Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. VG05227674
Richman, J.
Following a one-day bench trial, the Superior Court of Alameda County entered a judgment declaring that plaintiff Penelope Barber has a prescriptive easement across a portion of the adjacent property owned by defendant Tracey Lee Abreu. Abreu appeals, contending that: (1) the trial court improperly excluded her “support person”; (2) the court exhibited judicial bias by “coaching” Barber not to testify in a manner that would defeat her claim; (3) there is not substantial evidence establishing the elements for a prescriptive easement; and (4) the judgment is in improper form. We conclude that none of defendant’s contentions has merit, and affirm. We also deny Barber’s request for frivolous appeal sanctions.
BACKGROUND
We must, at the outset, address the peculiar state of the record on appeal.
When Abreu filed her notice of appeal, she also elected to proceed in accordance with former rule 5.1 (now rule 8.124) of the California Rules of Court. This rule, which is changed only in its renumbering, permits an appellant to prepare an appendix instead of a clerk’s transcript. Ordinarily, an appellant’s appendix constitutes a bound volume containing copies of certain documents filed in the trial court. (See Cal. Rules of Court, rules 8.124(b)(1), 8.120(b)(1).)
Abreu did not file a separate volume. Instead, she attached a number of documents to her opening brief. However, because an appellant’s appendix must be filed with the appellant’s brief (Cal. Rules of Court, rule 8.124(e)(2)), it is just possible to view Abreu as within the spirit of the rules. We choose to adopt this approach for two reasons. First, Barber has chosen not to make an issue of how Abreu has proceeded. (But see fn. 1, post.) Second, we have a reporter’s transcript of the trial which, together with the few documents we have, is enough—barely enough—to decide Abreu’s appeal on the merits.
However, because Abreu is responsible for the emaciated state of the record, she must accept the limitations it imposes upon her. The most fundamental principle of appellate review is that “ ‘A judgment or order of a lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown’ ” by the appealing party. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.) “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Thus, if Abreu makes a factual statement in her brief which cannot be verified from the record, that statement will be ignored. (E.g., Matuz v. Gerardin Corp. (1989) 207 Cal.App.3d 203, 206-207; 9 Witkin, supra, § 328, pp. 369-370.)
In addition, the fact that Abreu is proceeding in propria persona, as she did in the trial court, will not cause us to relax the standard principles of appellate review in her favor. (See Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 129-130 [“ ‘[a] lay person, . . . who exercises the privilege of trying [her] own case must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.’ ”].)
Barber suggests that Abreu’s opening brief is so deficient that we should order it stricken, as permitted by California Rules of Court, rule 14(e)(2) (now renumbered as rule 8.204(e)(2)(B).) We decline to do so because that would only necessitate a delay in deciding this appeal. Instead, as permitted by rule 8.204(e)(2)(C), we choose to disregard the defects in Abreu’s brief. Moreover, we note that Barber’s brief suffers from some of the same deficiencies. (See fn. 3, post.)
Finally, Abreu has attached to her briefs materials that either were not presented at the trial or which were created after the trial concluded. This practice is improper, and the materials will be ignored. (E.g., Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [“documents not before the trial court cannot be included as a part of the record on appeal”]; Matuz v. Gerardin Corp., supra, 207 Cal.App.3d 203, 206-207; 9 Witkin, supra, Appeal, §§ 328, 330, pp. 369-372.)
The reporter’s transcript of the trial conducted on August 11, 2006, supports the following recital of pertinent evidence:
Barber testified that since 1989 she has lived on five acres in Livermore, which she and her former husband purchased in 1962. Abreu owns adjoining property, a lot previously owned by the Cardellis. This dispute is about a portion of the Cardelli-Abreu lot measuring approximately 336 feet by 147 feet. There are two ponds in the disputed area.
Although Abreu testified, in response to questioning by Barber’s counsel, that the size of the disputed area was about 366 feet by 130 feet, the dimensions used on the judgment are “336.11” feet by “147.48” feet. For present purposes, we will use the figures used in the judgment. Abreu apparently raises an issue about this point, which is addressed in part IV, post.
Barber further testified that she had a survey performed in 1988-1989, shortly before she moved in. Up until then, she believed that her property line was a road which crossed the Cardelli parcel, but the survey established that the road was approximately 148 feet into the Cardelli parcel. The road was apparently bounded by a post and barbed wire fence. After 1989, Barber virtually rebuilt the fence; she cut down trees; she had a new road and a new culvert put in (the culvert was to channel water away from the road); and she “started [an] underground water system from the ponds.” Every year after 1989 Barber cleared brush, weeds, and firewood from the area. Commencing in 1994-1995, Barber’s horses had access to, and used, the disputed area; they grazed on it, and—excepting for periods of drought—used the ponds for drinking and bathing. During the past 16 years, Barber’s dogs also used the disputed area; they too drank from the ponds, and they “patrol[led] the grounds.”
Barber further testified that she never received permission from the Cardellis to use their land. In April or May 2005, after Abreu bought the Cardelli property, the fence was cut down. Barber rebuilt the fence, which was again cut down. According to Barber, for almost a year Abreu has been dumping trash (i.e., “kitchen sinks . . . old carpeting,” tire rims, wood paneling, and a wheelbarrow) on the disputed property. After one of the horses “got cut” by this debris, Barber obtained “two restraining orders,” but Abreu “didn’t follow” them.
In her brief, with no supporting citation to the record, Barber states that she obtained a preliminary injunction on October 18, 2005, ordering Abreu from taking certain specified actions of harassment or interference with Barber’s use of the disputed area. As noted in the text, Barber on direct examination simply referred to “two restraining orders.” However, the record does show that when the court announced its ruling it also stated: “There is already a temporary injunction in place, I believe—against Ms. Abreu . . . prohibiting her interference with Ms. Barber’s use of this portion of the property. That will continue and be made a permanent injunction.”
Barber also testified that, almost as soon as she moved in, she started using water from the ponds. She installed about 600 feet of pipes to move water from the ponds to storage tanks on her property. After she moved in, Abreu cut the pipes. Barber also put up “No Trespassing” signs on the fence within a month of Abreu buying the Cardelli property; the signs disappeared thereafter. On several occasions Abreu called Barber names and told her to “get off her property.”
Abreu asked no questions of Barber on cross-examination. Barber then called Abreu to the stand pursuant to Evidence Code section 776. Abreu testified as follows: When she bought the Cardelli property, she had no knowledge that Barber was using part of the Cardelli lot. Abreu acknowledged removing the fence Barber had built because it blocked “access to my property.” According to Abreu, she sent three letters to Barber before cutting down the fence, which Abreu believed belonged to her because “It was on the property I purchased.”
According the Abreu, the Cardellis were “in their nineties” and largely absentee owners.
Abreu further testified that she did not put old carpet in a heap on the disputed property; rather, she “placed strips of carpet . . . over the muddy areas to prevent . . . slippage.” She did put the wheels on the property, but only to hold up signs. Abreu admitted that she did remove Barber’s signs, but she denied causing any damage to the pipes Barber had installed. Abreu also admitted putting the kitchen sink on the disputed property; her explanation was that “it was for my new place . . . we are going to build down there, if I get a chance to.” Lastly, she further testified that did she put old tires on the disputed area, but Barber “threw them over the fence and I put them back . . . . They are tire swings for my child.”
Abreu testified on her own behalf as follows: When she inspected the property before buying it, she observed “no livestock down on the property.” “And for months” after she purchased the Cardelli lot, “there was [sic] no horses, no signs of any livestock being down there.” The Cardellis did not tell Abreu “anything about Ms. Barber’s use of the property.” When, at the suggestion of the broker, Abreu called Barber and asked for a key to the lock on the fence gate, Barber answered “No, I’m not giving you a key and I’m not giving your property back.”
Wade Winblad testified for Abreu as follows: The terrain of the disputed area is so steep and overgrown that horses and other animals “can’t get through there.” He corroborated Abreu that he saw no livestock during the approximately 18 hours he was with Abreu inspecting the property prior to her buying it. Winblad never observed Abreu do anything malicious to Barber. He only observed Barber’s horses on the disputed property after the dispute arose.
After the cause was submitted without argument, the court stated its findings from the bench: “As the law requires that in order to establish the elements for a prescriptive easement . . . the plaintiff must prove by clear and convincing evidence that for a period of five years prior to the filing of the Complaint that the plaintiff had used the defendant’s property, that the use had been open and notorious, that it had been continuous and uninterrupted and that it was hostile to the ownership by the true owner. The Court finds that the plaintiff, Ms. Barber, has established by clear and convincing evidence that for a period greatly in excess of five years prior to the filing of her complaint on August 12, 2005 she had been using the property which formerly belonged to the Cardellis, that her use had been open and notorious, continuous and uninterrupted and hostile to the Cardellis.
“At that point the burden would shift to Ms. Abreu to prove that in some fashion the Cardellis had granted Ms. Barber permission which could then defeat her claim. However, there’s been no evidence whatsoever presented that the Cardellis ever gave Ms. Barber permission to use any portion of their property and, in fact, Ms. Barber testified and such testimony was uncontradicted that the Cardellis never gave her permission. Therefore the Court does find that Ms. Barber has established a prescriptive easement over the portion of the land that Ms. Abreu now has title to but which Ms. Barber had enclosed by a fence and has been using for a period greater than five years.”
The trial court issued a statement of decision, but there is no copy of it in the record. What is in the record is the court’s judgment dated October 10, 2006. The pertinent language of the judgment is as follows: “IT IS ORDERED THAT a prescriptive easement over the property, legally described in Exhibit A hereto (‘the property’), has been established by Plaintiff. Plaintiff is permitted access and use of the property. . . . [¶] IT IS FURTHER ORDERED THAT plaintiff is not to prohibit defendant’s access to the property, and neither party [is] to interfere with one another’s use of the property.” The court also ordered that “all survey fees are to be divided equally,” and that Abreu pay Barber’s costs.
Abreu filed a timely notice of appeal.
DISCUSSION
I
Abreu states in her opening brief that she “is disabled and needed assistance during trial. . . . Without her ‘coach’ and ‘support person,’ Mr. Wade Winblad, mounting of an adequate and fair defense, presenting of evidence and understanding and making timely replies to the plaintiff’s charges was impossible. The plaintiff’s attorney made sure Mr. Winblad was quickly removed from the courtroom by defining him as a ‘witness.’ There was no reason to have Mr. Winblad removed other than to put the defendant at a greater disadvantage. (Rule 989.3) [renumbered as California Rules of Court, rule 1.100] (See attachment A).”
The record shows that when the case was called for trial, and after the parties and counsel stated their appearances for the record, Winblad identified himself as follows: “I’m [a] witness and a business partner with Tracey.” Moments later, counsel for Barber moved to exclude “all . . . nonparty witnesses from the courtroom.” There was no objection to the motion, which the court granted, stating: “Sir, you’ll need to step outside and wait in the witness waiting room now. There [do] not appear to be any other witnesses in the courtroom.” As there was no person other than Mr. Winblad present, we assume the reference was to him. There was no objection from Abreu to the court’s ruling.
During her opening statement, Abreu described how she “proceeded to purchase the property with Wade . . . my witness.” In response to a question by the court, Abreu explained that Winblad was “not on the grant deed” and has no legal interest in the property, “but he helped me financially.” The court’s question was prefaced by the statement, “I just wanted to make sure I haven’t improperly excluded him.” Again, there was nothing resembling an objection by Abreu.
We have emphasized the matter of Abreu’s silence at the time of Winblad’s departure because it implicates what is probably the second most fundamental principle of appellate practice. “ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . [T]he explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ ” (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d 180, 184-185, fn. 1 [citing what is now 9 Witkin, Cal. Procedure, supra, Appeal, § 394, p. 444]; accord People v. Vera (1997) 15 Cal.4th 269, 275-276.) Our Supreme Court has also stated the principle in even blunter form: “[I]t would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.” (People v. Lilienthal (1978) 22 Cal.3d 891, 896.) This is a very accurate description of what happened here.
The motion to exclude made by Barber’s counsel is a standard trial practice, one expressly authorized by Evidence Code section 777. As for Abreu’s supposed disability, all she has to establish that it exists is Attachment B, a “Request For Accommodations By Persons With Disability and Order” she filed with the trial court. In it, Abreu claims that she has “a physical disability from a sever[e] auto accident . . . which makes it difficult to present an adequate defense in the court room.” The accommodation she requested was that the court “allow my coach and support person Wade Owen Winblad to help me present case in court room.”
The “attachment A” mentioned by Abreu is simply an “Application For Waiver of Court Fees and Costs” form she filed in 2005; it makes no mention of any disability.
The Judicial Council form for Abreu’s request has an “Order” portion with boxes for granting or denying the request, and a judicial signature line, but all of these are blank. The reason is immediately apparent—the request was filed February 22, 2007, that is, after the trial had concluded. We therefore shall ignore it. (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d 180, 184, fn. 1.) Thus, there is no basis for presuming that either Barber’s counsel or the trial court even knew of Abreu having any disability. There is consequently absolutely no basis for imputing bad faith—or an intent to take advantage of a condition Abreu did not mention at the trial. This is the perfect example of a situation where “it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.” (People v. Lilienthal, supra, 22 Cal.3d 891, 896, italics added.)
At several points in her brief, Abreu identifies testimony she would have given, or questions she would have asked, but was prevented from doing so “because her ‘coach’ and ‘support person’ was not allowed to be present.” As these arguments are based upon a nonexistent predicate, i.e., that Winblad’s exclusion was improper, they furnish no basis for overturning the judgment.
II
Abreu states in her brief: “The judge COACHED the plaintiff NOT to enter testimony that would defeat her claim. (See page 83 line 12 of the reporter’s transcript). That amounts to three lawyers for the plaintiff against ONE pro-per disabled defendant.” Although expressed with a minimum of detail, this argument amounts to a charge that the trial court was biased in favor of Barber.
Abreu is adding the court to the two attorneys representing Barber.
“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument . . . .” (People v. Stanley (1995) 10 Cal.4th 764, 793.) Abreu’s two-sentence argument would ordinarily come within this proscription and be summarily rejected. Due to the nature of Abreu’s argument, we will address it.
There can be no more serious charge which can be leveled against a judicial officer than bias. On page 83 of the reporter’s transcript, the court is making certain that exhibits were admitted in evidence. Barber’s counsel then, as a “second housekeeping matter,” moved to correct “a clerical error with the spelling of Ms. Abreu’s name.” After Abreu supplied the correct spelling of her name, the motion was granted. Thus, on the page specified by Abreu, there is no mention of Barber, much less testimony by her. The record does show that Barber was not even on the witness stand until page 84, so page 83 obviously does not show the trial court coaching Barber how to testify.
However, the record also shows that after Barber began testifying (in rebuttal, on page 84), the court interjected this comment: “I would highly recommend you follow your counsel’s direction before you say something that may defeat your claim.” Although the court’s comment was possibly imprudent, we cannot hold that by itself it requires a new trial. The court’s comment did not steer Barber to testify, or be silent, about any specific matter. It is more correctly seen as an inartfully-phrased admonition to Barber to listen to her counsel’s question and restrict her answers to no more than required to answer it. Moreover, there was no protest at the time from Abreu, which means the issue was not preserved for review. (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d 180, 184-185, fn. 1; 9 Witkin, Cal. Procedure, supra, Appeal, § 394, p. 444.) Lastly, there is no reasonable likelihood that a single comment, however questionable or well-meant, made towards the end of a bench trial was so inherently prejudicial that it requires reversal. (Cal. Const., art. VI, § 13.)
Abreu also claims that another instance where the court “unfairly aided” Barber is when it required Abreu to “pay the high cost of a land survey.” The court might have ordered Abreu, as the losing party, to pay the entire cost of the survey (e.g., Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 312), but it split the cost between the parties. This hardly qualifies as evidence of bias.
Barber states in her brief that Abreu refused to pay half of the survey’s cost, “thus giving Barber no choice but to pay the entire cost. Barber asks this Court to include this amount in an award of costs.” We decline to do so because it is more appropriate for Barber to apply to the trial court in the first instance for aid in enforcing a provision of the trial court’s judgment.
III
“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. [Citations.] Whether the elements of prescription are established is a question of fact for the trial court [citation], and the findings of the court will not be disturbed where there is substantial evidence to support them.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; see Civ. Code, § 1007; Code Civ. Proc., § 321.)
Abreu contends that the “evidence shows that all four elements of prescriptive easement did not exist.” We construe Abreu’s contention as a challenge to whether the trial court’s finding of the required elements is supported by substantial evidence. So construed, the contention fails.
“ ‘In reviewing the evidence on . . . appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold the [finding] if possible. It is an elementary, but often overlooked principle of law, that when a [finding] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [finding]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’ [Citation.]” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
The testimony of a single witness is sufficient for proof of any fact. (Evid. Code, § 411, In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Thus, if the trial court found that Barber was a credible witness, and it clearly did, that determination is conclusive on this appeal. (E.g., Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1; Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182; Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 998.) The trial court could accept Barber’s testimony as creditable even if it was not entirely consistent; in other words, the court could accept parts of her testimony and reject other parts. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.)
Abreu first contends: “1. Use has to be open and notorious. Defendant has direct knowledge and documentation that the former owner[s] allowed neighbors to use the disputed property and were unaware of any fence on their former property. This testimony was not entered into record because her ‘coach’ and ‘support person’ was not allowed to be present as should have been provided under Rule of Court 989.3. [¶] Also note: ‘Evidence of express permission would have been sufficient alone to defeat plaintiffs’ [sic] claim. However, that does not mean the lack of express permission proves the claim. ‘Where the use of a way by a neighbor is by the express or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right.’ [Citation.]”
It is noteworthy that Abreu does not refer to any actual evidence in the record, but only material she presumably would have introduced had her “coach” Winblad been present. As previously mentioned in part I, ante, we can take no account of material not heard by trial court at the trial. In any event, Barber’s testimony constitutes substantial evidence that her use of the disputed was open and continuous. Moreover, Barber expressly testified that her occupancy was not by permission of the previous owners.
Abreu also misconstrues the applicable legal principle. Continuous use does not require every minute, day-in day-out use by the party claiming a prescriptive easement.
“ ‘A use may be continuous though there are periods of time more or less extended between the specific acts of use. Many easements . . . which are periodical or only occasional in use may be acquired by prescription. The requirement means that there be no break in the essential attitude of mind required for adverse use rather than that the use be constant.’ ” (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432, accord, Masin v. La Marche (1982) 136 Cal.App.3d 687, 694; see Botsford v. Eyraud (1906) 148 Cal. 431, 435 [upholding finding of easement based on evidence “continuously existing intention to retain possession of the property . . . coupled with the fact of possession actually and notoriously withheld from all others”]; Morse v. Miller (1954) 128 Cal.App.2d 237, 248-249 [plaintiff had easement over beach and athletic used only during summer].) Barber’s testimony furnished a sound basis for the trial court concluding that her intent had not altered for the period the court described as “greatly in excess of five years.”
Abreau next contends: “2. Use has to be continuous and uninterrupted. During the time that the defendant owned the disputed property, the integrity of the fence and gate were interrupted for a period that spanned 4 months. This clearly defeats plaintiff’s claim of continuity by not only ONE but TWO words that essentially say the same thing: ‘CONTINUOUS and UNINTERRUPTED’! That is doubly clear and precise. And the period before the Plaintiff owned the disputed property was with the permission of the previous owners.”
This argument could be summarily rejected because Abreu does not discuss all of the evidence pertinent to this issue in her brief. (In re S.C., supra, 138 Cal.App.4th 396, 408, 414-415.) A more fundamental problem with Abreu’s reasoning is that she treats a period when the dividing fence was down as stopping the running of the clock. But the “integrity of the fence and gate” are but a single aspect of Barber’s adverse possession. The downed fence did not halt Barber’s animals occupying the disputed area. It did not halt the flow of water Barber was drawing from the ponds through the pipe system she had installed. And it did not stop Barber from continuing to clear brush and collect firewood from the disputed area. Moreover, as just discussed, the issue is one of intent, and the trial court resolved that issue in Barber’s favor.
Abreu next contends: “3. Hostile to the true owner. Yes, Plaintiff’s use of the disputed property became hostile when the Defendant’s lock was cut off and no key was provided to Defendant. BUT this was for a period less than five years. The period before the Plaintiff owned the disputed property was with the permission of the previous owners.”
This argument verges on the incomprehensible, because Abreu herself testified that when she purchased the Cardelli property the real estate broker advised Abreu that she get a key for the lock on the fence from Barber. The only logical inference from this is that if any lock was “cut off,” it was Barber’s lock, not one belonging to Abreu. In any event, the crucial points are the evidence that Barber’s possession prior to Abreu’s purchase was not permissive, and that the period of Cardelli ownership is to be counted in the five-year period of adverse possession before Barber commenced this action. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1990) 220 Cal.App.3d 1602, 1609 [“Continuity of use is not broken by change of ownership”].)
Finally, Abreu contends: “4. Under claim of right. The plaintiff was well aware of her property boundaries since 1989 when she had a survey done [citation]. This is why she advised Mr. Winblad on [September 5, 2005] that she would provide access through the gate, show Mr. Winblad and the Defendant the survey stakes and she also advised that if we wanted to pump water from the ponds we should hurry before they dry up in the summer. This testimony was not entered into [the] record because her ‘coach’ and ‘support person’ was not allowed to be present as should have been provided under Rule of Court 989.3.”
As with her first point, Abreu does not refer to any actual evidence in the record, but only material she presumably would have introduced had her “coach” been present. As previously mentioned in part I, ante, we will take no account of material not before the trial court. The fact that Barber knew the disputed area was not legally hers from the time she purchased her property only proves that she knew it belonged to someone else. The whole point of adverse possession and prescriptive easements is what the person who has such knowledge thereafter does to establish dominion over land owned by another.
Abreu’s final contention on this point is framed as follows: “The judge did not interpret the plaintiff’s answer correctly as to whether the ponds were being used to get water. The Plaintiff’s use of the ponds to get water has been ABANDONED because plaintiff presently has a well for domestic and equestrian water supply. The plaintiff answered the question correctly: ‘For many, many years, I used the ponds to get water’—‘Used’ as in: ‘in the past’. The judgment should have reflected the fact that the piping was no longer functional and watering was NO LONGER a prescriptive right (see page 32 lines 20 through 22 of the reporters transcript).”
This reasoning attempts to split a linguistic hair. Abreu cannot seize upon the tense of a single statement and use it to discredit the entirety of Barber’s testimony. Her attempt must fall to the principle cited ante, namely, that all conflicts and inferences are drawn in favor of the finding, not to impeach it. (Western States Petroleum Assn.v. Superior Court, supra, 9 Cal.4th 559, 571.) It also runs afoul of the trial court’s powers to judge the credibility of the witness, weigh testimony, and selectively disregard testimony. (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d 51, 67-68; Stafford v. Mach, supra, 64 Cal.App.4th 1174, 1182.) Lastly, there is nothing in the trial record to substantiate Abreu’s statement that Barber “presently has a well for domestic and equestrian water supply.” (Matuz v. Gerardin Corp., supra, 207 Cal.App.3d 203, 206-207.)
With respect to all of the arguments Abreu makes against the findings that Barber established a prescriptive easement, Barber’s testimony is, by itself, sufficient to sustain each of the elements found by the trial court. (Evid. Code, § 411; In re Marriage of Mix, supra, 14 Cal.3d 604, 614.) Moreover, numerous exhibits proffered by Barber, primarily photographs and diagrams, were received in evidence. Because Abreu has not seen fit to bring them before us, we must presume that they too would support the trial court’s decision. (E.g., Ketchum v. Moses, supra, 24 Cal.4th 1122, 1140-1141.) We conclude that the challenged findings of the trial court are supported by substantial evidence.
IV
What we treat as Abreu’s final contention is actually a number of arguments. Initially, Abreu argues that Barber’s attorney “was entrusted to prepare the proposed judgment for signature but it had no mention of the pleaded and historical specific intent of the prescriptive easement: watering and grazing of horses. It made no mention of the Defendant being judged able to use the pond area at all.” In what appears to be a related vein, Abreu also argues that “Evidence clearly showed that plaintiff plead [sic] for a prescriptive easement area that was not even the same shape as the area enclosed by the alleged fence.” Lastly, Abreu claims that the “[g]ranting of this prescriptive easement in the disputed property contains the only available water on the Defendant’s property. Loss of the disputed property will render defendant’s property useless. Case law generally holds that a prescriptive easement may not be granted if doing so would result in depriving the owner of essentially all rights in the property [citations].”
Abreu can base no argument on what Barber did or did not “plead,” because none of the parties’ pleadings are in the record Abreu chose to submit. If Abreu has a problem with the wording of the judgment, she should have brought it to the attention of the trial court in a timely fashion. We have already mentioned that there may be some basis for disputing the size of the area subject to the easement, and that Abreu is subject to a permanent injunction. (See fns. 2, 3, ante.) One of the authorities cited by Abreu in her final argument states the principle that Barber is required to use the easement “ ‘in such a way as to impose as slight a burden as possible’ ” on Abreu and her property (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1307-1308). If Abreu believes that the easement is being misused, or has become economically oppressive, arguments she did not present at trial, she may apply to the trial court to have the judgment amended and/or the injunction modified. (See Code Civ. Proc., § 533; 7 Witkin, Cal. Procedure, supra, Judgment, § 70, p. 599 ¶¶ (4), (5).)
V
Finally, Barber has a contention of her own. She argues that Abreu’s appeal is so lacking in merit that it deserves to be condemned as frivolous, thus entitling Barber to recover the funds expended in responding to it. Barber’s request is not in the form required by the rule 8.276(e) of the California Rules of Court, and is denied on that basis.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.