Opinion
C071657
03-06-2018
DAVID J. DOVICHI et al., Plaintiffs and Appellants, v. JENNIFER E. MCCARTNEY, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34200900032536CLPOGDS)
Appellants David J. and Stephanie L. Dovichi (the Dovichis) appeal from a directed verdict disposing of their malicious prosecution claim against respondent Jennifer McCartney (McCartney). This case arose after an unsuccessful suit by Sharon L. and David J. Bendahan (McCartney's parents), which sought, among other things, a prescriptive easement over a strip of land contained within McCartney's parents' fenced backyard and a side yard, approximately 12 inches wide. The trial court dismissed these claims after it found that McCartney had probable cause to join in pursuing her parents' lawsuit.
We note that, while the action in the trial court involved multiple claims alleging malicious prosecution, the Dovichis' argument on appeal is limited to whether McCartney had probable cause to pursue the prescriptive easement claim brought by McCartney's parents and thus we will limit our discussion to that claim.
The Dovichis argue on appeal that the trial court erred in finding McCartney had probable cause to pursue the prescriptive easement action and granting a directed verdict thereon because (1) a permissive use cannot ripen into a prescriptive easement, (2) the jury's findings establish McCartney's parents' use was permissive, and (3) the trial court erroneously interpreted the jury's findings. Thus, the arguments presented by the Dovichis focus on whether the use by McCartney's parents was adverse.
In reviewing the probable cause determination, this court requested supplemental briefing on (1) whether the residential prescriptive easement sought by McCartney's parents was precluded as a matter of law by the limitation on exclusive use prescriptive easements between neighbors based upon the holding in Harrison v. Welch (2004) 116 Cal.App.4th 1084 (Harrison); (2) if so, whether McCartney could be charged with knowledge of that limitation for purposes of the probable cause inquiry; and (3) whether application of this limitation was forfeited by the Dovichis by their failure to timely raise the issue.
We have reviewed the parties' arguments as well as the record and find that because the prescriptive easement sought by McCartney's parents was unavailable as a matter of law, McCartney did not have probable cause to assist her parents in that cause of action. Accordingly, we reverse the judgment of the trial court specific to the probable cause determination on the prescriptive easement cause of action and remand for further proceedings consistent with this opinion.
FACTS AND PROCEEDINGS
Because we find McCartney's parents' claim for a prescriptive easement was unavailable as a matter of law, thus precluding a finding of probable cause in favor of McCartney's involvement in the underlying suit, we will limit our recitation of the facts and proceedings to those necessary to an understanding of that determination.
The Dovichis and McCartney's parents lived peacefully as neighbors from the time when McCartney's parents moved next to the Dovichis in 1992 and until the summer of 2005. McCartney's parents' backyard was divided from the Dovichis' property by (1) a diagonal fence from another neighbor's house to the Dovichis' garage, (2) the wall of the Dovichis' garage, and (3) a back fence after the Dovichis' garage. It appears these improvements were in place when McCartney's parents purchased the property.
McCartney's parents improved their backyard through installation of patio bricks, beginning in May 2005. In June 2005, this work resulted in a confrontation between McCartney's parents' contractor and Stephanie Dovichi, who asserted the improvements were encroaching on her property. The next day David Dovichi showed David Bendaham and McCartney the property line pipe marker. Relations between the neighbors deteriorated thereafter.
On August 11, 2006, McCartney's parents filed their verified complaint against the Dovichis alleging causes of action for a prescriptive easement, ejectment, quiet title, injunctive relief, declaratory relief, intentional infliction of emotional distress, negligent infliction of emotional distress, elder abuse, and monetary damages (the Prescriptive Easement Suit). The prescriptive easement and related claims alleged McCartney's parents had a right to continue using the disputed property the way it had previously been used and sought relief to keep the Dovichis from acting contrary to that use and right, including a request for the removal of a large terra cotta urn the Dovichis had placed within the disputed area and complaining also of a plan to erect a new fence along the actual property line. The trial court granted summary judgment to the Dovichis finding in pertinent part that the first hostile use of the disputed strip occurred in 2005, thus precluding the real property claims.
Thereafter, the Dovichis brought a malicious prosecution action against McCartney, her parents, and their attorney. The case went to trial, and the jury was instructed in relevant part to answer questions on McCartney's involvement in the Prescriptive Easement Suit, and if necessary to determine 47 discrete special interrogatories pertaining to McCartney's beliefs and knowledge in turn in order to allow the judge to determine whether McCartney had probable cause for involvement in the Prescriptive Easement Suit. The jury found McCartney was involved in the Prescriptive Easement Suit and had acted with malice. The jury also made multiple findings concerning McCartney's knowledge of the facts needed to support the elements for a prescriptive easement, which facts were extensively litigated in the trial court and were the focus of the briefing on appeal. However, none of these findings are relevant to our decision in this appeal. We find the elements of a prescriptive easement and the facts supporting those elements are irrelevant because McCartney's parents sought a type of prescriptive easement that is forbidden by settled law as discussed, post.
Extensive briefing and argument followed in the trial court after the jury's verdict and special findings regarding whether McCartney had probable cause to pursue the Prescriptive Easement Suit. Ultimately, the trial court made extensive findings concerning probable cause for McCartney to have pursued the lawsuit based upon its analysis of the special interrogatory findings which were centered on facts relevant to the actual elements required for a prescriptive easement. In so doing, it rejected the Dovichis' arguments that an adverse factual finding against David Bendahan should be imputed to McCartney and that special interrogatory findings 29 and 31 affirmatively foreclosed McCartney's probable cause for the prescriptive easement action. These probable cause findings were incorporated by reference into the court's directed verdict in McCartney's favor.
The Dovichis moved unsuccessfully for a new trial and/or to vacate the judgment. This appeal followed.
DISCUSSION
I
Probable Cause for the Malicious Prosecution Claim
The parties agree this court should review de novo the trial court's ruling that McCartney had probable cause to be involved in McCartney's parents' action. We concur that de novo review applies because the existence of probable cause is a question of law, and we review the trial court's determinations on questions of law de novo. (Dalrymple v. United Services Auto. Assn. (1995) 40 Cal.App.4th 497, 511 [issue of law reviewed de novo]; see Sheldon Appeal Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875 (Sheldon) [existence of probable cause "is always a matter of law to be determined by the court"].)
In order to prevail on a claim for malicious prosecution, a plaintiff must show that the previous action " '(1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].' " (Sheldon, supra, 47 Cal. 3d at p. 871 [citing Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50].) This is a disfavored action because of its potential chilling effect on those who might otherwise enforce their rights and because of the burden it creates through initialization of a new round of litigation. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 816-817 (Wilson).) The Dovichis only challenge whether McCartney had probable cause as a lay person, and thus, we will focus our review on this question.
In determining probable cause, a court makes an objective determination "whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable." (Sheldon, supra, 47 Cal.3d at p. 878.) All that is required are facts sufficient to support an inference of liability in the first suit. (Puryear v. Golden Bear Ins. Co. (1998) 66 Cal.App.4th 1188, 1197.) This is a lenient standard, equivalent to that for determining the frivolousness of an appeal. (Wilson, supra, 28 Cal.4th at p. 817 [citing In re Marriage of Flaherty (1982) 31 Cal.3d 637].) "Only those actions that' "any reasonable attorney would agree [are] totally and completely without merit" ' may form the basis for a malicious prosecution suit." (Wilson, at p. 817 [citing Sheldon, at p. 885].) If reasonable lawyers may differ concerning whether a suit is indeed meritless, probable cause will exist. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743, fn. 13 [ultimately concluding a grant of a motion for summary judgment for insufficient evidence does not equate with a lack of probable cause]; see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164 ["In our system, litigants have the right to present issues that are arguably correct even if it is extremely unlikely they will win"].)
Thus, we evaluate whether McCartney had probable cause by applying the facts known to her as found by the jury to the law needed to establish the prescriptive easement sought by McCartney's parents. (See Sangster, supra, 68 Cal.App.4th at pp. 164-165.)
To establish the right to a prescriptive easement, a person must show use of property for five years that was "(1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right." (Harrison, supra, 116 Cal.App.4th at p. 1090.)
But, "[A]n exclusive prescriptive easement, 'which as a practical matter completely prohibits the true owner from using his land' [citation], will not be granted in a case . . . involving a garden-variety residential boundary encroachment." (Harrison, supra, 116 Cal.App.4th at p. 1093.) Prohibited easements range from requests to maintain fencing or other structures (ibid.) to the maintenance of landscaping, including lawns. (Id. at pp. 1093-1094.) This is true regardless of whether the other elements for a prescriptive easement are established. (Id. at p. 1094.)
The unavailability as a matter of law of an "exclusive" prescriptive easement was not addressed in the Prescriptive Easement Suit and was not mentioned in the Malicious Prosecution Action until after the jury trial of disputed issues. The issue arose for the first time in the Dovichis' brief on the issue of probable cause. Nor was the rule addressed in the trial court's finding of probable cause.
In McCartney's response to our request for supplemental briefing, she argues the parties' failure to litigate the exclusivity issue in the malicious prosecution action has resulted in an appellate record that is not sufficient for a determination of the applicability of Harrison.
McCartney also argues, even if Harrison applied, that relief in the form of an equitable easement may have been available. But, given the manner in which this case was litigated in the trial court and has been pursued here on appeal, and especially the development of evidence relating to the relative hardships on the parties of affirming an "easement" (see Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749) the issue of equitable relief at this late stage of the proceedings is water under the bridge.
Further, we have seen no authority that would allow us to ignore a dispositive rule of law that prohibits the very easement McCartney's parents sought simply because the parties did not address that issue in the lower court. It is the job of this court to determine whether no reasonable attorney would have found merit in the suit seeking a prescriptive easement where the settled law recognized that, in similar circumstances, no such easement could be granted in boundary disputes between residential neighbors. (See, e.g., Harrison, 116 Cal.App.4th at p. 1094 [shed and landscaping]; Raab v. Casper (1975) 51 Cal.App.3d 866, 877 (Raab) [yard, shrubs, fence, and landscaping]; Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564 [1,600 square feet of fenced backyard]; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1300-1306 (Mincer) [10-foot strip of fenced area].)
Here, McCartney's parents' verified complaint provides the record needed to decide the issue and shows their assertion of a prescriptive easement over the Dovichis' property that included a right to maintain two fences, a lawn, landscaping, and other plants including an orange tree at least for as long as they owned the property. McCartney's parents also sought the removal of a large terra cotta pot placed by the Dovichis on the disputed property. This is precisely the kind of easement that has been previously rejected as unavailable because it would give McCartney's parents unfettered possession of the Dovichis' property under the guise of allowing them to "use" it for their yard, that is, essentially, a fee interest in the disputed land. (See Harrison, supra, 116 Cal.App.4th at pp. 1092, 1094; Mincer, 46 Cal.App.4th at pp. 1305-06 [distinguishing occupancy/possession and use]; Raab, 51 Cal.App.3d at p. 877.) In so finding, we disagree with McCartney's argument that a jury determination regarding "exclusivity" of the prescriptive easement is required.
McCartney has not taken the opportunity afforded her to argue her parents' suit presented either: a unique issue not " ' " ' " 'indisputably' without merit" ' " ' ", facts not easily analyzed under existing law, or " ' " 'reasoned "argument for the extension, modification, or reversal of existing law." ' " ' " (See Franklin Mint Co. v. Manatt, Phelps & Phillips (2010) 184 Cal.App.4th 313, 345 [citing Sheldon, supra, 47 Cal.3d at pp. 885-886 and Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1081].) Because we find the type of easement sought by McCartney's parents was unavailable as a matter of law on a straightforward application of facts, McCartney necessarily lacked probable cause for involvement in the Prescriptive Easement Suit seeking that easement. (See Franklin, at pp. 345-346; Mincer, supra, 46 Cal.App.4th at p. 1308 [noting the "long-standing" nature of the easement rule].)
Nor has McCartney provided authority showing that her knowledge of facts should be weighed against her understanding of the law as a layperson prior to the institution of the suit, as contrasted with the law as it actually existed, which foreclosed McCartney's parents' claim and thus leaving McCartney without probable cause to participate in the manner that she did in the action. (See Sangster, supra, 68 Cal.App.4th at pp. 164-165 [analyzing the probable cause of a lay person without drawing any distinction, noting "A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him"].)
II
The Remaining Contentions
Because we find McCartney lacked probable cause for her involvement in a suit seeking an easement that was unavailable as a matter of law, we need not address the remaining contentions on appeal.
DISPOSITION
We reverse the judgment only to the extent that the trial court found that McCartney had probable cause to pursue the prescriptive easement cause of action and remand for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed. Appellants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.891, subd. (a).)
HULL, J. We concur: RAYE, P. J. DUARTE, J.