Debert v. Isaacs

Filed 9/30/08 Debert v. Isaacs CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Plaintiff Charlene DeBert sued neighboring property owners Robert Isaacs, Colleene Isaacs, and Green Mountain Water Company (Green Mountain) for quiet title and related causes of action. She sought to establish a roadway easement. She and Green Mountain settled via a judicially supervised stipulated judgment in which Green Mountain agreed to grant plaintiff a nonexclusive ingress and egress easement over an existing dirt road on its property. The judgment contemplated that the existing road would be surveyed by a neutral licensed surveyor agreed to by the parties or, absent agreement, appointed by the trial court. Plaintiff disagreed with the surveyed description and filed a motion to set aside or modify the judgment grounded upon surprise, which was created by a serious blunder on the part of a neutral expert [the land surveyor]. The trial court denied the motion. It later granted Green Mountains motion for attorney fees incurred in defending the motion, which was based upon an attorney-fee provision in the stipulated judgment. Plaintiff appeals from the order denying her motion and the order granting Green Mountains motion. Both appeals are untimely. We therefore dismiss them. After a court trial, the trial court granted plaintiffs motion to amend the pleadings to conform to proof. At trial, plaintiff had advanced the theory that she held an express easement over the Isaacses property via a 1988 deed from the Isaacses granting a public road easement to Santa Clara County as part of a homesite-approval process. She also had sought reformation of the deed as a remedy. The trial court rendered judgment for the Isaacses. On appeal, plaintiff misstates the scope of review and, through that window, presents a one-sided repetition of her case. We therefore affirm the judgment.

green mountain

The trial court filed the stipulated judgment on December 22, 2005. As mentioned, the judgment contemplated a survey. The parties chose a surveyor and initially met with him at the site on May 9, 2006. The surveyor thereafter prepared the legal description of the easement. The trial court heard and denied plaintiffs motion to set aside on August 24. It filed its order on September 22, and Green Mountain served plaintiff with a copy of that order on September 26. The trial court heard and granted Green Mountains motion on October 4. It filed its order on October 4, and Green Mountain served plaintiff with a copy of that order on October 4. Plaintiff filed her notice of appeal on January 24, 2007.

We agree with Green Mountains threshold contention that plaintiffs appeal is untimely.

Appellate jurisdiction in California is conferred by article VI, section 11, of the Constitution, but controlled by statute. [A] party possesses no right of appeal except as provided by statute. (Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78.) In order to exercise that right, an appellant must take an appeal from a statutorily declared appealable judgment or order. (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) The most common types of appealable judgments or orders are final judgments and orders made after a final judgment. (Code Civ. Proc., 904.1, subds. (a), (b).)

An appeal is taken from superior court by filing with the clerk of that court a notice of appeal. (Cal. Rules of Court, rule 8.100(a)(1).)[1] Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by a proof of service; or [] (3) 180 days after entry of judgment. (Rule 8.104(a).)

Plaintiff appeals from two orders made after a final judgment.[2] Green Mountain served plaintiff with copies of the orders. It served them on September 26, 2006, and October 4, 2006. Plaintiffs notice of appeal filed on January 24, 2007, is unquestionably untimely as to both orders. Accordingly, we are without jurisdiction to consider plaintiffs appeal from the orders denying the motion to set aside and granting the motion for attorney fees. (Casado v. Sedgwick, Detert, Moran & Arnold (1994) 22 Cal.App.4th 1284, 1286.) Plaintiff makes no argument to the contrary. She claims only that a notice of entry is required by rule 8.104. But she overlooks that the rule does not require a notice of entry if a party serves a copy of the order itself.

robert and colleene isaacs

The Isaacses dedicated a public road to Santa Clara County. Plaintiff claimed that the public road was a paved road on the Isaacses property and, when the pavement ended, a continuing dirt road on the Isaacses property that connected to a fire road on Green Mountains property. Plaintiffs theory appears to have been that the actual express grant by the Isaacses to the county was mistaken. According to plaintiff, the road was intended to go through the Isaacses property because a recital in the grant stated that the road was dedicated for the benefit of subsequently approved building sites such as plaintiffs site. Both Santa Clara County and the Isaacses disclaimed that they had made a mistake in defining the scope of the grant.

The trial courts statement of decision explains that the scope of the public road was precisely delineated in the Isaacses deed to the county. And it highlighted that both plaintiffs expert and the Isaacses expert testified that the public easement terminated on the Isaacses property before ever reaching the fire road. It concluded that plaintiff had not carried [her] burden of proof that [she has] an express easement over the Isaacs[es] property from the terminus of [the paved road] to where the Fire Road leaves the Isaacs[es] property. It commented that the deed in favor of Santa Clara County could not be reformed without such being considered an unconstitutional taking by the county of the Isaacses property. The judgment states: Plaintiffs shall take nothing by way of their complaint and amendment thereto to quiet title for an easement, for permanent injunction, for ejectment, nuisance, trespass, intrusion, and damages. Plaintiffs have failed to meet their burden of proof to establish an easement by prescription, an easement by necessity, an easement by implication, and/or an expressed easement. The deed of right of way for road purposes and offer to dedicate for public street and road purposes executed by Isaacs on January 12, 1988 shall not be reformed, changed, or modified.[3]

The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 701, p. 769.) Moreover, [a]rguments should be tailored according to the applicable standard of appellate review. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.) Failure to acknowledge the proper scope of review is a concession of a lack of merit. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) [I]t is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent. An appellant is not permitted to evade or shift his [or her] responsibility in this manner. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.) In addition, an attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. (Estate of Palmer (1956) 145 Cal.App.2d 428, 431.) Absent compliance with these rules, we presume that the judgment of the trial court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

According to plaintiff, our review is independent because the trial court based its decision on federal constitutional principles derived from the Fifth Amendments prohibition against taking property without just compensation. From there, plaintiff repeats the evidence and arguments favorable to her while largely ignoring the extensive, unfavorable evidence, most notably (1) the express grant description in the Isaacses deed, (2) the unanimous expert testimony agreeing that the described grant stopped within the Isaacses property rather than continued through the Isaacses property, and (3) the unanimous evidence from the parties who had contracted that there was no mistake in the scope of the grant description.

Plaintiffs premise, however, is erroneous. The trial court did not rest its decision on constitutional principles. It simply denied plaintiffs fact-driven claim for an easement. Its comment on the Fifth Amendment can only be understood as acknowledging that the remedy of reformation was unavailable because an unconstitutional taking would result absent establishing a right to the remedy of reformation. (5 Witkin, Cal. Procedure, supra, Pleading, 40, pp. 105-106 [distinction between cause of action and remedy sought]; id., 806, pp. 221-222 [reformation is a remedy for a wrong].) We therefore give no consideration to plaintiffs arguments, accept plaintiffs failure to acknowledge the proper scope of review as a concession, and presume the judgment is correct.

Moreover, plaintiff could not properly tailor an argument to the applicable scope of review and prevail.

In general, Our review of factual findings is limited to a determination of whether there is any substantial evidence to support the trial courts conclusions. (In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 128.) On review for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548.) We accept all evidence favorable to the prevailing party as true and discard contrary evidence. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.) Any conflicts in the evidence will be resolved in favor of the trial courts determination. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556.)

The substantial-evidence test is typically implicated where a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence. But where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of facts unassailable conclusion that the party with the burden did not prove one or more elements of the case (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of a witness, even if that testimony is uncontradicted]). Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Specifically, the question becomes whether the appellants evidence was (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Roesch v. De Mota, supra, at p. 571.)

Even assuming that the trial court was not at liberty to reject plaintiffs evidence if uncontradicted, this case was the usual one posing evidentiary conflicts. The pivotal question, as noted in the trial courts statement of decision, was the location of the public easement. Framing the question within plaintiffs theory, the question was whether the express grant was mistaken. Either way, the trial courts failure-of-proof conclusion answers the question and is unassailable on appeal.

disposition

Plaintiffs appeal from the orders denying her motion to set aside the stipulated judgment and granting Green Mountains motion for attorney fees is dismissed. The judgment in favor of the Isaacses is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Duffy, J.

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[1] Further unspecified rule references are to California Rules of Court.

[2] One could conceivably interpret the stipulated judgment as not final because it contemplated a survey to describe the agreed-upon easement. In that event, however, the order denying plaintiffs motion to set aside, which incorporates the described easement, would of necessity be considered the final judgment and we would consider the notice of appeal as appealing from a final judgment and one order made after a final judgment. But whether the order denying plaintiffs motion to set aside is a judgment or postjudgment order is immaterial for purposes of rule 8.104(a).

[3] There were several plaintiffs below but only DeBert has appealed.