Sdun v. Patterson CA3

Filed 2/18/15 Sdun v. Patterson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified 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 This opinion has not been certified for publication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.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

HOLGER SDUN et al., C070623

Plaintiffs, Cross-defendants and (Super. Ct. No.
Respondents, 34201000088020CUORGDS)

v.

KAREN L. PATTERSON,

Defendant, Cross-complainant and
Appellant.

Following a bench trial about a boundary dispute, defendant and cross-
complainant Karen L. Patterson appeals from a judgment quieting title in favor of
plaintiffs and cross-defendants Holger Sdun and Elizabeth Payne, and enjoining
defendant from a continuing trespass. Defendant also appeals from postjudgment orders
on costs and sanctions.

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 Defendant argues (1) plaintiffs’ evidence of the boundary line was insufficient as a
matter of law and fact; (2) the trial court erred in finding her prior use of the disputed
strip was permissive so as to defeat her claim for prescriptive easement; (3) the finding of
trespass was inconsistent with the finding of permissive use; and (4) various errors taint
the orders on costs and sanctions.
We affirm the judgment and postjudgment orders.

FACTS AND PROCEEDINGS

In 1984, defendant bought her home at 512 Coloma Way in Sacramento. The
house faces easterly, as shown in the diagram attached as Appendix A. In 2007, plaintiffs
purchased the corner lot north of defendant’s property from previous owners Grove and
Dora Arnold. Plaintiffs’ garage and driveway face Coloma Way, but their house faces
north on Pala Way.
The disputed strip of land is 3.66 feet wide and 50 feet long. It lies alongside the
plaintiffs’ driveway, garage, and a 52-inch-long grapestake fence that extends from the
back of plaintiffs’ garage to the Pala Way property of neighbor and nonparty Eric Holst.
Defendant’s deep lot borders the properties of both plaintiffs and Holst. A utility pole
marks the back end of the disputed strip.
In 1986, defendant replaced old fencing between her property and Holst’s property
with new redwood fencing that stops at the utility pole. From there, a grapestake fence
ran north about three and a half feet, then bent 90 degrees to the east and ran 52 inches
before ending at plaintiffs’ garage. She did not replace the grapestake fencing because
she assumed it belonged to the Arnolds.
Defendant also maintains an eight-and-a-half-foot-long redwood fence attached to
the side of her house and the side of plaintiffs’ garage, separating the front and back
yards. Defendant says her fence replaced a similar fence that was there when she bought
her home.

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 Plaintiffs discovered the boundary issue in 2010, when they and Holst replaced the
fencing between their properties and discovered the “jog” in the fence line.
Defendant, who is an attorney but was represented by counsel, testified she always
assumed the boundary line was plaintiffs’ garage, driveway, and the grapestake fence.
She landscaped and maintained the disputed strip. The Arnolds periodically trimmed
back ivy that grew on the grapestake fence. On one occasion, the Arnolds asked and
obtained defendant’s permission to move painting equipment through her backyard pool
gate, so they could paint the back side of their garage. Defendant testified to a cordial
relationship with the Arnolds. Defendant also testified she “expected that [plaintiffs]
could access the portion of the side of the garage that’s in my front yard at will. [¶] And
I expected that if they thought they had any need to enter . . . my backyard, for purposes
of accessing the backside of their garage, they would either ask me or they could remove
their grape stake fence for access.” If plaintiffs had asked for access, defendant would
have granted it.
After discovering the boundary issue, plaintiffs hired licensed land surveyor Dirk
Slooten. He prepared and filed with the county surveyor a “corner record” (Bus. & Prof.
Code, §§ 8765, 8773) marking the corners of plaintiffs’ property. At trial, he testified a
corner record, rather than a more comprehensive record of survey, was appropriate in this
case because there were no material discrepancies in the records, and sufficient
monumentation was located. Slooten, through employees whose work he reviewed, used
a metal detector to locate metal monuments in the streets, as indicated by circles on the
1926 Wright and Kimbrough Tract No. 33 subdivision map that created plaintiffs’ parcel.
It was typical for maps of that time period to use circles to indicate iron monuments
under the streets. Slooten found iron monuments at the center of Pala and Coloma, as
well as Coloma and D Street. The corner record showed the monuments as 1/2 inch iron
pipe, but upon reviewing the photographs at trial, Slooten acknowledged one was an iron
pin rather than an iron pipe. He confirmed the location of the monuments by surveying

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additional curb locations around the block. There was a deviation of a couple of tenths of
a foot, which he attributed to the type of equipment used in 1926. He then determined
the boundary line using GPS surveying equipment. Slooten did not determine all four
corners of defendant’s property; he only determined the common boundary with
plaintiffs’ property. Slooten looked at both the 1926 Wright-Kimbrough map that created
plaintiffs’ lot and the 1938 Sutter Park subdivision map that created defendant’s lot. He
saw no overlap or gap. Had there been a discrepancy, the older Wright-Kimbrough map
would have controlled.
Slooten determined the boundary line is 3.66 feet south of plaintiffs’ driveway and
garage, forming a straight line with the undisputed boundary between defendant’s and
Holst’s lots.
Defense expert, licensed land surveyor and engineer Herbert C. Langdon, opined
Slooten should have done a record of survey rather than a corner record. But Langdon
did not do his own survey and did not testify that Slooten’s conclusion was incorrect.
Instead, Langdon simply criticized details of Slooten’s work. For example, Langdon
thought all circles on the tract map were dimension points rather than monument markers.
He testified one of the monuments identified in Slooten’s corner record as 1/2 inch iron
pipe was a 3/8 inch “rebar,” and the other was a 1/4 inch steel rod. Langdon criticized
Slooten for not establishing the boundary line between the Wright-Kimbrough and Sutter
Park subdivision maps to see if there was any overlap, but Langdon did not say there was
in fact an overlap. Langdon criticized Slooten for not using the ancient grapestake fence
as evidence of the boundary line.
When asked at trial whether she had directed her expert to determine the boundary
line, defendant indicated it was not necessary because none of her theories were based on
a “strict survey.”
The trial court issued a Statement of Decision quieting title to the disputed strip to
plaintiffs. The trial court found that Slooten’s survey was a retracement of the lines

4
shown on the 1926 tract map; there was no material discrepancy in the position of points
or lines, or in dimensions as set forth in the original subdivision map; and there was
sufficient monumentation found to establish the precise location of the Plaintiffs’
property corners. The court noted Slooten’s corner record identified the monuments as
1/2 inch iron pipes, but the trial evidence indicated that one iron pipe was 3/8 inch, and
the other monument was an iron nail rather than an iron pipe. The court found these
discrepancies immaterial because the iron markers were located in the center of the street
intersections in conformity with their location as drawn on the Wright and Kimbrough
subdivision map. The trial court found the boundary line established by Slooten was the
true boundary line.
The trial court found that other circumstantial evidence supported Slooten’s
conclusion. In order for the property line to run exactly along the side of plaintiffs’
garage and driveway, as asserted by defendant, there would have to be a “jog” in
defendant’s property line. Yet all third-party maps submitted as exhibits, including the
subdivision map and defendant’s preliminary title report, show a straight line from front
to back of defendant’s property without any turns or jogs.
The trial court further found a trespass by defendant in her fence that attaches to
the side of plaintiffs’ garage.
The trial court rejected defendant’s claim of adverse possession, because she failed
to prove she paid property taxes for the disputed strip of land. The court rejected
defendant’s contention that she paid more for her property because it included the
disputed strip. Her expert, W. Jack Kidder, testified he “intuitively” thought defendant
paid more, but he offered no basis for his intuition. The court did not believe defendant
reasonably thought the fencing and landscaping indicated the boundary, since the fencing
made a 90 degree “jog” at plaintiffs’ property line, whereas the subdivision map and
preliminary title report showed the entire side of defendant’s property as a straight line.

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The dimensions of the parties’ parcels on the assessor’s map are identical to the lots
drawn on the recorded subdivision maps.
The trial court rejected defendant’s theory of prescriptive easement, which
requires open and notorious use that is under a claim of right and hostile to the true
owner. Defendant testified she and the prior owners of plaintiffs’ lot had consensual joint
usage of the strip, and defendant “expected” the Arnolds and plaintiffs could use the strip
as necessary. There was no claim of right by defendant to the exclusion of the true
owners. To the extent defendant’s use is currently adverse and hostile to plaintiffs, such
use commenced only in the last three years, which was less than the five years required
for a prescriptive easement.
The trial court rejected defendant’s theories of “agreed boundary” and equitable
easement (not challenged on appeal).
On March 5, 2012, the trial court entered judgment quieting title in favor of
plaintiffs and granting declaratory and injunctive relief. The judgment states plaintiffs’
evidence established the correct boundary line is 3.66 feet southwesterly of plaintiffs’
garage, as determined by the corner record prepared by Dirk Slooten, and 3.66 feet of
defendant’s fencing perpendicularly attached to plaintiffs’ garage encroaches upon
plaintiffs’ property. The judgment enjoins defendant from maintaining the fencing that
encroaches and commands that plaintiffs are allowed to remove the encroaching fencing.
The judgment provides that defendant shall not prevent plaintiffs from constructing a
fence along the true boundary line. The court entered judgment for plaintiffs on all of
defendant’s affirmative defenses and entered judgment against defendant on her cross-
complaint. Defendant filed a notice of appeal from the judgment.
Plaintiffs filed a cost memorandum.
Defendant filed a motion to tax costs on various grounds. As most pertinent to
this appeal, defendant challenged deposition costs and expert witness fees associated with
plaintiffs’ designation of real estate broker Truman Rich as an expert expected to testify

6
regarding valuation of the disputed strip. Plaintiffs did not call Rich as a trial witness.
Defendant submitted her own declaration stating she took Rich’s deposition in December
2011 and learned he helped plaintiffs in purchasing the property; he had not been asked
to form any expert opinion; he thought he would be asked only general questions about
real estate practices; his employer required him to obtain a release of liability from
plaintiffs’ counsel; and he did not know plaintiffs were going to pay him and was
surprised when they gave him a $250 check the morning of the deposition.
Defendant also filed a motion for sanctions (Code Civ. Proc., § 2023.030) against
plaintiffs and their attorney for misuse of the discovery process. Defendant alleged the
designation of Rich as an expert was a “sham” designed to burden her with additional
costs of litigation.
Plaintiffs opposed both motions and asked the court to impose sanctions against
defendant. Plaintiffs asserted they designated Rich to dispute defendant’s claim that she
paid more for her house due to inclusion of the strip, but during trial it appeared
unnecessary to call him as a witness.
In ruling on the motion to tax costs, the trial court allowed plaintiffs to recover
costs for Rich’s deposition and expert witness fee. Defendant had designated her own
expert to testify in support of her claim that she paid more for her property due to
inclusion of the strip -- the same issue for which Rich was designated. While Rich first
stated in deposition that he had not formed any opinions in the lawsuit, he later said he
was prepared to answer questions regarding the valuation of the disputed strip in his
capacity as a realtor in that neighborhood. The court concluded that, while Rich’s lack of
experience as an expert and prior relationship with plaintiffs may have affected the
weight of his testimony, those factors did not render the deposition unnecessary to the
litigation. The court also allowed costs for Rich’s expert witness fees of $250. The court
noted defendant had rejected a settlement offer by plaintiffs under Code of Civil
Procedure section 998, and the trial court had discretion under that statute to allow the

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prevailing party the costs of experts who aid in preparation for trial, even if the expert
does not testify. The trial court responded to defendant’s claim that Rich should have
been a percipient witness rather than an expert because he stated in deposition that he told
plaintiffs when they bought the property that the property line did not seem normal. The
court stated defendant failed to show that this affected his ability to place a value on the
disputed strip or render an opinion whether it factored into the price of defendant’s home.
The trial court denied defendant’s sanctions motion as untimely and instead
ordered defendant to pay plaintiffs $1,108.29 in sanctions. The court initially signed an
order imposing sanctions against defendant and her attorney but later amended it to limit
the order to defendant.

DISCUSSION

I

Standard of Review

“ ‘The question presented to the court in a boundary dispute is not that of making a
resurvey but one of determining as a question of fact from the preponderance of expert
and nonexpert evidence (as in all other civil cases) the actual location of the monuments,
corners or lines as actually laid out on the ground by the official surveyor.’ [Citation.]
‘The questions where the line run by a survey lies on the ground, and whether any
particular tract is on one side or the other of that line, are questions of fact. [Citation.]’ ”
(Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 737 (Bloxham).) “ ‘Surveyors and
civil engineers, like other experts, may give testimony on questions involving matters of
technical skill and experience with which they are peculiarly acquainted. [Citations.]’ . . .
The weight and credence to be given an expert’s testimony is a question for the trier of
fact. [Citation.]” (Id. at pp. 737-738.)
In reviewing the evidence for its sufficiency, we resolve all evidentiary conflicts
and indulge all reasonable inferences in favor of the judgment. (Bloxham, supra,

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228 Cal.App.4th at p. 739.) Where a statement of decision sets forth the factual and legal
basis for the decision, any conflict in the evidence or reasonable inferences to be drawn
from the facts will be resolved in support of the determination of the trial court decision.
(In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 342.)

II

Boundary Line

Defendant argues the trial court erred in quieting title in favor of plaintiffs,
because (1) Slooten prepared only a corner record rather than a record of survey; (2)
Slooten’s work was inadequate to constitute substantial evidence of the boundary line;
and (3) the trial court erroneously disregarded Langdon’s testimony. Under this heading,
she mixes factual and legal questions but fails to show error as to either.
As to the survey, defendant argues Slooten’s preparation of a “corner record”
(Bus. & Prof. Code, §§ 8765, 8773) rather than a “record of survey” (Bus. & Prof. Code,
§ 8762) was contrary to law, invoking de novo review. (Ghirardo v. Antonioli (1994)
8 Cal.4th 791, 800-801.) We disagree.
Business and Professions Code section 8765 provides: “A record of survey is not
required of any survey: . . . [¶] . . . [¶] (d) When the survey is a retracement of lines
shown on a subdivision map, official map, or a record of survey, where no material
discrepancies with those records are found and sufficient monumentation is found to
establish the precise location of property corners thereon, provided that a corner record is
filed for any property corners which are set or reset or found to be of a different character
than indicated by prior records. For purposes of this subdivision, a ‘material
discrepancy’ is limited to a material discrepancy in the position of points or lines, or in
dimensions. . . .” Any licensed surveyor may file a corner record for any property
corners. (Bus. & Prof. Code, § 8773.)

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 Defendant cites Saunders v. Polich (1967) 250 Cal.App.2d 136 (Saunders), for the
proposition that a surveyor’s opinion is insufficient when it is dependent on a survey that
is insufficient as a matter of law. Saunders is distinguishable. There, the plaintiff’s
surveyor admitted he did not commence his survey from any known point established by
a prior official government survey and failed to locate or use any markers or monuments
established, as section corners or otherwise, by prior documents. He instead relied on a
Department of Highways freeway survey, without comparing the field notes to the
official survey. (Id. at pp. 141-142.) The appellant court concluded the plaintiff’s survey
was insufficient as a matter of law. (Ibid.)
Here, Slooten did locate and use monuments identified in the 1926 subdivision
map and explained why he did a corner record rather than a record of survey. The trial
court found Slooten’s survey was a retracement of the lines shown on the original
subdivision map, there was no material discrepancy in the position of points or lines, or
in dimensions as set forth in the original subdivision map, and there was sufficient
monumentation found to establish the precise location of the plaintiffs’ property corners.
The court noted Slooten’s corner record identified the monuments as 1/2 inch iron pipes,
but the trial evidence indicated that one iron pipe was 3/8 inch, and the other monument
was an iron nail rather than an iron pipe. The court found these discrepancies immaterial
because the iron markers were located in the center of the street intersections in
conformity with their location as drawn on the Wright and Kimbrough subdivision map
(Tract No. 33).
On appeal, defendant argues Slooten’s preparation of a corner record instead of a
record of survey was unjustified because of the absence of pertinent monuments of record
on the Tract No. 33 map, and his failure to find monumentation in the field matching the
monuments he reported in his corner record. These arguments are based on a distortion
of the record and seek to convert a substantial evidence matter into a question of law. A
similar attempt was rejected in Luginbuhl v. Hammond (1960) 179 Cal.App.2d 350,

10
where the appellant argued the trial court erred in accepting the surveyor’s testimony
because the survey was not according to established legal rules. Luginbuhl stated the
surveyor gave his reasons for doing what he did, and it was for the trial court to weigh
and evaluate his testimony. (Id. at p. 354.)
Defendant claims the Tract No. 33 map contains no reference to pipe monuments
but contains only “tiny circles,” and Slooten acknowledged at trial that tiny circles may
or may not be pipe monuments, and maps sometimes label iron monuments as such
without using circles. However, Slooten explained he concluded based on his experience
that these circles were pipe monuments, and he did not merely assume the circles were
iron monuments but found the monuments and verified and corroborated them, taking
measurements of the curb splits and calculating the data to pinpoint the center point of
the intersection. By failing to include in her appellate brief this evidence favorable to the
judgment, defendant has forfeited her substantial evidence claim. (Doe v. Roman
Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218.)
She also forfeits by omitting from her Appellant’s Appendix evidence favorable to
the judgment. The Statement of Decision noted that all maps prepared by third parties
showed a straight line boundary and stated, “See for example the following exhibits, Exh.
6, 29, 50, 102, 104, 105, 142 and 157.” Yet defendant on appeal omits all but two of
these exhibits from her Appellant’s Appendix. Plaintiffs provide some of the omitted
exhibits in the Respondents’ Appendix. Various documents show the north boundary of
defendant’s lot as a straight line. These include a drawing by defendant’s architect in
connection with defendant’s remodeling plans for the north side of her property. An
assessor’s map attached to defendant’s preliminary title report shows the boundary as a
straight line with no deviation but states “Important: This plat is not a survey. It is
merely furnished as a convenience to locate the land in relation to adjoining streets and
other lands and not to guarantee any dimensions, distances, bearings, or acreage.” (Orig.
emphasis.) Nevertheless, the assessor’s map is consistent with the other documents.

11
 Under a separate heading that Slooten’s work was insufficient evidence of the
boundary, defendant argues (1) Slooten agreed to do a corner record before he knew
whether he would find sufficient monumentation; (2) he did not survey defendant’s
boundary on the Sutter Park Tract map; (3) he did not have much independent
recollection about the job in his trial testimony a year and a half after completing the job;
(4) his filing of the corner record was not timely and had to be resubmitted twice because
county staff found earlier submissions unacceptable; and (5) he improperly relied on the
fence defendant built between her lot and Holst’s lot because it corroborated the opinion
his clients wanted, while ignoring the older grape-stake fence. But, none of these
arguments establish insufficiency of the evidence.
Defendant then asserts the most important proof of insufficiency of the evidence is
that Slooten treated tiny circles as iron monuments, and that he suddenly altered his
finding in a significant way by stating at trial that one monument was an iron nail, not an
iron pipe. We have already rejected these points.
Defendant argues the trial court disregarded Langdon’s testimony on the erroneous
ground that Langdon failed to perform his own survey, which assertedly constituted
misallocation of the burden of proof, a legal error triggering de novo review. (Kellogg v.
Garcia (2002) 102 Cal.App.4th 796, 802 (Kellogg).) Again, we disagree.
Defendant cites closing arguments in the trial court. As defense counsel presented
closing arguments about adverse possession and prescriptive easement, the trial court
noted these theories depended on defendant using someone else’s property, i.e., “you
have the burden of showing that there was a piece of property that belonged to someone
else.” The court noted defense expert Langdon did not say where the boundary line was
and did not say plaintiffs’ expert was wrong about where the boundary line was. The
court framed the problem, “I don’t know what you all are going to do if I conclude that
both sides fail to carry their burden of proof. You’re basically arguing that they
[plaintiffs] haven’t established the boundary line.” The court asked, “how can you have a

12
prescriptive easement on something you haven’t even established belongs to someone
else?” Defendant’s counsel said the prescriptive easement claim was predicated on
plaintiffs having carried their burden of proof on their quiet title claim. The court replied,
“No, no. You’re the cross-complainant. You have the burden of proving that your client
either used somebody else’s property and, therefore, has a prescriptive easement or paid
taxes on someone else’s property [for adverse possession], so you haven’t done that
either. Because you haven’t established where the boundary line was and that she was
actually using the neighbor’s property at any time. [¶] So if I just take your case, maybe
they haven’t proved their case, what have you proved? You proved that you have a lot of
criticism against their expert and you proved there’s this disputed strip, but you haven’t
proven your case. You know, if they were to dismiss their case right now, you haven’t
proven a thing, so where would you all be? You’d all be back in the same place you were
before.” The trial court directed counsel to proceed but added, “It just strikes me the
defense spent most of its time trying the negate the plaintiffs’ case but hasn’t proved its
own cross-complaint. You’re a plaintiff on the cross-complaint.”
We do not impeach a ruling with the trial court’s oral remarks preceding it. (Smith
v. City of Napa (2004) 120 Cal.App.4th 194, 199.) While oral remarks may be
considered if they show the judgment was based on an erroneous view of the law
(Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 611), such is not the case
here.
Defendant’s position is that she did not need to prove who owned the strip. If
plaintiffs failed to prove ownership of the strip, that would be the end of the case, and
defendant’s cross-claims would be unnecessary. If plaintiffs proved ownership of the
strip, defendant could claim a prescriptive easement without disputing plaintiffs’
evidence of the boundary line. However, defendant was not merely claiming prescriptive
easement but was also claiming she owned the disputed strip. On the latter issue, she had
the burden to refute plaintiffs’ evidence of the boundary line. Moreover, the trial court’s

13
oral remarks were made after all the evidence was in, and therefore did not affect the
parties’ presentation of their cases.
Further, the trial court’s comments must be taken in context. They came during
closing arguments before the trial court had made any determination as to the ownership
of the contested strip. Defendant, in her cross-complaint, pleaded a cause of action
confirming her right to use the disputed strip of property on the theory that she had
established a prescriptive easement thereto. One of the elements of a cause of action
seeking the declaration of a prescriptive easement is that the use claimed has been hostile
to the true owner of the property. (See generally, 12 Witkin, Summary of Cal. Law,
(10th ed. 2005) Real Property, § 401, p. 469.)
At this stage of the proceedings, the trial court was merely noting that, not yet
having decided that plaintiffs were the true owners of the property in question, there had
not yet been a determination of who the “true owner” was. As we read it, the court was,
at that point, only observing that, if he decided the plaintiffs’ claims failed and they had
not proven they were the true owners of the parcel, there was no evidence in the record,
defendant not having conceded ownership in plaintiffs, that plaintiffs owned the property
over which defendant claimed a prescriptive right. In other words, the court was only
suggesting the proof appeared insufficient on defendant’s cause of action for a
prescriptive easement, for which defendant had the burden of proof, in that the proof
failed to show that defendant’s claim was hostile “to the true owner.” Unless the court
later found for plaintiffs on their claim that they were the true owners of the property,
there would have been no determination as to who the true owner was for lack of proof
on that point.
A failure of proof on plaintiffs’ part that they were the true owners of the property
did not necessarily equate to a finding that defendant was. There was, as this matter was
pled by the parties, a possibility that the court could have found against the plaintiffs on
their quiet title action and against defendant on her cause of action for a prescriptive

14
easement or her other causes of action based upon insufficient proof. In part, these
comments reflect on defendant’s decision to plead legally inconsistent claims, which she
was entitled to do, that is, that she owned the property, but if plaintiffs owned the
property, she had a right to a prescriptive easement across that strip of land.
As it turned out, of course, the trial court found that defendant had not established
her right to a prescriptive easement based on a failure of proof that her use of the property
was “hostile” to whomever the owner was for the required period.
In any event, defendant fails to show the trial court misallocated the burdens of
proof or based the judgment on an erroneous view of the law.
We also note that, contrary to defendant’s claim, the court did not disregard
Langdon’s testimony. As reflected in closing arguments and in the Statement of
Decision, the trial court merely recognized Langdon was not much help at trial, because
his testimony was limited to a critique of Slooten’s methods without refuting Slooten’s
conclusion and without offering Langdon’s own opinion on the location of the boundary
line.
We conclude defendant fails to show error in the trial court’s finding as to the
location of the boundary line.

III

Prescriptive Easement

Defendant argues the trial court erred in denying her a prescriptive easement,
because the court misinterpreted the law regarding hostile use.
To establish a prescriptive easement, defendant had to prove not only that she used
the disputed strip continuously for five years, but that her use was open and notorious,
hostile to the true owner, and under a claim of right. (Civ. Code, § 1007 [title by
prescription]; Code Civ. Proc., § 321 [adverse use for five years]; Grant v. Ratliff (2008)
164 Cal.App.4th 1304, 1308 (Grant) [trial court reasonably concluded use was not

15
adverse but rather a family accommodation].) Prescriptive easements express a
preference for use, rather than disuse of the land. (Hirshfield v. Schwartz (2001)
91 Cal.App.4th 749, 769 (Hirshfield).) Where, as here, a party seeks a limited right to
use the property of another, the prescriptive easement does not confer title but only an
easement to use the property. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296,
1306.)
“Claim of right” does not require a belief or claim that the use is legally justified;
it means no more than that possession be hostile, which in turn “means only that the
owner has not expressly consented to it by lease or license or has not been led into
acquiescing in it by the denial of adverse claim on the part of the possessor.”
(Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 (Felgenhauer).)
Hostile possession may be established when the occupancy or use commenced
through mistake. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322 (Gilardi).) “When it
appears that the occupier enters the land mistakenly believing he is the owner, possession
is adverse unless it is established by substantial evidence that he recognized the potential
claim of the record owner and expressly or impliedly reflected intent to claim the
disputed land only if record title was determined in his favor.” (Id. at p. 326.) The
hostility requirement “ ‘means, not that the parties must have a dispute as to the title
during the period of possession, but that the claimant’s possession must be adverse to the
record owner, “unaccompanied by any recognition, express or inferable from the
circumstances of the right in the latter.” ’ ” (Id. at pp. 322-323.) The adverse user
“ ‘ “must unfurl his flag on the land, and keep it flying, so that the owner may see, if he
will, that an enemy has invaded his domains, and planted the standard of conquest.” ’ ”
(Myran v. Smith (1931) 117 Cal.App. 355, 362.) “ ‘The presumption of ownership of
land is with the paper title and clear evidence is necessary to overcome this presumption;
and the adverse claim of right must not only exist in the mind of the claimant, but must
be proved to have been communicated in some way to the owner, so that his failure to

16
object may be taken against him as an acknowledgement or acquiescence in the right
claimed. [¶] . . . [¶] A prescriptive title cannot arise out of an agreement, but must be
acquired adversely, and it cannot be adverse when it rests upon a license or mere
neighborly accommodation.’ ” (Case v. Uridge (1960) 180 Cal.App.2d 1, 8.)
We review trial court decisions on prescriptive easements for substantial evidence.
(Felgenhauer, supra, 121 Cal.App.4th at p. 449.) “Whether the use is hostile or is merely
a matter of neighborly accommodation . . . is a question of fact to be determined in light
of the surrounding circumstances and the relationship between the parties. [Citations.]”
(Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572 (Warsaw) [found
hostile use where commercial property owner used adjacent strip of land for truck
turnaround while attempting to negotiate an express easement, and adjacent owner
refused to negotiate].)
Here, the trial court found defendant’s use of the strip during the Arnolds’
occupancy was not hostile to the Arnolds’ ownership because, according to defendant’s
own testimony, she and the Arnolds had consensual joint use of the strip; she expected
them to use it; they did use it; she made no claim of right to the exclusion of the Arnolds;
she similarly expected plaintiffs to use the strip as necessary; and any use hostile to
plaintiffs was of insufficient duration to establish a prescriptive easement.
Defendant invokes de novo review, claiming the Statement of Decision shows
legal error misinterpreting hostile use and failing to accord her a presumption of hostile
use from long-time use. She cites Warsaw, supra, 35 Cal.3d 564, which said that
continuous use over a long period of time without the landowner’s interference is
presumptive evidence of the existence of an easement and, in the absence of mere
permissive use, will be sufficient. (Id. at pp. 571-572.)
Plaintiffs respond by citing Grant, supra, 164 Cal.App.4th at p. 1309, which
pointed out Warsaw did not mention an earlier California Supreme Court opinion,
O’Banion v. Borba (1948) 32 Cal.2d 145, 149-150, which concluded that a presumption

17
of adverse possession does not arise from continuous use. Grant concluded Warsaw was
dictum on the point, and O’Banion was still good law. (Grant, supra, 164 Cal.App.4th at
p. 1309.) Even if a presumption were warranted, Grant concluded it would be one
affecting the burden of producing evidence, not the burden of proof. (Id. at pp. 1309-
1310.) Presumptions affecting the burden of proof implement some public policy. (Evid.
Code, § 605.) While prescriptive easements provide some social benefit, continually
trespassing on another’s land is generally not such a social benefit to warrant a
presumption affecting the burden of proof. That the party seeking a prescriptive
easement has the burden of proof by clear and convincing evidence (Evid. Code, § 662
[presumption that owner of legal title is owner of beneficial title may be rebutted only by
clear and convincing proof]) undermines the argument for a presumption favoring the
adverse possessor.
Even assuming long-time use could give rise to a presumption of hostile use,
defendant’s own testimony eliminates the presumption because, as she acknowledges on
appeal, “It is true that [defendant] testified that the Arnolds accessed the strip as
necessary to maintain and repair the side of their garage and that she expected [plaintiffs]
to do the same.” This supports the trial court’s conclusion of a neighborly
accommodation rather than hostile use.
On appeal, defendant does not challenge the findings on the ground the trial court
sustained plaintiffs’ evidentiary objection to defendant’s testimony about the Arnolds
using and being free to use the strip to maintain their garage. Defendant’s appellate brief
acknowledges she so testified. It appears the trial court implicitly reversed itself as the
testimony continued and the court overruled a similar objection, noting the dynamics of
the relationship were relevant to the prescriptive easement claim.
We conclude defendant fails to show reversible error regarding prescriptive
easement.

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 IV

Trespass

Defendant argues the trial court erred in finding a trespass in her maintenance of
the eight-and-a-half-foot-long redwood fence attached to plaintiffs’ garage. Defendant
views this finding as inconsistent with the trial court’s finding that her use of the disputed
strip was permissive so as to defeat her claim of prescriptive easement. She says her use
never varied the entire time she has been there. She nevertheless views the asserted
inconsistency as immaterial, because she thinks she proved nonpermissive use ripening
into a prescriptive easement.
There was no inconsistency. The trial court found defendant’s use of the disputed
strip was permissive during the many years the Arnolds were defendant’s neighbor but
became hostile after plaintiffs bought the property and disputed ownership of the strip.
Defendant’s hostile use was not of long enough duration for a prescriptive easement (five
years), because plaintiffs filed their lawsuit about three years after buying the property.
And, necessarily, once the court found that the disputed property belonged to plaintiffs
and that defendant had no rights thereon, the existence of defendant’s fence across the
property constituted a trespass.
The trial court’s findings are not inconsistent but rather are based on the
differences in defendant’s relationships with the previous and current owners.
Defendant raises no other issues about the judgment and fails to show any grounds
to reverse the judgment.

V

Motion to Tax Costs

Defendant’s appellate brief muddles arguments about costs and sanctions. We
treat them separately.

19
 The trial court allowed plaintiffs to recover costs for expert witness fees and
deposition costs for their designated real estate expert, Truman Rich.
Although expert fees not ordered by the court are not allowable costs (Code Civ.
Proc., § 1033.5, subd. (b)(1)), defendant acknowledges the trial court has discretion to
allow these costs where, as here, defendant failed to obtain a judgment more favorable
than a pretrial settlement offer she rejected. (Code Civ. Proc., § 998, subd. (d) [court may
allow expert witness costs actually incurred and reasonably necessary in preparation for
or during trial]; Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th
102, 123-124.) Costs may be awarded even if the expert does not testify at trial, as long
as the expert was a potential witness. (Evers v. Cornelson (1984) 163 Cal.App.3d 310,
317 (Evers).)
“ ‘If the items appearing in a cost bill appear to be proper charges, the burden is on
the party seeking to tax costs to show that they were not reasonable or necessary. On the
other hand, if the items are properly objected to, they are put in issue and the burden of
proof is on the party claiming them as costs.’ ” (Nelson v. Anderson (1999)
72 Cal.App.4th 111, 131 (Nelson).) To the extent defendant thinks her mere objection
shifts the burden to plaintiffs, we disagree. The mere filing of a motion to tax costs may
suffice as a “proper objection” shifting the burden if the necessity of the cost appears
doubtful on the face of the tax memorandum. (Ibid.) However, “ ‘[i]f the items appear to
be proper charges the verified memorandum is prima facie evidence that the costs,
expenses and services therein listed were necessarily incurred by the [prevailing party],
and the burden of showing that an item is not properly chargeable or is unreasonable is
upon the [objecting party].’ [Citations.]” (Ibid.)
Defendant argues costs for expert Rich were improper in this case for three
reasons. First, she cites Evers’s statement that a treating physician, as a percipient
witness, was not entitled to expert witness fees because he would not be testifying
“solely” as an expert. (Evers, supra, 163 Cal.App.3d at p. 316.) Defendant claims Rich

20
would have or should have testified as a percipient witness because he told plaintiffs
when they bought the property that the apparent boundary seemed abnormal. However,
the trial court found Rich was not a potential percipient witness. He had been hired as an
expert regarding valuation of defendant’s lot -- to respond to her claim that she paid more
for her property believing it included the disputed strip -- and Rich had not participated in
defendant’s purchase of her home.
Second, defendant argues there is no evidence plaintiffs incurred an obligation to
pay Rich because Rich said at deposition that he did not believe there was a written
contract and was surprised when plaintiffs’ counsel gave him a check for $250.
However, the trial court found the deposition transcript showed Rich was expecting to be
paid but was unsure who would be paying.
Third, defendant argues Rich’s services were unnecessary because there was no
evidence his services were necessary. However, defendant herself made his services
necessary by claiming she paid more for her property due to inclusion of the disputed
strip.
Defendant next contends the trial court abused its discretion in allowing plaintiffs
to recover deposition costs and expert witness fees for licensed engineer Scott Duren,
who was retained by plaintiffs on issues of causation of and remedy for flooding in their
garage, but who did not testify at trial. We disagree. Flooding was an issue, because
defendant was claiming an equitable easement, which turns on judicial balancing of
hardships. (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 265.) In 2010,
plaintiffs wanted to install a drain on the disputed strip to stop their garage from flooding.
Because they believed at the time that defendant owned the strip, they spoke about it with
defendant’s contractor, Jim Carrell, who was working on an addition to defendant’s
house, but Carrell reported defendant said no. Defendant designated her contractor, Jim
Carrell, as an expert on drainage issues. Plaintiffs retained Duren, whose resume displays

21
expertise in flooding and drainage. Defendant deposed Duren and designated engineer
Mark Gilbert to respond to Duren.
Plaintiffs did not call Duren as a witness in their case in chief. Defendant did not
call Carrell as a witness but did call Gilbert as a witness. Plaintiffs objected. The trial
court questioned the relevance of the drainage issue and of calling an expert to refute
another expert whose opinion was not before the court. But the court would not exclude
Gilbert -- until plaintiffs’ lawyer agreed to withdraw Duren as a potential witness. The
court then precluded Gilbert from testifying.
Contrary to defendant’s argument, the initial attempt by plaintiffs’ lawyer to
reserve the right to call Duren does not reflect an underhanded strategy to exclude
defendant’s expert and then call plaintiffs’ expert so his testimony would stand unrefuted.
Defendant argues, as she did in the trial court, that Duren’s services were unnecessary
because he is plaintiffs’ friend and lacks residential expertise. We, like the trial court,
view the argument as insufficient.
Finally, defendant contends the trial court abused its discretion in awarding
plaintiffs costs for their $80 filing fees and a $78 “court call” charge (to appear
telephonically) relating to their earlier “unsuccessful” discovery motions, heard by a law
and motion judge, to compel further answers to interrogatories and supplemental
answers. However, in denying the motion to tax costs, the trial court noted one discovery
motion had been granted in part, and the other had been granted in its entirety. Defendant
argues that, as the motion was granted only in part, the motion was unnecessary because
plaintiffs rejected defendant’s compromise offer to resolve the dispute; the motion was
untimely under the discovery statute; and plaintiffs failed to obtain the only discovery
item they were “adamant” about obtaining. However, the motion was necessary, because
defendant’s initial answers were unverified, and defendant acknowledges plaintiffs did
obtain relief, in that the trial court ordered defendant to provide verification for those

22
responses. We need not address defendant’s footnoted assertion that the law and motion
judge erred in ordering her to provide verification.
We reject defendant’s tangential argument that the law and motion judge abused
her discretion in denying defendant’s request that sanctions be imposed against plaintiffs
for discovery abuse. Code of Civil Procedure section 2023.030 authorizes a monetary
sanction against a party or attorney who misuses the discovery process unless the court
finds that person “acted with substantial justification or that other circumstances make the
imposition of the sanction unjust.” (Stats. 2012, ch. 72, § 19; prior version at Stats. 2004,
ch. 182, § 23.) Defendant failed to show discovery abuse, and the law and motion judge
determined sanctions were unwarranted, and defendant fails to show the court abused its
discretion.
We conclude defendant fails to show any grounds for reversal regarding the
motion to tax costs or the discovery motions.

VI

Motion for Sanctions

Defendant argues the trial court abused its discretion by denying her motion for
sanctions and instead ordering her to pay sanctions.
Imposition of sanctions for discovery abuses generally lies within the trial court’s
discretion and is reviewed on appeal for abuse of discretion. (Doppes v. Bentley Motors,
Inc. (2009) 174 Cal.App.4th 967, 991.) Whether a request for sanctions is timely is
subject to the court’s discretion as a fact-specific analysis. (London v. Dri-Honing Corp.
(2004) 117 Cal.App.4th 999, 1008-1009.)
Defendant argues sanctions were warranted because plaintiffs’ designation of Rich
as a trial expert was a mere sham designed to cost defendant unwarranted burden and
expense. Defendant argues the trial court erred in denying her motion for sanctions on
the ground it was untimely.

23
 The trial court did not address the merits because it found the sanctions motion --
filed 70 days after the trial concluded -- was untimely, and the grounds for the motion
became clear long before trial. The deposition transcript showed the basis for the
sanctions request -- Rich’s prior relationship with plaintiffs, the release of liability, the
fee issues, and his alleged unpreparedness -- were revealed at Rich’s deposition, which
took place 103 days before defendant filed the motion. Defendant argued the motion was
timely because plaintiffs’ inclusion of expert expenses in their cost memorandum proved
their “sham” expert designation was a misuse of the discovery process to increase
defendant’s litigation expenses. The trial court rejected the argument, stating it was not
an abuse of the discovery process for a prevailing party to claim costs, and if defendant
truly believed she was forced to pay for the deposition of a “sham” expert, she should
have brought her motion promptly after the deposition.
On appeal, defendant repeats her argument that the full depth of the sham was not
revealed until plaintiffs sought costs relating to Rich. She argues an earlier motion would
have been premature, but we reject that argument for the reasons stated by the trial court.
Defendant cites Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152,
for the proposition that sanctions may be mandated. There, however, the appellate court
in a products liability case held the trial court erred in failing to grant a new trial and
consider on the merits the plaintiffs’ posttrial request for sanctions based on their
fortuitous discovery of damning new evidence concealed by the product manufacturer
during discovery. (Id. at pp. 1155-1156.) Defendant fails to show sanctions were
mandated in this case.
We conclude defendant fails to show grounds for reversal regarding sanctions.

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 DISPOSITION

The judgment and postjudgment orders are affirmed. Plaintiffs shall recover their
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)

HULL , Acting P. J.

We concur:

BUTZ , J.

HOCH , J.

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Appendix A