In what circumstances are damages for emotional distress recoverable in trespass actions?

Additionally, it is impossible to know what portion of the jury's verdict was in fact based on its assessment of the cost of repairs. The jury was also instructed that "[o]nce a cause of action for trespass has been established, the landowner may also recover damages for annoyance and discomfort proximately caused thereby." Appellant suggests this instruction was improper because the case upon which it was based, Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 288 P.2d 507, involved annoyance and discomfort due to noxious fumes, and fumes are not an issue in the present case. Kornoff can not be so limited. The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass. (Id., at pp. 271-273, 288 P.2d 507; Herzog v. Grosso, supra, 41 Cal.2d at pp. 225-226, 259 P.2d 429; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1464, p. 936; Rest.2d, Torts § 929(1)(c).) Here, Decker testified he and his wife suffered distress as a result of having their property line buried under large amounts of dirt, making it appear that one side of their property abuts a quarry, after having spent a long time looking [218 Cal.App.3d 906] for the best piece of property they could afford. The evidence also supported a conclusion that the Deckers suffered distress due to the spillage of dirt onto their property and threat of interference with drainage on their property, as well as concern over appellant's operation of the bulldozer on the berm.

Defendant argues that damages for discomfort and annoyance are erroneously awarded in the absence of personal injury. This argument centers around the heretofore quoted instruction and upon the ground that plaintiffs did not allege such discomfort and annoyance. Plaintiffs' amended complaint shows that the 'comfort and enjoyment of the plaintiffs and their family of their said home have been diminished to the extent that they have been unable to live normally and peacefully and follow ordinary pursuits, that the use [45 Cal.2d 272] of said shop has been seriously curtailed due to the said dust and cotton lint particles and plaintiffs have been deprived of the full value of same.' It was also alleged that they had suffered severe nervous distress and mental anguish. The pleading would seem to be sufficient to permit damages for discomfort and annoyance if such damages are otherwise proper.

It appears to us that the discomfort and annoyance suffered by plaintiffs is an injury directly and proximately caused by defendant's invasion of their property and that such damages would naturally result from such an invasion. It also appears to us that discomfort and annoyance may be suffered where there is no physical injury suffered. In Herzog v. Grosso, 41 Cal.2d 219, 225, 259 P.2d 429, 433, the trial court found that plaintiffs were caused to suffer "nervousness, worry, and mental distress for the safety of themselves and their daughter and others obliged to use said road on account of the dangerous conditions under which said defendant, Paul J. Grosso, forced them * * * to use said parcels * * * in going to and from their said home." We said: 'Once a cause of action for trespass or nuisance is established, an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom. Anderson v. Souza, 38 Cal.2d 825, 833, 243 P.2d 497; Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 172, 106 P. 581, 26 L.R.A,N.S., 183 (21 Ann.Cas. 1247); Thompson v. Simonds, 68 Cal.App.2d 151, 162, 155 P.2d 870; Restatement, Torts, § 929(c), comment g. In Alonso v. Hills, 95 Cal.App.2d 778, 214 P.2d 50, an action for damages resulting from blasting operations, the court sustained an award for discomfort, fright, and shock caused by a blast that occurred at a time when plaintiff was not at home. The court stated: 'Plaintiff testified that after the February 3d blast (in which a rock destroyed a bench on the property near which one of his daughters was standing) he could not rest or sleep because of fear for his own security and that of his family. This is a form of discomfort for which plaintiff under the circumstances of this case is entitled to recover, as well as for other discomfort not challenged on appeal.' 95 Cal.App.2d at page 788, 214 P.2d at page 57. Similarly, in the present case the suffering caused by fear for the safety of the daughter and visitors was a natural consequence of defendant's conduct and an invasion of a protectible interest of an occupant of real property. The cases relied upon by defendant did not involve an invasion of a protectible interest in real property and are therefore not controlling here.'

SDG & E does not dispute that emotional distress damages are recoverable in trespass and nuisance cases. That proposition is indeed settled: Our high court and lower courts have long held that once a cause of action for

[7 Cal.App.5th 1349]

trespass or nuisance is established, a landowner may recover for annoyance and discomfort, including emotional distress or mental anguish, proximately caused by the trespass or nuisance. (Acadia, California, Limited v. Herbert (1960) 54 Cal.2d 328, 337, 5 Cal.Rptr. 686, 353 P.2d 294 ["It is settled that, regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance"]; Herzog v. Grosso (1953) 41 Cal.2d 219, 225–226, 259 P.2d 429; Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 271–272, 288 P.2d 507 (Kornoff ); Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1607, 146 Cal.Rptr.3d 585; Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 172, 100 Cal.Rptr.2d 662, disapproved on another ground in People v. Rogers (2013) 57 Cal.4th 296, 330–331, 159 Cal.Rptr.3d 626, 304 P.3d 124 ; Armitage v. Decker (1990) 218 Cal.App.3d 887, 905, 267 Cal.Rptr. 399 ["The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass"]; Koll – Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1042, fn. 3, 29 Cal.Rptr.2d 664 ["Damages for emotional distress can be recovered in an action for private nuisance"; citing cases]; Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287–288, 262 Cal.Rptr. 754 [" ‘[M]ental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment’ "; citing Acadia, supra, 54 Cal.2d at p. 337, 5 Cal.Rptr. 686, 353 P.2d 294 ]; Smart v. City of Los Angeles (1980) 112 Cal.App.3d 232, 239–240, 169 Cal.Rptr. 174; Alonso v. Hills (1950) 95 Cal.App.2d 778, 780, 786–788, 214 P.2d 50.)

Kornoff thus upheld the award of emotional distress damages as part of the plaintiffs' discomfort and annoyance even though the only injury plaintiffs suffered was to their real property, rejecting the defendant's contention that the fear and shock described in prior cases as part of annoyance and discomfort were personal injuries: "While defendant's trespass here is not of the type to cause fright or shock or even physical illness (as found by the jury), it obviously is of the type to cause plaintiffs much annoyance and discomfort. Plaintiffs' property—lawns, flowers, shrubs, window screens, hedges and furniture are, during the ginning season which lasts for approximately six months of each year, covered with a thick coating of dust and lint and ginning waste. This was specifically found to be a trespass and an injury to the real property. The annoyance and discomfort suffered by plaintiffs as a result of the injury to the real property is a natural consequence thereof." (Kornoff, supra, 45 Cal.2d at p. 273, 288 P.2d 507.) Kornoff made clear that while the mental distress suffered by the plaintiffs there did not rise to the level of fright or shock, it was nevertheless compensable.

Kornoff concluded: "The California cases appear to draw no distinction between cases involving nuisance and those involving trespass in permitting an award of damages for discomfort and annoyance directly resulting from an injury to real property. There seems to be no sound reason to refuse [such an] award ... since it is obvious that such an injury may cause discomfort and annoyance without also causing an actual physical injury to the person." (Kornoff, supra, 45 Cal.2d at p. 275, 288 P.2d 507.)

Negligence and breach of contract cases are inapposite where the torts of trespass and nuisance are involved. As we have summarized above, "precedent in the law of nuisance and trespass establishes quite clearly that emotional distress without physical injury is compensable." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986, fn. 10, 25 Cal.Rptr.2d 550, 863 P.2d 795; see Acadia, California, Limited v. Herbert, supra, 54 Cal.2d at p. 337, 5 Cal.Rptr. 686, 353 P.2d 294; Kornoff, supra, 45 Cal.2d at p. 272, 288 P.2d 507.) Where the sole damage from a trespass or nuisance is to the property itself, emotional distress damages are not precluded. This is consistent with the fact that in a tort case, the measure of damages is "the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (Civ. Code, § 3333; see Erlich v. Menezes, supra, 21 Cal.4th at p. 550, 87 Cal.Rptr.2d 886, 981 P.2d 978; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1481, 232 Cal.Rptr. 668; see also Rest.2d, Torts § 929(1)(c); Rest., Torts § 47, com. on clause b ["mental distress caused by a tortious act is a matter to be taken into account in determining the damages recoverable in an action of tort. This is so although the tort is one which is actionable even though no tangible harm is done, as where the plaintiff recovers for a

[213 Cal.Rptr.3d 820]

merely offensive and intentional contact or where he recovers because the defendant has harmlessly intruded upon his land"].)

The Hensleys correctly observe that this court previously recognized the distinction in Gonzales v. Personal Storage, Inc., supra, 56 Cal.App.4th 464, 65 Cal.Rptr.2d 473, involving plaintiff's claim of conversion of sentimental items of personal property. There, this court explained that the restrictions on emotional distress

[7 Cal.App.5th 1357]

damages involved in breach of contract or negligence cases do not apply when a plaintiff's emotional distress is the result of the defendant's commission of a tort arising from an invasion of a property interest. (See Gonzales, at p. 475, 65 Cal.Rptr.2d 473.) Gonzales distinguished negligence from the "distinct torts" of conversion, trespass and nuisance, pointing out that "with respect to trespass, the law is clear that ‘... damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass.’ " (Gonzales, at p. 475, 65 Cal.Rptr.2d 473, quoting Armitage v. Decker, supra, 218 Cal.App.3d at p. 905, 267 Cal.Rptr. 399.) This court pointed out the plaintiffs in Armitage were permitted to recover for the distress they suffered " ‘as a result of having their property line buried under large amounts of dirt’ " and that the evidence also supported a conclusion that they "suffered distress due to the spillage of dirt onto their property and the threat of interference with drainage on their property, as well as concern over appellant's operation of the bulldozer on the berm." (Gonzales , at p. 475, 65 Cal.Rptr.2d 473, citing Armitage, at pp. 905–906, 267 Cal.Rptr. 399.)

We emphasized the difference between negligent damage to personal property, for which the law generally will not permit recovery of emotional distress damages, and the conversion of personal property: " ‘ "The foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which the injury to the latter results. Therefore, neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are of the gist of the action." [Citations.]’ [Citations.] Thus, where a warehouseman delivers stored household goods to a corporation which appears to have a bona fide claim of ownership, the warehouseman will be liable for conversion if the corporation is eventually unable to establish its title. [Citations.] The liability of the warehouseman for conversion arises even though there is no element of negligence involved." (Gonzales v. Personal Storage, Inc., supra, 56 Cal.App.4th at pp. 476-477, 65 Cal.Rptr.2d 473.) This court also explained that the act of dominion would provide the converter with very direct knowledge of the likely emotional consequence of his or her interference, as opposed to the person who merely negligently destroys personal property. (Id. at p. 477, 65 Cal.Rptr.2d 473.) Accordingly, where the distinct tort of conversion is involved, "there is far less likelihood that allowing recovery for emotional distress damages will create liability which is out of proportion to the nature of the defendant's act" and "considerably less justification for imposing the limits on emotional distress damages which exist in negligence cases, such as Cooper [v. Superior Court, supra, 153 Cal.App.3d 1008 [200 Cal.Rptr. 746] ]."⁸ (

[213 Cal.Rptr.3d 821]

Gonzales, at p. 477, 65 Cal.Rptr.2d 473.) We concluded: "[N]otwithstanding

[7 Cal.App.5th 1358]

further developments in the law of negligence, damages for emotional distress growing out of a defendant's conversion of personal property are recoverable." (Ibid.)

The same rationale is true for the torts of trespass and nuisance, invasions of protectable interests in real property that may be committed regardless of negligence. Gonzales supports the conclusion that emotional distress damages are available in cases of trespass and nuisance where the mental anguish or emotional distress is proximately caused by the invasion, and are not subject to the limitations on such damages imposed in negligence cases.

The trial court found that 'as a direct, natural and proximate result and consequence of the acts and conduct of the defendant * * * each of said plaintiffs were caused further to suffer nervousness, worry, and mental distress for the safety of themselves and their daughter and others obliged to use said road on account of the dangerous conditions under which said defendant, Paul J. Grosso, forced them and their family to use said parcels 2 and 3 in going to and from their said home.' Damages of $1,500 were awarded to each plaintiff. Defendant contends that the award cannot be sustained insofar as it is predicated upon distress and worry for 'the safety of * * * their daughter and others.' Once a cause of action for trespass or nuisance is established, and occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom. Anderson v. Souza, 38 Cal.2d 825, 833, 243 P.2d 497; Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 172, 106 P. 581, 26 L.R.A.,N.S., 183; Thompson v. Simonds, 68 Cal.App.2d 151, 162, 155 P.2d 870; Restatement, Torts, § 929(c), comment g. In Alonso v. Hills, 95 Cal.App.2d 778, 214 P.2d 50, an action for damages resulting from blasting[41 Cal.2d 226] operations, the court sustained an award for discomfort, fright, and shock caused by a blast that occurred at a time when plaintiff was not at home. The court stated: 'Plaintiff testified that after the February 3d blast (in which a rock destroyed a bench on the property near which one of his daughters was standing) he could not rest or sleep because of fear for his own security and that of his family. This is a form of discomfort for which plaintiff under the circumstances of this case is entitled to recover, as well as for other discomfort not challenged on appeal.' 95 Cal.App.2d at page 788, 214 P.2d at page 57. Similarly,

Page 434

in the present case the suffering caused by fear for the safety of the daughter and visitors was a natural consequence of defendant's conduct and an invasion of a protectible interest of an occupant of real property. The cases relied upon by defendant did not involve an invasion of a protectible interest in real property and are therefore not controlling here.

Under California law, the "consequences" flowing from an intentional tort such as a trespass may include emotional distress neither accompanied by a physical injury to the person or to the land. (See, e.g., Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337-338, 5 Cal.Rptr. 686, 353 P.2d 294.) The basic statutory provision concerning tort damages reflects this view, in providing that "[f]or the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (Civ.Code, § 3333.) In the case at bench, the "consequences" would include plaintiff wife's anguish, i.e., her emotional distress when NBC broadcast her husband's dying moments.

Thus, pursuant to common law principles accepted in California law, plaintiff wife has stated a cause of action for trespass unless First Amendment rights preclude it. (See discussion, infra.)

There is little California case law based upon facts showing actual physical intrusion to assist us in making this determination, probably because even today most individuals not acting in some clearly identified official capacity do not go into private homes without the consent of those living there; ⁶ not only do widely held notions

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of decency preclude it, but most individuals understand that to do so is either a tort, a crime, or both. ⁷