Van Taylor v. Ivie CA2/3 ( 2021 )

Filed 1/26/21 Van Taylor v. Ivie CA2/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THRIS VAN TAYLOR, B281545
Plaintiff and Appellant, Los Angeles County
Super. Ct. Nos.
v. BC268576, BC317765,
BS098998
RICKEY IVIE et al.,
Defendants and Appellants.
APPEALS from a judgment and order of the Superior Court
of Los Angeles County, Mark V. Mooney, Judge. Affirmed.
Thris Van Taylor, in pro. per, for Plaintiff and Appellant.
Richardson, Fair & Cohen, Manuel Dominguez, Mark
Petersen; Ivie, McNeill & Wyatt, Chandler A. Parker; Ivie,
McNeill, Wyatt, Purcell & Diggs and Rickey Ivie for Defendants
and Appellants.
_______________________________________
INTRODUCTION
Appellant and cross-respondent Thris Van Taylor (Van
Taylor) and respondents and cross-appellants Rickey Ivie and
Eloise Ivie (the Ivies) are next-door neighbors. For almost 20
years, they have been involved in a dispute over a narrow strip of
land and the block wall between their homes. The dispute has
generated three trials and several appeals.1 Van Taylor contends
that the block wall and the strip of land are on his property, and
he sued the Ivies for trespass, nuisance, assault, and injunctive
relief for using the wall and encroaching onto his land. In
response, the Ivies claim joint ownership of the wall and seek an
easement to use the land. After the third trial in 2016, the jury
returned verdicts for Van Taylor on the trespass and nuisance
claims and the Ivies’ claim for a prescriptive easement; and the
trial court granted a nonsuit on Van Taylor’s cause of action for
assault. After a subsequent bench trial on the equitable claims,
the court granted Van Taylor a partial injunction, the Ivies an
equitable easement, and found that the Ivies did not have an
ownership interest in the wall.
In this appeal, Van Taylor contends that reversible errors
occurred during the jury trial and bench trial. Van Taylor asserts
the jury’s $2,000 damages award on his trespass and nuisance
claims was insufficient. He further complains that the court erred
in instructing the jury and granting a nonsuit on his assault
cause of action. Van Taylor also claims that in the bench trial, the
court: (1) ignored this court’s directives from the prior appeals
concerning the equitable claims; (2) entered an order that
1 Mr. Van Taylor and Mr. Ivie are lawyers.
2
conflicted with the jury’s verdict; and (3) erred in failing to award
him additional damages. Finally, Van Taylor contends that he
was entitled to an award of litigation costs. In the cross-appeal,
the Ivies challenge the court’s failure to grant a judgment
notwithstanding the verdict (JNOV) on their cause of action for a
prescriptive easement and the court’s ruling in the bench trial
denying them an ownership interest in the wall. As we shall
explain, the parties have not demonstrated reversible error.
Accordingly, we affirm the judgment and the order denying
JNOV.
FACTS AND PROCEDURAL BACKGROUND
1. The Parties and the Property
Since April 1988, Van Taylor has owned a home on the
property (known as “Lot 35”) next door to the Ivies’ home on
South Halm Avenue in a residential neighborhood of Ladera
Heights, an unincorporated area in Los Angeles County. The
Ivies purchased their property (known as “Lot 34”) in June 2000.2
Lot 34 and Lot 35 were developed and the parties’ homes were
built in the mid-1960s.
The legal property line between Lot 34 and Lot 35 is a
straight line running east to west, approximately 116.54 feet
2 The fact references are taken from the record filed in this appeal and
from this court’s prior opinions in 2005 (Van Taylor v. Ivie (May 23,
2005, B167277) [nonpub. opn.] (Van Taylor I), and in 2012 (Van Taylor
v. Ivie (Nov. 19, 2012, B206761 & B225934) [nonpub. opn.] (Van Taylor
II).) Our 2014 opinion involved a court-ordered inspection of a fence
and Van Taylor’s allegations against Rickey Ivie, his law partner, and
an arborist, for assault and invasion of privacy during the inspection;
the facts underlying the 2014 appeal are not relevant to this appeal.
(See Van Taylor v. Ivie (Feb. 13, 2014, B239275) [nonpub. opn.].)
3
from the front to the back of the lots. Lot 35 is south of the legal
property line, and Lot 34 is north of the line. A hedge of
vegetation grows approximately 40.5 feet along the north side of
the property line from the sidewalk to the front of the homes. A
six-foot-tall fence constructed of masonry blocks (the “wall”)
divides the lots and runs parallel to the boundary line for
approximately 77 feet to the back of the lots.3 The original owners
of Lot 34, the Heisers, placed a wooden gate between the corner
of the front of their home and the wall. In the 1980s, the second
owner of the home on Lot 34, the Frattos, replaced the wooden
gate with a wrought iron gate.
The upright stem of the wall and approximately four inches
of land (the “land”) immediately north of the wall, running the
wall’s length, are located south of the legal property line. Thus,
the wall and the land are entirely on Lot 35, Van Taylor’s
property. However, part of the wall’s subterranean foundation
extends three to six inches across the legal property line into Lot
34, the Ivies’ property. During the years before the Ivies
purchased Lot 34, trees, including a pear tree, vegetation,
electrical outlets, pipes, metal boxes, the wrought iron gate, and
other items serving Lot 34, had been placed on the land or
attached to the north side of the wall.
3 The wall consists of two components: the six-foot high upright
section—the stem—and a subterranean concrete foundation which
supports the stem; together the stem and the foundation form the
shape of an upside down “T”. The foundation is attached to the wall at
the base of the stem and from the base of the stem approximately eight
inches of the foundation extends underground on both sides of the wall
for the length of the wall.
4
2. The Dispute
In March of 2001, this dispute began when Van Taylor and
the Ivies discussed Van Taylor’s desire to raise the wall’s height.
Van Taylor asked the Ivies to trim the pear tree branches
overhanging the wall into his yard. The Ivies refused because
they were concerned that cutting the tree might harm it. Van
Taylor told the Ivies that he believed that he owned the block
wall and the land next to it because they were located entirely on
Lot 35. Subsequently, the Ivies commissioned a survey that
confirmed Van Taylor’s statement about the legal property line’s
location.
After that, the Ivies agreed to trim the pear tree to allow
Van Taylor to increase the wall’s height. However, when the Ivies
and Van Taylor subsequently inspected the Ivies’ backyard next
to the wall, Van Taylor requested that the Ivies remove the pear
tree because he believed it was growing against the block wall,
damaging it. The Ivies trimmed the pear tree but refused to
remove it. In December 2001, Van Taylor served a written
demand on the Ivies, requesting that they remove all trees,
vegetation, electrical equipment, and other items from the wall
and the land.
3. The First Trial
In February 2002, Van Taylor filed a lawsuit against the
Ivies for (1) intentional infliction of emotional distress, (2)
trespass, (3) negligent trespass, (4) nuisance, and (5) quiet title.
(Super. Ct. Los Angeles County, No. BC268576). He sought a
declaration that he was the legal owner of the wall and the land
and that the Ivies had no right or interest in the property. He
sought compensatory and punitive damages and a permanent
5
injunction directing the Ivies to remove the trees, vegetation from
the land, and other items attached to the wall.
In April 2002, the Ivies filed a cross-complaint against Van
Taylor seeking declaratory relief and an equitable easement or
prescriptive easement. At the time, the Ivies did not claim an
ownership interest in the wall; the cross-complaint acknowledged
that Van Taylor’s predecessors who owned Lot 35 constructed the
wall. The Ivies’ request for an easement was limited to using the
wall and the land next to the wall to maintain the pear tree,
vegetation, and other attachments to the wall. They alleged that
they and the two prior owners of Lot 34 (the Heisers and the
Frattos) had used and maintained the land north of the wall
openly, continuously, and adversely for many years.
In February 2003, the court bifurcated the trial and heard
the equitable issues first, without a jury. In March 2003, after the
bench trial, the court made numerous factual findings, including
that (1) a prior owner of Lot 35 built the fence in the mid-1960s,
at or about the time the homes were constructed; (2) the owners
of Lot 34 had used and maintained the north side of the fence and
the narrow strip of land north of the wall for over 30 years; and
(3) the upright portion, or stem, of the wall was on Lot 35, while
the foundation extended up between four and five inches onto Lot
34.4
The judgment declared the fence a “party wall,” entitling
the Ivies to a nonexclusive easement to use and maintain the
wall and the land north of the wall. The court further found that
the Ivies and Van Taylor jointly owned the pear tree. The
4After the trial, the Ivies stated that they did not intend to pursue the
prescriptive easement.
6
judgment also awarded Van Taylor $500 in damages, but denied
the nuisance and trespass claims, request for injunctive relief,
and found all other issues moot. Van Taylor appealed the
judgment.5
4. Van Taylor I
Among his contentions on appeal, Van Taylor complained
that the trial court erred in finding that the wall was a “party
wall,” that the Ivies had failed to establish grounds for an
equitable easement, and that the court erred in failing to find
that the Ivies committed trespass or a nuisance. Van Taylor
further argued that he was entitled to an injunction and a
judgment on the Ivies’ prescriptive easement claim because the
Ivies had abandoned it.
This court affirmed in part6 and reversed in part, and
remanded the matter to the trial court. We concluded that the
5 In October 2004, while the appeal was pending, the Ivies filed a
separate lawsuit against Van Taylor (Super. Ct. Los Angeles County,
No. BC317765) asserting tort claims, alleging that in the fall of 2003
Van Taylor had poisoned the pear tree and other plants north of the
fence and that Van Taylor had harassed them. The Ivies also obtained
a restraining order against Van Taylor. Van Taylor filed a cross-
complaint against the Ivies alleging intentional infliction of emotional
distress, assault, trespass, nuisance, and sought an injunction based
on claims that in March 2003 the Ivies had attached a wooden lattice
to the block wall and that the pear tree, shrubs, and other items
continued to encroach on his property. The parties settled the Ivies’
complaint in BC317765. The trial court subsequently ordered all the
cases between the parties, including Van Taylor’s cross-complaint in
BC317765, consolidated and related for all purposes.
6This court affirmed the trial court’s order rejecting Van Taylor’s
emotional distress cause of action.
7
wall did not qualify as a “party wall” as a matter of law because
“it is not a wall common to adjoining buildings and does not
provide support for adjoining buildings.” We reversed the trial
court’s order for an easement for the Ivies and its summary
rejection of Van Taylor’s other claims. Finally, we stated that
because the Ivies had abandoned their cause of action for a
prescriptive easement, Van Taylor was entitled to judgment in
his favor on the claim.7
This court guided the trial court on remand. We stated that
Van Taylor’s ability to obtain injunctive relief would depend on
whether he could prove the torts of continuing trespass or
nuisance. And if shown, the trial court should then consider
whether to grant an injunction. We instructed the trial court to
consider the equities and the relative hardships to both parties
and then decide whether to issue an injunction, noting that the
trial court should address the question of an equitable easement
only if it denied an injunction. We also stated that the trial court
must decide whether to declare an equitable easement before
ruling on the merits of the quiet title cause of action.
5. The Second Trial
In 2007, the Ivies located their home’s original owner, Mrs.
June Heiser, who, along with her late husband, had purchased
7 In November 2005, after remand to the trial court, the Ivies filed a
motion for relief from default on their cause of action for a prescriptive
easement. Their attorney declared that she withdrew the claim in the
first trial after the trial court had announced its finding that the fence
was a party wall and that she did so because she mistakenly believed
that a prescriptive easement was duplicative of other relief awarded by
the court. The trial court granted the motion, which allowed the Ivies
to revive their claim.
8
the undeveloped Lot 34 in 1964. According to Mrs. Heiser, she
and her husband built the home, put in a pool, and moved into
the house in 1966. Mrs. Heiser could not recall whether the home
on Lot 35 had already been built when she and her husband built
their home on Lot 34, nor could she remember whether the wall
between the lots had already been constructed at the time. She
assumed that her husband had arranged to have the wall
constructed. She acknowledged, however, that the fences on the
other two sides of her property were constructed of different
material and in a different style than the wall between Lot 34
and Lot 35. She stated that she and her husband used their
backyard up to the wall, believing that everything enclosed in the
backyard was their property.
Van Taylor filed a motion for summary judgment. The trial
court granted the motion in part. The court concluded as a matter
of law that the Ivies could not prove that their use of the wall and
the land was hostile and under a claim of right, as necessary to
establish a prescriptive easement. The court also rejected the
Ivies’ request for an equitable easement, concluding that Van
Taylor had suffered more significant hardships than the Ivies.
Concerning the counts alleged in Van Taylor’s complaint, the
court denied the motion concluding that triable issues of fact
existed as to those claims.
Before the second trial, the court ruled that its order on the
prescriptive and equitable easement claims compelled the court
to enter judgment for Van Taylor on his quiet title claim. The
court also ruled that prior restraining orders issued against Van
Taylor effectively resolved Van Taylor’s assault claim. The court
bifurcated the trial on the remaining causes of action.
9
In October 2007, the case proceeded to a jury trial on Van
Taylor’s causes of action for trespass and nuisance. After hearing
the testimony and evidence, the jury returned a special verdict in
favor of the Ivies. In the subsequent bench trial, the trial court
granted Van Taylor a permanent injunction and required that
the Ivies remove certain items attached to the wall and other
items that had encroached onto the land. The trial court did not,
however, grant any monetary damages to Van Taylor. The Ivies
and Van Taylor appealed.
6. Van Taylor II
On appeal, Van Taylor assailed the court’s jury instructions
on his counts for trespass and nuisance, and the court’s order
preventing him from proceeding on his assault cause of action. In
the Ivies’ appeal, they challenged the court’s order granting
summary judgment, the order granting an injunction, and the
quiet title. They also argued that the evidence demonstrated they
were joint owners of the wall.
This court reversed and remanded. In Van Taylor II, we
concluded that Van Taylor was not entitled to a summary
judgment. Concerning the prescriptive easement, we concluded
that the trial court had misinterpreted the “adverse use” element
of the claim when it concluded that the Ivies could not prove their
entitlement to a prescriptive easement as a matter of law.8
8 We held that the trial court erred in finding that the Ivies could not
prove the “adverse use” based on the prior owner’s mistaken belief that
he owned the land. We pointed out: “use of the property under a
mistaken belief that he owned the property constitutes adverse use,
and his failure to affirmatively assert a hostile claim [to Van Taylor] is
irrelevant.”
10
Concerning the equitable easement, we held that a triable issue
of fact existed based on conflicting evidence “as to the extent to
which the Ivies’ use of Van Taylor’s property has interfered with
the use and enjoyment of his property, the diminution in value of
his property resulting from the Ivies’ use and other damages
caused by the Ivies’ use.” This court also reversed the judgment
for Van Taylor on his claim for quiet title. We further concluded
that the trial court improperly dismissed the assault and
intentional infliction of emotional distress claims based on an
erroneous application of collateral estoppel.
In addition, we also reversed the judgment for the Ivies on
the trespass and nuisance causes of action. We concluded that the
jury instruction and the special verdict form were prejudicially
misleading—that the jury instruction erroneously implied that to
prevail on his claim of trespass and nuisance, Van Taylor had to
prove that he owned, occupied, controlled, and exclusively
possessed the property. We also held that based on evidence:
“There can be no reasonable doubt that Van Taylor actually
occupies the property and that his possessory interest is
sufficient to maintain an action for trespass. It is undisputed that
the Ivies have encroached on the thin strip of Van Taylor’s land
north of the fence and that they intentionally entered the
property. It is also undisputed that vegetation from the Ivies’
pear tree has fallen on Van Taylor’s property south of the fence,
which provides another basis to establish” liability if the other
elements of the claims are met. Consequently, we concluded that
on remand, the trial court must instruct the jury that the first
element of trespass and nuisance relating to the ownership,
occupancy, or possession of the property was conclusively
established.
11
This court also held that the trial court erred in entering a
permanent injunction for Van Taylor because he had not
prevailed on any underlying tort cause of action in the jury trial.
We reiterated this court’s direction in Van Taylor I that the trial
court first must consider the relative hardships and decide
whether to issue an injunction and should address the question of
an equitable easement only if it denies an injunction. We held
that on remand, the trial court could award a permanent
injunction only if Van Taylor established the elements of a tort
cause of action and the trial court, after considering the relative
hardships, found grounds for equitable relief. Finally, we
observed that all the other contentions raised on appeal were
moot in light of this court’s conclusions.
7. The Third Trial
On remand, the trial court ordered that Van Taylor’s claims
for trespass, nuisance, and assault, and the Ivies’ prescriptive
easement claim, be tried to a jury, followed by a bench trial on
Van Taylor’s claim for quiet title and a permanent injunction and
the Ivies’ request for an equitable easement.
The jury trial began in February 2016. During his case in
chief, Van Taylor presented evidence that the vegetation,
including vines, plants, the pear tree, and other trees, concrete
pavers, a concrete curb, and dirt had been placed next to the land
on Lot 35. Van Taylor also claimed that in 2005, the Ivies or their
gardener had entered his property without his permission to trim
the pear tree.
Van Taylor further testified that before the Ivies purchased
the property, he had never been inside the backyard of Lot 34.
Van Taylor conceded that he had trimmed the trees and other
vegetation that had grown from Lot 34 over the wall into his
12
backyard. However, until the dispute arose with the Ivies, he did
not know that the trees and vegetation were growing on the wall
or on to the land immediately north of it. He was also unaware
that items were attached to the north face of the wall.
Van Taylor also presented evidence that he believed
showed the pear tree, other vegetation, roots, and water from the
Ivies’ landscaping had damaged the wall, the drain pipes on his
property, and the foundation of his house. Van Taylor presented
an expert engineer who estimated that the trees and vegetation
on Lot 34 caused $55,000 in damage to the wall and Van Taylor’s
home’s foundation.
The Ivies presented evidence that they and the prior
owners of Lot 34 were unaware of the legal boundary line’s
location between the lots. At the time of purchase, the Ivies were
informed that the block wall was a “common wall.” Until 2001, all
of the owners of Lot 34 assumed that they owned the land within
their enclosed backyard, and they used and maintained the wall
and the land immediately next to it. The Ivies also presented
evidence that in the 13 years before they purchased the property,
Van Taylor had never complained to the prior owners of Lot 34
about how they had used the wall or land next to it. The Ivies
also presented evidence that the only items they had placed on
the wall or land were the wooden lattice they attached to the wall
in 2003 and a sheet of fiberglass that they attached to the front
wrought iron gate in 2005.9 They also denied that they or their
gardener entered Van Taylor’s yard in 2005 to trim the pear tree;
9The fiberglass sheet was not attached to the wall. According to Van
Taylor, the fiberglass sheet blocked his view inside the Ivies’ backyard,
and it “crossed into” his property because it was positioned on the gate
about one inch from the wall.
13
the Ivies testified that the gardener remained on their property
when he trimmed the tree.
The jury also heard evidence concerning the parties’
respective ownership claims to the wall and its construction
method. Mr. Fratto, who sold the home to the Ivies, testified that
he never claimed to own the wall but assumed his property
extended to the wall’s face. Van Taylor presented evidence that
the wall was constructed of similar material and style as the
other walls enclosing his property; however, the other fences
enclosing the Ivies’ property did not match the wall in style or
construction. The court permitted the Ivies to read Mrs. Heiser’s
deposition testimony to the jury. The Ivies’ construction experts
opined that the construction method for the wall would likely
have required the coordination and cooperation of the owners of
Lot 34 and Lot 35.
As to his damages, Van Taylor presented evidence from his
real estate and property appraisal experts. Van Taylor’s
appraiser estimated that the reasonable rental value for the
property at issue, which he assumed was 462 square feet,
amounted to approximately $217.14 a month for a total of
$38,000 for a period between 2001 and 2015. Van Taylor’s real
estate expert testified that because of the litigation, Van Taylor
lost an opportunity to sell his home in 2006, and that the home
was worth $1,000,000 more in 2006 than in 2015.
The Ivies’ real estate expert disputed and contradicted Van
Taylor’s damage evidence. The expert opined that the diminution
in value of Van Taylor’s property and the land was approximately
$2,008 based on the value of the property and the size of the land:
19 square feet next to the wall running from the front gate to the
back of the lots.
14
Concerning Van Taylor’s assault cause of action, both Mr.
Ivie and Van Taylor testified that in August 2005, they were
involved in a confrontation in which they argued and shouted
threats and expletives at each other as they stood in front of their
respective homes. Neither man displayed a weapon nor used
threatening gestures, and they remained approximately 15 feet
apart throughout the confrontation. At the end of the
presentation of the evidence, the Ivies made an oral motion for
nonsuit on Van Taylor’s assault claim, which the court granted.
After the parties rested, the court instructed the jury.
Following this court’s directive in Van Taylor II, the trial court
instructed the jury that the first element of trespass and
nuisance had been conclusively established. In February 2017,
the jury returned a special verdict for Van Taylor on the trespass
and nuisance claims. The jury did not, however, make special
findings or identify the conduct that constituted trespass or
nuisance. The jury also returned a verdict for Van Taylor on the
Ivies’ prescriptive easement cause of action, awarded Van Taylor
$2,000 in economic damages, and denied him non-economic
damages and punitive damages.
On March 11, 2016, the court commenced the bench trial on
the equitable causes of action. The court indicated that although
it was bound by the jury’s factual determinations and would
consider the evidence presented in the jury trial relevant to the
equitable claims, it would accept additional evidence and
argument on the equitable claims. Van Taylor chose not to offer
any additional evidence. Van Taylor argued that the relative
hardships favored him because he believed he could never sell his
home if the court granted the Ivies an easement. The Ivies
presented evidence of their economic and non-economic hardships
15
if they had to build a new wall or move the trees, equipment, and
other vegetation on the land or attached to the wall. Their
experts also testified that building a new wall in the Ivies’
backyard would cost more than $150,000 and leave a portion of
the Ivies’ property inaccessible.
After both sides rested, the trial court issued its statement
of decision. The court granted Van Taylor an injunction in part,
issuing an order requiring the Ivies to remove the wooden lattice
they had attached to the fence in 2003. In addition, the court
ordered that the Ivies could not place new or additional
attachments to the wall but denied the injunction as to the other
items already on the land and attached to the wall. The court
rejected Van Taylor’s argument that the Ivies’ conduct could be
described as “willful.” The court found most of the items that Van
Taylor wanted the Ivies to remove had been placed on the wall
and land by the prior owners of Lot 34, who believed they had a
right to use the land next to the wall. As for the fiberglass that
the Ivies had placed on the front gate in 2005, the court
concluded that Van Taylor had not shown that the minimal
encroachment harmed him.
The trial court granted an equitable easement, permitting
the Ivies to retain the existing attachments to the wall and the
plants, trees, vegetation, and dirt on the land. On the issue of
damages, the court observed that Van Taylor had argued that he
had suffered significant damage in the jury trial but that the jury
had awarded him only $2,000. The court concluded that based on
the evidence presented, the $2,000 awarded by the jury
adequately compensated Van Taylor for the use of the property.
The court also rejected the Ivies’ request for a finding that
the wall was jointly owned. The court observed that such a
16
finding would be contrary to the evidence presented in the trial
and the prior appellate opinions in the case. Finally, the court
declined to award costs to either party.
In August 2016, the trial court entered the judgment. Van
Taylor subsequently filed a motion for a new trial and a JNOV.
Van Taylor, among various arguments, complained that the
damages were inadequate, that the jury’s verdicts were not
supported by the evidence, and that the court’s conclusions in the
bench trial were erroneous. The Ivies filed a motion for a JNOV,
assailing the jury’s verdict rejecting their prescriptive easement.
In February 2017, the trial court denied the motions,
concluding that neither Van Taylor nor the Ivies had
demonstrated that the verdicts lacked substantial evidentiary
support or that its orders were erroneous.
Van Taylor timely appealed, and the Ivies filed a timely
cross-appeal.
CONTENTIONS
On appeal, Van Taylor asserts that the trial court erred in
failing to grant him a new trial or a JNOV. Specifically, Van
Taylor argues that the jury’s damages award on his trespass and
nuisance claims was insufficient. He contends the jury should
have awarded him damages for rental value, compensation for
the diminution in value of his property, and his inability to sell
his home, as well as non-economic damages. He further
complains that the trial court erred in instructing the jury and
granting the Ivies a nonsuit on his assault cause of action.
Concerning the bench trial, Van Taylor claims that the trial
court: (1) ignored this court’s directives in Van Taylor II
concerning the order in which the trial court should consider the
equitable claims; (2) entered an order on the equitable claims
17
that conflicted with the jury’s verdict; and (3) erred in failing to
award him additional damages. Finally, Van Taylor contends he
was entitled to an award of litigation costs.
In the cross-appeal, the Ivies challenge the jury’s verdict for
Van Taylor on their cause of action for prescriptive easement and
the trial court’s conclusion that they did not have an ownership
interest in the wall.
We address the issues raised in the appeal and cross-appeal
seriatim.
DISCUSSION
1. Standards of Review
Motions for a new trial and JNOV constitute different
procedures for “obtain[ing] a judgment contrary to the verdict
rendered by a jury.” (Teitel v. First Los Angeles Bank (1991) 231
Cal. App. 3d 1593, 1602.)
A new trial motion provides the trial judge with discretion
to disbelieve witnesses, reweigh the evidence, and draw
reasonable inferences contrary to that of the jury. (Fountain
Valley Chateau Blanc Homeowner’s Assn. v. Department of
Veterans Affairs (1998) 67 Cal. App. 4th 743, 751 (Fountain
Valley).) The trial court’s decision to deny a new trial is reviewed
for an abuse of discretion, except that the factual determinations
are reviewed for substantial evidence. (Minnegren v. Nozar (2016)
4 Cal. App. 5th 500, 506.) Under the substantial evidence standard
of review, when the trier of fact’s determinations are attacked on
the ground that there is no substantial evidence to sustain them,
the power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will
18
support the fact finder’s determinations. (Bowers v. Bernards
(1984) 150 Cal. App. 3d 870, 873–874.) In addition, when two or
more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for
those of the trial court. (Ibid.) Applying the substantial evidence
standard of review, this court resolves every favorable inference
and all conflicts in the evidence in favor of the party who
prevailed on the issue. (See Kephart v. Genuity, Inc. (2006) 136
Cal. App. 4th 280, 291.)
In contrast, JNOV motions permit a party to prevail when
the evidence is legally insufficient to support the verdict.
(Fountain Valley, supra, 67 Cal.App.4th at p. 751.) Thus, a trial
court may grant a JNOV motion if there is no substantial
evidence to support the verdict. (Tognazzini v. San Luis Coastal
Unified School Dist. (2001) 86 Cal. App. 4th 1053, 1057–1058.) In
deciding whether to grant the motion, the trial court cannot
weigh the evidence or assess credibility. (Castro v. State of
California (1981) 114 Cal. App. 3d 503, 512.) The court views the
evidence in the light most favorable to the verdict, disregards
conflicting evidence, and indulges in every legitimate inference to
support the verdict. (Paykar Construction, Inc. v. Spilat
Construction Corp. (2001) 92 Cal. App. 4th 488, 493–494) “On
appeal, we determine de novo whether there is substantial
evidence to support the verdict and whether the moving party is
entitled to judgment in its favor as a matter of law.” (Id. at p.
494.)
2. Van Taylor’s Appeal
Before this court, Van Taylor claims that errors in the jury
and bench trials require reversal of the judgment and remand for
a new trial. As we shall explain, Van Taylor has failed to
19
demonstrate reversible error occurred during any phase of the
trial court proceedings.
2.1. Jury Trial Phase
In Van Taylor’s appeal from the jury trial, he complains
that the jury’s verdicts on the trespass and nuisance claims were
inadequate; he maintains that substantial evidence compelled an
award of additional damages. He also contends the court erred in
failing to give particular jury instructions and granting the Ivies
a nonsuit on his assault cause of action.
2.1.1. Substantial evidence supported the jury’s
award of damages on Van Taylor’s trespass and
nuisance claims.
Van Taylor assails the jury’s verdict awarding him only
$2,000 in damages on his trespass and nuisance causes of
actions. He argues that the trial court should have granted him a
new trial because the jury’s award reflects that it failed to
consider his inability to sell his house and the diminution in
value of his property. He also contends the jury should have
awarded him rental value for the land and the wall and an award
of non-economic damages. We disagree.
The trial court gave the parties a full and fair opportunity
to present their evidence during the jury trial. Van Taylor
presented expert opinion on the harm to his property and
evidence of his purported economic and non-economic damages.
He argued that his property’s value diminished by more than
$1,000,000 and asserted that he could not sell the home. He
sought an award for damage to the wall, his drain pipes, his
home, as well as lost rents and other fees to clean up and repair
the property.
20
The Ivies presented evidence and experts to counter and
contradict Van Taylor’s arguments and evidence. The Ivies’
experts testified that the Ivies’ use of the land and the wall did
not harm Van Taylor or damage his property. Moreover, the Ivies’
real estate experts assessed the diminution in value for the land
and wall approximately at $2,000, and they assailed Van Taylor’s
claim that he could not sell his home.
Van Taylor has not shown that the jury failed to consider
his evidence and arguments. Instead, based on the trial’s record,
it is clear that the jury rejected Van Taylor’s version of the case.
To the extent the evidence at trial conflicted, the jury resolved
the conflicts in the Ivies’ favor. The jury, acting as the trier of
fact, was free to discard facts inconsistent with its conclusion.
In addition, Van Taylor has not convinced us that the
evidence that the jury believed was incredible, unreasonable, or
improbable. The jury’s verdict awarding Van Taylor $2,000 was
consistent with the evidence presented. Moreover, we see no error
in the jury’s rejection of Van Taylor’s claim for additional
damages such as rental value or his contention that he could not
sell his home. He has also failed to present any persuasive
argument that the jury erred in failing to award any non-
economic damages or punitive damages.
“ ‘ “Only when there is a complete absence of probative facts
to support the conclusion reached does a reversible error
appear. … And the appellate court’s function is exhausted when
that evidentiary basis becomes apparent, it being immaterial
that the court might draw a contrary inference or feel that
another conclusion is more reasonable.” [Citation.]’ ” (Reynaud v.
Technicolor Creative Services USA, Inc. (2020) 46 Cal. App. 5th
1007, 1017.) Because substantial evidence supported the jury’s
21
verdict on the trespass and nuisance causes of action, we
conclude the trial court did not err in denying Van Taylor a new
trial or denying his motion for a JNOV on the claims.
2.1.2. Van Taylor abandoned his claim of error about
the jury instructions.
Rule 8.204(a)(1)(B) of the California Rules of Court
provides that each point in an appellate brief must be supported
by argument and, if possible, by the citation of authority. “An
appellant must provide an argument and legal authority to
support his contentions. This burden requires more than a mere
assertion that the judgment is wrong. ... It is not our place to
construct theories or arguments to undermine the judgment and
defeat the presumption of correctness. When an appellant ...
asserts [a point] but fails to support it with reasoned argument
and citations to authority, we treat the point as waived.
[Citation.]” (Benach v. County of Los Angeles (2007) 149
Cal. App. 4th 836, 852, fn. omitted; Landry v. Berryessa Union
School Dist. (1995) 39 Cal. App. 4th 691, 699–700 [“When an issue
is unsupported by pertinent or cognizable legal argument it may
be deemed abandoned and discussion by the reviewing court is
unnecessary.”].)
Van Taylor argues that the trial court erred when it
refused to give the jury particular legal instructions that he had
requested.10 However, Van Taylor abandoned any claim of error
10 Specifically he complains that the court should have given the
following special instructions: No. 9: the definition of adverse
possession; No. 15: Civil Code section 3517-wrongdoers cannot take
advantage of own wrong; No. 22: damages for restoration and market
value loss from trespass; No. 24: liability for success owners for
nuisance created by prior owner; No. 29: emotional distress damages
22
as to these instructions because he did not present any specific
argument supported by references to the law or evidence as to
why the court erred in failing to give them. Consequently, we do
not reach the merits of his complaints about the jury instructions.
2.1.3. The trial court properly granted a nonsuit for
the Ivies on Van Taylor’s assault cause of action.
Van Taylor’s assault cause of action was based on an
August 2005 confrontation between Van Taylor and Mr. Ivie. The
undisputed evidence presented at trial showed that Van Taylor
and Mr. Ivie shouted threats and expletives at each other as they
stood at least 15 feet apart in front of their respective homes.
They had no physical contact during the incident, and neither
man displayed a weapon or used threatening gestures. At the end
of the presentation of the evidence, the trial court granted the
Ivies’ motion for nonsuit on the assault cause of action.
On appeal, Van Taylor argues that he presented sufficient
evidence to submit the claim to the jury, and thus, the court erred
in granting a nonsuit. He also complains that the trial court
erred by applying the criminal law definition of assault and erred
in failing to consider his fear of anticipated harm during the
confrontation. We disagree.
A defendant is entitled to a nonsuit if the evidence is
insufficient for a jury to find in the plaintiff’s favor. (Code Civ.
allowed for nuisance; No. 34: damages allowed for unanticipated injury
in tort; No. 35: emotional distress damages for trespass and nuisance;
No. 36: flexibility in awarding emotional distress damages for trespass;
No. 37: Civil Code section 3334-loss of use damages and cost of
restoration damages; No. 52: Civil Code section 3294(a)-punitive
damages allowed for oppressive and malicious conduct; and No. 53:
definition of malice in encroachment cases.
23
Proc., § 581c, subd. (a).) “In determining whether the plaintiff’s
evidence is sufficient, the court may not weigh the evidence or
consider the credibility of witnesses. Instead, the evidence most
favorable to plaintiff must be accepted as true and conflicting
evidence must be disregarded.” (Campbell v. General Motors
Corp. (1982) 32 Cal. 3d 112, 118.)
“ ‘ “[A]n assault is a demonstration of an unlawful intent by
one person to inflict immediate injury on the person of another
then present.” ’ ” (Plotnik v. Meihaus (2012) 208 Cal. App. 4th
1590, 1604 (Plotnik), quoting Lowry v. Standard Oil Co. (1944) 63
Cal. App. 2d 1, 6–7.) To prevail, the plaintiff must prove, among
other elements, that the plaintiff reasonably believed that the
defendant was about to touch the plaintiff in a harmful or
offensive manner or it reasonably appeared to the plaintiff that
the defendant was about to carry out the threat. (See CACI No.
1301; Plotnik, at pp.1603–1604.)
As the appellate court observed in Plotnik, in tort actions
for assault, the courts assume that the Penal Code section 240
definition of assault applies. (Plotnik, supra, 208 Cal.App.4th at
pp. 1603–1604; see also 5 Witkin, Summary of Cal. Law (10th ed.
2005) Torts, § 381, p. 598.) Penal Code section 240 defines the
crime of assault as “an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.”
Furthermore, although apprehension of that contact is the basis
of assault, “ ‘[m]ere words, however threatening, will not amount
to an assault. [Citations.]’ (5 Witkin, Summary of Cal. Law,
supra, Torts, § 383, pp. 599–600.)” (Plotnik, at p. 1604.)
In Plotnik, for example, the defendants aggressively
approached the plaintiff and threatened to kill him and the
family dog. Defendants did not, however, display a weapon or
24
otherwise attempt to touch the plaintiff. Although the
defendants’ words were aggressive and threatening, neither
committed an act that could inflict immediate injury.
Consequently, the court concluded the evidence was legally
insufficient to support a judgment for the plaintiff on the assault
cause of action. (Plotnik, supra, 208 Cal.App.4th p. 1604.)
Following Plotnik, we conclude that the trial court properly
considered the criminal law definition of assault in assessing Van
Taylor’s claim. In addition, even viewing the evidence in a light
favorable to Van Taylor and accepting it as true, Van Taylor
failed to present sufficient evidence of the required elements of
the assault for a jury to find in his favor. As in Plotnik, the
situation here did not involve physical contact or weapons. Mr.
Ivie directed angry words at Van Taylor from 15 feet away. Van
Taylor did not present any evidence that Mr. Ivie could inflict
immediate injury, nor did Van Taylor show that his belief that
Mr. Ivie was about to touch him in a harmful or offensive manner
was reasonable. Thus, the trial court properly granted the
nonsuit on the assault cause of action.
2.2. Bench Trial Phase
Van Taylor assails the order in which the trial court
considered the issues in the bench trial. He claims that the trial
court violated this court’s prior directives in Van Taylor II and
argues the trial court’s statement of decision conflicted with the
jury’s verdict. Finally, he complains the trial court should have
awarded litigation costs.
25
2.2.1. The trial court’s conduct and consideration of
the equitable claims did not ignore this court’s
instructions.
In Van Taylor II, we held that on remand, the trial court
“must consider the relative hardships to the parties and decide
whether to issue an injunction before deciding whether to declare
an equitable easement in favor of the Ivies, and that the court
could declare an equitable easement in favor of the Ivies only if it
denied an injunction.”
Here, Van Taylor asserts that the trial court failed to
consider his hardships and erred in failing to consider his claim
for injunctive relief before considering the Ivies’ claim for an
equitable easement. Van Taylor’s assertions fail.
Based on the bench trial record, we are not convinced that
the trial court disregarded this court’s directives, ignored the
evidence, or that the trial court’s method of considering the
equitable claims prejudiced Van Taylor. Both the trial court’s
remarks during the bench trial and statement of decision disclose
that the court considered the evidence and arguments Van Taylor
presented in support of the injunction before turning to the Ivies’
equitable claims. At the outset of the bench trial, the court stated
that it would consider all the evidence Van Taylor presented
during the jury trial as to his hardships. The court also offered
Van Taylor the opportunity, which he expressly declined, to
present additional evidence of his hardships. Instead, Van Taylor
relied on the evidence presented during the jury trial. He argued
that the damage to the property, its diminution in value, and his
alleged inability to sell his house supported his request for a
permanent injunction. The reporter’s transcript of the bench trial
26
shows that the trial court properly considered that evidence and
Van Taylor’s arguments.
Furthermore, as the trial court’s statement of decision
shows, the court addressed Van Taylor’s request for an injunction
first; it awarded him a partial injunction on the wooden lattice
that the Ivies attached to the wall in 2003, and it issued an order
preventing the Ivies from placing any new items on the land or
attaching additional items to the wall. The court’s decision also
described Van Taylor’s evidence of hardships before describing
the Ivies’ evidence. The court’s analysis thus implies that the
court weighed the relative hardships regarding the injunction
prior to considering the request for an easement.
In short, Van Taylor has not convinced us that the trial
court ignored his evidence or arguments. Likewise, he has not
demonstrated that the order in which the trial court considered
the claims violated this court’s directives.
2.2.2. The court’s statement of decision did not
conflict with the jury’s verdicts.
Van Taylor argues that based on the jury’s verdicts on the
trespass and nuisance causes of action the court could not, as a
matter of law, consider the Ivies’ hardships on the equitable
claims, and he was entitled to judgment on those claims.
Specifically, he maintains that the court’s failure to enter
judgment in his favor on all the equitable causes of action and the
court’s consideration of the Ivies’ hardships conflicted with the
jury’s verdicts. Neither of these contentions has merit.
27
a. The court properly considered
the Ivies’ hardships.
In Van Taylor’s view, the court should not have considered
the Ivies’ hardships when deciding the equitable claims. He
points out that under Christensen v. Tucker (1952) 114
Cal. App. 2d 554, 562 (Christensen), defendants who “willfully”
trespass cannot ask that the trial court consider their hardships
in determining whether to grant them equitable relief. Van
Taylor argues that, by concluding that the Ivies trespassed, the
jury necessarily found that the Ivies’ conduct was “willful,” and
thus the court erred in considering their hardships. In our view,
Van Taylor misinterprets the law, and the evidence in this case
does not support his position.
In Christensen, the appellate court identified the conditions
for the trial court to exercise its discretion to issue an equitable
easement, including that the “[d]efendant must be innocent—the
encroachment must not be the result of defendant’s willful act,
and perhaps not the result of defendant’s negligence. In this
same connection the court should weigh the plaintiff’s conduct to
ascertain if he is in any way responsible for the situation.”
(Christensen, supra, 114 Cal.App.2d at p. 563.)
Christensen cannot be viewed in isolation. Even before
Christensen, California courts recognized that consideration of an
encroacher’s hardships was permitted where the trespass
resulted from inadvertence or mistake. (See Ukhtomski v. Tioga
Mutual Water Co. (1936) 12 Cal. App. 2d 726, 728–729; Blackfield
v. Thomas Allec Corp. (1932) 128 Cal. App. 348, 350
[characterizing the defendant’s trespass as an “innocent
mistake”]; Morgan v. Veach (1943) 59 Cal. App. 2d 682, 690
[describing the defendant’s “ ‘innocent mistake or oversight’ ”];
28
Felsenthal v. Warring (1919) 40 Cal. App. 119, 128 [stating that
the trespass must be the result of an “innocent mistake of fact”].)
In addition, cases after Christensen recognized that trial
courts have broad discretion to determine an encroacher’s
“innocence,” based on the evidence in the case. For example, in
Linthicum v. Butterfield (2009) 175 Cal. App. 4th 259, 266
(Linthicum), the court recognized an element of “willfulness” of
the encroaching party exists in every case of encroachment in the
sense that the encroaching party intended to install a house or a
fence and intended to use the property in dispute. Moreover,
arguably in every case of trespass, the encroaching party was
“negligent” in some sense if, for instance, it failed to have a
property line survey done before installing the improvements.
Thus, the court held: “The question whether defendant’s conduct
is so egregious as to be willful or whether the quantum of
defendant’s negligence is so great as to justify an injunction is a
matter best left to the sound discretion of the trial court.” (Id. at
p. 267)
Based on our interpretation of the law and the evidence in
this case, we conclude that the jury’s verdict for Van Taylor on
the trespass claim did not preclude the trial court from exercising
its discretion to consider the Ivies’ hardships. The jury’s verdicts
did not identify which of the Ivies’ actions, if any, were “willful.”
Indeed, given the evidence presented at trial, the jury could have
based its verdicts on conduct that was not willful. The evidence
showed that many encroaching actions were inadvertent or the
result of an innocent mistake of fact. The prior owners of Lot 34
placed most of the items encroaching on Van Taylor’s property
under the belief that they owned the land and had an interest in
the wall.
29
Moreover, to the extent that the Ivies engaged in conduct
that could arguably be characterized as “willful,” such as
attaching the wooden lattice to the wall and the fiberglass to the
front gate, Van Taylor did not demonstrate prejudicial, reversible
error. The court granted the injunction requiring the Ivies to
remove the lattice. The court denied the injunction as to the
fiberglass, finding that the encroachment was so minimal that it
did not harm Van Taylor. Accordingly, given the evidence and the
verdicts, we conclude the court did not err in considering the
Ivies’ hardships on the equitable claims.
b. The jury’s verdicts did not
require the court to enter
judgment for Van Taylor on his
equitable claims.
Where, as here, the legal claims are first tried by a jury and
equitable claims later tried by a judge, the trial court must follow
the jury’s factual determinations on the issues of fact litigated
and necessary to the result. (Hoopes v. Dolan (2008) 168
Cal. App. 4th 146, 158, citing Los Angeles Police Protective League
v. Gates (9th Cir. 1993) 995 F.2d 1469, 1473.) But, the court’s
legal determinations remain separate. (Hoopes, at p. 158.)
Van Taylor contends that the jury’s verdicts on the trespass
and nuisance causes of action entitled him to judgment, as
matter of law, on his quiet title claim and a permanent
injunction. We disagree.
Although the jury found for Van Taylor on the prescriptive
easement, trespass, and nuisance claims, the jury was not
presented with a special verdict in which they were required to
identify the tortious conduct. The verdicts did not identify any
specific factual basis of the jury’s decision. Thus, nothing in the
30
jury’s verdicts conclusively determined Van Taylor’s entitlement
to his quiet title or the injunction. Indeed, the legal causes of
action and equitable claims are distinct with separate legal
elements. For example, the injunction request required the court
to weigh the parties’ respective hardships—a matter outside the
province of the jury’s determination. Thus, we find no inherent
inconsistency between the court’s ruling on the equitable claims
and the jury’s verdicts. Van Taylor has not shown as a matter of
law that the jury’s verdicts compelled the court to enter a
judgment for Van Taylor on his equitable claims.
2.2.3. The court did not err in failing to award Van
Taylor damages when it granted the Ivies an
equitable easement.
Van Taylor asserts that because the court granted the Ivies
an equitable easement, the court was also required to award him
damages in addition to those the jury awarded for the trespass.
Not so.
In Linthicum, the appellate court held the trial court is not
required to order additional damages when the trial court creates
an easement by denying an injunction. (Linthicum, supra, 175
Cal.App.4th at p. 268 [awarding an equitable easement, but not
an award further damages to the defendant]; see also Tashakori
v. Lakis (2011) 196 Cal. App. 4th 1003, 1014 [holding that the trial
court did not err when it failed to award any damages to the
plaintiffs in compensation for the equitable easement on their
property].)
The Linthicum court also recognized that the trial court
could not award damages in the abstract. Even where the court
grants an easement to the defendant, the plaintiff must prove
31
damages. (See Wardrop v. City of Manhattan Beach (1958) 160
Cal. App. 2d 779, 791.)
Here the court permitted Van Taylor to present evidence
and argument on his damages, including those he would incur if
the court granted the Ivies an easement. The court’s statement of
decision reflects that the court determined that Van Taylor had
not carried his burden to prove that he was entitled to any
damages in addition to those that the jury had already awarded.
The evidence showed the Ivies’ use of the land and the north face
of the wall did not cause Van Taylor substantial harm. Under the
circumstances, the trial court did not err in failing to award any
additional damages to Van Taylor.
2.2.4. The trial court did not err in failing to award
Van Taylor costs.
Under Code of Civil Procedure section 1032, a “prevailing
party” is entitled to recover costs “as a matter of right” unless
otherwise provided by statute. (See Code Civ. Proc., § 1032, subd.
(b).) If, however, a plaintiff brings an action in superior court and
recovers a judgment within the $25,000 jurisdictional limit of the
limited jurisdiction court, the trial court has the discretion to
deny costs to the plaintiff. (Code Civ. Proc., § 1033, subd. (a);
Chavez v. City of Los Angeles (2010) 47 Cal. 4th 970, 975
[recognizing that if the prevailing party recovers a judgment that
could have been rendered in a limited civil case, Code of Civil
Procedure section 1033, subdivision (a) provides that costs or any
portion of claimed costs shall be as determined by the court in its
discretion].)
Likewise, where a party obtains relief in equity,
determining whether to award costs is within the discretion of
the court under Code of Civil Procedure section 1032, subdivision
32
(a)(4). (See Code Civ. Proc., § 1032, subd. (a)(4); Wakefield v.
Bohlin (2006) 145 Cal. App. 4th 963, 977 [section 1032, subdivision
(a)(4) operates as an express statutory exception to the general
rule that a prevailing party is entitled to costs as a matter of
right], disapproved on other grounds in Goodman v. Lozano
(2010) 47 Cal. 4th 1327, 1338.)
We review the trial court’s denial of costs under Code of
Civil Procedure sections 1033, subdivision (a) and 1032,
subdivision (a)(4) for abuse of discretion. (See Dorman v. DWLC
Corp. (1995) 35 Cal. App. 4th 1808, 1815.)
Van Taylor has not demonstrated any error concerning the
court’s decision denying him litigation costs. First, contrary to his
argument on appeal, Van Taylor was not entitled to an award of
costs as a matter of law. In this case, the $2,000 award was
within jurisdictional amount of the limited civil courts, and the
relief the court awarded in the bench trial was equitable. Thus,
the request for costs was governed by the Code of Civil Procedure
sections that granted the trial court discretion to deny costs.
Second, Van Taylor has not shown that the court abused its
discretion in denying costs. As the court’s order reflects, the
results of the trial were mixed. Neither side achieved all the
relief they sought. The court’s order further reflects that it
considered the parties’ claims and litigation objectives, deciding
to deny costs. Under the circumstances, the court’s order does not
exceed the bounds of reason.
3. The Ivies’ Cross-Appeal
In the cross-appeal, the Ivies challenge the jury’s verdict for
Van Taylor on their cause of action for a prescriptive easement
and the court’s finding that they did not have an ownership
interest in the wall.
33
3.1. Jury Trial Phase
The Ivies argue that the trial court erred in failing to grant
them a JNOV on their cause of action for a prescriptive easement
on the land and wall. They assert that substantial evidence did
not support the jury’s verdict for Van Taylor on the claim.
“ ‘ To establish the elements of a prescriptive easement, the
claimant must prove use of the property, for the statutory period
of five years, which use has been (1) open and notorious; (2)
continuous and uninterrupted; (3) hostile to the true owner; and
(4) under claim of right.’ ” (Main Street Plaza v. Cartwright &
Main, LLC (2011) 194 Cal. App. 4th 1044, 1054; Code Civ. Proc., §
321.) These elements are designed to ensure “ ‘that the owner of
the real property which is being encroached upon has actual or
constructive notice of the adverse use and to provide sufficient
time to take necessary action to prevent that adverse use from
ripening into a prescriptive easement.’ ” (Brewer v. Murphy
(2008) 161 Cal. App. 4th 928, 938–939 (Brewer).)
Constructive notice may arise from “ ‘actual notice of
circumstances sufficient to put a prudent man upon inquiry as to
a particular fact.’ ” (Field-Escandon v. DeMann (1988) 204
Cal. App. 3d 228, 236.) “To satisfy this requirement, the adverse
use must be made in such a way that a reasonably diligent owner
would learn of its existence, nature, and extent. “Open” generally
means that the use is not made in secret or stealthily. It may also
mean that it is visible or apparent. “Notorious” generally means
that the use is actually known to the owner, or is widely known
in the neighborhood.” (Rest.3d Property, Servitudes, § 2.17, com.
h. pp. 276, 278.) Prescriptive rights do not arise if the adverse use
was hidden, concealed, or clandestine. (Connolly v. McDermott
(1984) 162 Cal. App. 3d 973, 977.)
34
A finding of a prescriptive easement must be based on clear
and convincing evidence. (Brewer, supra, 161 Cal.App.4th at p.
938.) The evidence must be “ ‘ “ ‘so clear as to leave no substantial
doubt’; ‘sufficiently strong to command the unhesitating assent of
every reasonable mind.’ ” ’ ” (Amerigraphics, Inc. v. Mercury
Casualty Co. (2010) 182 Cal. App. 4th 1538, 1558.) On appeal, we
review a finding that a prescriptive easement does exist, or does
not exist, by determining whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true. (See
Conservatorship of O.B. (2020) 9 Cal. 5th 989, 995–996;
Felgenhauer v. Soni (2004) 121 Cal. App. 4th 445, 449.)
The Ivies contend they proved the elements of the
prescriptive easement as to the land and the wall based on (1) the
testimony of the prior owners of Lot 34 that they used the land
and the wall for an uninterrupted period of more than five years
before the dispute arose; and (2) evidence that Van Taylor was
aware of their use and did not complain about it.
Even if the Ivies proved the adverse use of the property for
the requisite five-year statutory period by “tacking”11 their use to
the prior owners’ use and they presented evidence establishing
all the other elements, the evidence that the use was “open and
notorious” was not clear or convincing.
11“Periods of prescriptive use by successive owners of the dominant
estate can be tacked together … .” (Windsor Pacific v. Samwood Co.,
Inc. (2013) 213 Cal. App. 4th 263, 264; see also Miller v. Johnston (1969)
270 Cal. App. 2d 289, 295 [party seeking to establish prescriptive
easement is “entitled to take advantage of the use made of the property
in dispute by [his or her] predecessors in interest”].)
35
Based on the evidence presented at trial, the jury could
have reasonably concluded that the Ivies’ use of the land and wall
was not open or notorious because Van Taylor did not have actual
or constructive notice of it. First, they did not present evidence to
prove that Van Taylor had actual notice of their use of the land
and wall, nor did they refute his testimony to the contrary. Van
Taylor testified that he could not see into their yard and testified
that before early 2001 he had never been inside the Ivies’
backyard. He told the jury that he trimmed the Ivies’ tree from
his side of the wall and believed that the vegetation was not
planted on the land. He stated that before the dispute arose in
this case, he was unaware that the Ivies or the prior owners had
placed anything on the land or attached anything directly to the
wall. The Ivies have not shown that Van Taylor’s testimony was
incredible or inherently improbable. Thus, as the trier of fact, the
jury acted within its authority to believe Van Taylor’s account,
and therefore conclude he lacked actual knowledge of their
adverse use of the land and wall.
In addition, the evidence on the issue of constructive notice
supports the verdict for Van Taylor. Given that the land at issue
is only three to four inches wide, is immediately next to the wall,
and is surrounded by fencing and vegetation, a reasonably
diligent owner might not be aware of any adverse encroachment
onto the land or use of the wall. Moreover, the Ivies did not
present evidence that their use of the land and wall was known
in the neighborhood.
Accordingly, we conclude substantial evidence supports the
jury’s verdict for Van Taylor on the Ivies’ prescriptive easement
cause of action, and the trial court did not err in denying the Ivies
a JNOV on that cause of action.
36
3.2. Bench Trial Phase
The Ivies’ challenge to the court’s order from the bench trial
focuses on the court’s finding that the evidence did not support
the conclusion that the wall was a “joint wall,” and the court’s
additional observation that “such a finding would be contrary to
the prior appellate decisions issued in this matter.” The Ivies
assert that they established an ownership interest in the wall,
and thus, this court should reverse the injunction requiring that
they remove the wood lattice from the wall and preventing them
from attaching any new items to the wall.
3.2.1. The Ivies did not demonstrate that the trial
court misinterpreted the prior appellate
opinions.
The Ivies argue that the trial court misread this court’s
opinions in Van Taylor I and Van Taylor II and thus inferred a
conclusion about the wall ownership that this court did not
previously reach.
In our view, this court’s opinions in Van Taylor I and Van
Taylor II are open to the interpretation the trial court gave them
in the bench trial. Preliminarily, we observe that this court’s
prior opinions cannot be considered in a vacuum; they must be
viewed in the context within which the parties litigated and
presented their respective cases during the first and second
trials.
Initially, the Ivies did not claim an ownership interest in
the wall and did not contest Van Taylor’s ownership. In their
cross-complaint, they acknowledged that the wall belonged to
Van Taylor. The Ivies’ counsel also conceded that they did not
present evidence supporting their ownership claim at the first
trial. During the first trial the court found the original owner of
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Van Taylor’s property built the wall. After that, concluding that
the wall did not qualify as a “party wall” as a matter of law, this
court in Van Taylor I did not revisit the trial court’s other
findings concerning the wall. Thus, in light of the first trial’s
posture—the pleadings and the trial court’s findings—this court’s
opinion in Van Taylor I could be interpreted in many ways,
including, as the trial court did here.
Van Taylor II is also open to the interpretation that the
trial court gave it in the statement of decision. During the second
trial, the Ivies claimed they had a joint ownership interest in the
wall based on the original owner’s, Mrs. Heiser, statements about
the wall’s construction, and the fact that the foundation was
partially on Lot 34. After that, on appeal in Van Taylor II, the
Ivies argued, among other claims of error, that the trial court
erred in failing to find they were joint owners of the wall.
In Van Taylor II, this court acknowledged the Ivies claimed
an ownership interest to the wall. This court did not, however,
explicitly address the issue. Instead, this court broadly concluded
that Van Taylor had established the first element of trespass for
the retrial. Thus, this court directed that on remand, the jury
should be instructed that Van Taylor owned, occupied, controlled,
or had the exclusive right to possess the property. Our conclusion
about the property was not confined to the land; in this context,
“property” could be interpreted to include the land and the wall.
Subsequently, in the opinion, this court stated that all of the
Ivies’ other contentions, which included their claim of joint
ownership of the wall, were moot in light of the conclusions in the
opinion. Thus, read as a whole, the opinion in Van Taylor II can
be construed as implicitly rejecting the Ivies’ claim of joint
ownership of the wall. Indeed, the trial court’s comments during
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the third trial reflect that the court read Van Taylor II to hold
that Van Taylor had established that he owned the land and the
wall—that ownership interest in the land and the wall had been
previously established in the second trial and affirmed in Van
Taylor II.
Thus, we conclude that this court’s opinions in Van Taylor I
and Van Taylor II are susceptible to more than one
interpretation, including the one the trial court applied in its
statement of decision. Consequently, the Ivies have not shown
reversible error concerning the trial court’s interpretation of this
court’s prior opinions.
3.2.2. The evidence presented in this trial supported
the trial court’s finding on the ownership of the
wall.
In any event, even if we determined that the trial court had
misconstrued our prior opinions concerning the wall’s ownership,
we would nonetheless conclude that the court did not err finding
that the Ivies had failed to prove joint ownership of the wall in
the third trial.
The evidence presented at trial on the ownership of the
wall conflicted. On the one hand, Van Taylor claimed exclusive
ownership based on (1) evidence he presented during the first
trial as reflected in the trial court’s decision that the original
owner of Lot 35 built the wall; (2) the fact that the stem of the
wall and most of the foundation is located on Lot 35; (3) the fact
that the construction, style, and appearance of wall matched the
other walls on Lot 35; and (4) that the other fences in the Ivies
backyard did not match the wall. On the other hand, the Ivies
claimed joint ownership based on (1) the evidence from Mrs.
Heiser; (2) the fact that the four to six inches of the wall’s
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foundation are on Lot 34; and (3) the fact that according to their
experts, the wall must have been constructed with the
cooperation of the owners of both lots.
The trial court’s decision reflects that it resolved this
conflict in the evidence in favor of Van Taylor. Based on our
review of the record and considering the deferential standard of
appellate review, we cannot say that the court erred in resolving
the dispute. The evidence supporting the trial’s conclusion is
substantial, and thus the court acted within its power as the trier
of fact in deciding that the wall was not jointly owned.12
In view of the foregoing, we conclude that the Ivies have
not demonstrated that the trial court committed reversible error
in the bench trial.
12 In reaching this conclusion, we reject the Ivies’ request raised in a
footnote in their opening brief in the cross-appeal that this matter
should be returned to the trial court to consider the application of Civil
Code section 841, governing the rights and responsibilities of neighbors
with respect to “division walls.” The Ivies do not present any argument
that section 841, which was not operative until more than 10 years
after the lawsuit was filed in this case, should be given retroactive
effect.
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DISPOSITION
The judgment and order denying the parties’ requests for
JNOV are affirmed. Each party shall pay its own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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