Opinion
NOT TO BE PUBLISHED
APPEAL and CROSS-APPEAL from a judgment of the Los Angeles County Super. Ct. No. EC 036709 Superior Court, Michael S. Mink, Judge.
Maria Mejia, in pro. per., for Plaintiff and Appellant.
Law Offices of L. Douglas Brown and L. Douglas Brown, for Defendant and Appellant.
COOPER, P. J.
SUMMARY
In this dispute between the owners of contiguous parcels of real property, both sides appeal from the judgment entered following a trial on claims and cross-claims for quiet title, adverse possession, prescriptive and equitable easements, and trespass.
Plaintiff and appellant Maria Mejia contends that a reversal and new trial are required due to the trial court’s:
· Lack of objectivity.
· Failure to address counsel’s adversarial posture.
· Improper exclusion of material evidence.
· Erroneous denial of equitable easements.
· Failure to order removal of a fence.
· Failure to adopt an accurate legal description of easement.
· Improperly granting her counsel’s posttrial withdrawal request.
· Failure to apportion costs.
Meija also contends she has been denied an accurate appellate record. We find merit only in Mejia’s contention that the trial court adopted an erroneous legal description of an area over which she was granted a prescriptive easement for access.
By its cross-appeal, California Home Development (CHD) contends the evidence fails to support the jury’s award of a prescriptive easement to Mejia for ingress and egress over an area of CHD’s property in that no evidence indicates Mejia used the area for access purposes. CHD also contends the award of a prescriptive easement for access over another portion of its property was erroneous because Mejia’s exclusive use of that property constitutes a prohibited exclusive prescriptive easement. We agree with the former contention, but not the latter.
FACTUAL AND PROCEDURAL BACKGROUND
CHD acquired a 17-acre undeveloped parcel of property located at 9945 Wheatland Avenue in Los Angeles in 1999 (CHD property). Since 1994, Mejia owned and occupied an adjacent parcel at 9951 Wheatland Avenue (Mejia property), on which a single family residence is situated.
Mejia became sole owner of the property in 2000.
CHD sued Mejia to quiet title to portions of CHD’s parcel of property and to eject Mejia from using those portions (disputed property). CHD alleged that Mejia’s uses encroach on its property. Those uses include a paved driveway that crosses the CHD property and provides street access to Mejia’s property; areas Mejia has landscaped, watered and cleared brush for fire prevention; areas where Mejia and her guests park their vehicles; and an abandoned chicken coop and deck of an empty above-ground swimming pool that straddle the property boundaries. CHD claimed that, more than five years before it filed the quiet title action, Mejia’s predecessor-in-interest extended and paved a donut-shaped driveway that leads to Mejia’s front door and encroaches on approximately 3,000 square feet of CHD’s property. No permission or consent was sought or obtained for the encroachment. Since the driveway’s extension, CHD claimed that Mejia and her predecessors-in-interest exclusively used the driveway for access to their property, Mejia aggressively excluded CHD from using the driveway, and the driveway prevented CHD from using that portion of its property for any other purpose.
At various points as the driveway proceeds from the street up the hill to Mejia’s home, it traverses Mejia’s property and encroaches on CHD’s property.
Mejia’s cross-complaint alleged she owns or uses the disputed property by virtue of adverse possession or prescriptive easements. She also claimed CHD interfered with an express driveway easement over its property that provides the only access to Mejia’s property from Wheatland Avenue. The validity and enforceability of the express easement is not in dispute.
When this action was filed, Mejia was represented by partner Gregg Martin of the law firm of Hamburg, Karic, Edwards and Martin (Hamburg firm), and by law firm associate David Almaraz. Trial was initially scheduled for April 26, 2004. On March 23, 2004, Mejia’s attorneys filed an ex-parte application to shorten the time to hear the firm’s motion to be relieved as counsel. The court determined the request was made too close to the trial date and denied the application. The trial was then continued several times for various reasons, including the parties’ participation in a settlement conference and Martin’s scheduling conflicts, and was ultimately rescheduled for August 3, 2004. On August 3, 2004, Martin advised the court he was not able to serve as trial counsel because he was engaged in trial on another matter and had other trial commitments and vacation plans through mid-October 2004. He also told the court that his continuing representation of Mejia was unwise due to a breakdown in their professional relationship. Martin assured the court that his associate, Almaraz, was available, prepared and competent to represent Mejia at trial. Mejia objected to Martin’s withdrawal request and asked the court to order Martin to continue to represent her, or alternatively to grant a continuance to permit her to conduct additional discovery and obtain experienced counsel. Her request was denied, and trial proceeded with Almaraz representing Mejia.
Trial was conducted on CHD’s quiet title and ejectment claims, and Mejia’s cross-claims for quiet title and damages for trespass and emotional distress. Mejia claimed ownership of the disputed property based on adverse possession. Alternatively, she claimed she was entitled to use the disputed property based on a prescriptive or equitable easement.
For ease of reference and determination, CHD’s attorney wrote numbers on Exhibit 1064 to correspond to each area of property in dispute. The areas, numbered 1 to 9, refer to (1) an unpaved area west of and adjacent to the driveway, (2) the encroaching portion of the paved driveway, (3) a landscaped area east and inside of the donut over which a portion of Mejia’s pool deck is built, (4) landscaping, (5) landscaping and brush clearance, (6) landscaping and brush clearance, (7) an abandoned chicken coop, (8) landscaping and brush clearance, and (9) an unpaved area adjacent to an express easement at the base of the driveway. Only the determinations as to Areas 2 and 3 are at issue.
A jury was impaneled to determine the legal issues and serve as an advisory jury on the equitable claims. Following the presentation of evidence, nonsuit was granted in favor of CHD on Mejia’s adverse possession claim due to her failure to produce evidence she paid property taxes on the disputed property. Nonsuit was also granted against Mejia’s claims for a prescriptive easement over CHD’s property, except for a prescriptive easement for access, vehicle parking and brush clearance. By special verdict, the jury found Mejia’s prescriptive easement was limited to ingress and egress and to Areas 2 and 3 of the disputed property. After posttrial briefing, the trial court concluded that Mejia failed to demonstrate an entitlement to further relief. Over Mejia’s objection, the Hamburg firm’s subsequent request to be relieved as counsel was granted. Mejia appeals from the judgment and order permitting her attorneys to withdraw, and CHD cross-appeals from the judgment.
DISCUSSION
A. MEJIA’S APPEAL
Mejia raises nine primary contentions of error, which are addressed in turn.
1. Lack of trial court objectivity.
Mejia asserts the trial court lacked the requisite objectivity as evidenced by its (1) failure to disclose a court reporter’s conflict of interest, (2) pro-development bias, (3) prejudice and animosity against Mejia based on the parties’ failure to settle, (4) refusal to admonish Mejia’s counsel for comments made about Mejia and to reopen discovery or continue the trial, and (5) sustaining sua sponte evidentiary objections against Mejia and erroneous and prejudicial evidentiary rulings. In our view, Mejia fails to demonstrate any actual or apparent judicial impropriety.
a. Court reporter’s conflict of interest.
Mejia insists the trial court failed to disclose that its former court reporter, Carrie Garcin, had a conflict of interest. Garcin owns or owned a home on a lot adjacent to CHD’s property, which the court allegedly knew about but failed to disclose until after jury deliberations began. At that time, it mentioned that its “former court reporter lived next to [CHD’s] property in the ‘house with the pool.’ ” Relying on this remark, Mejia concludes, “It is apparent . . . that the trial judge and Ms. Garcin inappropriately discussed the instant matter off the record.” In the absence of a “record of these conversations, there is no way to gauge how much was discussed, nor what prejudicial information may have been imparted” by the reporter. In addition, the court purportedly violated the Canon of Judicial Ethics prohibiting it from “independently investigat[ing] facts in a case.” (Advisory Com. Com., Cal. Code of Jud. Ethics, canon 3B(7)(e).) Further, CHD’s principal, Patrick Wizmann, allegedly was aware of the reporter’s conflict of interest, owed an independent duty of candor to Mejia and the court, and was required to disclose the conflict at trial.
Mejia assumes Garcin’s statements prejudiced her because Mejia is involved in other litigation with CHD and the City of Los Angeles over CHD’s plans to develop its property. This inference is based on Mejia’s further unsubstantiated inference that Garcin necessarily favors development because she owns a home in the area which she had listed for sale, and development would increase its value.
Mejia is incorrect. First, her assumptions, inferences and contentions are speculative. No evidence reveals any discussion between the trial court and Garcin or between her and Wizmann or his attorney, and no evidence indicates when the court actually learned where Garcin resided. Second, the sparse evidence that mentions Garcin indicates she was the reporter in four limited pretrial proceedings in this case. Third, nothing shows how the failure to disclose Garcin’s alleged conflict of interest infected the jury’s verdict or court’s findings on any legal or equitable issue.
Mejia’s reliance on declarations filed in support of a motion for production of additional evidence on appeal is improper, as that material is not part of the appellate record. (Cal. Rules of Court, rule 8.204(a)(2)(C).) However, to expedite resolution of the appeal, we exercise our discretion to disregard noncompliance with the Rules of Court (Cal. Rules of Court, rule 8.204(e)(2)(C)), and grant Mejia’s motion for production of additional evidence on appeal. Mejia’s request for judicial notice is denied.
b. Animosity and pro-development bias.
Mejia contends the trial court’s bias and lack of impartiality infected the jury. A court engages in misconduct if it makes persistent disparaging or discourteous comments about a party, lawyer or witnesses, conveying the impression they are not trustworthy or the case lacks merit. (People v. Fudge (1994) 7 Cal.4th 1075, 1107 (Fudge).) The conduct is viewed under an objective standard to determine whether a reasonable person would entertain doubts about the court’s impartiality. (Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another ground by Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349.) Judicial bias or prejudice consists of a mental attitude or disposition regarding a party. When reviewing a claim of bias, “ ‘the litigants’ necessarily partisan views should not provide the applicable frame of reference. [Citations.]’ ” (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724 (Roitz).) Bias and prejudice must be clearly established. “Neither strained relations between a judge and an attorney for a party nor ‘[e]xpressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are . . . evidence of bias or prejudice. [Citation.]’ ” (Ibid.) The appellant has the burden of establishing facts supporting a claim of judicial bias (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926), and showing prejudice. (See Fudge, supra, 7 Cal.4th at p. 1109.)
Mejia implies the judgment is tainted by the trial court’s pro-development bias and animosity against her because the case had not settled. Her bias claim is based on two factors: erroneous evidentiary and other rulings, and the court’s statements in and out of the jury’s presence that Mejia’s continuance requests delayed CHD from proceeding with its planned housing development project.
A claim of bias cannot be founded on legally correct rulings. (Roitz, supra, 62 Cal.App.4th at pp. 724-725.) Even numerous erroneous rulings against a party do not establish judicial bias. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796.) After considering several of Mejia’s requests to continue the trial date due to Martin’s unavailability--some of which were granted--the trial court eventually determined the action should proceed to trial. Mejia asserts, in a conclusory manner, that this ruling was pro-development and erroneous. She does not discuss or cite any authority supporting the impropriety of a court’s refusal to continue a trial date based on unavailability of counsel. Her implication of judicial misconduct on that basis is therefore waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
The alleged impropriety of the rulings striking Mejia’s testimony about her pending appeal in litigation challenging CHD’s development project is likewise waived. A proper objection is necessary to allow the court to develop a complete record of what occurred or to correct an error. Mejia did not object at trial to these asserted instances of judicial misconduct. Having failed to object, Mejia’s judicial misconduct claims are waived. (Fudge, supra, 7 Cal.4th at p. 1108.) Moreover, because she fails to explain the prejudicial effect of the court’s rulings, her challenges on that basis are rejected. (Evid. Code, §§ 353, 354; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Finally, the court has discretion to limit the admission of cumulative or irrelevant evidence. The existence and status of Mejia’s independent legal action challenging CHD’s development project has no relevance in this action for quiet title.
In any event, Mejia’s claimed errors were not prejudicial. The trial court’s statements fell within the realm of permissible judicial conduct. “It is well settled in this state that the expressions of opinion uttered by a judge, in what he conceives to be a discharge of his official duties, are not evidence of bias or prejudice. [Citations.]” (Kreling v. Superior Court (1944) 25 Cal.2d 305, 310-311.) The conduct of a fair trial “often . . . requires an expression of the conclusions of the trial judge up to the moment, in order that counsel may be advised what course to chart[,]” and do not necessarily support an inference that the judge’s mind is closed to further evidence and argument. (Gary v. Avery (1960) 178 Cal.App.2d 574, 579.) While comments suggesting that Mejia was delaying CHD’s development project may have been gratuitous, they were made before a jury was impaneled and could not have affected the outcome of the case.
Mejia also fails to demonstrate how the trial court’s comments favoring settlement and its sense that this was among the “type of case which settles 99 percent of the time” reflects judicial bias against her. Public policy favors pretrial settlements over lengthy and costly litigation. The result reached in this case was not the product of judicial bias.
c. Unavailability of counsel.
Mejia contends “[t]he trial court showed prejudice and bias in refusing to grant a continuance for [her] to seek new counsel,” and failing to admonish Martin after he made “inaccurate and adversarial comments against” Mejia and informed the court on the first day of trial he was unavailable to continue to represent Mejia. She also contends the court erroneously refused her request to reopen discovery and to continue the trial date, forcing her to be represented at trial by Almaraz, who had never tried a case alone. We find no error.
First, we are not able to evaluate whether Martin’s declaration makes inaccurate statements about Mejia. The thrust of Martin’s declaration explains (1) his inability to represent Mejia at trial in early August due to circumstances beyond his control, and (2) Almaraz’s ability to try the case on his own because he had been involved in the matter since the beginning of the litigation.
In his declaration, Martin refers to significant deterioration in his professional relationship with Mejia, whom he asserts made accusations and threats against him, was unwilling to follow his direction or advice, repeatedly acted contrary to their discussions or understandings, and failed to fulfill her contractual obligations to the firm under the retainer agreement. Under these circumstances, Martin “[did] not believe that [he] should be trying this case and should be permitted to designate [Almaraz,] the only other attorney in [his] office who [was] sufficiently familiar with the case to try it.” Martin’s statements are not “adversarial.” Rather, they reflect an opinion that his professional relationship with his client had deteriorated so significantly that he was no longer able to zealously represent her. Coupled with Martin’s scheduling conflicts in other litigation matters--with which Mejia does not take issue--and both attorneys’ representations that Almaraz was able and ready to try the case (representations subsequently borne out by the record), we conclude the trial court did not abuse its discretion by relieving Martin as trial counsel.
In addition, no abuse of discretion occurred as a result of the trial court’s refusal to reopen discovery. Although Mejia stated she wanted to conduct more discovery, her attorneys informed the court the case was ready for trial. Mejia does not identify the additional evidence she sought to discover, nor does she demonstrate any prejudice by the court’s refusal to grant her request. Calendar management and discovery cutoff dates are matters within the court’s province. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1084-1085.) “[T]o obtain reversal of a judgment on appeal on the ground of erroneous discovery rulings, appellant must demonstrate the rulings were so prejudicial as to constitute a miscarriage of justice.” (Id. at p. 1085) Mejia has not met this burden.
d. Assistance to opposing party.
Mejia contends the trial court made sua sponte evidentiary rulings favoring CHD, but did not similarly interject itself on her behalf when she was represented by an inexperienced attorney. Specifically, she claims the court (1) deemed nonresponsive Mejia’s answer to a question about the purpose of her independent lawsuit against CHD and the City of Los Angeles; (2) refused to permit her to expand an answer to a question or explain her feelings about a document prepared by CHD; (3) “sought to admit” limited photographic evidence, even though CHD did not object to the admission of additional photos; and (4) admitted a copy of one of Mejia’s exhibits that had been modified by CHD (Exhibit 1064A), as well as an unathenticated fax copy.
These contentions lack merit. First, Mejia’s initial attempt to explain her independent suit against the City was stricken because her answer went “far beyond the question.” However, the court overruled CHD’s relevance objection and afforded Mejia a second chance to respond to the question, stating: “The question is: What was the purpose of your lawsuit?” Mejia then informed the jury, “The purpose of [her] lawsuit was to ask the Court to ask the City and the developer to comply with the California Environmental Quality Act.” Second, the refusal to permit Mejia to expand her response after fully answering the question, or to describe how she “felt” about a document was not error. “A trial judge may . . . exclude inadmissible matter on the judge’s own motion without any objection by counsel.” (3 Witkin, Cal. Evidence (4th ed. 2005) § 392, pp. 483-484.) Irrelevant information, as excluded here, falls squarely within this category. Finally, Mejia’s assertions of bias based on the introduction of evidence are without merit. An inference of bias cannot be drawn simply because the trial court asked counsel if they wished the jury to see all the photographs or just the marked ones, admitted into evidence a modified exhibit whose admissibility was stipulated by Mejia’s attorney, and relied on an unauthenticated document to which Mejia never objected. Mejia has not satisfied her burden of demonstrating prejudicial judicial bias sufficient to warrant reversal.
2. Failure to address counsel’s adversarial posture.
Mejia contends Martin breached his duty of loyalty to her when he withdrew and took an adversarial position against her on the day of trial, leaving her represented by an inexperienced associate. She also contends the trial court had an independent duty to intervene in this instance of disloyalty and breached that duty. As discussed above [at pp. 8-10, ante], we disagree that Martin’s representations about the breakdown in their professional relationship can be reasonably construed as taking an “adversarial position.” Rather, his representations mean he only believed he could no longer responsibly serve as her advocate, and her best interests necessitated her representation by another attorney who had the time, ability and willingness to represent her at trial.
We disregard Mejia’s reference to Martin’s purported oral statement in which he allegedly “questioned [Mejia’s] reasoning for being in the case[,]” and “the only reason he was in [the] case was that the court would not let [him] withdraw.” The reporter’s transcript does not reflect this statement, and Mejia provides no evidence from her review of Lyman’s recordings that the statement was uttered.
Mejia’s reliance on Hernandez v. Paicius (2003) 109 Cal.App.4th 452, is misplaced. That case involved “[t]he spectacle of an attorney skewering her own client on the witness stand in the interest of defending another client.” (Id. at p. 467.) Such conduct “demeans the integrity of the legal profession and undermines confidence in the attorney-client relationship.” (Ibid.) No court may “permit, much less preside over, an attorney’s attack on his or her own client.” (Id. at p. 468.) Martin’s actions and statements in this action do not rise to the level of those involved in Hernandez.
3. Improper exclusion of material evidence.
Mejia contends that excluding certain items of evidence was prejudicial error. The items are: (1) Mejia’s testimony about her independent legal challenge to CHD’s development project, (2) photographs of Mejia’s family and automobiles, and (3) photographs of children in the swimming pool and on the pool deck. Rulings on the admissibility of evidence are reviewed under an abuse of discretion standard. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.)
No abuse of discretion occurred. Mejia’s independent challenge to CHD’s development project has no bearing on whether Mejia possesses an easement or an adverse interest in CHD’s property, which is the exclusive subject matter of this action. Mejia’s attorney conceded the photographs of Mejia’s family, automobiles, and children in the swimming pool and on the deck were properly excluded from evidence and withdrew his proffer of the photographs. Even if the items were relevant, Mejia cannot complain of error. Under the invited error doctrine, she may not challenge a trial court finding made at her counsel’s urging. (Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 121.) “The ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal. [Citation.] . . . At bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from misleading the trial court and then profiting there from in the appellate court. [Citations.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Where a party causes a court to improperly exclude evidence, the party is locked into that strategy and the consequences that it may reap. (Kessler v. Gray (1978) 77 Cal.App.3d 284, 290.) As stated in Kessler, “Under the doctrine of invited error, a party may not object to the sufficiency of the evidence to support a finding against him when the lack is the result of improper exclusion of evidence at his own instance.’ [Citation.]” (Ibid.)
4. Erroneous denial of equitable easements.
Mejia contends she is entitled to an equitable easement for the portion of the deck surrounding her empty swimming pool that encroaches onto Area 3 of CHD’s property by a few feet. The trial court denied Mejia’s posttrial request for an equitable easement on the ground she was attempting to circumvent an earlier grant of a nonsuit motion. Nonsuit was granted because she failed to establish a viable claim of adverse possession or prescriptive easement over this portion of CHD’s property. Mejia’s request for equitable relief was also denied after the court concluded she had offered “no evidence whatsoever that would allow the Court to ‘balance the hardships’ as required” by law “in determining the appropriateness of granting an equitable easement.”
Again, Almaraz’s declaration was the only evidence offered in support of Mejia’s posttrial claim for equitable easement. The trial court sustained CHD’s evidentiary objections and struck most of Almaraz’s declaration as argumentative and lacking foundation.
The trial court correctly concluded that Mejia failed to establish a prescriptive easement over the portion of land. A residential property owner cannot establish a prescriptive easement over adjoining property if it would effectively grant the property owner a right of occupancy and exclusive possession. Such an easement would be tantamount to acquiring title by adverse possession without payment of taxes. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305-1308 (Mehdizadeh); Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564 (Silacci).) However, Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (Hirshfield) held that denying a requested injunction to remove an encroachment based on relative hardships does not preclude a court from granting a residential property owner an exclusive equitable easement to protect the its use of disputed property. (Id. at pp. 764-772.) The “relative hardship” doctrine permits creation of an easement even though an encroacher is not entitled to an easement on a more traditional ground. Under the doctrine, a court may exercise its equitable jurisdiction and permanently enjoin interference with future use “[w]hen (1) 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, (2) there would be irreparable harm if the party could not continue to use the easement, and (3) the servient tenement would suffer little harm from the further use of the easement . . . .” (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) Easements, § 15:46, p. 15-161 & fn. 3, citing Hirshfield, supra, 91 Cal.App.4th 749 and Miller v. Johnston (1969) 270 Cal.App.2d 289, 303-308.)
Judicial discretion must be exercised cautiously because “the practical effect of such a rule is to give the defendant, a private person . . . what is, in effect, the right of eminent domain by permitting him to occupy property owned by another.” (Christensen v. Tucker (1952) 114 Cal.App.2d 554, 560 (Christensen).) A private right may be justified “where expensive structures have been constructed that overhang adjoining property or trespass to a minor degree” and, where “if the injunction to remove them were granted as of right, the plaintiff would be encouraged to engage in what amounts to legal extortion.” (Ibid.) Judicial discretion “should not be applied where a substantial right of the plaintiff is involved and unless the disproportionate hardship between the plaintiff and defendant is very great . . . .” (Id. at p. 562.) Finally, a relative hardship analysis must begin “with the premise that defendant is a wrongdoer, and that plaintiff’s property has been occupied. Thus, doubtful cases should be decided in favor of the plaintiff.” (Ibid.)
The trial court declined to analyze the relative hardships, concluding that Mejia presented no evidence allowing it to “balance the hardships,” and was simply trying to void earlier adverse rulings on her adverse possession and prescriptive easement claims. Both conclusions were erroneous. The equitable easement doctrine permits the creation of an easement even though the encroacher is not entitled to title by adverse possession or through an easement. Although we agree that Almaraz’s declaration was properly stricken, we disagree that the court, having concluded a lengthy trial, lacked a basis to analyze the hardship.
Under a relative hardship analysis, the first issue that must be addressed is whether Mejia’s encroachment was intentional. If it was intentional, Mejia is not entitled to an equitable easement. (Morgan v. Veach (1943) 59 Cal.App.2d 682, 690.) Undisputed evidence supports the conclusion that Mejia’s pool deck encroachment was not intentional. The deck was constructed by a prior owner and existed when Mejia purchased the property in 1994. The prior owner and Mejia both testified they believed the deck was constructed on Mejia’s own property. Moreover, Mejia testified that since 1994 she had continuously used and maintained the pool deck.
The next issue is whether Mejia’s encroachment caused CHD irreparable injury. If CHD is irreparably injured, Mejia is required to remove the encroachment without a necessity to balance the relative hardships. (Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858 [“When the court finds, however, that there is such [irreparable] injury . . . it should grant an injunction”].) Irreparable injury was found, for example, where an overhanging structure prevented repairs on an adjacent building. (Pahl v. Ribero (1961) 193 Cal.App.2d 154, 164.) No evidence indicates that CHD sustained irreparable injury by an interference with several feet of property over which the pool deck extends. The evidence shows that the area which the pool deck encroaches is surrounded both by Areas 2 and 3, over which Mejia was granted an access easement, and by Mejia’s property. Thus, while a portion of the deck and Mejia’s use of the strip of land deprives CHD of the use of a portion of its property, CHD failed to indicate any plans to use the small strip if the deck were removed, and no use is obvious. We therefore conclude that any claim of irreparable injury by a minor encroachment lacks evidentiary support.
Nevertheless, a lack of irreparable injury does not mean CHD has not been harmed by the encroachment or its injury is not entitled to consideration in balancing the relative hardships. The doctrine requires that the encroacher’s hardship must be greatly disproportional to the hardship caused to the legal owner. Even then, only minor encroachments are permitted. (Christensen, supra, 114 Cal.App.2d at p. 562.) For example, in Blackfield v. Thomas Allec Corp. (1932) 128 Cal.App. 348, 349-350, the court allowed a portion of a 122-foot long, 8-inch thick, 40-foot high wall to continue to overhang an adjoining parcel when the overhang measured a mere three and five-eighths inches. In Ukhtomski v. Tioga Mutual Water Co. (1936) 12 Cal.App.2d 726, 727-728, an expensive concrete reservoir was allowed to encroach on fifteen-hundredths of an acre of a three-acre parcel where the reservoir served as the sole water supply for 500 residents.
In Hirshfield, supra, 91 Cal.App.4th 749, a chain link fence inaccurately delineated the boundary line between two residential parcels. The owners of both parcels believed the fence accurately marked the legal boundary between their properties. On that basis, the Schwartzes made numerous improvements to their parcel. They extended the fence and added waterfalls, a pond, a stone deck, a putting green, and a sand trap. They also constructed a reinforced concrete wall for safety purposes after a car careened through their yard. (Id. at p. 755.) A survey later revealed that portions of the property used by the Schwartzes belonged to the Hirshfields. As a result, the Schwartzes’ reinforced concrete wall, extensive underground water and electrical lines, and several motors that operated the waterfalls and the swimming pool recirculation (including a large motor installed underground in a concrete and iron enclosure) encroached on the Hirshfields’ parcel. The trial court found the cost of dismantling the encroachments would be significant (id. at p. 757) and, after trial, the Schwartzes were awarded an equitable easement over the Hirshfields’ property and were ordered to pay the Hirshfields for its use. (Id. at p. 772.)
In contrast to Hirshfield, the hardship to Mejia of returning a small strip of land under her pool deck is insignificant. Mejia argues that, to remove the encroachment, she would be required to move the entire deck and above-ground pool, a difficult task given the property’s hilly terrain. However, she does not claim the empty pool and deck cannot be relocated elsewhere on the property, nor does any evidence indicate the cost of such a move. CHD offered Wizmann’s declaration which asserted only that “granting Ms. Mejia an equitable easement to maintain the portion of her swimming pool that encroaches on Area 3 . . . would be prejudicial to CHD and would subject CHD to economic loss.” According to Wizmann, Mejia had not offered to compensate CHD for any loss.
The absence of financial data regarding the loss is not fatal to the analysis. The fair market value of an encroacher’s property invariably increases with an increase in square footage represented by an encroachment and invariably diminishes by its discontinuation. Likewise, the fair market value of an owner’s property generally depends on whether an equitable easement is awarded or denied. The fair market value of the encroaching strip is of little utility in balancing the hardships between the parties. More must be demonstrated, such as a significant cost to the encroacher in removing the encroachment. Mejia makes no such demonstration. Although she claims relocation of the pool and deck will be difficult and expensive, she provides no specificity to support her claim. Thus, even though Mejia’s trespass was not intentional and the removal of the deck required by the loss of the encroaching portion of property will undoubtedly cause difficulty and expense, Mejia failed to demonstrate a significant hardship necessary for an award of an equitable easement.
5. Failure to order removal of fence.
Mejia contends CHD erected a chain-link fence that interferes and obstructs her express easements across CHD’s property. She insists the trial court erred in denying a posttrial motion for an order removing the fence.
Mejia’s motion was denied after the trial court found she “failed to provide any competent evidence to support her . . . requests for injunct[ive]” relief regarding the fence. In support of her motion, only Almaraz’s declaration was offered. CHD objected to the declaration on the ground that Almaraz failed to establish his personal knowledge that the fence interfered with Mejia’s easements. The objection was sustained. CHD submitted a counter declaration by its principal, Patrick Wizmann, stating, “Mejia’s access to and from her residence over the existing paved driveway remains open, unimpeded, reasonable and consistent with the historical route of access. CHD has not and will not close off that driveway with a fence or other barrier to access.”
The issuance of “ ‘an injunction is the exercise of a delicate power, requiring great caution and sound discretion, and rarely, if ever, should [it] be exercised in a doubtful case.’ [Citation.] . . . [A]n injunction may issue only upon a satisfactory showing of sufficient facts under oath.” (Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 148-149, italics omitted.) A request for injunctive relief not supported by competent evidence must be denied. Because Mejia’s request was unsubstantiated, the trial court did not abuse its discretion in denying her motion.
6. Failure to adopt accurate legal description of easement.
Mejia contends the judgment erroneously incorporates a legal description of Area 2 prepared by CHD’s surveyor, Bill Cowell. According to Mejia, the description omits a portion of the prescriptive easement found by the jury based on evidence at trial (Exhibit 1064A). Mejia’s contention is correct.
The parties stipulated to the admission of Exhibit 1064A, which reflects handwritten numbers dividing the disputed property into nine separate areas. Relying on Exhibit 1064A, the jury determined that Mejia acquired a prescriptive easement for ingress and egress over Areas 2 and 3. Following trial, the parties were directed to specify the precise legal parameters of the easement, which would be incorporated in the judgment and recorded. If the parties were unable to agree on the parameters, the court indicated the possibility of appointing its own expert to survey the property and to draw the boundary lines.
The parties were not able to reach agreement. CHD submitted a proposed judgment accompanied by a legal description of the prescriptive easement prepared by surveyor Cowell. Mejia responded with a declaration from her expert surveyor, Jack Little, who agreed that Cowell’s legal description was accurate as to Area 3. However, Little challenged the accuracy of Cowell’s legal description for Area 2, because it omitted a sharp, pointed turnout area at the northwest portion of Area 2. The turnout area was depicted in Exhibit 1064A and the jury relied on it in reaching its verdict. Cowell agreed that, if the jury found Mejia a prescriptive easement across the turnout area, Little’s legal description was correct. CHD then submitted an alternative legal description prepared by Cowell that included the turnout, in the event the court agreed the prescriptive easement found by the jury included that portion of Area 2. The court, however, adopted Cowell’s original legal description, omitting the turnout area.
Under the circumstances, the trial court’s adoption of Cowell’s initial legal description was erroneous. The special verdict directed the jury to examine Exhibit 1064A and identify “which of the [nine] areas described in Exhibit 1064A are affected by the prescriptive easement for ingress and egress?” Nothing indicates the jury was asked to carve out from consideration a sub-portion of Area 2. The jury made its determination using an exhibit that includes the turnout portion of Area 2. A turnout that provides drivers a means of turning around is consistent with the jury’s finding regarding the existence and scope of the prescriptive easement for ingress and egress.
Accordingly, the trial court erred in adopting a legal description of the prescriptive easement which differed from the easement found by the jury. Remand is necessary to permit the court to correct the judgment to reflect the accurate legal description of Mejia’s prescriptive easement.
7. Improperly granting counsel’s posttrial withdrawal request.
Mejia contends the trial court improperly entertained Almaraz’s posttrial motion to withdraw as counsel, because it was effectively an untimely motion for reconsideration. (Code Civ. Proc., § 1008.) Finding otherwise, the court stated, “[N]otwithstanding [Almaraz’s] reference to CCP Section 1008(b) in the supporting points and authorities to the motion, the motion to be relieved as counsel of record for [Mejia] was brought, as stated in the ‘Notice of Motion and Motion to be Relieved as Counsel-Civil,’ under California Code of Civil Procedure Section 284(2) and California Rules of Court, [then] Rule 376.” Code of Civil Procedure section 284 permits postjudgment withdrawal of counsel: “The attorney in an action . . . may be changed at any time before or after judgment or final determination . . . [¶] . . . [¶] . . . upon the application of either client or attorney . . . .” (Code Civ. Proc., § 284, subd. (2).) Mejia has not shown jurisdictional error or abuse of discretion in the court’s conclusion that good cause existed to grant the motion.
8. Failure to apportion costs.
Mejia contends the trial court abused its discretion in awarding costs to CHD rather than apportioning costs among the parties. She is mistaken.
Under Code of Civil Procedure section 1032, when a party recovers other than monetary relief, the determination of prevailing party and the allowance and apportionment of costs are within the discretion of the trial court. (Code Civ. Proc., § 1032, subd. (a); Michell v. Olick (1996) 49 Cal.App.4th 1194, [1197/1198].) We review those decisions for an abuse of discretion. (Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1395.) In this instance, the court found:`
“The prevailing party to an action is the party who recovered the greater relief [citations]. A trial judge has wide discretion in determining who is the prevailing party. [Citations.] It is the opinion of the Court that [CHD] was clearly the prevailing party to the action. It prevailed on all but one issue at trial, i.e., the prescriptive easement for ingress and egress, including [Mejia’s] claim of adverse possession.”
We agree with the trial court’s findings. Mejia’s references to her independent action challenging CHD’s development project and the retaliatory purpose of this lawsuit are irrelevant to the limited nature of this quiet title action. The jury found Mejia acquired only a prescriptive easement for access purposes across a small portion of CHD’s property, determined CHD had not committed a trespass, and denied Mejia any damages. The court found against Mejia on her adverse possession, prescriptive easement, and equitable easement claims. In our view, Mejia has shown no abuse of discretion with respect to the cost award.
9. Preparation of inaccurate appellate record.
Mejia contends she was denied a complete and accurate appellate record because (1) a court reporter had a conflict of interest; (2) another court reporter, assisted by court counsel and the court reporters’ office, refused to allow her to listen to audio recordings; and (3) the clerk’s transcript is inaccurate. For reasons discussed below, we disagree with her contentions.
a. Court reporter’s conflict.
Mejia contends that Court Reporter Carrie Garcin’s ownership of a home adjacent to the CHD property supports her position that Garcin acted unprofessionally and lacked impartiality in reporting pretrial proceedings. According to Mejia, Garcin’s ownership of adjacent property, along with her denial of the existence of an audio recording for a September 10, 2003 proceeding (the date of a case management conference), renders the appellate record and Garcin’s “transcripts in the instant matter questionable.” Even if Mejia’s allegations were true, she has failed to demonstrate how Garcin’s conflict of interest prejudicially infected any ruling at trial or the outcome of the case, or negatively impacts our ability to review the record on appeal.
b. Transcript inaccuracies and court collusion.
Mejia contends Court Reporter Linda Lyman prepared transcripts “contain[ing] material errors and omissions, which protect the trial judge because they omit prejudicial statements against [Mejia] made by the trial judge and [Mejia’s] counsel.” She accuses Lyman of fraud, dishonesty, corruption, willful violation of duty, gross negligence or incompetence, and unprofessional conduct in violation of Business and Professions Code section 8025, subdivision (d). She also contends that, after this court granted her motion “to listen to audio tapes (if any),” Lyman, aided by the court reporters’ office and court counsel, refused to comply with this court’s order and permitted her to listen to only two hours of audio recordings.
In her motion to correct and augment the court reporter’s and court clerk’s transcripts, Mejia identifies portions of the record where the reporter’s transcript departs from her recollection of events that transpired during particular proceedings. Following the issuance of this court’s order, Lyman agreed to meet with Mejia to playback the relevant audio recording portions of the proceedings, estimating the playback would last about two hours. Dissatisfied with Lyman’s offer, Mejia insisted on listening to several days of proceedings, and asked a representative of court management to be present during the entire playback period. Court counsel informed Mejia that limited court resources would not permit the accommodation of her request. The court instead was willing to permit Mejia to listen to transcripts of the entire proceedings, estimated to take several days, provided she compensate Lyman for her time. Neither Mejia’s appellate briefs nor her motion in this court indicates whether any final resolution was reached with respect to her playback requests, nor does she indicate whether her suspicions about record discrepancies were borne out.
In sum, Mejia fails to state a basis for reversal. She has not shown reversible judicial bias, or demonstrated how alleged omissions or misstatements in the record prepared by Lyman prejudicially affected the outcome of the trial or impede our ability to review the record.
Mejia’s other assertion of error regarding the allegedly inaccurate clerk’s transcript is also without merit. For example, her September 14, 2005 motion to correct and augment the record complains that two documents not filed until mid-December 2005 were not included in the clerk’s transcript dated January 5, 2005. The two missing documents are allegedly important because they demonstrate that, when the trial court granted Almaraz’s motion to withdraw, it could have anticipated a motion to tax costs, and thus issues were pending that required Mejia to continue to be represented by counsel to avoid prejudicing her case. This argument is problematic because Almaraz had already told the trial court his firm wished to withdraw as counsel before he would “have to file a motion to tax on [Mejia’s] behalf and . . . [spend] more money” on behalf of a client already deeply in arrears. Thus, the trial court was already aware of the possibility Mejia would move to tax costs when it granted the motion to withdraw. That fact does not support Mejia’s argument that Almaraz should have been ordered to remain as her attorney, or that her case was prejudiced when he was not. The issue of costs is independent of the substantive merits of the underlying action.
B. CHD’S CROSS-APPEAL
1. Prescriptive easement for ingress and egress over Area 2.
To establish a prescriptive easement, the easement must be (1) used continuously for at least five years, and (2) possessed in a manner open, notorious and clearly visible to the owner of the burdened land and hostile and adverse to the owner. (Civ. Code, § 1007; Code Civ. Proc., § 321; Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).) The claimant has the burden of proving the elements necessary to establish an easement. (Code Civ. Proc., § 321; Warsaw,at p. 571; Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 125-126; O’Banion v. Borba (1948) 32 Cal.2d 145, 149.) On appeal, we apply the substantial evidence standard of review, resolving all conflicts in favor of the prevailing party. (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.)
Unlike adverse possession, which permits acquisition of ownership and title to another’s property (Silacci, supra,45 Cal.App.4th at p. 562), a prescriptive easement “is merely a right to use the land of another” for a specific purpose, with the property owner retaining use of the land that does not interfere unreasonably with the easement. (Ibid.; see also Mehdizadeh, supra, 46 Cal.App.4th at p. 1305 .) A prescriptive easement that, as a practical matter, completely prohibits the property owner from using its land is an exclusive prescriptive easement or functional equivalent of an ownership interest. (Silacci,at p. 564.) Courts uniformly refuse to grant exclusive prescriptive easements in cases “involving a garden-variety residential boundary” dispute. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093 (Harrison); Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1187; Raab v. Casper (1975) 51 Cal.App.3d 866, 876; Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261; Silacci,at p. 562; Mehdizadeh,at pp. 1305-1306.)
In determining whether a prescriptive easement constitutes a prohibited exclusive prescriptive easement, “the exclusivity of the use of the surface of the land” must be examined. (Harrison, supra,116 Cal.App.4th at p. 1094.) For example, a prescriptive easement for landscaping and recreation was not permitted when a 10-foot area of the encroachment covered with shrubbery was fenced off, barring the property owners from accessing their property. The prescriptive easement amounted to adverse possession “under the guise of a ‘prescriptive easement’ ” because it excluded the property owner from meaningfully using, occupying or enjoying the property. (Mehdizadeh, supra,46 Cal.App.4th at pp. 1304-1305, 1308.) Similarly, in Harrison, a woodshed and landscaping consisting of trees, planter boxes and an irrigation system partially encroached on an adjoining property. Even though the property owners were not physically excluded from the landscaped area, a prohibited exclusive prescriptive easement was found because the trees, planter boxes and irrigation system prevented the property owners from using a portion of their land for any practical purpose. (116 Cal.App.4th at pp. 1093-1094.) In Silacci,a grant of an exclusive prescriptive easement over 1,600 square feet of another’s property which a neighbor “fenced in and used as a backyard” was reversed for similar reasons. (45 Cal.App.4th at pp. 560-561.)
The jury found that Mejia established the elements of a prescriptive easement over Area 2. She used the extended paved driveway without permission as a right of way to access her house in an open and notorious manner for the statutory period. CHD contends the driveway’s paved nature and Mejia’s persistent efforts to exclude CHD from Area 2 demonstrate that she effectively and unlawfully kept CHD from using its property. In short, CHD claims Mejia possesses a prohibited exclusive prescriptive easement similar to those prohibited in Mehizadeh, Harrison,and Silacci. We conclude otherwise.
Mejia’s easement distinctly differs from the easements in the three cases. The easement found to exist over Area 2 involves a mere right of way. Prescriptive easements are routinely granted in cases involving rights of way without any finding that they constitute a grant of a possessory interest. (See Warsaw, supra,35 Cal.3d 564; Taormino v. Denny (1970) 1 Cal.3d 679; Smith v. Smith (1913) 21 Cal.App. 378.) As noted in Silacci, “[a]n easement . . . is merely the right to use the land of another for a specific purpose--most often, the right to cross the land of another.” (Silacci, supra, 45 Cal.App.4th at p. 564.) An exclusive prescriptive easement that prohibits a property owner from using its land is distinctly different from a prescriptive easement that merely provides a right to cross another’s land. Unlike the easements in Harrison, Silacci, and Mehizadeh, Mejia’s access easement does not physically exclude CHD from the area. The fact that the easement is a paved driveway is not germane. The owner of a private right of way easement has a statutory duty to maintain and repair the easement. (Civ. Code, § 845, subd. (a).) Maintenance, particularly on steep terrain shared by the Mejia and CHD properties, could reasonably include improvements such as “grading, paving, . . . and the like, which are reasonably required to make the use of the easement safe and convenient[,]” so long as the improvements do not increase the burden on the servient tenement. (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) Easements, § 15:67, p. 15-225, fns. omitted.) Moreover, the prescriptive easement granted over Area 2 is limited to ingress and egress to Mejia’s house and does not extend to parking, building, storage, or anything else. As Mejia conceded at trial, she may not prevent CHD from accessing, driving over, or using the prescriptive easement area, so long as that use does not interfere with her right of way. CHD is not barred from using Area 2 for any purpose, so long as its use does not unreasonably interfere with Mejia’s right of way.
Mejia testified she previously attempted to exclude CHD from Area 2 because she believed the property was hers, and she and members of her family felt threatened and afraid.
We reject CHD’s argument, first asserted in its reply brief, that inconsistencies in the jury instructions necessitates reversal. The doctrine of invited error applies.
2. Awarding Mejia a prescriptive easement over Area 3.
CHD contends that the grant of a prescriptive easement to Mejia for ingress and egress over Area 3 lacks evidentiary support and conflicts with the prior grant of nonsuit. It also contends Mejia’s encroachment is effectively a prohibited exclusive prescriptive easement in that CHD is not able to use its property for any purpose. We agree.
Following the presentation of evidence, the trial court granted CHD’s motion for nonsuit on Mejia’s prescriptive easement claim for landscaping that Mejia installed in Area 3. Independent of that ruling, Mejia insists the judgment is proper because the jury found she had a nonexclusive prescriptive easement over Area 3 for ingress and egress purposes. CHD asserts the verdict was erroneous because the issue of a prescriptive easement over Area 3 was removed from the jury’s consideration by the ruling on the nonsuit motion.
Both sides are mistaken. CHD is incorrect because, notwithstanding the ruling that Mejia failed to establish her claims for a prescriptive easement, including the landscaping encroachments, the nonsuit left open the possibility Mejia might establish a prescriptive easement over Area 3 as to her claims for ingress and egress, parking and brush clearance.
Mejia also is incorrect and, as a result, the judgment awarding a prescriptive easement as to Area 3 must be reversed. Although the possibility was left open that Mejia might establish a prescriptive easement over Area 3 for access, the record does not support that eventuality. By her own admission, Mejia never used Area 3 for ingress or egress. Indeed, the evidence showed that Area 3 was used only for landscaping, sprinklers, some lighting, and a gopher alarm.
This fact was established by the following exchange between Mejia and her attorney:
The judgment finding a prescriptive easement for ingress and egress as to Area 3 of Exhibit 1064A must be reversed for lack of substantial evidence.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court with instructions to correct the legal description of the prescriptive easement over Area 2 to conform to the description prepared by Surveyor Little, and to include the turnout area identified in Exhibit 1064A. The judgment is also reversed as to the award of a prescriptive easement for ingress and egress over Area 3 as identified in Exhibit 1064A. In all other respects, the judgment is affirmed. Each party is to bear its or her own costs of appeal.
I concur: FLIER, J.
Special Instruction No. 10 properly advised the jury it could not find in favor of Mejia on the prescriptive easement claim if her use of CHD’s property had “the practical effect of excluding [CHD] and giving [Mejia] the exclusive use of such land.” (Italics added.) However, Mejia’s proposed Special Instruction No. 11, initially opposed by CHD but ultimately given by the court, instructed the jury that, to find Mejia had an exclusive easement, it must also find she had “used the easement in such a way that it gave her unlimited use of the easement yet excluded [CHD] from making any use of the property on which the easement is located (e.g.[,] enclosing the subject easement within a fenced area).” Instruction No. 11 is erroneous because it sets the bar too high. CHD need not show complete exclusion, but only the practical effect of exclusion. CHD proposed its own version of Special Instruction No. 11, which contained the proper legal standard. However, CHD’s counsel readily acquiesced when the trial court announced its intention to give the erroneous version of the instruction, stating, “All right. We can go with their instruction on that, your Honor. We will withdraw our version as long as we have 10.”
Based on this exchange, CHD’s acquiescence and withdrawal of its objection is tantamount to an invitation for error. CHD is estopped from asserting error based on the invited error doctrine. As explained in In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, invited error occurs when counsel is aware of the commissions of an error, but elects to say or do nothing in the hopes that its appellate posture will be enhanced. Such deliberate conduct is frowned upon because it wastes judicial resources. The consequence of such conduct is that the error is waived for purposes of the appeal, and we will not consider the issue as a ground for reversal. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 403.)
“Q Have you ever used [Area] 3 as a driveway?
“A No.
“Q . . . Have you ever driven along [Area] 3?
“A No.
“Q In fact, [Area] 2 is where your driveway is?
“A Correct.”
“Q And that is what you use for access?
“A Correct.”