Opinion
E080552
05-10-2024
LYNN MACY et al., Plaintiffs and Appellants, v. MARK EASON et al., Defendants and Respondents
Lynn Macy and Jeff Macy, in pro per., for Plaintiffs and Appellants. Law Offices of John G. Wurm and John G. Wurm, for Defendants and Respondents; Mark Eason, in pro per.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. CIVSB2025155 Brian S. McCarville, Judge. Affirmed.
Lynn Macy and Jeff Macy, in pro per., for Plaintiffs and Appellants.
Law Offices of John G. Wurm and John G. Wurm, for Defendants and Respondents; Mark Eason, in pro per.
OPINION
RAPHAEL, J.
The owners of two adjacent properties sued one another over a boundary line dispute. At trial, on a motion for judgment by the defendants, the court found neither party should receive relief. It entered judgment for defendants on the complaint and in favor of plaintiffs on the cross-complaint.
Plaintiffs and appellants Jeff Macy and Lynn Macy, representing themselves in this appeal as they did at trial, argue the trial court erred in finding they had failed to present any admissible evidence of the boundary line between the parties' properties and entering judgment against them on that basis. In plaintiffs' view, a record of survey they offered into evidence, but which was excluded for lack of foundation, was admissible evidence of the boundary line. In the alternative, they argue the trial court should have granted them a continuance to enable them to bring the surveyor to testify at trial. We find plaintiffs have not demonstrated any error and therefore affirm the judgment.
We note, although neither party has, the rule that a trial court ordinarily should not just dismiss a quiet title action when the plaintiff loses, "but instead should issue a judgment setting forth the declaration of rights and thus ending the controversy." (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 305.) The judgment here, declaring that neither party is entitled to any relief on their competing claims, leaves the dispute in limbo. Nevertheless, since we have not been asked to decide what, if anything, can or should be done about that, we do not discuss it further.
FACTS
The parties own adjacent properties. Our record is limited, but defendants and appellants Mark Eason and Linda Koupeny's property is apparently a 55-foot-wide residential parcel, improved by the house where they live. Plaintiffs' property is 36 acres and unimproved. The disputed area of property is about 500 square feet.
Defense counsel told the trial court that in September 2022 Koupeny deeded her interest to Eason's daughter. Eason's daughter, however, has not been joined as a party to this case, and the change of ownership has no bearing on our analysis.
Plaintiffs filed their "Complaint to Quiet Title and for Injunctive Relief" (complaint) in December 2020. The complaint seeks to quiet title in the disputed portion of property, as well as injunctive relief requiring removal of "illegal wiring, [a] shed with perimeter foundation, fences, [and] all decks to 11' side setback as required by building and safety zoning laws." Defendants filed their "Cross-Complaint for Quiet Title of Easement" (cross-complaint) in July 2021. The cross-complaint alleges defendants own an easement by prescription or, in the alternative, an equitable easement to maintain and use the disputed improvements.
On the first day of a bench trial in January 2023, plaintiffs sought to introduce into evidence a record of survey, which they represented was prepared by a licensed surveyor, to show the location of the boundary line between the parties' properties. They failed to recognize, however, that the surveyor's testimony might be necessary, believing that the signed and "official stamped" document, consisting of a map with some explanatory text, was "exactly perfect" on its own, or together with Jeff Macy's testimony of witnessing the surveyor conduct the survey and place markers, as well as his pictures and videos of that process. The trial court sustained the defense's objection, finding the document was "hearsay and can't come into evidence absent an appropriate foundation," and explaining that "[o]nly the surveyor can establish the opinion. He or she has the expertise."
During the rest of the day's proceedings, plaintiffs presented no other admissible evidence demonstrating the location of the boundary line between the properties. Defendants announced their intention to make a motion for judgment under Code of Civil Procedure section 631.8 (section 631.8), reasoning that if plaintiffs "cannot establish the boundary line or the location of encroachments, then all further evidence would be irrelevant." At the end of the day, the court noted the surveyor had not been included on the parties' joint witness list, which apparently was prepared by defense counsel but was signed by both plaintiffs. Plaintiffs' most recent estimate of the length of trial was one day, though they had previously estimated two days. Nevertheless, citing the maxim that "the Court should make its decision based upon all the evidence," the court gave plaintiffs until the next day to have the surveyor appear and testify, or to come up with other evidence of the boundary line: "I'll give you that opportunity, but if you don't have a witness tomorrow, the case is over because there's no way to establish the property lines in this case without it."
Defendants moved to augment the record with a copy of the "Trial Requirements" for the department where this case was tried. We deemed the motion a request for judicial notice, and reserved ruling for consideration with this appeal. We now deny the request, as those requirements are irrelevant to our analysis.
Addressing defense counsel, the court added: "I'm assuming that your crosscomplaint, if the Court rules in your favor [on a motion for judgment] would be terminated." Defense counsel confirmed: "That's a correct assumption, your Honor."
Plaintiffs did not manage to bring the surveyor to court the next day. Jeff Macy explained the surveyor had told him he would appear, but then cancelled last minute: "I called him. It's snowing and he had people to do . . . I thought he would show up. He said he would." Plaintiffs had not subpoenaed the surveyor to appear. Plaintiffs requested a continuance so that the surveyor could be subpoenaed. The court denied the request, finding "no basis for a continuance" and adding: "Given the exercise of my discretion I wouldn't do it. If you had subpoenaed the witness prior to the trial and then there was a weather issue, the Court would see that as potential good cause, but it's just not there." It granted plaintiffs' oral motion for judgment under section 631.8. It later entered judgment accordingly, ordering plaintiffs "shall take nothing by way of their Complaint" and defendants "shall take nothing by way of their Cross-Complaint."
The judgment also contemplates costs "to be awarded pursuant to [a] Memorandum of Costs." We infer such an award may have been made because in briefing plaintiffs ask that we reverse an award of "damages." Nevertheless, an award of costs is not otherwise mentioned in briefing, and no order awarding costs is included in our record. No appellate issue regarding costs, therefore, has been properly presented for our consideration.
DISCUSSION
Plaintiffs argue the trial court erred in excluding the record of survey from evidence and granting judgment for defendants on the complaint. We find no error.
"The standard of review of a judgment and its underlying findings entered pursuant to section 631.8 is the same as a judgment granted after a trial in which evidence was produced by both sides." (San Diego Metro. Transit Dev. Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.) When, as here, a party challenges on appeal a ruling that it failed to carry a burden of proof, the substantial evidence standard is inappropriate, and "'the question . . . becomes whether the evidence compels a finding in favor of the appellant as a matter of law.'" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466 (Sonic).) Specifically, the question becomes whether the appellant's evidence was (1) "'"uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."'" (Ibid.)
"The usual rules governing hearsay evidence are the starting point of our analysis." (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523 (Korsak).) "'Surveyors and civil engineers, like other experts, may give testimony on questions involving matters of technical skill and experience with which they are peculiarly acquainted.'" (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 737-738 (Bloxham).) Here, on its face, plaintiffs' record of survey documents a surveyor's work identifying the location of the boundary between the parties' properties. A report by a nontestifying expert, however, is hearsay if offered for the truth of statements it contains. (People v. Landau (2016) 246 Cal.App.4th 850, 874; see Evid. Code, § 1200 [defining hearsay evidence as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated"].) "Such evidence is inadmissible at trial unless it falls within one of the recognized exceptions to the hearsay rule." (Korsak, supra, 2 Cal.App.4th at p. 1523.)
Plaintiffs view the record of survey as "self-evident, sufficient evidence on its own merit." But they have identified no exception to the hearsay rule that might apply here, or other authority that might support their view. So far as we can discern, there is none.
We also find no merit in plaintiffs' suggestion that Jeff Macy's experience as a "licensed builder whose knowledge of surveys should have been sufficient" in the absence of the surveyor's own testimony. It is doubtful that being a licensed builder familiar with using surveys would qualify someone to opine as an expert about conducting a survey. In any case, "[a]n expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by non-testifying experts. '"'The reason for this is obvious. The opportunity of cross-examining the [nontestifying experts] as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.'"'" (People v. Campos (1995) 32 Cal.App.4th 304, 308.) Thus, no matter his qualifications, Jeff Macy's proferred testimony could not substitute for foundational testimony by the surveyor who conducted the survey and signed the record of survey. The trial court correctly ruled that the record of survey was inadmissible hearsay absent the surveyor's testimony.
Moreover, a survey simply is not definitive proof of the location of a disputed boundary line, as plaintiffs would have it. "Under California law, the location of a disputed boundary line is proven by retracing, as nearly as possible based upon existing evidence, the footsteps of the original surveyor whose survey fixed the boundaries." (Bloxham, supra, 228 Cal.App.4th at pp. 736-737.) A surveyor's expert opinion is often vital to that determination. (See id. at pp. 737-738 ["'Surveyors and civil engineers, like other experts, may give testimony on questions involving matters of technical skill and experience with which they are peculiarly acquainted'"].) Nevertheless, it is hardly uncommon for surveyors to disagree about the proper location of boundary lines. In Bloxham, for example, the parties' surveyors disagreed about the location of the relevant line, the trial court resolved the disputed facts in favor of one party and against the other, and the court of appeal upheld that decision. (Id. at pp. 738-739.)
Here, there was no battle of the experts since defendants presented no survey evidence of their own. That does not mean, however, that the court would have been obligated to accept plaintiffs' survey evidence even if the surveyor had appeared to testify and lay a foundation for its admission. A trier of fact "is not required to believe the testimony of any witness, even if uncontradicted." (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028; see also People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 83 ["'"The chief value of an expert's testimony . . . rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; . . . it does not lie in his mere expression of conclusion"'"].) And, since plaintiffs failed to lay a foundation for admitting their proffered evidence, the trial court was not presented with uncontradicted evidence of the location of the boundary line between the parties' properties. Rather, there was no evidence at all as to the location of that boundary line. Plaintiffs therefore did not carry their burden of proof on their claims, and judgment against them on the complaint was appropriate. (See Leviston v. Ryan (1888) 75 Cal. 293, 294 ["If sufficient evidence to satisfy the mind of the court was not produced by the parties, it should have found the fact against the party on whom was the burden of proof"].)
Much of plaintiffs' briefing on appeal is devoted to arguments about the merits and equities of the case which depend on the premise that defendants' improvements encroach on their property. Since they failed to provide any admissible evidence in support of that premise, we need not address those arguments further.
We are also unpersuaded that plaintiffs were entitled to a continuance to give them additional time to subpoena the surveyor or otherwise obtain his testimony. Requests for a trial continuance are governed by rule 3.1332 of the California Rules of Court (rule 3.1332). "Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance." (Rule 3.1332(c); see Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, 813 (Qaadir).) The party requesting a continuance must do so "by a noticed motion or an ex parte application" and "with supporting declarations." (Rule 3.1332(b).) Rule 3.1332(c) lists seven circumstances "that may indicate good cause," and rule 3.1332(d) lists additional factors the trial court may consider. "We review a trial court's order denying a continuance for an abuse of discretion." (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468 (Reales).)
Plaintiffs did not make a noticed motion or ex parte application supported by declarations, but instead made an oral motion for continuance on the second day of trial. That alone is sufficient basis for the trial court to deny the motion: "Had the trial court granted the request, it would have violated [rule 3.1332(b)'s] requirement that a request for a trial continuance be made in writing, either by a noticed motion or an ex parte application." (Reales, supra, 55 Cal.App.5th at p. 469.)
Moreover, when a trial continuance is sought to secure the attendance of a witness, the party must establish, among other things, that they "'"had exercised due diligence to secure the witness's attendance."'" (Qaadir, supra, 67 Cal.App.5th at p. 813; see rule 3.1332(c)(1) &(6) [grounds for continuance include "unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances" and "[a] party's excused inability to obtain essential testimony . . . despite diligent efforts"].) A trial court does not abuse its discretion in denying a continuance to obtain the appearance of an expert witness who was never subpoenaed and was not even informally asked to testify until after trial was started. (See Pham v. Nguyen (1997) 54 Cal.App.4th 11, 18 [no abuse of discretion to deny of continuance based on unavailability of expert witness; party failed to subpoena witness and offered no evidence of unavailability other than the party's representation].)
We appreciate that lack of formal legal training often presents a challenge for self-represented litigants. It may be warranted for a trial court to explain the law, as the trial court did here, and as a trial court might for an attorney unfamiliar with a legal rule. Nevertheless, we are at a stage where we are evaluating whether the trial court abused its discretion. California law has consistently held self-represented litigants to the same standard of knowledge of law and procedure as an attorney. (E.g., City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819 ["'A litigant has a right to act as his own attorney [citation] "but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded"'"].) As such, plaintiffs' failure to subpoena the surveyor or otherwise obtain his testimony may be understandable, but the trial court did not abuse its discretion by declining to find it excusable.
In sum, plaintiffs did not establish with competent evidence the location of the boundary line between the parties' properties; the record of survey they offered into evidence was properly excluded under the hearsay rule. Accordingly, they necessarily failed to prove defendants' improvements encroach on their property. They also did not demonstrate any abuse of the trial court's discretion in denying their mid-trial request for a continuance to secure the appearance of their expert witness, who with due diligence would have been subpoenaed before trial.
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
We concur: McKINSTER Acting P. J., MILLER J.