Tesoro Refining & Marketing Co. v. Rickley CA2/2

Filed 3/25/24 Tesoro Refining & Marketing Co. v. Rickley CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

TESORO REFINING & B317441, B320358
MARKETING COMPANY, LLC
et al., (Los Angeles County
Super. Ct. No.
Plaintiffs, Cross-defendants BC656002)
and Respondents,

v.

REBECCA RICKLEY et al.,

Defendants, Cross-
complainants and Appellants;

FIEDLER GROUP, INC.,

Cross-defendant and
Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles
County, Ruth Ann Kwan, Judge. Affirmed.
Law Offices of Natasha Roit and Natasha Roit for Defendants,
Cross-complainants and Appellants.
Buchalter, Matthew S. Covington, Efrat M. Cogan and George J.
Stephan for Plaintiffs, Cross-defendants and Respondents Tesoro
Refining & Marketing, LLC and Thrifty Oil Co.
 Collins + Collins, Brian K. Steward and David C. Moore for
Cross-defendant and Respondent Fiedler Group.

______________________________________________

Appellants, defendants and cross-complainants Natasha Roit and
Rebecca Rickley (collectively, Defendants), appeal from the judgment
entered in favor respondents, plaintiffs and cross-defendants Tesoro
Refining & Marketing Company, LLC (Tesoro) and Thrifty Oil Co.
(Thrifty) (collectively, Plaintiffs), and respondent and cross-defendant
Fiedler Group, Inc. (Fiedler)1 in this action involving a sewer easement
and a sewage spill on Defendants’ property. In a bifurcated trial, the
trial court granted Plaintiffs’ motion for summary adjudication of their
claim for a recorded easement, and following a court trial, granted
Plaintiffs an equitable easement. A jury then found Defendants were
negligent and awarded Tesoro $423,375 in damages.
Defendants contend the trial court erred by summarily
adjudicating the recorded easement claim and by granting Plaintiffs an
equitable easement. Defendants further contend the jury verdict
should be reversed because the trial court made erroneous evidentiary
rulings, misinstructed the jury, and improperly rejected Defendants’
claims of attorney misconduct.
Finding no legal error or abuse of discretion, we affirm the
judgment.
BACKGROUND
The properties
Thrifty owns a gas station at the corner of Pacific Coast Highway
(PCH) and Topanga Canyon Boulevard (the gas station property).
Tesoro leased the gas station property from Thrifty during the time
period relevant to this action.

1 Tesoro, Thrifty, and Fiedler are referred to collectively as
Respondents.
2
 Defendants own 3929 Malibu Vista Drive (the Malibu Vista
property), a residential property located uphill from the gas station
property.
The easement
In 1967, Defendants’ predecessors, the Mortons, granted Gulf Oil
Company (Thrifty’s predecessor) and its successors an easement across
the Malibu Vista property to “construct, maintain, operate and use
sanitary sewers and appurtenant structures” together with the “right
to enter upon and to pass and repass over and along” the easement
“whenever and wherever necessary for the purposes above set forth.”
The easement grant further states that “Grantee agrees . . . to
quitclaim said easement within one year from such time that it is
possible for Grantee to connect to any sewer line extending along
Pacific Coast Highway or Topanga Canyon Boulevard which serves its
service station located at the intersection thereof.” The easement was
recorded in May 1967.
At the time of the easement grant, a Los Angeles County sewer
station was located on PCH at Coastline Drive (the Coastline station)
approximately three quarters of a mile away from the gas station
property. In 1967, the County and Gulf signed a recorded waiver and
agreement in which the County permitted Gulf to connect its sewer line
from the gas station property to a County sewer line on Malibu Vista
Drive (the Malibu Vista sewer), and Gulf agreed not to protest the
inclusion of its property “in a Special Assessment District for the
construction of any Sanitary Sewer that will serve said property and
district, and to pay the proportionate cost of such assessment.” In the
late 1960’s, Gulf installed a sewer line for the gas station property,
connected it to the public Malibu Vista sewer, and used its sewer line to
service the gas station property.
Thrifty purchased the gas station property in the 1980’s. Thrifty
leased the gas station property to tenants starting in 1997. Thrifty
and/or its tenants paid charges to the County for the sewer connection
to the Malibu Vista sewer adjacent to the Malibu Vista property and

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used the sewer line servicing the gas station property continuously
from 1982 to 1999.
Defendants purchased the Malibu Vista property in 1997. Before
purchasing the property, Rickley reviewed a preliminary title report
that described an “easement for sanitary sewers.” When she reviewed
the preliminary title report, Rickley understood there was an easement
for sanitary sewers across the Malibu Vista property.
Defendants remove part of the sewer line and a sewage spill
occurs
In 1999, the gas station was closed temporarily while Tesoro
undertook renovations on the station and work to stabilize the adjacent
hillside. Tesoro engaged Fiedler for the hillside work and to obtain
permits for the gas station renovations. Permitting and construction
work for the renovations continued until 2016 and cost approximately
$11 million.
While the gas station renovations were ongoing, Defendants sued
their neighbor, Marvin Goodfriend, claiming he had dumped
construction debris along the boundary between their properties (the
Goodfriend action). Respondents were not parties to that litigation.
The court in the Goodfriend action appointed a receiver to oversee
removal of debris on Goodfriend’s property. Defendants supervised the
removal of debris on their own property in 2012. During the
Goodfriend debris removal on Defendants’ property, an approximately
20-foot section of the sewer pipe in the easement was removed and not
replaced. Neither earth movement nor rotting of the pipe was the
cause for removing this portion of the sewer pipe.
In 2011 to 2012, the County sewer line located at PCH and
Coastline Drive was changed from a station pump system to a gravity
sewer.2 The gravity sewer line remains in substantially the same
location at the corner of PCH and Coastline Drive as it was in the early
1960’s.

2 A gravity sewer main is a type of sewer in which gravity causes
the sewage to drain, with no need for a pump.
4
 In 2016, shortly after the gas station reopened for business,
Defendants reported a sewage spill. Ron Rogers of Tesoro went to
investigate the spill and was met by Defendants, who informed him
that a portion of the sewer pipe had been removed during the
Goodfriend remediation. Rogers confirmed that a portion of the sewer
pipe was missing. Defendants would not allow Tesoro to repair the
sewer line without a court order. Unable to repair the leak, Tesoro
turned off the sewer pump servicing the line and hired a contractor,
Top Notch Plumbing (Top Notch), to truck sewage out of the gas station
property at a cost of more than $120,000 per year.
In June 2018, the County issued a notice of violation to Thrifty
for trucking sewage out of the gas station property. The notice required
Thrifty to reconnect the sewer line from the gas station property to the
Malibu Vista sewer. Defendants continued to deny Plaintiffs access to
the Malibu Vista Property to repair the sewer line and to allow
reconnection to the Malibu Vista sewer.
PROCEDURAL HISTORY
Plaintiffs filed this action against Defendants for quiet title and
negligence. Defendants answered and cross-complained against
Plaintiffs, Fiedler, and others3 for trespass, nuisance, and negligence
arising out of the sewage spill. Against Thrifty and Tesoro only,
Defendants also claimed the recorded easement violated covenants,
conditions, and restrictions affecting their property. They sought to
cancel the easement and claimed damages for slander of title.
Preliminary injunction
While the lawsuit was pending, Defendants cut additional
portions of the sewer pipe and cemented over part of the sewer line.
Respondents obtained a preliminary injunction preventing Defendants
from cutting, damaging, or cementing over more of the sewer line, and
this court affirmed issuance of the preliminary injunction. (Tesoro

3 Defendants cross-complained against Gulf, ARCO (Thrifty’s
first tenant), and RD Builders, none of whom are parties to these
appeals.
5
Refining & Marketing, LLC v. Rickley (Sept. 6, 2019, B290903 [nonpub.
opn.].)
Summary judgment motions
The parties filed cross motions for summary adjudication or
summary judgment. The trial court denied Defendants’ motion, ruling
they had not met their burden of production. The court also denied
Defendants’ motion for reconsideration.
The trial court granted Plaintiffs’ motion for summary
adjudication of the recorded easement claim and bifurcated the
remaining claims for prescriptive easement, equitable easement,
negligence and other tort claims, and damages. Defendants filed a
motion for reconsideration, which the trial court denied.
Trial on remaining claims
A jury trial was held to decide the prescriptive easement claim,
followed by a court trial on the equitable easement claim, and another
separate jury trial on negligence and damages resulting from the
sewage spill. The jury in the prescriptive easement trial returned a
verdict in Defendants’ favor. Plaintiffs did not appeal from that
verdict.
During the trial on Plaintiffs’ equitable easement claim, the trial
court sustained evidentiary objections to the declaration of Defendants’
expert, Quang Tran, and excluded that declaration in its entirety.
After the trial concluded, the court issued a statement of decision in
Plaintiffs’ favor.
During the jury trial on the tort and damages claims, the trial
court approved, by agreement of the parties, a jury instruction
containing stipulated facts previously determined in the equitable
easement trial. The jury returned a verdict in Tesoro’s favor on its
negligence claim4 and awarded $423,375 in damages against
Defendants. The jury entered a verdict in Respondents’ favor on
Defendants’ negligence and other claims against them. The trial court

4 During the trial, Thrifty dismissed without prejudice its
negligence claim against Defendants.
6
denied Defendants’ subsequent motions for a new trial and for
judgment notwithstanding the verdict.
On December 9, 2021, the trial court granted Plaintiffs’ motion
for a permanent injunction prohibiting Defendants from, among other
things, interfering with Plaintiffs’ right to access, enter, pass and
repass over and along the easement and adjacent areas of Defendants’
property to inspect, locate, repair, or replace the sewer line in the
easement. A final judgment was entered in Respondents’ favor on
April 5, 2022. This appeal followed.
CONTENTIONS ON APPEAL
Defendants raise the following contentions on appeal:
I. Summary adjudication of the recorded easement claim must be
reversed because the trial court misapplied the Marketable Record
Title Act (Civ. Code, § 880.020 et seq.) (MRTA). The easement was
extinguished because Plaintiffs failed to record a notice of intent to
preserve the easement under the MRTA. The easement was also
extinguished pursuant to the quitclaim provision of the easement grant
because it was possible for Plaintiffs to connect to a sewer line on PCH.
The trial court erroneously excluded the declaration of Defendants’
expert, Tran. The trial court abused its discretion in denying
Defendants’ motion for reconsideration.
II. The trial court misapplied the law in granting Plaintiffs an
equitable easement.
III. Defendants could not be sued in negligence absent an order
from the court in the Goodfriend action.
IV. Cumulative errors, including evidentiary and instructional
errors and attorney misconduct, require reversal of the jury verdict
against Defendants.
DISCUSSION
I. Recorded easement
A. Standard of review
We apply a de novo standard of review to the trial court’s
summary adjudication of the recorded easement claim. In doing so, we
view the evidence in the light most favorable to Defendants as the

7
nonmoving parties and resolve all doubts about the propriety of
granting the motion in their favor. (Lonicki v. Sutter Health Central
(2008) 43 Cal.4th 201, 206.) We consider all the evidence before the
trial court except that to which objections were made and properly
sustained. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451–
1452.) Although we independently review the trial court’s ruling on
Plaintiffs’ motion, Defendants bear the burden of demonstrating that
the ruling was erroneous. (Nealy v. City of Santa Monica (2015) 234
Cal.App.4th 359, 372.)
In exercising our independent review, we apply the standards
applicable to summary judgment motions. A party moving for
summary judgment has an initial burden of production to make a
prima facie showing that there are no triable issues of material fact.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850–851.) Once the moving party does so, the
burden of production shifts to the opposing party to show the existence
of material disputed facts. (Aguilar, at pp. 850–851.) The opposing
party must make that showing with admissible evidence. (Code Civ.
Proc., § 437c, subd. (d); Jambazian v. Borden (1994) 25 Cal.App.4th
836, 846.)
B. No error in granting summary adjudication
1. The MRTA
The trial court did not err by concluding the easement was not
extinguished because Plaintiffs did not record a notice of intent to
preserve the easement under the MRTA. The MRTA applies only to
abandoned easements, not all easements, and Defendants offered no
evidence that the easement at issue was abandoned. (Civ. Code,
§§ 887.040–887.070.)
The MRTA was enacted in 1982 “to simplify and facilitate real
property title transactions in furtherance of public policy by enabling
persons to rely on record title to the extent provided in this title, with
respect to the property interests specified in this title, subject only to
the limitations expressly provided in this title and notwithstanding any
provision or implication to the contrary in any other statute or in the

8
common law.” (Civ. Code, § 880.020, subd. (b).) Under the MRTA,
holders of certain specified real property interests must record a notice
of intent to preserve the interest within specified statutory time periods
in order to prevent expiration of the interest. The real property
interests subject to expiration unless notice of intent to preserve the
interest is recorded under the MRTA are statutorily delineated:
mortgages and deeds of trust (Civ. Code, §§ 882.020–882.040), mineral
rights (Civ. Code, §§ 883.110–883.270), unexercised options (Civ. Code,
§§ 884.010–884.030), powers of termination [the power to terminate a
fee simple estate in real property to enforce a restriction on the use of
the real property] (Civ. Code, §§ 885.010–885.070), unperformed
contracts for the sale of real property (Civ. Code, §§ 886.010–886.050),
and abandoned easements (Civ. Code, §§ 887.010–887.090).
Under the MRTA, record title may be cleared of an abandoned
easement by bringing an action to establish abandonment under Civil
Code section 887.040 and obtaining a judgment and court order in that
action under Civil Code section 887.080. All of the following conditions
must be satisfied for a period of 20 years immediately preceding
commencement of the action to establish abandonment: “(1) The
easement is not used at any time; [¶] (2) No separate property tax
assessment is made of the easement or, if made, no taxes are paid on
the assessment; [¶] (3) No instrument creating, reserving, transferring,
or otherwise evidencing the easement is recorded.” (Civ. Code,
§ 887.050.)5
An easement is not abandoned under the MRTA if the easement
owner either (1) records a notice of intent to preserve the easement
within 20 years preceding commencement of an action to establish

5 The MRTA expressly excludes conservation easements from
expiration under the statute (Civ. Code, § 880.240, subd. (d)),
recognizing that such easements are perpetual in duration and
therefore incapable of abandonment. (See Recommendation Relating to
Marketable Title of Real Property (Nov. 1981) 16 Cal. Law Revision
Com. Rep. 401 (1982); Civ. Code, § 815.2, subd. (b) [“A conservation
easement shall be perpetual in duration”].)
9
abandonment; or (2) records a “late” notice of intent to preserve the
easement after commencement of an action to establish abandonment
and before judgment in the action is entered, upon payment into court
of the property owner’s litigation expenses attributable to the
abandonment action. (Civ. Code, §§ 887.060, 887.070.)
Defendants did not assert an affirmative defense or a cross-claim
for statutory abandonment of the easement under the MRTA, nor did
they offer any evidence that the conditions for abandonment were
satisfied. We find no error in the trial court’s ruling that the MRTA did
not apply.6
2. No extinguishment of easement by quitclaim
provision
As discussed, the easement grant contains the following
quitclaim provision: “Grantee agrees . . . to quitclaim said easement
within one year from such time as it is possible for Grantee to connect
to any sewer line extending along Pacific Coast Highway or Topanga
Canyon Boulevard which serves its service station located at the
intersection thereof.” Defendants failed to offer any admissible
evidence showing that any quitclaim obligation arose to extinguish the
easement.
The undisputed evidence shows that no sewer line exists along
PCH or Topanga Canyon Boulevard that serves the gas station
property. Plaintiffs presented evidence that their predecessors and the
County signed a 1967 recorded waiver and agreement in which the
County agreed the gas station property could connect to the Malibu
Vista sewer until a new sewer district was created. There was no

6 We deny Defendants’ request for judicial notice of a
memorandum that is purportedly part of the legislative record of the
MRTA. The trial court sustained objections to this evidence in its order
granting Tesoro’s motion for summary judgment, and Defendants did
not challenge that evidentiary ruling in their opening appellate brief.
(Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4
[failure to raise argument in the opening brief waives the issue on
appeal].)
10
evidence that such a new sewer district was created or that a sewer line
serving the gas station property existed.
Defendants’ argument that it was “possible” for Plaintiffs to
connect to “any sewer line” extending along PCH or Topanga Canyon
Boulevard ignores other qualifying language in the quitclaim
provision—that the sewer line must also be one “which serves [the]
service station located at the intersection thereof.” The undisputed
evidence showed that no such sewer line exists.
Defendants cite the declaration of their expert, Quang Tran, as
evidence that it was possible for Plaintiffs to connect to the gravity line
sewer connection on PCH and Coastline Drive, located three quarters of
a mile away from the gas station property. The trial court sustained
Plaintiffs’ objections to Tran’s declaration in its entirety, however, as
speculative, conclusory, factually unsupported, irrelevant, hearsay, an
impermissible legal interpretation of a writing, and in violation of the
best evidence rule.
Defendants fail to demonstrate any abuse of discretion by the
trial court in excluding Tran’s declaration. (DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) The only
argument Defendants raise on appeal is that under the rule requiring
liberal construction of evidence offered to oppose a summary judgment
motion, they were not obligated to present as detailed or extensive
explanation of Tran’s qualifications or the bases for his opinions as that
required for expert testimony presented in support of summary
judgment. Defendants fail to address each of the grounds for the trial
court’s ruling and to demonstrate how each was incorrect. They
therefore fail to sustain their burden of demonstrating an abuse of
discretion. (See Salas v. Department of Transportation (2011) 198
Cal.App.4th 1058, 1075.)
C. Motion for reconsideration
Defendants fail to show any abuse of discretion by the trial court
in denying their motion for reconsideration of the summary
adjudication ruling. (New York Times Co. v. Superior Court (2005) 135

11
Cal.App.4th 206, 212 [ruling on motion for reconsideration reviewed for
abuse of discretion].)
A motion for reconsideration may only be brought if the moving
party can offer “new or different facts, circumstances, or law” which it
could not, with reasonable diligence, have discovered and produced at
the time of the prior motion. (Code Civ. Proc., § 1008, subd. (a); see
Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1467.) A motion for
reconsideration will be denied absent a strong showing of diligence.
(Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Where evidence
addressed in the motion for reconsideration was available to a party
before the initial motion was heard, such evidence is not considered
“new” evidence for purposes of a motion for reconsideration. (See Lucas
v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028.)
In other words, the party seeking reconsideration must provide not only
new evidence, but also a satisfactory explanation for failing to present
that evidence earlier. (Mink v. Superior Court (1992) 2 Cal.App.4th
1338, 1342.) The statute is jurisdictional. (Code Civ. Proc., § 1008,
subd. (e).) If the moving party does not present new or different facts,
circumstances, or law, then the court lacks jurisdiction to entertain
reconsideration. If the statutory requirements are not met, then the
motion will be denied.
Defendants’ motion for reconsideration presented the testimony
of Bonneau Dickson, whose deposition they took after the trial court
granted Plaintiffs’ motion for summary adjudication. Defendants
presented no satisfactory explanation for their failure to obtain and
present this evidence earlier, in opposition to Plaintiffs’ motion, or why
they did not seek a continuance of the summary adjudication hearing
so they could do so.
Dickson’s testimony presented no new or different facts. That the
Coastline station had been changed from a pump to a gravity system
had already been established. Dickson’s testimony that the change to a
gravity system was a “significant improvement” does not establish that
it was possible for the gas station property to connect to that system.
When asked whether it would be possible to extend the gas station

12
property’s sewer line down PCH, Dickson replied, “I would be
speculating about that.”
The trial court did not err by denying the motion for
reconsideration.
II. Equitable easement
A court may exercise its equity powers “to affirmatively fashion
an interest in the owner’s land which will protect the encroacher’s use”
by granting an equitable easement. (Hirshfield v. Schwartz (2001) 91
Cal.App.4th 749, 764 (Hirshfield).) When deciding whether to grant an
equitable easement, a court considers the following factors: (1) whether
the encroachment was innocent, and not the result of a willful or
negligent act; (2) whether the encroachment irreparably injures the
owner of the encroached upon property; and (3) whether the hardship
to the encroacher of enjoining the encroachment would be greatly
disproportionate to the hardship caused to the encroached upon party
by the continuing encroachment. (Id. at pp. 758–759.)
We review the trial court’s exercise of its equity powers in
granting an equitable easement under the abuse of discretion standard.
(Hirshfield, supra, 91 Cal.App.4th at p. 755.) “Under that standard, we
resolve all evidentiary conflicts in favor of the judgment and determine
whether the court’s decision ‘ “falls within the permissible range of
options set by the legal criteria.” ’ ” (Id. at p. 771.)
The record discloses no abuse of discretion. The trial court’s
statement of decision contains detailed factual findings on every
element of an equitable easement. Defendants do not challenge the
sufficiency of the evidence supporting those factual findings, and they
show no misapplication of the law to the facts.
We reject Defendants’ assertion that the trial court’s ruling on
the equitable easement claim was an advisory opinion only. The trial
court did not state that its ruling was advisory, and the statement of
decision and judgment contradict such an assertion. We also reject
Defendants’ request, unsupported by any legal authority, to dismiss the
trial court’s equitable easement grant as an “alternative finding.”

13
 A. Innocence
Defendants fail to show that the trial court misapplied the law to
the facts by concluding Plaintiffs acted innocently in their reliance on
and use of the sewer easement. The trial court found the evidence
sufficient to establish the first element of an equitable easement—that
Plaintiffs’ encroachment was innocent, not willful or negligent.
Plaintiffs and their predecessors purchased and leased the gas station
property with the reasonable belief that a valid recorded sewer
easement existed. Defendants purchased the Malibu Vista property
with actual and constructive notice of the recorded easement and never
complained about the presence or actual use of the easement between
1997 and 2016.
The trial court properly considered Defendants’ conduct in
determining Plaintiffs’ innocence and whether Defendants bore some
responsibility for the parties’ dispute. (Linthicum v. Butterfield (2009)
175 Cal.App.4th 259, 265 [court should consider encroached upon
property owner’s conduct when deciding whether to grant an equitable
easement].) Defendants themselves supervised work that resulted in
the removal of a 20-foot section of the sewer pipe in the easement.
When a sewage spill occurred where the pipe had been removed,
Defendants refused to allow Plaintiffs to enter the Malibu Vista
property to make repairs. Defendants thereafter attempted to build a
concrete staircase over the easement, necessitating issuance of an
injunction against them. The trial court did not err by determining
that Plaintiffs acted innocently in relying on and using the easement.
B. Irreparable injury and balancing of harms
The trial court applied the correct legal standard when
considering the second and third factors relevant to an equitable
easement determination—injury to the owner of the encroached upon
property, and balancing the burdens borne by the encroaching and
encroached upon parties. (See, e.g., Shoen v. Zacarias (2015) 237
Cal.App.4th 16, 21–22 (Shoen).) The trial court found that an equitable
easement would cause Defendants no irreparable harm and included in
its statement of decision the evidence supporting that finding.

14
Defendants do not challenge the sufficiency of the evidence supporting
any of the trial court’s factual findings.
The sewer pipe is located on the Malibu Vista property in a five-
foot setback that generally cannot be improved with structures. Its
presence does not affect the highest and best use of the property.
Defendants presented no evidence showing any diminution in the value
of their property by any more than a de minimis amount. No prior
owner of the Malibu Vista property experienced any sewer leaks or
expressed concerns about the presence of the sewer pipe. There was no
evidence that the sewer pipe was substantially likely to break or leak in
the future.
Against the relatively de minimis impact of the easement on
Defendants’ use and enjoyment of their property, the trial court
weighed the burdens Plaintiffs would bear if no equitable easement
were granted. Plaintiffs invested more than 10 years and $11 million
in renovating the gas station property, reasonably believing that a
valid sewer easement existed. After Defendants removed a portion of
the sewer pipe, resulting in a sewage spill, Defendants refused to allow
Plaintiffs to enter the Malibu Vista property to make the necessary
repairs. Tesoro was then forced to truck sewage out of the gas station
property at a cost of $10,000 per month and in violation of a County
directive to reconnect to the Malibu Vista sewer.
The trial court found there was no feasible alternative to an
equitable easement and set forth in detail the evidence supporting that
finding. A septic tank is not feasible because groundwater levels at the
gas station property are too high; the County would likely not approve
an above ground septic system; and even if such a system were
approved, its installation would cost millions of dollars and would
substantially lower the value and use of the gas station property. A
gravity sewer line from the gas station property to the Coastline station
is not feasible because of insufficient continuous slope along the
roadway and high groundwater levels at the site. Installation of any
sewer line along PCH would involve a lengthy approval process,
requiring environmental review, partial closure of PCH, and approvals

15
and permits from multiple government agencies. The record does not
support Defendants’ claim that the trial court “misapplied [the] rules of
equity” in finding no reasonable alternative to the equitable easement.
We reject Defendants’ contention that Plaintiffs bore the burden
of showing the absence of feasible alternatives, and that the trial court
improperly “reassign[ed] property rights” based solely on the cost of
those alternatives. There was substantial evidence that Plaintiffs
would suffer a greatly disproportionate hardship relative to any
hardship Defendants would bear from its grant. (See Shoen, supra, 237
Cal.App.4th at p. 20.) The statement of decision reflects the trial
court’s balancing of the equities after comparing the relative burdens
on the parties based on the evidence submitted. Defendants fail to
establish any abuse of discretion in the trial court’s equitable easement
grant.
III. Absence of court order in Goodfriend action
Before the trial on negligence and damages commenced,
Defendants filed a motion to dismiss Plaintiffs’ negligence claim, or
alternatively, a motion in limine to exclude evidence of their
negligence, arguing they could not be sued for negligence absent a court
order in the Goodfriend action. Defendants argued below, as they do
now, that they were appointed by the court in the Goodfriend action to
serve as part of the “Receiver’s Team” supervising remediation of debris
deposited by Goodfriend. They claim they could not be sued for
negligence in their supervisory capacities without leave from the
Goodfriend court. The trial court denied Defendants’ motions.
The trial court found that Defendants forfeited the Goodfriend
receivership defense by failing to assert it “at the earliest opportunity.”
“ ‘[A] plea in abatement such as lack of capacity to sue “must be raised
by defendant at the earliest opportunity or it is waived. . . . The proper
time to raise a plea in abatement is in the original answer or by
demurrer at the time of the answer.” ’ ” (The Rossdale Group, LLC v.
Walton (2017) 12 Cal.App.5th 936, 943.) Defendants did not assert a
receivership defense in their answer, demurrer, or any other pretrial
document and so waived the defense. (Ibid.)

16
 The trial court further found that even absent such waiver, the
receivership defense had no merit. Defendants fail to establish any
abuse of discretion. The record shows that a receiver was appointed to
oversee remediation only on Goodfriend’s property, not Defendants’
property. Moreover, Defendants stipulated that the Goodfriend
remediation work was limited to removing debris and contaminated
soil. The scope of that work did not include removing a portion of the
existing sewer line. No court order was required in the Goodfriend
action for Plaintiffs to litigate their negligence claim against
Defendants.
IV. Alleged cumulative errors
Defendants fail to establish that any purported errors by the trial
court, singly or cumulatively, require reversal of the jury verdict in the
negligence trial.
A. Alleged prejudicial effect of recorded and equitable
easement rulings
Defendants contend that if the trial court’s rulings on the
recorded and equitable easements are reversed, the permanent
injunction and the negligence verdict must also be reversed. Because
we find no error in the trial court’s adjudication of the easement claims,
we need not address Defendants’ argument for reversing the injunction
or the jury verdict on that basis.
We reject Defendants’ contention that the trial court erred by
bifurcating the equitable easement and negligence claims and by
instructing the jury trying the negligence claims that certain factual
findings made in the equitable easement trial were undisputed and
should be accepted as true. The record discloses no abuse of discretion.
(Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12
Cal.App.5th 252, 353 [trial court’s sequencing of bifurcated trial
reviewed for abuse of discretion].) A trial court overseeing a combined
action for equitable and legal claims may hold a bench trial on the
equitable issues first. (Connell v. Bowes (1942) 19 Cal.2d 870, 872;
Alcoa Global, at p. 352.) “ ‘[I]f any legal issues remain [after the bench
trial], a jury may be called.’ [Citations.] Thus, while a plaintiff

17
retain[s] his jury trial right, the extent of the issues actually tried by
jury could be impacted by the trial court’s findings in equity. ‘Where a
“mixed bag” of legal and equitable claims is presented in a case, a court
trial of the equitable claims first may obviate the necessity of a jury
trial on the legal claims.’ ” (Alcoa Global, at p. 354.)
Darbun Enterprises, Inc. v. San Fernando Community Hospital
(2015) 239 Cal.App.4th 399 (Darbun), cited by Defendants,
acknowledges this “equity first” principle: “ ‘It is well established that,
in a case involving both legal and equitable issues, the trial court may
proceed to try the equitable issues first, without a jury [or with an
advisory jury], and that if the court’s determination of those issues is
also dispositive of the legal issues, nothing further remains to be tried
by a jury.’ ” (Id. at p. 411.)
Darbun is otherwise distinguishable. That case involved a single
cause of action for breach of contract. The trial court in Darbun
bifurcated the equitable issue of whether specific performance was
available as a remedy and excluded evidence of breach, reserving that
issue for the jury to decide. (Darbun, supra, 239 Cal.App.4th at p. 409.)
The trial court then nevertheless proceeded to adjudicate the legal
issue of breach. The appellate court in Darbun reversed, noting that
the trial court had expressly limited the scope of the bench trial to
exclude the issue of breach. The “equity first” rule accordingly did not
apply, and the trial court’s conclusion did not foreclose a jury
determination on breach. (Id. at p. 411.)
The circumstances in Darbun are not present here. The trial
court in this case properly determined the factual issues pertinent to
the equitable easement claim and did not reserve any of those issues
for the jury to decide in the negligence trial.
B. Alleged instructional errors
Defendants contend the trial court erred by refusing to instruct
the jury in the negligence trial that Fiedler was acting as a “responsible
charge” with respect to sewer line connection issues, and that Plaintiffs
were liable under agency theory for the alleged negligence of their
contractor, RD Builders. Defendants further contend the trial court

18
erred by instructing the jury that factual findings made during the
equitable easement trial were undisputed.
1. Proposed instruction as to Fiedler
The trial court did not err by denying Defendants’ request for a
special instruction that Fiedler acted as a “responsible charge” with
respect to sewer connection issues.7 A party is entitled only to correct,
nonargumentative instructions on theories supported by substantial
evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572
(Soule).) A court may properly refuse a proposed jury instruction that
incorrectly states the applicable law (Swanson v. The Marley-Wylain
Co. (2021) 65 Cal.App.5th 1007, 1020), that is confusing or misleading,

7 The requested instruction incorporated the language of title 16,
section 404.1 of the California Code of Regulations: “The term
‘responsible charge’ directly relates to the extent of control a
professional engineer is required to maintain while exercising
independent control and direction of professional engineering services
or creative work and to the engineering decisions which can be made
only by a professional engineer: [¶] Engineering decisions which must
be made by and are the responsibility of the engineer in responsible
charge are those decisions concerning permanent or temporary projects
which could create a hazard to life, health, property, or public welfare,
and may include, but are not limited to: [¶] — the selection of
engineering alternatives to be investigated and the comparison of
alternatives for the project. [¶] — the decisions related to the
preparation of engineering plans, specifications, calculations, reports,
and other documents for the engineered works. [¶] — the selection or
development of techniques or methods of testing to be used in
evaluating materials or completed projects, either new or existing. [¶]
— the review and evaluation of construction methods or controls to be
used and the evaluation of test results, materials, and workmanship
insofar as they affect the character and integrity of the completed
project. [¶] — the development and control of operating and
maintenance procedures. [¶] In making and approving engineering
decisions, the engineer shall be physically present or shall review and
approve through the use of communication devices the engineering
decisions prior to their implementation.”
19
or that covers a legal point adequately covered by other instructions
given. (Zannini v. Liker (2022) 74 Cal.App.5th 610, 623.)
Defendants’ proposed instruction was inapplicable and
potentially confusing to the jury. As the trial court noted, the proposed
instruction discussed “approving engineering decisions,” and there was
no evidence that engineering decisions were a cause of the 2016 sewage
spill. Although the proposed instruction quoted from an administrative
regulation, “verbatim quotations should not be used to instruct a jury if
the wording, as applied, is confusing or seemingly inapplicable.
‘ “Instructions in the language of a statute [or regulation] should only
be given ‘ “if the jury would have no difficulty in understanding the
statute [and how it should be applied] without guidance from the
court.” ’ ” ’ ” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441,
1458–1459.)
Defendants’ proposed instruction does not set forth the applicable
standard of care. The statutory provisions governing professional
negligence for licensed engineers are set forth in Business and
Professions Code section 6775, which authorizes the California
Department of Consumer Affairs Board for Professional Engineers,
Land Surveyors and Geologists to investigate and make findings as to
whether any licensed engineer had displayed “negligence or
incompetence in his or her practice.” (Bus. & Prof. Code, § 6775, subd.
(c).) “Negligence” as used in section 6775 is defined as “the failure of a
licensee . . . to use the care ordinarily exercised in like cases by duly
licensed professional engineers . . . in good standing.” (Cal. Code Regs.,
tit. 16, § 404, subd. (dd).)
The definition of negligence under Business and Professions Code
section 6775 does not differ materially from that set forth in CACI Nos.
600 and 602, which the trial court gave to the jury in this case. CACI
No. 600 defines negligence as the “fail[ure] to use the skill and care
that a reasonably careful civil engineer would have used in similar
circumstances.” CACI No. 602 states: “A civil engineer is not
necessarily negligent just because their efforts are unsuccessful or they
make an error that was reasonable under the circumstances. A civil

20
engineer is negligent only if they were not as skillful, knowledgeable, or
careful as other reasonable civil engineers would have been in similar
circumstances.” Those instructions adequately guided the jury on the
standard of care applicable to Fiedler.
Defendants fail, moreover, to demonstrate prejudice resulting
from the alleged instructional error. “[I]nstructional error requires
reversal only ‘ “where it seems probable” that the error “prejudicially
affected the verdict.” ’ ” (Rutherford v. Owens-Illinois, Inc. (1997) 16
Cal.4th 953, 983.) A reviewing court should consider the nature of the
error, “including its natural and probable effect on a party’s ability to
place his full case before the jury,” and the likelihood of actual
prejudice as reflected in the trial record, taking into account “(1) the
state of the evidence, (2) the effect of other instructions, (3) the effect of
counsel’s arguments, and (4) any indications by the jury itself that it
was misled.” (Soule, supra, 8 Cal.4th at pp. 580–581.)
That three of the twelve jurors voted in favor of finding Fiedler
negligent is insufficient to demonstrate a reasonable probability that
Defendants would have obtained a more favorable result had the
proposed instruction been given. Wank v. Richman & Garrett (1985)
165 Cal.App.3d 1103 and National Medical Transport Network v.
Deloitte & Touche (1998) 62 Cal.App.4th 412, which Defendants cite as
support for their position, are inapposite or distinguishable. The court
in Wank held that a party is entitled to a jury instruction that (1) is
supported by the evidence, (2) is in accord with applicable law, and
(3) supports a theory advanced by that party. (Wank, at p. 1108.)
Neither of the first two conditions were satisfied in this case. National
Medical involved an erroneously given jury instruction that failed to set
forth the relevant factors governing an auditor’s obligations to a client
before resigning from a representation. (National Medical, at pp. 429–
431.) Because of this deficiency, the jury did not receive sufficient
guidance as to whether the defendant auditor’s resignation was
permissible under professional standards. (Id. at p. 429.) Those
circumstances are not present here.

21
 2. Agency instructions as to RD Builders
Defendants waived any argument that the jury should have been
instructed pursuant to CACI No. 37008 concerning Plaintiffs’ liability
for alleged negligence by their contractor, RD Builders, in failing to test
the sewer line. To support such an instruction, the evidence would
have had to show that Plaintiffs hired RD Builders to perform
inherently dangerous work; Plaintiffs retained control over safety
conditions at the site; and Plaintiffs’ retention of control affirmatively
contributed to the complained of injury. (Soule, supra, 8 Cal.4th at
p. 572 [jury instructions must be based on theories supported by
substantial evidence]; see Hooker v. Department of Transportation
(2002) 27 Cal.4th 198, 201, 213 (Hooker) [elements necessary to show
liability of a hirer of an independent contractor]; Privette v. Superior
Court (1993) 5 Cal.4th 689, 693 (Privette) [one who hires an
independent contractor is generally not liable to third parties for
injuries caused by contractor’s negligence].)
The record shows that when Defendants requested agency
instructions concerning Plaintiffs’ liability for alleged negligence by RD
Builders, the trial court directed Defendants to proffer evidence that
Tesoro or Thrifty directed the work of RD Builders under the standards
set forth in Privette and Hooker. Defendants provided excerpts from
the trial testimony of RD Builders’s principal, Ken Redfern. The trial
court reviewed the proffered testimony and stated, “I don’t see
anywhere here that states—that RD Builders was directed by the
Plaintiff.” Plaintiffs then provided the court with Redfern’s testimony
that no one at Thrifty or Tesoro had directed RD Builders to test the
sewer line, and that RD Builders had only performed the work specified
in its contract. The trial court then stated its tentative ruling to deny

8 CACI No. 3700 states: “One may authorize another to act on
one’s behalf in transactions with third persons. This relationship is
called ‘agency.’ The company giving the authority is called the
‘principal’; the person to whom authority is given is called the ‘agent.’
A principal is responsible for harm caused by the wrongful conduct of
its agent while acting within the scope of their authority.”
22
Defendants’ requested agency instructions “unless you show me
something that convinces me otherwise.” Defendants provide no
citation to the record indicating that they made any further proffer in
response to the trial court’s directive.
3. Special instruction as to undisputed facts
For reasons previously discussed in part IV.A of this opinion, the
trial court did not err by instructing the jury that factual findings made
by the court during the equitable easement trial were undisputed and
should be accepted as true by the jury trying the negligence claims.
C. Interference with easement
Defendants concede that Plaintiffs did not assert a cause of
action for interference with easement, that the trial court denied
Plaintiffs’ request to amend the complaint to include such a claim after
the close of evidence, and that the jury was never instructed or asked to
render a verdict on interference with easement. Defendants
nevertheless argue the jury improperly based its negligence verdict on
evidence that Defendants interfered with Plaintiffs’ easement rights by
denying them access to repair or replace the sewer pipe. Defendants
further argue they were improperly denied the opportunity to present
evidence that their refusal to allow access was reasonable. We reject
these arguments for reasons we discuss below.
After the trial court denied Plaintiffs’ request to amend their
complaint to include a separate interference with easement cause of
action, Defendants’ refusal to allow sewer repairs was again discussed
during a court conference on proposed jury instructions. Defendants
objected to language in Plaintiffs’ proposed jury instruction on
negligence that referred to Defendants’ failure to allow the sewer pipe
to be repaired or reconnected. The trial court advised Plaintiffs that if
they intended to argue interference with easement as part of their
negligence claim, the court would reopen evidence to allow Defendants
to present evidence showing their refusal to allow access was
reasonable. Plaintiffs’ counsel then agreed not to argue that
Defendants’ refusal to allow repairs was negligent. Counsel noted,
however, that Defendants’ refusal was relevant to Plaintiffs’ claim for

23
continuing damages. Based on Plaintiffs’ counsel’s agreement, the trial
court struck from the proposed negligence instruction language stating
that Defendants failed to use reasonable care by not allowing the sewer
pipe to be repaired. The trial court then clarified that Defendants’
refusal to allow repairs was relevant to the issue of causation and that
Plaintiffs could make that argument to the jury.
Plaintiffs’ closing argument did not exceed the bounds of the trial
court’s ruling. Tesoro’s counsel argued in closing that Defendants
refusal to allow repair or replacement of the pipe had “everything to do
with [its] claim” for damages.9 When Tesoro’s’ counsel again referred
to Defendants’ refusal to allow repairs after they knew the sewer pipe
had been removed, Defendants’ counsel made a “standing objection to
this line of argument” because Plaintiffs had not asserted a separate
claim “for any damages pertaining to failure to allow replacement and
removal.” The trial court overruled the objection, noting that the
argument “goes to causation.” The trial court also denied Defendants’
request to instruct the jury not to consider “the alleged failure to allow
repair or replacement of the sewer pipe on Defendants’ property as part
of your consideration of Tesoro’s case on negligence.”
Defendants fail to demonstrate any abuse of discretion by the
trial court. Tesoro’s counsel did not argue that Defendants’ refusal to
allow repair or replacement of the sewer pipe constituted negligence or
wrongful interference with the easement. Counsel’s argument was
consistent with Tesoro’s negligence theory—that Defendants’ removal
of the sewer pipe from the Malibu Vista property constituted

9 In their appellate brief, Defendants misleadingly omit language
from counsel’s closing argument. The omitted language makes clear
that Tesoro’s counsel argued that Defendants’ refusal to allow repair or
replacement of the sewer pipe was relevant to Tesoro’s damages claim.
Counsel did not argue Defendants’ refusal to allow repairs was
negligent. Tesoro’s counsel’s statement, in its entirety is as follows:
“[Defendants’ counsel] told you that the fact they did not allow the
repair or replacement of the pipe—she used these words—not part of
any damages in this case. I respectfully disagree. It has, in my
opinion, everything to do with our claim.”
24
negligence. The record shows that counsel’s argument focused on
evidence that Defendants knew the sewer easement existed, that
Defendants oversaw work that resulted in removal of a 20-foot section
of the sewer pipe on their property, that removal of the sewer pipe
could not have been accidental, and that Defendants never informed
Plaintiffs of the removal. Plaintiffs could and did properly argue that
Defendants’ refusal to allow repair or replacement of the pipe forced
them to incur continuing damages of $120,000 per year for the cost of
trucking sewage out of the gas station. Tesoro’s counsel’s statements
were within the “wide latitude” afforded to counsel to argue his view of
the evidence and the conclusions to be drawn therefrom. (Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 795.)
The trial court, moreover, properly instructed the jury on the
elements of negligence and on Tesoro’s burden to prove its negligence
claim. We presume the jury followed those instructions.10 (NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178,
1223.) The record shows no abuse of discretion.
D. Alleged evidentiary errors
1. Purported exclusion of four-inch pipe
Defendants contend the trial court erroneously excluded from
evidence a four-inch piece of sewer pipe cut by their plumber after the
2016 sewage spill occurred. The record shows, however, that the trial
court did not preclude Defendants from using the pipe but “reserve[d]
judgment” on the issue. Defendants did not subsequently seek to
introduce the pipe into evidence.
The trial court did grant Plaintiffs’ motion in limine to preclude
evidence that sewage had been dumped onto the Malibu Vista property
for decades, or that the sewage spill occurred because of earth

10 We disregard juror declarations Defendants cite as support for
their claim that the jury improperly based its negligence finding on
interference with easement. The trial court sustained objections to
those declarations, offered below in support of Defendants’ motion for a
new trial, and Defendants do not challenge that evidentiary ruling in
this appeal.
25
movement, rotting, or failure to maintain the pipe. Defendants do not
challenge those rulings, which were consistent with the parties’
stipulation that “[n]either earth movement nor rotting of the pipe was
the cause for the removal of [the] portion of the sewer pipe” from
Defendants’ property in 2012. That stipulation forecloses Defendants’
argument that they should have been allowed to introduce the four-
inch pipe into evidence to show “that the pipe was old rusty, and never
maintained” so the jury could determine “the cause of and
responsibility for the [sewage] spill.” Defendants demonstrate no
evidentiary error by the trial court.
2. Photographic evidence
The trial court did not abuse its discretion by excluding
photographs purportedly taken in 1999 of the hillside adjacent to the
gas station property. As discussed, the trial court found in the
equitable easement trial that neither earth movement nor rotting of the
pipe was the cause for removing a 20-foot section of sewer pipe from
Defendants’ property in 2012. Defendants fail to demonstrate why
photographs depicting the condition of the hillside 13 years previously
were relevant to their negligence claim against Plaintiffs with respect
to the 2016 sewage spill.
E. Attorney misconduct
We reject Defendants’ contentions that alleged misconduct by
counsel for Fiedler and Tesoro requires reversal of the jury verdict.
1. Applicable law and standard of review
Attorney misconduct is a ground for a new trial. (Code Civ. Proc.,
§ 657, subd. (l).) “But it is not enough for a party to show attorney
misconduct. In order to justify a new trial, the party must demonstrate
that the misconduct was prejudicial.” (Garcia v. ConMed Corp. (2012)
204 Cal.App.4th 144, 149 (Garcia).) An appellate court makes an
independent determination as to whether misconduct occurred and
whether it is reasonably probable that the appellant would have
achieved a more favorable result in the absence of the misconduct. In
doing so, the reviewing court examines the record as a whole, taking
into account the nature and seriousness of the attorney conduct, the

26
general atmosphere, including the judge’s control of the trial, and the
efficacy of objection or admonition under all the circumstances. (Ibid.)
2. Alleged misconduct by Fiedler’s counsel
a. Relevant factual background
While cross-examining Los Angeles County inspector Ron
Dockery, a witness called by Defendants, Fiedler’s counsel asked
whether Dockery had experienced “a prior run-in” with Defendants.
After Defendants objected, the trial court held an in-chambers
conference with the parties. Fiedler’s counsel argued he was entitled to
show Dockery was biased because Dockery was afraid of Defendants,
who had sued him personally. The trial court limited this line of
questioning and ruled that counsel could direct Dockery to respond only
with a yes or no answer:
“THE COURT: . . . So this is what I want you to do. You can
say—do you have any fear of [Defendants’ counsel] that would—that’s
causing you to give the testimony that you give today? That’s all. If he
says yes, he says yes. If he says no, he says no.” The trial court
clarified that, depending on Dockery’s response, Fiedler’s counsel could
seek to impeach him by asking whether he was afraid of Defendants
because he believed they were litigious.
Before Fiedler’s cross-examination of Dockery resumed the
following day, the trial court held a further conference with counsel
outside the presence of the jury. During the conference, the trial court
reiterated the limitations the court had imposed on questioning
Dockery:
“THE COURT: . . . I don’t want you to bring up litigation and all
that litigious past. Okay?”
When Dockery took the stand, Fiedler’s counsel asked him,
without objection, whether he had been sued personally by Defendants.
Dockery responded “yes.”
Fiedler’s counsel then questioned Dockery about a conversation
he had with RD Builders while conducting an inspection of the sewer
pipe. The following exchange occurred:

27
 “Q And in fact, when you were doing this inspection, you
warned the R.D. folks to watch their P’s and Q’s, didn’t you?
“A Yes, I did.
“Q And that was because of why?
“[DEFENDANTS’ COUNSEL]: Objection, your honor, that’s
overbroad.
“THE COURT: Lead him, please.
“Q BY [FIEDLER’S COUNSEL]: Well, the reason you did that
was because you felt [Defendants] were sue happy; right?
“[DEFENDANTS’ COUNSEL]: Objection, your honor. That is
argumentative.”
….
“THE COURT: Counsel, rephrase your question, please.
“Q [BY FIEDLER’S COUNSEL]: Are you familiar with the
term ‘Litigious’?
“MS. ROIT: Objection, your honor.
“THE COURT: No. I—I—Counsel.
“Q [BY FIEDLER’S COUNSEL]: Why—Why did you tell R.D. to
mind their P’s and Q’s?
“MS. ROIT: Objection, your honor. It goes beyond—
“THE COURT: I asked that you lead the witness.
“THE WITNESS: Is it okay to answer?
“BY [FIEDLER’S COUNSEL]: No.”
….
“Q You told R.D. to watch their P’s and Q’s because you were
concerned that [Defendants] might sue somebody if . . . there was a
problem—
“[DEFENDANTS’ COUNSEL]: Objection—
“Q Is that true?
“[DEFENDANTS’ COUNSEL]: Objection, your honor.
Argumentative. It goes beyond—
“THE COURT: Overruled.”
….

28
 “A Okay. I said that because, basically, I didn’t want to [have]
any trouble—
“THE COURT: Okay. I—It calls for a yes-or-a-no answer.
“THE WITNESS: —with the gas station job, and I didn’t think
they needed to be disturbed. Everything on my plan, the approved
plan, showed that the sewer line that went through their property was
a pre-existing sewer. And so I just assumed—you know, they signed an
agreement during the plan check that the existing sewer line was in—
or had been maintained. And so my reasoning for saying things of that
nature is to keep the peace.”
Later, outside the presence of the jury, the trial court
admonished Fiedler’s counsel that he had not abided by the court’s
order not to use the word “litigious.” The trial court denied Defendants’
oral request for a mistrial, however, based on Fiedler’s counsel’s
conduct: “There is no mistrial from this. Quite frankly, if my ruling
had been otherwise, it probably would have also been okay. This is one
of those discretionary call[s] that I—I did it out of an abundance of
caution.” The trial court explained that Dockery’s responses had
“open[ed] the door” to counsel’s question as to whether Dockery had
told RD Builders to “watch their P’s and Q’s” because he was concerned
Defendants might sue someone if a problem arose. The court pointed
out, however, that Dockery’s answer to that question had not referred
to Defendants as litigious.
b. No prejudice
Our review of the record leads us to conclude that it is not
reasonably probable Defendants would have achieved a more favorable
result absent the alleged misconduct by Fiedler’s counsel. The conduct
at issue occurred during a brief, isolated portion of Dockery’s cross-
examination. Dockery did not respond to counsel’s questions by stating
that he believed Defendants were litigious or that he was afraid of
them for that reason.
The likelihood of prejudice was minimal given that Dockery had
previously testified, without objection, that Defendants had sued him
individually, in a separate lawsuit, and that they blamed him for

29
performing an improper inspection. Defendants’ proclivity toward
litigation was also the subject of prior, unobjected to testimony by
Tesoro witness Ron Rogers, who said that Defendant Roit had told him
“that she was a lawyer and that they would not let that happen and
they would tie us up in court for ten years.”
That the jury voted 9 to 3 in Fiedler’s favor on Defendants’
negligence cause of action is insufficient to establish prejudice given the
circumstances discussed above. The record, moreover, contains
substantial evidence of Defendants’ negligence as the cause of the
sewage spill and the resulting damages incurred by Tesoro. Our review
of the record leads us to conclude that no prejudicial misconduct
occurred.
3. Alleged misconduct by Tesoro’s counsel
We reject Defendants’ contention that Tesoro’s counsel engaged
in prejudicial misconduct by displaying to the jury during closing
argument a demonstrative exhibit summarizing $423,375.38 in invoices
Tesoro paid to Top Notch to truck sewage out of the gas station
property and by arguing to the jury that the invoices themselves had
not been admitted into evidence because they were voluminous, and by
arguing that Defendants had interfered with the easement.
a. Relevant factual background
Ron Rogers testified at trial that Tesoro hired Top Notch to truck
sewage from the gas station property after Defendants refused to allow
sewer pipe repairs, that Top Notch billed Tesoro $423,375.38 to do so,
and that those bills were paid. Rogers identified several exhibits,
including exhibit 435A (a Top Notch invoice), and exhibit 1538 (a
compilation of Top Notch invoices showing invoice dates, dates of
service and invoice amounts totaling $423,375.58) which were
displayed for the jury without objection during Rogers’s testimony.
Rogers further testified that some Top Notch invoices were directed to
an entity named Speedway, a Tesoro affiliate. Rogers testified that he
did not know which entity, Speedway or Tesoro, paid the invoices, but
that he was certain all the invoices were paid.

30
 During closing argument, Tesoro’s counsel summarized Rogers’s
testimony that Top Notch billed Tesoro $423,375.88 to remove sewage
from the gas station property, and that the invoices had been paid.
Counsel then told the jury, “We didn’t give you all the invoices, there
are—there’s a thick stack—” Defendants’ counsel objected to
characterizing the invoices as “a thick stack.” The trial court overruled
the objection and instructed the jury that they were “the best judge of
what the testimony was. If you believe there’s any misstatement of
evidence, you can always ask the reporter to read back.”
Defendants during closing argument urged the jury to reject
Tesoro’s damages claim because it was unsupported by invoices, checks,
or any other documentary evidence. Defendants further argued that
Rogers had simply confirmed the total sum paid to Top Notch but could
not identify the entity that had paid the Top Notch invoices.
Tesoro’s counsel argued in rebuttal that there had been ample
testimonial evidence of Top Notch invoices during the trial. He then
displayed for the jury exhibit 435A, to which Defendants’ counsel
objected as “not in evidence.” Tesoro’s counsel responded that exhibit
435A was a demonstrative exhibit previously shown to the jury. The
trial court ruled, “If it was shown, he can use it. It doesn’t go into
evidence.”
Tesoro’s counsel next displayed for the jury, without objection,
exhibit 435, a Top Notch invoice for trucking sewage from the gas
station property and pointed out that Rogers testified that he had
reviewed that invoice and “quite a few” others. Counsel argued,
without objection: “There was evidence, under oath. And, yes, it’s true
. . . . [Tesoro’s counsel] did not spend a half an hour of your time to go
through a zillion more invoices . . . . Thank goodness because otherwise
we’d still be here next August.”
b. No prejudicial misconduct
Tesoro’s counsel did not engage in prejudicial misconduct by
displaying an unadmitted demonstrative exhibit to the jury during
closing argument. The record shows the exhibit had previously been
displayed to the jury, without objection, during Rogers’s trial

31
testimony. The trial court permitted counsel to display that exhibit to
the jury again during closing argument, as it was within the court’s
discretion to do so. (See People v. Peoples (2016) 62 Cal.4th 718, 784–
785.)
Tesoro’s counsel did not engage in misconduct by describing the
unadmitted Top Notch invoices as “a thick stack.” When conducting
closing argument, attorneys have “wide latitude” to discuss and
summarize the case. (Garcia, supra, 204 Cal.App.4th at p. 147.) The
adverse party cannot complain of faulty reasoning or illogical
deductions, “as such matters are ultimately for the consideration of the
jury.” (Id. at pp. 147–148.) In response to Defendants’ objection to
counsel’s characterization of the invoices as “a thick stack,” the trial
court instructed the jury that they were the best judge of the testimony
and the evidence. The record does not support Defendants’ claims of
attorney misconduct or any prejudicial impact resulting therefrom.11

11 Defendants argue the purported prejudicial impact of the
alleged misconduct was “further compounded” because the verdict form
did not give the jury the option of finding no damages. Defendants
waived this argument by failing to object to the verdict form on that
basis. Although Defendants claim they raised such an objection below,
the record contradicts that claim.
32
 DISPOSITION
The judgment is affirmed. Respondents shall recover their costs
on appeal.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

33