Lobenstein v. Khodayari CA2/8

Filed 5/5/21 Lobenstein v. Khodayari CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DREW LOBENSTEIN et al., B296769

Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. LC106634)
v.

MOHAMMAD KHODAYARI et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Virginia Keeny, Judge. Affirmed.
Mohammad Khodayari and Bahman Khodayari, in pro.
per., for Defendants and Appellants.
Rosen and Loeb and Alan L. Rosen for Plaintiffs and
Respondents.
__________________________________
 Plaintiffs and respondents, Drew Lobenstein, Primitivo L.
Valle, Elvia Valle, Russell O’Hearn, Christopher Becker,
Frances L. Davey, Nava Skolnik and Ilan Skolnik (Respondents)
brought a civil action seeking a prescriptive easement against the
defendants and appellants, Mohammad Khodayari and Bahman
A. Khodayari (Appellants).1 The dispute centered on a decades
long use of an alley that, in 2016, was partially blocked by the
Appellants who extended their back fence making ingress/egress
by automobiles nearly impossible. After a two-day bench trial,
the trial court found a prescriptive easement in Respondents’
favor and ordered the Appellants to remove the fence within 30
days. The trial court’s judgment was entered on February 29,
2019. Thereafter, the Appellants filed a notice of appeal and
sought a stay on the trial court’s fence destruction order which
we granted pending the outcome of this appeal.2
Appellants raise three contentions: (1) Respondents failed
to prove the element of hostile use of the property for prescriptive
easement; (2) the trial court’s judgment created an inappropriate
exclusive easement/adverse possession; and (3) the trial court in
deciding the case erred by using the preponderance of the
evidence instead of the clear and convincing standard. We affirm
the judgment.

1 As in this appeal, the Appellants were self-represented for
the court trial.
2 On May 28, 2019, we granted in part a petition for a writ of
supersedeas staying the trial court’s fence destruction order
pending disposition of the appeal.

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 FACTS
Appellants are brothers. In 2004, one of the Appellants,
Bahman Khodayari, purchased 19106 Cantara Street, Reseda,
California 91335. This Property is located in a suburban
residential neighborhood subdivided into parcels with a 14 feet
wide alley running along the back of the lots. The Appellants’
property is located on the corner of Cantara Street and Vanalden
Avenue at one of the mouths of the alley. The residents on
Cantara Street have used the alley since the 1950’s. According to
trial testimony, there are 38 properties that use this alley for
ingress and egress from their lots. The alley is accessed through
Vanalden Avenue on one end, and Tampa Avenue on the other.
The alley is a private road that is 14 feet wide.
In 2016, one of the Appellants, Bahman Khodayari,
extended his back fence to the limit of his property line
decreasing the alley by seven feet because of alleged theft,
trespass, vandalism, garbage dumping, loitering and graffiti on
his property. Before he extended his back fence, residents were
able to enter the alley on either end (Tampa or Vanalden) and
drive through to the other. The decrease in the width of the alley
on Vanalden, however, meant automobiles could no longer drive
through the alley – they would now have to enter on Tampa
Avenue and back up to exit. Many commercial delivery services
refuse to enter the alley for this reason.
After a two-day court trial, the court ruled as follows: “The
court finds that the use of the alleyway, including that portion
that falls within the Defendant’s property, to have been hostile to
the true owner in that they were not acknowledging that the
owner had the right to exclude them. It was done in an adverse
manner in that they were claiming, each one of them, that they

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had the right to use that alleyway pursuant to prior agreement
among all homeowners or based on prior usage within the
neighborhood. And that was a claim of right that each one of
them asserted. And that was contrary and adverse to the
defendant’s claim of right to the property. [¶] And, further, the
court finds that their use of this driveway was continuous and
uninterrupted for five years prior to the erection of the sign.”
DISCUSSION
I. Proof of the Element of Hostile Use for the
Prescriptive Easement
Appellants contend the Respondents failed to prove the
element of hostile use of the property on two bases: a) “the
original homeowners had a verbal agreement as a neighbor
accommodation which permitted access to 7 [feet] of their
respective property lines for access to the [a]lley,” and, b) the
Appellants posted a sign establishing a permissive use. We
disagree.
A. Legal Principles
“To establish the elements of a prescriptive easement, the
claimant must prove use of the property, for the statutory period
of five years, which use has been (1) open and notorious; (2)
continuous and uninterrupted; (3) hostile to the true owner; and
(4) under claim of right.” (Mehdizadeh v. Mincer (1996) 46
Cal.App.4th 1296, 1305.)
The Appellants contend the element of hostile use of the
property was not established. As the Respondents point out, this
challenges the sufficiency of the evidence supporting the trial
court’s decision as a trier of fact in a court trial on the element of
hostile use. “Whether the use is hostile or is merely a matter of
neighborly accommodation . . . is a question of fact to be

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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.)
“In reviewing the sufficiency of the evidence, our task
begins and ends with a determination whether any substantial
evidence exists, contradicted or uncontradicted, which will
support the trier of fact’s conclusion. [Citation.]” (Hellman v. La
Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1229.)
“[A] reviewing court will not find unsupported the trial court’s
findings merely because it might reasonably draw different
inferences from those the trial court reasonably drew unless it
clearly appears that under no hypothesis is there substantial
evidence to support the trier of fact’s finding. [Citation.]
Questions of credibility and resolution of conflicting evidence are
for the trier of fact. [Citation.]” (Ibid.)
B. The Agreement
Appellants claim the Respondents failed to establish that
their use of the alley was hostile and adverse because “[t]he
[a]lley was created by an oral agreement amongst the original
homeowners, which was ratified by their conduct of allocating 7
[feet] of their property to create the [a]lley.”
During cross-examination of Robert Alan Scott called by
the Respondents, appellant Bahman Khodayari asked whether
Scott was upset with him. Scott responded:
“I am upset that you, without asking anyone else’s
permission, chose to violate an agreement that had been in place
for many decades.”
Scott further testified that when he purchased his property,
his next-door neighbor had explained that in 1952, everyone had
agreed to give away seven feet of their property to create an alley.

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Similar testimony came from another one of Respondents’
witnesses, Wyllyam Davey. During cross-examination by
appellant Bahman Khodayari, Davey testified, “In 1950 my mom
and dad granted - - the whole neighborhood let them do that. So
[the alley’s] been open since 1950. Okay.”
Appellants cite Windsor Pacific LLC v. Samwood Co., Inc.
(2013) 213 Cal.App.4th 263 for the rule that, “[u]se with the
owner’s permission . . . is not adverse to the owner. [Citations.]”
(Id. at p. 271.) Windsor goes on the explain, “[t]o be adverse to
the owner a claimant’s use must give rise to a cause of action by
the owner against the claimant. [Citations.] This ensures that a
prescriptive easement can arise only if the owner had an
opportunity to protect his or her rights by taking legal action to
prevent the wrongful use, yet failed to do so. [Citations.]” (Ibid.)
It stands to reason, if the owner of a property has given
permission to the claimant to use the property, the owner would
have no reason to protect his property as he is the one who
permitted the use. The relationship is clearly not hostile.
Such is not true here. First, Appellants, if they wanted the
trial court to seriously consider this issue, could have developed
this defensive theory of “permissive” use in greater detail. As it
was, the testimony on this supposed oral agreement was thin,
secondhand, and unclear. The trial court was not provided with
any definite information about who may have originally agreed,
what the terms of the agreement may have been, or whether
there actually ever was an agreement. Other than to establish
that Respondents believed they had a right to use the alley, very
little about the oral agreement was actually established. It was
up to the Appellants, if they chose to rely upon it at trial, to

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develop it. They failed to do so. The trial court can only base its
decision on the facts presented.
Furthermore, there is no evidence in the record that the
Appellants even knew of the existence of the supposed oral
agreement before the trial. The purpose of the rule is to provide
owners with an opportunity to take legal action against
encroachers to eject them. The rationale for the rule simply does
not apply to the facts of this case. The Appellants failed to
provide the trial court with sufficient facts for it to rule in their
favor.
Indeed, the trial court saw this testimony as supportive of
another element – that the Respondents believed they had a
claim of right to use the alley.
C. Posted Sign
Appellants contend when they purchased the property in
2004, a sign was posted on the back fence which read: “A Private
Lane [sic], For Residents ONLY, By Permission Of Owner Of
This Property, No Trespassing, No Dumping, No Parking, No
Loitering.” Appellants claim during Scott’s testimony, he
admitted to seeing this sign. The question and answer went as
follows:
“[Counsel for Plaintiffs:] Okay. You see that sign?
“[Mr. Scott:] Uh-huh.
“[Counsel for Plaintiffs:] Have you ever seen that sign
before other than today?
“[Mr. Scott:] Yeah.
“[Counsel for Plaintiffs:] Where did you see it?
“[Mr. Scott:] I’ve seen it at the end on Tampa.
“[Counsel for Plaintiffs:] That same exact sign?

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 “[Mr. Scott:] No. Not the same exact sign. But, it’s a
private lane for residents only.
“[Counsel for Plaintiffs:] My question is have you ever seen
that sign?
“[Mr. Scott:] No.”
Appellants cite Villanueva v. City of Colton (2008)
160 Cal.App.4th 1188 and invoke the doctrine of judicial estoppel.
“Judicial estoppel, sometimes referred to as the doctrine of
preclusion of inconsistent positions, prevents a party from
‘asserting a position in a legal proceeding that is contrary to a
position previously taken in the same or some earlier proceeding.
The doctrine serves a clear purpose: to protect the integrity of the
judicial process.’ ” (7 Witkin, Cal. Procedure (5th ed. 2020)
Judgments, § 339.) This doctrine is often cited when a party,
seeking to avoid an adverse ruling by the court, claims as true
facts inconsistent with a position taken earlier in the same or
related proceedings. The doctrine is aimed at curtailing legal
gamesmanship.
Scott’s testimony does not fit within the reach of this rule.
Instead, when a witness makes a statement that may be
inconsistent with a prior statement, it is the trier of fact’s duty to
ascertain credibility. (People v. Zapien (1993) 4 Cal.4th 929, 956.)
Here, it is difficult to say Scott’s testimony contained any
inconsistency at all. If there was any, it was the trial court’s duty
as the trier of fact to resolve it.
On this contention, Appellants also ask us to consider a
letter from the previous owner, Greg Reed. During the
presentation of evidence, the trial court excluded this letter based
on lack of foundation. “It is an elementary rule of appellate
procedure that, when reviewing the correctness of a trial court’s

8
judgment, an appellate court will consider only matters which
were part of the record at the time the judgment was entered.
[Citation.]” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d
800, 813.) By this rule, we are prevented from considering Greg
Reed’s letter.
On this same topic, Appellants also contend the trial court
abused its discretion by denying their mid-trial continuance to
call Greg Reed. “The decision to grant or deny a continuance is
committed to the sound discretion of the trial court. [Citation.]
The trial court’s exercise of that discretion will be upheld if it is
based on a reasoned judgment and complies with legal principles
and policies appropriate to the case before the court. [Citation.]
A reviewing court may not disturb the exercise of discretion by a
trial court in the absence of a clear abuse thereof appearing in
the record.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977,
984–985.) California Rules of Court, rule 3.1332(c), provides in
pertinent part, “Although continuances of trials are disfavored,
each request for a continuance must be considered on its own
merits. The court may grant a continuance only on an
affirmative showing of good cause requiring the continuance.”
After appellant Bahman Khodayari finished testifying in
his own defense, he was asked by the trial court if he had any
further witnesses. He replied, “At this point, I cannot reach
them. But if the Court is willing to continue, I will call to the
previous owner from 2004. But that person has to be - - come
another day. Not today.” The trial court denied the request
stating, “The court is going to deny the request to continue the
trial. Any witnesses for either side should have been subpoenaed
to court for this date. Because defendant has already indicated

9
he did not subpoena him, apparently this gentleman to trial, then
I see no basis for continuing the trial.”
Respondents filed their complaint on December 22, 2017.
The trial occurred on January 29 and 30, 2019. Appellants had
over a year to locate and subpoena their witnesses, including
witness Reed. At the time of Appellants’ request, all the
testimony had concluded. Appellants’ request was unspecific on
due diligence and on the potential success of obtaining Reed’s
appearance. Based on these factors, the trial court’s denial was
within its sound discretion.
On the issue of the posted sign, the trial court ultimately
ruled, “The court did not find credible [Appellants’] testimony,
and this will be both [Appellants’] testimony, that there was a
sign placed on the back fence - - this is Exhibit 3 - - as all of the
[Respondents] and Mr. Scott denied ever seeing this alleged sign.
There was no photograph anywhere showing that it actually had
been placed in a visible place prior to the fence being erected in
2016.”
The trial court found the main evidence provided through
the testimony of the Appellants not credible. Factual disputes
are resolved by the trier of fact, here, the trial court. “It is
elementary that an appellate court does not weigh or resolve
conflicts in the evidence nor does it judge the credibility of
witnesses.” (Halagan v. Ohanesian (1967) 257 Cal.App.2d 14,
17.) After review of the record, we hold substantial evidence
supports the trial court’s decision that Respondents proved all
the elements necessary for a prescriptive easement including the
element of hostile use of the property.

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II. Exclusive Easement/Adverse Possession
Appellants contend the trial court “essentially quieted title
to the 7 [feet] strip of land in the [a]lley which was Appellants’
[p]roperty without any satisfaction of the requirements of adverse
possession.” We disagree.
“There is a difference between a prescriptive use of land
culminating in an easement (i.e., an incorporeal interest) and
adverse possession which creates a change in title or ownership
(i.e., a corporeal interest); the former deals with the use of land,
the other with possession; although the elements of each are
similar, the requirements of proof are materially different.
[Citations.]” (Raab v. Casper (1975) 51 Cal.App.3d 866, 876.)
Appellants cite Silacci v. Abramson (1996) 45 Cal.App.4th
558 and argue the trial court’s judgment granted an exclusive
easement to the Respondents. Appellants, however, do not show
how the trial court’s judgment created an “exclusive” as opposed
to a “non-exclusive” easement.
Our review of the record shows the easement at issue here
is for the use of seven feet of the Appellants’ property for an alley.
None of the Respondents are claiming a right to possess
Appellants’ land. On the contrary, they simply want the use of
the seven feet at the mouth of the alley on Vanalden so that
automobiles can pass through the alley without having to back up
to exit. The pertinent question is whether the easement was to
obtain an incorporeal, as opposed to, a corporeal interest. Here,
it is clear, the Respondents were seeking an incorporeal interest
to use Appellants’ property as an alley.
III. Standard of Proof
The Appellants contend the proper standard of proof in
deciding a prescriptive easement case is clear and convincing and

11
that since the trial court, in its statement of decision, used the
preponderance of the evidence standard, the trial court erred
requiring a reversal of the judgment. We disagree.
Currently, there is a split of opinion on the proper standard
to be applied in a prescriptive easement case. Appellants cite
Grant v. Ratliff (2008) 164 Cal.App.4th 1304 (Grant) which held
that the clear and convincing standard is the correct one for
resolving prescriptive easement disputes. (Id. at p. 1310 [“a
party seeking to establish a prescriptive easement has the
burden of proof by clear and convincing evidence”].) Vieira
Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057 (Vieira)
reviewed Grant’s line of authority and disagreed. (Id. at p. 1074,
declined to follow in Husain v. California Pacific Bank (2021)
61 Cal.App.5th 717 (Husain).)3
On this, Vieira said, “[w]e recognize that a short line of
authority has stated that ‘a party seeking to establish a
prescriptive easement has the burden of proof by clear and
convincing evidence.’ (Grant[, supra,] 164 Cal.App.4th 1304,
1310 [79 Cal.Rptr.3d 902] . . . .) Grant cited Brewer v. Murphy
(2008) 161 Cal.App.4th 928, 938 [74 Cal.Rptr.3d 436], in support
of this proposition, which in turn cited Applegate v. Ota (1983)
146 Cal.App.3d 702, 708 [194 Cal.Rptr. 331] . . . , which in turn
referred generally to Stromerson v. Averill (1943) 22 Cal.2d 808
[141 P.2d 732] (Stromerson).” (Vieira, supra, 8 Cal.App.5th at
p. 1074.)
In analyzing Grant’s line of authority stemming from the
Stromerson case, Vieira noted a two-fold problem – first, the

3 Husain recognized the split in footnote 4 but did not
analyze why clear and convincing is the proper standard.

12
claim in Stromerson did not involve litigation over a prescriptive
easement, but instead, dealt with a judgment quieting title on a
claim of constructive fraud. (Vieira, supra, 8 Cal.App.5th at p.
1074.) Second, the Vieira court observed that the California
Supreme Court, in the case, Liodas v. Sahadi (1977) 19 Cal.3d
278 (Liodas), determined that the proper standard of proof in a
civil fraud case is preponderance of the evidence instead of the
clear and convincing standard. (Id. at p. 282.)
We also have reviewed Grant’s line of authority and reach
the same conclusion. The original source for this line of authority
is Stromerson, a case published in 1943 which applied the clear
and convincing standard to a civil fraud cause of action. As
pointed out in Vieira, Liodas changed the standard in civil fraud
to a preponderance of the evidence. (Liodas, supra, 19 Cal.3d at
p. 291 [“we observe that in proposing an appropriate jury
instruction on the standard of proof of fraud, the editors of
California Jury Instructions, Civil, recommend . . . the jury be
instructed to determine all issues of fraud by the ordinary civil
standard of preponderance of the evidence. [Citation.] We
approve the recommendation.”].) The standard used in
Stromerson that served as the original source for Grant’s line of
authority shifted decades ago in Liodas.
“Evidence Code section 115 states in pertinent part:
‘Except as otherwise provided by law, the burden of proof
requires proof by a preponderance of the evidence.’ The ‘law’
referred to in Evidence Code section 115 is not limited to
statutory law; it includes constitutional and decisional law.
[Citation.] Therefore, ‘[t]he default standard of proof in civil
cases is the preponderance of the evidence,’ unless otherwise
indicated by constitutional, statutory, or decisional laws.

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[Citation.]” (Baxter Healthcare Corp. v. Denton (2004) 120
Cal.App.4th 333, 364-365.) As in Vieira, we hold the proper
standard in a prescriptive easement case is the default one for
civil cases as set forth in Evidence Code section 115 -
preponderance of the evidence.
Assuming the trial court erred, we find no prejudice. For
errors of state law, “No judgment shall be set aside, or new trial
granted, in any cause, on the ground of misdirection of the jury,
or of the improper admission or rejection of evidence, or for any
error as to any matter of pleading, or for any error as to any
matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of
justice.” (Cal. Const., art. VI, § 13.) “The effect of this provision
is to eliminate any presumption of injury from error, and to
require that the appellate court examine the evidence to
determine whether the error did in fact prejudice the defendant.
Thus, reversible error is a relative concept, and whether a slight
or gross error is ground for reversal depends on the
circumstances in each case.” (6 Witkin & Epstein, Cal. Criminal
Law (4th ed. 2021) Reversible Error, § 1.)
“In contrast to errors having a basis in the federal
Constitution, the so-called Watson standard applies generally to
all manner of trial errors occurring under California law,
precluding reversal unless the error resulted in a miscarriage of
justice. [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 801, fn. omitted.) “Although the Watson standard is most
frequently applied in criminal cases, it applies in civil cases as
well.” (Ibid.) “Accordingly, errors in civil trials require that we
examine ‘each individual case to determine whether prejudice

14
actually occurred in light of the entire record.’ [Citations.]” (Id.
at pp. 801-802.) “[A] ‘miscarriage of justice’ should be declared
only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v.
Watson (1956) 46 Cal.2d 818, 836.)
Conservatorship of Maria B. (2013) 218 Cal.App.4th 514
(Maria B.) involved a petition by the conservator on behalf of a
developmentally disabled adult conservatee to obtain a medical
procedure (hysterectomy and oophorectomy) to alleviate
menstrual migraines. (Id. at pp. 520-522.) Since the medical
procedure impacted the conservatee’s fundamental right to
procreate, the heightened clear and convincing standard applied.
However, the trial court used the preponderance standard which
was error. (Id. at pp. 525-526.) In finding no prejudice, the court
noted, “Here, [the conservatee’s] counsel failed to explain how the
result would have been any different if the trial court had applied
the clear and convincing evidence standard of proof instead of the
preponderance of the evidence standard.” (Id. at p. 533.)
As in Maria B., Appellants provide little analysis on how
the outcome would have been different had the trial court used
the clear and convincing standard. Appellant argues, “The trial
Court in using the preponderance of the evidence standard in
making its ruling, looked over the essential elements of a
prescriptive easement. The trial Court made conclusory
determinations of equity and law when there was substantial
evidence to the contrary of hostile and adverse use of Appellants
[sic] Property.”

15
 Our review of the record shows Respondents presented five
witnesses4 who testified in like manner, that: (1) they have used
the alley for many years (more than five), (2) they never sought
permission from the Appellants to use the alley, (3) they believed
they had a right to use the alley, (4) in 2016, Appellants extended
their back wall seven feet into the alley making automobile
ingress/egress very difficult as cars can only enter through
Tampa Avenue, and (5) they did not see a sign posted at
Appellants’ property.5 To counter this evidence, Appellants both
testified a sign was posted on their property to establish
“permissive” use to negate the element of hostile use.
Resolving this trial, as in many cases, boiled down to a
credibility contest. Determining whether a witness is credible is
not dependent on the standard of proof. Be it preponderance of
the evidence, clear and convincing, or beyond a reasonable doubt,
the trier of fact’s duty is the same – resolve whether the witness’s
testimony is worthy of belief. The only evidence helpful to the
Appellants was flatly rejected when the trial court as the trier of
fact expressly found their testimony not credible. There was no
prejudice.

4 Witnesses called by the Respondents were Drew
Lobenstein, Robert Alan Scott, Christopher Becker, Wyllyam
Davey, and Russell O’Hearn.
5 As noted in section I(B) of this opinion, Scott and Davey
also talked about an oral agreement by the original owners that
each owner ceded seven feet of their own properties to create the
alleyway.

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 DISPOSITION
The judgment of the trial court is affirmed. The stay on the
Writ of Supersedeas is lifted. Respondents to recover their costs
on appeal.

OHTA, J.*

We concur:

GRIMES, Acting P. J.

WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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