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Salyer v. 396 Investment Co.5/17/2005
iment proximately caused thereby, whether it could have been anticipated or not.'" (Erlich, supra, 21 Cal.4th at p. 550 [quoting Civ. Code, § 3333].) This measure of damages, intended to compensate for all proximately caused harm, would not be furthered by recognizing the distinction Anaheim suggests here. When determining "all the detriment proximately caused thereby" (Civ. Code, § 3333), it is irrelevant whether the defendant intended to harm the plaintiffs or simply to do the act that inadvertently caused harm. Thus, we reject Anaheim's argument that intent to harm or cause the nuisance is an exceptional type of case where emotional distress damages are permitted while inadvertently caused nuisances are immune from such liability.
We similarly reject Anaheim's second argument pertaining to situations where the nuisance itself creates the disturbance. Again, we find no principled distinction between a situation where the defendant's acts directly create the nuisance and a situation where the defendant's acts indirectly, but proximately, cause the nuisance to occur. In light of the measure of damages set forth in Civil Code section 3333, any such distinction is irrelevant.
The remaining cases Anaheim cites are simply inapposite. As the court in Smith, supra, 214 Cal.App.3d 266 noted of the defendant in that case, the county's "argument confuses the issue, as to when a cause of action for negligent infliction of emotional distress may be maintained, with the issue presented in the case at hand, which is whether a cause of action alleging nuisance may support an award of damages for emotional distress." (Id. at p. 287.) Like the county in Smith, the remaining cases Anaheim cites have nothing whatsoever to do with nuisance or trespass, but address general issues of duty with respect to negligence and negligent infliction of emotional distress. (See Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 916-919 [emotional distress damages not available to parents of molested child; no direct breach of duty]); Lubner v. City of Los Angeles (1996) 45 Cal.App.4th 525, 527-528, 535 [emotional distress damages not available for negligence when city truck crashed into artists' home and destroyed artwork].)
This is not a negligence case, or a case of negligent infliction of emotional distress, and therefore issues of duty and foreseeability are not applicable here. Emotional distress damages were awarded for the torts of nuisance and trespass, and in such cases, no physical injury to the plaintiff is required. (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 986, fn.10.) Thus, the trial court properly permitted the plaintiffs' emotional distress claims to proceed.
(3) Improper Evidence of Emotional Distress Damages
Anaheim next argues that even if emotional distress damages were recoverable, the court admitted improper evidence of emotional distress. Anaheim does not explain, however, why that evidence was so prejudicial that it constituted a miscarriage of justice. Without such prejudice, the erroneous admission of evidence does not constitute reversible error. (Cal. Const., art. VI, § 13; Evid. Code, §§ 353, 354.) Thus, Anaheim has failed to establish reversible error on this point.
J. JUROR CONDUCT:
During the Phase II jury deliberations, plaintiff Clara Stevens informed her attorney that she had had a communication with a juror (Juror No. 1) shortly after she testified. Some of Stevens's testimony concerned the fact that she had been diagnosed with breast cancer and had been undergoing treatment at the same time she had been dealing with the slope failure and relocation from her home. Stevens's att
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