time, Sierra Pacific’s standard practice to remove avocado trees
was to bury them on site. The owner of Sierra Pacific stated he was personally aware that
other farm management companies in the area of the Alvocado property also used this
same technique. In the owner’s opinion, the procedures employed to redevelop the
Alvocado property met the industry standards commonly used at the time. Even after
redevelopment, the owner never witnessed any farming practice on the Alvocado
property that he believed fell below the industry standard with respect to the management
of the property.
On cross-examination, the owner of Sierra Pacific acknowledged that chipping the
avocado trees would have been an alternative method for disposing of the existing
avocado grove. However, the economic cost of chipping trees becomes unreasonable as
the number of trees increases. In his opinion, chipping the trees would not have been an
economically viable option for redevelopment of the Alvocado property because the
existing avocado grove consisted of an estimated 1000 trees. The owner also recalled
6 that on prior occasions, Sierra Pacific’s practice of burying trees had been challenged by
a county compliance officer, but each time the County of Riverside determined that the
practice was not in violation of any county ordinances or regulations.
2. Testimony of Sierra Pacific Vice President
The vice president of agricultural operations at Sierra Pacific testified that he had
been employed by Sierra Pacific in various positions for twenty years. He was also
currently serving on the board of the California Avocado Commission, which is an
industry-wide organization that funds research and marketing activity for the benefit of
all avocado growers in the state. He was directly involved in the work performed on the
Alvocado property to convert its existing avocado grove into a citrus grove. He recalled
that the purpose of this work was to replace a distressed avocado grove with a new crop.
Sierra Pacific hired a grading contractor to remove the existing avocado groves.
The process involved using large bulldozers to excavate multiple holes into the ground,
push over and crush the existing trees, and bury the crushed trees into the ground. He
recalled that the Alvocado property was approximately 20 acres in size and estimated that
the number of avocado trees at the time of this work could have numbered up to 2000.
He testified that Sierra Pacific Farms had utilized the technique of burying trees on
dozens of prior occasions without any interference by government officials. In his career,
he had observed this practice “too many times to count.”
On cross-examination, the vice president acknowledged that there were other
methods to potentially dispose of trees.
7 3. Testimony of the Owner of Burchett
The owner of Burchett testified that his grading company specialized in
agricultural grading. He personally worked as an agricultural grader for over 30 years.
While he previously worked for a company owned by his father, he had obtained his own
engineering license from the state contractor’s board and had been operating his own
company for over 10 years.
Burchett performed the work of removing the avocado grove by crushing and
burying the trees on the Alvocado property. Between 2000 and 2010, he estimated that
five to 10 farms a year would hire Burchett to perform agricultural grading involving the
removal and burying of old trees. He also estimated that Burchett had performed similar
work in the local area around the Alvocado property for more than 50 separate growers.
He had performed similar work for different farm management companies and, in his
experience, burying trees was “a very common practice.” He could not recall any other
situations in which this type of grading process resulted in complaints regarding erosion.
4. Testimony of Plaintiff
Plaintiff testified that she owned the property located across the street from the
Alvocado property. At the time that she purchased her property, an avocado grove
already existed on the Alvocado property, and the street separating the two properties was
already a developed, paved road. She believed that debris from the grading of the
Alvocado property caused water to drain onto her property.
8 C. Verdict and Judgment
Following the presentation of evidence, defendants moved for a directed verdict in
their favor on the affirmative defense set forth in section 3482.5. However, the trial court
purported to take the matter under submission, and proceeded to submit the case to the
jury. After the jury returned a verdict, the trial court then ruled on the “motions by the
defendant for a directed judgment” and concluded that “the Court judges the case, prior
to entry of verdict, in favor of [the] defense.” Judgment was entered according to the trial
court’s order, and plaintiff appeals from the judgment.
III. DISCUSSION
On appeal, plaintiff argues the judgment must be reversed because (1) the trial
court erred in excluding evidence of Ordinance 457.103, and (2) the trial court erred in
granting defendant’s motion for directed verdict. We conclude that each of these
contentions has been forfeited and, even in the absence of forfeiture, would conclude that
the record does not support plaintiff’s claims of error.
A. Legal Background
A trial court has wide discretion to regulate the order of proof; order a separate
trial of an affirmative defense or any separate issue in furtherance of judicial economy;
and determine that such issue should be tried first. (Finley v. Superior Court (2000)
80 Cal.App.4th 1152, 1162; Code Civ. Proc., §§ 597, 1048; Evid. Code, § 320.) In this
case, the trial court ordered a separate trial on the affirmative defense set forth in section
3482.5, subdivision (a)(1).
9 As relevant here, the statute provides: “No agricultural activity . . . conducted or
maintained for commercial purposes, and in a manner consistent with proper and
accepted customs and standards, as established and followed by similar agricultural
operations in the same locality, shall be or become a nuisance . . . due to any changed
condition in or about the locality, after it has been in operation for more than three years
if it was not a nuisance at the time it began.” (§ 3482.5, subd. (a)(1).) On appeal, the
parties do not dispute that the statute constitutes an affirmative defense to all of the
claims raised in the complaint.3
Some cases have described the affirmative defense as consisting of seven
elements: “The activity alleged to be a nuisance must be (1) an agricultural activity
(2) conducted or maintained for commercial purposes (3) in a manner consistent with
proper and accepted customs and standards (4) as established and followed by similar
agricultural operations in the same locality; the claim of nuisance arises (5) due to any
changed condition in or about the locality (6) after the activity has been in operation for
3 While section 3482.5, subdivision (a)(1), expressly references only nuisance claims, courts have subsequently interpreted the statute to provide a defense to trespass claims, as well as negligence claims. (Rancho Viejo v. Tres Amigos Viejos (Rancho Viejo) (2002) 100 Cal.App.4th 550, 562 [rejecting “appellant’s attempt to exclude . . . conduct from the reach of the statute by distinguishing between trespass and nuisance theories”]; W&W El Camino Real, LLC v. Fowler (2014) 226 Cal.App.4th 263, 276 (El Camino Real) [concluding that a verdict finding defendant negligent was inconsistent with a finding that section 3482.5, subd. (a)(1), applied because the statute’s requirement that a defendant act “ ‘in a manner consistent with proper and accepted customs and standards’ ” is the same as finding that a defendant did not breach the applicable standard of care in a negligence action].) Finally, the injunctive relief claim is not an independent cause of action, since “ ‘[i]njunctive relief is a remedy, not a cause of action,’ ” and “ ‘[a] cause of action must exist before a court may grant a request for injunctive relief.’ ” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.)
10 more than three years; and the activity (7) was not a nuisance at the time it began.”
(Souza v. Lauppe (1997) 59 Cal.App.4th 865, 874-875 (Souza); Rancho Viejo, supra,
100 Cal.App.4th at p. 567.)
However, as the trial court observed in this case, the third and fourth requisites are
“kind of the same analysis.” Further, prior to Souza, at least one Court of Appeal
published decision described the third and fourth requisites identified in Souza as a single
statutory prerequisite. (See Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 306-307.) In
our view, the ultimate fact that a defendant must establish to be entitled to the defense is
that the challenged activity was conducted “in a manner consistent with proper and
accepted customs and standards.” (§ 3482.5, subd. (a)(1).) The subsequent phrase “as
established and followed by similar agricultural operations in the same locality” (ibid.)
does not require the defendant to establish an additional ultimate fact but instead limits
the evidence that is relevant to establish the proper and accepted customs and standards.4
Thus, we believe the better analytical approach is to view the third and fourth requisites
4 The limitation is analogous to Health and Safety Code section 1799.110, which imposes a locality requirement when establishing the standard of care applicable to professional negligence cases involving the rendering of emergency medical services. Health and Safety Code section 1799.110 does not change the essential elements of a professional negligence case but instead limits the evidence relevant to establish the standard of care. (Stokes v. Baker (2019) 35 Cal.App.5th 946, 966 [“[Health and Safety Code] section 1799.110 applies only to evidence regarding the standard of care . . . .”].)
11 identified in Souza as a single element, and we use this analytical approach in reviewing
the claims of error in this case.5
B. The Trial Court Did Not Abuse Its Discretion in Excluding Evidence
Plaintiff’s first contention on appeal is that the trial court erred by excluding
evidence of Ordinance 457.103. We conclude this issue has been forfeited for failure to
develop any argument related to prejudice and further conclude that, even in the absence
of forfeiture, the record does not show an abuse of discretion.
1. General Legal Principles and Standard of Review
Generally, Ordinance 457.103 imposes standards for grading work and requires a
property owner to obtain a permit prior to performing such work. In the appropriate
circumstance, an ordinance may be relevant to establish the existence of a nuisance or the
standard of reasonable conduct in a negligence action. (City of Dana Point v. New
Method Wellness, Inc. (2019) 39 Cal.App.5th 985, 989 [“ ‘ “ ‘[T]he legislature has the
power to declare certain uses of property a nuisance and such use thereupon becomes a
nuisance per se.’ . . .” ’ ‘By ordinance the city legislative body may [also] declare what
constitutes a nuisance.’ ”]; Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547 [An
ordinance may be relied upon to establish the standard of reasonable conduct in a
negligence action.].)
5 Ultimately, “[t]he trial court’s ‘duty to instruct the jury is discharged if its instructions embrace all points of law necessary to a decision.’ . . . A party is not entitled to have the jury instructed in any particular fashion or phraseology, and may not complain if the court correctly gives the substance of the applicable law.” (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)
12 “ ‘Trial court rulings on the admissibility of evidence . . . are generally reviewed
for abuse of discretion.’ ” (Chambers v. Crown Asset Management, LLC (2021)
71 Cal.App.5th 583, 591.) However, “ ‘[t]he abuse of discretion standard is not a unified
standard; the deference it calls for varies according to the aspect of a trial court’s ruling
under review. The trial court’s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.’ ” (Ibid., quoting Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711-712.) Additionally, “[a]n appellant seeking reversal based on
the erroneous exclusion of evidence ordinarily ‘must show that a different result was
probable if the evidence had been admitted.’ ” (Kline v. Zimmer, Inc. (2022)
79 Cal.App.5th 123, 134; Pannu v. Land Rover North America, Inc. (2011)
191 Cal.App.4th 1298, 1317.)
2. Forfeiture
Initially, we must conclude that plaintiff’s claim of error in this case has been
forfeited. “ ‘ “There shall be no presumption that error is prejudicial, or that injury was
done if error is shown.” ’ ” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 655 (IIG
Wireless).) Thus, an appellant “forfeit[s] [a] claim by failing to develop an argument on
[the] point, cite any legal authorities, or explain how they were prejudiced by [the trial
court’s] ruling.” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 285
(Hernandez).) “An appellate court’s responsibility to conduct ‘an examination of the
entire cause’ [citation] is triggered ‘when and only when the appellant has fulfilled his
duty to tender a proper prejudice argument. Because of the need to consider the
13 particulars of the given case, . . . the appellant bears the duty of spelling out in his brief
exactly how the error caused a miscarriage of justice.’ [Citation.] These principles are
derived from the axiom that prejudice is not presumed and the burden is on the appealing
party to demonstrate that prejudice has occurred.” (Adams v. MHC Colony Park, L.P.
(2014) 224 Cal.App.4th 601, 614.)
Here, plaintiff’s opening brief includes an extensive argument related to why she
believes the trial court erred in excluding evidence of defendants’ failure to comply with
Ordinance 457.103’s permitting requirements. However, the opening brief includes no
discussion or development of any argument related to how plaintiff was prejudiced by
this evidentiary ruling. Instead, in concluding her arguments regarding the trial court’s
evidentiary ruling, plaintiff includes a single sentence stating: “the court’s ruling
excluding evidence of the Ordinance and respondent’s alleged violation(s) thereof
constituted prejudicial error . . . .” A “bare assertion of prejudice” with “no mention at all
as to why or how” the trial court’s evidentiary ruling “was so prejudicial that reversal is
necessary” does not meet an appellant’s burden on appeal. (IIG Wireless, supra,
22 Cal.App.5th at pp. 655-656.) Thus, we conclude that plaintiff has forfeited this claim
of error.
3. The Trial Court Did Not Abuse Its Discretion in Excluding Evidence
Even absent forfeiture, we would conclude that the trial court did not abuse its
discretion in excluding evidence of Ordinance 457.103. On appeal, plaintiff argues that
defendants violated Ordinance 457.103 by failing to obtain a permit prior to crushing and
14 burying avocado trees on the Alvocado Property and the trial court should have permitted
her to present evidence of defendants’ purported failure to obtain a permit. We disagree.
“ ‘[T]o be considered a nuisance per se the object, substance, activity or
circumstance at issue must be expressly declared to be a nuisance by its very existence by
some applicable law.’ ” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068,
1086-1087.) Similarly, to be adopted as relevant evidence of the standard of reasonable
conduct in a negligence action, a plaintiff must show that “the ‘ “harm” ’ the plaintiff
suffered was ‘ “one the statute [or ordinance] . . . was designed to prevent.” ’ ”
(Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 931;
Evid. Code, § 669.) In this case, the trial court concluded that these requirements were
not met because Ordinance 457.103 did not apply to defendants’ actions. This aspect of
the trial court’s otherwise discretionary ruling is one that we review independently.
(Cleveland v. Taft Union High School Dist. (2022) 76 Cal.App.5th 776, 803 [“Issues of
statutory interpretation and the application of that interpretation to an established set of
facts are questions of law subject to independent review by appellate courts.”].)
Ordinance 457.103 on its face provides that its permitting requirements are not
applicable to “[t]he raising of crops . . . by an operating farm exclusively for commercial
agricultural purposes . . . when all excavated material remains on-site and the agricultural
grading or clearing occurs on . . . [¶] (a) Land that has been farmed within the preceding
five (5) years . . . .” According to the allegations of plaintiff’s own complaint, the
Alvocado property “had continuously been maintained as agricultural land used for
growing, cultivating and selling avocadoes since at least 1977 up to the time of the events
15 described . . . .” Plaintiff further alleged that defendants, “rather than removing the
uprooted avocado trees from their properties, . . . excavate[d] their lands and bur[ied] the
uprooted avocado trees in such excavation sites.” “ ‘The admission of fact in a pleading
is a “judicial admission” ’ ”; operates as “a conclusive concession of the truth of the
matter”; and is “ ‘binding on the plaintiff at trial.’ ” (Bucur v. Ahmad (2016)
244 Cal.App.4th 175, 187.) Thus, pursuant to plaintiff’s own judicial admissions,
Ordinance 457.103 did not apply because the Alvocado property had been farmed within
the past five years and any excavated materials remained on the Alvocado property.
Further, even if Ordinance 457.103 might apply, we would still conclude the trial
court did not abuse its discretion by excluding evidence of defendants’ failure to obtain a
permit. The failure to obtain a permit, in and of itself, cannot establish unreasonable
conduct. This concept was clearly explained in Gravelin v. Satterfield (2011)
200 Cal.App.4th 1209. In Gravelin, the plaintiff argued that the failure of the defendant
to obtain a permit was sufficient evidence to create a dispute of fact as to whether the
defendant was negligent in the construction of a roof extension. (Id. at p. 1218.) The
Court of Appeal rejected this argument, explaining: “missing from plaintiff’s briefs in
the trial court and on appeal is any citation to building code provisions setting forth
specific structural requirements alleged to be violated by defendants. The omission is
critical. [¶] Plaintiff was injured when the roof extension collapsed. His injury did not
result from the absence of a building permit . . . . It is true, as plaintiff argues, that
obtaining a permit would have subjected the roof extension to a county inspection for
compliance with building regulations. But that process becomes important only if the
16 roof extension was noncompliant with building regulations specifying structural
requirements like standards for minimum weight-bearing capacity. It is compliance with
building regulations setting forth specific structural requirements—not the permit process
itself—that is relevant . . . .” (Id. at p. 1219.)
We believe the reasoning in Gravelin equally applies to this case. While plaintiff
focuses her arguments entirely on the failure of defendants to obtain a permit, she has not
claimed that defendants’ grading work violated any portion of Ordinance 457.103
pertaining to the manner in which grading work should be performed. Absent this
connection, plaintiff has not shown that defendants’ failure to obtain a permit under
Ordinance 457.103 was relevant to this case, even if defendants had been required to
obtain a permit pursuant to Ordinance 457.103. Only relevant evidence is admissible
(Evid. Code, § 350 ), and plaintiff does not meet her burden to show an abuse of
discretion where she has failed to explain the relevance of the evidence excluded by the
trial court.
C. The Trial Court Did Not Err in Directing a Verdict
Plaintiff also argues the trial court erred in directing a verdict in favor of
defendants on the affirmative defense set forth in section 3482.5, subdivision (a)(1). We
conclude the issue has also been forfeited and further conclude that, even in the absence
of forfeiture, the trial court did not err in directing a verdict in favor of defendants.
“The rules circumscribing the power of a trial judge to grant a motion for
judgment notwithstanding the verdict are well established. The power to grant such a
17 motion is identical to the power to grant a directed verdict; the judge cannot weigh the
evidence or assess the credibility of witnesses; if the evidence is conflicting or if several
reasonable inferences may be drawn, the motion should be denied . . . .” (Castro v. State
of California (1981) 114 Cal.App.3d 503, 512.) The motion may only be granted
“ ‘when “the court . . . determines there is no evidence of sufficient substantiality to
support the claim or defense of the party opposing the motion, or a verdict in favor of that
party.” [Citation.] “The function of these motions is to prevent the moving defendant
from the necessity of undergoing any further exposure to legal liability when there is
insufficient evidence for an adverse verdict.” ’ ” (Carachure, supra, 70 Cal.App.5th at
p. 28.) “ ‘On appeal, we decide de novo “whether sufficient evidence was presented to
withstand a directed verdict.” ’ ” (Design Built Systems v. Sorokine (2019)
32 Cal.App.5th 676, 686 (Design Built Systems); Fariba v. Dealer Services Corp. (2009)
178 Cal.App.4th 156, 174 [A directed verdict is subject to de novo review.].)
However, our review of the propriety of granting a directed verdict in this case is
slightly modified because the trial court directed a verdict in favor of defendants after a
bifurcated trial on an affirmative defense. “[A]t trial, a defendant raising an affirmative
defense has the burden of proving it.” (Consumer Cause, Inc. v. Smilecare (2001)
91 Cal.App.4th 454, 469.) While “most motions for directed verdict are made by . . . the
party that does not have the burden of proof,” there “are a few cases addressing motions
made by the party that has the burden of proof . . . .” (Design Built Systems, supra,
32 Cal.App.5th at p. 686; Newing v. Cheatham (1975) 15 Cal.3d 351, 358-359 [A motion
for directed verdict may be granted in favor of the party who bears the burden of proof.];
18 Louisville Title Ins. Co. v. Surety Title & Guar. Co. (1976) 60 Cal.App.3d 781, 787
[same].) In such a case, instead of merely asking whether there is any evidence to
support a verdict in favor of the party opposing the motion, we must ask (1) whether the
claim asserted by the party bearing the burden of proof is supported by the evidence; and
(2) whether there is any substantial evidence to support a contrary finding in favor of the
opposing party. (Design Built Systems, at p. 686; Newing, at pp. 358-359 [On review of a
directed verdict in favor of plaintiff, the reviewing court must determine whether “the
cause of action alleged in the complaint is supported, and no substantial support is given
to the defense alleged by the defendant.”].) We apply this modified standard of review in
this case.
Like plaintiff’s claim of error in the trial court’s evidentiary ruling, we must also
conclude that plaintiff’s claim of error in directing a verdict has been forfeited. Even
when a claim of error is subject to de novo review, the appellant bears the burden to
direct the court to the relevant portions of the record necessary to support her claims.
(Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th
480, 509-510 [claim of error was forfeited regarding directed verdict where opening brief
failed to cite to portions of the record necessary to support claims on appeal]; Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 372 [“ ‘[D]e novo review does not
obligate [the appellate court] to cull the record for the benefit of the appellant . . . . As
with an appeal from any judgment, it is the appellant’s responsibility to affirmatively
demonstrate error . . . .”].) The appellant bears this burden on appeal, even if she did not
19 bear the burden of proof in the trial court proceedings. (Claudio v. Regents of the
University of California (2005) 134 Cal.App.4th 224, 230.)
In this case, our review on appeal requires consideration of the evidence presented
at trial in order to determine: (1) whether the evidence is sufficient to support the
affirmative defense, and (2) whether substantial evidence was presented that could
support a contrary finding. As the appellant, plaintiff bears the burden to fairly
summarize the evidence presented at trial and direct our attention to the specific portions
of the record showing a conflict in the evidence, despite the fact that defendants bore the
burden of proof at trial. Yet the opening brief contains no summary of the trial
testimony.6 Additionally, plaintiff has not cited to any evidence in the record in support
of the majority of her arguments regarding specific elements of the affirmative defense7
or, alternatively, has cited only briefly to portions of the record she believes are favorable
to her.8 Because plaintiff has failed to fully and fairly summarize the evidence presented
6 While the opening brief contains a summary of the background facts and procedural history, plaintiff makes no attempt to set forth the substance of any of the trial testimony in connection with the elements of the affirmative defense at issue.
7 Plaintiff’s argument regarding the second, fourth, fifth, sixth, and seventh elements of the affirmative defense contains no citations to any evidence in the record to support her factual assertions. To the extent record citations are included, they refer only to the jury instructions given or the trial court’s stated reasons for directing a verdict.
8 Plaintiff’s arguments regarding the first and third elements of the affirmative defense each briefly identify a single answer given by a witness, without presenting any further context regarding the identity of the witness, the witness’s competence to testify on the subject, or the greater context of the witness’s testimony.
20 at trial and failed to include proper record citations in support of her arguments, we
conclude that her claim of error has been forfeited.
3. The Trial Court Did Not Err in Directing a Verdict in Favor of Defendants
Even in the absence of forfeiture, we would conclude the trial court did not err in
directing a verdict in favor of defendants. As we have already discussed, to be entitled to
the affirmative defense set forth in section 3482.5, subdivision (a)(1), a defendant is
required to prove six ultimate facts: (1) the alleged activity subject of the complaint was
an agricultural activity; (2) the activity was conducted for commercial purposes; (3) the
activity was performed in a manner consistent with proper and accepted customs and
standards;9 (4) the alleged injury resulted from a changed condition on the property as the
result of the activity; (5) the activity or changed condition existed for more than three
years; and (6) the activity was not a nuisance at the time it began. (§ 3482.5, subd. (a)(1);
Souza, supra, 59 Cal.App.4th at pp. 874-875; Rancho Viejo, supra, 100 Cal.App.4th at
p. 567.)
On appeal, plaintiff concedes that uncontradicted evidence established the fourth
and sixth elements: that her alleged injury resulted from a changed condition on the
Alvocado property and that defendants’ actions were not a nuisance at the time they were
conducted. As we explain, our independent review of the record leads us to conclude that
the evidence at trial was both sufficient to support the remaining elements set forth in
9 As we previously explained, the statute also limits the evidence relevant to this element by requiring that the defendant establish the proper standards and customs based only on evidence of the practices followed by similar agricultural operations in the same locality.
21 section 3482.5, subdivision (a)(1), and conclude that plaintiff failed to present any
conflicting evidence sufficient to support a contrary finding in her favor on these
elements.
a. Semantic distinctions do not establish a conflict in the evidence
The first, second, and fifth elements of the affirmative defense required defendants
to show that the challenged activity was (1) an agricultural activity (2) conducted for a
commercial purpose, and (3) that any changed condition on the property existed for more
than three years prior to any alleged nuisance. (§ 3482.5, subd. (a)(1); Souza, supra,
59 Cal.App.4th at pp. 874-875; Rancho Viejo, supra, 100 Cal.App.4th at p. 567.) The
undisputed evidence at trial showed that the Alvocado property had been the site of an
avocado grove consisting of approximately 1000 trees for decades; the previous owner of
the property sold the property after disease caused the property to be unprofitable;
Alvocado consulted with a farm management company regarding how best to make the
property profitable; Alvocado made an economically motivated decision to convert the
avocado grove into a Meyer lemon grove; the act of crushing and burying the existing
avocado trees in 2011 was part of the conversion of the property for this commercial
purpose; and plaintiff did not suffer any damages until more than three years after the
grading work was performed. Unquestionably, this evidence supported all three of these
Instead of directing our attention to conflicting evidence in support of a contrary
finding, plaintiff presents semantic distinctions in order to describe the same facts with
different words. Specifically, plaintiff argues that (1) defendants’ actions constituted
22 “waste disposal” activity instead of agricultural activity; (2) defendants’ actions
constituted “redevelopment activity” instead of commercial activity; and (3) because
defendants’ actions occurred only in 2011, the acts cannot be considered “in operation”
for three years. However, plaintiff has not cited to any authority that would suggest that
these semantic distinctions impact the practical application of section 3482.5. The failure
to develop these arguments and support them with citations to authorities forfeits the
issue. (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 681 [failure to cite to
legal authority in support of an argument renders the issue forfeited]; Hernandez, supra,
37 Cal.App.5th at p. 277 [“ ‘When an appellant raises an issue “but fails to support it with
reasoned argument and citations to authority, we treat the point as waived.” ’ ”].) Nor are
we persuaded by any of these arguments.
First, the definition of “ ‘agricultural activity’ ” for purposes of section 3482.5 is
extremely broad and includes “any practices performed by a farmer or on a farm as
incident to or in conjunction with those farming operations . . . .” (§ 3482.5, subd. (e).)
Thus, even if the agricultural grading in this case can fairly be characterized as waste
disposal, such waste disposal was clearly still “incident to” farming operations and would
also constitute agricultural activity within the meaning of the statute.
Second, plaintiff’s suggestion that an activity can only meet the commercial
purposes requirement if it generates a profit is unreasonably restrictive. The California
Supreme Court has explained that, generally, a specific act need not itself be profitable to
be considered a “ ‘commercial activity’ ” or be conducted for a “commercial purpose.”
(People v. Cochran (2002) 28 Cal.4th 396, 405.) Instead, the phrase is commonly
23 understood to include all phases of an activity conducted with the intent to facilitate the
buying or selling of goods. (Ibid.) Regardless, the undisputed evidence in this case is
that the avocado grove on the Alvocado property was diseased and unprofitable; the
decision to convert the grove to a lemon grove was in direct response to these conditions;
and the decision to crush and bury the avocado trees was the most economically efficient
(i.e. the least costly and therefore most profitable) way to convert the grove. Thus, even
if we adopted plaintiff’s proposed definition that commercial purpose requires that an
activity “ ‘hav[e] profit as the primary aim,’ ” the undisputed evidence would meet this
definition.
Finally, plaintiff argues that defendants’ actions cannot be considered “in
operation for more than three years” because the jury instructions specifically defined the
activity as “ ‘the activity of crushing and burying avocado trees,’ ” which occurred only
once in 2011. However, if taken to its natural and logical conclusion, this argument
actually precludes any recovery by plaintiff in this case. The operative complaint alleges
that the basis of plaintiff’s negligence and nuisance claims were the defendants’ act of
“alter[ing] the natural course of water flow from those properties . . . .”10 At trial,
10 While plaintiff relies heavily on the jury instruction defining the alleged activity as “ ‘crushing and burying avocado trees,’ ” she has appealed from a judgment entered on a directed verdict or, more properly, a judgment notwithstanding the verdict. Plaintiff has offered no authority for the proposition that the trial court is bound by the wording of a jury instruction when the jury’s verdict is not the basis for entry of judgment. More importantly, even if the trial court had used the agreed upon jury instructions as a guide in assessing the evidence, “we are not bound by the trial court’s reasons” and affirm a judgment notwithstanding the verdict “if correct upon any theory of applicable law.” (Cal. Serv. Station Etc. Ass’n v. Am. Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1171.)
24 plaintiff’s counsel specifically represented to the trial court that plaintiff’s theory of
nuisance was that defendants’ actions “caused the erosion problem, which caused surface
water to flow across . . . and damage [plaintiff’s] property.” Thus, the alleged nuisance
was a redirection of water that remained “in operation” from 2011 until the time plaintiff
suffered her alleged damages. If the physical conditions created by the agricultural
grading work in 2011 did not operate to redirect surface water after the grading work was
completed in 2011, then there could be no causal connection between defendant’s
grading work and plaintiff’s alleged damages in 2015 and 2017. To adopt such a narrow
definition of “in operation” would actually defeat, instead of support, plaintiff’s claim on
appeal.
For these reasons, we conclude that the evidence presented at trial supported the
first, third, and fifth elements of the affirmative defense, and plaintiff failed to present
substantial evidence to show a conflict that would warrant a finding in her favor on any
of these elements.
b. The undisputed evidence of accepted custom and practice compelled a
finding in defendants’ favor
The final element of the affirmative defense required defendants so show that the
challenged activity was conducted “in a manner consistent with proper and accepted
customs and standards, as established and followed by similar agricultural operations in
the same locality.” (§ 3482.5, subd. (a)(1).) On appeal, plaintiff contends that “[t]here is
no evidence in this record that [defendants] have met their burden of proof for this
element.” We disagree.
25 The owner of Sierra Pacific Farms testified that he held a degree in farm
management, had over forty years of personal experience working on farms, and had
previously been qualified to testify as an expert in farm management. He had managed
farm operations specializing in growing avocados and lemons in multiple counties and
had managed farms on behalf of forty different owners involving hundreds of acres in the
specific region where the Alvocado property was located. The owner explicitly testified
that, in his professional opinion, the procedures employed to redevelop the Alvocado
property met the industry standards commonly used at the time. Both the owner of Sierra
Pacific and the owner of Burchett testified that other farm management companies in the
area of the Alvocado property used the same techniques to crush and bury trees. This
evidence clearly supports a finding that defendants’ practice was conducted in a manner
consistent with proper and accepted customs and standards, as established and followed
by similar agricultural operations in the same locality.
The record shows that plaintiff presented no contrary testimony on the issue of
accepted customs and standards.11 We acknowledge that, generally, “[s]o long as it does
not do so arbitrarily, a jury may entirely reject the testimony of a[n] . . . expert, even
where the [opposing party] does not call any opposing expert and the expert testimony is
not contradicted.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633.) Thus,
in most cases, the fact that the party bearing the burden of proof presented uncontradicted
11 While plaintiff has offered a variety of criticisms regarding defendants’ practices in her briefs on appeal, she has not cited to any portion of the record that shows that these criticisms were presented at trial.
26 expert testimony would not warrant a directed verdict because the jury would still be free
to reject the expert’s testimony and conclude the party failed to meet its burden of proof.
However, an exception to this general principle exists where “ ‘the [party with the
burden of proof] must prove by members of the defendant’s profession the standard of
care or skill ordinarily used in the practice of that profession at a particular place.’ ”
(Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 632.) When the standard of care
must be established by expert testimony, uncontradicted expert testimony is
“ ‘conclusive’ on the jury.” (Ibid.; Sanchez v. Brooke (2012) 204 Cal.App.4th 126, 138
[“ ‘In negligence cases arising from the rendering of professional services, . . . the
standard of care against which the professional’s acts are measured remains a matter
peculiarly within the knowledge of experts. Only their testimony can prove it, unless the
lay person’s common knowledge includes the conduct required by the particular
circumstances.’ ”].) As we explain, this exception clearly applies here.
First, section 3482.5, subdivision (a)(1), expressly requires evidence of the
practices “established and followed by similar agricultural operations in the same
locality” in order to show “proper and accepted customs and standards.” (§ 3482.5,
subd. (a)(1).) Thus, the statute itself contemplates that this issue is one outside of the
common knowledge of lay jurors.
Second, as explained in W&W El Camino Real, LLC v. Fowler (2014)
226 Cal.App.4th 263, this element of the affirmative defense is actually the same as the
standard of care in a negligence action premised upon the same conduct. (Id. at p. 276.)
In fact, the Court of Appeal reversed a judgment in favor of the defendant on the grounds
27 that the jury’s finding that section 3482.5, subdivision (a)(1), was inconsistent and could
not be reconciled with the jury’s finding that the defendant had breached the standard of
care under a negligence theory. (W&W El Camino Real, at p. 276.) As explained by the
Court of Appeal, the defendant’s actions cannot be considered in compliance with
accepted customs and standards while also unreasonable under the circumstances. (Ibid.)
Thus, because this element of the affirmative defense is coextensive with the standard of
care element of plaintiff’s negligence cause of action, it should be subject to the same
requirements of proof.
Finally, the undisputed testimony in this case was that the crushing and burying of
avocado trees on the Alvocado property constituted agricultural grading work performed
under the supervision of a licensed engineer. California courts have expressly held that
expert testimony is required to establish the standard of care applicable to licensed
engineers. (Allied Properties v. John A. Blume & Associates (1972) 25 Cal.App.3d 848,
858 [expert testimony required to fix standard of care for professional engineers]; Huber,
Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 313 [error for trial court to
instruct that jury could disregard expert testimony of proper professional standards
related to architects and professional engineers].) Similarly, the California Supreme
Court has applied the expert testimony requirement to claims of negligence involving the
alleged failure to construct and maintain proper flood control. (Miller v. Los Angeles
County Flood Control Dist. (1973) 8 Cal.3d 689, 701-703 [upholding the grant of nonsuit
in favor of defendant contractor when plaintiff failed to present expert testimony on
standard of care applicable in construction industry to prevent flooding because “[t]hese
28 were not questions which the jury could have resolved from their common experience
and the trial judge properly concluded that the issue of the allegedly negligent
construction . . . was one within the knowledge of experts only.”].)
For the above reasons, we conclude that the issue of what constitutes “proper and
accepted customs and standards” within the meaning of section 3482.5, subdivision
(a)(1), must be established by expert testimony. The determination clearly falls outside
the common knowledge of a lay juror, such that a jury should not be entitled to disregard
uncontradicted expert opinion in favor of its own standards. Because the record shows
that plaintiff failed to present any competing testimony at the time of trial on this issue,
the uncontradicted testimony of defendants’ experts would have been conclusive on the
jury. Where the jury could not have made a contrary finding on this element, it was
proper for the trial court to conclude that there was no substantial evidence to warrant a
finding in favor of plaintiff.
Thus, our review of the record leads us to conclude that each element of the
affirmative defense set forth in section 3482.5, subdivision (a)(1), was supported by
evidence presented at trial and that there was no substantial evidence to support a
contrary finding in favor of plaintiff on any of these elements. Given this conclusion, we
would find no error in the trial court’s decision to direct a verdict in favor of defendants
on the affirmative defense even in the absence of forfeiture.
29 IV. DISPOSITION
The judgment is affirmed. Respondents to recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
McKINSTER J.