Van
Taylor v. Ivie
Filed 11/19/12
Van Taylor v. Ivie CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THREE
THRIS VAN TAYLOR,
Plaintiff, Cross-defendant and Appellant,
v.
RICKEY IVIE et al.,
Defendants,
Cross-complainants and Appellants.
B206761, B225934
(Los Angeles County
Super. Ct.
No. BC268576)
THRIS VAN TAYLOR,
Cross-complainant and Appellant,
v.
RICKEY IVIE et al.,
Cross-defendants
and Appellants.
B206761, B225934
(Los Angeles County
Super. Ct.
No. BC317765)
APPEALS
from a judgment of the Superior Court
of
County, Mel Red Recana, Judge. Reversed with directions.
Thris Van
Taylor, in pro. per., for Plaintiff, Cross-defendant, Cross-complainant and
Appellant.
Richardson
& Fair, Manuel Domingez; Ivie, McNeill & Wyatt and Rickey Ivie for
Defendants, Cross-complainants, Cross-defendants and Appellants.
_______________________________________
Thris Van Taylor and Rickey and
Eloise Ivie are next door neighbors.
A property dispute has spawned contentious litigation between
them. Both sides appeal a judgment
after a jury trial challenging the disposition of several counts in various
pleadings in these consolidated actions.
We conclude that (1) the granting of summary judgment against the Ivies’
cross-complaint for an equitable easement and a prescriptive easement was
error; (2) Van Taylor has not established a
of Van Taylor’s assault count was error; (4) the jury instructions on
trespass and nuisance were prejudicially erroneous; and (5) Van Taylor failed
to establish a basis for a permanent injunction. We therefore will reverse the judgment with
directions.
AND PROCEDURAL BACKGROUND
1. Factual
Background
Van
Taylor owns and resides on the property immediately south of the property where
the Ivies reside in the Ladera Heights community of unincorporated Los Angeles
County. Van Taylor purchased his
property in April 1988. The Ivies
purchased their property from Kenneth and Rachel Fratto in June 2000. A cement block fence runs parallel to the
line dividing the two properties. The
upright stem of the fence stands completely within Van Taylor’s property
approximately 3 to 4 inches south of the property line. The Ivies and their predecessors for many
years assumed that they owned the land immediately north of the fence and used
and maintained that land as part of their backyard.
A
dispute first arose in March 2001 when Van Taylor made a written demand
that the Ivies vacate the thin strip of land north of the fence. The Ivies hired a surveyor at that time and
learned that the property line was north of the fence.
2. Action
Commenced by Van Taylor and First Trial
Van
Taylor filed a complaint against the Ivies in February 2002 (Super. Ct.
L.A. County, No. BC268576) alleging that a pear tree and shrubs on the
Ivies’ property encroach on Van Taylor’s property, causing damage and
interfering with the use and enjoyment of his property. He also alleges that the fence lies
completely within his property, and that the Ivies have attached various items
to the fence and have refused to remove those items. Van Taylor alleges counts for
(1) intentional infliction of emotional distress; (2) trespass; (3)
negligent trespass; (4) nuisance; (5) quiet title; and (6) an injunction.
The
Ivies filed a cross-complaint against Van Taylor in April 2002 alleging that
they and their predecessors have used and maintained the thin strip of Van
Taylor’s land north of the fence openly, continuously, exclusively and
adversely for many years. They allege
counts for (1) an equitable easement; and (2) a prescriptive easement.
The
trial court (Hon. Malcolm Mackey) bifurcated the trial and heard the equitable
issues first, without a jury. The court
entered a judgment in March 2003 declaring the fence a party wall and granting
the Ivies an easement to use and maintain the north side of the fence and the
thin strip of Van Taylor’s land north of the fence. The judgment also declared the pear tree to
be owned in common by Van Taylor and the Ivies as coterminous owners. The court found in favor of the Ivies on Van
Taylor’s counts for nuisance, quiet title and an injunction, and found in favor
of the Ivies on their count for an equitable easement. The court concluded that the other counts
were moot. Van Taylor appealed the
judgment.
3. Action
Commenced by the Ivies
The
Ivies filed a complaint against Van Taylor in June 2004 (Super. Ct.
L.A. County, No. BC317765) and filed a first amended complaint in October
2004 and a second amended complaint in August 2006. They allege in their second amended complaint
that Van Taylor poisoned the pear tree and other plants north of the fence in
or about November 2003. They also allege
that he has harassed them by complaining to local government agencies about a
barking dog and electrical equipment on the Ivies’ property and by threatening
to file another lawsuit. The Ivies
allege counts for (1) trespass; (2) negligent destruction of personal
property; (3) intentional destruction of personal property; (4) negligent
infliction of emotional distress; (5) intentional infliction of emotional
distress; (6) assault; and (7) invasion of privacy.
Van
Taylor filed a cross-complaint against the Ivies in October 2004 and filed
a first amended cross-complaint in January 2006. Van Taylor alleges that the Ivies
attached a wooden lattice to the fence in March 2003 and that the pear tree,
shrubs and other items encroach on his property, causing damage and interfering
with the use and enjoyment of his property.
Van Taylor also alleges that the Ivies caused their agents to enter his
enclosed yard on several occasions in 2005 and that Rickey Ivie verbally
threatened him from the public sidewalk in August 2005. Van Taylor alleges counts for (1)
intentional infliction of emotional distress; (2) assault; (3) trespass; (4)
negligent trespass; (5) nuisance; and (6) an injunction.
4. Reversal
in Part and Affirmance in Part of the March 2003 Judgment
On
appeal from the March 2003 judgment declaring the fence a party wall and
granting an easement in favor of the Ivies, we concluded as a matter of law
based on undisputed facts that the fence is not a party wall. We concluded that the trial court’s
declaration of an easement in favor of the Ivies, its decision in favor of the
Ivies on Van Taylor’s counts for nuisance, quiet title and an injunction,
and its determination that the other counts were moot all were based on the
erroneous finding that the fence was a party wall. We therefore reversed the judgment in its
entirety with the sole exception of the denial of relief on Van Taylor’s count
for intentional infliction of emotional distress, which we affirmed. (Van
Taylor v. Ivie (May 23, 2005, B167277) [nonpub. opn.] pp. 13-14, 17, 19.)
We
discussed at some length the issues to be addressed by the trial court on
remand in an effort to assist in the resolution of those issues. (Van
Taylor v. Ivie, supra, B167277,
pp. 14-18.) We stated that a permanent
injunction is a remedy for a continuing trespass or nuisance and that a
court considering an injunction to cause the removal of an encroachment onto
adjoining property must consider the equities and the relative hardships to
both parties. A court must deny an
injunction if it finds that the hardship to the defendant if an injunction were
granted substantially outweighs the hardship to the plaintiff if an injunction
were denied. (Id. at pp. 15-16.) We stated
that the trial court on remand 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. (Id. at p. 18.)
We
stated further that a quiet title action adjudicates adverse claims of interest
in property, including a claim of an easement.
We stated that the trial court on remand must decide whether to declare
an equitable easement before ruling on the merits of quiet title, and that Van
Taylor could prevail on his quiet title count if and only if the court denied
an easement in favor of the Ivies. (
We
also noted that the Ivies had stated at trial that they did not intend to
pursue their count for a prescriptive easement and had stated that the count
was “withdrawn.†(Van Taylor v. Ivie, supra,
B167277, p. 5.) We stated that the Ivies
had effectively requested the dismissal of that count and abandoned it, and
concluded, “Van Taylor is entitled to judgment in his favor on the count for a
prescriptive easement.†(
further proceedings consistent with our opinion. (Id.
at p. 19.)
5. Rickey
Ivie’s Application for an Injunction to Stop Harassment
Rickey
Ivie filed an application for an injunction against Van Taylor to stop
harassment on September 7, 2005 (Super. Ct. L.A. County, No. BS098998). He alleged that Van Taylor had harassed him
and his family members by shouting profanities, verbally threatening him and
peering over the fence to photograph guests in the Ivies’ living room. A hearing on the application was scheduled
for September 26, 2005. The trial
court in case No. BC317765 (Hon. Teresa Sanchez‑Gordon) continued the
hearing to October 17, 2005, conducted a hearing on the application on that
date and took the matter under submission.
The court granted the application and issued a restraining order to stop
harassment on October 25, 2005.
Van
Taylor filed an objection to the restraining
order arguing that the trial court had failed to timely conduct a hearing
on the application as required by Code of Civil Procedure section 527.6,
former subdivision (d) and that the hearing on October 17, 2005, was improper
because it was held in case No. BC317765 rather than case
No. BS098998. The court issued a
minute order on November 22, 2005, amending its order of October 17 nunc
pro tunc to state that case No. BC317765 and case No. BS098998 were
related and were consolidated for all purposes.
The court stated that the omission was due to inadvertence and clerical
error.
6. Relief
from Default and Consolidation of Cases
The
Ivies filed a motion in November 2005 for relief from default (Code Civ. Proc.,
§ 473, subd. (b)) arguing that the dismissal of their count for a
prescriptive easement was a result of mistake, inadvertence, surprise or
excusable neglect. They filed a
declaration by their attorney stating that she withdrew the count 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 believed that a prescriptive
easement would have been duplicative of the relief awarded by the court. The trial court granted the motion.
The
Ivies moved to consolidate case No. BC268576 with the two previously
consolidated cases (Nos. BC317765 & BS098998). The trial court granted the motion and
ordered the three cases consolidated on January 12, 2006.
7. Van
Taylor’s Summary Judgment Motion
Van
Taylor filed a motion in June 2006 for “summary judgment†against the Ivies’
cross-complaint in No. BC268576 and on Van Taylor’s counts for trespass,
nuisance, quiet title, assault and an injunction. He did not expressly seek “summary
adjudication†of individual counts, but instead sought “summary judgment†on
specified counts.
The
Ivies opposed the motion arguing among other things that Van Taylor was
not entitled to summary judgment because he had not shown that the entire
action had no merit and that he was not entitled to summary adjudication
because he had failed to move for summary adjudication. They also argued that there were triable
issues of fact on the merits of the challenged counts.
The
trial court (Hon. Mel Red Recana) granted the summary judgment motion in part
and denied it in part in an order filed on September 13, 2006. The court concluded as a matter of law that
the Ivies could not prove that their use of Van Taylor’s property was hostile and
under a claim of right, as necessary to establish a prescriptive easement. The court quoted statements made by Kenneth
Fratto on the record at a hearing prior to the first trial on Van Taylor’s
motion to amend his complaint to name the Frattos as defendants. The court in its order quoted the following
exchange from the reporter’s transcript of that hearing:
The
court: “You’re not making a claim, are
you, Mr. Fratto?â€
Mr.
Fratto: “Your honor, as I testified in
my deposition, all I did was occupy what I thought was the property as described
in the deed. And I had no idea that the
wall was off the deed.â€
The
court: “Okay.â€
Van
Taylor’s counsel: “The question is, are
you making a claim, not are you—â€
The
court: “Well, you’re not making a
claim?â€
Van
Taylor’s counsel: “Yes or no?â€
Mr.
Fratto: “I’m not making—I mean, I never
made one.â€
The
court: “He’s not making a claim,
no. That’s why—this is smoke and
mirrors.â€
The
order stated further that the alleged equitable easement was derivative of the
alleged prescriptive easement and, “The short period of time that the Ivies had
used the strip of land and fence before Van Taylor took action to prevent
further adverse use, and the absence of any substantial expenditures incurred
by the Ivies versus the curtailment of Van Taylor’s use and enjoyment of his
property, the damages being incurred caused by the adverse use, and the
diminution of the property value show greater hardship for Van Taylor
compared to the Ivies.†The court
therefore granted summary judgment against the Ivies’ cross-complaint for an
equitable easement and a prescriptive easement. The order stated with respect to the counts
alleged in Van Taylor’s complaint that there were triable issues of fact
and that the summary judgment motion was denied as to those counts.
The
Ivies filed a petition for writ of mandate in October 2006 challenging the
order to the extent that it granted summary judgment in part. We summarily denied the petition on October
31, 2006 (B194236). The trial court
filed a “Judgment†on November 20, 2006, denying the Ivies and relief on their
cross-complaint.
8. Voluntary
Dismissal of the Ivies’ Complaint and Rulings on
Motions in Limime
The
Ivies filed a notice in October 2007 that they had settled with Van Taylor’s
insurer and later dismissed their complaint against Van Taylor in case
No. BC317765. The trial court (Hon.
Mel Red Recana) considered motions in limine in preparation for trial on the
remaining counts alleged by Van Taylor in his complaint in case
No. BC268576 and his cross-complaint in case No. BC317765.
The
trial court stated that the statement in our prior opinion that Van Taylor was
entitled to quiet title if and only if the court denied an easement in favor of
the Ivies (Van Taylor v. Ivie,
granting of summary judgment against the Ivies’ cross-complaint for an
equitable easement and a prescriptive easement compelled the conclusion that
Van Taylor was entitled to judgment in his favor on his count for quiet title.
The
trial court also granted the Ivies’ motion in limine to exclude any evidence
that Rickey Ivie had assaulted Van Taylor.
The court stated that in issuing a restraining order to stop harassment
the court had decided that the Ivies did not assault Van Taylor. The court concluded that that decision was
final and binding and precluded Van Taylor’s counts for assault and
intentional infliction of emotional distress.
The court effectively dismissed those counts at that time, although no signed
order of dismissal was filed and the ruling was not reflected in any minute
order.
9.
Second Trial and Order of January
22, 2008
A
jury trial commenced in October 2007.
The trial court instructed the jury on counts for trespass and
nuisance. The jury returned a special
verdict on December 12, 2007, answering “No†to the questions “Did Thris
Van Taylor have exclusive possession of the land?†as to trespass and “Did
defendants interfere with Thris Van Taylor’s use or enjoyment of his
property?†as to nuisance.
The
trial court filed an order on January 22, 2008, signed by the judge, stating:
“ORDER
“Judgment
is issued and entered this date in favor of Plaintiff Thris Van Taylor and
against Defendants Rickey Ivie and Eloise Ivie as to the Quiet Title cause of
action as well as the causes of action for Equitable and Prescriptive
Easements.
“Judgment
is issued and entered this date in favor of Defendants Rickey Ivie and Eloise
Ivie against Plaintiff Thris Van Taylor as to the causes of action for Trespass
and Nuisance.
“The
Court orders plaintiff’s remaining cause of action for Injunction bifurcated
from the plaintiff’s Complaint, and a trial setting conference is set for Feb.
29, 2008 at 8:30 AM.
“The
Court determines, based on the above Order, that there is no prevailing party
in the action.
“SO
ORDERED.â€
10. Notices
of Appeal
The
Ivies filed a notice of appeal from the order of January 22, 2008, stating that
they were appealing the “judgment†entered on that date, the order of
September 13, 2006, granting summary judgment, and the “judgment†entered
on November 20, 2006. Van Taylor
also filed a notice of appeal from the “judgment†entered on January 22,
2008. The appeals were designated case
No. B206761.
11. Van
Taylor’s Motions for Judgment Notwithstanding the
Verdict and New
Trial
Van
Taylor moved for judgment notwithstanding the verdict on his counts for
trespass and nuisance. He also moved for
a new trial on several grounds. The
trial court denied both motions in February 2008.
12.
Van
Taylor commenced a separate action against Rickey Ivie and others in February
2009 (Super. Cr. L.A. County, No. BC408629).
Van Taylor filed a complaint alleging that Rickey Ivie and another
defendant, while they were inspecting the fence in March 2007, threatened to
physically harm Van Taylor if he touched the fence. Van Taylor also alleged that Rickey Ivie
and another defendant intentionally or negligently caused him emotional
distress. The trial judge assigned to
the case, Judge Mel Red Recana, was the same judge who presided in the
trial in these consolidated actions.
Judge Recana recused himself in case No. BC408629, stating in
a minute order:
“Given
that the allegations in the BC408629 Complaint are so intertwined with the
facts in BC268576 involving the same parties, these two cases should be related
under C.R.C. 3.300[.] However, in the
BC268576 jury trial, this Court considered the credibility of the witnesses and
the evidence that will be proffered in BC408629. This Court can no longer be fair and
impartial, therefore this Court recuses itself from hearing BC408629.â€
The
trial court also declined to order the new case related to these consolidated
actions at that time. Van Taylor filed a
first amended complaint in November 2009 alleging counts against Rickey Ivie
and others for (1) assault; (2) intentional infliction of emotional
distress; (3) negligent infliction of emotional distress; and (4) invasion of
privacy.
13. Statement
of Decision and Judgment on Injunctive Relief
Counsel
filed briefs on Van Taylor’s request for an injunction, and the trial court
heard oral argument in May 2010. Each
side submitted a proposed judgment.
The court filed a statement of decision on June 17, 2010, stating that
judgment had already been entered in favor of Van Taylor on his count for quiet
title and on the Ivies’ counts for an equitable easement and
a prescriptive easement. The
statement of decision also stated:
“The
Court already found on November 20, 2006 that ‘ . . . The
short period of time that the Ivies had used the strip of land and fence before
Van Taylor took action to prevent further adverse use, and the absence of any
substantial expenditures incurred by the Ivies versus the curtailment of Van
Taylor’s use and enjoyment of his property, the damages being incurred caused
by the adverse use, and the diminution of the property value shows greater
hardship for Van Taylor compared to the Ivies.’
“In
balancing the respective hardships of the parties, the Court, in addition to
the above finding, also considered the following: defense counsel observed that
requiring the defendants to remove the attachments to the north side of the
fence would be problematic because the process of removal could damage the
fence and defendants’ entry into plaintiff’s land may be the basis of another
lawsuit for trespass on his property.
Except for the fiberglass, lattice and the pvc pipe, the plants and the
attachments on the fence were placed there by defendants’ predecessor in
interest. Plaintiff expressed his willingness
to remove the attachments as well as the pear tree and the honeysuckle
shrubbery if authorized by the court.
Only the plaintiff would benefit from the granting of the
of the parties that the Court should authorize Van Taylor to remove the
attachments to the fence, the pear tree and other plants.
“WHEREFORE,
the Court finds for Plaintiff Thris Van Taylor in his cause of action for
Injunction against defendants Rickey Ivie and Eloise Ivie.
“The
Court does not grant any monetary damage
claimed by Van Taylor. Plaintiff’s
causes of action for Trespass and Nuisance and Damages were already tried by a
jury. The jury returned verdicts for the
defendants and the parties have appealed.â€
The
trial court entered a judgment that same day awarding a permanent injunction in
favor of Van Taylor. The judgment states
that the Ivies, as soon as possible, must allow Van Taylor to enter their
property to remove all of their property from Van Taylor’s land and fence,
including 16 enumerated items. The
judgment also prohibits the Ivies from entering or using Van Taylor’s land in
any manner. The judgment does not expressly
address the disposition of the other counts.
14.
The Ivies filed a
June 17, 2010. Van Taylor also filed a
notice of appeal from the judgment. The
appeals were designated case No. B225934.
We consolidated case No. B206761 with case No. B225934.
15. Trial,
Judgment and Appeal in Van Taylor’s Separate Action
A
jury trial in case No. BC408629 in November 2011 concluded with a directed
verdict in favor of Rickey Ivie on the counts for emotional distress and
invasion of privacy and a jury verdict favor of Rickey Ivie on the assault
count. Van Taylor appealed the
judgment. The appeal was designated case
No. B239275 and has not been consolidated with the present appeals.
Van
Taylor challenges the judgment in favor of the Ivies on his counts for
trespass, nuisance, assault and intentional infliction of emotional distress
and the trial court’s failure to award him damages, attorney fees and costs as
the prevailing party. He contends in his
appeal (1) the court erroneously instructed the jury on his counts for trespass
and nuisance; (2) the evidence does not support the verdict on those two
counts; (3) this court in our prior opinion conclusively decided those
counts in his favor, and the trial court was bound by those determinations
under the doctrine of law of the case; (4) the judgment in his favor on
the counts for an equitable easement, a prescriptive easement and quiet title
conflict with the jury’s findings of no trespass and no nuisance, so the jury’s
findings cannot stand; (5) the trial court erred by failing to issue
a permanent injunction before submitting the trespass and nuisance counts
to the jury and by denying his motions for a directed verdict, judgment
notwithstanding the verdict and a new trial; (6) the adjudication of the
restraining order to prevent harassment does not preclude his counts for
assault and intentional infliction of emotional distress; (7) the trial court
erred by denying his motion for a mistrial relating to comments made by
Rickey Ivie on the witness stand during a break in the proceedings; (8) the
trial court erred by allowing the Ivies to testify as to their state of mind
regarding the alleged trespass and nuisance; (9) the trial court erred by
allowing witnesses to testify regarding documents that should have been but
were not produced in an exchange of expert witness information; (10) he is
entitled to damages for the Ivies’ wrongful use of his property and for
depreciation, and he is entitled to attorney fees and costs as the prevailing
party; and (11) the trial court erroneously refused his request to call
a rebuttal witness.
The
Ivies challenge the granting of summary judgment against their counts for an
equitable easement and a prescriptive easement, the award of quiet title in
favor of Van Taylor and the permanent injunction against them. They contend in their appeal (1) the trial
court erred by granting a partial summary judgment in favor of Van Taylor when
he did not move for summary adjudication in the alternative, and the ruling was
incorrect on the merits; (2) Van Taylor is not entitled to a permanent
injunction because the jury found against him on his counts for trespass and
nuisance, and the injunction is overbroad and unreasonable; and (3) the award
of quiet title in favor of Van Taylor is based on the erroneous granting
of summary judgment against the Ivies’ counts for an equitable easement and
a prescriptive easement and therefore is also erroneous, and additional
evidence presented in the jury trial shows that the Ivies are joint owners of
the fence together with Van Taylor.
1. One
Final Judgment
A
judgment is the final determination of the rights of the parties in an action
or proceeding. (Code Civ. Proc.,
§ 577.) A judgment terminates the
litigation between the parties on the merits of the case and leaves nothing to
do other than to enforce what has been determined. (Sullivan
v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) Regardless of how it is denominated by the
trial court, a decision is not a judgment if issues on the merits of the case
remain to be decided between the parties.
(Ibid.)
The
“one final judgment†rule provides that an appeal may be taken only from the
final judgment in an action and that interlocutory orders generally are not
appealable unless they are made appealable by statute. (In re
Baycol Cases I & II (2011) 51 Cal.4th 751, 756;
25 Cal.4th 688, 696‑697; see Code Civ. Proc., § 904.1.) Interlocutory orders involving the merits,
necessarily affecting the judgment or substantially affecting the rights of a
party are reviewable on appeal from the judgment. (Code Civ. Proc., § 906.)
An
order granting summary judgment is neither a judgment nor an appealable
order. (Richards v. Department of Alcoholic Beverage Control (2006) 139
Cal.App.4th 304, 311, fn. 2; Zavala v.
Arce (1997) 58 Cal.App.4th 915, 924, fn. 7.) The appeal is from the judgment later entered. (Richards,
supra, at p. 311, fn. 2;
Cal.App.4th 753, 761, fn. 7.) The
“Judgment†filed on November 20, 2006, based on the granting in part of
Van Taylor’s motion for summary judgment was not a judgment because other
counts still remained to be determined between the parties. We conclude that neither the order granting a
partial summary judgment nor the ensuing “Judgment†was appealable. We therefore reject Van Taylor’s argument
that the Ivies failed to timely appeal the summary judgment.
The
order entered on January 22, 2008, after the jury trial, was not a judgment
because whether to award an injunction and the scope of any injunctive relief
remained to be decided. The judgment
filed on June 17, 2010, in contrast, was a final judgment because it finally
determined the rights of the parties in these consolidated actions. Although the judgment addresses only the
injunction and fails to mention the jury verdict or the disposition of other
counts, the significant interlocutory rulings are reviewable on appeal from the
judgment. (Code Civ. Proc.,
§ 906.) In light of the notices of
appeal from the judgment of June 17, 2010, we conclude that the notices of
appeal from the order of January 22, 2008, are superfluous and ineffectual.
2.
Judgment on the
Easement Counts
a. Summary
Judgment Versus Summary Adjudication
Summary
judgment is proper only if there is no triable issue of material fact and the
moving party is entitled to a judgment in its favor as a matter of law. (Code Civ. Proc., § 437c, subd.
(c).) A party challenging all of the
counts alleged in a complaint or a cross-complaint is not entitled to a
judgment in its favor as a matter of law if other counts between the same
parties remain undecided and unchallenged.
The proper procedure in those circumstances is a motion for summary
adjudication on specified counts (id.,
subd. (f)). We need not decide
whether Van Taylor’s failure to move for summary adjudication is dispositive,
however, because we conclude that he is not entitled to summary adjudication on
the merits.
b. Prescriptive
Easement
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. (Warsaw
v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570;
321‑322; Civ. Code, § 1007; Code Civ. Proc., § 321 [five-year
period].) Periods of prescriptive use by
successive owners of the dominant estate can be “tacked†together if these
elements are satisfied. (
289, 295; see Rest.3d Property, Servitudes, § 2.17.) Whether each of these elements is satisfied
is a question of fact. (
The
term “adverse†in this context is essentially synonymous with “hostile†and
“under a claim of right.†(
1244, 1252; Felgenhauer v. Soni
(2004) 121 Cal.App.4th 445, 450.) The
claimant need not believe or claim that his or her use or possession is legally
justified. (Aaron, supra, at
p. 1252; Felgenhauer,
ownership. (Gilardi v. Hallam, supra,
30 Cal.3d at p. 322.) Instead, “the
rule is settled in California that the requisite hostile possession and claim
of right may be established when the occupancy or use occurred through
mistake.†(Ibid.; see Rest.3d Property, Servitudes, § 2.16, com. f, p.
229.) The claimant’s use or possession
is not adverse to the owner if the claimant recognizes the owner’s potential
claim and expressly or impliedly demonstrates an intent to claim a right of use
only if the disputed ownership is resolved in the claimant’s favor. But such an intent cannot be inferred from
the mere fact that the claimant mistakenly believes that he or she is the
owner. (Gilardi, supra, at
p. 326; see Rest.3d Property, Servitudes, § 2.16, com. f., p. 229
[stating that the user need not “claim entitlement to a servitude or show color
of title,†but “must not act in such a way as to lead the owner to believe that
no adverse claim is assertedâ€].)
The
trial court here concluded that the Ivies could not prove that their use of the
property was hostile and under a claim of right because their predecessor,
Kenneth Fratto, denied ever having asserted a hostile claim. In our view, Fratto’s statements showed only
that he mistakenly believed that he owned the property and was unaware of any
ownership dispute.
title="">[5]
of the property under a mistakenly belief that he owned the property
constitutes adverse use, and his failure to affirmatively assert a hostile
claim is irrelevant. We conclude that
the trial court erred by granting a partial summary judgment on this
basis. Van Taylor has shown no
other basis to justify the summary adjudication of the count for
a prescriptive easement, so we conclude that he is not entitled to summary
adjudication of this count.
name="_ftnref6" title="">[6]
c. Equitable
Easement
An
easement may be created in equity in favor of a property owner to allow use of
adjoining property. (
Cal.App.4th 1003, 1008-1009; Linthicum v.
Butterfield (2009) 175 Cal.App.4th 259, 265.) A court deciding whether to create an
equitable easement must consider the relative hardships to the parties in the
same manner that a court considers the relative hardships in deciding
whether to issue an injunction prohibiting use of adjoining property. (Tashakori,
supra, at p. 1009;
question whether to create an equitable easement is the flip side of the
question whether to issue an injunction prohibiting use, and the denial of an
injunction effectively grants the user the right of use. (Linthicum,
supra, at p. 265.)
The
trial court here concluded that the Ivies could not establish an equitable
easement because their period of use was too short and because they had made no
substantial expenditures, while Van Taylor would suffer curtailed use and
enjoyment of his property, damages caused by the Ivies’ use of his property and
a diminution in the value of his property.
The parties presented conflicting evidence on the summary judgment motion
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. We conclude that this
conflicting evidence created triable issues of material fact precluding summary
adjudication of the count for an equitable easement.
Moreover,
we believe that the trial court erred to the extent that it refused to consider
the use of Van Taylor’s property by the Ivies’ predecessors in interest. In our view, the duration of use, including
use by predecessors in interest, is a factor to consider in weighing the
equities and the relative hardships.
(See Tashakori v. Lakis,
use may be awarded in granting an equitable easement (Linthicum v. Butterfield, supra,
175 Cal.App.4th at p. 268; Christensen
v. Tucker (1952) 114 Cal.App.2d 554, 559), so the existence of damages does
not necessarily weigh against the creation of an equitable easement.
3. Van
Taylor Has Not Established a Right to Quiet Title
The
trial court concluded that Van Taylor was entitled to quiet title because he
had defeated the Ivies’ claims for a prescriptive easement and an equitable
easement. In light of our conclusion
that Van Taylor is not entitled to summary adjudication of those counts,
however, the parties’ conflicting claims to the property are unresolved. Van Taylor therefore has not established
a right to quiet title at this time, so the judgment on that count must be
reversed.
4.
Assault and
Intentional
Infliction of Emotional Distress Was Error
The dismissal of Van Taylor’s counts
for assault and intentional infliction of emotional distress was based on the
doctrine of collateral estoppel. Whether
collateral estoppel applies in these circumstances is a question of law that we
review de novo. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 618.)
Collateral
estoppel, or issue preclusion, precludes the relitigation of issues argued and
decided in prior proceedings. (
Cal.4th 501, 511.)
“ ‘Traditionally, we have applied the doctrine only if several
threshold requirements are fulfilled.
First, the issue sought to be precluded from relitigation must be
identical to that decided in a former proceeding. Second, this issue must have been actually
litigated in the former proceeding.
Third, it must have been necessarily decided in the former
proceeding. Fourth, the decision in the
former proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]’
[Citation.]†(
“ ‘The “identical issue†requirement addresses whether “identical
factual allegations†are at stake in the two proceedings, not whether the
ultimate issues or dispositions are the same.
[Citation.]’ [Citation.]†(Id.
at pp. 511-512.)
Code
of Civil Procedure section 527.6, subdivision (i) authorizes an injunction
to prohibit harassment if the trial court finds by clear and convincing
evidence that the petitioner has suffered unlawful harassment. “Harassment†is defined as “unlawful
violence, a credible threat of violence, or a knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, or
harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would
cause a reasonable person to suffer substantial emotional distress, and
must actually cause substantial emotional distress to the petitioner.†(Id.,
subd. (b)(3).) The statute does not
state that the petitioner must be innocent of harassment to obtain an
injunction. Although Van Taylor argued
in opposing the petition that Rickey Ivie had assaulted him, we conclude that
whether Rickey Ivey assaulted Van Taylor and whether his conduct toward Van
Taylor constituted an intentional infliction of emotional distress were not
issues that were necessarily decided in ruling on the petition. We therefore conclude that the dismissal of
Van Taylor’s counts for assault and intentional infliction of emotional
distress based on collateral estoppel
was error.
5. The
Jury Instructions and Special Verdict Questions on Trespass and
Nuisance Were
Prejudicially Erroneous
a. Standard
of Review
We
review a claim of instructional error de novo and independently determine
whether the instruction correctly stated the law. (Bowman
v. Wyatt (2010) 186 Cal.App.4th 286, 298.) An instructional error was prejudicial only
if it seems probable that the error prejudicially affected the verdict. (Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) In making this determination, we must
consider “(1) the state of the evidence, (2) the effect of other
instructions, (3) the effect of counsel’s arguments, and (4) any indications
by the jury itself that it was misled.
[Fn. omitted.]†(
b. Trespass
Trespass
is an unlawful interference with the plaintiff’s interest in the exclusive
possession of real property, ordinarily by unauthorized entry. (Wilson
v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233.) Owners and tenants generally have the right
to exclude others from occupying real property.
(Allred v. Harris (1993) 14
Cal.App.4th 1386, 1390.) The
interference must result from an intentional, reckless or negligent act or an
ultra hazardous activity. (
247 Cal.App.2d 774, 784; see Wilson,
158, 165.) The defendant’s mistaken
belief that he or she had a right to enter the land is no defense unless that
belief was induced by the plaintiff’s conduct.
v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480-1481; See
Rest.2d Torts, § 164.)
A
plaintiff seeking both the legal remedy of damages for a past trespass and the
equitable remedy of an injunction to prevent a future trespass, as Van Taylor
does here, is entitled to a jury trial on the factual issues with respect to
the damages remedy. (
(1939) 13 Cal.2d 60, 68-69 (Pacific
Western Oil).) The jury’s
determination of those factual issues is binding on the trial court later
deciding the equitable issues with respect to an injunction. (Ibid.)
Any
person who actually occupies real property can maintain an action for trespass
as long as he or she has a right of possession superior to that of the
defendant. (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246;
Cal.App.3d 769, 774.) The plaintiff need
not occupy every inch of the property to qualify as a person who occupies the
property. Instead, a plaintiff who
occupies property can maintain an action for trespass against an encroacher who
occupies part of the property without permission. (Brown
Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858.)
The
trial court here modified and instructed the jury on CACI No. 2000 as follows:
“Plaintiff
claims that defendants trespassed on his property. To establish this claim, plaintiff must prove
all of the following:
“1. That plaintiff (a) owned (b) occupied (c)
controlled (d) exclusively possessed the property;
“2. That defendant intentionally, recklessly, or
negligently entered plaintiff’s property[;]
“3. That plaintiff did not give permission for
the entry or that defendant exceeded plaintiff’s permission; and
“4. That plaintiff was actually harmed; and
“5. That defendant’s entry was a substantial
factor in causing plaintiff’s harm.
Entry can be on, above, or below
the surface of the land.â€
The
first element of CACI No. 2000 unmodified reads, “That [name of plaintiff]
[owned/leased/occupied/controlled] the property.†The trial court substituted “exclusively
possessed†for the word “leased†in CACI No. 2000. In addition, rather than select one of the
four bracketed alternative words in the first element or state more than one of
those words in the disjunctive, the court required Van Taylor to prove all
four of the items (a) through (d). This
was error. A plaintiff need not own,
occupy, control and exclusively possess the property to prevail in an action
for trespass. Instead, a person who owns
but does not occupy the property can prevail in an action for trespass if the
property is unoccupied (Smith v. Cap
Concrete, Inc., supra,
133 Cal.App.3d at p. 774), as can a lessee who occupies but does not
own the property (Brown Derby Hollywood
Corp. v. Hatton, supra, 61 Cal.2d
at p. 858).
The
principal problem here involved the instruction and special verdict requirement
that Van Taylor must “exclusively possess†the property. “Possession†as used in the caselaw in this
context is a legal term that refers generally to the right to exclude others
from the property. (See 1 Dobbs et al.,
Law of Torts (2d ed. 2011, § 52, pp. 135-136; 1 Harper et al.,
Torts (3d ed. 2006) § 1.2, pp. 6-7; Rest.3d, Torts, Liability for Physical and
Emotional Harm (Tent. Draft No. 6, Mar. 2, 2009) § 49 [defining
a “possessor of land†for purposes of a duty of care].) As these authorities explain, “possession†in
a legal sense is not necessarily limited to physical occupation. The term “exclusive possession,†even more
than “possession,†is likely to suggest to lay jurors that the plaintiff must
physically occupy all of the property to the exclusion of any other
person. But such a requirement would
preclude any trespass action against an encroacher. That cannot be and is not the law.
The
first question on the special verdict form was, “Did Thris Van Taylor have
exclusive possession of the land?†The
Ivies’ counsel stated in closing argument that the answer to this question was
easy and that Van Taylor had no exclusive possession because he never entered
or maintained the thin strip of property north of the fence. The jury answered “No†to this question
despite the undisputed evidence that Van Taylor owns and occupies the
property south of the fence and that his property extends 3 to 4 inches north
of the fence. We conclude that the
instruction and the special verdict form were prejudicially misleading. 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 a trespass if the
fallen vegetation resulted from the Ivies’ intentional, reckless or negligent
conduct and if the other essential elements are satisfied.
On
remand, the jury must be instructed that the first element of CACI
No. 2000 is established.
name="_ftnref8" title="">[8]
c. Nuisance
A
private nuisance is a substantial and unreasonable interference with the
private use and enjoyment of land. (Civ.
Code, § 3479; San Diego Gas &
Electric v. Superior Court (1996) 13 Cal.4th 893, 937-938.) An activity may be both a trespass and
a nuisance. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1136
& fn. 6.)
A
plaintiff seeking both the legal remedy of damages for a past nuisance and the
equitable remedy of an injunction to prevent a future nuisance, as Van Taylor
does here, is entitled to a jury trial on the factual issues with respect to
the damages remedy. (
175 Cal. 212, 214; cf. Pacific Western
Oil, supra, 13 Cal.2d at pp.
68-69.) The jury’s determination of
those factual issues is binding on the trial court later deciding the equitable
issues with respect to an injunction. (
The
law of nuisance protects a person’s interest in the private use and enjoyment
of land, while the law of trespass protects a person’s interest in the
exclusive possession of land. (
Torts, § 821D, com. d, pp. 101-102.)
A person need not physically occupy the property or have a right of
exclusive possession to prevail in an action for nuisance, but need only have a
right of use, such as an easement. (See
Rest. 2d Torts, § 821E; 1 Harper et al., Torts, supra, § 1.23, p. 97.)
The
trial court here modified and instructed the jury on CACI No. 2021 as follows:
“Plaintiff
claims that defendants interfered with plaintiff’s use and enjoyment of his
land. To establish this claim, plaintiff
must prove all of the following:
“1. That plaintiff (a) owned (b) occupied (c)
controlled (d) exclusively possessed the property;
“2. That defendant created a condition that was
an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property;
“3. That this condition interfered with
plaintiff’s use or enjoyment of his land;
“4. That plaintiff did not consent to defendant’s
conduct;
“5. That an ordinary person would be reasonably
annoyed or disturbed by defendant’s conduct;
“6. That plaintiff was harmed;
“7. That defendant’s conduct was a substantial
factor in causing plaintiff’s harm; and
“8. That the seriousness of the harm outweighs
the public benefit of defendant’s conduct.â€
The
first element of CACI No. 2021 unmodified reads, “That [name of plaintiff]
[owned/leased/occupied/controlled] the property.†The trial court again substituted
“exclusively possessed†for the word “leased†in the CACI instruction and again
required proof of all four of the items (a) through (d) rather than selecting
one of the four bracketed alternative words or stating more than one of those
words in the disjunctive. This was
error. A plaintiff need not own, occupy,
control and exclusively possess the property to prevail in an action for
private nuisance. Instead, the plaintiff
need only have a right to use the property to satisfy the first element, as we
have stated. As the owner and occupier
of the property, Van Taylor clearly had the right of use.
On
remand, the jury must be instructed that the first element of CACI
No. 2021 is established.
The
jury skipped to question No. 11 on the special verdict form after answering
“No†to the first question, pursuant to the directions on the form. Question No. 11 stated: “Did defendants interfere with Thris Van
Taylor’s use or enjoyment of his property?â€
The jury answered “No†as to both Rickey Ivie and Eloise Ivie. Although question No. 11 did not expressly
ask whether the Ivies had exclusive possession of the property, we believe that
it is reasonably probable that the jury understood this question to encompass
such a requirement, as we will explain.
The
instruction on nuisance stated that to establish his claim that the Ivies
“interfered with plaintiff’s use and enjoyment of his land,†Van Taylor
must prove, among other things, that he owned, occupied, controlled and
exclusively possessed the property.
Question No. 11 on the verdict form used essentially the same language
as the instruction by asking whether the Ivies “interfere[d] with Thris Van
Taylor’s use or enjoyment of his property?â€
The Ivies’ counsel noted in closing argument that the first element of
the trespass instruction was identical to the first element of the nuisance
instruction, and stated that question No. 1 on the special verdict form, quoted
above, was not repeated in the questions on nuisance only because there was no
need to repeat the same question. He
stated that the requirement of exclusive possession applied equally to trespass
and nuisance, and argued that if the answer to question No. 1 was “No†the
answer to question No. 11 also must be “No.â€
In these circumstances, we believe that it is reasonably probable that
the jury understood question No. 11 to encompass the requirement that Van
Taylor must have exclusive possession of the property and must be the only
person physically occupying any part of the property. We conclude that the instruction on nuisance
and the special verdict form were prejudicially misleading in this regard.
6. Van
Taylor Failed to Establish any Basis for an Injunction
The
trial court awarded an injunction in favor of Van Taylor based on its prior
adjudication of the easement counts in his favor and its balancing of the
relative hardships. The court apparently
failed to consider, however, the absence of any finding of tortious misconduct
by the Ivies.
A
trial court may conduct a jury trial on legal issues and a nonjury trial on
equitable issues arising in the same action.
(Hoopes v. Dolan (2008) 168
Cal.App.4th 146, 156-157.) If the legal
issues are decided first, the jury’s factual findings are binding on the trial
court deciding the equitable issues to the extent that the equitable issues are
based on the same facts. (
Hoopes, supra, at pp. 158-161.)
A
permanent injunction is an equitable remedy for a wrongful act. To be entitled to a permanent injunction, a
plaintiff must both establish the elements of an underlying cause of action and
show grounds for equitable relief. (
Transportation (1994) 29 Cal.App.4th 1280, 1293; Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640,
646.) Van Taylor failed to establish all
of the elements of any cause of action in the jury trial, and the jury’s
factual findings were binding on the trial court ruling on the request for an
injunction. Van Taylor therefore is not
entitled to a permanent injunction at this time.
injunction only if Van Taylor establishes the elements of a cause of action and
the trial court, after considering the relative hardships, finds that there are
grounds for equitable relief.
In
light of our conclusions stated above, the parties’ other contentions are moot.
The judgment entered on June 17,
2010, is reversed with directions to (1) vacate the order granting summary
judgment dated September 13, 2006, and the “Judgment†dated November 20, 2006;
(2) vacate the order filed on January 22, 2008, awarding quiet title in favor
of Van Taylor; and (3) conduct further proceedings consistent with the views
expressed in this opinion. Each side
must bear its own costs on appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
CROSKEY,
J.
We Concur:
KLEIN, P. J.
ALDRICH, J.
name="_ftn1" title="">[1]
judicially notice the motion for request from default filed on
November 17, 2005, and the minute order filed on January 27, 2006,
granting the motion. (Evid. Code,
§ 452, subd. (d).)
name="_ftn2" title="">[2]
judicially notice the minute order filed on January 12, 2006, granting the
motion to consolidate the three cases.
(Evid. Code, § 452, subd. (d).)
