Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PC20060340
ROBIE, J.
This case involves a dispute between neighbors over two contiguous easements that plaintiffs Kenneth Smedberg, Bonnie Smedberg (collectively the Smedbergs), Darin Smedberg, Teresa Rowan (collectively the Smedberg/Rowans), and cross-defendants Hugo Giusti and Ronald Giusti (collectively the Giustis) have over land owned by defendants Gerald and Robin Toste (collectively the Tostes). The dispute came to a head after the Smedberg/Rowans planned to build a home on their property that would be accessed by a driveway they wanted to install on the easements. Gerald Toste initially acquiesced to the building of the driveway but then started interfering with construction. Litigation ensued. The result was: a preliminary injunction against the Tostes; a directed verdict against the Tostes as to their claim of adverse use of part of the Giustis’ easement; a jury verdict against the Tostes as to their claim of adverse possession of the remaining parts of the easements; a jury verdict against Gerald Toste for nuisance with an award of $65,000 in compensatory damages and $40,000 in punitive damages awarded to the Smedbergs; a permanent injunction against the Tostes; and a court finding of 12 counts of contempt against Gerald Toste for violating the injunction.
A diagram of the parcels and the easements is attached as appendix A to this opinion.
On appeal, the Tostes raise (as best we can discern) the following eight issues: (1) plaintiffs omitted an indispensable party from their complaint, voiding the subsequent court orders and jury verdicts; (2) the court erred in granting the preliminary injunction; (3) the court erred in directing a verdict in favor of the Giustis on the Tostes’ cross-complaint that they acquired a prescriptive easement on a “small part of Giusti’s land” by adverse use; (4) the court improperly instructed the jury on adverse possession; (5) the “uncontroverted evidence presented at trial” showed that the Tostes adversely possessed the easements; (6) there was no evidence of Gerald Toste’s wealth to support the jury’s award of punitive damages; (7) the court erred in its statement of decision; (8) the court erred in granting the permanent injunction; (9) the court erred in finding Gerald Toste in contempt; and (10) the trial judge should have recused himself.
The “argument” section of the Tostes’ opening brief contains 6 headings and 31 subheadings. Many of the subheadings are disjointed and do not relate to the argument under which the subheadings fall.
Disagreeing with these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1977, the Smedbergs bought a large piece of property that was divided into five parcels. They hold their property in a revocable living trust for which they are the trustees.
The property is bisected by a creek that makes it difficult to access the east portion of the property from the west portion of the property. The Smedbergs’ home and driveway are on the west side of the creek. The Smedbergs deeded a parcel on the east side of the creek to their son Darin Smedberg, who then deeded an interest to his girlfriend Teresa Rowan. To provide access to the parcels on the east side of the creek, two contiguous easements were created near the southeast portion of the Smedbergs’ property. They were in existence when the Smedbergs bought the property in 1977. These easements are sometimes referred to as the north easement and the south easement. The south easement runs the length of the northeast boundary of the Toste property. The north easement runs the length of the southwest boundary of two parcels contiguous to the Tostes. One of the two parcels is owned by the Bogettas (who are not parties here) and the other is owned by Hugo Giusti and his son Ronald Giusti.
In 2003, the Smedberg/Rowans began planning to build a home on their parcel. Since their parcel was to the east of the creek, they needed to use the easements to access their house. At an annual Christmas party hosted by the Smedbergs, the Smedberg/Rowans told the Tostes about their idea to build a house on their parcel and the need to construct a driveway on the easements. The Tostes did not object to the building of the home or use of the easements.
In 2004, Gerald Toste erected a fence between the boundary of the two easements. Gerald Toste told Kenneth and Darin Smedberg separately that he had erected the fence as a temporary measure to keep his dogs in his yard after one had run into the road and caused an accident with a neighbor who was riding a motorcycle. Gerald Toste said the fence was easily removable and that if it was a problem, he would move it.
Shortly after the Tostes bought their parcel in 1999, they had also erected a 16-foot chain-link fence to block several “unwelcome visitors” who had been driving down their driveway.
In May 2006, when the Smedberg/Rowans started constructing their driveway on the easements, Gerald Toste told Kenneth, Bonnie, and Darin Smedberg that they were “ruining the neighborhood” and that he had just written a $10,000 check for legal representation so he could stop Darin Smedberg from building his house. The Tostes then began piling obstructions along the easements. Gerald Toste parked his truck in the path of trees that the Smedberg/Rowans’ tree cutters were trying to chop down. He posted signs on the trees that were scheduled to be cut down stating the trees had been spiked with nails. He scared off the Smedberg/Rowans’ contractors with his growling dogs. He warned grading contractors hired by the Smedbergs and Smedberg/Rowans not to trespass on the easements. He removed erosion control devises on the easements. He chased and photographed Bonnie Smedberg and Teresa Rowan when they were walking on the easements. As a result of the Tostes’ actions, the Smedberg/Rowans had to stop construction of their driveway.
In July 2006, the Smedbergs and the Smedberg/Rowans filed a complaint to quiet title, to obtain declaratory relief, and to obtain an injunction and damages for nuisance. They also filed a motion for a preliminary injunction to stop the Tostes from blocking their use of the easements and to compel them to remove the fence and other obstructions. The trial court granted the preliminary injunction.
The Tostes filed a cross-complaint against the Smedbergs, the Smedberg/Rowans, and the Giustis alleging they adversely possessed the south easement and a portion of the north easement on the Giustis’ parcel.
The Tostes later amended their cross-complaint to allege only adverse use of a portion of the Giustis’ property.
Meanwhile, in November 2006, the Smedbergs and the Smedberg/Rowans had filed a petition to hold the Tostes in contempt for violating the preliminary injunction. In April 2007, following testimony and review of exhibits, the court found Gerald Toste guilty of 12 counts of contempt for violating the preliminary injunction.
In July 2007, the court imposed a sentence of 60 days in jail but stayed execution of sentence.
The case went to trial in June 2007. At the close of evidence, the trial court granted the Giustis’ motion for a directed verdict against the Tostes as to their claim that they adversely used (and therefore acquired a prescriptive easement in) a portion of the north easement on the Giustis’ parcel. Thereafter, the jury rejected the Tostes’ remaining claims of adverse possession of the easements. It also found Gerald Toste liable for nuisance and awarded the Smedbergs $65,000 in compensatory damages and $40,000 in punitive damages.
Based on the evidence presented at trial, the court granted the permanent injunction. The injunction enjoined the Tostes “from harassing, annoying, intimidating, interfering with and obstructing the plaintiffs and the plaintiffs’ invitees in their improvement, maintenance and use of the easement.”
In August 2007, the Tostes filed this appeal.
DISCUSSION
I
Plaintiffs Did Not Omit An Indispensable Party From The Complaint To Quiet Title
The Tostes contend the Smedberg Trust was an indispensable party omitted by plaintiffs when they filed their complaint, and therefore all orders of the court and verdicts of the jury were void. The Tostes are wrong.
“Unlike a corporation, a trust is not a legal entity. Legal title to property owned by a trust is held by the trustee, and common law viewed the trustee as the owner of the trust’s property.” (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1343.) A trust therefore does not have capacity to sue or be sued. (Id. at p. 1344.) Since the Smedbergs are the trustees of the property that they hold in a revocable living trust, they were the proper parties to maintain the lawsuit.
II
The Tostes’ Claim Regarding The Preliminary Injunction Is Not Cognizable In This Appeal
The Tostes contend the court erred in granting the preliminary injunction. We cannot review their claim at this late stage. The August 2006 order granting the preliminary injunction was “‘immediately and separately appealable’ under Code of Civil Procedure section 904.1, subdivision (a)(6).” (County of San Diego v. State of California (1997) 15 Cal.4th 68, 110.) Therefore, the Tostes’ “attempt to challenge the order in an appeal filed after entry of final judgment” in August 2007 “was untimely.” (Ibid.)
III
The Court Did Not Err In Granting
The Giustis’ Motion For A Directed Verdict
The Tostes contend the court erred in directing a verdict in favor of the Giustis on the Tostes’ cross-complaint that they acquired a prescriptive easement on a “small part of Giusti’s land” by adverse use. The Tostes are wrong.
The court did not err because even viewing the evidence in the light most favorable to the Tostes as we must do on review of a directed verdict (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 117), the Tostes failed to establish that their possession was continuous, one of the requirements of their cause of action (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305). Gerald Toste bought his property in June 1999. In 2001, he piled a number of logs onto the at-issue property. By fall 2002, all the logs on the Giustis’ property had been removed. Gerald Toste did not start building the fence on the easements that encroached onto the Giustis’ property until 2004. Thus, there was a two-year gap in the alleged adverse use. The Tostes’ cause of action therefore fails.
IV
The Court Correctly Instructed
The Jury On Adverse Possession
The Tostes contend the court improperly instructed the jury on adverse possession. They raise two claims of error regarding the instruction, both of which lack merit.
The court instructed the jury as follows:
First, the Tostes claim the court erred in instructing that the “Smedbergs had [to have] actual or implied knowledge during the five-year period that the Tostes would refuse entry if an attempt was made to use the easement.” According to the Tostes, “[t]here is no legal requirement of any knowledge, actual or implied, on Smedberg’s part.” (Capitalization omitted.) The Tostes are wrong. As has been restated by the California Supreme Court, “‘[an] easement cannot be acquired or extinguished by adverse use unless the party whose rights are affected thereby has knowledge of the adverse nature of such use. This knowledge may be either actual or constructive, resulting from notice either express or implied.’” (Gerhard v. Stephens (1968) 68 Cal.2d 864, 903.) There was no error in this part of the instruction.
Second, the Tostes claim the court erred in instructing that “[k]nowledge would be implied to the Smedbergs if the use of the easement area during the five-year period had such an appearance of permanency that the Smedbergs should have known the Tostes intended to terminate their easement.” According to the Tostes, “[t]here is no legal requirement that there be an ‘appearance of permanency.’” (Capitalization omitted.) Again, the Tostes are wrong. “To extinguish an easement by adverse user the use ‘must either interfere with a use under the easement or have such an appearance of permanency as to create a risk of the development of doubt as to the continued existence of the easement.’” (Gerhard v. Stephens, supra, 68 Cal.2d at p. 903.)
Accordingly, the Tostes’ claim of instructional error fails.
V
Substantial Evidence Supported The Jury’s Rejection Of Tostes’ Claim That They Terminated
The Smedbergs’ Easements
The Tostes contend the “uncontradicted evidence presented at trial” showed that they adversely possessed the easements. Their argument in essence is a sufficiency-of-evidence challenge to the jury’s rejection of the claim that the Tostes terminated the Smedbergs’ easements based on their special finding that the Tostes had not established that their occupation of the Smedbergs’ easements was hostile. Contrary to the Tostes’ argument, there was substantial evidence to support the jury’s special finding.
We begin by explaining the meaning of the term hostile in the context of adverse possession. “‘The element of “hostility” “means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant’s possession must be adverse to the record owner, ‘unaccompanied by any recognition, express or inferable from the circumstances, of the right in the latter.’”’” (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1605.)
Here, there was substantial evidence from which the jury could have found that the Tostes’ claim of possession was not hostile. At a Christmas party in 2003, the Smedberg/Rowans told the Tostes about their idea to build a house on their parcel and the need to construct a driveway on the easements to access their house. The Tostes did not indicate they objected to the building of the house or use of the easements or that they had terminated the easements. When Gerald Toste erected a fence between the boundary of the two easements in 2004, he told Kenneth and Darin Smedberg separately he had erected the fence as a temporary measure to keep his dogs in his yard, the fence was easily removable, and he would move it if the fence became a problem. In May 2006, when Darin Smedberg and Gerald Toste talked about the Smedberg/Rowans’ encroachment on to part of the easements on the Tostes’ land, Gerald Toste suggested putting in a bigger culvert and encroachment to “piggyback” onto the Smedberg/Rowans’ improvements to make it easier for Toste to back his trailer into his driveway. From this evidence, the jury reasonably could have inferred that the Tostes’ claim of possession was not hostile.
VI
There Was Substantial Evidence Of Gerald Toste’s Wealth
To Support The Punitive Damage Award
The Tostes contend “there was no evidence of wealth of TOSTE” “[t]o support punitive damages.” Their argument is not supported by the record. In a bifurcated proceeding on the issue of punitive damages, Gerald Toste testified he has a home worth $215,000, a Harley-Davidson motorcycle, a Honda dirt bike, a new Kawasaki dirt bike, a Honda all-terrain vehicle, a Chevy truck, an “interest” in a boat, and a new hot tub. This evidence was sufficient to support the jury’s award of $40,000 in punitive damages.
The only citation the Tostes provide for their contention is to one page of the reporter’s transcript containing argument by their counsel.
VII
The Tostes Have Not Shown Error In Any Alleged Statement Of Decision
The Tostes contend they are entitled to “a reversal” because the trial court erred in its “statement of decision” as it “did not contain all the elements . . . required by the facts and law of the case. For example, the elements of TOSTE’s adverse possession of SMEDBERG’s easement were not addressed.” Their contention is forfeited.
In the Tostes’ briefs, where they present their argument on this issue, they fail to point out where in the record they asked for a statement of decision or the language of the court’s statement of decision. “[N]o statement is required unless timely requested by a party.” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140, fn. 10.) Because the Tostes’ argument fails to point out where they asked for a statement of decision or where the allegedly deficient statement of decision can be located in the record, the Tostes have forfeited their contention on appeal.
VIII
The Court Did Not Abuse Its Discretion In Granting The Permanent Injunction
Following the jury verdict, the court enjoined the Tostes “from harassing, annoying, intimidating, interfering with and obstructing the plaintiffs and the plaintiffs’ invitees in their improvement, maintenance and use of the easement.” On appeal, the Tostes contend this was error. We address only whether the court abused its discretion in granting the injunction as worded and do not address the Tostes’ claims that are not implicated by the injunction.
For example, the Tostes claim the injunction could not block all use by the Tostes, the Smedbergs had to accommodate the Tostes’ use, and they could not exclude the Tostes. The language of the injunction belies these claims.
“‘A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate.’ [Citation.] ‘The trial court’s decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion.’” (Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964.)
Based on the evidence presented at trial, the court was well within its discretion to grant the permanent injunction. In July 2006, Teresa Rowan, Bonnie Smedberg, and their arborist traversed the easements to examine trees. Gerald Toste appeared with his growling dogs and took pictures of them, causing them to leave. In September 2006, Gerald Toste posted signs on the easements warning grading contractors hired by the Smedbergs and Smedberg/Rowans not to trespass and that the job site “w[ould] be inspected each day for compliance with codes.” Gerald Toste removed erosion control devises on the easements that were placed there by the contractors. He continued to park his trailer in the easements where the Smedberg/Rowans’ road was being constructed. When Bonnie Smedberg and Teresa Rowan were walking on the easements by themselves, Gerald Toste came running after them, taking photographs. Days before trial, Gerald Toste was captured on videotape yelling at the contractors who were on Giustis’ property, causing the contractors to leave. Bonnie Smedberg testified she now was fearful and depressed, she could not let her grandchildren run free on the property, and she could not hire contractors who wanted to work on her property. On this record, the trial court did not abuse its discretion in granting the permanent injunction.
IX
The Contempt Order Against Gerald Toste Is Not Reviewable On Appeal
Gerald Toste contends the court erred in holding him in contempt. The contempt order, however, is not appealable. (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 115, fn. 3.) It may be reviewed only by writ “or, where appropriate, by habeas corpus.” (Ibid.)
X
The Tostes Have Not Demonstrated The Trial Judge Should Have Recused Himself
The Tostes contend they are “entitled to an automatic reversal” because it was “reasonable to assume [they] could not get a fair trial or hearing from the Superior Court,” and the trial judge should have recused himself. (Capitalization omitted.) The Tostes base their argument on an assertion that they filed an action for inverse condemnation “soon after this trial,” they “had the default of the Superior Court” and that “clearly g[a]ve the appearance of a reasonable doubt that the judge could be impartial.”
The Tostes cite nothing in the record to support their claim. It is therefore forfeited.
DISPOSITION
The judgment is affirmed. The Smedbergs, the Smedberg/Rowans and the Guistis are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: SCOTLAND, P. J., MORRISON, J.
“In this case, the Tostes claim that they have extinguished the Smedbergs’ deeded easement. A granted easement may not be terminated by mere nonuse. An easement may be extinguished by adverse use if the owner of the property that is subject to the easement occupies the easement in an open and notorious manner and for a five-year period uses the area under a claim of right that is hostile and adverse to the owner of the easement.
“To prove that they have terminated the easement, the Tostes must show their use of the area subject to the Smedbergs’ easement was, one, open and notorious; two, continuous and uninterrupted for five years; three, under a claim of right hostile to the Smedbergs’ right to use the easement; and, four, that the Smedbergs had actual or implied knowledge during the five-year period that the Tostes would refuse entry if an attempt was made to use the easement.
“Knowledge would be implied to the Smedbergs if the use of the easement area during the five-year period had such an appearance of permanency that the Smedbergs should have known the Tostes intended to terminate their easement.”