Filed 2/18/15 Donahue v. Kuntz CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

SEAN DONAHUE,                                                           B250943

                Plaintiff and Appellant,                                (Los Angeles County
                                                                        Super. Ct. No. KC048793)
         v.

DENNIS M. KUNTZ et al.,

                Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County. William
A. MacLaughlin, Judge. Affirmed.


         Gibbs Giden Locher Turner Senet & Wittbrodt and Michael B. Geibel; Miller &
Chavez and Stephen J. Miller for Plaintiff and Appellant.


         Hanger, Steinberg, Shapiro & Ash, Jody Steinberg and Lisa Mead; Law Offices of
Mary Jean Pedneau and William R. Larr for Defendants and Respondents.
       Plaintiff and appellant Sean Donahue (plaintiff) appeals from the judgment entered
in favor of defendants and respondents Dennis M. Kuntz and Alice J. Kuntz (defendants)
in this action and cross-action related to a boundary dispute and plaintiff’s filling and
grading a portion of a natural creek in the rear of the parties’ respective properties. We
affirm the judgment.
                                     BACKGROUND
       Plaintiff is the owner of certain residential real property located at 2374 North
Cameron Avenue in Covina, California (the Donahue property). Defendants own the
adjoining property located at 2376 North Cameron Avenue (the Kuntz property).
Primary access to both properties is a private road along the south side of both parcels.
At the rear of both properties is a natural creek channel.
       After plaintiff purchased the Donahue property in 2003, a dispute arose between
the parties concerning an existing fence that separated their two properties, the location of
the legal boundary line, and plaintiff’s use of a recorded easement over the Kuntz
property in favor of the Donahue property. A dispute also arose over plaintiff’s
construction or improvement of a roadway on their property. The construction included
filling in a portion of the creek channel located at the rear of the Donahue property and
replacing an existing 18-inch drainage pipe and culvert in the creek channel with an 36-
inch drainage pipe. The construction resulted in a substantial elevation of the roadway as
it passed over the streambed, extension of the supporting slope, and subsequent erosion
of the built up road bed onto the Kuntz property. Because the soil used to create the
roadway was contaminated with construction debris and hydrocarbons, the project
resulted in soil and contaminants being placed onto the Kuntz property. In addition, the
36-inch pipe placed in the creek bed caused some change in the streambed flow and
carried some soil and contaminants downstream and onto the Kuntz property. Plaintiff’s
grading and filling of the creek channel and placement of the drainage pipe were done
without any permits or approvals from the applicable public agencies.




                                              2
                                PROCEDURAL HISTORY
       In July 2006, plaintiff filed the instant action for quiet title, adverse possession,
prescriptive easement, and injunctive relief over disputed portions of the parties’
respective properties. A corrected first amended complaint was filed in October 2006.
       Defendants filed an answer and a cross-complaint that included causes of action
against plaintiff and his parents,1 who resided on the Donahue property, for nuisance and
negligence and for damages and injunctive relief related to plaintiff’s unpermitted
grading and filling of the creek bed channel. Plaintiff and his parents then filed a cross-
complaint against defendants, asserting causes of action for intentional and negligent
infliction of emotional distress, trespass, and nuisance.
       Defendants filed a motion for summary adjudication of plaintiff’s quiet title
claims, and the trial court granted summary adjudication in defendants’ favor as to those
claims.
       The parties’ respective liability claims were bifurcated and tried in a two-part
court trial. The parties stipulated to binding arbitration of their respective damages
claims.
Phase 1 trial
       Defendants’ nuisance and negligence claims were tried in phase 1 of the court
trial. At the conclusion of the phase 1 trial, the trial court issued a tentative statement of
decision dated March 17, 2009, that was deemed the final statement of decision on April
8, 2009. In the final statement of decision, the trial court found that plaintiff’s
construction of the roadway and introduction of contaminated soil and fill material into
the creek channel intruded upon the Kuntz property and created a nuisance within the
meaning of Civil Code sections 3479 and 3481. The trial court concluded that defendants
were entitled to injunctive relief requiring removal of all fill material placed on the Kuntz
property, prevention of erosion onto the Kuntz property, removal of any portion of the
drainage pipe and culvert from the Kuntz property, and restoration of the Kuntz property


1      Plaintiff’s parents are not parties to this appeal.

                                               3
to its condition before the roadway project commenced. The court stated that the specific
form and content of the injunctive relief would be ordered when judgment was entered in
the matter. The trial court further found that plaintiff was negligent because he did not
sufficiently investigate the need for permits for the work performed, did not sufficiently
verify the source and nature of the soil obtained to ensure that it was free of debris and
contaminants, did not construct the roadway and supporting slopes in a manner that
would have prevented erosion, and did not conduct the requisite survey to ensure that the
improvement to the Donahue property was made entirely on that property.
Phase 2 trial
        The second phase of the court trial addressed whether defendants had interfered
with recorded easements and had trespassed onto plaintiff’s property. In a statement of
decision filed at the conclusion of phase 2, the trial court found that the boundaries of the
properties and easements were described in the deeds to the respective properties and
depicted in a topographic survey and a record of survey prepared for defendants by a
registered professional engineer. The trial court further found that defendants were liable
for interference with the easements and for trespass. The court stated that it would order
injunctive relief, in a form and on terms to be decided when judgment was entered in the
case.
Phase 3 arbitration
        Plaintiff and defendants entered into a stipulation, signed by both the parties and
their counsel, to binding arbitration of their damages claims. The stipulation provided
that California law and the rules of evidence would apply and that the parties waived
their right to a trial de novo as provided in rule 3.826 of the California Rules of Court.
        In an amended final award filed on August 25, 2010, the arbitrator found that
plaintiff’s dumping of contaminated and uncompacted dirt on the rear of the Kuntz
property constituted a continuing nuisance and awarded defendants $281,500 in damages
on their nuisance and negligence claims. The arbitrator awarded $87,764 damages in
favor of plaintiff and against defendants as follows: $47,614 for tortious interference
with the driveway easement, $15,000 for negligent infliction of emotional distress,


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$20,000 for intentional infliction of emotional distress,2 $150 for trespass, and $5,000 for
trespass against Dennis Kuntz only.
Motions to vacate arbitration award and for a partial new trial
       On September 9, 2011, the trial court issued a proposed judgment and set the
matter for an order to show cause re entry of judgment. In response, plaintiff filed, on
January 6, 2012, a motion seeking to vacate the arbitration award. Plaintiff filed a
separate motion for a partial new trial on injunctive relief and damages. Plaintiff argued
that the arbitrator awarded excessive, duplicative damages contrary to law and that
irregularity in the arbitration proceedings amounted to misconduct by the arbitrator. The
motion for a new trial was limited to the issues of damages and whether the nuisance
could be abated.
       The trial court found that the parties had stipulated to judicial arbitration under
Code of Civil Procedure section 1141.10 and had further stipulated that the arbitrator’s
decision would be final by waiving the right to seek a trial de novo under rule 3.826 of
the California Rules of Court. In light of the parties’ waiver of a right to a trial de novo,
the trial court concluded the requested relief could not be granted.
       The trial court denied the motion to vacate the arbitration award on the merits and
as untimely under California Rules of Court, rule 3.828.
Judgment
       Judgment was entered on July 26, 2013, and incorporated the phase 1 and phase 2
statements of decision as well as the phase 3 arbitration award. Over plaintiff’s
objection, the trial court applied the $87,764 damages award to plaintiff as an offset
against the $281,500 award in favor of defendants, resulting in a net award to defendants
of $193,736. This appeal followed.3


2       The arbitrator also awarded plaintiff’s parents $25,000 each for negligent
infliction of emotional distress, and $35,000 each for intentional infliction of emotional
distress.

3      Defendants filed a cross-appeal that they subsequently abandoned.

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                                       DISCUSSION
       Plaintiff’s appeal is limited to the following portions of the judgment: (1) the
injunctive order requiring plaintiff to remove all dirt fill and all portions of the pipe and
culvert placed on defendants’ property; (2) offset of the $87,764 damages award to
plaintiff against the $281,500 award to defendants and entry of judgment in favor of
defendants in the net amount of $193,736; and (3) the finding that the boundary between
the parties’ properties is as set forth in the Giron Record of Survey dated December 13,
2006 (the Giron survey). Plaintiff also appeals from the postjudgment order denying his
motion for a partial new trial on injunctive relief and on damages and from the
postjudgment order denying his motion to vacate or set aside the portion of the judgment
entered on the $281,500 arbitration award in favor of defendants on their nuisance and
negligence claims.
I. Injunctive order
       We review the trial court’s decision to grant injunctive relief for abuse of
discretion. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) We
review the factual findings upon which the trial court’s injunctive order is based for
substantial evidence. “Under the substantial evidence standard, ‘“[t]he power of an
appellate court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted,” to support the trial court’s
findings. . . . ’ [Citation.]” (Hope v. California Youth Authority (2005) 134 Cal.App.4th
577, 589.) All conflicts in the evidence must be resolved in favor of the prevailing party,
and all reasonable inferences must be drawn in favor of the prevailing party. (Le v. Pham
(2010) 180 Cal.App.4th 1201, 1205-1206.)
       Plaintiff contends the injunctive relief granted against him was improper because
there is insufficient evidence to support the finding that the contaminated soil deposited
in the creek channel and encroaching upon defendants’ property constitutes a continuing
rather than a permanent nuisance. He argues that the condition must be deemed to be a
permanent nuisance because there was no evidence that it could be abated at a reasonable



                                               6
cost by reasonable means and that the proper remedy is damages rather than injunctive
relief.
          The basic distinction between a permanent nuisance and a continuing nuisance is
that the latter can be discontinued or abated. (Capogeannis v. Superior Court (1993) 12
Cal.App.4th 668, 677.) “‘[A]batable’ means that the nuisance can be remedied at a
reasonable cost by reasonable means.” (Mangini v. Aerojet-General Corp. (1996) 12
Cal.4th 1087, 1103 (Mangini).) Abatability is a question of fact, and “cost is an
appropriate factor to consider.” (Id. at p. 1101.) A cost estimate will suffice to show
abatement by reasonable means at a reasonable cost. (Id. at p. 1099.)
          There is substantial evidence in the record that the nuisance caused by plaintiff’s
unpermitted grading and filling activity was abatable. Plaintiff’s expert geologist and
environmental manager, Sara Battelle (Battelle), testified during the phase 1 trial about
the need for remediation. Battelle testified that she had reviewed cost estimates prepared
by G.E. Construction Company for three remedial alternatives for the property in the
vicinity of the culvert. Defendants’ counsel objected on the ground that Battelle’s expert
designation did not “cover areas for construction type of remediation” and argued that her
testimony should be limited “to remediation in the area that she’s been designated . . . as
an expert” -- investigation of contaminated soils in the vicinity of the culvert. The trial
court overruled that objection.
          Battelle then testified about three remedial alternatives proposed by G.E.
Construction and their respective costs. These were (1) construction of an engineered
retaining wall and replacement culvert at a cost of $326,337; (2) construction of a
modular retaining wall at a cost of $255,167; and (3) construction of a 2:1 horizontal and
vertical slope along the property line at a cost of $194,513. When plaintiff’s counsel
asked Battelle whether she had an opinion as to which of the three alternatives would be
most effective in containing the soil, defendants’ counsel objected that Battelle’s
testimony was beyond the scope of her expert designation and argued that plaintiff had
offered no proof that Battelle had experience in estimating the cost of the various
remedial alternatives. The trial court sustained the objection on the ground of lack of


                                                7
foundation, and then invited plaintiff’s counsel to attempt to lay the necessary foundation.
After plaintiff’s counsel elicited testimony from Battelle regarding her previous
experience with 2:1 slopes, the trial court allowed Battelle to state her opinion that the
remedial option of creating a 2:1 slope would contain the soil at the top of the slope,
would “greatly improve the conditions there,” and “should be sufficient.”
       Plaintiff argues that Battelle’s testimony is not substantial evidence of the
estimated cost of abatement for the following reasons: the trial court sustained
defendants’ objection to Battelle’s testimony based on lack of foundation; Batelle had not
herself prepared any repair options or cost estimates; the G.E. Construction cost estimates
were not admitted into evidence and no one from G.E. Construction was called to testify
regarding estimated costs; the trial court limited Battelle’s testimony regarding abatement
to the 2:1 slope option; and there was no testimony that the county or any other public
agency would approve a permit for any of the remedial options Battelle described during
her testimony.
       While it is true that the trial court sustained defendants’ objection to Battelle’s
testimony for lack of foundation, the court then allowed plaintiff’s counsel to lay the
necessary foundation. Plaintiff’s counsel did so with regard to Battelle’s experience with
2:1 slopes. Battelle’s testimony regarding the 2:1 slope repair option was admissible and
constitutes substantial evidence of abatability. “Substantial evidence” is evidence that is
reasonable, credible, of solid value, and of ponderable legal significance. (Kuhn v.
Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Battelle’s
testimony regarding the 2:1 slope option meets these criteria.
       To the extent Battelle’s testimony included cost estimates that plaintiff now
complains were inadmissible, that complaint is not cognizable on appeal because
plaintiff’s counsel elicited such testimony. Under the doctrine of invited error, “[i]f an
appellant offers inadmissible matters into evidence, he cannot complain of its admission
on appeal. [Citations.]” (Horsemen’s Benevolent & Protective Assn. v. Valley Racing
Assn. (1992) 4 Cal.App.4th 1538, 1555; see also Sacramento and San Joaquin Drainage
Dist. v. W. P. Roduner Cattle & Farming Co. (1968) 268 Cal.App.2d 199, 207-210


                                              8
[doctrine of invited error precluded appellant from arguing there was no substantial
evidence to support verdict fixing the value of special benefit in condemnation action
when testimony from expert witness caused the jury to be misled in measuring such
value].)
       The absence of evidence that the county or any other public agency would approve
a 2:1 slope or any of the other remedial options described by Battelle is not relevant to
the issue of whether there was substantial evidence of abatability. “‘[A]batable’ means
that the nuisance can be remedied at a reasonable cost by reasonable means.” (Mangini,
supra, 12 Cal.4th at p. 1103.) Plaintiff cites no case authority for the proposition that
public agency approval of any specific remedial option is required when determining
abatability.
       Substantial evidence supports the trial court’s implied finding that the nuisance
created by plaintiff was abatable. The trial court accordingly did not abuse its discretion
by ordering injunctive relief.
       Plaintiff’s challenge to the factual determination that the nuisance he created was a
continuing one also fails because that determination was also made by the arbitrator in
the binding arbitration proceeding to which the parties stipulated. After 11 days of
arbitration hearings during which witnesses for both parties testified, the arbitrator found
that “[c]laimants [Sean Donahue and William Donahue] dumping of contaminated and
uncompacted dirt on the rear portion of the Kuntz property . . . [¶] . . . establishes that the
dirt constitutes a continuing nuisance.” That factual determination by the arbitrator is not
subject to judicial review. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 6
[“arbitrator’s decision is not generally reviewable for errors of fact”]; City of Palo Alto v.
Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 337 [court “cannot
judicially revisit” disputed fact issues].)
II. Motion for partial new trial on damages
       Plaintiff contends the issue of damages should be remanded for a new trial
because the $281,500 in damages awarded by the arbitrator on defendants’ nuisance and
negligence claims was excessive and improperly included damages for emotional


                                               9
distress, diminution in value, attorney fees and costs, loss in the value of the Kuntz
property, and prospective damages for future erosion and loss of marketability of the
property not recoverable under a continuing nuisance theory.
       Plaintiff waived any claim to a right to a new trial on damages by expressly
waiving the right to a trial de novo in the parties’ stipulation for binding arbitration of the
phase 3 issues. In that stipulation, the parties agreed that “Phase III of this matter shall be
tried to a final conclusion as an arbitration proceeding pursuant to California Rules of
Court Rules 3.811-3.830 (excluding Rule 8.26) and Code of Civil Procedure section
1141.10.”
       Code of Civil Procedure section 1141.10 and California Rules of Court, rules
3.811 through 3.830 govern judicial arbitration. Judicial arbitration does not necessarily
result in a final decision because the parties have a statutory right to request a trial de
novo. (Code Civ. Proc., § 1141.20.)4 A judicial arbitration award becomes final and
binding upon parties who accept them as final by not filing a timely request for trial de
novo or by stipulating to waive the right to trial de novo. (See Heenan v. Sobati (2002)
96 Cal.App.4th 995, 1000-1001, fn. 4 (Heenan) [participants in a judicial arbitration may
stipulate to waive their right to trial de novo, thereby triggering the automatic entry of
judgment]; Porreco v. Red Top RV Center (1989) 216 Cal.App.3d 113, 119-120 [parties
may stipulate to binding judicial arbitration with advance waiver of the right to request a
de novo trial].) The parties in this case stipulated, individually and through their
respective counsel, “that the right of either party hereto to a de novo trial as provided in
Rule 3.826 of the California Rules of Court is hereby waived.” Plaintiff accordingly
cannot seek a partial new trial on damages.
       Plaintiff contends the parties did not stipulate to binding judicial arbitration, but
rather entered into a “hybrid” agreement containing provisions applicable to both a

4       Code of Civil Procedure section 1141.20 provides in part: “(a) An arbitration
award shall be final unless a request for a de novo trial or a request for dismissal in the
form required by the Judicial Council is filed within 60 days after the date the arbitrator
files the award with the court. [¶] (b) Any party may elect to have a de novo trial, by
court or jury, both as to law and facts. . . .”

                                              10
judicial arbitration and a contractual arbitration. Such an agreement, plaintiff argues,
must be construed according to ordinary rules of contract interpretation, giving
paramount consideration to the parties’ objective intent. That intent, plaintiff insists, was
to allow the parties to challenge in the trial court errors and irregularities in the arbitration
proceeding. As noted by the court in Heenan, California law provides for only two kinds
of arbitration -- judicial arbitration under the Judicial Arbitration Act (Code Civ. Proc.,
§ 1141.10 et seq.) and contractual arbitration under the California Arbitration Act (Code
Civ. Proc., § 1280 et seq.) “The two statutory schemes are ‘mutually exclusive and
independent of each other.’ (Code Civ. Proc., § 1141.30.)” (Heenan, supra, 96
Cal.App.4th at p. 1000.) Litigants who enter into “incoherent hybrids and bizarre
mutations of supposed agreements for judicial or contractual arbitration” (National Union
Fire Ins. Co. v. Nationwide Ins. Co. (1999) 69 Cal.App.4th 709, 716) “should be
forewarned that the primary governing law may be the law of unintended consequences”
(Heenan, supra, at p. 1000). In this case, however, the parties’ stipulation reflects a clear
intent to submit the phase 3 issues to arbitration under the Judicial Arbitration Act. The
stipulation expressly references Code of Civil Procedure section 1141.10 and provisions
of the California Rules of Court applicable to judicial arbitration. The parties’ waiver of
the right to a de novo trial did not alter the statutory scheme they had selected. (Heenan,
at p. 1001, fn. 4.)
III. Motion to vacate judgment based on arbitration award
       Plaintiff next argues that the trial court improperly denied his motion to vacate the
judgment based on the arbitration award. Although there is no right to appeal from a
judgment entered on a judicial arbitration award, an appeal does lie from certain post-
judgment orders, including an order denying a motion to vacate or set aside the judgment.
(Karamzai v. Digitcom (1996) 51 Cal.App.4th 547, 549-550.) The grounds for relief are
limited. Code of Civil Procedure section 1141.23 states that a judicial arbitration award
“may not be attacked or set aside except as provided by [Code of Civil Procedure] section
473, 1286.2, or Judicial Council rule.” The California Rules of Court governing motions
to vacate a judgment entered on an arbitration award also require a party seeking relief to


                                               11
do so within six months after entry of judgment, and further state that relief may be
granted “only upon clear and convincing evidence that the grounds alleged are true, and
that the motion was made as soon as practicable after the moving party learned of the
existence of those grounds.” (Cal. Rules of Court, rule 3.828(a), (b).)
       The trial court found that plaintiff’s motion to vacate the judgment was untimely
under California Rules of Court, rule 3.828(b) because it was not “made as soon as
practicable” after plaintiff learned of the existence of the grounds to do so. The record
supports that finding. The final arbitration award was filed on August 25, 2010, and
plaintiff’s motion was not filed until January 6, 2012.
       Plaintiff’s arguments also fail on the merits. He claims that the arbitrator engaged
in misconduct by improperly considering evidence of harm not recoverable under a
continuing nuisance or negligence theory and that the $281,500 in damages awarded on
defendants’ nuisance and negligence claims improperly included damages for emotional
distress, attorney fees and costs, and prospective economic losses. In the final amended
award, the arbitrator awarded defendants $281,500 in damages on their negligence and
nuisance claims but provided no calculations for the amount of the award, nor any
allocation of the award between the nuisance and negligence claims. There is no record
of the arbitration proceedings, apart from the parties’ respective arbitration briefs. Given
the absence of such a record, plaintiff’s claims that the arbitration award improperly
included attorney fees and costs or damages for emotional distress and prospective harm
not recoverable under a continuing nuisance theory, are based solely on speculation, as
plaintiff himself concedes in his opening appellate brief. Plaintiff’s argument that the
arbitrator improperly considered evidence of emotional distress is without merit. The
parties submitted certain of their tort claims, including claims for intentional and
negligent infliction of emotional distress, to binding judicial arbitration. The arbitrator
necessarily heard evidence pertinent to those claims, and awarded defendants $1,780 in
damages on their claims for conversion and for negligent and intentional infliction of
emotional distress.



                                             12
       The trial court did not err by denying plaintiff’s motion to vacate the judgment
entered on the arbitration award.
IV. Offset
       Plaintiff contends the trial court erred by applying Code of Civil Procedure section
666 to offset against the $281,500 damages award in favor of defendants the $87,764 in
damages awarded in favor of plaintiff. He argues that the offset was inequitable because
both parties were insured,5 and the net effect of the offset was to deny recovery to
plaintiff and to use his insurance coverage to pay the damages awarded against
defendants.
       A. Applicable law and standard of review
       Code of Civil Procedure section 666 requires a setoff when a cross-complainant’s
recovery exceeds that of the plaintiff. It provides:
               “If a claim asserted in a cross-complaint is established at the trial
       and the amount so established exceeds the demand established by the party
       against whom the cross-complaint is asserted, judgment for the party
       asserting the cross-complaint must be given for the excess; or if it appears
       that the party asserting the cross-complaint is entitled to any other
       affirmative relief, judgment must be given accordingly.

              “When the amount found due to either party exceeds the sum for
       which the court is authorized to enter judgment, such party may remit the
       excess, and judgment may be rendered for the residue.”

       The mandatory setoff of Code of Civil Procedure section 666 ordinarily “has the
salutary effects of (1) eliminating a superfluous exchange of money between mutual
debtors [citation], and (2) protecting each party from the risk that the other may collect
the debt owed to him or her, then default upon his or her own obligation. [Citation.]
However, the benefits of setoff are sometimes outweighed by the risk of unfairness which

5      Both parties were insured by the same insurer, State Farm Insurance, and were
represented during the trial and the arbitration by Cumis counsel, independent counsel
selected by the insureds but paid for by the insurer as required by Civil Code section
2860 and San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162
Cal.App.3d 358.

                                             13
may be created by allowing a setoff in specific circumstances. When this is the case, in
light of the equitable origin of setoff rights, such rights may be restricted by judicial
limitations imposed to uphold independent state policy. [Citations.]” (Garg v. People
ex rel. State Bd. of Equalization (1997) 53 Cal.App.4th 199, 212.)
       In Jess v. Hermann (1979) 26 Cal.3d 131 (Jess), the California Supreme Court
held that the mandatory setoff of Code of Civil Procedure section 666 did not apply
between insured parties in comparative fault cases because a setoff of liabilities in such
cases would conflict with California’s financial responsibility laws and would provide an
inequitable windfall to an insurance company at the expense of the insured. (Jess, supra,
at pp. 138-143.) Because the trial court had applied the mandatory setoff of Code of
Civil Procedure section 666 “without considering the potentially inequitable effect of
such setoff in light of the parties’ insurance coverage, apparently concluding that the
existing statutory provisions dictated an automatic setoff without regard to the interests of
the parties or to the equities of the situation” (Jess, at p. 135), the Supreme Court vacated
the judgment and remanded the matter to the trial court “to permit the court to ascertain
the parties’ actual insurance coverage and to render an appropriate judgment in light of
such coverage.” (Ibid.)
       In the instant case, the record is clear that the trial court considered the parties’
respective insurance coverage and weighed the equities in determining whether to apply
the statutory offset in light of the Supreme Court’s decision in Jess. The trial court’s
decision was therefore one subject to an exercise of its equitable powers. We review that
decision under the abuse of discretion standard. (Wm. R. Clarke Corp. v. Safeco Ins. Co.
of America (2000) 78 Cal.App.4th 355, 359.)
       B. No abuse of discretion
       The parties in the instant case were being defended, subject to a reservation of
rights, by State Farm, the issuer of the parties’ respective homeowner liability policies.
At the time of judgment, State Farm had made no final decisions regarding what portions,
if any, of the judgment would be covered. Defendants’ counsel informed the trial court
that State Farm had informally told defendants that any judgment against them would not


                                              14
be covered and asked that the award totaling $87,764 against defendants be offset by the
judgment against plaintiff and in their favor for $281,500. Plaintiff’s counsel said that he
had been informed, albeit informally, that State Farm would cover the $281,500 liability
plaintiff had incurred to defendants and argued against any offset as unfair to plaintiff.
Defendants’ counsel argued in response that without any evidence of State Farm’s
agreement that the $281,500 judgment against plaintiff would be covered, plaintiff’s
representation regarding coverage was speculative. The trial court agreed, noting that the
court did not know whether there was coverage for any of the damages “because I don’t
know what the insurance company’s position is going to be.” The court thereafter
applied the offset.
       The record discloses no abuse of discretion by the trial court.
V. Property line determination
       Plaintiff contends the trial court’s finding that the property line between the Kuntz
property and the Donahue property is as set forth in the Giron survey should be reversed.
He claims the location of the true property line was not at issue in the case and that the
finding should not be included in the judgment. As the trial court noted in two separate
hearings on the issue, the court necessarily had to determine the location of the property
line dividing the two properties in order to adjudicate the parties’ claims for trespass,
nuisance, and interference with a recorded easement. The Giron survey was admitted
into evidence, and the trial court expressly stated that it relied on that survey when
adjudicating plaintiff’s easement claim. Plaintiff has established no valid basis for
reversing the trial court’s finding.




                                             15
                                  DISPOSITION
      The judgment is affirmed. Defendants are awarded their costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                              ____________________________, J.
                                              CHAVEZ

We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




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