Aragon v. Appling

Filed 8/12/09 Aragon v. Appling CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

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

Irsfeld, Irsfeld & Younger and Peter C. Wright for Plaintiffs and Appellants.

Hanger, Steinberg, Shapiro & Ash and Marc S. Shapiro for Defendants and Respondents.

______________________

INTRODUCTION

Plaintiffs Richard J. and Marilyn Aragon appeal from a judgment in favor of defendants Patricia J. Appling and Ralph Fields in plaintiffs action for adverse possession and prescriptive easement over defendants property. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1962, the owner of a large parcel of land on Alessandro Avenue in Temple City began cutting it into five lots. In 1968, Temple City approved the plot plan for the lots, identified on the assessors map as lots 30, 32, 27, 33 and 42. There was a recorded easement for a driveway to allow access to each lot from Alessandro Avenue. The easement was approximately 17 feet wide, beginning at Alessandro Avenue, between lots 30 and 42. Then it narrowed to 9 feet as it passed between lots 32 and 33. It ended at the western property line for lot 27 that runs along the eastern boundaries of lots 32 and 33.

In 1978, the Aragons purchased lot 27 (the Aragon lot), also known as 5328 Alessandro Avenue. A house built around 1924 was already on the lot. There was also a carport attached to the house and a swimming pool, which the Aragons believed were on the property they were purchasing. Access to the Aragon lot was available from Alessandro Avenue over the driveway easement to the western boundary and also from the alley along the eastern boundary of the lot over a driveway which ended at a garage.

In 1982, defendant Patricia J. Appling (Appling) purchased lot 33 (the Appling lot), also known as 5326 Alessandro Avenue. On the lot was a house built in 1963. A fence ran along the end of the Aragons carport down the side of the Appling lot that adjoined part of the Aragon lot. Appling thought that the fence was on her property and the paved area of the driveway along the eastern side of the fence was part of the Aragon lot. Over the years, she maintained and replaced the fence. Defendant Richard Fields (Fields) joined Appling as a resident of the house in 2003.

In 2005, Appling and Fields had their land surveyed after they began to suspect that there was a boundary line discrepancy between their lot and the Aragon lot. The survey showed that the Aragons were using a rectangular strip of land on the Appling lot as their driveway and about half the parking space in their carport. An awning from the carport extended over the fence on the Appling lot. The strip of land was about 10.75 feet wide, ran the entire length of the eastern boundary of the Appling lot and was approximately 671.875 square feet in size (the disputed area). In addition, as part of their driveway, the Aragons were using a curved area near the northeast corner of the Appling lot that was paved but was not a part of the recorded driveway easement (the disputed curve). The Aragons had used the disputed area and disputed curve from the time they purchased the Aragon lot in 1978, and the carport and disputed curve had been in place prior to their purchase.

For several months after the survey, Appling and Fields sent letters to the Aragons demanding that they cease using Appling and Fields property. Finally, Fields took actions which blocked the Aragons access to a portion of the carport and to the disputed curve.

The Aragons filed suit against Appling and Fields, setting forth causes of action for quiet title by adverse possession of the disputed area, grant of an equitable servitude over the disputed area, implied easement, easement by necessity, quiet title by a prescriptive easement over the disputed curve, and trespass to real property by defendants over the disputed area and the disputed curve. Appling filed a cross-complaint for quiet title, declaratory relief, trespass, negligence, nuisance and injunctive relief.

The sole factual issue at trial as to the adverse possession cause of action was whether the Aragons or Appling and Fields had paid the property taxes on the disputed area. The Aragons expert, Robert Wolfsohn (Wolfsohn), was a former employee of the assessors office who served as an assessor representative and was not an appraiser. He testified that in his opinion, the legal description of the Appling lot in Applings original grant deed and that of the Aragon lot in the Aragons original grant deed were equivalent to the assessors shorthand legal descriptions on the respective property tax bill for each piece of property. Wolfsohn testified that the description of the Aragon lot did not include the disputed area; rather, the disputed area was included in the description of the Appling lot. In his review of the records for the two properties, Wolfsohn said that he never saw any transfer of land from the Appling lot to the Aragon lot, any increase in the property tax bill for the Aragon lot reflecting an additional square footage of raw land equivalent to the square footage of the disputed area, or any change in the legal description of either property from the date of their creation to the time of his testimony. According to Wolfsohn, the disputed area had always been included in the legal description of the Appling lot.

Wolfsohn testified that the assessor[1] discovered the carport when he went to the Aragon lot in 1964 to reassess the property after a shed was removed. As a result, Wolfsohn said, the assessor added value for the carport as an improvement to the property tax assessment for the Aragon lot. In response to questions about whether the added assessment included the raw land constituting the disputed area, Wolfsohn testified that the assessor would have known the property line for the Aragon lot was straight from looking at a map. Wolfsohn explained that the assessors natural inference would be, and it is possible the assessor would have assumed, that the Aragon lots property line was a straight line from the end of the carport in the disputed area to the opposite side of the Aragon lot, which property line would include the disputed area as part of the land assessed to the Aragon lot. He also testified that the assessor would have gotten the initial appraisal of the Aragon lot at the time the lot was cut, and the 1964 assessment appeared to be the first assessment after the cut. Wolfsohn stated that, at the time all five lots were cut, the lots were all given the same value, $5500. Finally, Wolfsohn testified that in his opinion, since 1963 when the Aragon lot was first assessed, the disputed area was taxed to that lot.

Appling and Fields expert, Todd Cave (Cave), was an appraiser. He testified that in his opinion, during the relevant time period, the Aragons paid the taxes on the Aragon lot and Appling and Fields paid the taxes on the Appling lot, including the disputed area. When asked the basis for his opinion that Appling and Fields had been consistently taxed on the disputed area, Cave responded that [t]heres no reason to believe . . . that its otherwise. Specifically, Cave said, in the records he reviewed, there was no indication of a lot line adjustment, a quitclaim deed, a grant deed or any such transfer of the disputed area by Appling and Fields or to the Aragons that would change the taxation of the property. As the result of Caves review of tax records from 1983 to 2005, he said that the ratio of the taxes on the land of the two lots had not changed. Cave testified that each lot had been taxed consistent with its legal description. He opined that the Aragons carport appeared as a taxed improvement on their tax bill in 1964 as the result of a field assessment at the Aragon lot, but there was no notation of any added raw land.

Immediately after Cave gave his opinion about the carport being added as an improvement in 1964, the Aragons counsel objected to the entire line of questioning. He advised the trial court that counsel for both parties jointly subpoenaed records from the county assessor and received them jointly. Well after receipt of the records, the Aragons attorney took Caves deposition. The Aragons counsel represented that, at the time of the deposition, Cave talked about the records from 1983 to the present, but said he had not yet looked at the other county assessors records.

The trial court asked the Aragons counsel if Caves opinion was different from what he gave in his deposition. Counsel replied: His opinion is not different, . . . but he did not testify from these records. The court overruled the objection.

The trial court granted judgment in favor of Appling and Fields and dismissed the cross-complaint as moot. The court ruled that the Aragons were not entitled to any easement or ownership interest in the disputed area and that the disputed area, including the disputed curve, rightfully belonged to Appling and Fields.

The court explained that the Aragons failed to establish they paid taxes on the disputed area for the statutory period as required to obtain title by adverse possession. The court found persuasive Caves testimony that Appling and Fields had paid taxes on the disputed area since 1982; it found Wolfsohns testimony to the contrary to be unpersuasive. In addition, the court found the evidence showed that the claimed prescriptive easement was for the Aragons exclusive use of the disputed area and the disputed curve. The court found that the grant of a prescriptive easement would be improper in this action, in that California courts have greatly disfavored granting exclusive prescriptive easements in backyard disputes such as the instant case, citing Silacci v. Abramson (1996) 45 Cal.App.4th 558 and Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296.

DISCUSSION

The Aragons seek reversal of the judgment on two grounds. First, they contend the trial court erred in denying their claim for adverse possession on the ground they failed to prove they had paid the property taxes. Second, they claim that, as a matter of law, they established a prescriptive easement for their driveway and the trial court erred in refusing to grant the easement.

A. Adverse Possession

The elements necessary to establish ownership of real property by adverse possession are as follows: (1) tax payments, (2) actual possession which is (3) open and notorious, (4) continuous and uninterrupted for five years, (5) hostile and adverse to the true owners title, and (6) under either color of title or claim of right. (California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803.) The party asserting ownership by adverse possession has the burden of proving each element. (Ibid.)

The only element disputed by the parties was whether the Aragons had paid taxes on the disputed area. The Aragons acknowledge that [w]here the claim is adverse possession . . . , payment of taxes [by the claimant] for the statutory period is essential. (Raab v. Casper (1975) 51 Cal.App.3d 866, 878.)

The Aragons contend that the trial court should have excluded Caves testimony that Appling and Fields paid the taxes on the disputed area, in that it was based on a discovery abuse sanctionable under Code of Civil Procedure section 2034.300.[2] Citing Raab v. Casper, supra, 51 Cal.App.3d 866 and Gilardi v. Hallam (1981) 30 Cal.3d 317, the Aragons claim that, in any event, the trial court should have applied the inference rule to determine that, when valuing the improvements visibly possessed by the Aragons, the assessor also valued the land on which the improvements rested. For reasons we explain more fully below, we disagree.

1. Ruling on Admissibility of Caves Testimony

Caves testimony, the Aragons claim, was the product of a discovery abuse, in that Cave represented at his deposition that the opinions he gave at that time were the only ones he would give at trial. At trial, however, he based his opinions in part on assessor records that, at his deposition, he stated that he had not yet seen. The Aragons assert that they were greatly prejudiced at trial as a result. The record, however, does not support their claim.

We review a trial courts evidentiary ruling for abuse of discretion. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.) A ruling on a motion to exclude or strike testimony, even if erroneous, is not reversible absent a miscarriage of justice. (Easterby v. Clark (2009) 171 Cal.App.4th 772, 783.) A miscarriage of justice should be declared only if, after examining the record, the reviewing court determines that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Ibid.)

In the course of evaluating whether conduct constituted a sanctionable discovery abuse, the court in Jones v. Moore (2000) 80 Cal.App.4th 557 explained: When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial. (Id. at p. 565.) In raising the objection at trial to Caves testimony, however, the Aragons counsel conceded that Caves testimony did not include any opinions that he did not offer at his deposition. Accordingly, exclusion of Caves testimony on that basis would not be justified. (Code Civ. Proc., 2034.300; Jones, supra, at p. 565.)

Absent any different opinions, the Aragons claim of prejudice could only be based on the fact that Cave said in his deposition that he had not yet looked at the assessor records. They rely on the proposition that one of the principal purposes of civil discovery is to eliminate surprise at trial, which necessarily would be prejudicial to the surprised party. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.) In arguing the objection, the Aragons counsel conceded that the records were received by both parties well in advance of Caves deposition and were not a surprise at trial. There thus was no surprise sufficiently prejudicial to warrant exclusion of Caves testimony. (Ibid.)

The issue before the trial court was whether the Aragons met their burden of proving they paid the property taxes on the disputed area for the statutory period required to establish adverse possession. (California Maryland Funding, Inc. v. Lowe, supra, 37 Cal.App.4th at p. 1803.) Thus, the focus was on the sufficiency of Wolfsohns testimony. His testimony was consistent with Caves testimony that (1) the assessor reassessed the Aragon lot in 1964 and added an assessment for the carport as an improvement; (2) during the relevant time period, the disputed area had always been included in the legal description of the Appling lot and not in the legal description of the Aragon lot (which description, Wolfsohn testified, was set forth in a shortened form on the property tax bills of each party); (3) no transfer of land from Appling and Fields to the Aragons appeared of record; and (4) there was no increase in the Aragons tax bill reflecting an additional square footage of land equivalent to the square footage of the disputed area. Caves testimony that Appling and Fields paid the taxes on the disputed area was based on the foregoing facts.

Wolfsohns opinion that the Aragons paid the taxes was based on speculation, rather than actual evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Wolfsohn testified that, in reassessing the Aragon lot in 1964 by visually observing the carport, the assessors natural inference would be, and it is possible the assessor would have assumed, that the Aragon lot property line was a straight line from the end of the carport in the disputed area to the opposite side of the property, which would include the disputed area as part of the property assessed to the Aragons. The trial court found Wolfsohns testimony to be unpersuasive. It is the exclusive province of the trier of fact, in this case the trial court, to determine the credibility of a witness (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and to weigh the evidence (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630). We defer to the trial courts assessment of Wolfsohns persuasiveness.

Accordingly, we conclude that it was not reasonably probable that the result would have been different even if Caves testimony had been excluded. (Easterby v. Clark, supra, 171 Cal.App.4th at p. 783.) The trial court therefore did not abuse its discretion in overruling the Aragons objections to Caves testimony. (Ibid.)

2. Inference Rule

The Aragons claim that the trial court erred in disregarding the inference rule in Raab v. Casper, supra, 51 Cal.App.3d 866 and Gilardi v. Hallam, supra, 30 Cal.3d 317. The Raab court explained the inference rule as follows: [W]here one party is visibly in possession of land under a claim of right and has placed valuable improvements on the land, the natural inference is that the assessor did not base his assessment on the true boundary but valued the land and improvements visibly possessed by the claimants. (Raab, supra, at p. 878.) The Gilardi court concluded, however, that where there was no direct evidence that the improvements on the disputed area were considered in the assessment of the lots, the trial court was not required to infer that the assessor concluded the [improvements] reflected ownership of the disputed land by the parties claiming title by adverse possession. (Gilardi, supra, at p. 327.)

As we previously discussed, Wolfsohns opinion, that the carport was considered in the assessment of raw land on the Aragon lot was based on speculation rather than actual evidence. Accordingly, under Gilardi, the trial court was not required to infer that the assessor concluded that the carport reflected ownership of the disputed area by the Aragons. (Gilardi v. Hallam, supra, 30 Cal.3d at p. 326.)

3. Sufficiency of the Evidence

In determining whether the trial courts finding that the Aragons failed to prove they paid taxes on the disputed area is supported by substantial evidence, we look to evidence which is reasonable, credible and of solid value. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1239.) Speculation or conjecture alone is not substantial evidence. (Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 651.) With only a speculative basis, Wolfsohns opinion that the Aragons paid the taxes did not rise to the level of substantial evidence. Since proof of payment of taxes on the disputed property is an essential element of adverse possession (California Maryland Funding, Inc. v. Lowe, supra, 37 Cal.App.4th at p. 1803; Raab v. Casper, supra, 51 Cal.App.3d at p. 878), the trial court did not err in denying the Aragons quiet title claim on the basis of adverse possession.

B. Prescriptive Easement

The Aragons next contend that they established a prescriptive easement for use of the disputed curve as part of their driveway as a matter of law by making such use of it for more than twenty years. The foundational factual elements of prescriptive easement are the same as those for adverse possession, except that the payment of taxes is required only for the latter. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090; Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1305.) The Aragons assert that they proved the prescriptive easement elements, and Appling and Fields do not dispute the claim. Such a showing is, however, only one part of the required analysis.

The question whether the claimed easement should be granted or denied presents a question of law involving the difference between obtaining rights of title in land by adverse possession as compared with rights to prescriptive use of the land. (Silacci v. Abramson, supra, 45 Cal.App.4th at p. 562.) The prescriptive use the Aragons claim is based on their exclusive use of the disputed curve and the adjacent disputed area for driveway purposes. The trial court determined that the claimed easement over the disputed curve would constitute an exclusive prescriptive easement which, under California authority such as Silacci v. Abramson, supra, 45 Cal.App.4th 558 and Mehdizadeh v. Mincer, supra, 46 Cal.App.4th 1296, may not be granted in residential boundary disputes such as that in the instant case.

Another factor warrants consideration, however, prior to proceeding with analysis and application of the law of prescriptive easements. As discussed above, the trial court properly denied the Aragons claim to ownership by adverse possession of the portion of the Appling lot which constitutes the disputed area. The claimed prescriptive easement is for a different part of the Appling lotthe disputed curvewhich abuts the disputed area. The configuration is such that, if the Aragons were to drive over the disputed curve, they would necessarily have to drive over part of the disputed area. The Aragons do not have the right to drive over the disputed area.[3] Accordingly, as a practical matter, it would be impossible for the Aragons to use the disputed curve as part of their driveway. When, through no fault of the respondent, an event occurs during the pendency of an appeal which renders it impossible for the reviewing court to grant effectual relief to the appellant as to a claim, the claim becomes moot and the reviewing court need not decide the claim. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) That is the effective result here: the Aragons contention that the trial court erred in denying their claim for a prescriptive easement over the disputed curve has become moot. (Ibid.) Therefore, affirmance of the trial courts denial of the prescriptive easement claim is appropriate.

In any event, even if a prescriptive easement could be granted over the disputed curve (i.e., that it would not be impossible to make the claimed prescriptive use of the disputed curve), we would reach the same result. As the Aragons represent, their claimed prescriptive usefor driveway purposeswould require that the easement be exclusive. The disputed curve and the disputed area would necessarily need to remain unobstructed at any and all times the Aragons or their invitees might choose to use the easement. Appling and Fields could make virtually no use of the affected portion of the Appling lot that would not interfere with the Aragons use for driveway purposes.

A common factual situation in which courts have granted a prescriptive easement has been for the claimants use of the same driveway as the true owners of the land use. (See Silacci v. Abramson, supra, 45 Cal.App.4th at p. 562.) That is not the situation here; Appling and Fields do not use the disputed curve and disputed area as their own driveway.

Under factual situations similar to the instant casewhere the land owner could make virtually no use of his or her land if an easement were granted to his or her neighbor for the claimed prescriptive use, courts have characterized the claim to be for an impermissible exclusive prescriptive easement. (See, e.g., Harrison v. Welch, supra, 116 Cal.App.4th at p. 1093; Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at pp. 1304-1308; Silacci v. Abramson, supra, 45 Cal.App.4th at p. 564; Raab v. Casper, supra, 51 Cal.App.3d at p. 876.) After analysis of Raab, Mehdizadeh and Silacci, the Harrison court wrote: From the foregoing cases, we discern the rule that an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land [citation], will not be granted in a case (like this) involving a garden‑variety residential boundary encroachment. (Harrison, supra, at p. 1093, fn. omitted; accord, Silacci, supra, at p. 564.) The basis for this conclusion is that the claimed prescriptive use is exclusive to such an extent that the interest that would be granted would virtually be an estatenot an easement, and an estate may be granted only if the claimant proves adverse possession; proof of prescriptive use is not enough. (Mehdizadeh, supra, at pp. 1304-1306.) Since the claimants seeking exclusive prescriptive easements in the foregoing cases had not proven adverse possession, their claims were denied. (Harrison, supra, at p. 1094; Silacci, supra, at p. 564; Mehdizadeh, supra, at pp. 1304‑1306; Raab, supra, at p. 876.)

True exclusive prescriptive easements have been found to exist only where the exclusive prescriptive use served a public purpose, rather than a purpose solely benefiting the easement grantee to the exclusion of the true owner of the land. (See, e.g., Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1047-1048; 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) 15:30, pp. 114-116.) As the Silacci court explained, [a]n exclusive prescriptive easement is . . . a very unusual interest in land. The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one. (Silacci v. Abramson, supra, 45 Cal.App.4th at p. 564.)

Since the Aragons cannot prove payment of taxes on the disputed area and, for the same reasons, cannot prove payment of taxes on the disputed curve, they cannot establish ownership of the disputed curve by adverse possession. Therefore, the trial court properly denied their claim for an exclusive prescriptive easement. (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1306; Silacci v. Abramson, supra, 45 Cal.App.4th at p. 564; Raab v. Casper, supra, 51 Cal.App.3d at pp. 876-877.)

DISPOSITION

The judgment is affirmed. Appling and Fields shall recover their costs on appeal.

JACKSON, J.

We concur:

WOODS, Acting P. J.

ZELON, J.

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[1] For ease of reference, we use the term assessor generically to mean an appraiser or official in the Office of the Assessor of Los Angeles County.

[2] Code of Civil Procedure section 2034.300 states: Except as provided in [code sections inapplicable here], on objection of any party who has made a complete and timely compliance with Section 2034.260 [expert witness information exchange requirements], the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [] (a) List that witness as an expert under Section 2034.260. [] (b) Submit an expert witness declaration. [] (c) Produce reports and writings of expert witnesses under Section 2034.270. [] (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

[3] The Aragons raise no contention, and thus no issue is before us, concerning a prescriptive easement for driveway use over the disputed area. The prescriptive easement issue before us pertains only to the disputed curve.