Filed 1/31/17
                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



WILLIAM MICHAEL HENSLEY et al.,                    D070259

        Plaintiffs and Appellants,

        v.                                        (Super. Ct. Nos.
                                                  37-2008-00093080A-CU-NP-CTL &
SAN DIEGO GAS & ELECTRIC                          37-2008-00081779-CU-PO-CTL)
COMPANY,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County, Richard E.

L. Strauss, Judge. Reversed.

        Manuel Corrales, Jr., for Plaintiffs and Appellants.

        Sempra Energy, Office of the General Counsel, San Diego Gas & Electric

Company Office of the General Counsel and Charles Larry Davis, Quinn Emanuel

Urquhart & Sullivan and Daniel H. Bromberg, Kenneth R. Chiate, Kristen Bird and

Jeffrey N. Boozell, for Defendant and Respondent.
       After this court dismissed the appeal of plaintiffs and appellants William Michael

Hensley and Linda Hensley1 from a nonappealable stipulated judgment pursuant to a

settlement agreement, the Hensleys and defendant and respondent San Diego Gas &

Electric Company (SDG&E) entered into an amended stipulated judgment that they

assert now constitutes a final disposition of all of their claims. They contend the

amended stipulated judgment is final and appealable in that it was entered to facilitate an

appeal following the trial court's adverse in limine determination of a critical issue: the

Hensleys' legal ability to recover damages for William's emotional distress on trespass

and nuisance causes of action arising from a wild fire that damaged their house and

property. We now conclude the amended stipulated judgment is final and appealable and

our opinion, with respect to the trespass and nuisance claims only, is not advisory. On

the merits, we hold the Hensleys were legally entitled to present evidence of William's

emotional distress on their claims for trespass and nuisance as annoyance and discomfort

damages recoverable for such torts. Because the trial court excluded evidence of

emotional distress damages in their entirety, we reverse.




1      We refer to the appellants individually by their first names for clarity, not out of
disrespect.
                                              2
                  FACTUAL AND PROCEDURAL BACKGROUND2

       After sustaining fire damage to their home and property in 2007, the Hensleys

sued SDG&E alleging causes of action for inverse condemnation, negligence, trespass,

nuisance, negligence per se, violation of California Public Utilities Code section 2106,

intentional infliction of emotional distress, negligent infliction of emotional distress and

violation of Health and Safety Code section 13007. They alleged in part that the fire

caused soot, charring and other damage to their home; damage to their landscaping; and

the destruction of 155 avocado trees on their land. SDG&E moved for summary

adjudication of the Hensleys' intentional and negligent infliction of emotional distress

claims, arguing in part that they were barred from seeking damages for psychological

stress arising from property damages caused by the fire and its aftermath. After the

Hensleys conceded they did not seek emotional distress damages flowing from those two

causes of action, the trial court dismissed them.

       During the course of the summary adjudication proceedings, the parties disputed

whether California law permitted the Hensleys to recover emotional distress damages

under their trespass and nuisance causes of action, including damages for the alleged

aggravation of William's preexisting Crohn's disease and ensuing losses (medical




2      We take judicial notice of our prior unpublished opinion (Hensley v. San Diego
Gas & Electric Company (Jan. 22, 2016, D068276)), in which this court dismissed the
Hensleys' first appeal as taken from a nonfinal judgment. The parties have incorporated
portions of the record from their prior appeal in this case. (Cal. Rules of Court, rule
8.147(b).)
                                              3
expenses as well as lost employment income from his permanent disability) due to the

stress he claimed to have experienced as a result of the fire and its aftermath.

       On SDG&E's unopposed motion, the court bifurcated the trial and ordered the

damages phase to take place before trial on the issue of liability. SDG&E thereafter

moved to exclude evidence of William's asserted emotional distress damages, arguing the

Hensleys were not legally entitled to recover the claimed damages under theories of

trespass and nuisance. In part, SDG&E argued that while damages for "annoyance and

discomfort" were permitted to compensate plaintiffs for an injury to their peaceful

enjoyment, emotional distress damages were different, and not permitted for a

"negligent" trespass or nuisance involving property damage.

       The court granted the motion, ruling William's damages claim, including for lost

earnings and permanent disability as a result of his aggravated Crohn's disease, fell

within the rubric of "general" emotional distress damages, which under Kelly v. CBI

Constructors, Inc. (2009) 179 Cal.App.4th 442 (Kelly), could not be categorized as the

"distinct" and "more minimal annoyance and discomfort" damages recoverable for

nuisance and trespass. It excluded all evidence, testimony and argument regarding his

emotional distress.

       Rather than proceed to trial, the parties in May 2015 stipulated to a judgment

pursuant to a settlement agreement,3 and the Hensleys then appealed from that judgment.



3       In part, the parties' stipulation provided: "[T]o avoid trial on only a small part of
. . . [William]'s claimed damages, i.e., [his] property damage claims, and to avoid having
to try potential liability before seeking an appeal of the trial court's ruling, and if
                                              4
This court dismissed the appeal, holding the stipulated judgment was not a final judgment

because its language was ambiguous in that it implied that no final determination had

been reached as to liability, and that after resolution of the appeal a trial on liability and

damages would transpire. (Hensley v. San Diego Gas & Electric Company, supra,

D068276.) We further held the stipulated judgment violated the one final judgment rule

because it did not completely resolve the issues of liability and damages, excluding the

contested emotional distress damages. (Ibid.) Because those issues remained unresolved,

the judgment was interlocutory and did not eliminate the possibility of further litigation

and appellate review regardless of the outcome of the first appeal on the availability of

emotional distress damages. (Ibid.) Finally, we held the ambiguity in the settlement

terms created the potential for a complete misunderstanding between the parties that

could necessitate additional postappeal trial court proceedings. (Ibid.)

       Following our remittitur and an unsuccessful writ petition (Hensley v. Superior

Court, D069946), the parties entered into another stipulation in which SDG&E stated it

"denie[d] any liability for the damages claimed by the Hensleys but desire[d] to resolve

this dispute to avoid continuing and significant costs of litigating this dispute." The


successful on appeal, having to proceed to trial again to recover all of [William]'s claimed
damages, the parties agreed to settle this case in a way that allows [William] to seek an
appeal and the right to proceed to trial on all of [his] claimed damages before trying
liability, including the Crohn's disease related damages the trial court has ruled are not
recoverable[.]" Additionally, the stipulation provided that "the parties agree that the
Hensleys' appeal rights are preserved, despite entering into a settlement in which a
monetary amount shall be paid irrespective of the results of the Hensleys' subsequent
appeal[.]" The court ordered "that the Hensleys are entitled to judgment against . . .
SDG&E pursuant to an agreement between them which is without prejudice to the rights
of the Hensleys to appeal the trial court's ruling . . . ."
                                               5
stipulation states the parties have entered into a settlement agreement "providing for a

payment, which already has been made, compensating the Hensleys for their alleged

property losses and provided [sic] that the Plaintiffs would receive another payment 'if

and only if a final order from the California Court of Appeal or California Supreme Court

is issued which reverses Judge Strauss's [order excluding evidence of William's

emotional distress] and remands for trial in which William . . . may attempt to prove and

is specifically allowed to seek damages relating to the alleged exacerbation of his Crohn's

disease under any cause of action or legal theory[.]" The stipulation acknowledges the

parties' May 2015 stipulated judgment and this court's dismissal of their ensuing appeal,

then provides:

       "[T]he parties wish to enter into an amended stipulated judgment that is final and

appealable but reserves the right of Plaintiffs to appeal from the April 17, 2015 order;

       ". . . [T]he parties agree that the Court should enter a final judgment resolving all

of Plaintiffs' claims and the entire case consisting of the terms set forth below for the

purpose of facilitating Plaintiffs' appeal of the Court's April 17, 2015 order:

       "1. Plaintiffs . . . shall take nothing on their claims against Defendant SDG&E for

inverse condemnation, negligence, negligence per se, violation of California Public

Utilities Code [section] 2106, intentional infliction of emotional distress, negligent

infliction of emotional distress, and violation of California Health and Safety Code

[section] 13007.

       "2. Plaintiffs . . . also shall take nothing on their claims against Defendant

SDG&E for trespass and nuisance.

                                              6
       "3. Plaintiffs . . . shall take nothing on their complaint against Defendant SDG&E

for any asserted claims.

       "4. This stipulated final judgment resolving all of the claims in this case is

without prejudice to the rights of Plaintiffs . . . to appeal this final judgment, including the

Court's April 17, 2015 order denying William . . . recovery of emotional distress damages

arising from his allegations of trespass and nuisance claims, which effectively precluded

him from recovering damages for the alleged exacerbation of his pre-existing Crohn's

disease allegedly caused by such mental stress."

       Based on the stipulation, the court entered a judgment that the Hensleys "take

nothing from Defendant SDG&E." The Hensleys appeal from the amended stipulated

judgment.

                                        DISCUSSION

                                I. Threshold Considerations

       Following the filing of the notice of appeal, we again requested that the parties

brief whether (1) this appeal was taken from a nonappealable order or judgment, and (2)

the appeal seeks an advisory opinion. The parties respond that the judgment is final and

appealable in that it was taken to facilitate appeal, and provides the Hensleys shall take

nothing on all of their causes of action, thereby disposing of all of the claims in the case.

They maintain any opinion is not merely advisory in part because if the Hensleys succeed

on appeal, the parties' settlement agreement requires SDG&E to make an additional

payment to them.



                                               7
A. Final Judgment

       Here, the judgment is final and appealable because it disposes of all of the causes

of action in this case. The trial court's new judgment is one in which the Hensleys "shall

take nothing" on every cause of action against SDG&E. There is no pending cause of

action following the judgment, nor is there any longer a suggestion or indication in their

stipulation or the judgment that the parties seek to retain their right to undergo a trial on

any of their causes of action following the resolution of this appeal. Further, there is no

waiver of any statute of limitations or "carve-out" of any claim for refiling and/or

prosecution after remittitur, which would render the judgment nonappealable. (See

Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1102-1105 [discussing cases in which

judgments were rendered nonappealable due to stipulations to waive applicable statutes

of limitation to allow for possible future litigation of unresolved causes of action]; Abatti

v. Imperial Irrigation District (2012) 205 Cal.App.4th 650, 662-663 [same]; compare

Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 442, 445 [where parties' stipulation to

judgment dismissed two unadjudicated causes of action without prejudice and tolled the

statute of limitations until after remittitur, the judgment was not final and appeal would

be dismissed] & Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997)

60 Cal.App.4th 79, 81-82 [judgment entered after summary adjudication of some but not

all causes of action not final where parties stipulated that the contemplated appeal " 'shall

not prejudice either party's future right to prosecute such claims and causes of action

which are being voluntarily dismissed by both parties following the conclusion of the

appeal process' "].) To be appealable, a stipulated judgment must fully resolve all claims

                                               8
in the underlying litigation. (See McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1508,

fn. 1.) In McMahon, a stipulated judgment was final and appealable where it specified

that " 'plaintiff shall take nothing by her first amended complaint' " against any of the

defendants. (Ibid.) The judgment there was appealable because it "fully adjudicates

plaintiff's entire case." (Ibid.) Such is the case here.

       Further, the parties' stipulation makes plain their consent judgment is intended to

facilitate appeal on the question of whether the Hensleys can recover a component of

damages on their trespass and nuisance causes of action. As we explain below, that

provision does not impact our ability to consider this issue.

B. Advisory Opinion

       In responding to our request, SDG&E informs us that under the parties' settlement

agreement, there will be no proceedings on remand whether or not the Hensleys succeed

on appeal. Because the settlement resolves the Hensleys' claims in this action leaving

nothing to be litigated even after remand, we must consider whether our opinion is

advisory in the sense that it will resolve only a question of "academic importance" (TG

Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1385; Lester v.

Lennane (2000) 84 Cal.App.4th 536, 566) and not an actual controversy that will result in

a judgment that offers effectual relief to the parties. (Paul v. Milk Depots, Inc. (1964) 62

Cal.2d 129, 132; Panoche Energy Center, LLC v. Pacific Gas and Electric Company

(2016) 1 Cal.App.5th 68, 96; TG Oceanside, at p. 1385.) The policy behind this

mootness principle is that courts decide justiciable controversies and will not render



                                               9
advisory opinions. (Center for Local Government Accountability v. City of San Diego

(2016) 247 Cal.App.4th 1146, 1157.)

       Normally, for example, a reviewing court will dismiss an appeal when the

underlying claim is settled or compromised, as the settlement ' "operates as a merger

and [bar] as to all preexisting claims and those alleged in the lawsuit that have been

resolved.' " (Larner v. Los Angeles Doctors Hosp. Associates, LP (2008) 168

Cal.App.4th 1291, 1296; see also Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400 [as a

general rule, a consent judgment is not appealable].) In this case, the parties' stipulation

to entry of judgment makes clear that despite their settlement, they reserve their right to

appeal the trial court's damages ruling. They seek to fall within an exception to the

general rule as to consent judgments that if the parties' consent to a judgment is " 'merely

given to facilitate an appeal following adverse determination of a critical issue, the party

will not lose his right to be heard on appeal.' " (Norgart v. Upjohn Co., at p. 400.) But

the parties' mutual intention to preserve an appeal does not control whether this appeal is

moot, which would render any decision on our part advisory. (Larner, 168 Cal.App.4th

at p. 1298; Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1588.) "The

parties' intent cannot compel this court to issue an advisory opinion on issues in which,

after the settlement [a party] no longer retains any individual, personal stake." (Larner, at

p. 1298.)

       Pursuant to their stipulation, the parties' settlement is in part conditioned on the

outcome of this appeal on the issue of damages; if we reverse the order and conclude the

Hensleys were entitled to present evidence of William's emotional distress damages,

                                              10
SDG&E will pay the Hensleys a previously agreed-upon sum of money. This sum

essentially represents a liquidation of the Hensleys' emotional distress damages for their

causes of action for trespass and nuisance, and is a matter still at stake between them. As

to those causes of action, we may conclude the matter is not moot but presents a live,

justiciable, controversy on which our opinion is not merely advisory. (See Havens Realty

Corp. v. Coleman (1982) 455 U.S. 363, 369, 371 [after appellate ruling on plaintiffs' lack

of standing on claims seeking monetary, declaratory and injunctive relief, parties agreed

plaintiffs would receive $400 contingent on Supreme Court's grant or denial of certiorari;

the case was not moot because their settlement agreement merely liquidated the monetary

damages that the plaintiffs were continuing to seek: "Given [plaintiffs'] continued active

pursuit of monetary relief, this case remains 'definite and concrete, touching the legal

relations of parties having adverse legal interests' "]; Nixon v. Fitzgerald (1982) 457 U.S.

731, 743-744 [after lower court ruling in respondent's favor, petitioner agreed to accept

liquidated damages conditioned on the U.S. Supreme Court's decision on the issue; this

agreement "left both petitioner and respondent with a considerable financial stake in the

resolution of the question presented in this Court" and was not moot under Havens

Realty]; Doe v. Abbott Labs. (9th Cir. 2009) 571 F.3d 930, 932-933 [merits were still at

issue despite contingent settlement providing for payment depending on outcome of

appeal]; compare Gator.com Corp. v. L.L. Bean, Inc. (9th Cir. 2005) 398 F.3d 1125,

1131-1132 [court could no longer grant plaintiff meaningful relief in its declaratory relief

action, rendering the appeal moot where the plaintiff in a settlement agreement

terminated its conduct and was released from liability for its past conduct; "[a]lthough the

                                             11
parties have negotiated a 'side bet' concerning our resolution of this appeal, that wager

does not alter the fact that the personal jurisdiction issue is wholly divorced from any live

case or controversy"].)4 Our decision will have no effect on the parties' legal relations as

to any other cause of action brought by the Hensleys. The parties have fully and finally

settled those matters and we express no advisory opinion as to those causes of action.

       Our conclusion that the appeal is not moot under these circumstances furthers the

strong public policy of encouraging settlements. (See Leung v. Verdugo Hills Hosp.

(2012) 55 Cal.4th 291, 306.) But the contingent nature of the parties' settlement presents

a unique situation, implicating mootness principles. We discourage parties from reaching

agreements that arbitrarily stake payments or "bet" on the outcome of an appeal so as to

avoid rendering their case moot, or from creating an agreement divorced from the

controversy for the exclusive purpose of obtaining a decision on a matter. Where an

issue left to be decided is entirely unrelated to the controversy, parties risk a finding that

their settlement has mooted any appeal.




4      The matter also appears to fall within one of the discretionary exceptions to
mootness: that is, when a material question remains for the court's determination.
(Epstein v. Superior Court (2011) 193 Cal.App.4th 1405, 1411 [citing cases].) A
material question exists when "the judgment, if left unreversed, would preclude a party
from litigating . . . an issue still in controversy." (Viejo Bancorp, Inc. v. Wood (1989)
217 Cal.App.3d 200, 205.)
                                              12
  II. The Trial Court Erred as a Matter of Law by Excluding All Evidence of William's

                                     Emotional Distress

A. Standard of Review

       The parties agree that our review of the court's evidentiary ruling, which resolved

a question of law and applied law to undisputed facts, is de novo. Whether a plaintiff is

entitled to a particular measure of damages is a question of law subject to de novo

review. (Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1324.) We emphasize that

the issue at hand is narrow: we do not address whether the Hensleys may maintain an

action for trespass or nuisance under these circumstances, SDG&E's liability under these

theories, or the sufficiency of the Hensleys' proof of the fact of emotional distress or its

extent. The question does not turn on factual disputes over the nature of William's

emotional distress and whether it in fact led to his aggravated physical conditions.

Indeed, any litigation of these issues is precluded by the parties' settlement, and any

exposition on them by this court is advisory. We merely decide whether some or all of

William's claimed damages for emotional distress are recoverable as a component of

annoyance and discomfort damages allowed in trespass and nuisance cases. If even a

part of those damages are recoverable, the trial court abused its discretion by excluding

evidence of all such damages, and we must reverse.

B. Underlying Undisputed Facts

       The trial court had before it the following facts at the time of its ruling via lodged

discovery and other evidence. In 2007, the Hensleys resided at the property on Eastvale

Road in Poway, California with their daughter. On October 21, 2007, while William was

                                              13
away on a business trip, wildfires occurred that required Linda and their daughter to

evacuate their home. Linda called William, who became worried about his family's

safety and was frustrated they were alone with no one to help them. He cut his travel

short and returned to San Diego, where he drove with Linda to a location and from a

distance watched the fire burn houses close to theirs, thinking there was a chance

everything was destroyed. Though their home was not completely destroyed, the

Hensleys were not able to return home permanently until late November 2007.

       William has suffered from Crohn's disease since 1991. Before the fire, his Crohn's

disease symptoms were under control, though he had some flare ups and surgery was

required approximately once every five years. In discovery responses to whether he

claimed "physical injury" due to the fire, William answered that as a result of stress from

the fire, he experienced a substantial increase in his symptoms. He asserted that the fire

put his wife and daughter in danger, and he was "frustrated and upset that he couldn't help

them evacuate or do anything to help them save their property." When asked in

discovery if he was claiming damages for mental or emotional injury, William asserted

he suffered "annoyance, disturbance, inconvenience and mental anguish as a result of the

destruction wrought by the fire." He and Linda asserted that they purchased their

property for the large amount of trees on it; they both "looked forward to cultivating their

property and enjoying their trees" and "[s]ince the fire destroyed their trees, they have

lost their sense of privacy, which was really important to them." They stated that their

rebuilding process was frustrating and lengthy. William also claimed his exacerbated

Crohn's disease impaired his ability to work and caused him lost income. He stated he

                                             14
incurred medical expenses for his Crohn's disease since the fire. In his deposition,

William described he had a "tremendous amount of stress" and worry as a result of the

fire, including due to working with the insurance adjuster, trying to get his losses

covered.

       In 2012, William's treating physician wrote that "beyond a measure of reasonable

medical certainty . . . the stress created by the 2007 San Diego fires caused an increase of

[William's] disease activity, necessitating frequent visits, numerous therapies, and at least

two surgeries since that time."

C. Mental Distress Proximately Caused by a Trespass or Nuisance is Recoverable as

Annoyance and Distress Damages, Regardless of the Personal Physical Presence of the

Owners at the Time of the Trespass or Nuisance

       The Hensleys contend the trial court erred by concluding based on Kelly, supra,

179 Cal.App.4th 442 that emotional distress is not an element of recoverable damages for

trespass or nuisance. They maintain the court disregarded California Supreme Court and

appellate court precedent holding that emotional distress is a component of annoyance

and discomfort damages, and Kelly does not require actual physical presence or personal

observation to recover such damages for trespass or nuisance. According to the

Hensleys, Kelly merely requires that the plaintiff be a legal occupant and have legal

possession to recover for his or her annoyance and discomfort. They further point out

that William's claimed damages arise from distinct property torts, not merely negligent

conduct, and this court already recognized this principle in Gonzales v. Personal Storage,

Inc. (1997) 56 Cal.App.4th 464.

                                             15
       SDG&E characterizes William's claim as for unrecoverable, "general" emotional

distress. It responds that under Kelly, supra, 179 Cal.App.4th 442, emotional distress

damages are proper in trespass and nuisance actions "only if the distress naturally ensued

from trespass or nuisance—that is, annoyance or discomfort resulting from personal,

physical presence on the property invaded." According to SDG&E, William's alleged

stress is not compensable because it did not result from his personal physical presence on

the property during the fires, as he was out of town. SDG&E maintains his stress did not

result from his later physical presence on the property because he claimed to suffer

distress only because he and his family were forced to leave the property; he could not

help his wife and daughter and might not be able to return. They argue that his alleged

stress and exacerbated symptoms of Crohn's disease as a result of his repair projects, or

working with the insurance adjuster, did not naturally ensue from the trespass or

nuisance. SDG&E argues the Kelly rule is recognized by the Judicial Council and

incorporated into official jury instructions, and is in keeping with the "policies generally

restricting emotional distress damages." SDG&E further contends that we may affirm the

judgment on the theory that under Erlich v. Menezes (1999) 21 Cal.4th 543 and other

authorities, emotional distress caused by negligent damage to property is not

compensable.

       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 trespass or nuisance is established, a

landowner may recover for annoyance and discomfort, including emotional distress or

                                             16
mental anguish, proximately caused by the trespass or nuisance. (Acadia, California,

Limited v. Herbert (1960) 54 Cal.2d 328, 337 ["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; Kornoff v. Kingsburg Cotton Oil Co.

(1955) 45 Cal.2d 265, 271-272 (Kornoff); Plotnik v. Meihaus (2012) 208 Cal.App.4th

1590, 1607; Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 172,

disapproved on another ground in People v. Rogers (2013) 57 Cal.4th 296, 330-331;

Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 ["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 ["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 [" '[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]; Smart v. City of Los Angeles (1980) 112 Cal.App.3d

232, 239-240; Alonso v. Hills (1950) 95 Cal.App.2d 778, 780, 786-788.)

       This is so even where the trespass or nuisance involves solely property damage.

(See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986, fn. 10 ["precedent

in the law of nuisance and trespass establishes quite clearly that emotional distress

                                             17
without physical injury is compensable"; citing cases]; Acadia, California, Limited v.

Herbert, supra, 54 Cal.2d at p. 337; Kornoff, supra, 45 Cal.2d 265; Alonso v. Hills,

supra, 95 Cal.App.2d at pp. 786-788 [plaintiff suffered "distress in . . . mind, . . . mental

anguish and discomfort, annoyance, fright and shock" by reason of blasting operations

that caused weakened structural integrity to the building, exterior cracks to the building

and walls, damage to window sills and frames, and leaking plumbing].)

       In Herzog v. Grosso, supra, 41 Cal.2d 219, a neighbor blocked access to an

easement leading to a public road, forcing the plaintiff and his family to use a steeper and

more dangerous path. (Id. at pp. 222-223.) The trial court awarded the plaintiffs

damages for "nervousness, worry, and mental distress for the safety of themselves and

their daughter and others . . . ." (Id. at pp. 224, 225.) The California Supreme Court

upheld the award: "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" and "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 protectable interest of an occupant of real property." (Id. at p. 226.)

       Herzog was followed by Kornoff, in which the plaintiffs sued the owner and

operator of a cotton gin for damages to their real property and personal injury from

fumes, dust and lint. (Kornoff, supra, 45 Cal.2d at p. 266.) A jury initially found

plaintiffs had suffered injury only to their real property, not any personal injury. (Id. at

p. 267.) On a retrial of damages only, the jury was instructed that the plaintiffs were

entitled to discomfort and annoyance proximately caused by the trespass, and it reached

                                              18
judgment again for the plaintiffs. (Ibid.) On appeal to the California Supreme Court, the

defendant argued that damages for annoyance and discomfort were error in the absence

of personal injury. (Id. at p. 271.) Before addressing that question, the court observed

that the plaintiffs had pleaded that the comfort and enjoyment of their home had been

diminished to the extent they had been unable to live normally and peacefully, and they

had suffered "severe nervous distress and mental anguish." (Id. at p. 272.) These

allegations, according to the high court, were "sufficient to permit damages for

discomfort and annoyance if such damages are otherwise proper." (Ibid.) The court held

they were proper in that case: "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." (Ibid.)

       Kornoff reviewed numerous cases including Alonso v. Hills, supra, 95 Cal.App.2d

778, in which the Court of Appeal upheld a damage award for emotional distress as a

form of discomfort and annoyance even though the plaintiff was not home at the time of a

blast that caused a rock to destroy a bench near the plaintiff's daughter. (Alonso, at

p. 788.) The plaintiff testified in that case that he "could not rest or sleep because of fear

for his own security and that of his family . . . ." (Id. at p. 788.) According to the Alonso

court, "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. The

amount of the recovery for discomfort and annoyance is left to the sound judgment and

                                              19
discretion of the trier of facts without necessity of specific evidence as to such amount."

(Ibid.) Kornoff also pointed out that in Green v. General Petroleum Corp. (1928) 205

Cal. 328, a trespass action in which the plaintiffs were forced to leave their home due to

oil drilling operations, the court upheld a damage award stating, " 'The law affords

redress by giving damages against a wrongdoer for the annoyance and discomforts

suffered in cases such as this.' " (Kornoff, supra, 45 Cal.2d at p. 274, quoting Green, at

pp. 336, 337.) It observed that in Judson v. Los Angeles Suburban Gas Co. (1910) 157

Cal. 168, "no impairment of plaintiff's health was involved"; in that case the plaintiff

asserted that smoke, odor, and noise produced by gasworks "interfered with his

comfortable enjoyment of his property . . . .' " (Kornoff, at pp. 274, 275.)

       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.)

                                             20
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.)

       Under the above authorities, William's fear, stress and anxiety suffered as a direct

and proximate result of the fire and its attendant damage, loss of use and enjoyment are

compensable as damages for annoyance and discomfort. For purposes of the trial court's

in limine consideration of the damages issue, it was undisputed to a reasonable medical

certainty that William suffered stress due to the fire and its aftermath, even though he was

not physically present to see the fire ravage his house and land. It was undisputed based

on the parties' discovery that William's emotional distress in part encompassed fear for

his family's safety and feelings of helplessness while the fires forced their evacuation

without him. He suffered lost enjoyment of his property due to the destruction of

numerous privacy trees from the fire, and he is entitled to recover for attendant mental

suffering. (See Smith v. County of Los Angeles, supra, 214 Cal.App.3d at p. 288 [mental

distress caused by a defendant's nuisance "is an element of loss of enjoyment"].) The

notion that annoyance and discomfort, including emotional distress, "naturally ensues" or

is a natural consequence of an invasion of a protectable interest in real property is nothing

                                             21
more than a recognition of the significance and importance of such interests. It cannot be

denied that annoyance and discomfort would naturally ensue when a fire damages a

family home and destroys unique and valued property features.

         Given the posture of this case, it is not within our purview to decide whether

William's stress and ensuing exacerbation of Crohn's is unsupported by evidence,

unrelated to the fires, or too attenuated and speculative to be recoverable. The case has

not been tried to a jury, nor will it be. Having excluded any evidence of William's

emotional distress in its entirety on the theory that these damages are somehow distinct

from annoyance and discomfort, the trial court abused its discretion, and we reverse its

order.

         2. Kelly is Unpersuasive Dicta on the Scope of Annoyance and Discomfort

Damages

         We reject SDG&E's contention that in order for emotional distress damages to

"naturally ensue" from a trespass or nuisance, the owner or occupant must be personally

or physically present on the invaded property during the trespass or nuisance. As Kornoff

and Alonso demonstrate, the plaintiff need not be physically present when the invasion

occurs to recover for resulting emotional distress. Authorities decided since Kornoff are

in accord. Hassoldt v. Patrick Media Group, Inc., supra, 84 Cal.App.4th 153, involved a

lawsuit including claims for trespass, nuisance, and intentional infliction of emotional

distress stemming from an improper and "severe[]" tree trimming that had occurred while

the plaintiffs were not present on their property. (Id. at pp. 158, 172.) On appeal from a

judgment in plaintiffs' favor, the Court of Appeal held that the trial court should have

                                              22
granted a nonsuit on plaintiffs' cause of action for intentional infliction of emotional

distress because the plaintiffs' absence from their property precluded them from

establishing outrageous conduct personally directed at them. (Id. at p. 172.) However

the appellate court observed that its "ruling in no way affects the [plaintiffs'] right to

recover for emotional damage based on their remaining causes of action," including for

trespass and nuisance. (Hassoldt, 84 Cal.App.4th at p. 172, citing Kornoff, supra, 45

Cal.2d at p. 272 & Herzog v. Grosso, supra, 41 Cal.2d at p. 225.)

       And SDG&E's proposition is not supported by Kelly, supra, 179 Cal.App.4th 442.

SDG&E characterizes Kelly as the "leading case in California" on the scope of emotional

distress damages available in trespass and nuisance actions. We cannot agree with

SDG&E's characterization of the case. As we explain, Kelly is unpersuasive dicta on the

point, and relies on Colorado authority that we are not bound to follow.5

       In Kelly, the defendant sparked a brush fire that caused significant damage to a

ranch owned by the plaintiff. On plaintiff's causes of action for trespass and negligence,

a jury awarded $543,000 in damages for the plaintiff's "discomfort, annoyance,


5       SDG&E urges us to follow Kelly because the Judicial Counsel cites to it in
comments to an official jury instruction, CACI No. 2031. Our rejection of Kelly resolves
that point. Though the Judicial Council endorses its official jury instructions and
encourages their use (Cal. Rules of Court, rule 2.1050(e)), "[t]he articulation and
interpretation of California law . . . remains within the purview of the Legislature and the
courts of review." (Cal. Rules of Court, rule 2.1050(b).) Moreoever, the fact the Judicial
Council adopted this instruction does not mean the prior BAJI instructions are defective
or outdated. (People v. Lucas (2014) 60 Cal.4th 153, 294, overruled on other grounds in
People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; see also People v. Thomas
(2007) 150 Cal.App.4th 461, 465.) No statute, rule of court or case mandates the use of
official jury instructions at the exclusion of other valid instructions. (See Thomas, at
p. 466 [addressing CALCRIM instructions].)
                                              23
inconvenience or mental anguish" even though he did not reside on the property at the

time of the fire. (Kelly, supra, 179 Cal.App.4th at pp. 446-447, 450.) The trial court had

denied the defendant's in limine motion seeking to exclude evidence of plaintiff's

annoyance and discomfort damages on the ground he did not reside on the property at the

time the damage occurred, and its instructions to the jury made no reference to the

requirement that he occupy the property to recover such damages. (Id. at p. 455.)

       The question on appeal was whether that omission in the jury instruction was

prejudicially erroneous; whether on the undisputed facts presented, plaintiff "legally . . .

occupied" the property so as to be eligible for such annoyance and discomfort damages.

(Kelly, supra, 179 Cal.App.4th at p. 455.)6 The court acknowledged that the parties had

agreed occupancy was required and that it entailed some physical presence on the

property, a proposition with which the court agreed. (Id. at p. 456.) The defendant on

appeal argued that an occupant was synonymous with "resident" and that only a resident

owner and or tenant could recover annoyance and discomfort damages. (Ibid.) The

plaintiff argued he "occupied" the property because he stored equipment and personal

property there. (Ibid.)




6       There was no question in Kelly that in general, damages for mental anguish
proximately resulting from a trespass are recoverable. The jury was instructed in part
that the plaintiff "may also recover damages that would reasonably compensate him for
the discomfort, annoyance, inconvenience and mental anguish proximately caused by the
Defendant's act of trespass. . . . The amount of damages to be awarded for discomfort,
annoyance, inconvenience and mental anguish, is left to the sound judgment and
discretion of the jury based upon the evidence." (Kelly, supra, 179 Cal.App.4th at p. 455,
fn. 3.)
                                             24
       The Court of Appeal held that by merely storing personal property on the land the

plaintiff did not occupy it for purposes of recovering such damages; but such damages

were only available to the "immediate and personal possessor" of property. (Kelly, supra,

179 Cal.App.4th at pp. 456, 457, 458.) In reaching that conclusion, it pointed out that the

California Supreme Court in Kornoff, supra, 45 Cal.2d 265 recognized that damages for

annoyance and discomfort were recoverable by an "occupant of land" as long as the

damages would naturally ensue from a trespass. (Kelly, 179 Cal.App.4th at p. 456.) It

then stated: "We do not question that a nonresident property owner may suffer mental or

emotional distress from damage to his or her property. But annoyance and discomfort

damages are distinct from general damages for mental and emotional distress.

Annoyance and discomfort damages are intended to compensate a plaintiff for the loss of

his or her peaceful occupation and enjoyment of the property." (Ibid.) For these

propositions, the court relied on Colorado cases including Webster v. Boone

(Colo.Ct.App. 1999) 992 P.2d 1183, which Kelly stated were "consistent" with the

California Supreme Court's holding in Kornoff. (Kelly, 179 Cal.App.4th at p. 457.) Kelly

stated that "[l]imiting annoyance and discomfort damages to the immediate and personal

possessor of property is consistent with [California] authorities" and those cases

upholding such damage awards "have involved a plaintiff who was in immediate

possession of the property as a resident or commercial tenant." (Id. at pp. 457-458,

italics added, citing authorities including Kornoff, supra, 45 Cal.2d at p. 272 and Alonso

v. Hills, supra, 95 Cal.App.2d 778.)



                                            25
       The Court of Appeal concluded that "the nature of the injury compensated by

annoyance and discomfort damages involves some personal effect that arises from the

plaintiff's personal, physical presence on the premises. Furthermore, the notion that

storage of personal property on the premises constitutes 'occupancy' is not consistent with

the general understanding of that term. . . . In common parlance, to 'occupy' means, as

relevant here, 'to reside in as an owner or tenant.' " (Kelly, supra, 179 Cal.App.4th at

p. 459.) Thus, it held a nonresident property owner who merely stores personal property

on the premises is not entitled to recover annoyance and discomfort damages from a

trespass. (Ibid.)

       Kelly stands only for the proposition that legal occupancy is required to recover

damages for annoyance and discomfort in a trespass case, and that standard requires

immediate and personal possession, as a resident or commercial tenant would have.

Here, there is no dispute the Hensleys both owned and resided on their property, and they

meet the legal standard of occupancy necessary to claim damages for annoyance,

discomfort, inconvenience or mental anguish proximately caused by the trespass, as

the jury was instructed without controversy in Kelly. (Kelly, supra, 179 Cal.App.4th at

p. 455, fn. 3.) Kelly does not hold that an occupant must be personally or physically

present at the time of the harmful invasion to deem emotional distress damages "naturally

ensuing" therefrom. To the contrary, in citing authorities involving plaintiffs in

immediate possession as residents or commercial tenants, Kelly refers to Alonso v. Hill,

supra, 95 Cal.App.2d 778, in which the plaintiff owner and occupant was not personally

present during one of multiple trespasses. (Kelly, at p. 458.) And Kelly's distinction

                                             26
between "general" or "pure" emotional distress damages and damages for annoyance and

discomfort is not binding on us for two reasons. First, it was not a principle necessary to

the court's decision. (See City of San Diego v. Board of Trustees of California State

University (2015) 61 Cal.4th 945, 958 [dictum is the statement of a principle not

necessary to the decision]; Simmons v. Superior Court (1959) 52 Cal.2d 373, 378, 341

["Incidental statements or conclusions not necessary to the decision are not to be regarded

as authority"]; Contreras v. Dowling (2016) 4 Cal.App.5th 774, 787 [dictum is "binding

on no one"].) Second, it relies on Colorado authority, which we decline to follow.

(Episcopal Church Cases (2009) 45 Cal.4th 467, 490 ["out-of-state decisions are not

binding on this court"]; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447, fn. 2.)

California law does not support the distinction in this context.

 III. Negligence and Breach of Contract Cases Are Not Controlling in Cases Presenting

                          Tort Claims of Trespass and Nuisance

       SDG&E asserts that Kelly is an application of the policies restricting damages for

emotional distress, and it reviews circumstances where such damages are not recoverable,

including for bystanders to medical procedures, breaches of contract, and negligence. It

points out that the restrictions ensure the validity and reliability of such damages, which

are less objectively verifiable than other types of injury; conserve judicial resources; and

avoid limitless liability. SDG&E argues that the trial court's ruling may be upheld on the

independent theory—stated in cases such as Erlich v. Menezes, supra, 21 Cal.4th 543 and

Cooper v. Superior Court (1984) 153 Cal.App.3d 1008—that emotional distress resulting

from property damage is not compensable. SDG&E argues this case presents a situation

                                             27
where the Hensleys' "property was damaged by an invasion . . . resulting from the

defendant's alleged negligence . . . ."

       The latter argument misapprehends the nature of the torts at issue. " 'The essence

of the cause of action for trespass is an 'unauthorized entry' onto the land of another.

Such invasions are characterized as intentional torts, regardless of the actor's

motivation.' " (Spinks v. Equity Residential Briarwood Apartments (2009) 171

Cal.App.4th 1004, 1042; Church of Christ in Hollywood v. Superior Court (2002) 99

Cal.App.4th 1244, 1252; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1402.)7

Nuisance, an unreasonable interference with the use and enjoyment of the plaintiff's land

without interference with possession (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229,

232; San Diego Gas & Electric. Co. (1996) 13 Cal.4th 893, 938; Rancho Viejo, LLC v.

Tres Amigos Viejos, LLC (2002) 100 Cal.App.4th 550, 562), also may be committed

without any element of negligence. (Sturges v. Charles L. Harney, Inc. (1958) 165

Cal.App.2d 306, 318.)




7       Trespass may be committed "by consequential and indirect injury as well as by
direct and forcible injury." (Wilson v. Interlake Steel Co., supra, 32 Cal.3d at p. 232; see
Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1306.) The
only intent required to commit a trespass is an intent to enter the land regardless of
motivation; a trespass may be committed by an act that can be intentional, reckless or
negligent. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 10, fn. 6,
quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 604, p. 704; see Miller v.
National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480-1481 [the intent of a
trespasser is simply an intent to be at the place on the land where the trespass allegedly
occurred, and a defendant "is liable for an intentional entry although he has acted in good
faith, under the mistaken belief, however reasonable, that he is committing no wrong"].)
                                             28
       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; see Acadia, California, Limited v. Herbert, supra, 54 Cal.2d at p. 337;

Kornoff, supra, 45 Cal.2d at p. 272.) 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; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1481; 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 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, involving

plaintiff's claim of conversion of sentimental items of personal property. There, this

court explained that the restrictions on emotional distress damages involved in breach of

contract or negligence cases do not apply when a plaintiff's emotional distress is the

                                            29
result of the defendant's commission of a tort arising from an invasion of a property

interest. (See Gonzales, at p. 475.) 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, quoting

Armitage v. Decker, supra, 218 Cal.App.3d at p. 905.) This court pointed out the

plaintiffs in Armitage were permitted to recover for 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, citing

Armitage, at pp. 905-906.)

       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.

                                              30
[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.) 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.) 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]."8 (Gonzales, at p. 477.) We concluded: "[N]otwithstanding further

developments in the law of negligence, damages for emotional distress growing out of a

defendant's conversion of personal property are recoverable." (Ibid.)




8       In Cooper v. Superior Court, supra, 153 Cal.App.3d 1008, also relied upon by
SDG&E, the plaintiff's home was struck by defendant's tractor due to defendant's
negligence in permitting it to roll from where it was parked. (Id. at p. 1010.) In addition
to damages to her property, the plaintiff sought damages for emotional distress arising out
of the incident. (Ibid.) The defendant successfully moved for summary adjudication of
the emotional distress claim, contending the plaintiff could not state a cause of action for
emotional distress arising from damage to her property. (Ibid.) The Court of Appeal
upheld the summary adjudication, holding "recovery [for emotional distress arising out of
loss of property] is limited to cases where, at a minimum, a duty of care exists by virtue
of a preexisting relationship between the parties or where the damage arises out of an
intentional tort." (Id. at p. 1013.) SDG&E also points to Lubner v. City of Los Angeles
(1996) 45 Cal.App.4th 525, in which plaintiffs sued the city for negligence after a city
trash truck rolled into the plaintiff's home, damaging the plaintiff's artwork. (Id. at pp.
528, 533.)
                                             31
       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.

       SDG&E's reliance on Erlich v. Menezes, supra, 21 Cal.4th 543 and other

negligence cases is unavailing. Erlich involved the defendant's breach of a contract to

build a house due to negligent construction. (Id. at pp. 549-550.) The court stated the

scope of its holding: "We granted review in this case to determine whether emotional

distress damages are recoverable for the negligent breach of a contract to construct a

house." (Erlich, at p. 548.) There, reviewing the differences between damages for torts

and damages for breach of contract, the court found the action did not support an award

of damages for emotional distress. (Id. at pp. 550-551, 554.) Though Erlich recognized

that certain conduct amounting to a breach of contract could become tortious, as where it

also violates a duty independent of the contract arising from principles of tort law (id. at

pp. 551-552), the jury there had concluded the defendant did not act intentionally or

commit fraud. (Id. at p. 554.) Thus, the mere negligent breach of contract in that case

was "not sufficient to support tortious damages for violation of an independent tort duty."

(Id. at p. 554.)

       SDG&E points in isolation to Erlich's statement that " '[n]o California case has

allowed recovery for emotional distress arising solely out of property damage[.]' "

                                             32
(Erlich v. Menezes, supra, 21 Cal.4th at p. 554, citing Cooper v. Superior Court, supra,

153 Cal.App.3d at p. 1012.) In making that statement, Erlich was observing that even if

the defendant's negligence gave rise to a sufficient independent duty to the plaintiffs,

such a finding would not entitle them to emotional distress damages: " 'The fact that

emotional distress damages may be awarded in some circumstances [citation] does not

mean they are available in every case in which there is an independent cause of action

founded upon negligence.' " (Id. at p. 554, italics added.) Because the plaintiffs' mental

suffering due to the negligent construction of the house " 'derive[d] from an inherently

economic concern,' " there was no precedent for an award of emotional distress damages

based on a finding of the defendant's negligence. (Id. at p. 558.) Erlich pertains only to

actions for negligent breaches of contract or negligence. It does not address nuisance or

trespass cases, or whether emotional distress damages are available in such cases at all.

Nothing in Erlich precludes or limits the Hensleys from seeking emotional distress

damages.

       At oral argument, SDG&E’s counsel stated that under the settlement agreement

SDG&E will pay the Hensleys the additional sum of money if there is a trial on William's

emotional distress damages. But such a trial is precluded by the parties' conditional

settlement, which permitted this appeal. Our reversal gives the Hensleys what the

settlement contemplates, which is a determination in the Hensleys' favor on the legal

issue presented.

                                      DISPOSITION

       The judgment is reversed. The Hensleys shall recover their costs on appeal.

                                             33
                           O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


HUFFMAN, J.




                      34
