Gill v. Varwig
Filed 1/15/14 Gill v. Varwig CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(San Joaquin)
----
JASBIR
S. GILL et al.,
Plaintiffs and
Respondents,
v.
ROGER
VARWIG,
Defendant and
Appellant.
___________________________________________
JASBIR
S. GILL et al.,
Plaintiffs and Appellants,
v.
ROGER
VARWIG,
Defendant and
Respondent.
C069565
(Super. Ct. No. 39200800186222CUORSTK)
C070505
(Super. Ct. No. 39200800186222CUORSTK)
Plaintiffs
Jasbir and Parampal Gill own two parcels of agricultural property on which they
have planted a vineyard. They access a
portion of their property over an unpaved route across property owned by
defendant Roger Varwig. This route is
shown as a road on old maps. The Gills
claim the right to use this route either because it is a dedicated public road
or because they have a prescriptive easement.
This dispute arose when Varwig obstructed the Gills’ access, first by means
of a barbed wire “fence†blocking the unpaved route and then by digging a ditch
across it. Jasbir Gill’s truck got stuck
in the ditch.
The
Gills filed suit against Varwig. The
a public right of way or a prescriptive easement across Varwig’s property. The court issued an injunction preventing
Varwig from interfering with this public
right of way or easement and
awarded the Gills damages, including damages for emotional distress and
punitive damages.
Varwig
appeals, contending substantial evidence does not support the finding of either
a public right of way or a prescriptive easement, or the damages awarded. The Gills cross-appeal from the order denying
their motion for attorney fees.
As
we will explain, we modify the judgment.
Substantial evidence does not support the trial court’s finding of a public
right of way or the award of damages for emotional distress. The damage award for loss of use of the
easement must be reduced to exclude the period of time for which there is no
evidence of obstruction. In all other respects, we affirm the judgment
and the order denying attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
The
properties involved in this case are rural lots in the County of San Joaquin (the
County) shown on the Map of Morse Colony
recorded in 1895. The map contains 56
lots, laid out in roughly a checkerboard pattern. The southern boundary is designated a public
highway, now known as Eight
Mile Road, and the
northern boundary is Morse
Road. An irrigation canal maintained by the
Woodbridge Irrigation District (WID) cuts through the middle of these lots; the
canal runs north to south with an angled jog.
(A branch of the WID canal, not shown on any of the maps, bisects several
lots east to west, crossing Lincoln
Road, now called Leach Road.) The map shows Leach Road, which
runs north to south just east of the western two columns of lots on the
checkerboard. The Gills contend that a section
of this road contains their easement or the public right of way. This section of road allowed the Gills to
access those portions of two lots (lots 21 and 22) positioned south of the
canal’s east/west branch by passing between two of Varwig’s lots (lots 10 and
23). About one-third of Lots 21 and 22 are
south of the branch; two-thirds are north.
Varwig,
an engineer and contractor, owns several lots in the area. So do the Gills. As relevant here, Varwig owns two lots on
either side of Leach Road; these two lots are four lots north of Eight Mile Road. To the immediate west of Leach Road is Lot 10, which Varwig has owned
since 1996, and to the immediate east of the road is Lot 23, which he purchased in
2002. Varwig’s house is on Lot 10. Directly north of Lot 23, and also to the
immediate east of Leach Road, is Lot 21 and directly east of this lot is Lot 22. The Gills own both of these lots, as well as
others in the area.
Leach
Road is paved north of Eight
Mile Road. The paved road ends just south of Varwig’s
Lots 10 and 23, more than a full lot south of the Gills’ Lots 21 and 22. As one travels north on Leach Road there
are three signs. One indicates the road
ends in 500 feet; another says “not a through road;†at the end of the paving a
sign reads, “End County Maintained
Road.†In short, the disputed property is the
unpaved portion of Leach Road, running between Varwig’s Lots 10 and 23 and traveling north to the
irrigation canal branch that bisects the Gills’ Lot 21 and Lot 22 to the east.
The
Morse Colony Map was recorded in 1895.
The map includes the following offered dedication: “I hereby dedicate the streets, avenues,
roads and alleys as shown on this map for use to the public forever.†In the 1970’s, the County accepted the
dedication of Leach (formerly Lincoln) Road 1250 feet north of Eight Mile Road
(the paved portion). There is no
evidence that the County ever formally accepted the dedication of the portion
of Leach Road further north to the canal branch (the unpaved portion).
A
parcel map recorded in the 1970’s shows Leach Road and notes
that Leach Road is “not open on the ground†south of the canal branch. In the opinion of Varwig’s expert surveyor
and engineer, this means the road “does not exist.â€
James
Formento previously owned Lots 21, 22, and 23, the lots to the east of Leach Road. He had been an assistant assessor.
The
Gills are both medical doctors from agricultural families. They own a number of agricultural parcels in the
County. They rented Lots 21 and 22 in
1998 and purchased the lots two years later from Formento. Jasbir Gill understood that he could access
the portions of Lots 21 and 22 that were south of the canal branch by way of
Leach Road, including the unpaved portion of the road between Varwig’s Lot 10
and Lot 23. The Gills began planting a
vineyard on Lots 21 and 22 in 2002. The
first harvestable crop was in 2005. Gill
claimed he used Leach Road to access his property every year from 2002 through 2006 without
any objection by the owner of Lots 10 and 23.
The
Gills first had problems accessing the southern portions of Lots 21 and 22 by
means of Leach Road in August of 2007. On August
18, Gill had to cut a barbed wire that was strung between two poles across the
road to access his property. Immediately
thereafter, he reported to the police that his access was obstructed. Varwig claimed the barbed wire “fence†was
there when he purchased the property.
Gill did not “recollect†seeing the fence before. The fence obstructed the entire width of the
alleged right of way.
On
August 20,
2007, Gill was driving his truck about 20
miles per hour on the unpaved portion of Leach Road. He came to an abrupt stop and his truck got
stuck in a ditch. The ditch was a trench
filled with water and camouflaged with weeds. Gill was confused and suffered some chest
pain.
title="">[1] He was in a “little shocky
state†and called his manager to come help him.
The manager took Gill home.
Varwig
complained to the sheriff about Gill’s stuck pickup truck. The sheriff went to see Gill. After Gill explained about the ditch, he
thought the sheriff was satisfied with his explanation.
Varwig
claimed he had discovered a leaky water pipe on August 18 and his son put up
caution tape in the area where the barbed wire had been cut. To repair the water line, Varwig dug a 40-foot
ditch, using a back hoe, and replaced the pipe.
end of the fence. Varwig filled the
trench with existing dirt, compacted the dirt using a wheel roller, and
restrung the caution tape. He did not
water the ground as it was already wet.
Varwig claimed Gill removed the caution tape before he crossed the area. Varwig took pictures of the accident, but did
not offer assistance or have any conversation with Gill. The pictures showed the front wheels of
Gill’s truck caught in a ditch and a pile of yellow tape nearby.
After
this ditch incident, Gill was very concerned about whether he would be able to
harvest his grapes. He suffered anxiety
and sometimes lost sleep. After Gill
sought legal advice, Varwig relented and allowed Gill access to his property to
complete his harvest in 2007.
Gill
again became concerned about his ability to access the southern portion of Lots
21 and 22 from Leach Road in the spring of 2008 when work in the vineyard was
about to resume. Gill’s concern arose in
March or April because Varwig had placed some rocks in the access to the
vineyard. Varwig had also planted corn
in the right of way in 2008.
Gill
went to the WID to see if something could be done so he could have adequate access
to the southern portions of Lots 21 and 22 without the need to travel the
unpaved portion of Leach Road. The WID widened an existing
bridge over the canal from Pearson
Road (which borders the
Gill’s property to the east) to the southern portion of Lot 22 to permit access by
large harvesting machinery. The WID finished
construction of the widened bridge within two weeks after Gill contacted them
and charged the Gills $3,506 for the construction. Gill testified the route to lots 21 and 22 over
Leach Road was much safer for transporting large harvesting equipment than was the
route from Pearson Road over the widened bridge.
On
June 12, 2008, the Gills filed suit against Varwig. The complaint sought a temporary restraining
order, and a preliminary and permanent injunction to prevent Varwig from
interfering with the Gills’ easement across Varwig’s property. The complaint also sought to quiet title to
the easement. The Gills claimed an
easement by operation of law due to necessity alleging that there was no other
reasonable alternative for access to their property. The complaint alleged that the Gills’ property
and Varwig’s property had previously been under common ownership. When part of the property was conveyed to the
Gills and part to Varwig, the Gills had no access to their property other than
the easement across Varwig’s property.
Three
months later, the Gills filed a first amended complaint (FAC). The FAC alleged that when the Gills bought
Lots 21 and 22, the seller (and former owner of Lot 23 as well), Formento, told
them that Lot 23 had been sold to Varwig with the understanding that there was
an access easement across it so that the southern portions of Lots 21 and 22
could be farmed. The Gills claimed an
easement across Varwig’s property under three theories: (1) a public right of way; (2) an implied
easement according to the oral agreement at the time of sale of Lot 23;
alternative for access to the Gills’ property. The FAC sought damages, including for
emotional distress, as a result of Varwig’s obstruction and interference with
the easement, and punitive damages for Varwig’s willful and oppressive conduct. Finally, the FAC sought to quiet title in the
Gills to a 15-foot wide easement across Varwig’s property.
Varwig
moved for a judgment on the pleadings or nonsuit. He asserted that the Gills now claimed, in
their settlement statement, an easement by public dedication. He contended that the Gills had failed to
join the County as an indispensible party, so the suit should be dismissed.
The
trial court denied the motion, finding the County was not an indispensible
party.
At
trial, the Gills claimed an easement over Varwig’s property either as a
dedicated public right of way or an easement by prescription. During trial, the trial court permitted the
Gills to amend the FAC to allege an easement by prescription. Varwig objected to the continuing change in
theories, complaining it was “like trying to pin jello on the wall.â€
Gill
testified he had used Leach
Road for access to his
property without objection from 2002 until August 2007. He claimed he had traveled up Leach Road from
Eight Mile Road to the canal branch “for many years, seven years.†The trial court sustained Varwig’s objection
to Gill’s attempt to testify that Formento had told him such use of the unpaved
portion of Leach Road had been ongoing for 50 years.
Varwig
testified Gill was able to access the southern portion of his properties with
harvesting equipment over the existing concrete bridge even before the new
culvert bridge was installed, and had done so in 2007. There was now a locked gate across this
bridge which Varwig’s son had installed, but Varwig did not own the property. Varwig testified that from 1998 until 2007 he
never saw Gill on Leach Road. Varwig had once seen a
young man on a minibike on Leach
Road and occasionally
people left trash there. WID personnel “possiblyâ€
used the road to access the canal branch.
People walked along the levy by the canal branch to “fish and crawdad.†Varwig put a chain link fence around his
property for security.
name="_ftnref5" title="">[5]
Gill
never told Varwig that he thought he had access rights. Varwig saw Sammy, Gill’s foreman, but they
never discussed an easement. Varwig
testified he told Sammy he did not want them (Gill’s employees) crossing over
his property.
In
its statement of decision, the trial court found “there exists an accepted
dedication of the disputed easement through public use.†The court found it “clear†that if Formento
had been willing to pay to pave the northern part of Leach Road, the
County would have accepted the dedication of it, but Formento “likely†felt no
need to incur that expense. “Likely
access was made by members of the public looking for crawfish in the canal†and
by WID maintenance personnel. “The Court
finds that what was likely originally a dirt road in 1895 was accepted by
public use and travel.â€
The
court further found that “[i]f plaintiffs did not have entitlement to use of
the land . . . as a member of the general public, they would hold a
prescriptive easement in said land in that the five-year period of use by the Plaintiffs
was completed before†the August 18, 2007 incident.
The
court found that Varwig’s “wrongful complete deprivation of use of the easement
began on August
18, 2007†when Varwig strung a piece of
barbed wire across the easement.
Afterwards, Varwig “created a modest ‘tank trap’†and Gill’s vehicle was
caught. From that date, Varwig
“continuously denied Plaintiffs use of the right of way/easement.â€
The
court found a mandatory and prohibitive injunction was necessary to restore the
condition of the easement. It awarded to
the Gills compensatory damages of $50 per day from August 22, 2007
the cost they paid for the bridge that the WID constructed ($3,506) and for the
expense of providing a legal description of the easement ($3,820). The court awarded $50,000 for Gill’s emotional
distress. The court found Varwig acted
with malice and oppression on August 22, 2007, so an award of
punitive damages was appropriate. A
bifurcated trial was to be held on Varwig’s financial condition. Costs were awarded to the Gills and “[a]ny
application for attorneys fees pursuant to Code of Civ. Proc., § 1021.9 will be
considered on noticed motion.â€
At
the hearing on punitive damages, held April 18, 2011, Varwig
testified the balance on his home mortgage was $405,452.76 and his house was
currently worth $400,000 to $450,000. The
tax assessment had been lowered in July 2010 to $468,452. In a loan application in December 2008,
Varwig placed the value of his home at $650,000. He testified he did not correct this figure
because he was “under duress[,] I needed money to live.†Varwig’s tax returns for 2008 showed rental
income of $69,000 and income of $17,475 from a neighbor’s orchard that he farmed. Varwig’s 2009 tax return showed gross income
from farming of $26,516. He owned small
tools and equipment, and a 2003 Ford truck with 125,000 miles on it. His company owned a 2001 truck with 225,000
miles on it. The company was close to
the limit on two credit lines and had accounts payable of $123,000. Varwig had paid $300,000 for Lot 23 and $140,000 for Lot 25; he estimated their
current value as about $125,000 each.
The
court awarded $35,000 in punitive damages.
Varwig
moved to vacate the judgment and to enter a different judgment. He also moved for a new trial on the basis of
insufficient evidence and excessive damages.
The
court denied these motions and Varwig appealed.
The
Gills moved for attorney fees pursuant to Code of Civil Procedure section
1021.9. They sought fees of $65,779.50
and costs of $1,593.09.
The
trial court denied the motion, finding that the Gills failed to give notice of
a demand for attorney fees in their pleadings and there was no damage to crops
under cultivation as contemplated by Code of Civil Procedure section 1021.9.
The
Gills separately appealed from this order.
DISCUSSION
I
Public Dedication
A. The Law
“A dedication is the transfer of an interest
in real property to a public entity for the public’s use.†(Fogarty
v. City of Chico (2007)
148 Cal.App.4th 537, 543.) “Dedication
of private property for public use requires an offer of dedication by the owner
and an acceptance of the offer by the public entity. [Citations.]†(Ackley
v. City Etc. of San Francisco (1970) 11 Cal.App.3d 108, 112.) A statutory dedication is effected when the
public agency accepts the offer of dedication.
(Scott v. City of Del Mar
(1997) 58 Cal.App.4th 1296, 1302.) “[A]
failure to complete a statutory dedication does not negate the possibility of a
common law dedication.†(
When the public uses the land for the offered purposes over a reasonable
period of time, there is an implied acceptance of the offer of dedication
without any formal action by governmental authority. (Biagini
v. Beckham (2008) 163 Cal.App.4th 1000, 1009 (Biagini).) The extent and
character of the public use must be commensurate with the nature of the
property dedicated. (
1011.)
“Hence,
a dedication, like a contract, consists of an offer and acceptance, and it is
settled law that a dedication is not binding until acceptance, proof of which
must be unequivocal [citation]. The
acceptance may be actual or implied. It
is actual when formal acceptance is made by the proper authorities, and
implied, when a use has been made of the property by the public for such a
length of time as will evidence an intention to accept the dedication.†(
The
burden of proving an implied dedication is on the party seeking to establish
it. (Robas
v. Allison (1956) 146 Cal.App.2d 716, 720.) Whether there was an implied acceptance of an
offer of dedication is a question of fact and we review the trial court’s
findings of fact for substantial evidence.
(Biagini, supra, 163
Cal.App.4th at p. 1010.) “To be
substantial, the evidence must be credible and of solid value. [Citation.]
‘While substantial evidence may consist of inferences, such inferences
must be “a product of logic and reason†and “must rest on the evidenceâ€
[citation]; inferences that are the result of mere speculation or conjecture
cannot support a finding.’ [Citations.]†(Casella
v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1144.)
B. Analysis
The
trial court found there was an accepted dedication of the public easement by
public use. Varwig contends substantial
evidence does not support this conclusion because the court relied on
speculation. We agree.
The
court found there had been public use of all
of Leach Road, establishing acceptance of the dedication. The court posited the “likely reason†for the
paved road to end before the Gills Lot 21 was that Formento, who previously
owned Lots 21, 22, and 23, “likely†felt no need to bear the expense of paving
the road. The court found it “clearâ€
that if Formento had been willing to pay for the paving, the County would have
formally accepted the dedication in its entirety. Further, there was “likely†access by members
of the public. Citing the “events likely
to exist†in 1895 when the map was recorded and the need for access across
neighboring properties, the court concluded “that what was likely originally a dirt road in 1895 was accepted by public use
and travel across the road even if the County did not formally accept the offer
of dedication at that time.â€
As
the repeated use of the word “likely†shows, the court’s conclusion is based entirely
on speculation. “While substantial
evidence may consist of inferences, such inferences must rest on the evidence; inferences that are the result of speculation
or conjecture cannot support a finding.
[Citation.]†(
1251, 1259, italics added.) There was no
evidence that Formento (or anyone else) was required to pay for paving the relevant
portion of Leach Road for the County to accept its dedication, or that the
County would accept a road dedication only if the road were already paved.
suggests there was no need for a
public road in that particular area because it accessed only the private
property of one person, obviating the need for any public access.
Nor
did the Gills provide substantial evidence of current public use of the unpaved
Leach Road to show acceptance by public use.
The evidence of current use was practically nonexistent. Varwig saw a man on a minibike on the road
just once and occasionally someone dumped garbage on the road. These limited uses are not commensurate with
the dedication of a road. (
p. 1011.)
Varwig saw people on the canal’s levy, fishing and looking for crayfish,
but there was no evidence that these people had accessed the levy using the
unpaved portion of Leach Road--there were other means of access.
Varwig testified WID personnel “possibly†used the road to access the
irrigation canal. They had access to the
canal branch from Pearson Road and Varwig had seen them use Leach Road north of the canal. But there was
no evidence WID personnel routinely used the unpaved portion of Leach Road. There was
evidence that Gill and his employees used that portion of the road. Gill testified he had used it to access the
southern portion of his properties for seven years. As Biagini,
supra, 163 Cal.App.4th 1000, explains, however, this use is insufficient to
constitute acceptance of the dedication by public use.
At
issue in Biagini was the sufficiency
of the evidence of public use to show acceptance of a dedication of a
road. The road was commonly used by
business clients of two adjoining property owners. Both property owners had express private
easements over the road. (
1011-1012.) This court found the
clients’ use was not a sufficient public use to constitute acceptance of the
dedication. (Id. at p. 1013.) We reasoned
that a dedication is in the nature of an estoppel and is a matter between the
owner and the public, not between the owner and individuals. “Thus, where the public at large relies on an
offer to dedicate land to public use to such an extent that it would be unfair
under principles of estoppel to deny the public continued use of the land for
that purpose, implied acceptance of the offer of dedication will be
found.†(Id. at p. 1012.) Since the
use of the road by the clients of adjoining landowners was not beyond the scope
of the private easements and these easements would continue to permit the same
access, “the conclusion that an implied acceptance of the Beckhams’ offer of
dedication never occurred results in no injustice or unfairness, and thus the
fundamental basis for finding such an acceptance does not exist.†(Id.
at p. 1013.)
Here,
of course, the Gills have no express easement.
We conclude post, however,
that they do have a prescriptive easement over the unpaved portion of Leach Road. Since their use of the road does not exceed
the scope of the prescriptive easement and the prescriptive easement will allow
for access to the Gills’ property, “the
fundamental basis for finding such an acceptance does not exist.†(Biagini,
supra, 163 Cal.App.4th at p. 1013.)
Varwig
contends the trial court erred in finding the County was not an indispensible
party because the declaration of a public right of way would affect the
County’s rights and obligations. He also
contends that Code of Civil Procedure section 771.010, providing a conclusive
presumption that a proposed dedication was not accepted if certain conditions
are met, applies. Because we have found
that substantial evidence does not support the trial court’s finding of a
public right of way due to acceptance of the road dedication by public use, we
need not address these contentions.
II
Prescriptive Easement
A. The Law
“A
prescriptive easement is established by use of land that is (1) open and
notorious, (2) continuous and uninterrupted, and (3) adverse to the true owner,
and that is all of these things (4) for a period of five years. [Citations.]â€
(Windsor Pacific LLC v. Samwood
Co., Inc. (2013) 213 Cal.App.4th 263, 270; see Civ. Code, § 1007; Code Civ.
Proc., § 321 [five-year period].) “The
purpose of these requirements is to insure 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. [Citations.]â€
(Fogerty v. State of California
(1986) 187 Cal.App.3d 224, 238 (Fogerty).)
“‘The
actual use required depends on the nature of the easement. It need not be used every day during the
prescriptive period. The use is
sufficient if it occurs on those occasions when it is necessary for the
convenience of the user.’
[Citation.]†(
239.) For example, use of a water ditch
only when needed during the growing season is sufficient for continuous use. (Hesperia
Land & Water Co. v. Rogers (1890) 83 Cal. 10, 11.) “The requirement means that there be no break
in the essential attitude of mind required for adverse use rather than that the
use be constant.†(Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432 (
The
party seeking to establish a prescriptive easement has the burden of proof of
doing so by clear and convincing evidence.
(Brewer v. Murphy (2008) 161
Cal.App.4th 928, 938.) “The higher
standard of proof demonstrates there is no policy favoring the establishment of
prescriptive easements.†(
1304, 1310.) “Whether the elements of
prescriptive use have been established is ordinarily a question of fact,
reviewed under the substantial evidence standard. [Citation.]†(Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1250.) Such review requires that we resolve all
conflicts in the evidence in favor of the prevailing party, here the Gills, and
that we view the evidence in the light most favorable to the Gills. (Zimmer,
supra, 39 Cal.App.3d at
p. 431.)
“If there is any substantial evidence to support the judgment, it must
be affirmed. [Citations.]†(Ibid.) The testimony of a single witness, even that
of a party, may provide substantial evidence.
(In re Marriage of Mix (1975)
14 Cal.3d 604, 614.)
B. Analysis
Here,
Varwig and Gill presented two starkly different versions of events. Varwig testified the barbed wire fence that
Gill cut to gain access had been on Varwig’s property when he bought it; he had
never seen Gill or his employees use the road; Gill never claimed a right to
use the road and his manager never mentioned an easement; and Varwig told
Gill’s manager he did not want them crossing his property. In sharp contrast, Gill testified he had used
the unpaved portion of Leach Road for seven years without any objection. He had planted vineyards on Lots 21 and 22 and
harvested them for several years. He
claimed these activities required the access of Leach Road. Gill provided pictures that showed deep tire
tracks on the disputed easement to show its use as a road. Although Varwig contends that Gill’s report
to the police when he cut the barbed wire shows Gill knew he did not have permission
or a right to be on the road, Gill testified he made the report because his lawful
access was obstructed, not to report that he was trespassing.
Varwig
contends the Gills failed to establish by clear and convincing evidence that he
had notice of their adverse use. His
argument, however, relies mostly on his testimony and discounts Gill’s testimony
as “self-serving.†It was for the trial
court to determine the credibility of the witnesses and resolve any conflicts
and inconsistencies in their testimony.
(Sav-On Drug Stores, Inc. v.
Superior Court (2004) 34 Cal.4th 319, 334 (Sav-On Drug Stores).) “[T]he
testimony of a witness offered in support of a judgment may not be rejected on
appeal unless it is physically impossible or inherently improbable and such
inherent improbability plainly appears.
[Citation.]†(
Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) Gill’s testimony was not inherently
improbable and the trial court was entitled to accept it over Varwig’s
testimony. If Gill and his employees
used the road at issue, Varwig had notice of such use because his residence was
close to that road.
In
his reply brief, Varwig contends Gill did not establish a five-year, continuous
adverse use because he used the disputed easement for only a few days each year. As we have explained, to be continuous, the
use need not be constant. “‘The use is
sufficient if it occurs on those occasions when it is necessary for the
convenience of the user.’
[Citation.]†(
239.)
Varwig
further contends Gill’s use prior to December 2002, when Varwig acquired Lot 23, was not adverse because
Gill believed he had permission from the prior owner to use the easement. Gill testified only that he understood he
could obtain access to his property through Leach Road, not
that he had the owner’s permission to
do so. Varwig contends that Gill’s
understanding “is equivalent to having permission†and a permissive use is not
adverse. But Gill testified only that he
used the disputed easement without the owner’s objection, not that he sought or
obtained permission. The failure to
request permission may be sufficient to prove the use of the property was under
a claim of right. (6 Miller & Starr,
Cal. Real Estate, supra, § 15:32,
p. 15-123.)
Substantial
evidence supports the finding of a prescriptive easement. Because we find the evidence supports only a
prescriptive easement and not acceptance of a public dedication, we need not
address Varwig’s contention that the trial court’s declaration of both a public
right of way and a prescriptive easement is legally inconsistent.
III
Damages for Loss of Use
A. The Law
The
owner of an easement “may maintain an action for the enforcement of this
intangible right and may recover damages from a party for obstructing the
easement. [Citations.] Awardable damages compensate the plaintiff
for loss of use of the easement and the diminished value of the lot it
benefited.†(Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871,
881.)
“When
a person interferes with the use of an easement he deprives the easement’s
owner of a valuable property right and the owner is entitled to compensatory
damages. The interference is a private
nuisance and the party whose rights have been impeded can recover damages as
measured in the case of a private nuisance.
[Citations.] Damages may be
recovered for diminution of the property’s value and for annoyance and
discomfort flowing from loss of use.
[Citations.]†(
574 (Moylan).)
In
Moylan, the defendant constructed a
fence across an easement, which denied each plaintiff access to his or her
property; these property owners were unable to sell their property or, as one
testified, to “do anything with it.†(
574.) Defendants contended plaintiffs
suffered no damages because the properties increased in value during the years
when plaintiffs were denied access. The
court found plaintiffs’ damages, although intangible, were real. “The fact remains that plaintiffs were
wrongfully deprived of access to their properties for a period of several
years. The trial court fixed plaintiffs'
damages at $3 per day. That amount was
not excessive. The trial court did not
abuse its discretion in assessing plaintiffs’ damages as it did. We find no error.†(Ibid.)
B. Analysis
Here,
the trial court awarded the Gills damages of $50 per day from August 17, 2007 to the date of judgment for loss of use of the easement.
damages was $72,300.
Varwig
contends the evidence does not support this award of damages. First, he contends the Gills are entitled to
damages only for the intermittent period when they actually used their
property, a period Varwig identifies as only the harvest. We disagree that damages should be limited to
the days of the harvest. Gill or his
employees went to the property at other times, to check on the property or
perform pruning and other agricultural activities. Indeed, Gill was going to his vineyard on
both August 18 and August 20, 2007 when impeded by
Varwig, and the harvest that year was not until September. Varwig cites no authority that damages for
loss of use are limited to days when plaintiff can show he would have used the
easement if not for the obstruction. The
Moylan court did not limit damages to
certain days or require specific proof of intent to use for each day.
Next,
Varwig contends that the Gills were required to mitigate damages and
alternative routes were available. The
Gills did mitigate their
damages. By asking WID to widen the
bridge so they could access the southern portion of their properties from Pearson Road,
they were able to use that route for the 2008 harvest. Had they not done so, Varwig might be facing
increased damages for loss of the crop. Varwig
provides no authority, and we have found none, that an easement providing a
right of way necessarily terminates when alternate access is available. (See Civ. Code, § 811 [modes of extinguishing
easements].) Regardless of the
availability of other routes to access their property, the Gills were entitled
to damages for “for annoyance and discomfort flowing from loss of use. [Citations.]â€
(Moylan, supra, 181 Cal.App.3d
at p. 574.)
We
do find, however, that the evidence does not fully support the award of
damages. The trial court found that after
August 22,
2007, Varwig “continuously†denied the
Gills’ use of the right of way. The
evidence does not support this finding.
Gill testified that after he contacted an attorney, Varwig “relent[ed]â€
and allowed him to use the right of way to harvest his property in 2007. Gill had no concern about use of the right of
way until the next spring, March or April, when Varwig placed rocks in the
access to the vineyard and planted corn in the right of way. The evidence is not exact as to the time
frames, but a fundamental rule of appellate review requires that we resolve all
ambiguities in favor of the judgment. (
749, 755-756; accord Denham v. Superior
Court of Los Angeles County (1970)
2 Cal.3d 557, 564.) We find that from
September 2007, when the 2007 harvest took place, until March 2008, when the
Gills’ concerns returned, there was no evidence that Varwig obstructed the
Gills’ easement. Accordingly, the
damages for loss of use must be reduced by $9,100 (182 days times $50).
IV
Damages for Widening
Varwig
contends there is no basis in law or the evidence for the trial court’s award
of $3,506 for the Gills’ payment to WID to widen the culvert bridge over the
WID canal near Pearson Road. He argues that Gill chose
to plant a crop whose harvesting equipment required a wider wheelbase than his
access accommodated. He contends the
widened bridge benefitted only the Gills, so it was unfair to charge him with
the cost, and such damages were duplicative of the loss of use damages.
“The
doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers damage
as a result of either a breach of contract or a tort has a duty to take
reasonable steps to mitigate those damages and will not be able to recover for
any losses which could have been thus avoided’ [Citations.]†(Valle
de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.) The Gills complied with that duty by finding
an alternate access to permit harvesting their crops after Varwig blocked their
easement. In doing so, the Gills avoided
the greater damages for loss of their crop.
Accordingly, they are entitled to recover as damages the lower cost of
the mitigation. (See
Cal.3d 807, 833 [costs that are “mitigative†in nature constitute damages in
ordinary terms]; CUNA Mutual Life Ins.
Co. v. Los Angeles County Metropolitan Transportation Authority (2003) 108
Cal.App.4th 382, 386 [in eminent domain proceeding property owner is entitled
to recover reasonable costs incurred to mitigate damage even if post-mitigation
events indicate there would have been no damage].)
V
Damages for Emotional Distress
A. The Law
“[R]ecovery for emotional distress caused by
injury to property is permitted only where there is a preexisting relationship
between the parties or an intentional tort.
[Citation.]†(
Cal.App.4th 525, 532.) The elements of a
cause of action for intentional infliction of emotional distress are: (1)
extreme and outrageous conduct by the defendant; (2) done with the intention to
cause, or with reckless disregard of the probability of causing, emotional
distress; (3) the plaintiff’s suffering severe or extreme emotional distress;
and (4) actual and proximate causation of emotional distress. (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).) To be outrageous, the conduct “‘must be so
extreme as to exceed all bounds of that usually tolerated in a civilized
community.’ [Citation.]†(Potter
v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (
injury or acted with the realization that injury would result. (Ibid.)
A
plaintiff may recover damages for intentional infliction of emotional distress
if the distress is severe, regardless of whether the plaintiff suffered any
physical injury. (Hailey v. California
distress of such substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.â€â€™ [Citations.]â€
(Potter, supra, 6 Cal.4th at
p. 1004.)
Whether
Gill suffered severe emotional distress is a question of fact and the trial
court’s finding will be upheld if supported by substantial evidence. (Fletcher
v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)
B. Analysis
The
trial court awarded the Gills $50,000 for emotional distress for Varwig’s
intentional act of willfully and maliciously creating a “tank trap†that he
reasonably believed Gill would hit.
Varwig contends there was no evidence of severe emotional distress.
Gill had no claim of physical injury and testified only generally that
he had anxiety and sometimes lost sleep. Varwig contends this evidence is insufficient
to support an award of damages for severe emotional distress. We agree.
In
Wong v. Jing (2010) 189 Cal.App.4th
1354 (Wong), a pediatric dentist sued
for severe emotional distress caused by a negative on-line review criticizing
her dental services. Wong claimed the review
“‘was very emotionally upsetting to me, and has caused me to lose sleep, have
stomach upset and generalized anxiety.’â€
(Wong, supra, 189 Cal.App.4th
at p. 1377.) The appellate court found
this “minimal showing†was insufficient to constitute severe emotional
distress. (Ibid.)
The
Wong court relied on
intentional infliction of emotional distress, claiming he made sexually
explicit and threatening comments which in effect demanded sex in return for
granting her requests for funds from a trust for her minor son. (Hughes,
supra, 46 Cal.4th at p. 1040.) In
affirming summary judgment, our Supreme Court held “plaintiff's assertions that
she has suffered discomfort, worry, anxiety, upset stomach, concern, and
agitation as the result of defendant's comments to her . . . do not comprise ‘“‘emotional
distress of such substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.’â€â€™ [Citation.]â€
(Id. at p. 1051.)
Here,
the evidence of Gill’s emotional distress was similar to and no greater than
that found insufficient in Wong and
Accordingly, we reverse the award of damages for emotional distress. Because we find the evidence is insufficient
to support the award of damages, we need not consider Varwig’s further argument
that Gill was not entitled to recover for emotional distress under
179 Cal.App.4th 442, because he was not a resident or occupant of the land.
VI
Punitive Damages
A. The Law
Civil
Code section 3294, subdivision (a) provides: “In an action for the breach of an
obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant.†The statute defines “malice†as “conduct
which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.†(Civ. Code, § 3294, subd. (c)(1).) “Oppression†means “despicable conduct that
subjects a person to cruel and unjust hardship in conscious disregard of that
person’s rights.†(Civ. Code, § 3294,
subd. (c)(2).)
Punitive
damages are available for malicious interference with an easement. In Zimmer,
supra, 39 Cal.App.3d at pages 438-439, the appellate court upheld an award
of $1500 in punitive damages for maliciously constructing a fence across an
easement.
The
purpose of punitive damages is “to deter, not to destroy.†(Adams
v. Murakami (1991) 54 Cal.3d 105, 112 (Adams).) Our role in reviewing an award of punitive
damages is to “determine whether the award is excessive as a matter of law or
raises a presumption that it is the product of passion or prejudice.†(Adams,
supra, 54 Cal.3d at pp. 109-110.) “Because the quintessence of punitive damages
is to deter future misconduct by the defendant, the key question before the
reviewing court is whether the amount of damages ‘exceeds the level necessary
to properly punish and deter.’
[Citation.]†(
award is excessive under California law, a court must consider (1) the reprehensibility of the
defendant’s conduct; (2) the amount of compensatory damages or actual harm
suffered by the plaintiff; and (3) the defendant's financial condition. (Ibid.;
Neal v. Farmers Ins. Exchange (1978)
21 Cal.3d 910, 928.)
The
finder of fact has wide discretion in determining what amount of punitive
damages is proper. “The California
Supreme Court has declined to prescribe any particular standard for assessing a
defendant’s ability to pay punitive damages [citation], but it has held that actual
evidence of the defendant’s financial condition is essential. [Citation.]
A punitive damages award is based on the defendant’s financial condition
at the time of trial. [Citations.]†(Kelly
v. Haag (2006) 145 Cal.App.4th 910, 915.)
“What is required is evidence of the defendant's ability to pay the
damage award. [Citation.]†(Robert
L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141,
1152.)
“While
punitive damages must bear a reasonable relation to actual damages, no fixed
ratio exists to determine the proper proportion.†(McGee
v. Tucoemas Federal Credit Union (2007) 153 Cal.App.4th 1351, 1361 (
“There is no simple formula for calculating punitive damages in that
there is no particular sum that represents the only correct amount for such
damages in any given case. Instead,
there is a wide range of reasonableness for punitive damages reflective of the
fact finder’s human response to the evidence presented. [Citation.]â€
(McGee, supra, 153 Cal.App.4th
at
p. 1362.)
Although
the calculation of punitive damages is a “‘fluid process’†that “‘does not
involve strict adherence to a rigid formula,’†“punitive damage awards are
generally not allowed to exceed 10 percent of the defendant's net worth, and [
] significantly lower percentages are indeed the norm.†(Storage
Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515.) “[P]unitive damage awards exceeding 10
percent of a defendant’s net worth have generally been disfavored by the
appellate courts.†(Goshgarian v. George (1984) 161 Cal.App.3d 1214, 1228.) The relationship of a punitive damages award
to defendant’s net worth, however, is not determinative of whether the award is
excessive because “‘[n]et worth’ is subject to easy manipulation and, in our
view, it should not be the only permissible standard. Indeed, it is likely that blind adherence to
any one standard could sometimes result in awards which neither deter nor
punish or which deter or punish too much.â€
(Lara v. Cadag (1993) 13
Cal.App.4th 1061, 1065, fn. 3.)
“[A]
reduction in compensatory damages does not mandate a corresponding reduction in
punitive damages.†(McGee, supra, 153 Cal.App.4th at p. 1362 [no reduction in $1,200,000
punitive damage award where compensatory damages reduced from $1,990,385 to
$750,000].) “‘[T]he “most important question is whether
the amount of the punitive damages award will have deterrent effect--without
being excessive.â€â€™ [Citation.]†(Ibid.)
An award of punitive damages must bear
some relation to the award of actual damages, so a significant reduction in
compensatory damages may make the punitive damage award “suspect.†(Auerbach
v. Great Western Bank (1999) 74 Cal.App.4th 1172, 1190 [remand $2,600,000
punitive damage award where compensatory damages reduced from $207,155 to
$6,750]; see Krusi v. Bear, Stearns &
Co. (1983) 144 Cal.App.3d 664, 680-681 [remand $50,000 punitive damage
award where compensatory damages of $58,940 reduced by $30,000 offset].)
B. Analysis
The
trial court found Varwig acted with oppression and malice in creating the “tank
trap†and awarded $35,000 in punitive damages. The court did not explain how it calculated
this amount.
Varwig
contends the evidence does not support the award of punitive damages. First, he contends the record does not
establish clear and convincing proof that Varwig acted reprehensively or
maliciously towards Gill. He asserts the
court’s finding is based on the “conjecture†that Varwig built a “tank
trap.†Varwig contends there is no
evidence he intentionally dug this trench to trap Gill; he contends there was
no evidence to refute his testimony that he simply repaired a broken water pipe.
Again,
it was for the trial court as trier of fact to determine the credibility of the
witnesses and credit the testimony and weigh the evidence accordingly. (Sav-On
Drug Stores, supra, 34 Cal.4th at p. 334.)
The photographs taken by Varwig that day established that Gill’s truck was
stuck in a ditch. Varwig admitted he dug
that ditch. The trial court clearly believed
Gill over Varwig about the intended use of the ditch--to trap Gill. Its belief is supported by the timing of the
incident, occurring mere days after Gill cut the barbed wire, another
impediment to his passage, as well as Varwig’s failure to offer Gill any
assistance or even to converse with him about the incident as Varwig
photographed Gill’s truck. Varwig took
multiple photographs of the stuck truck and contacted the sheriff, but these
pictures did not show any water from a broken pipe. Nor did they show a broken pipe nor Gill’s
cutting of the yellow caution tape before he entered the ditch as alleged by
Varwig, images that would have corroborated Varwig’s version of events. The trial court found the photographs
supported Gill’s testimony and it was entitled to make that finding.
Substantial
evidence supports the trial court’s finding that Varwig acted maliciously, that
his conduct in creating the “tank trap†was intended to cause injury. That Gill suffered no serious injury was
fortuitous, but does not negate a finding of malice.
Varwig
next contends the amount of punitive damages is excessive. He contends the $35,000 award is more than 10
percent of his net worth, which the bifurcated trial showed to be $210,000
($740,000 in assets less $530,000 in liabilities). The Gills challenge this figure. They claim the value of Varwig’s residence is
$650,000, as shown on his 2008 loan application, instead of the recent assessed
value of $468,452, and the value of Lots 23 and 25 is the amount Varwig paid
for them ($440,000) rather than his current estimate of $250,000. They further challenge defense counsel’s
suggestion that the economic downturn affected land values; “such is simply not
the case.â€
Varwig
has failed to show the award of punitive damages was excessive. Even after the reductions to the award of
compensatory damages, the punitive damage award of $35,000 is only a fraction
of the actual damages, which exceed $75,000.
The evidence of Varwig’s net worth, particularly the value of his
properties, was in dispute. It was the
role of the trial court, as the fact finder, to resolve the dispute. Further, “[n]et worth is too easily subject
to manipulation to be the sole standard for measuring a defendant's ability to
pay. [Citation.]†(Zaxis
Wireless Communications, Inc. v. Motor Sound Corp. (2001) 89 Cal.App.4th
577, 582.) We find no abuse of
discretion in the punitive damage award.
VII
Attorney Fees
A. The Law
“California follows
what is commonly referred to as the American rule, which provides that each
party to a lawsuit must ordinarily pay his own attorney fees. [Citations.]â€
(Trope v. Katz (1995) 11
Cal.4th 274, 278.) “Except as attorney’s
fees are specifically provided for by statute, the measure and mode of
compensation of attorneys and counselors at law is left to the agreement,
express or implied, of the parties . . . .â€
(Code Civ. Proc., § 1021.) Where
attorney fees are authorized by statute, such fees are recoverable as
costs. (Code Civ. Proc., § 1033.5, subd.
(a)(10)(B).)
One
exception to the general rule set forth in Code of Civil Procedure section 1021
is Code of Civil Procedure section
1021.9 (section 1021.9). Section 1021.9 provides: “In any action to recover damages to personal
or real property resulting from trespassing on lands either under cultivation
or intended or used for the raising of livestock, the prevailing plaintiff
shall be entitled to reasonable attorney’s fees in addition to other costs, and
in addition to any liability for damages imposed by law.†(Code Civ. Proc., § 1021.9.)
“We
must construe the language of a statute in accordance with the ordinary plain meaning
of the language used. ‘“The rules
governing statutory construction are well settled. We begin with the fundamental premise that
the objective of statutory interpretation is to ascertain and effectuate
legislative intent. [Citations.] ‘In determining intent, we look first to the
language of the statute, giving effect to its “plain meaning.â€â€™ [Citations.]
Although we may properly rely on extrinsic aids, we should first turn to
the words of the statute to determine the intent of the Legislature. [Citation.]
Where the words of the statute are clear, we may not add to or alter
them to accomplish a purpose that does not appear on the face of the statute or
from its legislative history.â€
[Citation.] [¶] “If the statutory language is clear and
unambiguous, there is no need for construction.†[Citation.]’ [Citation.]â€
(The TJX Companies, Inc. v. Superior Court (2008) 163 Cal.App.4th 80,
86.) “Exceptions to the general
provisions of a statute are to be narrowly construed; only those circumstances
that are within the words and reason of the exception may be included. [Citation.]â€
(Corbett v. Hayward Dodge, Inc.
(2004) 119 Cal.App.4th 915, 921.)
The
legislative history of section 1021.9 indicates its purpose was to “impose liability
for all property damage†caused by
trespass onto certain lands. (
Energy LLC (2007) 153 Cal.App.4th 583, 608, italics added.)
B. Analysis
On
cross-appeal, the Gills contend the trial court erred in denying their motion
for attorney fees under section 1021.9.
They argue the court erred in requiring both notice of the request for
fees in the complaint and damage to the crops under cultivation as
prerequisites to an award of fees. As to
the latter point, they contend their actual damages, expenses and damages for
loss of use of the easement, are sufficient.
We conclude the trial court properly denied the motion for attorney fees
because section 1021.9 is inapplicable to this case.
This
action does not fall within the plain language of section 1021.9. Section 1021.9 requires an “action to recover
damages to personal or real property resulting from trespassing on lands . . .
under cultivation.†First, there was no
trespass. Varwig did not trespass on the
Gills’ property that was under cultivation.
The Gills contend Varwig trespassed on their easement. They assert that Varwig’s interference with
their easement constituted a trespass because “ ‘[t]respass to property is the
unlawful interference with its possession.’
[Citation.]†(
(1996) 50 Cal.App.4th 1301, 1306.) The
Gills, however, did not have a possessory interest in the easement. “An easement gives a nonpossessory and
restricted right to a specific use or activity upon another's property, which
right must be less than the right of ownership.
[Citation.]†(
Cal.App.4th 1296, 1306.) Interference
with an easement is a nuisance, not a trespass.
(Moylan, supra, 181 Cal.App.3d
at
p. 574.)
Our
Supreme Court explained the difference between a nuisance and a trespass in
Cal.3d 229 (Wilson), quoting Dean
Prosser at page 233: “‘The distinction
which is now accepted is that trespass is an invasion of the plaintiff's
interest in the exclusive possession of his land, while nuisance is an
interference with his use and enjoyment of it.’†The
fashion, the distinction is succinctly expressed in comment d to section 821D
of the Restatement Second of Torts: ‘A trespass is an invasion of the interest
in the exclusive possession of land, as by entry upon it. . . . .
A nuisance is an interference with the interest in the private use and
enjoyment of the land and does not require interference with the possession.’ [Citation.]â€
(Wilson, supra, 32 Cal.3d at
p. 233.) Because trespass requires that
the plaintiff have exclusive possession of the land, “[a] tenant in common
cannot trespass on the commonly owned property.†(Kapner
v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1189.)
Second,
although the Gills’ action sought to recover certain damages, it did not seek
recovery for “damages to personal or
real property.†Instead, the action
sought to recover for damage to the easement, which is not real property. An easement is an intangible property
interest to use another’s land (or to prevent the owner’s use of his land), but
it does not create an interest in the land itself. (6 Miller & Starr, Cal. Real Estate,
15-19-15-20.) Damage to or interference
with an easement is not property damage.
(See Kazi v. State Farm Fire &
Cas. Co.,
supra, 24 Cal.4th 871, 881 [easement
disp
| Description | Plaintiffs Jasbir and Parampal Gill own two parcels of agricultural property on which they have planted a vineyard. They access a portion of their property over an unpaved route across property owned by defendant Roger Varwig. This route is shown as a road on old maps. The Gills claim the right to use this route either because it is a dedicated public road or because they have a prescriptive easement. This dispute arose when Varwig obstructed the Gills’ access, first by means of a barbed wire “fence†blocking the unpaved route and then by digging a ditch across it. Jasbir Gill’s truck got stuck in the ditch. The Gills filed suit against Varwig. The trial court found in their favor, finding a public right of way or a prescriptive easement across Varwig’s property. The court issued an injunction preventing Varwig from interfering with this public right of way or easement and awarded the Gills damages, including damages for emotional distress and punitive damages. Varwig appeals, contending substantial evidence does not support the finding of either a public right of way or a prescriptive easement, or the damages awarded. The Gills cross-appeal from the order denying their motion for attorney fees. As we will explain, we modify the judgment. Substantial evidence does not support the trial court’s finding of a public right of way or the award of damages for emotional distress. The damage award for loss of use of the easement must be reduced to exclude the period of time for which there is no evidence of obstruction. In all other respects, we affirm the judgment and the order denying attorney fees. |
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