Cavanagh v. Najera CA2/6

Filed 10/30/14 Cavanagh v. Najera CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

LESLIE CAVANAGH, 2d Civil No. B250910 (Super. Ct. No. 1382027) Plaintiff and Appellant, (Santa Barbara County)

v.

ARTHUR NAJERA, et al,

Defendants and Respondents.

In 2005, a drainage pipe owned by the City of Santa Barbara burst, causing a landslide. The landslide damaged property owned by respondents Arthur and Barbara Najera and an adjacent property currently owned by appellant Leslie Cavanagh.1 The Najeras used money from a settlement with the City to repair their property, but not Cavanagh's. Her complaint, filed in pro per, purported to allege causes of action against the Najeras for trespass, fraud and negligence. She alleged, among other things that the Najeras failed to honor an agreement to use the settlement funds for the repair of both properties. The Najeras filed a cross-complaint against Cavanagh for negligence, trespass, nuisance and loss of subjacent support. After a six-day trial, the jury found in favor of the Najeras on both Cavanagh's complaint and their cross-complaint, ordering Cavanagh to pay the Najeras damages of $300,397. Cavanagh contends the judgment is

1 Cavanagh's brother, Brad Holden, owned the property when the pipe burst; he subsequently died and his sister, Cavanagh, inherited the property.

excessive as a matter of law, that the Najeras cannot recover damages for "pain and suffering," that their claims are time-barred, that the trial court improperly excluded certain evidence and erred when it denied leave for her file a second amended complaint. We affirm. The Record on Appeal Appellant, who was represented by counsel at trial and has counsel on appeal, has chosen to proceed on a limited record of the trial court proceedings. The clerk's transcript does not include, for example, the trial court's instructions to the jury, nor has appellant requested that any of the exhibits introduced at trial be transmitted to this court. The reporter's transcript includes only one day of the six-day trial. On that day, Mr. and Mrs. Najera testified concerning their cross-complaint and counsel made their closing arguments. The trial court also instructed the jury, but the instructions were not transcribed. Facts As a consequence of this extremely limited record, we can provide only a brief summary of the facts. The parties own neighboring properties in a somewhat rural area of Santa Barbara. In 2005, a drainage pipe owned by the City of Santa Barbara burst, causing damage to the hillside below both properties. The Najeras brought a property damage claim against the City and settled their claim for $225,000.2 Contractors and others hired by the Najeras entered Cavanagh's property where they dug some test holes, removed some vegetation and cut down at least one tree. Cavanagh complained that she had not been indemnified against potential claims arising out of the work. She also complained that the Najeras' horses and their dog trespassed on her property. The Najeras completed repairs only to their own property. The Najeras' cross-complaint alleges causes of action for negligence, intentional tort, trespass, private nuisance and lateral and subjacent support based on the