Reichardt v. Hoffman

WILLIAM REICHARDT, et al., Plaintiffs and Respondents, v. GEORGE HOFFMAN, Defendant and Appellant. No. H013548 (Monterey County Superior Court No. M 27959) California Court of Appeal Sixth Appellate District Filed February 6, 1997
CERTIFIED FOR PARTIAL PUBLICATON         

        Plaintiffs own a house in Monterey County adjacent to a vacant lot owned by defendant. Defendant's lot is benefited by a deeded non-exclusive easement over plaintiffs' property for access purposes. Plaintiffs are required to keep the easement "clear" in order to ensure "proper access" for defendant. After years of dispute about the easement, plaintiffs obtained a judgment extinguishing defendant's easement, enjoining defendant from interfering with plaintiffs' enjoyment of their property and awarding plaintiffs compensatory and punitive damages based on causes of action for nuisance, violation of conditions, covenants and restrictions (hereafter CC&Rs) applicable to defendant's property and interference with contract or prospective economic advantage. Defendant's appeal challenges the sufficiency of the evidence to support (1) the extinguishment of his easement, (2) the court's finding that he was liable to plaintiffs for interference with contract or prospective economic advantage, (3) nuisance liability, (4) damages for violation of the CC&Rs and (5) damages for emotional distress. Defendant also claims that the punitive damages award was improper because plaintiffs failed to adduce evidence of his financial condition. Finally, defendant claims that the judgment must be reversed because the trial court conducted a "view" of the property while court was not in session without notifying the parties. We conclude that the evidence does not support the trial court's extinguishment of defendant's easement. Accordingly, we modify the judgment by striking the order extinguishing defendant's easement and affirm the modified judgment.

FACTS         In 1977, defendant paid $21,000 for a one-acre lot adjacent to the property now owned by plaintiffs. Plaintiffs' property already had a home on it at that time. The only use that defendant has ever made of his vacant lot has been as a place to store old trucks, a boat and other debris including roofing tile, beams, concrete blocks and fragments, a cement mixer, saw horses and lumber. Defendant's neighbors and the health department asked him to remove this debris, but he did not respond to these requests. Defendant kept a non-functional pick-up truck on his lot for a decade even though he was cited in both 1987 and 1989 by the Monterey County Department of Health for storing this vehicle on his property and directed to remove this "health and safety" hazard immediately. In 1989, defendant was cited by the California Department of Forestry for maintaining a fire hazard on his lot. Defendant has also been cited for illegally grading his lot without a permit. Less than a month before trial, defendant removed the non-functional pickup truck from his lot.
        Defendant's grant deed states that he has a "non-exclusive easement for driveway purposes" over a strip of land 25 feet wide and 80 feet long across the front of plaintiffs' property. Defendant's lot is not landlocked. It fronts on a public street. The front porch of plaintiffs' home encroaches a few feet into defendant's easement. Defendant became aware of this encroachment in the 1970's. In 1980, a variance was granted to previous owners of plaintiffs' property which permitted the house to violate the setback requirement ¹ on the condition that "the right-of-way be kept clear to provide proper access" to defendant's lot.
        Plaintiffs purchased their property in June 1987. In August 1987, defendant first encountered plaintiffs when he found vehicles parked in the easement blocking his access to his lot on the day of plaintiffs' wedding. He knocked on plaintiffs' door, complained about the cars parked in front of plaintiffs' house and told plaintiff Judith Reichardt (hereafter Judith) that "they weren't supposed to park" in the easement. Judith had just gotten out of the shower and was wet and in her robe. She explained that this was their wedding day, and they were going to have a number of guests. She asked defendant if he was going to require access to his property again that day. Defendant told her "it doesn't matter whether I will be back later today or not. No cars are ever to be parked there." Defendant insisted upon talking to "the groom," but he was not permitted to do so.
        Through the years, defendant has consistently insisted that no cars are allowed to park anywhere in the easement area. He claims that there is not adequate room for a vehicle to pass if another vehicle is parked in the easement. However, he concedes that the easement area is at least 20 feet wide. Everyone other than defendant has concluded that there is plenty of room for two cars to pass one another in the easement area. A few days after the August 1987 encounter, while plaintiffs were away on their honeymoon, defendant returned and removed much of the vegetation and part of a tree that were growing on plaintiffs' property along the edge of the easement. He did not contact plaintiffs before doing so. Plaintiffs' friend, who was housesitting for them while they were away, saw defendant doing this and asked defendant to stop, but defendant refused. Defendant's mutilation of this vegetation left a "mud wall" bare of vegetation in front of plaintiffs' house. The tree later died, and the vegetation never grew back.
        In late 1987, plaintiff William Reichardt (hereafter William) first met defendant. Defendant told William that "this was his easement and we were to treat that easement area, the paved area, as if it were a street with no parking signs on it . . . ." William asked defendant if it would be advantageous for defendant to have direct access to his property from the street. Defendant asked whether William had $50,000 "to contribute to the possibility of putting in a new driveway." William replied that he did not. Around Christmas of 1987, defendant pounded on plaintiffs' front door very early on a Saturday morning and demanded that a car parked on the easement be moved. William moved the car so that defendant could get by, but he did not move the car off the easement. Defendant became irate and demanded that the car be removed entirely from the easement area. William did so, but defendant insisted that the car was still on the easement and became even more angry. He said "you just can't park in front [of your house] at all. This is my easement, you are never to park on it." William removed his car from the front of his house. William had a similar encounter with defendant in March 1988. These incidents were "ongoing" through early 1991 although William could not remember the dates of any other specific incidents.
        Plaintiffs had not been apprised of the existence of defendant's easement when they purchased their property. After learning of its existence, they made a claim against their title insurer, the seller and the seller's real estate agent. This claim was settled in 1990. In 1991, plaintiffs tried to contact defendant in an attempt to convince him to sell them his easement. In May 1991, defendant told them that he had received their communications and "he was sure we could work something out." A month later, defendant told them that he "was still thinking about it" but "had been too busy to get to it." In the fall of 1991, Judith met with defendant and showed him plans that plaintiffs had had prepared for an alternative driveway access for defendant's property. Defendant orally agreed to accept a sum of money to cover the cost of an alternative driveway in exchange for giving up his easement. Based on this apparent agreement, Judith expended $1750 for plans for the alternate driveway. However, defendant never agreed to a specific sum nor did he ever sign a written agreement to exchange his easement for a sum of money.
        Plaintiffs moved to Oregon in January 1992 and rented out their property. In February 1992, Judith traveled to Monterey for the sole purpose of finalizing her agreement with defendant regarding the easement. The alternative driveway was estimated to cost about $23,000 so Judith borrowed $30,000 and placed this sum in escrow for defendant. After defendant failed to close the escrow, Judith contacted him and asked why he had not completed the transaction. Defendant said "what's it worth to you." The transaction was never completed, and this was the last contact Judith had with defendant.
        Defendant subsequently had heated encounters with plaintiffs' tenants in which he demanded that they move vehicles parked in the easement area. He also took a photograph of one of these tenants as he went to move his vehicle in his bathrobe. Defendant even called the police about one of plaintiffs' tenants on one occasion. When plaintiffs listed their property for sale, defendant attended several open houses held at plaintiffs' property. Defendant parked his truck with a garbage can in the back of it along the property line between his lot and plaintiffs' property. He took a camera with him, handed out fliers, posted a sign and wrote down the license numbers of the vehicles parked outside plaintiffs' home during these open houses. The sign and fliers said "take notice that there exists a recorded driveway easement . . . [which] might be subject to vehicular traffic at any time day or night seven days a week, 24 hours a day." Defendant also spoke with potential purchasers and potential renters attending these open houses. Plaintiffs' real estate agent observed this conduct and concluded that defendant was "intimidating potential tenants or buyers." The agent herself felt intimidated by defendant.
        Eventually, in October 1993, plaintiffs received an offer to purchase their property from Mark Porter. At this point, plaintiffs were in serious financial difficulty and needed to sell their property to alleviate this financial crisis. "Our whole lives were occupied with trying to sell that house." Porter's offer was contingent on Porter meeting with defendant to discuss the possibility of removing the easement. ² Porter contacted defendant to discuss the easement. He hoped that he would be able to "establish a comfort level" with defendant by either putting in an alternative driveway for defendant or "somehow working things out with the two owners . . . ." They arranged a meeting. Defendant was aware at this time that plaintiffs were experiencing serious financial difficulties and were desperate to sell their property and that Porter had offered to buy the property. Defendant met with Porter at the property. When defendant arrived at the property, defendant immediately became upset when he discovered that one of plaintiffs' tenants' guests had parked his car in the easement area. Defendant parked his truck so that the guest could not drive his vehicle away while defendant met with Porter. Porter observed this encounter.
        Porter then spoke with defendant. Defendant told Porter that his easement "was the entire front yard" of plaintiffs' property. He said that plaintiffs' front porch was "the first thing that's going to be torn off there the minute you buy the place." Porter told defendant that he hoped that they "could sit down and somehow work out a situation where we can be comfortable living next to you and sharing this easement or possibly just putting [in] a new driveway." Porter mentioned that he had children and a dog and he hoped to possibly put a dog run in front of the house. Defendant said "there will be nothing in the easement. If there is anything in the easement I will run it over." Porter asked if he meant children, and defendant said "anything." Defendant refused to even discuss an alternative driveway unless Porter had "eighty to a hundred thousand dollars" to contribute.
        Defendant also told Porter that Porter was paying too much for plaintiffs' property and that plaintiffs' house had "several structural problems." Defendant informed Porter that plaintiffs had received $100,000 in compensation in their action involving their lack of notice of the easement. Defendant said that "it was his money, not their money, it was his money. And that's why he has been fighting them for all these years because he felt all along it was his money." Porter decided not to buy plaintiffs' property because defendant "is a complete basket case" and "I can't even reason with him." "[T]he biggest thing is the fact that he mentioned that he would run over our kids or anything that was in the driveway, dogs, kids, bikes, anything." "I couldn't live next to a man like that. He was too off the wall. I really felt very threatened."
        After Porter decided not to purchase the property, plaintiffs' real estate agent concluded that the property was unmarketable because defendant intimidated people and interfered with attempts to market the property. Plaintiffs received no other viable offers to purchase their property. Had Porter completed the purchase, plaintiffs would have realized a net gain of $88,000. The loss of this potential sale was a "devastating" blow to plaintiffs because it left them with "no money," and a negative cash flow which placed them "up against the wall." William "collapsed in tears" and "[i]t was very difficult" for him to deal with this situation. Judith's emotional condition was also detrimentally affected. "It kind of meant the end for us."
        Plaintiffs filed an action against defendant in November 1993 seeking to extinguish his easement, obtain declaratory and injunctive relief and obtain compensatory and punitive damages for interference with contract or prospective economic advantage, nuisance and violation of the CC&Rs. After a court trial, the court issued a judgment extinguishing defendant's easement, enjoining him from interfering with plaintiffs' property and from violating a number of the CC&Rs and awarding plaintiffs $150,000 in compensatory damages and $50,000 in punitive damages. The trial court issued an extensive statement of decision in support of its judgment.
        The court made the following findings. The court concluded that defendant had created a nuisance and violated the CC&Rs. His conduct prevented plaintiffs from having "free use" of their property and interfered with their "comfortable enjoyment" of their property. Defendant's easement was "subject to" the CC&Rs. The various citations that defendant had received as a result of his use of his lot violated the CC&Rs. Defendant's demands that the easement be kept "completely clear" for his "exclusive use" were reflective of his belief that the easement was his exclusive property and his conduct was consistent with this belief. However, the easement area was wide enough to allow defendant access to his property even with another vehicle parked in the easement area. The agreement that the easement would "be kept clear to provide proper access" did not convert the easement from a non-exclusive one to an exclusive easement. The purpose of this agreement was simply to ensure that defendant had "adequate passage" to his property. Defendant's conduct in connection with the easement was "incompatible with both the nature and exercise" of the easement. By treating the easement as exclusive, defendant had "surcharg[ed] the non-exclusive nature of it" and used the easement to "harass and intimidate" plaintiffs and their guests. Defendant's conduct prevented plaintiffs from "making any use" of the easement. Defendant had "harassed and frightened" plaintiffs' tenants and their real estate agent in connection with the easement, and his conduct had caused Porter to decide not to purchase plaintiffs' property.
        Since reasonable access to defendant's property could be obtained from the public street adjoining the lot rather than by way of the easement, the court concluded that it was appropriate to extinguish defendant's easement. The court awarded $88,000 in damages for defendant's interference with plaintiffs' economic relationship with Porter, $22,000 for defendant's creation of a nuisance and violation of the CC&Rs and $40,000 for plaintiffs' emotional distress arising from defendant's interference, his creation of a nuisance and his violation of the CC&Rs. In addition, the court awarded $50,000 in punitive damages based on defendant's conduct in connection with the Porter offer. Defendant's motion for a new trial was denied, and he filed a timely notice of appeal.

DISCUSSION
A. NEW ISSUES RAISED IN REPLY BRIEF         In his reply brief, defendant makes a number of new contentions which he acknowledges he did not raise in his opening brief. Taken as a whole, defendant's reply brief reads like an entirely new opening brief rather than as a response to plaintiffs' brief. ³ The parties disagree as to exactly how many of the issues raised in the reply brief are "new," but even defendant concedes that at least five issues are "new." Plaintiffs claim that there are 16 new issues. The truth is somewhere in between.
        Defendant's opening brief raised seven issues. His reply brief appears to raise approximately 20 issues. Defendant concedes that his assertion that "the entire judgment is infected by the lower court's consideration of constitutionally impermissible factors and must be reversed" is an entirely new issue which was not raised in his opening brief. Since defendant's opening brief simply challenged the sufficiency of the evidence to support (1) the extinguishment of defendant's easement, (2) liability for interference with contract or prospective economic advantage, (3) nuisance liability, (4) damages for violation of the CC&Rs and (5) emotional distress damages, defendant's other challenges to the court's liability findings and compensatory damage awards are "new" issues raised for the first time in his reply brief. Defendant's reply brief challenge to the sufficiency of the evidence to support an award of punitive damages is also new because his only challenge to this award in his opening brief was on the ground that it was invalid because plaintiffs had failed to introduce evidence of his financial condition.
        The many new issues raised by defendant in his reply brief are not merely elaboration of issues raised in his opening brief or rebuttals to plaintiffs' briefing. For instance, defendant's reply brief assertion that an award of both an injunction and damages for violation of the CC&Rs was never even suggested in his opening brief. Defendant's reply brief challenge to the excessiveness of the compensatory damages award is also new. In his opening brief, defendant challenged the emotional distress award as unsupported by the evidence, and he claimed that the CC&R violations did not cause plaintiffs any damage, but he did not pose a challenge to the excessiveness of the compensatory damages award as a whole. Similarly, defendant's reply brief challenge to the propriety of a separate award for emotional distress is also new because his opening brief challenge was simply to the sufficiency of the evidence to support any damages for emotional distress.
        We refuse to consider the new issues raised by defendant in his reply brief. "Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument." (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant." (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) "Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8, internal quotation marks omitted.)
        The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief. "Some additional points are made for the first time in their closing brief. We are not disposed to look with favor upon a point so made, unless good reason appears for the failure to make it in the opening brief. This practice is not fair to a respondent, and tends to delay the final disposition of appeals. This court has heretofore said, that while it is undoubtedly at liberty to decide a case upon any points that its proper disposition may seem to require, whether taken by counsel or not, an appellant should, under the rules, make the points on which he relies in his opening brief, and not reserve them for his reply, and that the court may properly consider them as waived unless so made. [Citations.] This should undoubtedly be the rule where no good reason appears for the omission to make the point in the opening brief, and it does not appear that the appellant would be unjustly affected by a refusal to consider it." (Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584.) "We do not mean to say that an appellant might not be allowed in exceptional cases to discuss new questions in his final brief. He might be allowed to do so upon an application showing meritorious reasons why the points were not made in the opening brief. Such application might be based upon sickness, inadvertence, or other excusable neglect. But in the case at bar no reason whatever is given for this departure from the ordinary method of presenting a case in this court. If the practice were allowed without any substantial reason, it would lead to great irregularity and delay. In such event the respondent, of course, could justly demand the right to file an additional brief, and the course of the argument by brief would be radically changed." (Kahn v. Wilson (1898) 120 Cal. 643, 644.)
        Defendant filed his opening brief in October 1995. Plaintiffs filed their brief in March 1996. Defendant filed his reply brief on June 10, 1996. On June 21, 1996, plaintiffs filed a motion to strike defendant's reply brief or portions thereof. On June 27, 1996, defendant filed a reply to plaintiffs' motion in which he claimed that there was no impropriety in raising new issues in the reply brief since the appellate court "may and should" address these issues. Defendant made no showing of good cause in his reply to plaintiffs' motion. Plaintiffs responded to this reply by arguing that defendant was "abusing the appellate process" and noting that "it would be oppressive and burdensome" for plaintiffs to have to respond to what amounted to essentially a new opening brief.
        Defendant filed an eight-page response to plaintiff's response to his reply to their motion. In this response, defendant for the first time attempted to demonstrate good cause for his failure to raise the new issues earlier. He stated that he had retained a new attorney after the opening brief had already been prepared and filed. This new attorney substituted in on December 5, 1995. Because the new attorney was allegedly busy familiarizing himself with the trial record and doing legal research, he was not able to take any action in this case before the filing of plaintiffs' brief in March 1996. This statement constitutes defendant's entire justification for his failure to raise these new issues prior to June 1996. In their reply to this statement, plaintiffs pointed out that they had limited means and "should not be saddled with the onerous burden of having to file additional briefing simply because Appellant retained new counsel after filing the Opening Brief." Plaintiffs asserted that "they should not be required to continually increase the resources devoted to defending this appeal every time Appellant briefs this matter."
        We agree with plaintiffs that fairness supports their challenge to defendant's assertion that he has the right to continue to raise new issues in a reply brief filed eight months after his opening brief, six months after he obtained new counsel and three months after plaintiffs filed their brief. Defendant has singularly failed to demonstrate good cause for his failure to brief these issues earlier. Defendant, as the appealing party, had the opportunity to frame the issues in this appeal at the time he filed his opening brief. If he was dissatisfied with his counsel at that time, he should have sought an extension of time so that he could obtain new counsel prior to the filing of the opening brief. In addition, we are skeptical of defendant's counsel's claim that the three-and-a-half month period between his substitution in as defendant's attorney and the filing of plaintiffs' brief did not permit him enough time to review the record and the opening brief and discover that new issues would need to be addressed. The record in this case is not voluminous and the opening brief was not particularly lengthy. Had defendant's new counsel sought permission to file a supplemental opening brief in December or January, he might have been able to demonstrate good cause therefor. The mere fact that an appellant chooses to obtain new counsel two months after filing his opening brief cannot justify his contention that it is proper to raise new issues in a reply brief filed six months later. We refuse to consider the issues raised by defendant in his reply brief which were not raised in his opening brief.

B. SUFFICIENCY OF THE EVIDENCE         "'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.'" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, italics in original; accord Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.) "'[W]e have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.'" (Leff v. Gunter (1983) 33 Cal.3d 508, 518 quoting Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.) Our role is limited to determining whether the evidence before the trier of fact supports its findings. (Reddy v. Gonzalez (1992) 8 Cal.App.4th 118, 123.)

1. EXTINGUISHMENT OF THE EASEMENT         Defendant challenges the sufficiency of the evidence to support the trial court's extinguishment of his easement. He claims that his conduct was not "incompatible" with the "nature or exercise" of his easement. We conclude that the trial court's extinguishment of defendant's easement cannot be upheld.
        "The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement." (Civ. Code, § 803.) In this case, defendant's land was the dominant tenement and plaintiffs' land was the servient tenement. "The extent of a servitude is determined by the terms of the grant . . . ." (Civ. Code, § 806.) The extent of the servitude benefiting defendant's land was described in the grant deed by which defendant obtained title as a "non-exclusive easement for driveway purposes." When an easement is "non-exclusive," the common users must accommodate each other. (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703.) "[T]he owner of a dominant tenement must use his easement and rights in such a way as to impose as slight a burden as possible on the servient tenement." (Baker v. Pierce (1950) 100 Cal.App.2d 224, 226.) The owner of the servient tenement may use the burdened land in any way which does not "interfere unreasonably" with the easement. (Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 867.)
        Extinguishment of an easement is an extreme and powerful remedy which is utilized only when use of the easement has been rendered essentially impossible. "A servitude is extinguished . . . [b]y the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise." (Civ. Code, § 811.) The California Supreme Court construed this statute more than a century ago as authorizing extinguishment of an easement only where the easement owner performs or authorizes an act which permanently prevents use of the easement. "This seems to be a recognition and statutory declaration of the rule . . . that if the owner of a dominant estate do acts thereon which permanently prevent his enjoying an easement, the same is extinguished, or if he authorize the owner of the servient estate to do upon the same that which prevents the dominant estate from any longer enjoying the easement, the effect will be to extinguish it." (Lux v. Haggin (1886) 69 Cal. 255, 292-293, emphasis added.) "The courts have interpreted this incompatibility as necessitating a permanent interference or an act of a nature such that thereafter exercise of the easement cannot be made without severe burden upon the servient tenement." (Buechner v. Jonas (1964) 228 Cal.App.2d 127, 132, emphasis added.)
        We have not located any case in which an easement was extinguished in the absence of evidence that the owner of the dominant tenement had performed or authorized an act which resulted in a physical change which prevented continued use of the easement without imposing a severe burden on the servient tenement. (Buechner v. Jonas, supra, 228 Cal.App.2d 127 [planting and maintenance of hedge across easement did not merit extinguishment of easement]; McCarty v. Walton (1963) 212 Cal.App.2d 39, 45 [building of rock wall with gate in it did not merit extinguishment of easement]; Crimmins v. Gould (1957) 149 Cal.App.2d 383, 390 [easement owner's dedication of land for construction of public street leading to easement causing the easement to be used by the general public did justify extinguishment of the easement].) In order to justify extinguishment of an easement, "[t]he acts of the owner of the dominant tenement . . . must be of a character so decisive and conclusive as to indicate a clear intent to abandon the easement." (Smith v. Worn (1892) 93 Cal. 206, 213.) The interference with use of the easement must be material and permanent rather than occasional and temporary in order to justify extinguishment. (People v. Ocean Shore Railroad (1948) 32 Cal.2d 406, 418.)
        The record does not contain any evidence of a physical change which created a permanent and material interference which was incompatible with use of the easement. The trial court found that defendant's conduct in connection with the easement was "incompatible with both the nature and exercise" of the easement because, by treating the easement as exclusive, defendant had "surcharg[ed] the non-exclusive nature of it" and used the easement to "harass and intimidate" plaintiffs and their guests. The court concluded that defendant's conduct prevented plaintiffs from "making any use" of the easement area.
        However, the critical question in determining whether extinguishment of defendant's easement was justified was whether defendant had performed or authorized an act which permanently and materially interfered with his continued use of the easement. The absence of any physical change was indicative of an absence of justification for extinguishment. While defendant's outrageous conduct prevented plaintiffs from making reasonable use of the easement area, such conduct simply cannot justify extinguishment of the easement. Preventing plaintiffs from using the easement area did not prevent defendant from using the easement. If anything, defendant's threatening conduct probably facilitated defendant's use of his easement. While plaintiffs were legally entitled to make reasonable use of their land even though it was burdened by defendant's easement, and defendant's unjustified interference with plaintiff's use of their land was a legal nuisance, this conduct could not justify extinguishing defendant's easement under Civil Code section 811 because the easement could only be extinguished if defendant's conduct interfered with his own use of the easement.
        There was no evidence that defendant's actions in connection with the easement materially or permanently prevented defendant from using the easement "without severe burden" on plaintiffs. While defendant's insistence that he had the right to exclusive use of the easement area was unwarranted and incorrect, his assertions did not result in any physical change which permanently burdened defendant's use of the easement and prevented its continued use. Evidence that defendant had threatened to run over anything in the easement area including children and animals also did not support the court's extinguishment of the easement. This threat did not permanently prevent defendant from using the easement or establish that defendant's continued use of the easement would put a permanent and severe burden on the servient tenement. An injunction requiring defendant to accommodate the servient tenement's use of the easement area would have been the appropriate remedy to eliminate the basis for such threats.
        In the absence of evidence that defendant performed or authorized some act which resulted in a physical change that permanently and materially prevented defendant from using the easement or made his use of the easement severely burdensome on the servient tenement, the trial court was not authorized under Civil Code section 811 to extinguish defendant's easement. As the record contains no evidence of such an act, the extinguishment of defendant's easement cannot be upheld and must be stricken from the judgment.

[This Part Is Not Certified for Publication]
2. INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE         Defendant claims that the evidence does not establish that he interfered with plaintiffs' potential sale of their property to Porter. Interference with contract is established by showing "(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) Intentional interference with prospective economic advantage is proven by "(1) an economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff; (2) knowledge by the defendant of the existence of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) damages to the plaintiff proximately caused by the acts of the defendant." (Blank v. Kirwan (1985) 39 Cal.3d 311, 330.) In an action for interference with prospective economic advantage, the plaintiff must also prove that the defendant's conduct was "wrongful by some legal measure other than the fact of interference itself." (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) The purpose of requiring proof that the defendant's conduct was "wrongful" is to avoid interference with free competition. (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 603.)
        Porter's testimony established that defendant's conduct was the cause of his decision not to purchase plaintiffs' property. Plaintiffs established that they suffered monetary damages as a result of Porter's decision not to purchase their property. Whether or not Porter was bound by his offer to purchase plaintiffs' property, it is clear that their relationship would probably have benefited plaintiffs if Porter had not been dissuaded by defendant's conduct. Finally, there was substantial evidence that defendant was aware of Porter's offer to purchase plaintiffs' property and that his acts were intentionally designed to convince Porter not to purchase the property. This evidence satisfied the elements of either a cause of action for interference with contract or interference with prospective economic advantage.
        Defendant claims that his conduct was not wrongful because he "had every right whatsoever to reject Porter's request that [he] abandon his easement . . . [and] had no affirmative duty whatsoever to discuss this [matter] with Porter." Defendant appears to assume that he is being held liable for this intentional tort because he refused to relinquish his easement. However, the evidence and the trial court's decision make clear that his liability for interference was based on his statements and conduct when he met with Porter. Defendant's conduct toward and statements to Porter were wrongful. First, in Porter's presence, defendant prevented one of plaintiffs' guests from leaving by blocking the easement with his truck. Because defendant had no right to block the easement, this conduct was wrongful. Second, defendant told Porter that his easement "was the entire front yard" of plaintiffs' property. This statement was inaccurate. Third, defendant threatened to destroy the front porch of plaintiffs' house if Porter purchased it. As the variance permitted the encroachment by plaintiffs' house, this threat was wrongful. Fourth, defendant threatened that "[i]f there is anything in the easement, I will run it over." Defendant confirmed that he would run over children if they were standing in the easement area. Finally, defendant told Porter that Porter was paying too much for plaintiffs' property and that plaintiffs' house had "several structural problems." There was no evidence that defendant expressed these opinions for any reason other than a spiteful motivation to prevent a sale to Porter. This motivation made the statements wrongful. Since Porter's decision not to purchase the property was based on defendant's threats and apparent irrationality, not defendant's refusal to relinquish his easement, there was substantial evidence that plaintiffs' loss of this prospective economic advantage arose from defendant's wrongful conduct.
        Defendant also claims that the damage award on this cause of action was improper because "Porter's offer was based on a value of the property with the easement removed." While the evidence was disputed on this point, there was substantial evidence that Porter would have completed the purchase at the agreed price if he had not been dissuaded from purchasing the property by defendant's wrongful interference. Defendant argues that plaintiffs received "double recovery" because they had already recovered money for the diminution in value resulting from the existence of the easement in their action against their title insurer and the seller and seller's agent. This argument fails because the current damage award has nothing to do with the diminution in perceived value resulting from the existence of the easement. Plaintiffs recovered damages on this cause of action because they would have realized a profit from the sale of their property to Porter but for defendant's wrongful interference. Porter's testimony reflected that he was willing to buy the property notwithstanding the existence of the easement so long as he could establish a "comfort level" with defendant which would allow them to coexist in peace. Defendant's wrongful interference prevented this. The trial court's finding that defendant was liable for this interference was supported by the evidence.

3. NUISANCE         Defendant claims that the evidence does not support the court's finding that he was liable to plaintiffs for creating a nuisance. "Anything which is injurious to health, . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance." (Civ. Code, § 3479.) Defendant's conduct obstructed plaintiffs' free use of their property and interfered with their comfortable enjoyment of their property. First, defendant used his adjacent lot as a dumping ground. This was not only an eyesore but a health and fire hazard which affected plaintiffs' property. Second, defendant destroyed vegetation on plaintiffs' property leaving plaintiffs with an unpleasant and permanent view of this mutilation. Third, defendant angrily insisted that plaintiffs had no right to use any of their property in front of their house, and he had heated exchanges with plaintiffs, their tenants and their guests about this issue. This ongoing conduct essentially prevented plaintiffs from making any use of a significant portion of their property. Finally, defendant intentionally attempted to intimidate potential purchasers and potential renters when plaintiffs held open houses to try to sell or rent their property. He parked his truck along the property line with a garbage can in the back of the truck, took pictures, wrote down license numbers and posted a sign and handed out fliers which warned potential buyers or renters that the easement was "subject to vehicular traffic at any time day or night seven days a week, 24 hours a day."
        Defendant's conduct was a nuisance because it consistently interfered with plaintiffs' use and enjoyment of their property. Accordingly, the trial court's finding that defendant was liable for creating a nuisance was supported by the evidence.

4. DAMAGE AWARD FOR VIOLATION OF CC&RS         Defendant claims that the court's "award of damages for violation of the CC&R's . . . is not supported by sufficient evidence." Since the CC&Rs barred any "activity . . . which may be or may become an annoyance or nuisance," defendant's creation of a nuisance also violated the CC&Rs. The court awarded $22,000 in damages to plaintiffs for defendant's creation of a nuisance and violation of the CC&Rs. Since the creation of a nuisance was a violation of the CC&Rs, and defendant does not challenge the damages award for nuisance, there is no merit to his challenge. Any error in basing the $22,000 damage award on both defendant's violation of the CC&Rs and his creation of a nuisance rather than solely on his creation of a nuisance could not have had any effect since the same offensive conduct both created a nuisance and violated the CC&Rs. The damages resulting therefrom were compensable.
        Furthermore, it is impossible to discern from defendant's appellate argument exactly what his contention is regarding the award of damages for violation of the CC&Rs. He asserts that "[t]he record below is silent on attributing any amount of damages to [plaintiffs] as a result of the violations [of the CC&Rs]," and he maintains that these violations could have been remedied "at any time" by an injunction. Defendant offers no authority for these assertions. "Appellate courts are not obliged to develop arguments which are merely suggested." (Tate v. Saratoga Savings & Loan Assn. (1989) 216 Cal.App.3d 843, 855-856.) Since defendant has failed to support this contention with adequate argument and authority, we refuse to review it. (People v. Gordon (1990) 50 Cal.3d 1223, 1244 fn. 3.)

5. DAMAGE AWARD FOR EMOTIONAL DISTRESS         The trial court awarded $40,000 to plaintiffs for their emotional distress arising from defendant's interference with the Porter transaction, his creation of a nuisance and his violation of the CC&Rs. As we have already noted, defendant's violation of the CC&Rs and his creation of a nuisance were based on the same offensive conduct. ⁴ Defendant asserts that the evidence established that plaintiffs' emotional distress arose not from his tortious conduct but from his "appropriate" contentions that he was entitled to exclusive use of the easement area and his refusal to abandon his easement. He claims that there was no evidence that plaintiffs suffered any emotional distress as a result of his interference with their use and enjoyment of their property. Defendant concedes that there was evidence that plaintiffs suffered emotional distress as a result of Porter's decision not to purchase their property, but he denies any responsibility for this distress.
        First, as we have already discussed, defendant's ongoing interference with plaintiffs' use and enjoyment of their property, including the easement area, was not "appropriate" but a nuisance. Emotional distress arising from this conduct was therefore compensable. (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 272-275.) Second, while the only explicit evidence in the record that plaintiffs suffered emotional distress was the evidence that they suffered emotional distress as a result of defendant's interference with their attempt to sell their property to Porter, the evidence before the trial court was sufficient to support its finding that plaintiffs also suffered emotional distress as a result of defendant's interference with their use and enjoyment of their property. One need not speculate to conclude that it is highly probable that defendant's encounter with Judith on her wedding day, his destruction of the vegetation on plaintiffs' property while they were away on their honeymoon, his angry encounters with William and his use of his lot as a dumping ground caused plaintiffs significant emotional distress during the three-and-a-half years they resided on their property. Substantial evidence supports the court's finding that this conduct caused plaintiffs emotional distress. ⁵ Finally, defendant cannot disclaim responsibility for his interference with the Porter transaction. As we have already discussed, defendant was liable for interfering with the prospective economic advantage that plaintiffs would have gained if this transaction had been completed. Plaintiffs testified that they suffered emotional distress as a result of the collapse of this potential transaction. This evidence was sufficient to support the award.

C. PUNITIVE DAMAGES AWARD         The trial court awarded plaintiffs $50,000 in punitive damages. Defendant challenges this award solely on the ground that there was no evidence of his "financial condition." "[A] plaintiff who seeks to recover punitive damages must bear the burden of establishing the defendant's financial condition." (Adams v. Murakami (1991) 54 Cal.3d 105, 123.) Such evidence is necessary because "[a] reviewing court cannot make a fully informed determination of whether an award of punitive damages is excessive unless the record contains evidence of the defendant's financial condition." (Id. at p. 110.) The record contains evidence that defendant was the owner of a one-acre lot purchased in 1977 for $21,000 and forty-five to fifty rental properties which provided him with enough income to live. While plaintiff could have presented a more complete picture of defendant's financial condition, we do not believe that this evidence was insufficient as a matter of law to support a conclusion that a $50,000 punitive damages award was not excessive in view of defendant's financial condition. Defendant's ownership of such an extensive amount of real property indicated that he possessed a large degree of wealth. Though defendant could have contested this evidence by showing that he was heavily indebted, he did not. Hence, this evidence of his wealth was undisputed. When the $50,000 damage award is viewed in light of this evidence, it is apparent that the award is not excessive. If a single vacant lot was worth $21,000 nearly two decades ago, it follows that each of defendant's rental properties must be worth a great deal in relation to the $50,000 award. Defendant testified that he performed maintenance work on his forty-five to fifty rental properties. From this testimony, it may be inferred that these properties were not vacant lots but included buildings. Ownership of 45 buildings and a valuable lot is sufficient wealth to support a $50,000 punitive damages award.

D. THE VIEW         Defendant contends that the judgment must be reversed because the trial court judge violated Code of Civil Procedure section 651 by conducting a view of the property when court was not in session and without making a record of the "proceedings at the view." "On its own motion or on the motion of a party, where the court finds that such a view would be proper and would aid the trier of fact in its determination of the case, the court may order a view of . . . [t]he property which is the subject of litigation. . . . On such occasion, the entire court, including the judge, jury, if any, court reporter, if any, and any necessary officers, shall proceed to the place [or] property . . . to be viewed. The court shall be in session throughout the view. At the view, the court may permit testimony of witnesses. The proceedings at the view shall be recorded to the same extent as the proceedings in the courtroom." (Code Civ. Proc., § 651, emphasis added.) We conclude that the court's violation of this statute does not merit reversal of the judgment.
        The court made a post-view explanation on the record of exactly what had occurred during its view. "What I did in this case was I took the photographs of which there were a lot in this case, and I wasn't convinced that I could get a clear picture of the property from the photographs and whether the photographs correctly represented the property. [¶] So I took the photographs up to the property, essentially to see whether the photographs that were in evidence correctly reflected the condition of the property. There was nobody there that I could see, there was nobody there that I talked to, there flat was nobody there. I spoke to no one, so there was no conversation that the reporter could have taken down. I did not go on the -- I didn't go off the public right-of-way, the road that is there. [¶] I stood in the road and looked at the pictures and compared them with the actual scene to see whether the pictures that are in evidence accurately reflected the condition of the property. And I concluded that they did and by having them in front of me with the property, I had better appreciation of the actual condition of the property. And that's all I did. And that was what was in my mind." (Emphasis added.) "I took all of the photographs, and looked at all the photographs of the property and looked at all of them in connection with the property, trying to stand in the same place where the camera was trying to figure out whether, and I consciously tried to figure out whether I was in the right place to lineup the picture from the viewpoint of the camera. That's all I did."
        Defendant asserts that the trial judge's view of the property was a "collateral investigation" which constituted "judicial misconduct" and prejudicially affected the court's judgment. The trial judge concluded that his violation of Code of Civil Procedure section 651 had not prejudiced defendant, and he denied defendant's motion for a new trial on this basis. While it is clear that the trial judge erroneously conducted its view of the property without the presence of the court reporter and without being "in session," defendant has failed to suggest how these procedural inadequacies could possibly have affected the result in this case. The trial judge explained in some detail the specifics of the view, and it is readily apparent that the presence of the court reporter would not have resulted in a record which contained any evidence since the trial judge's only conduct during the view was to silently compare the photos to the property. There is also no basis for a conclusion that the court's failure to be "in session" during the view had any impact on either the judge's assessment of the property or the court's decision. The judge did not discover anything unique during his view. He simply corroborated the photographic evidence of the property's appearance introduced by both parties. Since neither party claimed that the photographs introduced by the opposing party were misleading, the trial judge's confirmation of the accuracy of these photographs was not prejudicial to either party.
        "No judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) The trial judge's procedurally improper view of the property simply corroborated the evidence introduced by both parties. We have examined the entire record, and we conclude that the trial judge's violation of Code of Civil Procedure section 651 did not result in a miscarriage of justice because it had no impact on the court's judgment. Reversal is not required.

[End of Part Not Certified for Publication]
CONCLUSION         The trial court's order extinguishing defendant's easement is hereby stricken, and the trial court is ordered to modify the judgment to so reflect. As so modified, the judgment is affirmed. Plaintiffs shall recover their costs.


WE CONCUR:
        Cottle, P.J.
        Bamattre-Manoukian, J.



Trial Court:
        Monterey County Superior Court

Trial Judge:
        Honorable Robert M. Hinrichs

Attorneys for Appellant:
        Gerald Z. Marer
        Amy E. Margolin
        JACKSON TUFTS COLE & BLACK, LLP

Attorneys for Respondents:
        Joel Franklin
        LAW OFFICES OF JOEL FRANKLIN

        Andy Swartz
        SPIERING, SWARTZ & KENNEDY



¹         1. The setback requirement specified that the structure be set back 30 feet from the easement. In fact, the front porch of the house actually encroached a few feet on the easement.
         ² . Porter had a less than accurate understanding of the nature of the easement. He believed that the fact that the easement was non-exclusive meant that there were two physical halves of the easement, one half belonging to defendant and the other half to plaintiffs.
         ³ . Defendant's opening brief is only 39 pages long including 17 pages of facts and no footnotes. In contrast, his reply brief is 50 pages long including less than 9 pages of facts. The reply brief contains 48 footnotes in an extremely small, barely readable font size and each page of his reply brief contains more than 10 percent more text than the pages of his opening brief. While plaintiffs' brief was similarly lengthy at 54 pages and had 28 footnotes, plaintiffs' brief included 17 pages of facts. In all, defendant's reply brief contains about twice as much appellate argument as his opening brief.

         ⁴ . Defendant claims that the evidence "is silent on attributing any amount of damages to the Reichardts as a result of the [CC&R] violations." (Emphasis added.) He does not develop this point at all. Plaintiffs interpret this sentence as a contention that the emotional distress damages were excessive. We do not. Defendant does not attack the level of emotional distress damages in either his opening or reply briefs. Our interpretation of this sentence is that he is claiming that the evidence is insufficient to support any award of damages for violation of the CC&Rs. Since the record reflects that the same conduct which violated the CC&Rs also created a nuisance which, the record establishes, interfered with plaintiffs' use and enjoyment of their property, there is no merit to this contention.
         ⁵ . Defendant essentially concedes as much in his opening brief although he seems not to realize it. "Obviously, both [plaintiffs] were upset when they had confrontations with [defendant] concerning the vehicles being parked in the easement according to [defendant]. There was no evidence concerning any emotional distress suffered by either [plaintiff] as a result of those confrontations." It is difficult to understand how defendant can assert that the evidence cannot support the emotional distress award when he concedes that plaintiffs "[o]bviously" suffered distress arising from their confrontations with defendant.


8 Daily Appellate Report