Anstey v. Beebe
Filed 6/20/12 Anstey v. Beebe CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 FOUR
PAUL
ANSTEY,
Plaintiff and Appellant,
v.
DION
BEEBE et al.,
Defendants and Respondents.
B228741
(Los Angeles County
Super. Ct. No. BC39352)
APPEAL from
judgment of the Superior Court of
County, Conrad Aragon, Judge. Affirmed.
Horvitz
& Levy, David M. Axelrad and Dean A. Bochner; Leader Gorham and
Jon M. Leader; Soltman, Levitt, Flaherty & Wattles and Philip E.
Black, for Plaintiff and Appellant.
Michelman
& Robinson, Sanford Michelman,
Marc R. Jacobs, and Robin James, for Defendants and Respondents.
______________________________
In this boundary dispute
case, Paul Anstey appeals from the summary
judgment in favor of respondents Dion Beebe and Unjoo Moon. He asks that we reverse the judgment
because: his wife, Denise Anstey, is an
indispensable party to the boundary dispute; he is entitled to relief under
Code of Civil Procedure section 473
respondents’ unopposed motion for summary judgment did not satisfy their
initial burden of production; and the trial court failed to adequately balance
the equities.
We conclude
the judgment is not infirm for lack of a necessary or indispensable party, that
appellant has not shown entitlement to relief under either the mandatory or
discretionary provisions of section 473, and that, on the merits, respondents
were entitled to summary judgment. We
therefore shall affirm the judgment.
In
2002, appellant bought a home located at 2908
Roscomare Road in the Bel Air section of Los
Angeles.
He purchased it as his separate property, then immediately deeded it to
himself and his wife as joint tenants.
The property consists of lot 9, which includes parcels 16 and 17. In 2006, respondents bought property located
at 3001 Antelo View Drive. Their property consists of parcels 18, 19,
and 20 on lot 8. Parcels 19 and 20 are
adjacent to lot 9. Parcel 20 includes a
20-foot-wide strip of land (the pole), which connects it to Roscomare
Road.
The pole runs along the southern border of parcel 16.
A concrete
wall and part of the Ansteys’ fenced-in backyard jut out into the pole. The wall starts at the border with lot 20 and
veers into the pole, encroaching at about 11 feet at the wall’s end. The fenced-in portion of the backyard, where
playground equipment is located, begins at the end of the wall and encroaches
on the entire width of the pole in an area next to the Ansteys’ home. The encroachments are along more than half of
the length of the pole.
In
2008, appellant filed a lawsuit against respondents, seeking to (1) quiet title
to a prescriptive easement in the pole and (2) establish a boundary pursuant to
an existing boundary agreement.
Respondents cross-complained against him to (1) quiet title, and for (2)
declaratory relief, (3) trespass, (4) ejectment, and (5) injunctive
relief. After the cross-complaint was
filed, the Ansteys deeded their property to themselves as co-trustees of their
revocable trust. Respondents, similarly,
transferred their own property to their living trust.
In his
first amended answer to the cross-complaint, appellant asserted failure to join
an indispensable party as an affirmative defense. The parties then sought to amend their
respective complaints. Respondents filed
an ex parte application to add Denise Anstey as a party and to include all
parties’ representative capacities as trustees of their respective trusts. Appellant filed an ex parte application
seeking to amend his complaint along the same lines. He also sought to replace his second cause of
action with a declaratory relief claim based on his affirmative defense of
balancing the equities. Both ex parte
applications were denied for lack of good cause.
The ex
parte applications were followed by noticed motions for leave to amend the
complaint and cross-complaint.
Appellant’s motion was the same as his ex parte application, except that
he no longer proposed to add Denise Anstey as a party. Respondents’ motion expanded on the earlier
proposed amendments by seeking to add as parties the Russells, who own property
on the other side of the pole from the Ansteys.
Appellant objected to the proposed addition of Denise Anstey and the
Russells on due process grounds.
The court
denied the motions in June 2009. It
found respondents’ motion defective because it was not accompanied by a
proposed amended cross-complaint. The
court found appellant’s motion unnecessary, ruling that both sides would be
allowed to amend their pleadings to conform to proof and proceed against each
other in all capacities made evident at trial.
Specifically, the court stated that respondents “shall be permitted to
amend their pleadings, at trial, to conform to proof that Anstey and Denis [
Revocable Trust (of which both are trustees) are properly named as parties
cross-defendant.â€
In December
2009, respondents moved for summary judgment on all causes of action in the
complaint and cross-complaint. One week
after opposition to the motion was due, the law firm representing appellant
filed an ex parte application for a continuance to prepare an opposition
because it had no record of the motion.
The court denied the application, finding this explanation not
credible.
On February
18, 2010, the day of the hearing on the summary judgment motion, appellant’s
counsel made another ex parte application to continue, explaining that the
failure to file an opposition was due to a breakdown in the law firm’s policies
and procedures. The court denied the
application on the ground that a noticed motion for a continuance was
required. The court allowed appellant’s
counsel to submit written objections to respondents’ evidence but granted the
summary judgment motion without ruling on the objections.
Appellant
moved for reconsideration. The court
overruled appellant’s evidentiary objections and denied the motion for
reconsideration. It noted that, despite
making repeated requests for relief, appellant had not presented a proposed
opposition to the summary judgment motion.
The court acknowledged granting summary judgment only against appellant
but stated that “[w]hether entry of judgment upon summary judgment precludes
action by and on behalf of the respective trusts raises questions not now
before the court. The question as to
which parties are burdened or benefitted by the judgment does not require
reconsideration of the court’s February 18 ruling.â€
In response
to appellant’s opposition to the proposed judgment, the court noted there was
“a technical legal issue regarding what parties and what capacities the parties
are involved.†The court was “sure we’re
going to be talking about that at great length at a future date.†In July 2010, the court entered judgment on
all causes of action and quieted title in respondents’ name solely against
appellant. The court ordered appellant
to remove the encroachments, “including a treehouse and a swing set,†and
enjoined him from entering on the property, but stayed enforcement of the
injunctive relief.
Two law
firms representing appellant filed separate motions to vacate the judgment
under section 473. The court denied
both, noting among other things that neither was accompanied by a proposed
opposition to the summary judgment motion.
The court awarded costs to respondents.
This timely
appeal from the judgment and denial of the motions to vacate followed.
I
Appellant argues Denise Anstey is an
indispensable party, in whose absence the court could not render an effective
judgment as to the parties before it.
The joinder issue was not adequately presented to the trial court or on
appeal, and we are not persuaded that the judgment should be reversed on this
ground.
Compulsory joinder is governed by
section 389. Subdivision (a) of that
section provides: “A person who is
subject to service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a party
in the action if (1) in his absence complete relief cannot be accorded among
those already parties or (2) he claims an interest relating to the subject of
the action and is so situated that the disposition of the action in his absence
may (i) as a practical matter impair or impede his ability to protect that
interest or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a
party.†The person is deemed “necessaryâ€
to the action. (City
of San Diego v. San Diego City Employees’ Retirement System (2010)
186 Cal.App.4th 69, 83 (City of San
Diego).)
When a necessary party cannot be joined, subdivision (b) of section 389 requires the court
to determine “whether in equity and good conscience the action should proceed
among the parties before it, or should be dismissed without prejudice, the
absent person being thus regarded as indispensable.†(§ 389, subd. (b); City of San Diego, supra,
186 Cal.App.4th at pp. 83–84.)
Appellant claims that “Denise Anstey was an indispensable party . . .
.†His nomenclature is misleading since
there is no evidence that Denise Anstey could not be joined so as to trigger
section 389, subdivision (b). Instead,
the question is whether, under section 389, subdivision (a), Denise Anstey is a
necessary party to the boundary dispute, who should have been ordered joined
under that subdivision.
The court’s determination of whether an absent
party is necessary or indispensable under section 389 is reviewed for abuse of
discretion. (Hayes v. State Dept. of Developmental Services (2006) 138
Cal.App.4th 1523, 1529.) But a claim of
error in failing to join an absent party may be deemed forfeited on appeal
unless it was appropriately raised in the trial court or some compelling reason
of equity or policy warrants its belated consideration. (Jermstad
v. McNelis (1989) 210 Cal.App.3d 528, 538; see also Krause v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354,
363–371 (Krause).)
The record does not indicate that the
issue of Denise Anstey’s compulsory
joinder was appropriately presented to the trial court. Appellant’s complaint did not disclose that
he owned the property with his wife as joint tenants. It was not until he filed an amended answer
to the cross-complaint that he alleged he and Denise Anstey owned the property,
as co-trustees of their revocable trust.
The amended answer raised lack of joinder of unnamed “indispensable
parties†as an affirmative defense. In his ex
parte application seeking to amend his complaint, appellant proposed to
“conform the pleadings to the evidence†by adding Denise Anstey in her capacity
as a co-trustee of the Anstey trust. He
omitted this proposed addition from his subsequent noticed motion to
amend.
Respondents’
motion for leave to amend the cross-complaint sought to add another set of
neighbors, the Russells, as “indispensable parties.†But it sought to add Denise Anstey as an
individual and co-trustee only so as to properly identify the titleholders or
proper “parties . . . with legitimate interests.†Appellant opposed the proposed addition of
Denise Anstey and the Russells. His
attorney stated that the affirmative defense of failure to join indispensable
parties referred to the Russells. At no
time before the ruling on summary judgment did appellant or respondents argue
that Denise Anstey was a necessary or indispensable party to the action, and in
denying the motions to amend, the court stated that respondents would be
permitted to amend their pleadings to “conform to proof†at trial that the
Ansteys and their trust were proper cross-defendants.
The joinder
issue resurfaced after the court granted the unopposed motion for summary
judgment. In his motion for
reconsideration, appellant argued that the judgment was in favor of and against
the wrong parties since respondents had not amended the cross-complaint to
reflect that the properties were now owned through the parties’ respective
trusts. Although he then identified
Denise Anstey as a “necessary party,†the issue was described as one of
“standing,†rather than joinder, and no argument was presented as to why she
was necessary to the action. The court
noted that the briefing was inadequate.
Appellant’s opposition to the proposed judgment argued that the judgment
was not against “necessary parties,†incorrectly claiming that respondents’
motion to amend the cross-complaint had identified Denise Anstey as “one of
several necessary parties.†Again, the
issue why Denise Anstey was a necessary party was not briefed.
We see no
place in the record where appellant argued that Denise Anstey was a necessary
party, subject to compulsory joinder under section 389, subdivision (a).
His affirmative defense does not appear to have been intended to cover
her, nor did appellant file any motion to compel her joinder or to dismiss the
action for failure to join her, even though such a motion “may be made as late
as the trial on the merits.†(
(1984) 36 Cal.3d 15, 22.) Neither did
respondents’ motion to amend alert the court that Denise Anstey was subject to
compulsory joinder.
When, during the course of an action,
an interest is transferred to another, the transferee may be substituted, or
the action may continue in the name of the original party. (§ 368.)
The transfer of the properties to the two trusts during the pendency of
this action made substitution an issue since the parties appeared unsure
whether they could proceed with the action in their individual capacities. Denise Anstey was brought to the court’s
attention in this context as a co-trustee of the Ansteys’ trust, rather than as
co-owner of the property since 2002.
By the time the trial court heard
appellant’s opposition to the proposed judgment, it had become clear that the
trusts did not need to be named as parties since they were not legal entities
separate from the trustees. (See
(2011) 202 Cal.App.4th 464, 473.)
Additionally, respondents argued that they did not need to be named in
their representative capacities since they were both trustees and beneficiaries
of their trust. (See
(2000) 84 Cal.App.4th 153, 170–171 [where same persons are trustees and
beneficiaries of express trust, pleadings need not mention their representative
capacities].) It is unclear whether the
Ansteys similarly are the sole beneficiaries of the Anstey 2008 Revocable
Trust, but appellant does not argue that Denise Anstey’s capacity as a
co-trustee of that trust is an issue.
Respondents contend that Denise
Anstey is not a necessary party because her interest in the action is the same
as appellant’s. (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092,
1102 [absent party’s “ability to protect its interest is not impaired or
impeded as a practical matter where a joined party has the same interest in the
litigationâ€].) Relying on
(1975) 52 Cal.App.3d 233, 252–253 and Frank
Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 23,
appellant presumes that Denise Anstey is a necessary party as a matter of
law. Both cases involved actions to
foreclose a mechanic’s lien on property held by a husband and wife as
co-tenants, where only the husband was named as a defendant, and there was no
evidence that the property was community property. Appellant does not address the issue whether
a wife is a necessary party to a quiet title action against her husband
involving community property. (See e.g.
258 [in quiet title action, husband and wife in privity as to community
interest in property].)
Nor does he attempt to characterize
the status of the Ansteys’ property before or during the pendency of this
litigation, and the record before us is inconclusive. The description of title in a deed creates a
rebuttable presumption about the actual ownership interests in the
property. (In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th
176, 184–185.) The presumption may be
overcome “only by evidence of an agreement or understanding between the parties
that the title reflected in the deed is not what the parties intended.†(Id.
at p. 189.) Here, the property was
originally deeded to appellant in 2002 as his separate property. He then deeded it to himself and his wife as
joint tenants. Under the second deed,
each spouse’s interest in the joint tenancy was presumptively his or her own
separate property. (See
1378, 1385.) Yet, in 2008, during the
pendency of this case, the Ansteys, “Husband and Wife, as Community Propertyâ€
quitclaimed the property to themselves as “Co-Trustees of the Anstey 2008
Revocable Trust.†The record thus
suggests that the Ansteys’ property may be community property.
We do not determine the status of the
property and the character of the spouses’ interest in it. We only conclude that the issue of Denise
Anstey’s compulsory joinder was not adequately presented to the trial court,
and the court did not abuse its discretion in not ordering her joined. (See Jermstad
v. McNelis, supra, 210 Cal.App.3d
at p. 538 [in action to establish paternity, mother waived issue of court’s
failure to join prospective adoptive parents by failing to mention compulsory
joinder in demurrer, at hearing, or any time before trial];
Cal.App.4th 850, 865 [when court recognized declarant was necessary party, it
erred in setting aside his voluntary declaration of paternity without ordering
him joined on its own motion].)
Nor are we persuaded that, even if Denise Anstey
were a necessary or indispensable party, the judgment in this case does not
bind appellant. In Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662, on
which appellant relies, a debtor managed to set aside a foreclosure sale by
obtaining a default judgment against the purchaser of the property. (Id.
at p. 666.) He had dismissed the lender
and trustee from the case in response to their demurrer. (Ibid.) They later obtained a declaratory judgment
that the sale was valid, and the court quieted title in favor of the
purchaser. (Ibid.) The court of appeal
cited the well-established principle that an indispensable party is not bound
by a judgment rendered in its absence and may collaterally attack it. (Id.
at p. 667.) It also held that, after the foreclosure sale
was declared valid in the second action, the purchaser should not be bound by
the original default judgment that invalidated the sale. (Id.
at p. 669.)
judgment. It does not stand for the
broad proposition that a party to a judgment is not bound by it just because
the judgment may be subject to a later collateral attack, particularly when it
is unclear whether such an attack would result in an inconsistent
judgment. Even in the absence of an
indispensable party, the court has the power to render a legally binding
decision between the parties before it.
(Krause, supra, 73 Cal.App.3d at p. 364.)
Appellant also cites
833. The plaintiff in that case sued the
Director of Finance of the City of San Bruno, but the judgment purported to
compel the city to give him certain process for obtaining a business license
even though the city was not a party. (
trial court had no jurisdiction over the city and should not have drafted the
judgment so as to grant relief against it.
(Id. at p. 840.) Welch
v. Bodeman is distinguishable because the judgment in this case expressly
granted respondents relief only against appellant and not against Denise
Anstey.
In a quiet title action, a plaintiff
must name as defendants “the persons having adverse claims to the title of the
plaintiff against which a determination is sought.†(§ 762.010.) The judgment in such an action is binding on
“[a]ll persons known and unknown who were parties to the action and who have
any claim to the property, whether present or future, vested or contingent,
legal or equitable, several or undivided.â€
(§ 764.030, subd. (a).) This
statutory scheme indicates that a judgment in a quiet title action is binding
on an adverse claimant who, like appellant, was a party to the action.
We, therefore, decline to reverse the
judgment for non-joinder.
II
A
Appellant seeks relief from the judgment under the
mandatory relief provision of section 473, subdivision (b). He acknowledges a split of authority on the
application of this provision to summary judgments and asks that we follow the
expansive reading adopted in Avila v.
Chua (1997) 57 Cal.App.4th 860, 868.
We believe that case was wrongly decided and is contrary to what is, by
now, the strong weight of authority on what is considered a “default†under the
statute.
The mandatory relief provision of section 473,
subdivision (b) reads: “Notwithstanding
any other requirements of this section, the court shall, whenever an
application for relief is made no more than six months after entry of judgment,
is in proper form, and is accompanied by an attorney’s sworn affidavit
attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any
(1) resulting default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default
judgment or dismissal entered against his or her client, unless the court finds
that the default or dismissal was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect.†(§
473, subd. (b).)
A series of recent cases has recognized that, by
its express terms, the mandatory relief provision applies only to defaults, default
judgments, and dismissals. An unopposed
summary judgment is none of those. (See
(2010) 187 Cal.App.4th 215, 226–229; Huh
v. Wang (2007) 158 Cal.App.4th 1406, 1415; Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290,
294–297; English v. IKON Business
Solutions, Inc. (2001) 94 Cal.App.4th 130, 137–138.) We followed this non-expansive reading of the
mandatory relief provision in Hossain v.
Hossain (2007) 157 Cal.App.4th 454, 457–459, where we applied it to an
attorney’s failure to file a timely opposition to a motion to enforce a
settlement. Here, too, we find no reason
to depart from the statutory language.
B
Appellant also invokes the discretionary relief
provision of section 473, subdivision (b), which reads: “The court may, upon any terms as may be
just, relieve a party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him or her through his or
her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be
accompanied by a copy of the answer or other pleading proposed to be filed
therein, otherwise the application shall not be granted . . . .†(Ibid.)
Appellant argues that an opposition to a motion for
summary judgment is not a pleading. The
proposed pleading requirement compels the party seeking relief under section
473 to demonstrate his or her good faith and readiness to proceed on the
merits. (Job v. Farrington (1989) 209 Cal.App.3d 338, 341.) The requirement has been broadly applied not
only to pleadings, but to other proposed filings as well. (See Russell
v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1731 [relief denied for
failure to attach copy of proposed motion for attorney fees].) It has been excused when the substance of the
proposed filings is reflected in other papers filed with the court. (See Estate
of Parks (1962) 206 Cal.App.2d 623, 632 [requirement excused where
substance of proposed objection to report of inheritance tax appraiser was
contained in the verified application and declaration]; Freeman v. Goldberg (1961) 55 Cal.2d 622, 625 [failure to make
timely motion to tax costs; requirement excused where untimely motion already
on file].)
Appellant’s two motions for relief from judgment
were not accompanied by a proposed opposition to the summary judgment, nor did
they reflect the substance of his proposed opposition. In denying the motions, the trial court noted
specifically that appellant failed to submit a proposed opposition even though
the order denying his motion for reconsideration had advised him of this
requirement. The court was within its
discretion to decline to set aside the judgment because it had no indication
that appellant was ready to proceed on the merits.
III
We next reach the merits of the
summary judgment. Summary judgment is
proper when no triable issue exists as to any material fact, and the moving
party is entitled to judgment as a matter
of law. (Code Civ. Proc., § 437c,
subd. (c).) A moving defendant meets its
burden by showing that one or more essential elements of the cause of action
cannot be established. (
25 Cal.4th 826, 849 (Aguilar).) The burden then shifts to the plaintiff to
show that a triable issue of fact exists as to the cause of action. (Ibid.;
Code Civ. Proc., § 437c, subd. (p)(2).)
Generally, on summary judgment, the pleadings
define the issues, and the moving party need not consider theories that could
have been but were not pled. (
(2012) 203 Cal.App.4th 403, 421.) The
trial court is empowered to read the pleadings liberally if they give fair
notice to the opposing party of the theories on which relief is generally being
sought. (Id. at p. 422.)
We review the trial court’s decision
on a summary judgment motion de novo, viewing the evidence in the light most
favorable to the nonmoving party. (
Cal.4th 763, 768.)
A
We first consider the issue of prescriptive
easement. Appellant’s complaint sought
to quiet title to a prescriptive easement in the property enclosed by the wall,
alleging “actual, open, notorious, exclusive, hostile, and adverse use of the
[e]asement.†A prescriptive easement
arises from open and notorious, hostile, and continuous use of land. (Kapner
v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1186.) But when someone like appellant encloses and
exclusively possesses a part of a neighboring parcel, he is not entitled to a
prescriptive easement as a matter of law because his asserted possessory right
in the land is “not in the nature of an easement.†(Ibid.) In other words, “adverse possession may not
masquerade as a prescriptive easement.â€
(Id. at p. 1185.)
A claim of adverse possession has the same elements
as a prescriptive easement claim, except that it also requires the payment of
taxes. (Kapner v. Meadowlark Ranch Assn., supra, 116 Cal.App.4th at p. 1187, Gilardi v. Hallam (1981) 30 Cal.3d 317, 321–322.) In their motion for summary judgment,
respondents argued that appellant was not entitled to a prescriptive easement
as a matter of law, and he could not claim adverse possession because they paid
taxes on parcel 20. The trial court
treated appellant’s claim of prescriptive easement as one of adverse
possession, and granted respondents’ motion on this claim on two grounds: that appellant’s possession of the enclosed
portion of the pole was not hostile, and that respondents paid taxes on parcel
20.
In finding that appellant’s use of
the land was not hostile, the trial court relied on a 1964 recorded agreement,
signed by one Andrew Chitiea. The
agreement says that Andrew and Joan Chitiea were in the process of buying what
would later become the Ansteys’ property.
The agreement states that “a wall is extending from our land onto an
easement which is owned by Christopher Wojciechowski.†Andrew Chitiea agreed that “the portion of
wall footings and foundation south of Lot 9 . . . erected on an easement
leading from Lot 8 . . . will be removed from Lot 8 . . . at the undersigned’s
sole expense, within 15 days after the receipt of written notice to remove the
same.â€
The parties disagree about the
admissibility, authenticity, and relevance of this agreement. Even were the agreement admissible,
authentic, and enforceable, it does not establish that appellant’s use of the
portion of the pole enclosed within his backyard was not hostile. The element of hostility is missing when land
is possessed or used with the owner’s permission. (See Machado
v. Southern Pacific Transportation Co. (1991) 233 Cal.App.3d 347,
362.) The 1964 agreement is to tear down
the encroaching portion of a wall after written notice. It is unclear whether the referenced wall is
the same as the wall at issue in this action or some other wall. It also is unclear how far into lot 8 the
wall extended in 1964 and whether it completely enclosed a portion of the
pole. The agreement to remove wall
footings and foundation suggests that the encroaching portion of the wall may
have been unfinished. The agreement
cannot be read as permitting Andrew Chitiea or anyone else to continue
construction on the wall or to expand an enclosure of the pole beyond the
wall. Viewed in the light most favorable
to appellant, the agreement does not give notice that appellant’s possessory
use of the portion of the pole enclosed by the currently existing wall and
fence is permissive.
Respondents presented evidence that they and their
predecessors paid taxes on parcel 20, which includes the pole. The trial court relied on this evidence in
granting summary judgment even though appellant’s complaint did not allege a
claim of adverse possession. In his
reply brief, appellant argues the court should have inferred that he paid taxes
on the enclosed portion of the pole, which he visibly possessed. His argument is based on Gilardi v. Hallam, supra, 30 Cal.3d 317, in which the court stated
that “where the claimant by construction of buildings or other valuable
improvements or by the building of fences has visibly shown occupation of a
disputed strip of land adjoining the boundary, several cases have reasoned that
the ‘natural inference’ is that the assessor did not base the assessment on the
record boundary but valued the land and improvements visibly possessed by the
parties.†(Id. at p. 327.)
The “natural inference†rule does not
apply to this case. First, there was no
need to consider whether appellant was entitled to adverse possession since
appellant did not plead such a claim.
(See Howard v. Omni Hotels
Management Corp., supra,
203 Cal.App.4th at pp. 421–422).
Second, although summary judgment was expressly granted because of
appellant’s non-payment of taxes, in his opening brief on appeal appellant does
not argue that he was entitled to a “natural inference†that he paid
taxes. Arguments not raised until the
reply brief are forfeited absent a showing of good cause for failing to raise
them earlier. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)
The “natural inference†rule arose in
the context of the agreed-upon boundary doctrine. (See Caballero
v. Balamotis (1956) 144 Cal.App.2d 58, 61 [“‘Once it is found that the
parties agreed upon a boundary, the payment of taxes according to deed
descriptions amounts to payment of taxes on the area up to the agreed-upon
boundary’â€].) The inference originated
in Price v. De Reyes (1911) 161 Cal.
484, 489, where the court explained: “It
is conceded that both parties paid taxes each year assessed according to the
descriptions in the respective deeds. As
we have seen, [an agreed-upon boundary] ‘attaches itself to the deeds of the
respective parties,’ and defines the lands described in each deed, so that the
one in the possession of the overlap holds the title thereto by the same tenure
as he holds the lands technically embraced in the description. [Citations.]
The consequence is that under such circumstances the payment of taxes
assessed in this manner is a payment on the land in the possession of the
parties. Furthermore, the natural
inference would be that the assessor put the value on the land and improvements
of each party as disclosed by the visible possession, rather than that he
ascertained the true line by a careful survey and assessed to one a part of the
possession of the other.†(
As we explain below, appellant is not
entitled to an inference that there was an uncertainty about the true boundary
line. Moreover, the tax assessor’s map
in the record does not show that appellant’s wall and fence were considered in
drawing the lot lines. Rather, the lot
lines on the map are similar to those on respondents’ survey of the area. On this evidence, appellant is not entitled
to an inference that lot lines for tax purposes were ascertained by visual
inspection rather than a survey.
B
Appellant sought to establish a
boundary at the site of the wall under the agreed-upon boundary doctrine. That doctrine applies when coterminous owners
uncertain about the true boundary line fix it by marking its location or
building up to it and acquiesce during the statute
of limitations period. (
55.) The trial court concluded that the
doctrine had no application in this case because it was undisputed that
appellant’s wall was not erected to resolve uncertainty as to the boundary line
between the properties. The court added
that the 1964 agreement demonstrated the lack of such uncertainty.
Appellant argues the court improperly
based its ruling on the 1964 agreement, which, admissible or not, does not
establish when, by whom, or why the wall that Andrew Chitiea agreed to remove
was built. He argues further that
respondents have not negated the element of uncertainty about the true boundary
line since they presented no evidence showing what the coterminous owners of
the properties believed when the wall was built. Appellant is incorrect.
Respondents could meet their initial
burden by presenting evidence “which, if uncontradicted, would constitute a
preponderance of evidence that an essential element of [appellant’s] case
cannot be established.†(
95 Cal.App.4th 870, 878–879.) Even
if the 1964 agreement is irrelevant, respondents also presented legal records
in the form of surveys, tax assessor records, and legal descriptions in deeds
showing the true boundaries of the two properties. In Bryant
v. Blevins, supra,
existing legal records provide a basis for fixing the boundary, there is no
justification for inferring, without additional evidence, that the prior owners
were uncertain as to the location of the true boundary or that they agreed to
fix their common boundary at the location of a fence.†(Id. at
p. 58.) The legal records respondents
presented would have been sufficient to entitle them to a judgment in their
favor after a trial on the merits. (See
They are, thus, sufficient to negate uncertainty as to the location of
the true boundary for purposes of summary judgment.
Without additional evidence,
appellant is not entitled to a speculative inference that prior coterminous
owners agreed to establish a boundary at the site of the wall. The trial court correctly concluded that the
agreed-upon boundary doctrine does not apply in this case.
C
In his answer to the
cross-complaint, appellant raised the doctrine of balancing conveniences (also
known as the doctrine of balancing the equities or relative hardships) as an
affirmative defense to respondents’ cross complaint. Through this doctrine, the trial court may
create an equitable easement “by refusing to enjoin an encroachment.†(Linthicum
v. Butterfield (2009) 175 Cal.App.4th 259, 265.) Here, the trial court granted respondents’
summary judgment motion on the defense and enjoined the encroachment.
In exercising its discretion to
consider the following factors: “1.
Defendant must be innocent—the encroachment must not be the result of
defendant’s willful act, and perhaps not the result of defendant’s
negligence. In this same connection the
court should weigh plaintiff’s conduct to ascertain if he is in any way
responsible for the situation. 2. If plaintiff
will suffer irreparable injury by the encroachment, the injunction should be
granted regardless of the injury to defendant, except, perhaps, where the
rights of the public will be adversely affected. 3. The hardship to defendant by the granting of
the injunction must be greatly disproportionate to the hardship caused
plaintiff by the continuance of the encroachment and this fact must clearly
appear in the evidence and must be proved by the defendant.†(Linthicum
v. Butterfield, supra, 175 Cal.App.4th
at p. 265, quoting Christensen v. Tucker
(1952) 114 Cal.App.2d 554, 562–563.)
Appellant argues that it is improper to engage in
equitable balancing on a summary judgment motion. In the case he cites, Scheble v. Nell (1962)
200 Cal.App.2d 435, 438,
the court expressed doubt that the equities could be balanced “by affidavits
submitted by the opposing parties at motion for summary judgment.†Here, the balancing was not done by opposing
affidavits.
The trial court balanced the equities as follows: “It is undisputed that cross-complainants
will suffer irreparable injury if the encroachments are not removed because
they obstruct cross-complainants’ ingress and egress. There is no corresponding evidence to support
a claim that undue hardship to Anstey will result by reason of the removal; the
encroaching structures include a treehouse and a swing set, objects that are
easily removed.â€
Appellant contends that these findings are
inadequate. Specifically, he argues that
a reversal is warranted because the court did not make a finding on the first
factor—whether appellant was innocent and whether respondents were responsible
for the situation. He relies on cases in
which the trial court denied injunctive relief without making such a
finding. (See D’Andrea v. Pringle (1966) 243 Cal.App.2d 689, 695 [judgment
denying injunction was reversed for failure to make proper findings on
innocence or good faith]; Brown Derby
Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 860 [same].)
A finding about defendant’s good faith or innocence
is crucial in cases denying injunctive relief because all three factors must be
present in such cases. (
Cal.App.4th 749, 759; see also Christensen
v. Tucker (1952) 114 Cal.App.2d 554, 559 [“where the encroachment does not
irreparably injure the plaintiff, was innocently made, and where the cost of removal would be great compared to the
inconvenience caused plaintiff by the continuance of the encroachment, the
equity court may, in its discretion, deny the injunction and compel the
plaintiff to accept damages†(Italics
added.)].) The requirement that the
encroachment be made innocently or in good faith “implements the rule that
‘“‘relief by way of a mandatory injunction will not be denied on the ground
that the loss caused by it will be disproportionate to the good accomplished,
where it appears that the defendant acted with full knowledge of the
complainant’s rights and with an understanding of the consequences which might
ensue . . . .’â€â€™â€ (
(1984) 35 Cal.3d 564, 573.)
Appellant cites no cases holding that the failure
to make express findings on all three factors amounts to reversible error when
the court grants rather than denies an injunction. Nor would the first factor in
regarding the parties’ relative negligence, be dispositive in this case. The wall existed when appellant and
respondents bought their respective properties.
Appellant testified he did not obtain a survey because he was “[v]ery
satisified†with what he purchased, “didn’t necessarily want to start looking
to claim land or anything more,†and is “not the type of person to look for
trouble.†Yet, he and his wife admitted
they enclosed a portion of the pole for their exclusive use even though they
knew the wall and their backyard sat on an easement that “belonged to someone
else†and was to be used by all. On the
other hand, there was evidence that respondents bought their property in 2006
with the understanding that it had two access points—on Roscomare Road and
Antelo View Drive. They promptly
surveyed their property in 2007 and asserted their rights in the pole in 2008,
which prompted this action. This
evidence hardly shows that appellant was innocent or that respondents were
negligent.
Under the second factor, the court could enjoin an
encroachment that causes irreparable harm to respondents regardless of the
injury to appellant. (See
irreparable injury based on the obstruction of respondents’ ingress and egress,
presumably with regard to parcel 20.
Respondents showed that parcel 20 has a legal ingress and egress
driveway access to Roscomare Road over the pole and a separate address on that
street. There also was evidence that the
currently undeveloped parcel can be improved with a guest house, office,
studio, or a separate single family residence, but that development is
contingent on building a driveway over the pole that connects it to Roscomare
Road. The driveway would require removal
of the enroachments on the pole.
The court found no undue hardship to appellant in
having to remove the treehouse and swing set.
The only additional encroachments that respondents’ motion revealed were
the wall, fence, and some pre-existing trees.
Respondents did not estimate what it would cost appellant to remove
these encroachments, and the court did not expressly mention them in balancing
the equities or in the judgment, which ordered appellant to remove “the
encroachments upon the property, including a treehouse and a swing set.†But there is no reason to infer that the cost
of removal would be prohibitive.
Appellant argues that the court
failed to fully balance the equities since it ignored the allegations in
appellant’s answer to the cross-complaint and his counsel’s offer of proof at
the hearing on the motion for summary judgment.
He cites no authority that allegations in a pleading and an offer of
proof may raise triable issues of fact.
The law is to the contrary. (See
e.g. Cornelius v. Los Angeles County Etc.
Authority (1996) 49 Cal.App.4th 1761, 1768 [“a party cannot rely on the
allegations of his own pleadings, even if verified, to make or supplement the
evidentiary showing required in the summary judgment contextâ€];
(1995) 40 Cal.App.4th 1001, 1014 [counsel’s “assertions and allegations .
. . , unsupported by declarations or affidavits, do not serve to create a factual
issueâ€].)
The
evidence before the court did not indicate that there were material issues of
fact on appellant’s affirmative defense.
Summary judgment was therefore proper.
The judgment is affirmed. Respondents are entitled to their costs on
appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
EPSTEIN, P. J.
We
concur:
WILLHITE, J.
SUZUKAWA,
J.
are to the Code of Civil Procedure.
