Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV32543
HULL, J.This is a dispute between the owners of adjacent waterfront parcels on an inlet of Lake Tulloch in Calaveras County. The parcels in question extend out into the inlet, such that a portion of each parcel is under water. For years, a dock owned and used by plaintiff Randal W. Yick was positioned over a portion of the parcel owned by defendant Susan Larson. Plaintiff brought this action to quiet title to that portion of defendant’s parcel, claiming adverse possession as well as a prescriptive and an implied easement.
Following a bench trial, the trial court entered judgment rejecting plaintiff’s adverse possession and prescriptive easement claims but granting an implied easement. However, the court restricted the implied easement to an area less expansive than that sought by plaintiff. The court also rejected plaintiff’s request for an injunction to restrict defendant’s use of her own dock, which plaintiff claimed interfered with the use of his dock.
Plaintiff appeals from the judgment, contending the trial court erred in restricting the implied easement, denying a prescriptive easement, and denying an injunction. We conclude the judgment is supported by substantial evidence and affirm.
Facts and Proceedings
Because appellant raises substantial evidence arguments, we consider the evidence in the light most favorable to the judgment. (Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1303.)
Connor Estates is a housing development located on Lake Tulloch in Calaveras County. In 1993, plaintiff purchased lot 49 of Connor Estates from the developer, Connor Estates Investors Number One (the developer). Lot 49 is a lakefront parcel located on an inlet of the lake. At the time of plaintiff’s purchase, lot 49 was improved with a home, a driveway, concrete stairs, a sea wall, and a T-shaped dock floating on the inlet. The dock was attached to the sea wall by the use of an I-beam that allowed the dock to float up and down as the water level in the lake fluctuated and to detach from the wall entirely if the water level dropped below the bottom of the I-beam. The dock was floating over a portion of lot 48, an adjacent lakefront parcel south of lot 49.
At the time of plaintiff’s purchase, the surrounding parcels were still owned by the developer. In 1996, lot 48 was sold to the Moodys. At the time, lot 48 was improved with a house and a dock. In 2002, the Moodys sold lot 48 to defendant.
Approximately a year and a half after plaintiff purchased lot 49, the developer installed a ramp between the sea wall and plaintiff’s dock. Although the developer originally intended to install the ramp parallel to the sea wall, at plaintiff’s request it was installed perpendicular to the sea wall, thereby pushing plaintiff’s dock nearly 15 feet further out into the inlet and completely over lot 48. Plaintiff’s dock remained in that position thereafter.
Plaintiff was aware at the time he purchased his property that his dock was positioned over lot 48. When defendant purchased her lot in 2002, she was not aware of this circumstance. Plaintiff informed her of the encroachment in 2004.
Defendant later refurbished her dock, which was in disrepair, and added two jet ski ports, thereby expanding the size of the dock.
Plaintiff initiated this action against defendant. The complaint alleges five causes of action: (1) adverse possession of that portion of lot 48 occupied by plaintiff’s dock; (2) quiet title; (3) prescriptive easement; (4) implied easement; and (5) an injunction prohibiting defendant from blocking plaintiff’s access to his dock with her expanded dock.
Defendant filed a cross-complaint alleging five causes of action: (1) quiet title; (2) trespass; (3) injunctive relief; (4) ejectment; and (5) private nuisance.
The matter was tried to the court without a jury. At the close of plaintiff’s case-in-chief, defendant moved for judgment on several of plaintiff’s claims. The court granted judgment to defendant on plaintiff’s claim for adverse possession, but denied judgment on plaintiff’s remaining claims.
Following presentation of the evidence, the court entered judgment. Although the court granted plaintiff an implied easement, it restricted the easement to the area underlying plaintiff’s dock when attached to the sea wall and not as extended by the ramp. The court rejected plaintiff’s prescriptive easement claim and refused to enjoin defendant’s use of her own dock, concluding plaintiff failed to prove defendant’s dock interfered with the use of his dock.
In light of the foregoing rulings, defendant withdrew her claim for trespass. On the remaining claims of the cross-complaint, the court granted partial relief consistent with the remainder of the judgment.
Discussion
I
Implied Easement
Plaintiff contends the trial court improperly restricted the location of the implied easement to the area covered by the dock when attached to the sea wall. According to plaintiff, the developer intended that he be given deep water access to the lake, which requires that the dock be positioned away from the sea wall as it had been for the past 15 years. Defendant counters that substantial evidence supports the location of the easement as determined by the trial court. Defendant has the better argument.
“An implied easement may arise when, under certain specific circumstances, the law implies an intent on the part of the parties to a property transaction to create or transfer an easement even though there is no written document indicating such an intent.” (Mikels v. Rager (1991) 232 Cal.App.3d 334, 357.) “An easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner’s prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement. [Citation.] ‘The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances.’ [Citation.] An easement by implication will not be found absent clear evidence that it was intended by the parties. [Citation.]” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141-142, fn. omitted.)
In the present matter, defendant does not challenge the trial court’s conclusion plaintiff satisfied the foregoing elements for imposition of an implied easement. The question on appeal is the location of that easement.
Plaintiff argues, “[a]ll of the documents relating to the purchase transaction disclose that access to deep water by a dock was part of the property being conveyed to [plaintiff].” Plaintiff cites in particular trial exhibit 15. However, no trial exhibits have been transmitted to this court and therefore are not part of the record on appeal. (See In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1447, fn. 4.) It is an appellant’s burden to assure the record on appeal is sufficient to resolve the issues raised. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)
Plaintiff nevertheless asserts that, at the time he closed escrow on the property, the dock was present and floating on deep water 30 feet from the sea wall tethered by rope to some trees, the next year the developer excavated the inlet to give plaintiff further deep water access, soon thereafter the developer added a ramp to plaintiff’s dock thereby extending the dock further into the inlet, and plaintiff used the dock in that location for the next 15 years. According to plaintiff, the easement was intended by the developer to be for deep water access and “there was no other evidence regarding the use of the easement other than that the dock be floating on the water.”
Plaintiff’s argument is premised on a self-serving view of the evidence that ignores all contrary evidence in the record. In particular, plaintiff completely ignores the testimony of the developer’s employee, Lister Leonard. While plaintiff testified his dock was floating 30 feet from the sea wall at the time he closed escrow, Leonard testified that he believed the dock was still against the sea wall after plaintiff closed escrow and moved in. In any event, Leonard further testified it was common practice at the time to attach docks away from the shore by ropes in the winter in order to protect them from the jagged shoreline, not for the purpose of allowing deep sea access.
Plaintiff testified that, after the close of escrow, the developer excavated the cove to give plaintiff deep water access. However, Leonard testified there was no excavation of the cove after plaintiff’s sea wall was installed, which was before plaintiff purchased his lot.
Plaintiff testified the developer added a ramp to his dock and attached it perpendicular to the sea wall, thereby moving plaintiff’s dock 15 feet away from the sea wall. Plaintiff further testified the developer configured the ramp in this way to avoid having to do further excavation in order to give plaintiff deep water access. However, Leonard testified the developer’s original intent was to attach the ramp parallel to the sea wall, and the developer did not instruct him to attach it the other way. He did so at the request of plaintiff.
In pronouncing judgment in this matter, the trial court expressly found Leonard to be the more credible witness. The court stated: “Until I heard the testimony of Mr. Leonard, the plaintiff’s case seemed somewhat reasonable.... [¶] I allowed this morning the testimony of Mr. Yick about his oral conversations with the developers about what was going to be the ultimate goal of the dock. But when I consider that with the testimony of Mr. Leonard, I find Mr. Leonard’s testimony to be the best evidence I’ve heard. He’s a neutral party. He has no association with either party in this case. He has no stake in the outcome. He seems the most credible witness on that issue, more credible than Mr. Yick.”
Notwithstanding the foregoing credibility determination, which is a matter exclusively for the trier of fact (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204), plaintiff simply ignores Leonard’s testimony. A party challenging sufficiency of the evidence must summarize the evidence on the point, both favorable and unfavorable. (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208.) Failure to do so may be considered a forfeiture. (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832.)
Because plaintiff has raised a substantial evidence argument but has ignored the most credible evidence in the record contrary to his position, he has forfeited the argument for purposes of this appeal. In any event, the testimony of Lister Leonard is substantial evidence supporting the trial court’s limitation on the implied easement.
II
Prescriptive Easement
Plaintiff contends the trial court erred in rejecting his claim for a prescriptive easement. We disagree.
In order to understand the trial court’s ruling on this claim, it is necessary to understand both prescriptive easements and adverse possession.
Adverse possession is a means by which one may acquire complete ownership of another’s land. “To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.” (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.)
By contrast, a prescriptive easement gives one only the right to use the land of another. To establish a prescriptive easement, “the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.” (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1305.) With an easement, “[e]very incident of ownership not inconsistent with the enjoyment of the easement is reserved to the owner of the servient tenement.” (Silacci v. Abramson (1996) 45 Cal.App.4th 558, 562.)
Plaintiff contends he satisfied all the elements of a prescriptive easement by openly using defendant’s property under the dock, as extended by the ramp, continuously and without interruption, under a claim of right, for the statutory period. However, the trial court concluded plaintiff was in effect seeking an exclusive easement over defendant’s property, which would be tantamount to adverse possession of that property, inasmuch as defendant would not be able to use her own property with plaintiff’s dock over it. The court concluded plaintiff could not use a prescriptive easement in this way to gain what is in effect adverse possession of plaintiff’s property.
In Raab v. Casper (1975) 51 Cal.App.3d 866, the Caspers built their home encroaching on the Raabs’ property, along with their driveway, utility lines, and landscaping. The trial court granted the Raabs a prescriptive easement for roadway and utility lines and “‘for the maintenance of lawn, fences, shrubs, fruit trees, and landscaping around the Casper house....’” (Id. at p. 877.) The Court of Appeal reversed, concluding that what was made by the trial court to appear as an easement was in reality an estate. (Ibid.) The Raabs would have been excluded from any use of their property. The Court of Appeal concluded the case really presented an issue of adverse possession, but the plaintiffs failed to satisfy all the elements of adverse possession. (Id. at pp. 877-878.)
In Silacci v. Abramson, supra, 45 Cal.App.4th 558, Abramson fenced in and used 1,600 square feet in their backyard that allegedly belonged to Silacci. The trial court concluded Abramson had established the right to an exclusive prescriptive easement over the fenced-in area. (Id. at p. 560.) The Court of Appeal reversed, concluding there can be no exclusive prescriptive easement under these circumstances. The court explained: “An exclusive prescriptive easement is... a very unusual interest in land. The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one. An easement, after all, is merely the right to use the land of another for a specific purpose--most often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period. An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate. To permit Abramson to acquire possession of Silacci’s land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real property law between ownership and use. The trial court’s order here amounted to giving Silacci’s land completely, without reservation, to Abramson. This the court did, using the term ‘exclusive prescriptive easement,’ an unusual doctrine which does not apply.” (Id. at p. 564; see also Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093-1094; Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at pp. 1305-1306.)
In the present matter, the trial court correctly concluded that to award plaintiff a prescriptive easement over defendant’s land under the dock, as extended by the ramp, would be equivalent to giving plaintiff an estate in that portion of defendant’s property without plaintiff having satisfied the requirements for adverse possession. Such an award would blur the distinction between prescriptive easement and adverse possession and would be inappropriate under the circumstances of this case.
III
Expert Testimony
Plaintiff contends the trial court wrongly permitted defendant’s expert, Merle Holman, to testify about work he performed after his deposition. Plaintiff asserts he objected to this testimony both at trial and in an in limine motion, but the trial court failed to exclude the evidence. In particular, plaintiff objects to the introduction of evidence regarding an experiment conducted by Holman wherein he drove his own boat into the inlet and up to plaintiff’s dock, thereby demonstrating defendant’s dock posed no obstacle. We conclude plaintiff failed to preserve this issue for appeal.
Plaintiff moved in limine for an order excluding any expert opinions that had not been disclosed sufficiently in advance of trial to allow the expert to be deposed on those opinions. The trial court denied the motion without prejudice.
At trial, Holman testified about whether plaintiff would have any difficulty getting in and out of his dock with defendant’s dock in its current configuration. When Holman was asked about certain sketches he prepared and photographs he had taken of the inlet, plaintiff objected. Plaintiff argued: “I object to the introduction of--or the consideration even of--of this sketch and the photos as post expert deposition work product. His deposition was taken on January 4, at which time--we can refer to the transcript, if you wish--the only item he had produced was an opinion letter dated January 4 of 2007 addressed to an Attorney Roger Brown. This sketch was not in his file, and you can see it did not exist by the date attached to it. Likewise, he had no other items in his expert file at that time, although he was specifically asked for it. And so I object to the use of these documents on the grounds that they constitute post expert deposition work product.”
The trial court overruled the objection, concluding plaintiff was not prejudiced by introduction of the evidence without a prior opportunity to depose the witness. According to the court, introduction of a diagram prepared before trial is no more prejudicial than if the expert had been asked to draw the sketch in open court, which he would clearly be allowed to do. As for the photographs, the court concluded it did not matter who took them as long as they assist the court in determining the issues presented.
In arguing the trial court erred in denying his motion in limine and overruling his objections, plaintiff relies on Code of Civil Procedure section 2034.260, governing the exchange of expert witness information. In addition to requiring a list of expert witnesses, that section requires a party to include in the exchange an expert witness declaration containing, among other things, “[a] representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial.” (Code Civ. Proc., § 2034.260, subd. (c)(4).)
Plaintiff also relies on Kennemur v. State of California (1982) 133 Cal.App.3d 907 (Kennemur). Kennemur concerned Code of Civil Procedure former section 2037.3, which provided: “Each witness list shall include the name and business or residence address of each expert witness whom the party expects to call in person or through deposition and a brief narrative statement of the qualifications of such witnesses and the general substance of the testimony which the witness is expected to give.” (Stats. 1978, ch. 1069, § 1, p. 3286.) Kennemur involved a highway accident where the plaintiff claimed the state failed to correct or give notice of a dangerous condition of property. (Kennemur, supra, 133 Cal.App.3d at p. 911.) The trial court precluded the plaintiff from presenting the testimony of an expert regarding accident reconstruction, where there had been no notice the expert would testify on that subject. (Id. at pp. 912-916.)
The Court of Appeal affirmed, explaining: “The Legislature has singled out the pretrial discovery of expert opinions for special treatment. When appropriate demand is made for exchange of expert witness lists, the party is required to disclose not only the name, address and qualifications of the witness but the general substance of the testimony the witness is expected to give at trial. [Citation.] In our view, this means the party must disclose either in his witness exchange list or at his expert’s deposition, if the expert is asked, the substance of the facts and the opinions which the expert will testify to at trial. Only by such a disclosure will the opposing party have reasonable notice of the specific areas of investigation by the expert, the opinions he has reached and the reasons supporting the opinions, to the end the opposing party can prepare for cross-examination and rebuttal of the expert’s testimony.” (Kennemur, supra, 133 Cal.App.3d at p. 919.)
Neither Code of Civil Procedure section 2034.260 nor Kennemur assists plaintiff. Plaintiff does not contend Holman was not sufficiently prepared for his deposition. Nor does he contend Holman gave opinions at trial not previously disclosed. Rather, plaintiff argues Holman was wrongly permitted to testify regarding an experiment he conducted after his deposition, in which he drove his boat through the inlet to plaintiff’s dock to demonstrate he had no difficulty doing so. However, plaintiff did not object to Holman’s testimony on that basis. In his motion in limine, plaintiff sought to preclude any expert opinions not previously disclosed. At trial, plaintiff objected to introduction of a sketch and photographs prepared by Holman. He did not object to any new experiment conducted by Holman. Having failed to interpose an appropriate objection, the issue is forfeited for purpose of appeal. (See People v. Rogers (1978) 21 Cal.3d 542, 548 [“[T]he general rule [is] that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal”].) As for the diagram and photographs, those items are not part of the record on appeal, so we cannot determine if plaintiff was prejudiced by their introduction even if we were to conclude they were wrongly admitted.
Finally, even assuming plaintiff had objected to introduction of the experiment, plaintiff cites no authority for the proposition that an expert may not conduct further experiments and investigation after his deposition to support opinions stated in the deposition. Plaintiff also cites nothing to suggest the trial court precluded him from further deposing Holman on the experiment.
IV
Testimony of Steven Felte
Steven Felte is the general manager of Tri-Dam, the company that has a flowage easement covering Lake Tulloch, including that portion of the parties’ property under water. Evidence was presented at trial that property owners on Lake Tulloch who wish to install a dock must obtain a permit from Tri-Dam, and no such permit had been obtained by the developer for plaintiff’s dock. Felte testified Tri-Dam would not issue a permit for a dock that was not over the property of the dock owner.
Plaintiff contends Felte was improperly permitted to provide expert testimony about the procedures used by Tri-Dam for granting dock easements at the time of plaintiff’s purchase, which was before Felte had become the general manager of Tri-Dam. Plaintiff contends Felte was not disclosed as an expert and his testimony lacked foundation.
This is much ado about nothing. In reaching its conclusions in this matter, the trial court did not rely on any of the foregoing evidence. The trial court granted plaintiff an implied easement over defendant’s property, notwithstanding the lack of a Tri-Dam permit and despite the fact Tri-Dam would not have issued a permit for a dock not over the dock owner’s property. The evidence to which plaintiff objects had no bearing on any of plaintiff’s other claims either.
V
Injunction
Plaintiff contends that, since adding jet ski ports to her dock, defendant has interfered with plaintiff’s use of his dock and should have been enjoined from doing so. Plaintiff testified that it is now much more difficult for him to get his boat in and out of his dock, and there was no other evidence presented on the issue. Although plaintiff acknowledges Holman’s expert testimony on this issue, he insists that evidence should have been excluded.
We have already rejected plaintiff’s arguments regarding the admissibility of Holman’s testimony. That evidence is properly before us, and it alone supports the trial court’s conclusion. Furthermore, plaintiff ignores defendant’s testimony that, when she tried to film plaintiff coming into his dock, he completed the process before she could retrieve her camera, thereby suggesting it did not take that long for plaintiff to get in and out of his dock. Finally, and most importantly, plaintiff’s argument is premised on his dock being positioned as it has been for the past 15 years. However, the trial court ordered that the dock be reattached to the sea wall, thereby presumably providing more room for plaintiff to maneuver into his dock. We have concluded the court did not err in this regard. Hence, substantial evidence supports the trial court’s rejection of plaintiff’s injunction claim.
Disposition
The judgment is affirmed. Defendant is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: SCOTLAND, P. J., SIMS, J.