Opinion
D073279
05-31-2018
GABRIELA V. AYOUB, Plaintiff, Cross-defendant and Appellant, v. KEITH H. CANDEE et al., Defendants, Cross-complainants and Respondents; TAREK AYOUB, Cross-defendant, Cross-complainant and Appellant.
Abacus Law Group and Mace Abdullah for Plaintiff, Cross-defendant and Appellant Gabriela V. Ayoub. Abacus Law Group and Mace Abdullah for Cross-defendant, Cross-complainant and Appellant Tarek Ayoub. Lieberg Oberhansley, Jon H. Lieberg and Alec W. Hankins for Defendants, Cross-complainants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCC1301436) APPEAL from a judgment of the Superior Court of Riverside County, Gloria C. Trask, Judge. Affirmed in part, and reversed in part with directions. Abacus Law Group and Mace Abdullah for Plaintiff, Cross-defendant and Appellant Gabriela V. Ayoub. Abacus Law Group and Mace Abdullah for Cross-defendant, Cross-complainant and Appellant Tarek Ayoub. Lieberg Oberhansley, Jon H. Lieberg and Alec W. Hankins for Defendants, Cross-complainants and Respondents.
Appellants and respondents are property owners/managers of adjoining rural properties near Temecula. Their disputes concern three alleged road easements burdening appellants' property, and activities related to the use or preclusion of use of these easements. Both sets of parties brought complaints and cross-complaints seeking to resolve the disputes.
After the parties waived their jury trial rights, the court conducted a seven-day trial. In the first phase, appellants presented evidence on their claims against respondents. At the conclusion of appellants' case, the court granted respondents' motion for judgment under Code of Civil Procedure section 631.8. The court found appellants' testimony was not credible and they did not meet their burden to prove their claims against respondents.
Unspecified statutory references are to the Code of Civil Procedure.
In the second phase, respondents presented evidence on their claims against appellants. At the conclusion of the evidence and argument, the court recognized the existence of three easements burdening appellants' property (a recorded easement, a prescriptive easement, and an easement by implied public dedication). The court also found appellants trespassed on respondents' property; appellants prevented respondents from using the recorded easement for its intended purpose; appellants committed conversion relating to the removal of survey stakes and markers from the recorded easement; and one of the appellants committed acts of violence and made credible threats of violence toward one respondent, his family members, and his agents.
Based on these and other findings, the court (1) granted respondents' request for an order recognizing the existence of the three easements; (2) issued a permanent injunction enjoining appellants from interfering with the use of the easements, trespassing on respondents' property, threatening or harassing respondents, and destroying or damaging their property; (3) awarded respondents damages of: $496,000 in lost profits arising from appellants' interference with their use of the recorded easement, $950 for damage to respondents' bulldozer, and $4,240 for the cost of replacing the stakes and survey markers on the recorded easement; (4) ordered appellants to pay $250,000 in punitive damages based on findings they acted with malice and oppression and engaged in "despicable conduct" toward respondents; and (5) ordered appellants to pay $59,700 in attorney fees incurred in proving matters denied by appellants in admissions requests during discovery.
On appeal, appellants raise a myriad of arguments challenging many of the court's factual and legal conclusions. We determine one of the arguments has merit. The trial court erred in upholding one of the claimed easements on the basis of an implied public-dedication theory. Under California law, no implied public dedication for noncoastal property can arise based on claimed public use after March 4, 1972. (See Civ. Code, § 1009, subd. (b); Scher v. Burke (2017) 3 Cal.5th 136, 143-150.) As respondents have now stipulated, the record does not support the requisite five-year pre-1972 use, nor is there any other legal basis to uphold this claimed easement.
Appellants did not meet their burden to show any other prejudicial errors. Accordingly, we reverse the judgment on the easement by implied public dedication, and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
Background
Appellants Gabriela and Tarik Ayoub, a married couple, reside on a 35.66-acre parcel of property southwest of Temecula (Ayoub property). Gabriela Ayoub is the title holder; Tarik Ayoub manages the property and acted as his wife's agent during all relevant times. The Ayoubs or entities controlled by them have owned/managed the Ayoub property since about 1996.
Respondent Keith Candee owns large-acreage properties to the north, east, and west of the Ayoub property. He purchased these properties at different times. The issues here concern only Candee's 40-acre property to the west of the Ayoub property (Western property). This Western property is accessible by a 60-foot-wide recorded easement running north and south from a public street through the Ayoub property (Recorded Easement). Although the Recorded Easement is not identified on Mrs. Ayoub's deed, it is referenced in chain of title documents.
Candee owns or owned one or more of these properties as trustee of the KHC trust and/or the manager of the Original Thurber Ranch, LLC. Original Thurber Ranch, LLC was Candee's joint defendant/cross-complainant at trial and is a respondent on appeal. On the issues before us, it is unnecessary to distinguish between Candee and these entities. Thus, for ease of reference, we shall refer to the party-litigant/property owner collectively as Candee.
Exhibit 1 to this opinion (trial exhibit 121-057) depicts the relevant portions of the parties' properties. The yellow line (added by this Court for clarity) shows the boundary between the Ayoub property and Candee's Western property. The blue/purple line shows the 60-foot-wide north-south Recorded Easement. The green line shows an easement that was previously established and was the subject of a prior dispute between these same parties (not at issue here). The pink lines show the disputed road easements that the court declared to be (1) a prescriptive easement (the northern pink line labeled "Strip 'A' "; and (2) an easement by public dedication (the southern pink line labeled "Strip 'B' ").
Candee had owned the property north of the Ayoubs' property since at least 2008. On July 19, 2013, Candee purchased the Western property for the purpose of planting a commercial avocado grove. At the time, the Ayoubs maintained a locked gate across the Recorded Easement, precluding its use as a road.
About one week after his purchase, on July 27, Candee began grading in the southern portion of the Recorded Easement near Strip B without notifying the Ayoubs. When Mr. Ayoub saw this activity, he made attempts to stop Candee, leading to a confrontation. The parties' evidence conflicted as to what occurred, but both agreed that they were yelling at each other, using profanities. Mr. Ayoub testified that Candee "punched" him on his right cheek; Candee denied this and other witnesses corroborated Candee's testimony. Candee testified and presented evidence that Mr. Ayoub threw rocks at the bulldozer, damaging the equipment. Candee testified that when the rocks were thrown, he was on the southeast corner of his own property.
Candee and the Ayoubs sought restraining orders against one another. After the court denied both requests, in September 2013 Mrs. Ayoub filed a complaint against Candee, alleging trespass and quiet title in her favor as to the Recorded Easement. Candee responded by filing a cross-complaint against Mr. and Mrs. Ayoub, asserting causes of action for declaratory relief, trespass, conversion, assault, battery, injunctive relief, mandatory injunctive relief, and quiet title to the Recorded Easement and the claimed Strip A and Strip B easements. Mr. Ayoub then filed a cross-complaint against Candee. This pleading is not part of the appellate record, and neither the record nor briefs identify the causes of action alleged in this pleading.
Mrs. Ayoub dismissed the quiet title claim before trial.
The court trial was held in May 2015 over a seven-day period.
The Ayoubs' Claims Against Candee
The first phase of the trial concerned the Ayoubs' claims against Candee. The sole witnesses to testify in this phase were Mr. and Mrs. Ayoub. We briefly summarize this testimony, and then discuss additional facts when relevant to a particular legal issue.
During her testimony, Mrs. Ayoub was unable to provide material information because she had not witnessed any of the relevant events and acknowledged she was unaware of the relevant facts.
During his testimony, Mr. Ayoub discussed his version of the July 27 confrontation between himself and Candee. He claimed Candee "punched" him on his cheek and tried to run him over with the bulldozer, and he felt his life was in danger. He said that during a second confrontation later that day on the nearby public road, Candee struck him again on his face. Mr. Ayoub said that after that day he did not lock the gate to the Recorded Easement. But he testified he still does not believe the Recorded Easement "is a legitimate easement. And that's why we are here."
As detailed in Discussion part III.D. below, the Ayoubs' counsel sought to introduce a videotape of the bulldozer incident (that Mr. Ayoub said he captured with his iPad), but the court did not make a final ruling on this request or on Candee's objections to this evidence, and therefore this videotape was never viewed by the court. Regarding damages, Mr. Ayoub testified that Candee caused about $150,000 damage to the Ayoub property, including to the driveway, gate, drainage channel, trees, irrigation lines, and drainage pipes.
After the Ayoubs' counsel completed direct examination, Candee's counsel conducted cross-examination of Mr. Ayoub. During the cross-examination, the court asked to see counsel in chambers. After the unreported chambers conference, the court made a finding that the testimony of Mr. and Mrs. Ayoub was evasive and not credible and that both witnesses had been impeached. The court denied the Ayoubs' counsel's request to permit her to call her clients to provide rebuttal testimony. After the Ayoubs' counsel said she had no other witnesses, Candee's counsel moved for judgment under section 631.8, and the court granted the motion.
Candee's Claims Against the Ayoubs
The court then held a trial on Candee's cross-complaint against the Ayoubs. Candee testified at length and presented numerous witnesses and documentary evidence. We will summarize some of this evidence, and then will discuss additional evidence in the Discussion when relevant to a particular legal issue.
Dennis Janda, a licensed and certified land surveyor, performed a survey of the properties. He determined the dimensions of the Recorded Easement from the public records, and placed markers on the Ayoubs' property to identify the Recorded Easement boundaries. He also identified the dimensions and location of the claimed prescriptive easements (marked in pink on Exhibit 1 to this opinion) and said they were "[e]xisting roads."
In his testimony, Candee said he purchased the Western property with the intent to develop it as an avocado grove. He hired Janda to map and stake the Recorded Easement so the existing road could be cleared for access to the Western property. Mr. Ayoub removed those stakes and markers without permission.
Regarding the July 27 confrontation, Candee testified that he had hired a tractor operator to fix the washouts and clear weeds on the Recorded Easement. However, the operator terminated this work when Mr. Ayoub confronted him. Later that day, Candee continued the bulldozer work himself, driving around the locked gate. Mr. Ayoub responded by throwing rocks at Candee's bulldozer, causing $950 of damage to the equipment. Candee stopped the bulldozer, dismounted, and a verbal confrontation occurred. Candee then got into his truck and drove toward town to obtain law enforcement assistance. Mr. Ayoub drove after Candee, passing him at a high rate of speed, cutting him off, and forcing Candee to slam on his brakes to avoid a collision. According to a witness, Mr. Ayoub "almost ran [Candee] off the road" and was attempting to provoke an assault by putting his iPad in Candee's face. Candee swore at Mr. Ayoub and walked away, and never touched or hit Mr. Ayoub.
Candee then rehired the survey crew to re-stake the Recorded Easement and replace the markers removed by Mr. Ayoub. The crew parked their vehicle on the Recorded Easement in front of the locked gate. While the surveyors were working, Mr. Ayoub parked his truck behind them, blocking their vehicle and preventing them from leaving. The surveyors were unable to complete their work. Sheriff's deputies were called. The deputies asked Mr. Ayoub to open the gate, and Mr. Ayoub claimed he did not have a key, so the deputy instructed the survey worker to remove a chain link to allow access. After the deputies left, Mr. Ayoub removed and destroyed the survey markers for a second time. He also put up a new wire fence with warning signs telling various individuals to stay off his land, including Candee, Candee's "Workers" and "Agents," and a deputy sheriff.
In an August 21, 2013 email to the sheriff, Mr. Ayoub stated the deputy's actions in requiring him to allow access to the Recorded Easement were "wrong" and he would "not stand for it, and unless a civil Judge hands out a judgment, our gate is locked and will remain locked, and we will not allow anyone to trespass on our property . . . ."
Candee also presented evidence that Mr. Ayoub had previously harassed and threatened others working on the Recorded Easement or on Candee's property. Candee's adult son testified that he lived in a house on his father's northern property, but he made the decision to move because he "felt unsafe" based on Mr. Ayoub's conduct. The son said that when he was on his father's property and was removing Candee's tree, Mr. Ayoub threw a "folding saw/axe" at him. Mr. Ayoub "was cursing and violently telling [him] that he was going to get in trouble." The son said that if he is "anywhere near" the Ayoub property, Mr. Ayoub uses profanities against him. Candee also presented evidence that Mr. Ayoub had previously threatened "trespassers" by verbally attacking them while wielding a machete and, in one instance, threatened to decapitate them. Mr. Ayoub was once arrested for threatening a truck driver with a machete.
Based on Mr. Ayoub's hostile actions and the Ayoubs' repeated refusals to recognize the validity of the Recorded Easement, Candee refrained from any additional attempts to use the Recorded Easement and therefore did not have reasonable road access to his property. He presented evidence that the two-year delay in obtaining access to his property precluded him from planting an avocado grove and from profiting from the resulting avocado sales. Without objection, Candee (an experienced avocado farmer) presented his own expert testimony and the expert testimony of an experienced farm manager to testify about the economic loss resulting from the two-year delay. After explaining the price of avocados, the average yield, the percentage of the 40-acre property that could be used for avocado trees, and other relevant factors, Candee estimated lost profits to be two years of avocado sales minus costs, amounting to 30 acres multiplied by $10,000 per year, or $600,000 for two years; and the third-party expert witness opined the two-year lost profits were $392,000.
During closing arguments, Candee's attorney argued the evidence established the Recorded Easement was a valid easement; the Ayoubs were on actual and constructive notice of the Recorded Easement; and the Ayoubs had nonetheless blocked access to this easement beginning in July 2013, resulting in the claimed lost profit damages. Regarding the claimed Strip A and Strip B easements, Candee's counsel argued these easements had been established by prescription based on evidence that drivers had regularly driven on these roads during the past 20 years.
At the outset of the Ayoubs' counsel's closing argument, she said "the dispute between Mr. Candee and Mr. Ayoub boils down to Mr. Candee asserting that he had a right to do what he was doing and Mr. Ayoub telling him he did not." Counsel then conceded the Recorded Easement was valid and "does exist." Counsel said both counsel had "stipulated" to the existence and precise location of the Recorded Easement (as depicted in Exhibit 1 to this opinion), and "there is no argument being made . . . against declaratory relief to establish the existence of the [R]ecorded [E]asement."
Counsel argued, however, that Mr. Ayoub's prior actions relating to this easement were reasonable because he had a legitimate belief at the time that the Recorded Easement was not valid. The Ayoubs' counsel alternatively argued that the Ayoubs did not interfere with access to the Recorded Easement because the Ayoubs presented evidence that Mr. Ayoub had removed the lock to the gate "after a certain point in time in August of 2013." Counsel further maintained that even if Mr. Ayoub's actions had precluded access, Candee's lost profits claim was "wholly speculative."
Regarding the claimed prescriptive easements on Strip A and Strip B, the Ayoubs' counsel argued primarily that Candee had not met his burden of proof to show a prior adverse use by his predecessors in interest for the required five-year period. On this argument, Candee's counsel replied that the use of the claimed easements also satisfied the elements of an implied public dedication, which do not require adverse use by the owner of the benefited property.
After considering the evidence and the parties' arguments, the court ruled in Candee's favor on all claims except assault and battery (because there was no evidence Mr. Ayoub's rocks touched Candee, or that Candee was aware of the rock throwing). The court offered some oral observations, and later signed a detailed written statement of decision. In its oral comments, the court stated in part:
"The first thing I need to say is to Mr. Ayoub. Apparently you needed to hear from a civil judge, and I'm going to tell you. There is an easement on your property. It is a fact, and I so find that there is an easement on your property. And we have seen it throughout these many days. It's in either blue or purple. That is the easement. And your refusal to accept that has caused a lot of problems. [¶] Based upon this trial I'm not terribly hopeful that anything I say or anybody else says will make a difference. But you wanted to hear it from me; and I'm telling you there is an easement. It has been there. . . .
"Our real property laws [and records] . . . are sacred in this country. And that's why tampering with the stakes is very, very serious. Because the property boundaries define your property, Mr. Candee's property. It defines the easement.
"Easements mean you have to share. And you need to share. And you haven't shared. And that's what's caused all these problems that we have. And much of it has not been fair to Mr. Candee."
The court said Candee was thus entitled to declaratory relief recognizing the existence of the Recorded Easement and the claimed Strip A and B easements. The court additionally said it found the Ayoubs improperly interfered with the use of the Recorded Easement, precluding Candee from access to his Western property and thus from earning profits from avocado sales he would have earned without the blocked access. The court also found punitive damages were warranted because Mr. Ayoub's conduct was "malicious and oppressive" and caused "cruel and unjust hardship to the property owner."
After additional observations about its assessment of the evidence, the court asked counsel to meet and confer on a Statement of Decision. Candee's counsel drafted the detailed statement, and although the Ayoubs' counsel expressed disagreement with the findings, she did not bring these disagreements to the court's attention until she brought her new trial motion.
The statement of decision ultimately signed by the court contains 53 separate findings. As discussed in more detail below, these findings include: (1) the Ayoubs did not present any credible evidence to support their affirmative claims; (2) at all times Mr. and Mrs. Ayoub "were acting as each other's agents"; (3) the parties now stipulate to the "validity, existence, and location of the Recorded Easement[]"; (4) the Ayoubs previously denied the existence of the Recorded Easement and "have repeatedly and continuously interfered with [Candee's] use of the Recorded Easement[], and thus with the full use of Candee's property," including by "remov[ing] . . . survey stakes and markers, harassing and threatening Candee's contractors and workers, physically blocking the easement with fencing, gates, and vehicles, and endangering Candee and his contractors with vehicles and rocks"; (5) based on the prior use of the claimed Strip A and Strip B easements, a prescriptive easement was warranted over Strip A, and an easement by implied public dedication has been established over Strip B; (6) the Ayoubs "made credible threats of violence toward Candee, his family members, and his contractors," and have "committed unlawful acts of violence toward Candee, his family members, and his contractors"; (7) Mr. Ayoub threw rocks at Candee as he operated a bulldozer while both men were on Candee's property, but Mr. Ayoub's actions did not constitute an assault or battery under applicable law; (8) the bulldozer was damaged in the amount of $950 and Mr. Ayoub's removal of the stakes caused $4,240 in damages; (9) Candee purchased the Western property with the intent to develop it as an avocado grove, and the Ayoubs' actions caused Candee to lose two years of net profits in the amount of $496,000; and (10) clear and convincing evidence established the Ayoubs engaged in "malicious," "oppressive," and "despicable conduct," warranting $250,000 in punitive damages.
In the final judgment, the court ruled in favor of Candee on Mrs. Ayoub's complaint and on Mr. Ayoub's cross-complaint. The court entered judgment in Candee's favor on his cross-complaint against the Ayoubs as follows: (1) $751,190 in monetary damages (for conversion, trespass, lost profits, and punitive damages); (2) quiet title to the Strip A and Strip B easements; (3) declaratory relief recognizing the existence of the Recorded Easement; (4) injunctive relief enjoining the Ayoubs from: (a) threatening, harassing, or otherwise interfering with Candee's or his agents' use of the Recorded Easement, and the Strip A and Strip B easements; (b) destroying or removing survey stakes or markers on the three easements; and (c) trespassing on Candee's land. The court later awarded Candee $59,700 in attorney fees.
DISCUSSION
I. Appellate Review Standards
A challenged order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) " 'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Ibid.; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
Many of the Ayoubs' appellate contentions challenge the trial court's factual findings. In evaluating these contentions, we consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. (Tribeca Companies LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1102 (Tribeca).) If evidence supports the finding, " 'no matter how slight it may appear in comparison with the contradictory evidence, the [finding] must be upheld.' " (Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 488.) An appellate court " ' "must presume that the record contains evidence to support every finding of fact . . . ." ' [Citations.] It is the appellant's burden . . . to identify and establish deficiencies in the evidence. [Citation.] This burden is a 'daunting' one." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) These rules apply to challenges to the factual findings contained in a statement of decision. (See Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935; Estate of Young (2008) 160 Cal.App.4th 62, 75-76.)
On legal questions, we apply a de novo review and exercise our independent judgment. (San Bruno Committee for Economic Justice v. City of San Bruno (2017) 15 Cal.App.5th 524, 529.) We are not bound by the court's stated reasons; we review the ruling, not its rationale. (Ibid.)
II. The Ayoubs' Affirmative Claims Against Candee
Mrs. Ayoub's complaint alleged a trespass cause of action against Candee. Mr. Ayoub's cross-complaint alleged unspecified causes of action against Candee. The court granted Candee's motion for judgment under section 631.8, finding that neither party presented any credible evidence to support these claims. In challenging this ruling, the Ayoubs contend principally that the court erred in refusing to permit their counsel to conduct redirect examinations after the court made express findings that neither party was credible and had been impeached in numerous ways. The Ayoubs also raise several other related challenges. The Ayoubs have not met their burden to establish prejudicial error.
A. Background
On their affirmative claims, the Ayoubs' counsel called Mr. and Mrs. Ayoub. Mrs. Ayoub was the first witness, and after her direct and cross examinations were complete, the court asked whether the Ayoubs' counsel wanted to conduct a redirect examination, but counsel responded: "I have no further questions, your Honor."
Mr. Ayoub then testified as to his version of the July 27, 2013 incident, and the $150,000 claimed property damages allegedly caused by Candee on the Ayoub property. After his counsel completed direct examination, Candee's counsel conducted cross-examination. During the cross-examination, the court asked to see counsel in chambers. After the unreported chambers conference, the court told Candee's counsel to continue. Candee's counsel then stated: "Your Honor, based on the discussion in chambers I would request that the court make a finding that this witness is not credible, has been impeached, is evasive, and . . . put forth no credible testimony." The court responded: "The court so finds. You may step down, Sir."
The Ayoubs' counsel then asked whether it would be possible "to redirect or rehabilitate the witness." The court responded: "Well based upon the court's findings that this witness is not credible, is evasive, and has not put forth a prima facie case, I don't think there is any rehabilitation that can happen based upon all of the evidence on direct and on cross. We simply can't continue with this. So your request is denied." The court also said it was making these same findings as to Mrs. Ayoub. The court then asked whether there were any other witnesses, and the Ayoub's counsel responded, "No your Honor" and stated that "Plaintiff[s] rest[]."
Candee then moved for judgment under section 631.8, and the court granted the motion, "for the reasons previously stated."
B. Section 631.8
Section 631.8 states: "After a party has completed his presentation of evidence in a trial by the court, the other party . . . may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party . . . . The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party."
On appeal from a ruling dismissing a cause of action under section 631.8, the reviewing court views the evidence most favorably to the respondent and examines whether substantial evidence exists to support the judgment. (Medrazo v. Honda of North Hollywood (2012) 205 Cal.App.4th 1, 10.)
C. Analysis
The Ayoubs do not challenge that substantial evidence supported the court's factual finding that they did not prove their claims and that their testimony was not credible. But they argue the court erred in not allowing their counsel to conduct redirect examinations to rehabilitate their credibility.
The argument is unavailing because the record does not support that a redirect examination would have altered the court's evaluation of the evidence. The court heard the Ayoubs' testimony during direct examination and cross-examination, and found their testimony was not credible and had been impeached by the evidence, including documentary evidence.
The Ayoubs' counsel did not make an offer of proof as to the nature of any new or different testimony. "A judgment cannot be set aside on the ground that the court erroneously excluded evidence unless the substance, purpose and relevance of the excluded evidence were made known to the court by an offer of proof or by other means." (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113; accord Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 886; Evid. Code, § 354.) This rule arises from the fundamental principle that a trial court error does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (§ 475; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447; see F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108.) On the record before us, there is no showing the requested redirect examinations would have elicited any evidence materially different from the parties' prior testimony. Therefore, the Ayoubs did not meet their appellate burden to show prejudicial error.
The Ayoubs also challenge the court's judgment against them on their affirmative claims based on their contention that the court erred in refusing to permit them to show the videotape of the bulldozer incident. However, as detailed in Discussion part III.D. below, the Ayoubs forfeited this contention by failing to obtain a ruling from the court. (See People v. Valdez (2012) 55 Cal.4th 82, 122.) Moreover, the Ayoubs have not met their appellate burden to establish the videotape would have affected the trial court's evaluation of the evidence on their affirmative claims. We have no basis to determine the nature of Mr. Ayoub's asserted claims (and thus cannot assess whether any evidentiary error was prejudicial), and Mrs. Ayoub's trespass claim does not appear to be directly related to the bulldozer incident.
The Ayoubs briefly raise several additional arguments regarding their affirmative claims. We have considered each of these contentions, and determine they are unsupported by the record. For example, the Ayoubs argue that after the court granted Candee's section 631.8 motion, the court would not "allow" Mr. or Mrs. Ayoub to testify during the second trial phase. However, Mr. Ayoub did in fact testify during the second phase as an adverse witness under Evidence Code section 776, and the court specifically asked the Ayoubs' counsel if she wanted to question Mr. Ayoub, but the Ayoubs' counsel told the court she had decided not to do so. The Ayoubs' counsel likewise never called Mrs. Ayoub as a witness during the second trial phase. Accordingly, this claimed error is factually unsupported.
On the record before us, the court properly granted judgment in Candee's favor on the Ayoubs' claims against him.
III. Candee's Causes of Action Against the Ayoubs
On Candee's affirmative claims, the Ayoubs challenge the court's rulings on (1) the existence of the easements; (2) compensatory (lost profit) damages; (3) punitive damages; (4) the claimed exclusion of the videotape evidence; and (5) the attorney fees award. We address each of these contentions below.
A. Easements
The court granted Candee declaratory relief upholding the existence of the Recorded Easement. The court also granted quiet title in Candee's favor on the claimed Strip A and Strip B easements. The court found Strip A was a "prescriptive easement for ingress and egress and for the construction, maintenance, and repair of a roadway . . . for the benefit of the current and future owners of [the Western property]," and found Strip B is a "public dedication for ingress and egress, and for the construction, maintenance, and repair of a roadway . . . for the benefit of the public at large." As explained, we uphold the rulings on the Recorded Easement and on the Strip A easement, but reverse as to the Strip B easement.
1. Recorded Easement
Although in their opening brief the Ayoubs appear to challenge the court's findings on the Recorded Easement, in their reply brief they acknowledge the "instant appeal does not challenge the existence or validity of the [R]ecorded [E]asement adjudicated below." This concession is understandable given that their counsel stipulated to the existence of the Recorded Easement in the trial court, and the stipulation appears to be consistent with recorded documents and the title report.
2. Prescriptive Easement
The Ayoubs challenge the sufficiency of the evidence to support the court's finding that Strip A is an easement by prescription.
To establish a prescriptive easement, the moving party has the burden to show by clear and convincing evidence that the owners of the benefited property (or their predecessors) used the claimed easement in an "open, notorious, continuous and adverse" manner "for an uninterrupted period of five years." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) Whether these elements have been established "is a question of fact for the trial court [citation], and the findings of the court will not be disturbed where there is substantial evidence to support them." (Ibid.; accord Connolly v. Trabue (2012) 204 Cal.App.4th 1154, 1162.) "The usual rule of conflicting evidence is applied, giving full effect to respondents' evidence, however slight, and disregarding appellant's evidence, however strong." (Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.) " 'Where the trial court . . . has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]' " (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.)
In this case, the court made findings that there was "credible and undisputed evidence that [Strip A] [was] used openly and notoriously for a period of at least five years prior to the filing of this lawsuit . . . by [Candee's] predecessors-in-interest in [the Western property] . . . ." Substantial evidence supports these findings.
The expert surveyor, Janda, testified that Strip A was a graded road that led to a "graded . . . leveled out area" (referred to as a dirt "pad") on Candee's Western property. Janda said that a pad is "like a leveled-out area that normally is used to put a building on." Based on his examination of prior aerial photographs, Candee estimated the Strip A road and the pad had existed for "well over twenty years."
Candee also presented evidence showing the Strip A road was in a drivable condition (although not smooth or well-paved) and it had been regularly used by drivers for at least five years. Candee testified that he had seen vehicles "coming and going" in this area, and he had noticed tire tracks on the Strip A and Strip B roads. Candee said the Strip A and Strip B roads were "very well constructed" and would have taken weeks to build. Based on his construction experience, he opined that "[s]omebody had put a lot of time and effort into building those roads and pads in there."
A tenant who lived on the Ayoubs' property at various times from about 2008 to 2012 testified that when he lived on the property, he saw regular and frequent vehicular traffic on the Strip A and Strip B roads. He said he saw people using the roads more than once a month. Mr. Ayoub told this tenant to keep a chain across the road, preventing people from using these roads. The tenant testified that Mr. Ayoub would "scream[] that he didn't want [anyone] . . . crossing the property."
Viewed together, this evidence was sufficient to support the court's factual finding that Candee met his burden to show that Strip A has been used for the relevant five-year period. The evidence supported a reasonable inference that the Strip A road had been used by predecessor owners of the Western property to drive to and from the cleared-out pad and that this use had been open and continuous for the required five-year period.
The Ayoubs' challenges to this conclusion are based on their disagreement with the court's factual evaluation of the evidence. These arguments do not establish reversible error. As an appellate court, we do not reweigh the evidence or second-guess witness credibility. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) We are required to draw all reasonable inferences favoring the court's ruling. (Tribeca, supra, 239 Cal.App.4th at p. 1102.) A trier of fact is required to reject evidence only " 'when it is inherently improbable or incredible, i.e., " 'unbelievable per se,' " physically impossible or " 'wholly unacceptable to reasonable minds.' " [Citations.]' " (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) There is nothing in the record showing the court was required to reject the evidence under these standards.
3. Easement By Dedication
The trial court found Candee did not meet his burden to show a prescriptive easement on Strip B because there was insufficient evidence showing Candee or his predecessors in interest had used this road, which is an essential element of a prescriptive easement. (See Scher v. Burke, supra, 3 Cal.5th at p. 141; Applegate v. Ota, supra, 146 Cal.App.3d at p. 710.) But the trial court accepted Candee's argument that an easement arose by implied public dedication because there was evidence that members of the public had used the road for the requisite five-year period.
In their opening brief, the Ayoubs challenged the sufficiency of the evidence to support this factual finding. After the parties completed briefing on this issue, we asked the parties to provide supplemental briefing on Civil Code section 1009, which states that "no use" of private noncoastal property "by the public after the effective date of this section [March 4, 1972] shall ever ripen to confer upon the public . . . a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property . . . ." (Civ. Code, § 1009, subd. (b), italics added; see Scher v. Burke, supra, 3 Cal.5th at pp. 143-150.)
In response to this request, Candee conceded the court erred in ruling that Strip B was an easement based on an implied public dedication and that the trial record does not support an alternate ground for the easement. We agree with this concession. Civil Code section 1009, subdivision (b) prohibits implied dedications of noncoastal private property for public use arising from post-March 4, 1972 use. (Scher v. Burke, supra, 3 Cal.5th at pp. 143-150.) Accordingly, we reverse the portion of the judgment recognizing the existence of an easement on Strip B.
B. Lost Profits Award
The court found the Ayoubs' interference with Candee's legal right to use the Recorded Easement prevented him from accessing his Western property and thus prevented him from developing the property as an avocado grove, resulting in two years of lost net profits in the amount of $496,000. The Ayoubs challenge the sufficiency of the evidence to support the court's lost profits finding. The argument is without merit.
1. Legal Principles
A plaintiff may recover profits that would have been earned but for the defendants' wrongful conduct in both contract and tort actions. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773-775 (Sargon); Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 883 (Kids' Universe).) " '[T]he general principle [is] that damages for the loss of prospective profits are recoverable where the evidence makes reasonably certain their occurrence and extent,' " even if they cannot be proved " 'with "mathematical precision." ' " (Sargon, at pp. 773-774.)
If the defendant's conduct prevents or interrupts an established business's operation, " 'damages for the loss of prospective profits . . . are generally recoverable [because] their occurrence and extent may be ascertained with reasonable certainty from the past volume of business and other provable data relevant to the probable future sales.' " (Sargon, supra, 55 Cal.4th at p. 774.) But even without a business history, a plaintiff may prove entitlement to lost profits damages if he or she presents evidence showing to a reasonably certain degree that these profits would have been earned. (Parlour Enterprises, Inc. v. Kirin Group, Inc. (2007) 152 Cal.App.4th 281, 288; Kids' Universe, supra, 95 Cal.App.4th at p. 885; S. Jon Kreedman & Co. v. Meyers Bros. Parking-Western Corp. (1976) 58 Cal.App.3d 173, 184-185.) " ' " '[E]xpert testimony alone is a sufficient basis for an award of lost profits in the new business context when the expert opinion is supported by tangible evidence with a "substantial and sufficient factual basis" rather than by mere "speculation and hypothetical situations." ' [Citations.]" ' " (Parlour Enterprises, at p. 288.)
2. Factual Summary
Candee testified and presented evidence that he purchased the Western property for the express purpose of developing the property as an avocado grove to sell avocados for a profit. He testified about the specific steps he took to develop the avocado grove, and that he was prevented from doing so because the Ayoubs improperly blocked access to the Recorded Easement.
To show the loss of profits resulting from this conduct, Candee testified as a farming expert and also presented the testimony of agricultural-business expert Scott McIntyre. The Ayoubs' attorney conceded their qualifications to testify as experts on the subject of avocado farming.
Candee testified that he has been successfully growing avocados on multiple parcels in the same area for about 10 years. He said the price per pound of avocados is about $1.25 or $1.30, and that the average price is "probably around" $1 to $1.10. He testified that the Western property has good exposure and soil type; about 30 out of the 40 acres would be plantable, and that the yield is an average of 15,000 pounds of avocados per acre (depending on various factors including the weather). Based on these and other facts, Candee said that a reasonable estimate of his gross income would be $450,000 per year and, subtracting for expenses, the net income would be about $10,000 per acre (or $300,000 per year) based on a 30-acre yield. Candee's counsel thus argued that the Ayoubs' actions in wrongfully blocking access to the Recorded Easement caused him to lose a total of $600,000 (for the two-year period).
McIntyre is a farm manager with substantial experience in managing, owning and leasing avocado groves for himself and absentee owners, and in marketing avocados. McIntyre testified that Candee's avocado groves in the nearby area "are very professionally done," Candee is "one of the better farmers in the area," and the quality of the farm management affects an avocado grove's profitability. McIntyre agreed that about 30 acres of the 40 acres on the Western property can support avocado trees. After discussing the various factors relevant to the determination, he opined that Candee's loss from two years of delayed avocado tree planting is "two years of mature profits," which in this case is $392,000. The Ayoubs did not present any contrary evidence on these issues.
After considering this and other evidence, the court found "Candee purchased the [Western property] with the full and clear intention to develop it as an avocado grove. Candee was already an experienced and successful avocado farmer, so the business was not new to him. In the De Luz area [the area where the Western property is located], avocados are the largest commercially-grown agricultural crop; thus it is not a new business. [¶] . . . Candee was prevented for a period [of] two (2) years from developing the [Western property] into an avocado grove as a direct and proximate result of the [Ayoubs'] actions. [¶] . . . The expert testimony provided by Candee and . . . McIntyre provided a satisfactory basis for determining with reasonable certainty the gross income and related expenses that would have occurred had Candee been able to develop and operate the property into an avocado grove as he intended. [¶] . . . As a result of the [Ayoubs'] actions, Candee has lost two years of avocado grove net profits. [¶] . . . Thus, the [Ayoubs] are liable to Candee for the loss of two years of net profits at maturity, since the development will still have to be done, and the years lost at maturity are permanent. [¶] . . . The total damage for two years of lost net profits at maturity is $496,000, determined by averaging the loss calculations of the two experts."
3. Analysis
Viewing the evidence in the light most favorable to Candee, the court had an ample basis to find Candee purchased the property to plant a commercial avocado grove; the Ayoubs' actions in precluding use of the Recorded Easement prevented Candee from planting the avocado grove; and the experts provided a reasonably certain basis to estimate the damages from two lost years of plantings. On the latter point, both experts provided specific grounds to establish that although Candee had never grown avocado trees on the Western property, he would have been successful in doing so. The court's decision to calculate the losses by taking an average of the two expert's loss estimates was reasonable.
We have reviewed each of the Ayoubs' challenges to these conclusions, and find they are without merit. For example, they rely on an 1899 California Supreme Court decision in support of their argument that lost profits are not recoverable under tort law unless they are specially alleged. (Lombardi v. California S. R. Co. (1899) 124 Cal. 311.) Even assuming Lombardi stands for this proposition and reflects current law, Candee's cross-complaint did sufficiently identify lost business profits as a specific item of damages. Further, the court granted Candee's unopposed motion to amend his pleadings according to proof.
The Ayoubs also contend "[t]he testimonies of both experts . . . failed to show any past experience of profitability of the [Western property] or any parcel under . . . Candee's management." However, the record supports that Candee had experience with planting avocado groves in comparable conditions. McIntyre testified that Candee's nearby avocado groves "are very professionally done," Candee is "one of the better farmers in the area," and the quality of the farm management affects an avocado grove's profitability. Based on the experts' opinions, the court had a reasonable basis to conclude that if Candee had not been precluded from planting avocado trees on his Western property, he would have obtained a profitable yield at full maturity. In arguing to the contrary, the Ayoubs are asking this court to reweigh the evidence and to second-guess the trial court's conclusions. On our substantial evidence review, we are bound by the court's factual conclusions and must infer all reasonable factual inferences supporting the court's conclusions.
We also reject the Ayoubs' contention that Candee failed to mitigate his damages. First, there is no showing they raised this argument below. Second, there is no basis to conclude mitigation measures would have prevented the losses. The Ayoubs' suggestion that Candee could have used the Recorded Easement during those two years because the gate remained open ignores the evidence that Mr. Ayoub had physically threatened Candee and his agents, and both Ayoubs had continued to deny that Candee had a legal right to use the Recorded Easement. We also find unavailing the Ayoubs' suggestions that Candee failed to mitigate his losses because he made no effort to obtain a preliminary injunction. The Ayoubs do not cite any authority showing that a party is barred from obtaining full damages unless he or she sought preliminary relief. And we decline to adopt such a rule. It is the Ayoubs, and not Candee, who was responsible for Candee's inability to access the Recorded Easement.
C. Punitive Damages
In challenging the $250,000 punitive damages award, the Ayoubs contend Candee did not meet his burden to establish (1) the Ayoubs acted with oppression, fraud, or malice; and (2) their financial condition showed they had an ability to pay the award.
1. Oppression, Fraud, or Malice
To recover punitive damages in a tort action, the plaintiff must prove by clear and convincing evidence that the defendant acted with "oppression, fraud, or malice." (Civ. Code, § 3294; see Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 712.) We review a court's findings on these matters for substantial evidence. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)
The court orally stated the Ayoubs' unjustified conduct in preventing Candee from using his property for a two-year period caused "cruel and unjust hardship." In the statement of decision, the court found "by clear and convincing evidence" that the Ayoubs (1) "acted with malice and oppression toward Candee"; (2) intended to cause injury to Candee; and (3) "engaged in despicable conduct with a willful, conscious disregard of the right and safety of Candee and his contractors." The court found that the punitive damages "should be awarded against the [Ayoubs] to punish and deter [their] wrongful conduct."
Substantial evidence supported these factual findings. The evidence showed that Mr. Ayoub engaged in violence (throwing rocks at Candee while he was driving his bulldozer) and/or made serious physical threats of violence against Candee, Candee's son, and Candee's workers, and engaged in dangerous and risky behavior in confronting these individuals. The evidence also showed that Mr. Ayoub would not comply with the directions of law enforcement officers during these incidents. Further, the record supports that Ayoub had no reasonable basis to deny the existence of the Recorded Easement because the easement was identified on recorded documents, and the Ayoubs' continued actions in precluding Candee's access were solely to interfere with Candee's legitimate property rights and delay Candee's ability to use his property. Additionally, the record supports that Mr. Ayoub had threatened other purported trespassers with extreme violence, including the use of a machete.
On this record, substantial evidence supports the court's conclusion that Mr. Ayoub engaged in malicious, oppressive, and despicable conduct in precluding Candee's use of the Recorded Easement to obtain access to his 40-acre property, and that punitive damages were needed to deter him from continuing to engage in this conduct. Although there was no evidence showing Mrs. Ayoub personally engaged in the most egregious wrongful conduct, Mrs. Ayoub's name was on the title to the property and the court found Mr. Ayoub acted as her agent. Outside the employer-employee context, a principal can be held liable for punitive damages based solely on evidence that the agent engaged in the improper conduct while the agent was acting within the scope of the agency. (See Rest. 2d Torts § 909(c); see also CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261-1262 & fn. 5.)
In challenging the court's malice and oppression factual findings, the Ayoubs rely on their version of the evidence. For example, they state that they "were reasonably justified in relying on their deed and had no ill will or desire to oppress anyone. They simply wanted to protect their land from any unlawful usurper or anyone damaging their property." They further argue that "[i]f a reasonable person views all the evidence . . . , one must come to the reasonable conclusion that neither appellants nor respondents were on their best behavior, but both acted in a reasonable manner to protect their property interest."
In asserting these arguments, the Ayoubs ignore the applicable review standard. We must consider the evidence in the light most favorable to Candee, giving him the benefit of every reasonable inference and resolving conflicts in support of the judgment. (Tribeca, supra, 239 Cal.App.4th at p. 1102.) The court rejected the Ayoubs' arguments that their conduct was reasonable. The court had a sufficient basis to do so.
The Ayoubs also contend the court's refusal to admit a videotape taken by Mr. Ayoub during the July 27 bulldozer incident prejudicially affected the court's evaluation of the evidence regarding the nature of Mr. Ayoub's conduct for purposes of imposing punitive damages. However, as discussed in Discussion part III.D. below, the Ayoubs forfeited this argument by failing to ask the court to admit the videotape during the second phase of the trial. Additionally, the court's malice and oppression findings were based on more than the bulldozer confrontation. In awarding punitive damages, the court's focus was on the Ayoubs' lengthy and repeated refusals to permit Candee to have any reasonable access to his 40-acre property despite being on actual notice that Candee had the legal right to use the Recorded Easement. The court was also aware, based on Candee's admissions, that Candee lost his temper during the confrontation, and called Mr. Ayoub names. Thus, even if the court had viewed the videotape and it had supported some of Mr. Ayoub's assertions, we are satisfied the court would have reached the same conclusion on the punitive damages award.
2. Financial Condition
In seeking punitive damages, a plaintiff must present "meaningful evidence" of the defendant's financial condition and ability to pay to ensure the award is proportionate and not excessive. (Adams v. Murakami (1991) 54 Cal.3d 105, 109, 110-116; accord Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1185; Baxter v. Peterson (2007) 150 Cal.App.4th 673, 680.) Although the defendant's net worth is often the best measure of its ability to pay a punitive damage award, there is no "rigid standard for measuring a defendant's ability to pay." (Adams, at p. 116, fn. 7; accord, Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 79-80.) When a punitive damages award is challenged as excessive, the reviewing court must evaluate whether the damage amount " 'exceeds the level necessary to properly punish and deter.' " (Adams, at p. 110.)
In awarding punitive damages, the court stated it found "[s]ufficient evidence" of the Ayoubs' ability to pay the $250,000 award based on: "(i) Tarek Ayoub's testimony as to the $2 million value of the Ayoub Property and the title report showing an encumbrance in the original amount of $750,000; (ii) Tarek Ayoub's testimony as to selling a business he owned with $300 million in annual sales and retiring at approximately age 43; (iii) Tarek Ayoub's testimony of earning approximately $60,000 per year from a hobby farm [on the Ayoub property]; and (iv) unrefuted testimony [by the Ayoubs' former tenant] that the Ayoubs sent suitcases of money overseas because they did not trust banks."
In their opening appellate brief, the Ayoubs challenge only the suitcases-filled-with-money evidence. They argue the tenant's testimony on this issue was vague and contradictory and cannot logically support a conclusion that the Ayoubs had the ability to pay a $250,000 punitive damages award.
However, even if we disregard this testimony, the remaining evidence is sufficient to show the Ayoubs could afford to pay the $250,000 without excessive financial strain. They live on about 35 acres of property worth at least $2 million in about 2007; the property had been initially encumbered by a $750,000 lien; the Ayoubs admitted they earned at least $60,000 from their "hobby farm" on the property; and Mr. Ayoub admitted he had retired as a successful businessperson 10 years earlier at the age of 43 after selling his business with $300 million in annual sales. Additionally, although Mrs. Ayoub's name was on title to the Ayoub property, the evidence supported that both parties benefited from the value and earnings from the property.
In their reply brief, the Ayoubs argue the financial information was not sufficiently "current." This argument was not raised in their opening brief and there is no showing the Ayoubs raised this argument at trial. The argument is thus forfeited. (SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18.) The Ayoubs additionally forfeited this point by failing to develop the argument or cite any supporting legal authority in their reply brief. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) The challenge is too little and too late.
D. Videotape Evidence
The Ayoubs contend the court erred in refusing to admit two videotapes taken by Mr. Ayoub on July 27, which they say show Candee was acting "less than civil" and "operating his bulldozer in a threatening manner."
1. Factual Background
During direct examination in the first trial phase, Mr. Ayoub testified that Candee almost hit him with the bulldozer during the July 27 incident, and that Mr. Ayoub attempted to walk away from the confrontation. He testified that after Candee stopped and exited the bulldozer, Candee "came at [him]" and "struck [him], and "I have that [conduct] on video." He said he "had the entire time a video camera in my hand on my iPad, and I was filming the entire incident."
The Ayoubs' attorney then said she would "like to show the videos . . . referred to concerning [this] . . . incident . . . ." When Candee's counsel objected and asked to see copies of the videos, the court took a break and told counsel to discuss the issue.
After the break, Candee's attorney said that the Ayoubs' counsel had informed him she planned to show four videotapes taken by Mr. Ayoub with his iPad, and that Candee objected to two of these videotapes on the basis that the videotapes appeared to have been edited and contain third-party hearsay statements. After discussion between counsel, the court said: "To better utilize our time, why don't we continue [with Mr. Ayoub's testimony]. The two of you can work out whatever and have an edited version that you agree to, or not, as it works out. And you can do that this evening." Both counsel agreed.
The next morning, the parties and the court discussed the videos. The parties told the court that there were four videos: three were taken on July 27, 2013, and one was taken on August 3, 2013. The parties said they were in agreement that two videos could be admitted into evidence: one of the July 27 videos and the August 3 video. Candee's counsel said he was objecting to the other videos because his client believed one of the videos "has been edited to present an inaccurate presentation of the facts." He made an offer of proof that Candee would testify he saw Mr. Ayoub videotaping other incidents at about the same time, but those incidents were not included on the same video. He argued the two challenged videos do not provide "a fair representation" of the events.
The Ayoubs' counsel responded that the challenged videotape "has to do solely with the bulldozer incident that my client testified to yesterday. And it's my understanding that a photograph or video is usually presented, and once it's authenticated it's just to be presented as a fair and accurate representation of the scene it depicts. So I think it's just basically going over from beginning of incident to end of incident, everything that happened with the bulldozer." Counsel said: "[A]s an offer of proof [Mr. Ayoub] will testify that he's not very familiar with" the iPad that he used to take the videos and he may have inadvertently failed to turn on the video at certain times during the incident. Shortly after, the court interrupted and the following colloquy took place:
"THE COURT: I think that the issue is if it was requested in discovery and not entirely produced, then it could be excluded. That's, I think, the issue. I'm a little bit unclear. It seems as though it's the testimony that Mr. Candee saw this same video that you propose to show to me, but there are portions missing.
"[Ayoubs' counsel]: And I guess what I'm asking, your Honor, is that are we referring to that specific bulldozer incident? Because there's more than one video.
"THE COURT: I have no idea. [¶] . . . [¶] I have never seen it.
"[Ayoubs' counsel]: Because the one incident, it seems like . . . if you see from the beginning of the video to the end, they're having an interaction. And then at the end they both walk away. So I'm trying to figure out what more of the video there would be in that particular incident. . . .
"THE COURT: That's . . . what I was hoping the two of you would sit down and say, right here is where there is more footage that's
missing. If in fact that's the case. I have no idea. I haven't seen it. I don't know what you all are talking about. It doesn't sound like I have sufficient information to rule at this time.
"[Ayoubs' counsel]: Okay.
"THE COURT: So I would need to know when it was requested, when it was produced, what was produced, how do you know there is footage missing, what footage is missing, and what the dates are.
"[Ayoubs' counsel]: Okay.
"THE COURT: So . . . I guess if it's a discovery and discovery sanction issue, that's what I need. If it's simply an evidentiary issue regarding foundation, then we need to have that foundation. [¶] If there have been things edited out, again, I think the burden is on [Candee's counsel] to say what date and what footage and what he saw previously and what was missing. But I don't have enough information to do anything at the moment.
"[Candee's counsel]: And, Your Honor, as counsel mentioned, none of the footage—none of the video came in original format with metadata. It's been transferred from an iPad to a desktop, losing the date, the GPS, and the time, and the length. And it's no longer capable of determination of how it's edited. So I cannot tell you what footage is there. I can offer and call Mr. Candee to testify that he has seen additional footage at [a prior] hearing . . . that is not presented there.
"THE COURT: That's what I said. That [Candee] would, either in a declaration—because this is just a motion, either in a declaration or as testimony, say . . . I have seen this video segment, and when I saw it previously, it contained A, B, C, D. [¶] So if it doesn't have any markers, [Candee] would say that there were X minutes or X description. Certainly he would know the date. [¶] . . . [¶] And so I don't even know, as you say, it was downloaded to a computer. So maybe the foundation . . . is lacking in its entirety and not capable of being viewed. [¶] . . . [¶] So I guess we'll put aside the video issue for a while longer.
"[Ayoubs' counsel]: On Video Number 1, correct, Your Honor? So we can still deal with 2 and 4 since we're stipulating to those. I mean, I can go ahead and—
"[Candee's counsel]: I'm stipulating to them being viewed,—[¶] . . . [¶]—not to their probative value and relevance.
"[Ayoubs' counsel]: Okay.
"THE COURT: Well, why would I view it if it has no probative value and relevance?
"[Candee's counsel]: I assume it's going to help his narrative. You know, there is nothing he can't testify to now without the video.
"THE COURT: If you object on relevance—and relevance, not probative, then I wouldn't see it. [¶] Why don't we just table the whole thing."
The court then directed Mr. Ayoub to retake the witness stand, and his counsel continued with her direct examination. Later that day, at the end of her direct examination, the Ayoubs' counsel said to the court, "my only other question is the videos because I know we are holding off on them. Do you want me to lay [a] foundation while he's on the stand? Or would it be an issue that once we figure out what we're doing with the videos then I can put him back on the stand and lay a foundation?" The court said: "Yes, I think the latter." The Ayoubs' counsel then said: "Okay. I just wanted to make sure. [¶] So if that's the case, I'm turning over for cross."
Later that day during Candee's counsel's cross-examination of Mr. Ayoub, the court made findings that Mr. Ayoub "is not credible," is "evasive," and "has been impeached." The court asked the Ayoubs' counsel whether she had other witnesses, and counsel said "No." Counsel did not raise the issue of the video evidence. The court then granted Candee's section 631.8 motion as to Mrs. Ayoub's complaint and Mr. Ayoub's cross-complaint.
Candee then began his affirmative case against the Ayoubs. Neither party mentioned the two challenged videotapes during this phase of the trial. During surveyor Janda's testimony, Candee obtained permission to show the two videotapes to which the parties had previously stipulated. The Ayoubs' counsel did not object, and stipulated that the court reporter did not need to "take down the sound on this."
During closing arguments, Candee's counsel argued that the two videotapes that were shown (by stipulation) "demonstrate that Mr. Ayoub was the instigator. The disdain with which Mr. Ayoub treated [the responding law enforcement officer], when [he] was called to preserve the peace, is, in a word, remarkable. And certainly the restraint of the officer is remarkable in itself." The Ayoubs' counsel did not object to this argument, or ask that the court view the two challenged videos.
None of the videotapes are part of the appellate record before this court.
2. The Ayoubs' Contentions
In their appellate briefs, the Ayoubs contend the court erred in refusing to admit the two challenged videotapes because they were relevant to the July 27 confrontation between the parties, including whether Mr. Ayoub was justified in his conduct towards Candee, and whether Mr. Ayoub acted with malice and oppression and engaged in despicable conduct during the bulldozer confrontation. They contend that the videos would show Mr. Ayoub's actions were reasonable and Candee was acting with "incivility," which they say was "clearly probative" on these issues.
3. Analysis
There was no prejudicial error related to the two challenged videotapes.
During the first phase of the trial, the Ayoubs failed to obtain a ruling on their request to admit the two videotapes. Before granting Candee's section 631.8 motion, the court specifically asked the Ayoubs' counsel whether she had any more witnesses. At that point, the Ayoubs' counsel was obligated to obtain a final ruling on the admissibility of the challenged videotapes, and to reassert her request that the court view these tapes. By failing to do so, the Ayoubs forfeited their claim on appeal.
If a trial court inadvertently fails to rule on a motion, a defendant must make some appropriate effort to obtain the hearing or ruling. (People v. Braxton (2004) 34 Cal.4th 798, 813.) "This is an application of the broader rule that a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent. [Citations.] ' "In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them." ' " (Ibid.; accord People v. Valdez, supra, 55 Cal.4th at p. 122 ["[b]ecause defendant failed to pursue and obtain a ruling on these objections, he may not raise them on appeal"]; People v. Ramirez (2006) 39 Cal.4th 398, 450 [defendant forfeited issue by failing, despite court's invitation to resolve it at a later hearing, to press for a ruling]; People v. Cornejo (2016) 3 Cal.App.5th 36, 56 ["failing to press for a ruling" forfeits appellate contention].)
On Candee's affirmative claims against the Ayoubs, the evidentiary challenge is without merit because the Ayoubs never asked the court to admit the two challenged videotapes during the second phase of the trial, nor did they object to the admission of the two stipulated videotapes. The Ayoubs cannot prevail on a claim that the court erred in refusing to admit the evidence when they never asked the court to allow them to introduce the videotapes to support their defense to Candee's claims. A party cannot successfully argue on appeal that "the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.)
IV. Attorney Fees
The court awarded Candee $59,700 in attorney fees. The Ayoubs challenge the award on the basis that some of the claimed fees were for services that were not necessary or reasonable.
A. Factual Background
After trial, Candee moved for attorney fees on two grounds.
First, he argued he was a prevailing party on his trespass cause of action and thus was entitled to his attorney fees for services related to the trespass claim under section 1021.9, which provides for recovery of attorney fees in actions involving trespass to agricultural land. Candee identified the fees incurred related to the trespass claim as $97,860 ($300 attorney billing rate multiplied by 326.2 hours).
Second, Candee argued he was entitled to fees incurred to prove matters the Ayoubs had denied in their responses to Candee's admissions requests. Candee relied on section 2033.420, which permits the court to award reasonable costs and fees incurred in proving a matter that the opposing party failed to admit in discovery responses. The specific requests for admissions that the Ayoubs had failed to admit related to the existence and use of the Recorded Easement; the removal of the survey markers; and Mr. Ayoub's actions on July 27, 2013. Candee said he incurred $56,700 in proving these matters ($300 billing rate multiplied by 189 hours.)
In support of both of these attorney fee requests, Candee submitted his attorney's declaration, which attached the requests for admissions and denials, and a detailed 66-page breakdown of each attorney service and the amount of hours spent on each service. Candee's attorney marked a "T" next to any service related to proving the trespass claim, and an "RFA" next to any service related to proving a denied request for admission.
The Ayoubs opposed the motion. On the trespass ground, they argued that section 1021.9 applies only to trespass on certain agricultural lands and does not encompass the properties at issue. On the denied-requests-for-admissions ground, the Ayoubs argued (1) it was improper to award expenses on matters before the date the denials were served (January 23, 2015); (2) the Ayoubs had reasonable grounds to deny the requests for admissions; and (3) some of the requests pertained to matters that were "not substantially important." In their opposition papers, the Ayoubs did not contest the reasonableness of the hourly rate or the amount of hours incurred for the various attorney services.
In reply, Candee noted that on the denied-admissions ground he was requesting only those fees incurred after the service date. He also argued the Ayoubs had access to all necessary facts to put them on notice that their denials were untruthful, and the requests for admissions concerned matters central to the case.
The court held a hearing. Although there was a court reporter at the hearing, the Ayoubs did not designate the reporter's transcript of the hearing as part of the appellate record.
After the hearing, the court awarded Candee $59,700 in attorney fees. In a written order, the court stated: "[H]aving read and considered the supporting and opposing points and authorities, and having heard and considered the arguments of counsel, and good cause appearing therefor, [the court orders:] [¶] . . . [¶] 1. The motion is granted in part and denied in part. [¶] 2. [Candee is] awarded a total of $59,700 in attorneys' fees, including $3,000 for fees incurred in preparing the motion."
B. Legal Principles and Analysis
Although the court's order does not state the grounds for the attorney fees award, both parties agree the award was based on section 2033.420, which provides: "If a party fails to admit . . . the truth of any matter when requested to do so . . . , and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (§ 2033.420, subd. (a).) The court must make such an order unless certain exceptions exist. (§ 2033.420, subd. (b).)
"The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial. [Citation.] . . . Unlike other discovery sanctions, an award of expenses [for proving a denied admission request] is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission where the admission sought was 'of substantial importance' [citations] such that trial would have been expedited or shortened if the request had been admitted." (Brooks v. Am. Broad. Co. (1986) 179 Cal.App.3d 500, 509 [discussing predecessor statute].) The trial court's ruling on a section 2033.420 motion is reviewed for an abuse of discretion. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 903-904.)
The Ayoubs have not met their burden to establish the court abused its discretion. Candee proffered specific evidence showing the Ayoubs denied facts which they knew or should have known were true (such as the existence and validity of the Recorded Easement). On appeal, the Ayoubs do not argue that their denials were justified and/or that their denials fell within a statutory exception. Instead, they contend that certain specific attorney services (such as finalizing exhibits, revising the trial brief, and witness preparation) did not "bear . . . [a] reasonable connection" to proving the denied facts.
This argument is forfeited because there was no showing they made this argument below. The argument was not asserted in their opposition brief filed in the trial court, and they did not designate the Reporter's Transcript to be part of the appellate record, so we have no way of knowing whether they orally raised the issue and the court's response to any such assertions. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 ["party challenging the [attorney] fee award" has burden "to provide an adequate record to assess error"]; see also Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-188.) Moreover, on the face of the record, the challenged attorney services appear to be reasonably related to proving matters denied by the Ayoubs and fall within the broad scope of the permissible fees contemplated under section 2033.420. There was no abuse of discretion.
We deny respondents' motion for sanctions on appeal.
DISPOSITION
We affirm the June 10, 2015 judgment, except that we reverse the judgment as to Strip B on Candee's quiet title claim and order the court to reenter the judgment with the following modifications:
(1) On page 6 of the judgment in the first full paragraph, the court shall strike the word "two" and substitute the word "a" and strike the word "easements" and substitute the word "easement." After these modifications, this portion of the sentence shall now read: "Quiet title is granted in favor of Cross-complainant Keith H. Candee as to a 30-foot roadway easement over that certain parcel of property legally described as:"
(2) On page 7 of the judgment, the court shall strike the second full sentence following the property description that reads: "Said two 30-foot roadways are legally described as 'Strip A' and 'Strip B' on Exhibit A (Bates 055-056) attached hereto, and depicted in a drawing dated February 12, 2015, by Dennis Janda, Inc., attached hereto as Exhibit B (Bates 057-058)." The court shall substitute the following sentence: "Said 30-foot roadway is legally described as 'Strip A' on Exhibit A (Bates 055-056) attached hereto, and depicted in a drawing dated February 12, 2015, by Dennis Janda, Inc., attached hereto as Exhibit B (Bates 057-058)."
(3) On page 7 of the judgment, the entire sentence before Section B ("The roadway described as Strip B is adjudicated . . . .") shall be deleted.
The court shall enter the judgment as so modified. The parties are to bear their own costs on appeal.
HALLER, Acting P. J. WE CONCUR:
AARON, J.
IRION, J.
EXHIBIT 1
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