Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CI54479
SIMS, Acting P.J.In this dispute among neighboring cattle ranchers, Harry A. Baker and Jacquelyn L. Baker, trustees of the Harry A. Baker and Jacquelyn L. Baker Revocable Trust of 1998, sued David W. Goddard, James D. Hudson, Eugene Burrill, Thomas Eugene Burrill (individually and as trustee for Anthony Lynn Burrill), and Crystal Burrill, claiming entitlement to access the Bakers’ property by a road crossing defendants’ properties. Baker alleged in the alternative an easement by necessity, an easement by prescription, or an equitable easement.
Harry Baker has died since the trial court entered judgment. We shall generally refer to plaintiffs collectively as “Baker.”
The matter went to bench trial. After Baker rested, defendants moved for judgment. (Code Civ. Proc., § 631.8 [subsequent undesignated statutory references are to the Code of Civil Procedure].) The trial court granted the motion with a written statement of decision. Subsequently, the court granted defendants’ motion for attorney fees and costs as to two requests for admissions which the court found that Baker had wrongly refused to admit. (§ 2033.420.) Baker appeals from the judgment and the fee order.
Section 631.8 provides:
Section 2033.420 provides:
We shall affirm the judgment as to Baker’s claims of easement by necessity, easement by prescription, and equitable easement.
However, we shall reverse the order for attorney fees. One request for admissions was so broadly worded that Baker’s refusal to admit the alleged facts was literally correct, and the other did not ask Baker to admit any fact which had any actual or potential importance to the trial of the case. Thus, an award of fees to defendants as sanctions was inappropriate.
FACTS
The complaint
The operative complaint (the first amended complaint) for preliminary and permanent injunction and damages, quiet title to easement (prescriptive and implied), easement by necessity, equitable easement, and declaratory relief, alleged:
All parties own real property in Tehama County, California. The complaint calls Baker’s property the “Baker Property”; the property owned by defendants Goddard and Hudson, the “Goddard Property”; the property owned by defendants Eugene Burrill and Thomas Burrill (individually and as trustee for Anthony Lynn Burrill), the “Eugene Burrill Property”; and the property owned by defendants Thomas and Crystal Burrill, the “Thomas and Crystal Burrill Property.” (For purposes of the complaint, the two latter properties are collectively called the “Burrill Property.”) Baker is informed and believes that at some time the properties were in common ownership.
As will appear, the Baker property was formerly owned by the McKerras family, was leased by Baker from Sadie McKerras before Harry Baker inherited it, and was then leased by Baker for 18 years to the Burrills. To avoid confusion, we generally refer to it as “the Baker property,” regardless of who owned or occupied it at any given time.
Plaintiffs’ Trial Exhibit A, attached as an appendix to this opinion, depicts the properties. As will be seen, they adjoin each other on a north-south axis, with the Baker Property at the south end, the Goddard Property in the middle, and the Burrill Property at the north end.
For well over 20 years, Baker has enjoyed an easement that burdens the Goddard and Burrill Properties, consisting of a right of way from Pettyjohn Road over the Burrill and Goddard Properties that terminates at the Baker Property; Baker’s predecessors in interest used the easement as far back as 1925. It provides the only access to the Baker Property by vehicle, and was once used to access a single-family home, barns, and corrals formerly located on the property.
Beginning around the fall of 2003, defendants unreasonably interfered with and obstructed the easement by placing a fence across it at or near Pettyjohn Road and by erecting a gate with a combination lock to which plaintiffs do not have the combination or key. Plaintiffs now have no access to their property across the easement and no right of access from any other property.
As the trial was terminated by defendants’ motion for judgment at the close of plaintiffs’ case, all witnesses were called by plaintiffs.
Thomas Burrill
Defendant Thomas Burrill testified that he had lived in the area from 1944 (the year of his birth) to around 1960, then moved back around 1997 and built his house around 2000; in between, he often stayed on the family property in the summer and helped run the family’s cattle business. There had been a locked gate on Pettyjohn Road, where the claimed easement roadway began, since 1950 at least; the present gate was built by Burrill himself in 1962. The locks had been changed in 1986, 1996, and 2003.
Burrill was aware that a key had been hung on a tree near the gate, but he had never seen it.
“No Trespassing” signs were posted near the gate every hundred yards on Pettyjohn Road to bar access to both defendant’s property and his father’s property; Burrill replaced them yearly. Such signs had always been there as far as he knew.
Burrill’s grandfather Lester and Burrill’s father, defendant Eugene Burrill (now 84 years old), who had always lived on the family property, allowed entrance only by permission; Burrill had continued that policy. To Burrill’s knowledge, only three people had ever asked permission to use the claimed easement roadway or to access the Baker property by any means: Orin Swain (the nephew of Burrill’s grandfather and the grandfather of defendants Goddard and Hudson), Pete Owens, and Don Ricky, a real estate broker working on the sale of the property. Burrill’s grandfather gave a key to the locked gate to Swain; Burrill’s father gave a key to Owens in 1996 so that he could reach timber from a woodcutting operation, but after Owens gave his workers copies of the keys without permission, Burrill’s father changed the lock. When Don Ricky arrived in a four-wheeler, Burrill indicated to him an alternative means to access the Baker property, which involved going through two more gates on Pettyjohn Road.
Sometime in the 1970s, Burrill saw someone using a “Cat” on the road, who may have been Jim Hemsted, a sublessee of plaintiffs’ property.
There was also a tradition in the area of allowing neighbors in the cattle business to move cattle from Pettyjohn Road to other properties, including the Baker property, during the grazing season, to unload them in corrals owned by defendants Goddard and Hudson. Such access was always by permission. Burrill had never seen anyone drive cattle all the way through to the Baker property, however.
Burrill had never seen plaintiffs on his property. Although he had rented their property for 18 years (acquiring the lease from his father), he had met them only once in that time. During the entire lease period, during which he ran cattle annually to and from the Baker property from November through May, he never saw any evidence of anyone using the alleged easement to access the property.
When a major fire occurred in the area in 1976, the firefighters brought in bulldozers and trucks onto the claimed easement to run a fire trail through it. They went through the Baker property and beyond onto property owned by the Stroings to the east of the Baker property.
After he tried to buy the Baker property and learned that plaintiffs had accepted the competing Tacherra offer, Burrill and his wife put up a barbed-wire fence between the gate and Pettyjohn Road.
Eldon Stroing
Stroing, aged 81, had lived in the area all his life and knew all the parties. He had owned property to the southeast of the Baker property since 1972, until he sold it to Tacherra two years ago; no one had the right to cross that property to get to the Baker property. According to Stroing, people (including himself in the late 1950s and 1960s, when he worked for Owens Estate) “always” got into the Baker property on the claimed easement roadway. It was a “regular road,” passing through three gates, which had been fixed up “real good” by Jim Hemsted (a sublessee when the McKerras family still owned the Baker property). The first gate was on Pettyjohn Road on the Burrill property; the second was between the Burrill property and the former Swain property (now the Goddard property); the third was between that property and the Baker property.
The gate on Pettyjohn Road was easy to open because a key was always “right there”; as far as Stroing knew, everyone who used the roadway either got a key from the property owners or used the one on the tree. Stroing had never asked anyone for permission to use the roadway. He had seen plaintiff Harry Baker use it “all the time,” as well as anyone else who “had the place” going back at least to the 1940s; however, he could not say how many times he had seen the Bakers using it. It was the only way to get in and out of that property: there was a creek crossing, but you could not get across it with a vehicle, except possibly a four-wheeler. (He admitted he had done it that way, but “had an awful time.”)
Asked to identify locations on maps, Stroing had great difficulty.
Stroing believed that plaintiffs acquired the property in the late 1960s, although he was not sure. He knew that Harry Baker acquired it after Sadie McKerras’s death.
Jerry Hemsted
The son of Jim Hemsted, Jerry Hemsted had lived in the area and worked in the cattle business since around 1960. He and his father ran cattle on the claimed easement roadway when they leased the Baker property from the McKerrases in the late 1960s. They were never shown any other way to access the property and did not know of any, although he could not say for sure that there was none. They hauled cattle along the road with a gooseneck trailer. The road was in rough condition when they began using it, but Jim Hemsted improved it with a bulldozer. Sadie McKerras and Harry Baker showed them the road; Jim Hemsted had a key to the gate. They never asked permission from any member of the Burrill family to use the road.
Carlo Stroing
Carlo Stroing (the 80-year-old brother of Eldon Stroing), a retired foreman with the county road department, recalled grading the alleged easement in the early 1950s under a contract between the county and the McKerras family. There was a wire “sheep herder” gate on Pettyjohn Road at the time.
Pete Owens
Owens, a cattle rancher, and his father leased the Pettyjohn Ranch, west and north of the Burrill property, for forty years. During the 1990s, up until about 1998, he frequently went onto the Baker property via the alleged easement to access a woodcutting operation or to hunt stray cattle; in 1995 or 1996 he fixed a culvert on the property at the request of defendant Eugene Burrill. Burrill gave him the key to the gate or let him know where it was; it used to hang beside the gate in a small digger pine tree. However, during the early 1990s the gate was often not locked.
Owens had seen plaintiff Harry Baker on the road, running cattle with a truck. He had not seen anyone else there. However, he knew that “everyone” went that way, because it was “a natural right-of-way through there.”
He did not know any other way to get in and out of the Baker property in a vehicle. It might be possible on horseback or with a four-wheeler, but he would not want to try it.
Gene Davis
A retired cattle rancher, Davis was a longtime neighbor of plaintiffs. He helped them unload cattle at the Swain corrals in the early- to mid-1970s. He would go on horseback, driving the cattle down the alleged easement through a wire gate; he did not remember a wooden gate or a locked gate of any kind. He never saw Harry Baker ask anyone’s permission to use the road. He knew that the property belonged to the McKerrases at the time.
Jacquelyn Baker
Plaintiff Jacquelyn Baker and her husband had been in the cattle business for 56 years. She first visited the Baker property in 1956; they drove in a car through the Pettyjohn Road gate and all the way down the alleged easement. At that time, Harry’s aunt Sadie McKerras owned the property; Harry inherited it in 1984, after she died.
Jacquelyn Baker was on the property a dozen times or less between 1956 and 2004. She would go with her husband to check on feed or look at cattle. They always went by day. Harry always got the key off the tree and unlocked the gate on Pettyjohn Road, unless the gate was open. He never asked anyone’s permission to use the road, and no one ever told them they could not. There were two other gates they had to go through; Harry would open and close them.
During the 18 years the Burrills leased the property, ending in 2003, she had never spoken with any of them about whether the Bakers had the right to access the property down the alleged easement. No member of the Swain family ever told them that they did not have the right to cross the Swain/Goddard/Hudson property to access the Baker property. They learned that they lacked a deeded right of way only when they tried to sell the property.
When Harry Baker told Thomas Burrill that Ernie Tacherra had made a better offer to buy the property, Thomas’s wife, Crystal, accused the Bakers of betraying them and said she would do everything she could to make it “difficult” for Harry to sell.
Harry Baker
Plaintiff Harry Baker testified that he acquired the property in 1980. However, after seeing the document by which he obtained title from Sadie McKerras, he changed his answer to 1984.
The McKerras family acquired the property in 1925. He began visiting it as a child in the mid-1930s. They went through a gate off Pettyjohn Road (not the one that is there now) and down a dirt road which passed through “the Swain property” (now the Goddard property), the route they have used ever since. The Baker property was and is used for cattle. When he first saw it, there was an old chimney, but no house on the property.
Baker began to run cattle on the property while he was renting it from Sadie McKerras and stopped when he leased it to the Burrills. However, he could not remember the exact dates. He believed he rented from McKerras for three or four years, “right after Hemsted quit.” Reminded that the Hemsteds leased the property in the late 1960s, he said he had thought it was later than that. He was sure he began to rent the property and run cattle on it in the mid-1970s. He agreed with his wife that they began leasing to the Burrills in 1985.
However, later in his testimony he said the lease began in the “[e]arly ‘70s.” After his counsel tried to clear up the confusion, Baker said that the Burrills’ lease had lasted 18 years, but, “I can’t remember the years.”
For whatever period of time he ran cattle on the property, he did it every year. Riding on horseback, they would unload the cattle at the Swain corrals, then drive them to the gate off Pettyjohn Road and down the road to his property; although some would stray off the road, “the biggest percentage of ‘em” would stay on it. After he acquired a gooseneck trailer, he drove cattle in that way; he could not remember when he got the trailer.
Including all the occasions he visited the property while leasing it (not only driving cattle, but also hauling feed, hauling salt, checking fences, and looking for strays), he went there 12 or 15 times a year, always in broad daylight during the grazing season (November to May). At other times of year the road was too wet to use. He always accessed the property by the same road. He did not know of any other way to get in and out of the property. He never questioned his right to use the road because they had always used it. He never asked anyone’s permission. No one had ever objected to his presence on the road, in person or in writing.
He also went down there “three or four times” during the 18 years they leased the property to the Burrills.
There had first been a wire gate at the end of the road by Pettyjohn Road, then a board gate; Baker did not know when the board gate appeared. The wire gate was not locked. The board gate was normally locked, but the key hung on a “little digger pine.” He believed that his aunt first told him where it was. He had never failed to find it or to get through the gate.
Greg Baker
Greg Baker, plaintiffs’ son, had been in the cattle business with them since the early 1970s. He began going to the Baker property with them in the late 1960s or early 1970s (“[w]henever dad first started leasing it”), doing “[r]anching stuff.” They continued to go there at least 15 times a year (some years more often, others less often or not at all) until the Burrills began to lease it in 1984; after that he could not say how often his family went there, but it was infrequent. Sometimes they drove cattle in on horseback, sometimes with a gooseneck trailer.
They always used the alleged easement; Baker did not know of any other road onto the property (driveable or not) by which cattle could be brought in and had never seen anyone driving in and out any other way. He had last been on it in 1998 or 1999. Neither he nor any member of his family had ever asked anyone’s permission to use the road, and no one had ever challenged their right to be on it.
Soon after Baker started using the road (though he could not recall when), Eugene Burrill complained of trespassers and replaced the wire gate with one that locked. The key hung in a tree where it could not be seen from Pettyjohn Road, but Baker could always find it.
As a volunteer firefighter, Baker had obtained a California Department of Forestry map dated 1952 which showed the alleged easement as a possible access route into the Baker property.
David Goddard
Defendant Goddard jointly owned the Goddard/Hudson property with his brother; he inherited his interest from his grandmother in 1998. No one had ever lived on the portion of the property through which the alleged easement runs.
Goddard had often gone down the alleged easement with his grandfather, Orin Swain, obtaining access through the locked gate by means of the key hanging in the tree; his grandfather told him where it was. He had never seen anyone else on the road, including plaintiffs.
Goddard’s grandfather had obtained a deeded access to his property from Eugene Burrill in 1974. Before then, they needed permission from the Burrills to cross the Burrill property to get to their own.
When the Burrills leased the Baker property, Goddard sometimes gave them permission to cross his property to get to their cattle.
James Hudson
Defendant Hudson testified that his grandfather, Orin Swain, and the McKerrases “got along like neighbors, friendly.”
Crystal Burrill
Defendant Crystal Burrill testified that she had never met plaintiffs and had never personally given them permission to cross her property in the seven years since she became a co-owner. However, if they had asked her permission, she would not have refused it.
The trial court’s ruling on defendants’ motion for judgment
After Baker rested, defendants made an oral motion for judgment. (§ 631.8.)The trial court granted the motion with a written memorandum of decision which was entered over Baker’s objections as a statement of decision.
The trial court first found that Baker’s causes of action for implied easement and easement by necessity failed because Baker had not shown that the properties were ever under common ownership.
The court then rejected Baker’s cause of action for an easement by prescription on three grounds: (1) Plaintiffs failed to prove that they had used the alleged easement for the requisite time. (2) Even if they had used it for the requisite time, their use was by permission. (3) They had failed to prove a definite location for the alleged easement.
Lastly, the court rejected Baker’s cause of action for an equitable easement “on the same grounds as hereinabove stated.”
The court thereafter entered judgment in accordance with its statement of decision.
Defendants’ motion for fees and costs as to their requests for admissions; the trial court’s ruling
After the entry of judgment, defendants moved for an award of attorney’s fees pursuant to section 2033.420, alleging that Baker had wrongfully denied 12 requests for admissions. Baker opposed the motion.
The trial court granted the motion as to requests for admissions numbers 4 and 5, which read as follows: “REQUEST NO. 4. Admit that at no time in the past was the Plaintiffs’ property in common ownership with the Goddard property and/or Burrill property. [¶] REQUEST NO. 5. Admit Plaintiffs’ property in the past was held in common ownership with adjourning [sic; adjoining] properties not owned by any Defendant named herein.”
DISCUSSION
I
Standard of review
To rule on a motion for judgment in a court trial, the trial judge must weigh the evidence and make findings. We review those findings under the substantial-evidence standard, giving them the same deference as any other factual findings made by the trier of fact. (Franco Western Oil Co. v. Fariss (1968) 259 Cal.App.2d 325, 328-329 (Franco Western) [distinguishing motions for judgment from nonsuits, where reviewing court must assume truth of plaintiff’s evidence]; accord, Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1200.)
Totally misreading Franco Western, supra, Baker cites it in both its opening brief and reply brief as authority for the proposition that “[t]he truth of plaintiff’s evidence must be assumed.” As the case plainly says, that is the standard in reviewing nonsuits, not judgments granted on motion for judgment. (Franco Western, supra, 259 Cal.App.2d at p. 328.)
We review an order awarding expenses under section 2033.430 for abuse of discretion and reverse only if the trial court exceeded the bounds of reason. (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864 [former § 2033, subd. (o)]; Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10 [same].)
II
Easement by necessity or prescription
The trial court rejected Baker’s claim of easement by necessity because there was no evidence that the Baker property and any of defendants’ properties had ever been under common ownership. Baker does not make any appellate argument on this issue. Thus, we deem this claim abandoned.
The trial court rejected Baker’s claim of easement by prescription on three different grounds: failure of proof as to use for the requisite time, failure of proof as to adverse use, and failure of proof as to the alleged location of the easement. We conclude that substantial evidence supports the court’s finding that Baker’s use of the alleged easement was permissive, which is sufficient to defeat the claim of an easement by prescription. Accordingly, we need not reach the court’s other findings.
“‘The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.’ (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 3 Cal.3d 564, 570 [].) The term ‘adverse use’ ‘means only that the owner has not expressly consented to [the use] by lease or license . . . .’ (E.g., Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 [].) Whether the elements of prescriptive use have been established is ordinarily a question of fact, reviewed under the substantial evidence standard. (Ibid.)” (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1249-1250.)
As to adverse versus permissive use, the trial court found:
“Even assuming the requisite use, Plaintiff failed to establish that the use was open and hostile. The gate has been locked since 1952. Prior to that time, there was a sheep herder’s gate across the access road. As stated in Matthiessen v. Grand (1928) 92 Cal.App. 504, 510, ‘The maintenance of gates by the owner, across the roadway, when such gates are always kept locked, even though keys may be supplied to the neighbors as a matter of accommodation, is substantial proof of permissive use.’ In Heenan v. Bevans (1921) 51 Cal.App. 277, the plaintiff testified that he used the roadway and claimed a right to such use. The Court, at page 282, stated, ‘It is not sufficient that the claim of right exist only in the mind of the person claiming it. It must in some way be asserted in such a manner that the owner may know of the claim. The fact that the owner knew of the travel and occasional use of the property does not even raise a presumption that such use was hostile or under claim of right.’ (See also Eddy v. Demichalis (1929) 100 Cal.App. 517, 521.)
“The evidence established that Plaintiff’s first visit to the property was in the early 1930’s. His first remembrance was that they went through a gate onto a road, and that Aunt Sadie showed him where the key was on the tree. There is nothing about these facts that suggest[s] open and hostile use. To the contrary, access to a key that unlocks a gate raises the reasonable inference that entry is with the permission of the owner.
“In addition to the locked gate, there was no evidence that Plaintiff maintained the roadway. . . .
“Lastly, every witness who used the road testified that the road has always been gated, either by a sheep herder’s gate or a locked gate. Therefore, the gated entrance, Plaintiffs’ lack of road maintenance, the fact that BURRILL has never seen Plaintiff on the road, and the fact that Plaintiff never communicated to Defendants that their use of the road was by right, as opposed to by permission, support[] the granting of the motion.”
Baker asserts that their use of the road was “clearly not permissive” because (1) Thomas Burrill testified that only three people -- not including the Bakers -- had permission to use the road and were given keys to open the locked gate; (2) the Burrills’ no-permission policy went back to the 1950s; (3) the Bakers never sought permission to use the road and did not know until 2003 that anyone denied their right to do so. It is immaterial, according to Baker, that a key to the gate was always available to them because they knew where it hung on a tree: only if defendants had personally handed them the key or personally granted them permission to use the road would there be sufficient evidence of permissive use. We disagree.
As the court found in Matthiessen v. Grand (1928) 92 Cal.App. 504 at page 510, when an owner maintains locked gates across a road and supplies keys to the neighbors by way of accommodation, this is substantial evidence that any such neighbor uses the road permissively. Baker tries to distinguish this case on the ground that the owner “voluntarily supplied [keys] to the respondents” as well as other neighbors. (Id. at p. 507.) In other words, Baker reads the case as holding that only an owner’s in-person delivery of a key to a would-be road user will defeat a claim of adverse use. The case’s holding cannot reasonably be so restricted.
Baker also asserts that no later court has followed Matthiessen v. Grand and that other courts have distinguished or declined to extend it. One of the cases Baker cites for this claim is not properly citable because the opinion was vacated by the California Supreme Court, as Baker acknowledges. In any event, the fact that later cases distinguish or decline to extend the holding of an earlier case does nothing to discredit that case’s status as good law.
If an owner places a key that opens the gate to a private road in a spot concealed from the view of persons using the adjacent public road, but known to neighbors who need access to the private road, we think the owner has voluntarily supplied the key to those neighbors. It is undisputed that the Burrills did this. All of the witnesses who used the road without receiving personal copies of the key testified that they always knew where it was, and Greg Baker testified that it was in a spot which could not be seen from Pettyjohn Road. Harry Baker learned its location approximately 70 years ago from Sadie McKerras, the Baker property’s prior owner. Absent contrary evidence, we infer that a Burrill family member disclosed the key’s location to the current owners’ predecessors in interest, including McKerras, and the Burrills’ maintenance of the key in the same place throughout the intervening 70 years indicates their continuing grant of permission to the road’s current users.
Nothing in Matthiessen v. Grand, supra, 92 Cal.App. 504, states that an owner who installs a locked gate on a road, intending to bar access to non-permissive users, can effectuate his intent only by personally handing copies of the key to permissive users. Nor does the case state that such an owner may defeat a claim of adverse use only by extending permission in person to would-be adverse users (as opposed to impliedly extending permission to all who had learned from the owner, directly or indirectly, where to find the key).
So far as Baker reads Thomas Burrill’s testimony otherwise, Baker mischaracterizes that testimony. Contrary to Baker’s assertion, Burrill did not testify that only three people “had permission” to use the road: he testified that, so far as he knew, only those people had “asked” permission.
Finally, Baker asserts that it is “illogical” to infer permissive use from the fact that the Burrills placed a key where any informed neighbor could find it. We disagree.
Baker argues: “If, for example, the gate key’s being hung on the tree near the gate is the ‘rural-life’ equivalent of placing a spare key under one’s front door mat, an out-of-context application of Matthiessen would mean that a stranger’s use of the key to enter one’s house is permissive. Likewise, if one’s keys are left in the ignition of his car while he runs to the mailbox, it makes no sense to think that a passerby has the right to drive that car. Imprudent though these things may be, they are not an implied grant of permission.” These analogies are inapt. Hanging a key to the gate to a private road on a nearby tree is not equivalent to placing a spare key under one’s front door mat unless the private road runs to one’s front door, which in this case it did not. And absentmindededly leaving car keys in the ignition in plain view is not equivalent to deliberately placing a gate key in a location known to neighbors.
Since substantial evidence supports the trial court’s finding of permissive use, which entitled defendants to judgment on Baker’s claim of a prescriptive easement, we need not address the court’s findings on other prongs of the prescriptive-easement test.
III
Equitable Easement
As we have mentioned, the trial court rejected Baker’s cause of action for an equitable easement “on the same grounds as hereinabove stated.” Baker contends the trial court erred because the rules for establishing a so-called “equitable easement” are different from the rules establishing easements by necessity or prescription.
Defendants argue that the trial court’s failure to undertake a more detailed analysis is harmless error. Defendants point out that, in its statement of decision, the court found that Baker had not improved the alleged easement. In defendants’ view, a so-called “equitable easement” cannot be granted in the absence of improvements by the person seeking to establish the easement. Defendants say that substantial evidence supports the trial court’s finding that Baker did not improve the easement.
We think defendants have the better argument.
We seriously question whether California law recognizes an “equitable easement” in the circumstances presented by this case. We believe the term “equitable easement” was invented by the great real estate treatise Miller & Starr and not by California case law. (See 6 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 15:46, p. 15-161 (Miller & Starr).)
However, we need not decide that issue in this case. If an “equitable easement” is recognized in California then, according to Miller & Starr, an essential condition for establishment of such an easement is whether “a party has used and improved an easement for a long period of time with an innocent belief that he or she had a right to use the easement[.]” (6 Miller & Starr, supra, § 15:46, p. 15-161; italics added.) Thus, all the cases cited by Miller & Starr under the heading, “Equitable Easement” involve the question whether encroachments or improvements on the land of another should be allowed to remain. (E.g., Miller v. Johnston (1969) 270 Cal.App.2d 289, 303-308 [road constructed over servient tenement did not follow the path of recorded easement; relative hardship doctrine applied to allow travel over road]; Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38, 46-47 [road innocently constructed in part over small servient tenement to connect with settled right of way; relative hardship doctrine applied to allow encroachment]; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 237 [hidden sewer line did not qualify as prescriptive easement, but continued use was the only means of sewage disposal from claimant’s residence]; Hirshfield v. Schwartz (2001)91 Cal.App.4th 749, 758-759[encroaching block wall, chain link fence, underground utility lines, large underground pool motor allowed to remain and encroachers ordered to pay fair value for use of the land]; 6 Miller & Starr, supra, § 15:46, p. 15-161, fns. 2 & 3.)
We decline to expand the concept of “equitable easement” so that it may be applied regardless of whether the person asserting the easement right (or a predecessor in interest) has constructed improvements or encroachments.
We agree with defendants that the trial court found that Baker had made no improvements to the alleged easement route and that substantial evidence supports the trial court’s finding. Consequently, the trial court’s finding that Baker did not improve the alleged easement dooms Baker’s claim to an equitable easement.
IV
The order for fees and costs
As noted, the trial court granted defendants’ post-trial motion for attorney fees and costs based on defendants’ claim that Baker wrongfully denied requests for admissions as to matters which defendants later proved true. (§ 2033.420.) Baker contends that the court abused its discretion because a statutory defense under this provision applies to each of defendants’ requests. We agree.
Section 2033.420 provides: “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. [¶] (b) The court shall make this order unless it finds any of the following: [¶] (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. [¶] (4) There was other good reason for the failure to admit.”
Defendants’ request for admission that “at no time in the past was the Plaintiffs’ property in common ownership with the Goddard property and/or Burrill property” (request for admission number 4)
Baker relies on the defenses of “reasonable ground to believe that [it] would prevail on the matter” and “other good reason for the failure to admit” (§ 2033.420, subd. (b)(3), (b)(4)). Baker proffered evidence at trial -- to wit, certified copies of deeds on file in the Tehama County Recorder’s Office -- allegedly showing prior common ownership of part of the Baker property and the Hudson/Goddard property. However, the trial court excluded the evidence as irrelevant (even if competent) because it could not establish an easement by necessity that extended to Pettyjohn Road, which ran on the Burrill property, not the Hudson/Goddard property.
Defendants did not argue that the proffered evidence failed to establish past common ownership between some part of the Baker property and the Goddard/Hudson property. Aside from a foundational objection, they argued only that the part of the Baker property depicted on the purported deeds did not take in any part of the alleged easement.
Defendants retort that Baker could not reasonably have expected to prevail “on this claim” (italics added) because the evidence available before trial proved that there had never been common ownership of all of the properties at issue, which would have been required to establish an easement by necessity. Defendants miss the point. Their request for admission did not ask Baker to admit that no common ownership had ever united all of the properties: it asked Baker to admit that there had never been common ownership of their property and either of the defendants’ properties (“and/or”). Defendants impliedly concede that (assuming Baker had been able to lay a proper foundation for the purported deeds) this proposition was false, because Baker could show common ownership of the Goddard property.
Moreover, section 2033.420, subdivision (b)(3), does not require the party responding to a request for admission to believe reasonably that it will prevail on the claim or legal theory to which the request may be directed: it requires the party to believe only that it will prevail on “the matter” -- i.e., “that matter” which it was asked to admit. (§ 2033.420, subd. (a).) Defendants cite no authority for their contrary reading of the statute.
Baker also asserts that defendants failed to “thereafter prove[] the truth of the matter” on which the admission was requested, as required for a fee award under this provision. (See Stull v. Sparrow, supra, 92 Cal.App.4th at pp. 865-866.) Because we reverse the fee award on other grounds, we need not address this point.
Defendants’ request for admission that “Plaintiffs’ property in the past was held in common ownership with adjourning [sic] properties not owned by any Defendant named herein” (request for admission number 5)
Baker relies here on the defense that “[t]he admission sought was of no substantial importance” (§ 2033.420, subd. (b)(2)), as well as on defendants’ failure to prove the truth of the matter at trial. Here, again, we find the claimed defense applicable, and therefore need not decide whether defendants proved the matter at trial.
A matter is of substantial importance for purposes of section 2033.420 “if it has ‘at least some direct relationship to one of the central issues in the case, i.e., an issue which, if not proven, would have altered the results in the case.’ [Citation.]” (Wimberly v. Derby Cycle Corp., supra, 56 Cal.App.4th at p. 634.) On its face, whether the Baker property was ever held in common ownership with adjoining properties not owned by any of the defendants has no direct relationship to any issue in this case. Its only conceivable relevance, as defendants concede, might be to serve as part of a defense to Baker’s claim of easement by necessity, if it could also be shown that there was access to Baker’s property across some other property formerly held in common ownership with it. However, defendants cite nothing in the record to show that they ever sought to raise that defense.
Instead, defendants assert: “The sole purpose of [request for admission] Number 5, which was merely a backup and secondary to the obvious purpose of [request for admission] Number 4, was to force Appellants to do their title search and confirm that their claim of easement by implication or necessity should be directed to other landowners across whose properties there was access to a public road and against whom such an easement theory had viability.” In other words, defendants assert that a party faced with a request for admission cannot merely respond reasonably and in good faith to the request itself, but must also divine any and all legal theories which might lie behind the request and tailor its response accordingly. Needless to say, defendants cite no authority for this novel view of the statute, and we know of none that would support it.
In light of the above, we conclude that the trial court abused its discretion by granting defendants’ motion for fees as to both requests for admission. We shall therefore vacate the order granting fees.
DISPOSITION
As to Baker’s claims of easement by necessity, easement by prescription, and equitable easement the judgment is affirmed. The order granting fees and costs to defendants under Code of Civil Procedure section 2033.420 is reversed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
We concur: NICHOLSON , J., BUTZ , J.
“(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. . . .
“(b) If it appears that the evidence presented supports the granting of the motion as to some but not all the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in such action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.
“(c) If the motion is granted, unless the court in its order for judgment otherwise specifies, such judgment operates as an adjudication upon the merits.”
“(a) If a party fails to admit . . . the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.
“(b) The court shall make this order unless it finds any of the following:
“(1) An objection to the request was sustained or a response to it was waived under Section 2033.920.
“(2) The admission sought was of no substantial importance.
“(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.
“(4) There was other good reason for the failure to admit.”
Baker also notes that one of the later cases found that in Matthiessen the “chief issue was the location and course of the roadway to which plaintiff sought to quiet title[.]” (Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 852.) Even if so, however, that does not invalidate the rule for which the trial court here cited Matthiessen.
At oral argument, counsel for appellants argued that Matthiessen had been undermined by that later opinion of our Supreme Court in O’Banion v. Borba (1948) 32 Cal.2d 145. However, O’Banion does not cite or discuss Matthiessen. It cites a lot of other cases that divide on the general question whether there is a presumption of either an adverse claim of right or of permissive use under given circumstances, and concludes that no presumption exists either way and that the question must be decided on the facts of each case. (O’Banion, supra, 32 Cal.2d at pp. 149-150.) Matthiessen is not to the contrary: it says (92 Cal.App. at p. 510) that the maintenance of locked gates, even where keys are supplied to neighbors, is “substantial proof of permissive use,” not that it creates a presumption.