Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC354136, Elizabeth A. Grimes, Judge.
Charles G. Kinney for Plaintiff and Appellant Kimberly Kempton.
Charles G. Kinney, in pro per, for Plaintiff and Appellant Charles G. Kinney.
Plotkin Marutani & Kaufman, Jay J. Plotkin, Nancy O. Marutani; Hosp, Gilbert, Bergsten & Phillips, Monte D. Richard; Borton Petrini and Matthew J. Trostler for Defendant and Respondent.
Judge of the Los Angeles County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Plaintiffs Kimberly Kempton and Charles Kinney appeal from a judgment entered in favor of defendant Carolyn Cooper after a jury trial on their claims for nuisance and trespass, and a court trial on their equitable claims to quiet title to a disputed strip of land that is approximately 46 square feet. Cooper has moved for sanctions on the ground that plaintiffs’ appeal is frivolous. We affirm the judgment in favor of Cooper, but deny her motion for sanctions on appeal.
BACKGROUND
I. Facts
In 1985, Cooper purchased the property located at 3531 Fernwood Avenue in the Silverlake neighborhood of Los Angeles. In 1991, Michelle Clark purchased the next-door property at 3525 Fernwood Avenue. A chain link fence, which ran north-south, separated the two properties. The same year Clark purchased the property, Cooper approached her about replacing the chain link fence with a wall, consisting of cedar wood on the top and concrete on the bottom. Clark consented, and Cooper incurred the entire cost of removing the chain link fence and installing the wall, which was approximately $10,000. Neither Cooper nor Clark obtained a survey to determine the legal boundary between the two properties before Cooper installed the wall. Sometime later, Cooper spent $2,000 repainting the wall on both sides.
The property is actually owned by the 2004 Carolyn E. Cooper Revocable Trust dated March 17, 2004. Cooper is the trustee. For ease of reference, we refer to both as Cooper.
In 2004, Cooper, with Clark’s permission, replaced the cedar wood portion of the wall with redwood. She also constructed terraces, planters, and a patio cover in her backyard, all of which were anchored to the wall in some fashion. The cost of these improvements was approximately $22,000.
Sometime in 2005, plaintiffs contemplated purchasing the 3525 Fernwood Avenue property from Clark. Before plaintiffs purchased the property, Kinney (who has experience surveying land), measured the lot and formed the opinion that the wall possibly encroached on Clark’s lot. Clark informed plaintiffs that she had given Cooper permission to build the wall at its location and that Cooper had constructed the wall without a survey. Plaintiffs went ahead and purchased the property from Clark in October 2005.
On June 1, 2006, plaintiffs commissioned a survey of their property to determine the location of the legal boundary between the properties. As part of the survey, the surveyors left a number of wooden stakes throughout plaintiffs’ property. Plaintiffs’ survey showed that the front end of the wall extended approximately 17 inches onto their property. The extension tapers as the wall proceeds toward the back of both properties, and extends two inches into Cooper’s property at the wall’s back end. The 17-inch extension onto plaintiffs’ property resulted in a disputed area of 46 square feet.
The parties disagree about the extent to which the wall’s “foundation slag” extends onto plaintiffs’ property. That dispute, however, is immaterial to our legal analysis.
On or around the time plaintiffs commissioned the survey, Cooper noticed two wooden stakes in her front yard. Cooper, who had never commissioned a survey and was unfamiliar with what survey equipment looked like, did not know why the stakes were in her front yard, and went to plaintiffs’ home to see if they knew. Plaintiffs did not answer the door. One of Cooper’s other neighbors suggested that the stakes possibly belonged to the Department of Water and Power (DWP) or the City of Los Angeles (the City), since they were located near Cooper’s water meter. Cooper removed the stakes and left them on the ground thinking DWP or the City would pick them up later. After a few days, Cooper threw away the stakes.
On June 16, 2006, plaintiffs sent Cooper a letter requesting that Cooper: (1) remove the wall because it encroached on plaintiffs’ property; (2) remove a fence Cooper had constructed and some trees she had planted at the rear of her property; and (3) replace the survey stakes she had removed. According to an expert retained by plaintiffs, it would cost approximately $40,000 to remove the wall and rebuild it within Cooper’s property line as determined by plaintiffs’ survey.
The rear of Cooper’s property abuts Cedar Lodge Terrace, an upside down u-shaped street that jogs along Fernwood Avenue. To remain consistent with the parties, we will refer to the fence and trees located at the rear of Cooper’s property as the “CLT fence.” Unlike the wall, plaintiffs do not claim the CLT fence encroaches on their property. Instead, plaintiffs claim the CLT fence blocks their view as they exit their garage onto Cedar Lodge Terrace.
II. Procedural History
On June 19, 2006, plaintiffs sued Cooper and alleged the following: (1) the wall encroached on their property; (2) the CLT fence was a nuisance because it created a hazard to the public and a visual impediment as plaintiffs exited their garage; and (3) Cooper committed trespass when she removed the wooden stakes, which were located on plaintiffs’ property. Plaintiffs sought to quiet title over the disputed strip of land near the wall, an injunction requiring Cooper to remove the wall and CLT fence, an order allowing plaintiffs to enter Cooper’s property to remove the wall and CLT fence, and damages related to all causes of actions. Plaintiffs filed an amended complaint in August 2006, which recited almost verbatim the allegations in their original complaint.
Plaintiffs also alleged that Cooper committed trespass when she removed rebar which was also on their property. Plaintiffs concede, however, that Cooper’s removal of the wooden stakes is the sole basis for their trespass claim.
The term “disputed strip of land” comes from the trial court’s statement of decision and describes the 46 square feet claimed by both parties as their own property. We use the same term to remain consistent with the proceedings below.
In December 2006, Cooper filed a cross-complaint against plaintiffs seeking to quiet title to the disputed strip of land, or in the alternative, a judicial declaration that she held an easement or other equitable interest across the disputed strip of land. In March 2007, plaintiffs filed a cross-complaint against Cooper and Clark. They sought equitable relief from Cooper, specifically a declaration that they had an equitable right to remove the wall. They sought damages from Clark, alleging that she failed to convey marketable title. The trial court sustained a demurrer in favor of Clark, which this division affirmed in an unpublished decision. (Kempton et al., v. Clark (June 30, 2008, B200893) [nonpub. opn.].)
In a separate action, plaintiffs sued the City seeking monetary damages and an injunction requiring the City to bring proceedings to force Cooper to remove the CLT fence. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344.) In that complaint, plaintiffs alleged that the rear fence diminished their sightlines when they entered and exited their garage and prevented pedestrian access along Cedar Lodge Terrace, both of which caused plaintiffs emotional distress. (Id. at p. 1347.) The trial court granted the City’s motion for judgment on the pleadings, ruling that the plaintiffs failed to allege an actual injury. Division Four of the Second District reversed the judgment in favor of the City, holding that the allegations of plaintiffs’ complaint sufficiently alleged a cause of action for public nuisance. The Court of Appeal was careful to note that although it accepted plaintiffs’ “allegations as true for purposes of this appeal, nothing in this opinion should be construed as proof of fact for purposes of later proceedings.” (Id. at p. 1347, fn. 1.)
In July 2007, the matter proceeded to a jury trial on plaintiffs’ causes of action on trespass, public nuisance, and private nuisance. The jury found the following: on the trespass claim, Cooper’s conduct was not a substantial factor in causing plaintiffs’ harm; on the public nuisance claim, Cooper did not create a condition that unlawfully obstructed the free passage or use of a public street; and on the private nuisance claim, plaintiffs did not own the property on which they claimed the nuisance existed.
Also, in July 2007, there was a court trial for plaintiffs’ equitable claims seeking to quiet title over the disputed strip of land and to remove the wall and CLT fence, and Cooper’s equitable claims seeking to quiet title over the disputed strip of land and to keep the wall and CLT fence in place. On August 7, 2007, the trial court issued a statement of decision in which it ruled that Cooper owned the disputed strip of land under the “agreed boundary” doctrine and quieted title to the disputed strip of land in Cooper’s favor. In the alternative, the trial court ruled that: (1) Cooper possessed an express prescriptive easement for her exclusive use and enjoyment of the disputed strip of land and the wall; (2) Cooper had an irrevocable license to use the disputed strip of land and to maintain the wall; and (3) Cooper had an equitable easement to preserve the wall and use the disputed strip of land.
On October 22, 2007, the trial court held a hearing on the issue of whether the final judgment should include a metes-and-bounds description of the disputed strip of land to which the trial court had quieted title in Cooper’s favor. Cooper requested a brief evidentiary hearing to present evidence in support of such a description. Plaintiffs objected, arguing that Cooper should have presented such evidence during the trial pursuant to Code of Civil Procedure section 761.020. The trial court ruled that plaintiffs waived their objection by failing to raise section 761.020 at trial. The parties decided that the hearing on the metes-and-bounds description would take place in mid-December in order to provide the parties with adequate time to review their respective surveys.
Code of Civil Procedure section 761.020 provides that in an action to quiet title, the complaint “shall include all of the following: [¶] (a) A description of the property that is the subject of action.... In the case of real property, the description shall include both its legal description and its street address or common designation.” All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
On March 7, 2008, the parties reconvened for the hearing on the disputed area’s metes-and-bounds description. The trial court expressed uncertainty as to whether it had the discretion to accept evidence relating to the disputed area’s metes-and-bounds after the close of trial. It ordered the parties to submit briefing on the issue. The parties agreed to reconvene again in mid April.
There is nothing in the record that explains why the parties reconvened in March 2008, and not December 2007 as originally planned.
The trial court presumably concluded that it had the discretion to admit evidence on the metes-and-bounds of the disputed area because on May 9, 2008, the parties did exactly that. After experts for both sides testified, Cooper moved to amend her cross-complaint to include a metes-and-bounds description of the disputed strip of land consistent with the survey she performed. The trial court granted the motion.
There is nothing in the record that explains when or why the court arrived at this conclusion.
On the same day, the trial court issued its final judgment granting Cooper title to the disputed strip of land and enjoining plaintiffs from interfering with Cooper’s use and enjoyment of the disputed area of land and her maintenance and repair of the wall. Additionally, the trial court concluded that Cooper owned the land upon which the CLT fence was located, subject to an easement by the City and that she did not have to reconfigure the fence unless requested by the City. Plaintiffs timely appealed from the final judgment.
DISCUSSION
I. Validity of Judgment
Before turning to the merits of the underlying judgment, we consider plaintiffs’ argument that they are entitled to a new trial because the underlying judgment was void, having been issued more than 90 days after the matter was originally submitted.
“Under well-settled principles, a trial court may set aside an order of submission and permit the introduction of additional evidence relevant to a pending issue of fact [citations], either upon request or upon its own motion [citations]; and in some instances it is error to refuse to do so [citations].” (Alvak Enterprises v. Phillips (1959) 167 Cal.App.2d 69, 74.) Here, the trial court issued a statement of decision less than three weeks after the matter was submitted on the equitable issues. The delay in issuing the final judgment arose because the parties had a genuine dispute about whether the judgment should include a metes-and-bounds description of the disputed strip of land and trial court provided them with time to brief the issue and obtain the necessary surveys.
The authorities cited by plaintiffs are inapposite because they relate to the issue of whether a judge may receive a salary while a matter remains pending and undetermined after it has been submitted for his or her decision. (Cal. Const., art. VI, § 19; Gov. Code, § 68210; and Hassanally v. Firestone (1996) 51 Cal.App.4th 1241, 1244-1246.)
For these reasons, we conclude the judgment is not void and that plaintiffs are not entitled to a new trial on this basis.
II. Agreed Boundary Doctrine
Plaintiffs challenge the trial court’s judgment granting Cooper title to the disputed strip of land.
“The agreed-boundary doctrine constitutes a firmly established exception to the general rule that accords determinative legal effect to the description of land contained in a deed.” (Bryant v. Blevins (1994) 9 Cal.4th 47, 54 (Bryant).) The basis for the doctrine is that when owners, who are “‘uncertain of the true position of the [common boundary described in their respective deeds],’” nonetheless “‘agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed’,” the agreed boundary “‘becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements....’” (Id. at p. 54 quoting Young v. Blakeman (1908) 153 Cal. 477, 481 (Young).) “‘The object of the rule is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable....’” (Ibid.) “[T]he line agreed on and acquiesced in as required by this rule... is binding on and applicable to all parties to the agreement and their successors by subsequent deeds.’” (Id. at pp. 54-55.)
“‘The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. [Citations.] The doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.’” (Bryant, supra, 9 Cal.4th at p. 55.)
Plaintiffs do not contend that substantial evidence does not support each element. Instead, Plaintiffs argue that the doctrine of agreed boundary applies only in situations where a survey is unable to identify the true boundary between two properties. Because a survey could have determined the true boundary between Cooper and Clark’s properties when she constructed the wall, plaintiffs maintain the agreed boundary doctrine is inapplicable. This argument has been squarely rejected by the Supreme Court and lower courts. (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707-708 [“It is not required that the true location be absolutely unascertainable; Silva v. Azevedo (1918) 178 Cal. 495, 498 [rejecting the argument that “since the true location of the line could always have been determined by a correct measurement,” the agreed boundary doctrine is inapplicable]; Kraus v. Griswold (1965) 232 Cal.App.2d 698, 705 [same]; Aborigine Lumber Co. v. Hyman (1966) 245 Cal.App.2d 938, 942 [same].)
Plaintiffs neither cite nor attempt to distinguish the foregoing cases. Rather, plaintiffs cite to Berry v. Sbragia (1978) 76 Cal.App.3d 876 (Berry), a case which is inapposite. In Berry, the defendants constructed a wooden fence within what they believed was their property without consulting with the owners of the property adjacent to the fence. Six years later, the plaintiffs acquired the property adjacent to the fence and discovered through a survey that the fence was located on their property. The plaintiffs sought an injunction compelling the defendants to remove the fence. The trial court concluded that the defendants had a prescriptive easement to the fence and over the fenced property that was on the plaintiffs’ side, but that plaintiffs retained title to the disputed land. (Id. at p. 879.) The Court of Appeal reversed, holding that substantial evidence did not support the finding of a hostile use under a claim of right, which was an element of a prescriptive easement. (Id. at p. 880.)
Because we conclude the trial court properly entered judgment in favor of Cooper and against plaintiffs in their respective claims to quiet title over the disputed strip of land based on the agreed boundary doctrine, we need not reach the issues of whether Cooper had an express prescriptive easement, an irrevocable license, or an equitable easement to maintain the wall and use the disputed strip of land.
In addition to the arguments that Cooper does not have an express prescriptive easement, an irrevocable license, or an equitable easement to maintain the wall and use the disputed strip of land, plaintiffs also have an argument entitled “The fence is not a driveway, building, canal or street.” As we understand the argument, the wall is a removable encumbrance (unlike the foregoing permanent structures) that burdens plaintiffs’ land because it encroaches on plaintiffs’ land. Because we conclude that the wall does not encroach on plaintiffs’ land and in fact represents the line between the two properties based on the agreed boundary doctrine, we decline to address this argument as well.
III. Description of the Disputed Area
Plaintiffs contend that they are entitled to a new trial on Cooper’s cross-complaint to quiet title because Cooper failed to include a metes-and-bounds description of the disputed strip of land in her cross-complaint and failed to present one at trial. In support of their argument, plaintiffs cite section 761.020, which provides that in an action to quiet title, the complaint “shall include all of the following: (a) a description of the property that is the subject of action.... In the case of real property, the description shall include both its legal description and its street address or common designation.”
Generally, the “‘legal description’” of real property refers to the land at issue “‘by reference to a recorded map.’” (Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1397, fn. 6, citing 5 Miller & Starr, Cal. Real Estate (5th ed.2000) § 11:135.) In contrast, a “‘metes and bounds description gives the boundary lines of the property with their terminal points and angles’” and “‘is any description other than by reference to particular lots and parcels on a recorded subdivision map.’” (People ex rel. Brown v. Tehama County Bd. of Supervisors (2007) 149 Cal.App.4th 422, 436, fn. 11.) Plaintiffs fail to cite to any authority (and our research reveals no authority) to support their claim that a “legal description” of real property as used by section 761.020 must include a metes-and-bounds description in order to comply with that provision.
Here, Cooper described the property over which she sought to quiet title in her cross-complaint as follows: “[T]he westerly portion of the Clark Property,” “more particularly described as Lot 116 of Tract No. 5720 as per map recorded in Book 98, Pages 19-29 inclusive of Maps, in the office of the Los Angeles County Recorder.” In our view, this was a sufficient “legal description” of the property as required by section 761.020.
IV. Nuisance and Trespass Claims
Plaintiffs contend the “jury was clearly confused” because it concluded that the CLT fence was not a public nuisance per se “contrary the public nuisance per se finding in Kempton v. City of Los Angeles.” Likewise, citing Kempton v. City of Los Angeles, supra, 165 Cal.App.4th at pages 1348-1349, plaintiffs maintain the trial court should have ordered Cooper to remove the CLT fence because its location on Cedar Lodge Terrace constituted a public nuisance.
As we previously explained, the Court of Appeal in that case reversed the trial court’s order granting the City’s motion for judgment on the pleadings. The court held that the plaintiffs’ allegations sufficiently alleged an injury, but specifically noted that although it accepted plaintiffs’ “allegations as true for purposes of this appeal, nothing in this opinion should be construed as proof of fact for purposes of later proceedings.” (Kempton v. City of Los Angeles, supra, 165 Cal.App.4th at p. 1347, fn. 1.) The Court of Appeal did not conclude that the CLT fence was a public nuisance. Thus, we summarily reject plaintiffs’ argument seeking reversal of the nuisance verdict.
At trial, two representatives from the City of Los Angeles testified that the City examined the CLT fence, held a hearing about its location and configuration, and decided some time ago not to take any action against Cooper because the fence was consistent with surrounding neighborhood and did not interfere with the public right of way. Plaintiffs’ litigation against the City appears to be ongoing. (Kempton et. al, v. City of Los Angeles, Superior Court No. BC363837.)
On the trespass verdict, plaintiffs argue the jury’s finding that plaintiffs did not suffer damages as a result of Cooper’s removal of the wooden stakes is not supported by the evidence. According to plaintiffs, they suffered “at least nominal damages.” Plaintiffs, however, cite to nothing in the record that supports their claim of nominal damages. Cooper replaced the stakes after she removed them, and the jury was entitled to infer from this evidence that plaintiffs suffered no damages as a result of the stakes’ temporary removal. Although a jury may award nominal damages in an action for trespass, they are not required to do so when a plaintiff suffers no harm whatsoever. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [“It is true that an action for trespass will support an award of nominal damages where actual damages are not shown. [Citation.] However, nominal damages need not be awarded where no actual loss has occurred”].)
V. Costs
Plaintiffs challenge the trial court’s post-judgment order denying their motion to strike costs requested by Cooper. This post-judgment order is the subject of a separate appeal filed by plaintiffs (Kempton et al., v. Cooper (B200893), notice of appeal filed August 14, 2008.) Therefore, we decline to address the challenge in this present appeal.
VI. Motion for Sanctions and Request for Judicial Notice
We deny Cooper’s motion for sanctions on appeal. While we may award sanctions when the appeal is either objectively frivolous or has been pursued for an improper motive, such as delay (Code Civ. Proc., § 907; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654), we must also bear in mind that “sanctions should be ‘used most sparingly to deter only the most egregious conduct’ (Flaherty, supra, 31 Cal.3d at p. 651), and [the fact] that an appeal lacks merit does not, alone, establish it is frivolous.” (In re Marriage of Gong and Kwong (2008) 163 Cal.App.4th 510, 518.) In our view, plaintiffs’ appeal lacks merit, but does not meet the standard for sanctions.
We grant Cooper’s request for judicial notice of an order issued by the Second Appellate District, but note that the document has no bearing on our analysis in this case.
DISPOSITION
The judgment is affirmed, and the motion for sanctions on appeal is denied. Cooper shall recover her costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.