Hensley v. San Diego Gas & Electric Co., 7 Cal. App. 5th 1337

In 2007 wildfires damaged the Hensleys’ Poway home, destroying trees and causing property damage; William Hensley alleges emotional distress and exacerbation of Crohn’s disease arising from the fires and aftermath.
The Hensleys sued SDG&E on multiple theories including trespass, nuisance, negligence, inverse condemnation, and intentional/negligent infliction of emotional distress; some claims were dismissed during summary adjudication.
The trial court bifurcated liability and damages, then granted SDG&E’s motion in limine excluding all evidence of William’s emotional-distress damages for trespass and nuisance, relying on Kelly v. CBI Constructors.
Rather than proceed to trial, the parties entered an amended stipulated judgment stating the Hensleys "take nothing" on all claims but preserving their right to appeal the exclusion order; court entered a final-appealable judgment.
On appeal the court addressed threshold questions (finality and potential advisory-opinion/mootness) and the narrow legal issue whether emotional distress damages (including alleged aggravation of Crohn’s disease) are recoverable as "annoyance and discomfort" damages for trespass and nuisance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
(1) Is the amended stipulated judgment final and non‑moot so the court can decide the appeal?	Judgment disposes of all causes of action; settlement preserves appeal and conditions additional payment on a successful appeal, so controversy remains.	Settlement fully resolves case; a consent judgment usually moots appeal and would render any opinion advisory.	Judgment is final and appeal is not moot as to trespass/nuisance emotional‑distress issue because the parties conditioned payment on the appeal outcome, creating a justiciable stake.
(2) May plaintiff recover emotional‑distress damages (including alleged aggravation of Crohn’s disease) as part of "annoyance and discomfort" in trespass and nuisance, even if not physically present during the invasion?	Emotional distress proximately caused by a trespass or nuisance is recoverable as annoyance and discomfort; physical presence at the moment of invasion is not required.	Under Kelly and related authority, annoyance/discomfort damages are distinct from general emotional distress and require "occupancy"/personal physical presence; some negligence/contract cases limit recovery of emotional distress.	The court reversed: established California precedent permits recovery for annoyance and discomfort (including emotional distress) proximately caused by trespass or nuisance; physical presence during the invasion is not required; trial court erred in excluding all evidence.

Kelly v. CBI Constructors, Inc., 179 Cal.App.4th 442 (Cal. Ct. App.) (court relied on occupancy/physical‑presence reasoning; treated as persuasive dicta here)
Kornoff v. Kingsburg Cotton Oil Co., 45 Cal.2d 265 (Cal. 1955) (historical California Supreme Court rule allowing annoyance and discomfort damages for property invasions even without physical injury)
Acadia, California, Ltd. v. Herbert, 54 Cal.2d 328 (Cal. 1960) (annoyance and mental suffering recoverable for trespass/nuisance)
Herzog v. Grosso, 41 Cal.2d 219 (Cal. 1953) (fear for safety and mental distress are natural consequences of a trespass and compensable)
Erlich v. Menezes, 21 Cal.4th 543 (Cal. 1999) (emotional‑distress damages are limited in negligence/contract contexts; not controlling for trespass/nuisance)
Havens Realty Corp. v. Coleman, 455 U.S. 363 (U.S. 1982) (settlement conditioned on appellate outcome can preserve a live controversy for review)