Petition for Writ of Certiorari — Bi Rite Auto Transport, Inc., et al., Petitioners v. Russell Dilday, et al.

Supreme Court briefJul 19, 2022

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App. 1

NOT TO BE PUBLISHED

IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

RUSSELL DILDAY, et al.,

Plaintiffs, Cross-defendants

and Respondents,

v.

MIKAL JONES, et al.,

F077682

(Super. Ct. No.

PCU261738)

OPINION

Defendants, Cross-complainants (Filed Jan. 12, 2022)

and Appellants;

Pleasant Valley Canal Company,

Cross-defendant and

Respondent.

THE COURT*

APPEAL from a judgment of the Superior Court

of Tulare County. Glade F. Roper, Judge.

Romaine Lokhandwala Law Group, William A.

Romaine and Zishan Lokhandwala, for Defendants,

Cross-complainants and Appellants.

Krase, Bailey, Reed-Krase and Alexander ReedKrase; Klein, DeNatale, Goldner, Cooper, Rosenlieb

& Kimball and Catherine E. Bennett, for Plaintiffs,

* Before Franson, Acting P. J., Peña, J. and De Santos, J.

App. 2

Cross-defendants, and Respondents Russell Dilday,

Tanna Dilday, and Mary Ann Ferrero.

Kahn, Soares & Conway, Jennifer E. Dunne and

David W. Kahn, for Cross-defendant and Respondent

Pleasant Valley Canal Company.

-ooOooThis litigation arises from a dispute over an easement for a water pipe running from a canal located

on defendants’ property to plaintiffs’ property. After a

court trial, plaintiffs were awarded a prescriptive

easement, actual damages, and punitive damages. The

threshold issue, which is dispositive, is whether defendants’ appeal is timely. The notice of appeal was

filed 79 days after plaintiffs served a notice of entry of

judgment, not within the 60 days specified by California Rules of Court, rule 8.104(a)(1)(B).1 Defendants

filed a motion to reconsider after the final judgment,

but such a motion does not extend the time to appeal.

(Rule 8.108(e); see Ramon v. Aerospace Corp. (1996) 50

Cal.App.4th 1233, 1236 (Ramon) [motion to reconsider

filed after the judgment was entered does not extend

the time to appeal from the judgment].) Also, our review of the record showed the final judgment remained

in effect from the time it was filed. The judgment was

never revoked, vacated or modified, even though the

trial court purportedly granted the motion to

1

Subsequent references to a numbered “Rule” are to the

California Rules of Court.

App. 3

reconsider and heard argument on defendants’ objections to the tentative statement of decision.

Therefore, the appeal was filed late and must be

dismissed. (Rule 8.104(b).)

FACTS

The plaintiffs in this action are Mary Ann Ferrero,

Tanna Dilday, and Russell Dilday. Tanna is Ferrero’s

daughter and Tanna and Russell are married.

The defendants and cross-complainants are Mikal

Alex Jones, his spouse Angela Anderson, and Bi-Rite

Auto Transport, Inc., a California corporation (Bi-Rite).

The corporate shares of Bi-Rite are owned by a family

trust established by Jones’s grandparents. At the time

of trial, Jones was the trustee and sole beneficiary of

the trust and held all the corporate offices of Bi-Rite,

except the office of corporate secretary held by Anderson.

The cross-defendants are plaintiffs and Pleasant

Valley Canal Company, a California corporation (“Canal Company”). Canal Company’s predecessor was organized in 1888. Canal Company is a mutual water

company formed on December 19, 1924, with the issuance of 150 shares. Canal Company delivers water to

its shareholders using a canal or ditch that is eight

miles long.

The facts defining the parties’ real estate and

water rights are not material to our decision that the

appeal was filed late. Therefore, those rights and the

App. 4

events related to the parties’ tort claims are not described in this opinion. (See Cal. Const., art. VI, § 14

[appellate decisions “shall be in writing with reasons

stated”].)

PROCEEDINGS

In July 2015, shortly after an altercation between

Jones and Russell Dilday, plaintiffs filed this lawsuit.

In October 2015, plaintiffs filed a first amended complaint against defendants to establish a pipeline easement, to quiet title in a roadway easement, and to

recover actual and punitive damages.

The court trial began in October 2016 and, after

continuances, the last witness testified in May 2017.

Closing arguments were presented in writing. In October 2017, the trial court issued a tentative statement

of decision. Defendants filed objections to the tentative

statement of decision and then filed a bankruptcy petition that stayed this lawsuit. Plaintiffs obtained relief from the bankruptcy stay and proceedings in this

lawsuit resumed.

The hearing on defendants’ objections to the tentative statement of decision was reset for February 21,

2018. On the morning of the hearing, defendants’ attorney was not present when the matter was called

and he had not notified the court or opposing counsel

that he would be late. The court called the matter,

overruled all of defendants’ objections, adopted its

tentative statement of decision as the statement of

decision, and issued formal judgment. Subsequently,

App. 5

defendants’ attorney arrived at the courtroom and was

informed of the court’s actions.

Final Judgment

On February 26, 2018, the “FINAL JUDGMENT”

was filed. It granted plaintiffs a ten-foot-wide prescriptive pipeline easement centered along the buried water

pipe that ran from the edge of the Dildays’ parcel

across the property owned by Bi-Rite to a weir connected to the canal. The judgment also awarded Ferrero actual damages of $19,513.37 and punitive

damages of $97,576.85 against all defendants for interfering with the pipeline; declared plaintiffs had a

roadway easement to access the Dilday property and

quieted their title to that easement against any adverse claims by defendants; awarded plaintiffs $50,000

in punitive damages against Jones and Bi-Rite for willful and malicious injury caused by their interference

with the roadway; denied plaintiffs’ claim of damages

for loss of a sale of the Dilday property; and awarded

actual and punitive damages against Jones for intentional infliction of emotional distress. The judgment rejected defendants’ affirmative defenses, denied their

causes of action against Canal Company for trespass

and waste, denied Jones’ claims against Russell Dilday

for assault and battery, and denied defendants’ cause

of action against Russell Dilday and Ferrero for trespass. The judgment denied all requests for attorney

fees.

App. 6

On March 6, 2018, plaintiffs’ attorney served and

filed a notice of entry of judgment that attached a filestamped copy of the final judgment filed on February

26, 2018. The act of serving and filing the notice of entry of judgment triggered a 60-day period to appeal

from the judgment. (See Rule 8.104(a)(1)(B).) The 60day period expired on Monday, May 7, 2018.

Motion after Judgment

On March 8, 2018, Defendants filed a “MOTION

TO RECONSIDER/RELIEF FROM DEFAULT.” The

stated grounds for the motion were “that due to inadvertence of counsel, the judgment was entered against

these moving defendants in the absence of argument

[on defendants’ objections to the tentative statement of

decision] and further, that new or different facts would

have been presented at the hearing on those objections

to compel a result different from the judgment hereinabove entered.” The attorney’s declaration supporting the motion stated that heavy traffic had caused

him to be about 10 minutes late for the hearing scheduled at 8:30 a.m. on February 21, 2018, and that when

he arrived in the courtroom he was advised the case

had been called twice and the court, not having been

notified of counsel’s delay, concluded the hearing and

adopted the tentative statement of decision. The declaration also described newly discovered evidence in the

form of a “Notice of Consent to Use of Land” relating to

the real property on which the canal was located and

stated the notice had been recorded by the Office of the

Recorder of Tulare County on October 18, 2010. The

App. 7

declaration asserted a proof of service showed the notice had been served on plaintiffs.

On April 12, 2018, the motion was argued to the

trial court. On April 23, 2018, the court filed a “Ruling

on Defendants’ Motion for Relief from Default and for

Reconsideration,” which stated:

“It would be manifestly unjust to deprive Defendants of the right to argue their objections

simply because their attorney got inadvertently caught in traffic. The Court has the authority under Code of Civil Procedure § 473(b)

to grant relief from an order or judgment

‘upon any terms as may be just.’ Accordingly,

the Court will hold a hearing May 8, 2018 to

allow Defendants to argue their objections to

the Proposed Tentative Decision and Motion

for Reconsideration.”

The ruling also directed defendants’ attorney to

pay $750 each to the attorney for plaintiffs and the

attorney for Canal Company who had attended the

February 21, 2018 hearing and stated that if the

amount was not paid three days before the scheduled

hearing, the motions for relief and reconsideration

would be denied and the hearing taken off calendar.

On May 8, 2018, the hearing was held as scheduled. On May 10, 2018, the trial court filed a “Ruling

on Defendants’ Objections to Proposed Tentative Decision and Statement of Decision and Motion to Reconsider.” The court’s ruling addressed 15 objections

raised by defendants, denied a proposed modification

on the ground there was not credible evidence that

App. 8

Jones acted in self-defense during the July 14, 2015 altercation with Russell Dilday, and analyzed the “Notice

of Consent to Use of Land” presented as the basis for

the motion to reconsider. The court determined it

would be procedurally unfair to reopen the evidence

when defendants were aware of the notice of consent

and had chosen not to present it as evidence during the

trial. The court also gave three reasons why the notice

of consent, if admitted, would not change the outcome.

As a result, the court stated: “The request to modify,

amend or revoke the judgment and Proposed Statement of Decision or reopen the trial because of the discovery of the Consent to Land Use is denied.” The

ruling’s concluding paragraph stated:

“The Court has modified that Proposed Statement of Decision as set forth above. None of

the modifications change or alter the Judgment. The Court has issued its final Statement of Decision this date. The Final

Judgment issued February 26, 2018 will remain the judgment of the Court.” (Italics

added.)

As described in the foregoing paragraph, the trial

court also filed a 33-page “Statement of Decision After Court Trial” on the same day as its ruling on defendants’ motion.

Notice of Appeal

On May 24, 2018—that is, 79 days after the notice

of entry of judgment was served and filed—defendants

filed a notice of appeal stating they appealed “from the

App. 9

final judgment entered in said action on May 10, 2018

and all orders, rulings, and decisions made by the court

prior to the entry of said judgment.”

In June 2019, defendants notified this court that

Jones had filed a bankruptcy petition and asserted the

automatic bankruptcy stay applied to this appeal. In

July 2019, this court issued an order staying the appeal as to all parties and requiring periodic status reports. In October 2019, this court vacated its stay and

set a date for filing the appellants’ opening brief.

DISCUSSION

I.

LEGAL PRINCIPLES DEFINING TIMELINESS

OF AN APPEAL

The appeal process is initiated by filing a notice of

appeal in the superior court. (Rule 8.100(a)(1); Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs

(The Rutter Group 2021) ¶ 3:1, p. 3–1.) Pursuant to

Rule 8.104, the notice of appeal must be filed before the

earliest of (1) 60 days after the superior court clerk

serves a notice of entry of judgment or a file-stamped

copy of the judgment; (2) 60 days after a party files and

serves a notice of entry of judgment or a file-stamped

copy of the judgment on the person filing the notice of

appeal; or (3) 180 days after entry of judgment. (Rule

8.104(a)(1)(A)–(C).) These deadlines are subject to

statutory exceptions and the extensions of time set

forth in Rule 8.108. (Rule 8.104(a)(1).) Under Rule

8.108, extensions result from valid motions (1) for new

trial, (2) to vacate the judgment, (3) for judgment

App. 10

notwithstanding the verdict, and (4) to reconsider an

appealable order. (Rule 8.108(b)–(e); see Code Civ.

Proc., §§ 629 [judgment notwithstanding verdict], 657

[new trial], 663 [vacate], 1008 [reconsider].)

“The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court

has no power to entertain the appeal.” (Van Beurden

Ins. Services, Inc. v. Customized Worldwide Weather

Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Rule 8.104(b)

states that “[i]f a notice of appeal is filed late, the reviewing court must dismiss the appeal.” Absent a

public emergency, superior courts and appellate courts

have no authority to grant extensions of time to file a

notice of appeal. (Rule 8.104(b); see Rule 8.66.) We

noted the unforgiving nature of these principles in

Baker v. Castaldi (2015) 235 Cal.App.4th 218, stating

the deadlines for filing a notice of appeal “are jurisdictional and will bar an appeal even where the trial court

has arguably led a litigant astray.” (Id. at p. 224, fn.

21.)2

Untimely appeals do not confer jurisdiction on the

appellate court and, as a result, appellate courts have

a duty to “raise the point sua sponte.” (Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849.) The California Rules of Court impose requirements on

appellants that assist the reviewing court in fulfilling

2

The same principles apply in federal court. The United

States Supreme Court has made it “clear that the timely filing of

a notice of appeal in a civil case is a jurisdictional requirement,”

and it “has no authority to create equitable exceptions to jurisdictional requirements.” (Bowles v. Russell (2007) 551 U.S. 205, 214.)

App. 11

their sua sponte duty to determine whether an appeal

was filed late. First, appellants must file a completed

civil case information statement on mandatory Judicial Council form APP-004 and attach “a copy of the

judgment . . . that shows the date it was entered.”

(Rule 8.100(g)(1).) Second, the appellant’s opening

brief, which must “[s]tate that the judgment appealed

from is final.” (Rule 8.204(a)(2)(B).)

II.

THE APPEAL WAS FILED LATE

A. Contentions of the Parties

Part I.B. of Judicial Counsel form APP-004 addresses the timeliness of the appeal by asking appellant to provide the date of entry of the judgment

appealed from, the date a notice of entry of judgment

was served, and whether “a motion for new trial, for

judgment notwithstanding the verdict, for reconsideration, or to vacate the judgment [was] made and denied.” Defendants’ civil case information statement

asserted the date of entry of the judgment appealed

from was “2/26/2018” and answered “yes” to the question about motions. It also stated the motion was filed

on March 8, 2018, the motion was denied on May 10,

2018, and the denial was served on May 10, 2018.

Defendants addressed the timeliness of their appeal in their opening brief ’s statement of appealability,

asserting:

“The judgment entered pursuant to the Superior Court’s order granting judgment in favor

of Plaintiffs on February 26, 2018 set aside by

App. 12

its order of April 23, 2018 and reinstated by

its order of May 10, 2018, is an appealable final judgment in accordance with the provisions of Code of Civil Procedure sections 904.1

and 906.”

Under this view of procedural events, defendants

imply that the time for filing an appeal was reset on

May 10, 2018, when the judgment was, in their view,

“reinstated” by the court’s order.

The question of the timeliness of defendants’ appeal was raised by plaintiffs in their respondents’ brief.

Plaintiffs contend defendants’ notice of appeal was

filed late and, therefore, this court lacks jurisdiction

and must dismiss the appeal. (Rule 8.104(b) [“If a notice of appeal is filed late, the reviewing court must dismiss the appeal”].)

Defendants’ reply brief does not address plaintiffs’

arguments about the untimeliness of the appeal. As a

result, that brief did not address any of the case law

discussing the legal effect of a motion to reconsider

filed after the judgment is entered. Also, their reply

brief did not address the legal principles applicable to

an appellate court’s interpretation of a trial court’s

orders and judgment.

Despite the lack of argument and citation to authority in the appellants’ reply brief, we interpret the

contents of defendants’ civil case information statement and their opening brief as presenting two

grounds for concluding the appeal was timely filed.

First, the February 26, 2018 judgment was vacated and

App. 13

subsequently reinstated and, as a result, the time period for filing the appeal ran from the date of reinstatement. Second, the motion filed on March 10, 2018,

extended the time for filing an appeal from the judgment filed on February 26, 2018. We reject both

grounds and conclude the appeal was filed late.

B. The Final Judgment Was Not Vacated and

Reinstated

Defendants’ contention that the February 26, 2018

judgment was vacated and subsequently reinstated requires us to interpret the orders of the trial court filed

after the judgment was filed. It is well established that

when an appellate court must determine the meaning

of an order or judgment, it applies the same rules used

in ascertaining the meaning of any other writing.

(Mendly v. County of Los Angeles (1994) 23 Cal.App.4th

1193, 1205; Verner v. Verner (1978) 77 Cal.App.3d 718,

724.) Interpreting the orders presents a question of

law subject to our independent evaluation. (Mendly,

supra, at p. 1205.)

Our interpretive process begins by addressing

whether the trial court’s postjudgment orders are ambiguous on the question of their legal effect on the February 26, 2018 judgment. (See Estate of Careaga (1964)

61 Cal.2d 471, 475–476 [generally, where language is

clear and explicit, it governs the interpretation of the

writing]; Verner, supra, 77 Cal.App.3d at p. 724 [where

a judgment is ambiguous, courts may examine the entire record to determine its meaning].)

App. 14

As described below, our review of the language in

the orders filed on April 23, 2018, and May 10, 2018,

and the surrounding circumstances leads us to conclude the language in those orders is not ambiguous.

Those orders are not reasonably susceptible to being

interpreted to mean the trial court revoked, vacated or

suspended the February 26, 2018 judgment.

The April 23, 2018 order stated (1) it would be unjust to deprive defendants of the right to argue their

objections to the tentative statement of decision; (2)

the trial court had the authority under Code of Civil

Procedure section 473, subdivision (b) to grant relief

from an order or judgment upon any terms as might be

just; and (3) the court would hold a hearing on May 8,

2018, to allow defendants to argue their objections.

Thus, the only relief granted was to allow defendants

to argue their objections. The order referred to the fact

that the court had “issued formal judgment,” but did

not state the judgment was impacted in any way by the

grant of a hearing. Thus, the order cannot be interpreted to mean the judgment had been revoked, vacated or suspended.

The May 10, 2018 order plainly states that defendants’ “request to modify, amend or revoke the judgment . . . is denied.” This language necessarily implies

that the judgment was in effect when the order was

filed. This implication was confirmed by the next and

final paragraph of the May 20, 2018 order, which states

none of the modifications to the statement of decision

“change or alter the Judgment” and “[t]he Final Judgment issued February 26, 2018 will remain the

App. 15

judgment of the Court.” The reference to the absence

of changes or alterations to the judgment and the

words “will remain the judgment” plainly signify that

the judgment continued in effect since it was filed on

February 26, 2018, and was not modified or changed

based on the arguments presented at the May 8, 2018

hearing.3

To summarize, the text of the April 23, 2018 order

and May 10, 2018 order unambiguously establishes

that the final judgment filed on February 26, 2018, was

not revoked, vacated or suspended and, therefore, that

it remained in effect from the date it was filed. Consequently, we reject the argument that defendants’ appeal was timely because the final judgment had been

revoked and was reinstated by the May 10, 2018 order.

C. Defendants’ Motion Did Not Extend the Appeal Period

Next, we consider whether the “MOTION TO RECONSIDER/RELIEF FROM DEFAULT” that defendants filed on March 8, 2018, extended the time to

appeal. Rule 8.108 identifies certain motions that

3

If the judgment had been modified and if the modification

had been substantial, the appeal period would have been restarted on the date the modified judgment was filed. (See Sanchez

v. Strickland (2011) 200 Cal.App.4th 758, 765 [substantial modification test determines whether amendment to judgment restarts the period for filing a notice of appeal]; CC-California Plaza

Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1048

[substantial modification to a judgment starts a new appeal period that runs from the amended judgment].) However, there

were no modifications in this case, substantial or otherwise.

App. 16

extend the time to appeal. Motions for relief from default are not mentioned, but motions to reconsider are

addressed:

“If any party serves and files a valid motion to

reconsider an appealable order under Code of

Civil Procedure section 1008, subdivision (a),

the time to appeal from that order is extended

for all parties until the earliest of: [¶] (1) 30

days after the superior court clerk or a party

serves an order denying the motion or a notice

of entry of that order; [¶] (2) 90 days after the

first motion to reconsider is filed; or [¶] (3) 180

days after entry of the appealable order.”

(Rule 8.108(e), italics added.)

The text plainly states that the motion to reconsider must relate to “an appealable order.” (Rule

8.108(e).) Based on this text and existing case law,

one practice guide states: “A purported motion for ‘reconsideration’ of a judgment will not extend to time

for appeal from the judgment.” (Eisenberg, Cal. Practice Guide: Civil Appeals and Writs, supra, ¶3:94.7,

p. 3–46.) As support, the practice guide cited several

cases, including Passavanti v. Williams (1990) 225

Cal.App.3d 1602 (Passavanti), which states:

“A court may reconsider its order granting or

denying a motion and may even reconsider or

alter its judgment so long as judgment has not

yet been entered. Once judgment has been entered, however, the court may not reconsider

it and loses its unrestricted power to change

the judgment. It may correct judicial error

only through certain limited procedures such

App. 17

as motions for new trial and motions to vacate

the judgment.” (Id. at p. 1606, italics added;

see Ramon, supra, 50 Cal.App.4th at p. 1236

[motion to reconsider filed after the judgment

was entered does not extend the time to appeal from the judgment].)

In view of the trial court’s April 23, 2018 order

granted a hearing on defendants’ motion, we note that

the practice guide addressed the effect of granting a

hearing on a motion to reconsider:

“The trial court’s mere grant of a hearing on a

motion to reconsider an appealable order does

not have the effect of vacating the order so as

to cancel the running of the period within

which to appeal. Thus, in such a case, the time

to appeal the order begins to run from the

date of its entry.” (Eisenberg, Cal. Practice

Guide: Civil Appeals and Writs, supra,

¶3:94.9, p. 3–47.)

Based on the text of Rule 8.108(e) that refers to a

valid motion to reconsider an appealable order and the

principles set forth in Ramon and Passavanti, we conclude that defendants’ “MOTION TO RECONSIDER/

RELIEF FROM DEFAULT” did not extend the time to

appeal from the February 26, 2018 final judgment.

Therefore, defendants’ notice of appeal filed 79 days after the notice of entry of judgment was served and filed

was late and we lack the jurisdiction to consider the

merits of the appeal.

App. 18

DISPOSITION

The appeal is dismissed. Plaintiffs and Canal

Company shall recover their costs on appeal.

App. 19

IN THE

Court of Appeal of the State of California

IN AND FOR THE

Fifth Appellate District

RUSSELL DILDAY et al.,

Plaintiffs, Cross-defendants

and Respondents,

F077682

(Super. Ct. No.

PCU261738)

v.

ORDER DENYING

MIKAL JONES et al.,

PETITION FOR

REHEARING

Defendants, Cross-complainants

and Appellants;

PLEASANT VALLEY

CANAL COMPANY,

Cross-defendant and Respondent.

Appellant’s petition for rehearing filed on January

26, 2022, in the above referenced case is hereby denied.

/s/ Franson

FRANSON, Acting P. J.

WE CONCUR:

/s/ PEÑA

PEÑA, J.

/s/ De Santos

DeSANTOS, J.

App. 20

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF TULARE

SOUTH COUNTY JUSTICE CENTER

RUSSELL DILDAY, TANNA ) May 10, 2018

)

DILDAY, and MARY ANN

) PCU261738

FERRERO,

) Dept. No. 23

Plaintiffs,

)

Judge: Glade F. Roper

)

vs

) Statement of Decision

MIKAL JONES, ANGELA

) After Court Trial

ANDERSON, BI-RITE

)

AUTO TRANSPORT, INC,

)

Defendants.

)

)

MIKAL JONES, ANGELA

ANDERSON, BI-RITE AUTO )

)

TRANSPORT, INC,

)

Cross-Complainants, )

)

vs

)

RUSSELL DILDAY, TANNA

)

DILDAY, MARY ANN

FERRERO and PLEASANT )

)

VALLEY CANAL

)

COMPANY, INC.,

)

Cross-Defendants. )

The Court heard the trial of this matter beginning

October 26, 2016 and ending May 18, 2017. Having

App. 21

heard and considered all oral testimony and exhibits

admitted into evidence, the Court rules as follows:

1. Plaintiffs’ First Amended Complaint.

A. First Cause of Action seeking prescriptive

pipeline easement.

Plaintiffs own and lease property hereafter referred to as “Dilday property.” Defendants Mikal Jones

(Jones) and Angela Anderson (Anderson) own property

to the south of the Dilday property, hereafter referred

to as “Jones property.” Defendant Bi-Rite Auto

Transport, Inc. (Bi-Rite) owns property to the east of

the Dilday property, hereafter known as “Bi-Rite property.” The Bi-Rite property is open pasture land with

some high hills, some flat areas and a pond. Pursuant

to a Judgment of this court in case 09-232667 issued

by Judge Paul M. Vortmann on June 18, 2013, Pleasant

Valley Canal Company, hereafter referred to as PVCC,

possesses an irrevocable license for the control, use,

maintenance and repair of a water conveyance and delivery system consisting of a canal; canal banks 16.5

feet in width; syphons, pipes and associated weirs running through or situated on the Bi-Rite property. Plaintiffs’ predecessor in interest, Virgil Rogers, installed a

weir on Bi-Rite property connected to the PVCC canal

and buried pipes running from the weir to the Dilday

property. The purpose of the weir and pipes is to

transport water from the PVCC canal to the Dilday

property for irrigation. The pipe from the weir to the

Dilday property is owned by the Dildays. Rogers told

Russell Dilday (Dilday) that the sale of the property to

App. 22

Plaintiffs included an easement to clean the screens at

the weir. Jones testified that Rogers put in the pipes

across Bi-Rite property without asking permission and

that Jones considered it to be vandalism and “called

the cops on him,” contradicting other testimony by

Plaintiffs that Rogers put the pipes in with permission.

Plaintiff Maryann Ferrero (Ferrero) leased the

Dilday property from Rogers about 2000, and used the

pipe to irrigate the property. From that time forward

either she or someone acting on her behalf routinely

went through a gate in the fence between the Dilday

and Bi-Rite properties and walked across the Bi-Rite

property to clean the screens in the weir, as they become clogged with vegetation and other debris that

flows in the canal.

Plaintiffs purchased the Dilday Property in 2005.

At that time Plaintiffs believed they had an easement

across the Bi-Rite property for their pipeline and to

clean the screens in their weir, which is located on the

Bi-Rite property. The weir and pipes were installed

some time prior to then. Because the PVCC canal is

open running water in most places, it collects vegetation and debris. Screens have been installed where water leaves the canal and runs to the weir to prevent the

debris from being transported to the Dilday property.

From the time the weir and pipes were installed by

Rogers, people have gone onto the Bi-Rite property to

clean the screens frequently, often on a daily basis. Officers and employees of Bi-Rite were aware they were

doing so. Dilday testified that he believes Jones began

to object to Plaintiffs crossing the Bi-Rite property and

App. 23

insisted that Plaintiffs ask permission to use the pipe

and clean their screen in 2006. Plaintiff Ferrero sometimes crossed Bi-Rite property three or four times in a

day to clean the screens in the weir. She acted under

the belief that she had the legal right to cross Bi-Rite

property and clean the screens, based on what the

prior owner, Virgil Rogers, told her. No one crossing the

Bi-Rite property to clean the screens has caused any

harm or damage to the Bi-Rite property. After 2009

employees of PVCC have acted as the agents of Plaintiffs to cross Bi-Rite property to clean the screens.

Sometime in 2007 Defendant Jones put a lock on

the gate that gave Plaintiffs access to Bi-Rite property

to clean the screens. Rogers cut the lock on the gate

and called the sheriff. Defendant Jones told Plaintiff

Ferrero that she could not cross Bi-Rite property and

he put a welded wire panel blocking the gate Plaintiffs

used. Plaintiffs and PVCC filed a lawsuit against Defendants in 2009, and after that time Plaintiff Ferrero

continued to climb over the fence to clean the screens.

Other visitors and employees continued to clean the

screens for her benefit, continuing to the time of trial,

except for the time when the pipe was cut, as discussed

below.

Plaintiff Russell Dilday first met Defendant Jones

in 2006 or 2007. Sometime thereafter the two of them

had “heated” arguments over the water from the PVCC

ditch, culminating in a physical altercation July 14,

2015 on Bi-Rite property, in the area Dilday believed

was an easement over the pipeline.

App. 24

Between the time the pipe was installed by Rogers, around 2000, and 2006 or 2007 the owners of the

Bi-Rite property, or their agents, were aware of Plaintiffs and their agents crossing the Bi-Rite property frequently to clean the screens in the weirs, and of the

existence of the pipe. They did not complain or voice

objection to this. Beginning in 2006 or 2007 Jones began to complain about the existence of the pipe and

orally objected to its existence on the Bi-Rite property

at annual PVCC meetings and to Plaintiffs. He first

took adverse action against the use of Bi-Rite property

by blocking the gate used by Plaintiffs in 2007, but did

not take other action to prevent them from going on

the property. He was aware that Plaintiffs routinely

crossed the fence and walked to the weir and back.

Jones took further action against the use of the pipeline in 2015 when he cut and capped the pipe. Plaintiffs

continued to assert their rights in the pipeline and

sought the assistance of PVCC to assist them. Acting

at their behest, PVCC attempted to discover the cause

of the interruption in the water flow, resulting in the

confrontation between Jones and Water Master Rick

Waller (Waller) July 14, 2015.

The elements necessary to establish a prescriptive

easement are well settled. The party claiming such an

easement must show use of the property which has

been open, notorious, continuous and adverse for an

uninterrupted period of five years. Further, the existence of a prescriptive easement must be shown by a

definite and certain line of travel for the statutory period. Warsaw v. Chicago Metallic Ceilings, Inc., 35 C3d

App. 25

564 (1984). Plaintiffs proved by clear and convincing

evidence that they have continuously and adversely

used the pipeline from their weir located on Bi-Rite

property to their property line since 2000 and that Defendants had actual knowledge of that use. Plaintiffs

have acquired an easement to use and maintain a pipeline along the line which has a pipe currently in place

to transport water from their weir to their property

line. They also have an easement to use and maintain

a weir at its current location to receive water from

PVCC.

Plaintiffs have also proved by clear and convincing

evidence that they have acquired the right to cross BiRite property from the point that the pipe referenced

above enters their property to the weir in order to clean

the screens and perform other maintenance on the

weir and pipes. Ferrero testified that the required

easement is ten feet wide. In the absence of any other

evidence, Plaintiff ’s easement is ten feet wide, with its

center along the buried pipe. Plaintiffs have the right

to cut a gate in the boundary fence between their property and Bi-Rite property to allow them to enter and

exit their easement. Defendants are enjoined from

erecting any barrier that would inhibit Plaintiffs from

traveling along their easement to clean and attend to

the weir. This easement runs with the land owned by

Plaintiffs and is not personal to Plaintiffs.

Defendants cite Code of Civil Procedure §320 as

authority that Plaintiffs have not commenced their action within the time allowed. That section says, “No entry upon real estate is deemed sufficient or valid as a

App. 26

claim, unless an action be commenced thereupon

within one year after making such entry, and within

five years from the time when the right to make it descended or accrued.” By its plain language, the section

applies to a claim based on entry onto real estate.

In the case of Kafka v. Bozio, 191 Cal. 746 (1923)

the plaintiff owned a parcel of real property. The defendant’s building sagged and leaned onto the plaintiff ’s building, causing damage to it. The Supreme

Court found that §320 was “inapplicable because the

plaintiffs have at all times been seised and in possession of the premises, subject only to the encroachment

of defendants building into the air space above a small

portion thereof. This was not legally sufficient to interrupt the continuity of plaintiffs’ possession.” Kafka v.

Bozio, 191 Cal. 746, 750 (Cal. Sept. 7, 1923). It is clear

from that case that §320 was intended to apply to an

action seeking damages or an abatement of a nuisance

by a defendant going onto the plaintiff ’s property. In

the case at bar, the plaintiffs are not seeking damages

nor abatement of a nuisance from Defendant going

onto their property. Plaintiffs are seeking confirmation

of their prescriptive easement.

As set forth above, in order for Plaintiffs to prove

a prescriptive easement, they have to show continuous

use of the easement for a period of at least five years.

Defendants’ argument that the action to establish a

prescriptive easement has to be brought within one

year is inconsistent with this requirement. Under Defendants’ interpretation of the statute, one would have

to bring an action to establish a prescriptive easement

App. 27

within one year of entering onto a property, yet would

have to show continuous use for over five years. It

would thus be impossible for anyone to ever prove that

they own a prescriptive easement. This cannot be what

the legislature intended.

B. Second Cause of Action seeking equitable

easement.

Because the Court finds that Plaintiffs have a prescriptive easement to maintain the pipeline and to

walk across the Bi-Rite property to maintain their weir

and screens, this issue is moot.

C. Third Cause of Action seeking license.

Because the Court finds that Plaintiffs have a prescriptive easement to maintain the pipeline and to

walk across the Bi-Rite property to maintain their weir

and screens, this issue is moot.

D. Fourth Cause of Action for damages.

Sometime in April of 2015 Jones dug down to

Dildays’ pipe, cut it and capped it off. When Ferrero

attempted to irrigate her property she had no water,

although she continued to pay the PVCC water assessment. The lack of water to her property for 116 days

during the summer caused her pastures to die and

she was required to purchase feed for her animals.

Her economic loss for 2015 from Jones’ actions was

$11,151.64. Ferrero testified that it takes three years

App. 28

to reestablish a pasture after it dies. In the absence of

any other evidence about the rate at which a pasture

that has been deprived of water will recover, a reasonable assumption is that it would begin to return to its

prior condition as soon as water was returned and

would increase its recovery every year. Assuming that

the second year it had returned half of its productivity

and the third year another half, Ferrero’s economic loss

from Jones’ actions will be $11,151.64 + $5,575.82 +

$2,787.91 for a total of $19,515.37.

Jones testified that all of the directors of PVCC

told him to cap the pipes. He offered no corroborating

evidence. He specifically testified that Kibler, who Jones

testified was a board member, gave him permission to

cut the pipes. Kibler testified that she did not know

what happened to cause her water to suddenly stop,

and reported to law enforcement when she learned

that Jones had cut her pipe. Her testimony contradicted Jones’ testimony that every board member told

him to cap the pipes. Jones testified that Waller, water

master for PVCC, gave him permission to cut the pipes.

Waller testified that he had never heard anyone say

anything to Jones authorizing him to cut the pipes and

was adamant that he never did so. He testified that he

advised Jones not to cut the pipes, because he may get

in trouble,” and that Jones said he would not be satisfied with the pipes being lowered because he wanted

the weirs removed. Witness Kay Meek testified that

the board never authorized Jones to cut the pipes. Certainly if every member of the board had instructed him

to cut the pipes, Jones would have presented at least

App. 29

one witness to so testify. The Court finds that Jones’

assertion that board members told him to cut the pipes

is inherently unbelievable, unsubstantiated by any

other evidence and contradicted by the great weight of

evidence. In light of the efforts made by PVCC personnel to immediately remedy the lack of water to the

Dilday and Kibler properties, the Court finds that

Jones’ claim that he was authorized by the board members to cut the pipes is false.

Jones testified that the reason he cut the pipes is

because he wanted to cultivate his property, which he

has never done before in over 20 years of ranching

there, and because he was told that he had to cut a fire

break but was unable to do so due to the pipe being

there. It turned out that he was not required to cut a

fire break because his cows ate the vegetation down.

He testified that he wanted to cut a fire break all along

the western boundary of the Bi-Rite property. Jones

gave no reason why he could not just leave a narrow

line above the pipe undisturbed and cultivate or “rip”

the property on either side of the pipe. Ferrero testified

that the space between the area described during the

trial as “the lane,” located on Bi-Rite property, and the

road that runs contiguous to the western boundary of

the Bi-Rite property constitutes a 40 foot fire barrier.

Jones explanation of why he could not cut a fire break

due to the pipe was, “but I ain’t going to do part of it if

I can’t do all of it.” The entire western boundary of the

Bi-Rite property is hundreds of feet long. If he were required to cut a fire break, there does not appear to be

any reason why Jones could not have cut a fire break

App. 30

along the entire boundary, leaving a one or two foot by

ten foot strip over the pipe. He could then have easily

mowed down that strip. Although it would have been

slightly more time consuming for him to mark the line

over the pipe and rip the ground on either side of it,

the burden on him of doing so would have been trivial,

much less than the burden on Plaintiffs of going without water. He could have asked or demanded that

Plaintiffs maintain the fire break above their pipe or

on the entire width of their easement.

Jones speculated that driving equipment over the

pipe would have crushed it, and gave as justification

for this belief an example where his friend attempted

to drive a crane over the pipe and heard a sound that

he construed to be the pipe cracking. Waller testified

that PVCC has driven equipment over the pipe without damaging it. Dilday testified that he offered to

lower the pipe and told Jones to drive over the pipe and

if it was damaged Dilday would repair it. The Court

finds Jones’ explanation to be contrived and not credible.

After the water line was cut by Jones, Plaintiffs

attempted to mitigate their damages by asking Waller

to discover why they had no water. Jones prevented

Waller from doing so. Plaintiff then obtained a small

amount of water from Virgil Roger’s line but were unable to do so thereafter because Defendants complained that line leaked. Dilday then attempted to

repair the capped line but was physically attacked by

Jones. Plaintiffs pumped water and purchased feed for

their animals. Finally Anderson informed Plaintiffs

App. 31

that they would be allowed to repair the capped line.

Plaintiffs exercised all reasonable efforts to mitigate

their damages. Defendants’ post-trial arguments that

Plaintiffs were required to hire a third party to repair

the line are unreasonable.

The Court finds that in cutting off Plaintiffs’ water, Jones acted with malice and oppression, knowing

that his actions would cause a serious hardship to

Plaintiffs, for the sole purpose of injuring Plaintiffs.

The evidence showed that Jones acted individually and

on behalf of Bi-Rite. Jones testified that Anderson was

with him when he cut and capped a pipe. Plaintiff Ferrero is entitled to punitive damages against all Defendants. Plaintiffs asked for five times the amount of the

economic loss, being $97,576.85, which is a reasonable

amount of punitive damages. Ferrero is therefore entitled to actual damages of $19,515.37 plus punitive

damages of $97,576.85.

E. Fifth Cause of Action for declarative relief and

quite title to the roadway.

Defendant Jones stipulated that the road easement to Plaintiff ’s property is not located on Bi-Rite

property and that he has no standing to “object to the

easement.” Neither Anderson nor Bi-Rite introduced

any evidence contradicting Plaintiffs’ testimony that

they have an easement for a road as described in Exhibit 8. Plaintiffs are therefore entitled to a judgment

quieting title in them to the road easement.

App. 32

F. Sixth Cause of Action for injunctions and

damages.

Plaintiffs presented evidence that on numerous

occasions Jones claimed that he owned the road easement and had the right to control who used the road.

Witness Patterson described it as “constant threats on

who owned the road, that nobody – he is going to decide

who goes up it, so on and so forth.” He testified that

Jones said, “he’s going to make the decisions on who

comes up there, and it’s his road, legally he can do

whatever he wants, he can put whatever he wants to

put in the road.” Sheriff ’s deputy Crouch testified that

numerous people complained to the Sheriff ’s Office

that Jones “had slowed their access, yelled vulgarity at

them, made some threats as they proceeded, and told

them that he was going to lock the access off and deny

access to anybody when he decides to [sic] that.” Dilday

testified that Jones has repeatedly interfered with

Plaintiffs’ use of the road easement by placing obstacles in the road and screaming at Plaintiffs and their

invitees. Plaintiffs are entitled to an injunction against

Jones and Bi-Rite from interfering with Plaintiffs’ and

Plaintiffs’ invitees’ use of the road easement, There

was no evidence that Anderson had interfered with the

use of the road.

As set forth above, there was un-refuted evidence

that Jones, acting individually and as agent of Bi-Rite,

interfered with Plaintiffs’ use of their pipeline easement by blocking the gate, denying Plaintiffs the right

to cross Bi-Rite property to clean their screens and

cutting the pipe. He has repeatedly interfered with

App. 33

Plaintiff ’s right to cross Bi-Rite property on their prescriptive easement to clean the screens. Plaintiffs are

entitled to an injunction against Jones and Bi-Rite

from interfering with Plaintiffs’ use of the pipeline

easement from Plaintiffs’ weir to their property line as

set forth above.

The Court finds by clear and convincing evidence

that Jones, individually and as agent of Bi-Rite, acted

with malice and oppression in interfering with Plaintiffs’ use of their road easement and pipeline. Accordingly, all Plaintiffs are jointly entitled to punitive

damages pursuant to Civil Code §3294 in the amount

of $50,000.00.

G. Seventh Cause of Action for damages.

Plaintiffs claim damages from the loss of a sale of

the property. The prospective purchaser Patterson testified that he and Burk entered into an oral agreement

to purchase the property, but because of the dispute

between Plaintiffs and Defendant regarding the use

of the road and the water they decided not to complete the purchase. Jones told Patterson that he owned

the road and would decide who used it. Years before

Patterson considered purchasing Plaintiff ’s property,

he was aware that Jones claimed ownership of the

road. He testified:

Q. Did he ever claim that he owned the

road?

A.

Always.

App. 34

Q.

He did?

A.

Always.

Q. Okay. Did he give you permission to use

the roadway?

A.

I never asked him.

Q.

Why is that?

A.

Because I had an easement.

Patterson testified that three events caused him to

back out of the sale. The first was an altercation between Patterson’s employee and Jones’ son. That incident cannot be charged to Jones. The second occurred

at a neighborhood meeting where Jones stated that he

would decide who goes up the road. The third was

when Patterson found a pole and two cones across the

road. There was no proof of who put the pole across the

road, although Jones later told Patterson that he could

put whatever he wanted across the road and decide

who could use the road. Patterson testified that Jones

“argued with everybody that went up the road.” Although

Patterson testified that there were “problems” with

other neighbors, he said that the reason he did not

complete the purchase was “Absolutely, 100 percent”

because of Jones. This conflicted with his earlier testimony wherein he stated:

Q.

And what were the problems?

A. Just with Mike – Mike and neighbors, not

just Mike, but Mike and neighbors.

App. 35

There was no direct evidence that Jones had any

intention of interfering with the sale of the property to

Patterson and Burke. Although it could be inferred

that he did, such an inference is contradicted by Patterson’s testimony that Jones “argued with everybody

that went up the road.” A more reasonable inference,

considering all the evidence introduced at the trial, is

that Jones believed, albeit incorrectly, that he owned

the road and intended to exclude anyone that he did

not want to use it rather than specifically targeting

Patterson and Burke. In the absence of any evidence

that Jones intended to interfere with the contract to

sell the property, Jones is not liable for intentionally

interfering with Plaintiffs’ prospective economic advantage.

Plaintiffs alternately allege that Jones negligently

interfered with their prospective economic advantage.

Infrequently invoked and often misunderstood,

the tort has been described as “a relatively unsettled and developing legal phenomenon, the

principles of which are still very vague.” (Institute of Veterinary Pathology, Inc. v. California

Health Laboratories, Inc., supra, 116 Cal.App.3d

at p. 125.) The elements of the tort include

(1) the existence of a prospective business relationship containing the probability of future

economic rewards for plaintiff; (2) knowledge

by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual

causation, and, (5) damages to plaintiff proximately caused by defendant’s conduct.

App. 36

(Buckaloo v. Johnson (1975) 14 Cal.3d 815,

827). The general wrong inherent in this tort

is the unlawful interference with a business

opportunity through methods which are not

within the privilege of fair competition. (See

5 Witkin, Summary of Cal. Law (9th ed. 1988)

Torts, § 652, p. 740.) Settimo Associates v.

Environ Systems, Inc., 14 Cal. App. 4th 842,

845 (1993).

The cause of action is further explained:

The tort of interference with a prospective

business relationship or advantage imposes

liability for improper methods of diverting or

taking business from another. The methods

used are those that “are not within the privilege of fair competition.” (4 Witkin, Summary

of Cal. Law (8th ed. 1974) Torts, § 392, p.

2643.) The tort of interference with a prospective economic advantage includes the narrower tort of interference with a contractual

relationship. (Dryden v. Tri-Valley Growers

(1977) 65 Cal.App.3d 990.) In order to plead a

cause of action for this tort, plaintiffs must

allege the existence of either a contractual

relationship or a prospective business relationship advantageous to them, that defendants had knowledge of the advantageous

relationship, that defendants intentionally or

negligently induced the breach of the relationship, that the acts or conduct of the defendants were wrongful, and proximately caused

plaintiffs’ injury and damage by interfering

with the relationship causing a business loss.

App. 37

Baldwin v. Marina City Properties, Inc., 79

Cal. App. 3d 393, 406-407.

The Baldwin and Settimo cases indicate that the

gravamen of the tort of interference with a prospective

economic advantage is for improper methods of diverting or taking business from another,” which is not the

situation here. In addition, the defendant must be the

“proximate cause” of the loss.

There was no clear proof that Jones had knowledge of the pending sale from Dilday to Patterson.

Plaintiffs assert that “Jones admitted he attended a

meeting in which it was actually disclosed to him

that the Plaintiffs were selling the Dilday Property to

Patterson-Burke.” They make reference to deposition

testimony, but no such testimony was elicited at the

trial.

Witness Lowder testified as follows the meeting

attended by Dilday, Patterson and Jones:

Q. Did he tell you anything about he was

planning to buy Mr. Dilday’s property?

A. It’s one of those verbal threats, well, I can

do this, I can do this –

THE COURT REPORTER:

slow down.

Sir, you need to

THE WITNESS: I’m sorry. So, yes, there

were possibilities of him buying property back

there.

App. 38

BY MR. ROMAINE:

Q.

That was discussed at that meeting?

A.

At that meeting.

Q. Did it sound to you like they had already

reached an agreement and he was going to

buy it for sure?

A. I couldn’t say that, no. It was one of those

hollering fits that was going on at the time

that he had the right to do what he wanted to,

he had gone through all the legal stuff when

he bought the place up front and sold it, and

he was interested, but I forgot to say with the

hollering that came out of his mouth at that

time.

Q. Did you have any independent information at the time that Eddie Patterson was

buying Russell Dilday’s property?

A.

No, I had no idea.

*****

Q. Did Mr. Patterson, Eddie Patterson, or

Mr. Dilday, or anybody on their side say anything to the effect of, if this doesn’t get settled

I don’t want to buy the place?

A.

No, again.

Q. Did Mr. Dilday say, if you guys keep stopping us, or harassing us about driving on this

road I am going to lose a sale?

A.

No.

App. 39

Patterson’s explanation of the meeting was:

But we all met together with Russell, Ty

Burk, and tried to work it out. It was just constant threats on who owned the road, that nobody – he is going to decide who goes up it, so

on and so forth.

Q.

When you say “he,” that is Mikal Jones?

A.

Mikal, yes.

There was no clear testimony that indicated Jones was

aware of the pending sale between Dilday and Patterson.

Considering all the evidence, Plaintiffs have not

established the elements necessary to prove that Jones

committed the tort of intentional or negligent interference with a prospective economic advantage. There is

no proof that Jones knew of the agreement to sell the

property to Patterson. Patterson was aware of Jones’

claim to own the roadway long before he agreed to buy

the property from Dilday. It would be unreasonable to

find Jones liable for negligently interfering with the

agreement between Dilday and Patterson when Patterson was aware of Jones’ claim before the agreement

was ever made. Testimony showed that Jones was not

the only person who complained about the use of the

road, and Patterson initially testified that his problems

were not only with Jones, but with other neighbors as

well. Patterson was an experienced buyer, indicating

that he buys property every day, and as such should be

aware of difficulties that arise in sales of real estate.

App. 40

Plaintiffs are not entitled to any recovery on their

Seventh Cause of Action.

H. Eighth Cause of Action for damages for intentional infliction of emotional distress.

Beginning in 2011 or 2012, Jones claimed to

Dilday that he owned the roadway and had the right

to control it. Prior to 2009 Jones threatened to “shut off

[Plaintiffs] pipeline between the weir and the property

. . . if he didn’t get his way.” The interference culminated in Jones severing the pipe in 2015 during what

Ferrero testified “is a critical time in the pastures” The

Court takes judicial notice that the months between

April and September in Tulare County are almost always very hot months, and that without water plants

are unable to grow in the heat during this time. Having

lived many years in the area and grown pastureland,

Jones knew that Plaintiffs depended on the water from

the pipeline in order to feed and water their animals

and that without water the pasture would be unable to

grow. The Court concludes that Jones intentionally cut

off the water in order to harm Plaintiffs. By refusing to

allow Waller to discover what was preventing the flow

of water and by preventing Dilday from repairing the

line, including an unprovoked physical attack on him,

Jones demonstrated his intention to deprive Plaintiffs

of the ability to obtain water from PVCC and intentionally harm them.

April 12, 2015 Ferrero and Waller went to the BiRite property in an attempt to learn why Plaintiffs’

App. 41

water was not flowing. At that time Jones engaged in a

heated disagreement with Waller, who was on Bi-Rite

property. Ferrero said nothing to Jones, but Jones

shouted obscene, demeaning and vulgar language at

Ferrero, calling her opprobrious names.

On July 14, 2015 Dilday went onto the pipe easement over Bi-Rite property to repair the capped pipe.

At that time Jones threatened to physically harm

Dilday and then physically attacked Dilday by ramming him with his shoulder. Following the physical attack Jones continued to threaten to harm Dilday

physically.

Deputy Crouch testified that beginning in January of 2015, he received numerous calls from residents

of the area regarding threats, impeding their access to

the road and shouted vulgarities by Jones. Witness

Wood testified that Jones threatened him, “cussed” his

kids, threatened to put a gate across the road and harassed him 150 times. He described it as “World War

Ill.” Jones ordered him off the road 10 or 11 years ago.

Around 2007 and again in 2008 Jones closed

Plaintiffs’ access through a gate they had used many

years to clean the screens at their weir. As a result,

Jones forced Ferrero, a woman he knew to be of advanced age, to endanger herself by using a truck and

ladder to climb over the fence to clean the screen.

Ferrero testified that she suffered emotional distress as a result of Jones’ actions. She described her

condition as being tired and nervous and said there “is

not enough money to account for how much he has

App. 42

aged me since he has been here and what I have had

to put up with.” Her daughter described Ferrero as “agitated” and said Ferrero talked about her interaction

with Jones all the time.” Dilday testified that Ferrero

is a “strong person,” but that her interaction with

Jones has caused her to be “an agitated, distraught

person.”

Defendants cite Hughes v. Pair to define what

must be proved to establish intentional infliction of

emotional distress. The Supreme Court affirmed the

grant of summary judgment against the plaintiff in

Hughes. The defendant was accused of making lewd

and sexually explicit “comments . . . to plaintiff during

a single telephone conversation and a brief statement

defendant made to plaintiff in person later that day

during a social event at a museum.” This case is quite

a different animal. Contrary to Defendants’ assertion

that the “complaints surround Jones’ obstreperous use

of his own property,” the evidence showed that Jones

repeatedly and over a period of many years interfered

with Plaintiffs’ use of their property rights on their

road easement of record and their prescriptive easement for use of the pipe from their weir to their property, resulting in constant, continuous and pervasive

harm to Plaintiffs. Jones demonstrated in the video admitted into evidence that his behavior was extreme,

outrageous, uncivilized, unprovoked and unacceptable

in any ordered society. The dictionary defines “obstreperous” as: “noisy, clamorous, or boisterous.” Jones behavior was much more than that; it was vile, vulgar,

threatening, demeaning and interfered with Plaintiffs’

App. 43

use of their property, all without any justification. Witnesses testified that this behavior continued over

many years, causing Plaintiffs extreme distress and

unceasing anxiety. It is worlds away from the defendant in Hughes in one day calling plaintiff “sweetie” and

“honey,” saying he thought of her “in a special way, if

you know what I mean,” telling her, “You know everyone always had a thing for you. You are one of the most

beautiful, unattainable women in the world. Here’s my

home telephone number and call me when you’re ready

to give me what I want,” and even making an explicitly

vulgar sexual remark to her later that same evening.

The Hughes court also recognized that “an isolated

incident of harassing conduct may qualify as ‘severe’

when it consists of ‘a physical assault or the threat

thereof.” In addition to his years-long non-physical

harassment, Jones attacked Dilday physically without

provocation while Dilday was attempting to repair his

pipe that Jones had maliciously cut.

In citing Yurick v. Superior Court, 209 Cal. App. 3d

1116 (1989) Defendants correctly state the rule of law,

which is that “there can be no recovery for mere profanity obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which

are considered to amount to nothing more than mere

annoyances. The plaintiff cannot recover merely because of hurt feelings.” The facts in Yurick, however,

are far removed from the facts in this case. The defendant in Yurick told the plaintiff, “‘You are a liar. You are

over forty and you are a liar.” It bears no resemblance

to Jones’ behavior here.

App. 44

Contrary to Defendants’ assertions, Dilday, Tanna

Dilday and Ferrero gave clear and un-refuted testimony about the nature of the emotional distress they

suffered as a result of Jones’ behavior.

Jones’ actions were without justification and were

intended to vex, harass and harm Plaintiffs. His actions

were malicious and oppressive. Accordingly, Ferrero,

who was harmed most by Jones’ actions, is entitled to

actual damages for emotional distress in the amount

of $100,000.00. Because Jones actions were intended

to cause injury to Ferrero, she is also entitled to punitive damages of $300,000.00.

Dilday testified that he suffered emotional distress as a result of Jones’ actions. He described worrying about Ferrero as an element of his distress. He

described Jones’ “constant screaming” at him. Much of

his testimony regarding emotional distress focused on

the failure of the sale of the property; the Court does

not consider this as an element of emotional distress.

Jones’ personal attack on him justifies an award of

compensation for emotional distress. Dilday is entitled

to actual damages for emotional distress of $25,000.00.

Because Jones actions were intended to cause injury

to Dilday, he is also entitled to punitive damages of

$75,000.00.

Plaintiff Tanna Dilday gave no evidence regarding

emotional distress.

App. 45

I.

Punitive Damages

Jones testified that Defendants have over 428.57

acres of property either in their names or in a trust for

their benefit. He testified that it is worth approximately $3,619,000 and is not encumbered by any debts.

The Court has considered Defendants’ net worth in affixing punitive damages.

The Court is loath to impose punitive damages

and believes that they should be reserved for the most

egregious circumstances. This is such a case. Without

any apparent justification or excuse Jones terrorized

the neighbors over use of the road, claiming without

any factual basis that he owns it and has the right to

control who uses it, even though there is a recorded

easement giving Plaintiffs the right to travel on the

road. Not until after the trial began did Defendants

concede that they have no right to interfere with Plaintiffs’ use of the road.

Defendants’ explanation for cutting Plaintiffs’

pipeline just as summer approached was contrived and

unbelievable. Jones’ allegation that he was prevented

from cutting a firebreak along his entire property because of a pipe four inches in diameter is ludicrous. His

testimony that every member of the Board of Directors of PVCC gave him permission to cut the pipe is

equally ludicrous and patently false. Defendants were

aware that Ferrero was a woman of advanced years

who relied heavily on the water from the pipeline to

support her enterprise raising livestock. The video introduced as Plaintiffs’ Exhibit 6 clearly demonstrated

App. 46

Jones’ personal animosity toward Ferrero. His personal attack against Dilday was without provocation

or justification.

Punitive damages are warranted in this case in order to teach Defendants that they cannot impose their

will on others by way of threats, intimidation, abuse,

screaming, vulgarity and physical attack.

J.

Defendants’ Affirmative Defenses

Defendants assert that the issues in this case are

res judicata because they were already decided in case

98-32667.

Without doubt there was no “judgment or final order” that encompassed both Plaintiffs and Defendants.

The parties dismissed their claims against each other

prior to a judgment being entered. Thus CCP§1908(a)

does not apply.

Defendants argue that Plaintiffs “controlled the

action in the earlier case” and thus are bound under

CCP§1908(b). Ferrero testified that “in ‘09 Pleasant

Valley filed the lawsuit, and they added us to the lawsuit, Emmy and myself, hoping to stop the fighting over

the easements and that we didn’t have the right to go

up there and stuff. As the suit played out, Emmy and

– we were taken out of the suit.” Asked why she was

“taken out” of the suit, she responded, “I believe it was

when there was a gun involved in the other lawsuit.

The ditch tender at that time was very nervous about

App. 47

going up on the ditch, and I think when that all came

about we were just dismissed out of it.”

Defendants’ attorney asked Ferrero, “And you said

the canal company started that action, but brought you

and Ms. Kibler in; is that right?” Her response was,

“Correct, they added us.” When he then asked if Dilday

started the lawsuit, her response was, “No, I do not

have information.” When he asked her, “What did you

understand that lawsuit was about?", she responded,

They added us. They were having problems with Mikal

and the maintenance of the ditch.” Defense counsel

then asked, “Did you understand part of the reason for

the lawsuit was that the Court was going to decide

whether or not you could go up there and clean the

weirs?” Ferrero’s response was, “No, I think the thing

was to control him in his actions.” When defense counsel followed up with, “So your understanding was that

there was a lawsuit to control his aggressive behavior?", Ferrero replied, “And to straighten out – to establish the easements that were bought and paid for, or

that the supplies and everything was paid for that

were ours.”

The next interchange between defense counsel

and Ferrero was:

Why did you drop out of that lawsuit?

A. I do not know. We were just simply told

that we were excused. We never even saw – I

never saw – it was not even settled until 2013.

I just saw that paperwork not very long ago.

App. 48

Q. Okay, so you don’t know why you didn’t

continue in that lawsuit?

A.

No, I don’t.

Q. And no one, other than a lawyer, told you

why that lawsuit –

A.

Exactly.

Defense counsel next inquired about Ferrero’s understanding of the judgment in the prior lawsuit and

this dialogue resulted:

Q. What did you understand the judgment –

the settlement that you are talking about, the

way this thing was settled in 2013, what did

you understand that, if any requirements

were put on you by that?

A. I did not understand that there was any

requirements put on me by that.

Q. So it was your understanding that that

didn’t apply to you at all?

A.

Exactly.

Q. And you have that understanding from a

discussion with your attorney or from someone or somebody who wasn’t an attorney?

MR. REED-KRASE:

THE COURT:

Objection, privileged.

Overruled.

THE WITNESS:

contacted me.

I gained that from nobody

App. 49

From the above testimony, it is clear that Ferrero

had little understanding of the prior lawsuit, did nothing to control it, and understood that it ultimately did

not affect her in any way.

Dilday was asked about the prior lawsuit, and replied, “No – I mean, yes, we were in the – we were

brought into the lawsuit with the canal company and

then we were removed from it prior to judgment.”

When asked, “Do you know why you were removed?”,

he replied, “Not exactly. I believe that there was – that

they, Mikal and them, were arguing over things that

really didn’t relate to us and that the lawyer felt like

the judgment wasn’t going to relate to us.” He indicated he was not aware of any claims Jones had

against him in the lawsuit, and did not know why

Jones would have filed a dismissal of causes of action

against him.

The following dialogue then occurred:

Q. So you don’t know why, but for some reason before the case went to trial you were at

least dismissed from the lawsuit?

A. I don’t know. I feel like that we just

weren’t going to be a part of what they were

arguing over. Our easement was not the part

– my pipeline was not the Pleasant Valley Canal Company’s property, therefore we didn’t

belong in their judgment. That’s what I feel.

Q. So do you recall what the 2009 lawsuit

was about?

A.

The 2009 lawsuit?

App. 50

Q.

The 2009 –

A. It was about – I recall it being about

Mikal basically trying to throw the canal company off of their right of way with the ditch,

and him believing that they had been destructive to his property. And also on their part

they were struggling with his behavior with

their employees.

Q. Do you recall what claims were specific to

you in that lawsuit, if any?

A.

With me?

Q.

Yeah.

A. Mikal was threatening to shut off my

pipeline between the weir and the property.

Q.

Did he make that threat to you?

A. I don’t know that he did or did not. I

would – I can’t say that for sure. I would imagine that in the conversations that we had

that he did. He said that he could and would

if he didn’t get his way.

The following day he was again asked what the

prior lawsuit was about, and gave this answer:

That lawsuit was, once again – most of my understanding on that was through what the

ditch company was saying. And that was

Mikal saying that no one could go up there.

My understanding is that he had the ability

to throw them off of the easement for the ditch

and also anyone else off of their easement for

their lines. And the ditch company approached

App. 51

me with allowing us going into the case, the

ditch company lawyer, and we said fine. And

then somewhere before 2010 they said that,

you know, we’re not going to – we are going to

put you out of the case. I never really got a

deep explanation on that, so I don’t really

know why we were in or out.

He then testified that he was never billed by a lawyer nor asked to pay anything for the lawsuit. He said

that the prior lawsuit never changed their behavior in

going on Bi-Rite property.

Dilday’s testimony proves that Plaintiffs did not

finance or control the prior suit. Neither Dilday nor

Ferrero had a clear understanding of the issues in the

prior lawsuit, apparently did not discuss it with nor direct the attorneys nor pay the attorneys for representation. They did not believe they were controlled by the

judgment nor does it appear it affected them in any

way.

The judgment itself, considered in a vacuum, is

subject to some interpretation. The only plaintiff

mentioned in the judgment is Pleasant Valley Canal

Company. It is specifically named in eight separately

numbered paragraphs. On page 3 of the judgment, in

paragraphs 4, 5, 6 and 7 the possessive word “plaintiffs” is used. Unfortunately, the judgment, which was

prepared by Defendants’ attorney, did not include an

apostrophe in the word “plaintiffs.” If it had used

“plaintiff ’s,” it would have been clear that it applies to

a singular plaintiff. If it had used “plaintiffs’“ it would

clearly apply to multiple plaintiffs. Nevertheless, the

App. 52

dismissals filed almost three years earlier lead to the

unavoidable conclusion that the judgment did not apply to Plaintiffs in this case, the Dildays and Ferrero,

and the only reasonable interpretation is that the word

used should have been “plaintiff ’s,” referring to PVCC.

Plaintiffs here did not litigate the issues in this case in

the prior case, and Defendants consented to the dismissal of their claims from that case. Defendants err

in claiming that “This court ruled against that claim”

to quiet title in an easement and that “All of the issues

presented in the first three causes of action in the instant Verified First Amended Complaint were presented to and ruled on by this court in the First

Amended Complaint in case number 232667.”

Defendants are incorrect in continuing to claim

that the prior lawsuit controls this litigation. In the

case Lynch v. Glass, 44 Cal. App. 3d 943 (1975) Glass

sued two corporations and obtained a judgment that

there was no public easement over his property. The

Court of Appeal held, “The prerequisites for the application of collateral estoppel are an identity of issues

decided in a prior case with those presented in subsequent litigation, a final judgment on the merits, and a

determination that the party against whom the principle is asserted was a party or in privity with a party in

the prior action. . . . A party cannot assert a prior adjudication against another who was not a party or in

privity with a party to the prior action.”

The court further instructed, “Thus, the question

of privity has been restated in terms of whether a nonparty was “sufficiently close” to an unsuccessful party

App. 53

in a prior action as to justify the application of collateral estoppel against the nonparty. Notwithstanding

these developments, collateral estoppel may be applied

only if the requirements of due process are met. Due

process requires that the nonparty have had an identity or community of interest with, and adequate representation by, the losing party in the first action. The

circumstances must also have been such that the nonparty should reasonably have expected to be bound by

the prior adjudication (citations omitted).”

The court also explained, “A nonparty should reasonably be expected to be bound if he had in reality

contested the prior action even if he did not make a

formal appearance. Thus, collateral estoppel has been

applied against nonparties who had a proprietary or

financial interest in and control of, a prior action. Collateral estoppel has been given effect in a second category of cases against one who did not actually appear

in the prior action. These cases involve situations

where the unsuccessful party in the first action might

fairly be treated as acting in a representative capacity

for a nonparty.”

The court found that Lynch was not in privity with

the two corporations in the prior suit and rejected the

claim of collateral estoppel. Similarly, in this case none

of the requirements to bind Plaintiffs by the prior suit

were present. First, the issues are not identical. The

first suit involved PVCC attempting to obtain an easement through a specific gate on the east side of Defendants’ property to travel by vehicle west along the bank

of the ditch. Plaintiffs claimed a separate, distinct

App. 54

easement to enter by foot from the other side of Defendants’ property to their weir. The complaint specifically makes a distinction between the two easements

claimed. The ultimate judgment did not deal in any

way with the easement claimed by Plaintiffs.

Second, there was no final judgment on the merits

of Plaintiffs’ claim because the parties agreed to mutual dismissals of their claims against each other without prejudice.

Third, there was no privity of the parties. No evidence has shown that Plaintiffs had any interest in the

easement sought by PVCC, nor that PVCC had any interest in the easement sought by Plaintiffs. There was

no evidence that Plaintiffs were officers, directors or

employees of PVCC or that PVCC is or was an alterego of Plaintiffs.

Fourth, there was no identity or community of interest between PVCC and Plaintiffs. They sought separate and distinct easements.

Fifth, there was no evidence that Plaintiffs reasonably expected to be bound by the prior case. All the evidence was just the opposite, that they did not expect

to be bound by the holding in the prior case.

For these reasons it would be manifestly unjust to

bind Plaintiffs, who made no appearance at the trial,

dismissed their claim by mutually agreement with Defendants and did not believe that the judgment issued

therein, which had nothing to do with the easement

they sought, by the prior judgment.

App. 55

Contrary to Defendants’ argument, it would be

unreasonable for anyone to conclude that the prior

judgment in any way determined the existence or nonexistence of the easement claimed by Plaintiffs. No

reasonable person could conclude from reading it that

Judge Vortmann intended by his decision to hold that

Plaintiffs did not have an easement. Certainly no reasonable person having knowledge that Plaintiffs and

Defendants had, by mutual agreement, dismissed their

causes of action against each other, could so conclude.

2. Cross Complaint

A. First Cause of Action against PVCC for trespass.

Jones testified that he saw employees of PVCC

“climbing through my fence and cutting them” and

that he had “photos” of them doing so. When asked in

a follow-up question who had cut the fence, he listed

Ferrero, Mrs. Kibler, Bo Davis, Blaine Woods, Bobby

Kibler, Mr. Krase, Dilday and Virgil Rogers as either

cutting the fence or taking it down. Other than Mrs.

Kibler, who at one time was a member of the Board of

PVCC, there was no evidence that any of the other people listed were employees or agents of PVCC. There

was no evidence that Mrs. Kibler was acting on behalf

of PVCC when she allegedly cut Cross-Complainants’

fence. He testified that he did not believe Ramon Mora,

ditch tender for PVCC, ever cut the fence. Anderson

never testified that anyone from PVCC cut the fences.

None of the multitude of photographs admitted into

evidence show anyone connected with PVCC cutting or

App. 56

breaking down a fence. To the contrary, the evidence

showed that PVCC employees either went through existing gates, used ladders that were affixed to the fence

or used portable ladders to climb over the fences. Use

of the portable ladder is depicted in Defendants’ Exhibit 45. No credible evidence was presented that any

PVCC officer or employee cut any of Cross-Complainants’ fences.

Jones testified that he believed someone poisoned

his mule, but there was no corroborating evidence that

the mule was poisoned or if it was, who administered

the poison. No other evidence was offered regarding

Cross-Complainants’ allegations that PVCC applied or

allowed chemicals onto Cross-Complainants property.

There was no disagreement at trial about the location of two of the four access points given to PVCC

in the judgment issued June 18, 2013 in Tulare County

Superior Court case 09-232667. The Court takes judicial notice of that judgment. All parties agreed that

point 2.b. at the North West corner of Bi-Rite property

and point 2.d. located at the Switzer gate are located

approximately where Anderson placed them on Court

Exhibit 1. Both Jones and Anderson testified that they

believe point 2.a. is located where Anderson placed it

on Court Exhibit 1, at the North West corner of parcel

22. Testimony during the trial repeatedly referred to

a “cowboy gate,” consisting of horizontal strands of

barbed wire connecting wooden vertical posts that are

not embedded in the ground, at that location. The

“cowboy gate” is designed to be opened by detaching

the most northerly post of the gate from the adjacent

App. 57

embedded wooden post and swinging all the unembedded posts and the horizontal wires to the south.

Jones and Anderson testified that they believe

point 2.a. is located at the “cowboy gate.” Jones testified this is because “It’s all that makes sense” and “It’s

all common sense, I would think.” This interpretation

is inconsistent with the language of the judgment,

which provides that the point is located “along the

easterly boundary” of the Bi-Rite property “where the

Canal enters” the property. The “cowboy gate” is not located on the eastern boundary of Bi-Rite property, but

according to the map, 950 feet to the west of the eastern boundary. The only reasonable interpretation of

the judgment is that access point 2.a. is located at the

point on the eastern boundary of Bi-Rite property indicated by the arrow pointing down from the words

“EAST GATE” on Court Exhibit 1.

There was no dispute that access point 2.c. is located

where Anderson placed it on Court Exhibit 1, approximately 400 feet north of Avenue 176. The disagreement

was whether PVCC violated the terms of the judgment

by entering not only the gate at point 2.c. running east

and west, but by also entering the gate running north

and south, attached to the same post and bearing a

sign reading “POSTED” in Cross-Defendant’s Exhibit

119. Cross-Complainants argue that by entering the

property at the location designated as “EAST GATE”

in Court Exhibit 1 and the north/south gate at point

2.c., PVCC exceeded the license granted to it by the

2013 judgment and committed trespass.

App. 58

Cross-Complainants are wrong. There is no reasonable question about PVCC’s right to enter the property at location 2.a., the “EAST GATE.” It is expressly

allowed to do so by the 2013 judgment. in addition,

PVCC is expressly allowed to enter the property at

point 2.c. for the purpose of controlling, using, maintaining and repairing the canal with its associated

banks, pipes, weirs and siphons. The judgment does not

restrict PVCC from crossing Bi-Rite property only on

the 16.5 feet width of the canal banks. The canal is not

located near point 2.c. The judgment grants PVCC access to the canal and it associated distribution system

in the manner “that has the least amount of potential

harm” to Bi-Rite property.

Waller testified that PVCC employees have traveled across Bi-Rite property in the manner that will

cause the least amount of harm. He testified that they

have avoided crossing a concrete pipeline providing

water to the pond on Bi-Rite property, and that they

take a route most likely to avoid damage to the foliage

growing: “So we go the quickest way possible to try to

cause less damage or less usage of the pasture.” CrossComplainants gave no credible evidence that PVCC

employees and agents did not cross Bi-Rite property in

the manner least likely to cause harm or that PVCC in

any way exceeded the terms of its license.

The Cross-complaint alleges that by entering onto

the Bi-Rite property PVCC diminished the value of the

property. No evidence was presented to support this

allegation. The numerous photographs of the property

admitted into evidence show it to be undeveloped

App. 59

pastureland, scattered with rocks of various sizes, covered at times with vegetation and completely bare at

other times. No credible evidence was presented that

anything PVCC did on the property diminished its

value.

Cross-Complainants alleged in their CrossComplaint that PVCC’s agents acted for the purpose

of intimidating, harassing and threatening Jones and

Anderson and to cause them economic, emotional and

physical injury. There was no evidence that PVCC employees and agents acted for any purpose other than

that specifically granted them in the 2013 judgment.

To the contrary, the video in evidence as Plaintiffs’ Exhibit 6 proved that Jones acted in a manner intended

to threaten, intimidate and harass PVCC employees,

while the PVCC employees maintained composure and

acted professionally and reasonably. Waller and Dilday

testified that at PVCC meetings Jones shouted and

made threats. Jones use of shouted obscenities and

threats was unreasonable and unacceptable in civilized society. Waller and other PVCC employees acted

reasonably and in accordance with acceptable standards of behavior.

Cross-Complainants’ allegations that they suffered emotional distress by PVCC’s actions is not credible and unsupported by the evidence. Their further

allegations that PVCC acted with malice is completely

contrary to the evidence.

Cross-Complainants mistakenly argue that PVCC

is a “guest” on their property and has no “interest in

App. 60

the property.” They correctly state that they have the

major right to possess the land, but do so subject to

PVCC’s right to enter onto the land in order to control,

use, maintain and repair its canal. This is an “irrevocable” interest which is specifically delineated in the

2013 judgment. “An irrevocable license, such as the one

the court found here, is for all intents and purposes the

equivalent of an easement. (See Noronha v. Stewart

(1988) 199 Cal.App.3d 485, 490.) ‘It is well settled that

the owner of an easement cannot change its character,

or materially increase the burden upon the servient estate, or injuriously affect the rights of other persons,

but within the limits named he may make repairs, improvements, or changes that do not affect its substance.’ (Burris v. People’s Ditch Co. (1894) 104 Cal. 248,

252.)” Barnes v. Hussa, 136 CA4th 1358 (2006). PVCC

is not a “guest,” but has the equivalent of an easement.

Cross-Complainants have interfered with PVCC’s

license by prohibiting its access through the fence running north from its entrance point 2.c. This violates

PVCC’s express right granted to it in the previous

judgment. Not only does PVCC have the right to enter

the property at point 2.c., but it then has the right to

access the canal in the manner “that has the least

amount of potential harm” to Bi-Rite property. Historically, that included passing through the gate located

adjacent to the gate at entry point 2.c.

PVCC has the right to place a gate in any fences

on Bi-Rite property to give them access to the four entrance points specified in the prior judgment, and in

any fences across Bi-Rite property that would inhibit

App. 61

its right to cross Bi-Rite property in the manner

“that has the least amount of potential harm.” CrossComplainants may not erect additional fences or barriers on the property that would inhibit PVCC’s right

to cross Bi-Rite property in the manner “that has the

least amount of potential harm.” PVCC is not required

to climb over fences or ladders to gain access to Bi-Rite

property. All parties to the suit are aware that PVCC

has used tractors and other heavy equipment to maintain the canal in the past and continues to do so. The

only reasonable interpretation of the 2013 judgment is

that PVCC has the right to being heavy equipment

necessary to maintain the canal onto Bi-Rite property

through the delineated access points. PVCC is therefore entitled to place gates wide enough for such necessary equipment to enter in any fences at the points

of entry pursuant to the prior judgment, and in any

other fences across Bi-Rite property at locations necessary to cause the least amount of potential harm to the

property.

Jones expressed understandable and justifiable

concern that PVCC employees not leave gates open,

allowing cattle to wander from one fenced section to

another. In the course of exercising its license PVCC is

required to not create or allow a condition to exist with

respect to the canal that presents an unreasonable risk

of injury to [Cross-Complainants] and their real and

personal property.” He testified that “eight or ten” cattle escaped from one parcel into another where he did

not want them when a gate was left open. Although he

did not see who opened the gate, he did see Waller on

App. 62

the property and believes that Waller left the gate

open. He did not want the cattle there because a piece

of wire had punctured his tire when he drove on that

parcel. He estimated that the cattle were there for

about two hours. Waller denied leaving the gate open.

Viewing the evidence in the light most favorable to

Cross-Complainants, there was no evidence of any

damage, injury or loss as the result of Waller leaving

the gate open. Despite Jones’ concerns, there was no

evidence that any of his fears were realized by injury

to his cattle or that Cross-Complainants sustained any

monetary loss because of the open gate.

Evidence was presented that PVCC employees entered at locations different from those expressly set out

in the prior judgment, but their actions were necessary

and reasonable because of Cross-Complainants’ refusal to allow them reasonable access at the designated locations. They acted, as it were, of necessity to

care for the canal. No evidence was presented that any

entry onto Bi-Rite property by PVCC employees in any

way harmed Bi-Rite property or diminished its value.

The Court disbelieves the testimony of Jones about

damage done to his fence. The evidence shows that

some of the fences on Bi-Rite property were neglected,

old, dilapidated and falling down, including some that

were damaged as the result of a heavy flood. There

was testimony that the cattle damaged the fence.

There was no credible evidence that PVCC employees

harmed the fences in any way. Anderson testified that

PVCC had damaged some fences, but her answers were

without any explanation of who did the damage or

App. 63

when it was done, and were simple conclusions. When

Anderson was asked about damage to the fence, the

following testimony was given:

Q. How would you determine during that period of time that the cattle were getting out

through those areas of the fence that PVCC

was using to enter the property?

A. Because when we would check the fence

line after we brought the livestock back in we

would check the fence line and those would be

the areas that the wire was broke or separated, the clips were off, the staples were removed from the posts.

Q. And had you seen PVCC do this to the

fences in the past?

A.

I had seen them go through the fence.

Although Anderson assumed that PVCC employees broke the wire, took clips off and removed staples,

there was no evidence that they did so. She did make

reference to photographs, Exhibit 5-23 and 5-89, showing PVCC employees climbing over a fence. It is not

persuasive evidence that they damaged the fence on

that occasion or other times. As to the latter picture,

Anderson testified that the fence in that area was broken down “from their work on the ditch.” A later picture showed that this area was repaired by PVCC

when they completed their work. Anderson estimated

the cost of repairing the fences to be $60,000 but gave

no basis for her estimate and her testimony was

stricken. In any event, PVCC was forced to traverse the

App. 64

fence because of Cross-Complainants unjustified refusal to allow it reasonable access to its easement.

Cross-Complainants argue that placing piles of

debris from the canal on their property constituted

trespass. Waller testified that the piles were left to dry

out before they were removed. PVCC acted reasonably

in doing so, and there was no credible proof that doing

so harmed Cross-Complainants.

One of Cross-Complainants’ main complaints

was that PVCC spread sand on their property from

the canal. The evidence showed that the sand and silt

was washed down into the canal from heavy rainfall

onto Cross-Complainants’ property. Neither CrossComplainants nor PVCC could have anticipated nor

prevented this, and PVCC acted reasonably in removing the debris from the canal and spreading it onto

Cross-Complainants’ property, since that is where it

came from, albeit from uphill. The pollution of CrossComplainants’ pond which resulted in the death of fish

also resulted from the heavy rain and there was nothing PVCC could have done to avoid it.

Cross-Complainants also allege that PVCC failed

to comply with the earlier judgment by allowing water

to escape from the canal. The Court finds that PVCC

has acted reasonably in attempting to prevent the escape of water from the canal. The evidence showed that

regular maintenance is done to patch breaks in the

concrete and fill holes created by animals. The argument that PVCC neglected the maintenance of the canal was unpersuasive. It has a significant motivation

App. 65

to prevent water, a scarce commodity, from escaping

from the canal. Cross-Complainants’ testimony that

the wet patches on their property came from water

from the canal rather than normal rainfall or the excessive rainfall testified to was unpersuasive.

Anderson also testified that PVCC placed piles of

debris on the property, including plastic. Waller testified that such piles are removed after the material has

been allowed to dry out. The Court finds that allowing

the piles to dry out before removing them is reasonable, and that PVCC acted reasonably in removing the

trash, including plastic, which people may either throw

into the canal or which ends up in the canal because it

is discarded by other people. There was no evidence

that PVCC intentionally or negligently placed or allowed plastic and debris to be placed in the canal.

Cross-Complainants introduced testimony that

PVCC left chunks of concrete imbedded with pieces of

reinforcing wire on the property. This testimony was

bolstered by photographic evidence showing the pieces

of concrete found next to the canal. Leaving such hazardous materials on the property was unreasonable

and in derogation of PVCC’s duty not to “create or allow a condition to exist with respect to the canal that

presents an unreasonable risk of injury to defendants

and their real and personal property,” as set forth in

the prior judgment. Depositing such materials on the

property constitutes a trespass. The proper amount of

damages is the lesser of either the diminution in value

or the cost of removing the concrete. Smith V. Cap

App. 66

Concrete, Inc., 133 CA3d 769 (1982). Cross-Complainants gave no evidence of diminution in value of the

property.

Jones testified that it would take four or five people working ten hours a day for a month to clean the

broken concrete with wire from each parcel. This estimate is unbelievable. Although there was obviously

some concrete and wire left on the property, the vast

quantities testified to by Anderson and Jones do not

appear in any of the voluminous photographs that they

introduced into evidence. Of the hundreds of pictures

in evidence, there are only a few showing concrete and

wire debris.

Photograph 3-1 introduced into evidence as part of

Cross-Complainants’ Exhibit 18 on the CD shows cement lying in the bottom of an abandoned ditch. Anderson testified that it is still there. Photograph 2-1

showed pieces of cement, which Anderson testified

matched cement in the canal, with pieces of wire sticking out of it. She testified that the pieces of cement in

photograph 2-3 were found partially sticking out of the

ground. Photograph 2-4 shows wire sticking out of the

ground along the canal bank. Photograph 2-7 shows cement with wire found on the canal bank, as do photographs 2-9, 2-12, 2-13, 2-17, 2-20, 2-21, 2-31, 2-33, 2-38,

2-40, 2-42, 2-43, 2-44, 2-47and 2-49. All of them were

found on the canal bank with the exception of one

found eight to ten feet away. Anderson testified that cement left on the canal banks by PVCC would migrate

all over the property. Cross-Complainants failed to

show any reason why pieces of cement and wire would

App. 67

or could move. Certainly they would not move of their

own volition, and no explanation of what would cause

such pieces to move was proffered. The Court finds it

highly unlikely that pieces of cement and wire would

move from where they lay to all over” the property.

Waller testified that he has not seen concrete left

on the Bi-Rite and when concrete was taken out it was

removed from the property. Obviously some was missed,

but it was could not have been nearly as much as

Cross-Complainants testified. Cross-Complainants’ testimony that the truckloads of chunks of concrete and

wire from the canal spread over a wide area of the

property was not believable. Cross-Complainants gave

no explanation of how pieces of cement and wire would

have traveled away from the canal bank to other areas

of the property. Waller also testified that whenever the

PVCC employees patrol the canal they remove any

concrete or other debris. Jones confirmed that PVCC

employees had picked up pieces of wire and cement

and photographs were introduced showing them doing

so.

Jones testified that it would take five people working 50 hours a week two months to clean up all the cement from the property. This estimate is unreasonable.

The photographs show that at least half of the property

consists of high, rocky hills. There was no testimony

that any cement had migrated to that area. Viewing

the evidence in the light most favorable to CrossComplainants would mean approximately 100 acres of

land would have to be cleaned of cement. One person

could certainly walk an acre of property to look for such

App. 68

debris in less than half an hour, meaning that at most

it would take approximately 50 hours to clean the

property. Jones testified that he could hire labor for ten

to fifteen dollars an hour, meaning that the cost of labor would be approximately $750. Assuming that

Jones would have to hire equipment to haul out whatever was found, the total cost of the process would not

exceed $1000.

Both Anderson and Jones testified that they suffered mental and emotional distress from the debris on

their property and the activities of PVCC. The Court

finds that their testimony is not credible. The photographs of the property show it to be covered with rocks

and dirt and surrounded by deteriorated fence posts

and wire. No reasonable person would suffer mental or

emotional distress from the piles of debris removed

from the canal and left to dry or from the pieces of concrete left on their property. Credible testimony was

given that at least part of the concrete left there was

due to their cattle breaking up the ditch and other concrete items left there. Photographic evidence also was

introduced showing that Defendants allowed chunks of

broken concrete from sprinklers on their property to

remain there. No reasonable person would, with such

items scattered around the property, suffer any mental

or emotional distress from whatever was caused by

PVCC.

PVCC argues that Cross-Complainants are not

entitled to any recovery because they acted with “unclean hands.” This argument is persuasive. As set forth

above, Cross-Complainants violated the right of PVCC

App. 69

to enter onto the property and reasonably care for the

canal. If any pieces of cement were left on the property,

it is likely because the employees were forced to use

ladders to go over the fence or to climb through the

fences to carry out their duties. Had they the freedom

to access the property under their license without the

constant threat of retaliation from Cross-Complainants,

they would have been more able to assure that all debris from the canal was fully removed. Because their

potential damages would be minimal and in light of

their actions toward PVCC, the Court finds that it

would be manifestly unjust to grant Cross-Complainants

any recovery.

PVCC is determined to be the prevailing party and

Defendants are not entitled to attorney’s fees.

B. Second Cause of Action against PVCC for

Waste.

Jones testified that Cross-Complainants “slowly

brought the – I don’t know how you say it, brought the

herd down because the drought, and PVC [sic] will not

give us our water and haven’t gave us our water since

my grandpa died, since ‘99.” He further testified, “I got

a lot of water if the ditch company will give it to me. If

they put in my other weir to the house. We been paying

the bill since ‘94 and we don’t get the water.” He also

testified, “I ain’t got no water anyway, they won’t turn

it on. But I think got [sic] a problem with turning my

water on. I don’t have to call the light company to turn

my lights on.” When asked how many weirs are on the

App. 70

property, he testified, “mine is supposed to go to the

house but the ditch company wouldn’t give us our water and hook it back up.” When asked how much water

Cross-Complainants receive, Jones testified, “I haven’t

gotten any water except for my pasture down by the

orange grove. We just pay the bill and don’t get it.”

Anderson testified, “We’ve been asking for a very

long time for that weir to be hooked back up to the flood

irrigation to water that pasture.” She testified that she

did not know how much water should be delivered to

the Bi-Rite property, but believed that it was less than

the property was entitled to. She testified that the

reason water was not being delivered is because a

weir and valve that had been taken out were not replaced. She did not know how much water would be

required to cultivate the property or how much water

had actually been delivered. She believes PVCC employees and directors are intentionally depriving

Cross-Complainants of water, but gave only the fact

that water is not being delivered as the reason for her

belief.

Anderson testified that she believes Dilday was an

agent of PVCC and that he threatened to kill Jones.

Her belief was based on her statement that “It was on

a piece of paper that I had read.” She testified that she

did not know who works for PVCC.

Cross-Complainants presented no credible evidence in support of their allegation that they were deprived of the use of water because PVCC diverted

water or that they had the right to more water than

App. 71

they received. The Court finds Anderson’s testimony to

be no more than unsupported speculation that is not

based on facts. Cross-Complainants alleged that they

have the right to “extract such water from waterways

transacting the Bi-Rite Property as may be reasonably

necessary to carry out the activities Jones and Anderson would carry out as occupants under that lease

agreement.” Other than Anderson’s unsupported opinion, they presented no evidence about how much water

they were entitled to or how much they received.

Other than Anderson’s statements, no evidence

was presented to support Cross-Complainants’ allegations that PVCC intended to cause harm to them and

acted with malice. The Court finds that there was no

credible evidence that PVCC employees, directors or

agents intended to harm Cross-Complainants or that

Dilday was an agent of PVCC. As discussed below, the

Court finds no evidence that Dilday intended to harm

Jones.

C. Third Cause of Action for assault.

Jones alleged that Dilday brandished a firearm at

him in a threatening manner. Jones first testified that

when he arrived at the scene Dilday pulled a gun out

of his shirt pocket and pointed it at Jones, but that

Jones grabbed the gun away from Dilday, threw it over

the fence and went toward the Switzer residence to

call the Sheriff. Dilday told him, “Go ahead and call

the sheriff.” Jones was pulled out of the fence, “spun

around,” one of his teeth fell out, he was hit in the head,

App. 72

shoulder and arm. Jones testified that he screamed at

Dilday and was “pissed off.” He said Dilday hit him in

the chest with either a shovel or fencing pliers. He gave

inconsistent testimony about whether or not he went

to the Switzer’s trailer and whether Dilday attacked

him when he was going to or coming from the trailer.

He said he was “trying so hard not to get mad and hurt

him because I would get in trouble,” but that after

Dilday was choking him he “was getting mad.”

The essence of Jones’ testimony is this sequence of

events:

•

Dilday went onto Bi-Rite property and began

digging

•

Jones went to his location and confronted him

•

Jones told Dilday to get off his property

•

Dilday pointed a gun at him and said he was

going to continue digging

•

Jones said he was going to call the sheriff

•

Dilday told him to go ahead and call

•

Jones turned and began to climb through the

fence

•

Dilday grabbed him from behind and hit him,

knocking out two teeth and causing injury to

Jones’ chest

•

Dilday threw Jones to the ground, then let

him up

•

Jones left and Dilday resumed digging

App. 73

•

When the sheriff ’s deputy arrived Jones said

nothing about his injuries to his chest or his

teeth being knocked out.

Dilday’s testimony had some similarities but with

marked differences. He testified that he went onto the

Bi-Rite property to discover why no water was being

delivered. He took a shovel and began to dig. Jones approached him angrily cursing at him, threw his phone

at Dilday, threatened to physically harm him and hit

Dilday in the chest with his shoulder. Dilday then

grabbed Jones and threw him to the ground. He had

an unloaded revolver in his shirt pocket but denied

ever pointing it at Jones. The revolver fell out during

the scuffle and Jones attempted to fire it. After holding

him down for a time, Dilday let Jones up. Jones went

to the Switzer trailer, returned to the scene making

more threats, then left.

Deputy Franklin testified that Jones told him that

during the confrontation Jones “said he hit his right

shoulder against Russell’s left shoulder causing Russell to step back.” Jones had a small abrasion on his

forehead but did not complain of pain or any other injuries nor ask for medical care. Franklin’s testimony

about what Dilday told him is essentially the same as

Dilday’s testimony.

Jones testified that Dilday pointed a gun at him

and was the aggressor. Dilday testified that Jones was

the aggressor. In resolving the disparity, the Court

has considered the probable veracity of the testimony

App. 74

regarding the altercation as well as the balance of the

testimony given by each party.

Jones testimony requires a conclusion that Dilday,

having left a message for Jones that he would be digging so that if Jones wanted to “call the cops” he would

have advance notice, believing that he had an easement to repair the pipe and was acting within his

rights, was interrupted in his digging, inexplicably

pointed a gun at Jones (who cavalierly walked up like

John Wayne to the pointed gun and took it away), told

Jones to call the sheriff, waited until Jones left saying

that he was going to call the sheriff, then for some enigmatic reason attacked Jones from behind as he was

climbing through the fence rather than waiting for the

deputy sheriff to arrive. He then hit Jones in the chest

either with a shovel or fencing pliers as they wrestled

against the fence and on the ground. He also hit Jones

in the face several times, causing him to lose two teeth,

but Jones never mentioned his chest injury or the loss

of two teeth to Deputy Franklin.

Jones’ testimony throughout the trial was inconsistent with that of the other witnesses. For example,

he testified that Waller physically pushed him “with

his face,” with his chest, or with his hands and body or

his legs or his belly or his face” “all the way down to

the corner of the Boren property” on the day the video

Exhibit 6 was made. He believed that the video would

show such pushing. In fact the video shows that Waller

never made physical contact with Jones, never “bullied” or attempted to intimidate him, and was remarkably restrained during Jones’ tirades. Both Waller and

App. 75

Ferrero testified that Waller never pushed Jones and

that they never went further south than shown in the

video. It is obvious that Jones’ testimony was either

mistaken or intentionally false.

Dilday’s testimony was very believable. It is much

more believable that Jones angrily attacked Dilday

and that Dilday acted in self-defense by throwing him

to the ground than that Dilday attacked Jones from behind for no apparent reason.

The Court disbelieves Jones’ testimony that two of

his teeth were knocked out in the melee. It is inconceivable that he would not have reported such an injury to Deputy Franklin at the time of the event. The

Court also disbelieves Jones’ testimony that he suffered a serious injury to his chest from the scuffle. Ferrero gave credible testimony that Jones was struck

forcefully by a cow attempting to deliver a calf. She also

testified that, contrary to Jones’ testimony that he is

unable to walk long distances or exert himself, she has

seen him walk up a steep hill carrying a backpack and

dig with a shovel. Jones introduced photographs of him

digging with a shovel and carrying pieces of concrete.

The Court disbelieves Jones testimony that Dilday hit

him with a shovel or pliers. Jones’ expert witness, Dr.

Allyn, testified that his injury could have been caused

by a fall, blow or simply by a hard cough. It is possible

that Jones’ chest injury could have been caused by falling to the ground during the altercation with Dilday,

but if it was, it was because he was the aggressor and

Dilday was acting in self-defense. Jones is not entitled

App. 76

to any recovery against Dilday for his Third Cause of

Action.

D. Fourth Cause of Action for Battery.

For the reasons set forth above regarding the

Third Cause of Action, Jones is not entitled to any recovery against Dilday for his Fourth Cause of Action.

E. Fifth Cause of Action for Trespass to Land.

Cross-Complainants alleged that Dilday and Ferrero trespassed on their property and damaged or destroyed it. Without specifically naming Dilday, during

his testimony about the altercation on July 14, 2015

Jones testified that he “thought it was pretty wrong,

you know, to cut my fence and then take down the

panel that we just went and got a judgment on” and

made reference to “him cutting my fence and taking

the panel down.” Without specifying who, he said,

“they cut a gate in my fence right after I fixed it.” He

gave very confusing testimony about “two green gates”

disappearing and appearing at “my grandma’s 53

acres.” He testified that he told Dilday that “he was

trespassing, get off the property, and he vandalized my

fence.” He testified that he “fixed that fence 586 times

last time.” Again without naming any perpetrator, he

testified that they were cutting the fence every day,

sometimes twice a day.”

On Jones first day on the stand, he testified as follows:

App. 77

THE WITNESS: I seen Mary Ann Ferrero

cut my fence the last time, if you want to go

there.

MR. REED-KRASE:

sive –

Strike as nonrespon-

THE WITNESS: – over 586 times, I have

pictures of every time.

Again referring to Ferrero, Jones testified:

I mean, I don’t think I met her until they were

climbing through the fence, cutting the fence,

and stuff. They cut the one on one side and

crawled through the other one, and then they

get stuck in there. I got video of them, all

kinds, at the house, but they are not due to

this, you know what I mean. They ain’t got the

2013, January, or whichever it is, the judgment.

Q.

So all that was way before 2013?

A.

Yes.

Jones also claimed that PVCC employees cut his

fences:

Q. Who is “they” that keeps climbing through

your fences and cutting them?

A.

Employees of Pleasant Valley.

On the fifth day of trial, Jones gave specific testimony about Dilday and Ferrero cutting his fences:

Q.

Who did you see cut the fence?

App. 78

A. I seen Mrs. Ferrero. I never seen Tanna

do nothing to the fences. I’ve seen Mr. Dilday

cut my wires and then undo the panel and

dig on the property, and I asked him to leave

and –

***

Q. What I’m asking is, what did you see Ms.

Ferrero do that you described as “cutting the

fence"?

A. I have seen her cut both the fences, the

lane fence and the fence to the west.

***

Q. When is the most recent incident you saw

– let’s just stay with Ms. Ferrero. When is the

most recent incident you saw Ms. Ferrero cutting the fence on what you describe as Virgil

Rogers’ property that they may or may not be

leasing, and the Bi-Rite Property, when is the

recent time you saw them?

A.

Like in 2011.

Q.

What did you see at that time?

A.

I don’t understand.

Q.

For example, was it day or night?

A.

Yeah, through the daytime.

Q. Where were you when you observed this

happening?

A. Actually, I was setting on the couch

watching TV.

App. 79

When asked to clarify what he saw Ferrero doing

to cut the fence, Jones responded: “I didn’t see. With

the camera that we had at the time, it’s a video camera,

and when you pull it in you can see something in her

hands.” He testified further:

Q. Have you seen them use some kind of

tool?

A. No, sir. When I go down there I just see

the wires were cut and the clips have been

taken off and the wires been twisted around

and –

Q. So you actually saw severed fence, is

that –

A.

Yes, sir. I had to fix the fence 586 times.

When asked further about the fences being cut,

Jones testified:

Q. What part was cut, the hog wire, the

barbed wire, or both?

A. The barbed wire most of the time, but the

hog wire was old, and when you step on it it

will break, you know.

Q. When the barbed wire was cut was it all

strands or just one strand or –

A. It varied who was doing it, you know, who

was going up there. The ladies, they usually –

they like would cut one or two if it was tight

so they could get through without getting

hurt, you know. I mean, no one likes to get cut

App. 80

by four barbed wires or red barbed stuff, it’s

sharp.

With regard to one specific fence which was not

clearly identified, Jones testified:

A. – of 176, be easier to put it that way. They

take the staples out and stuff, and I never

seen Mrs. Ferrero or Mrs. Kibler cut that

fence. I’ve seen –

Q.

Have you seen that fence cut?

A.

Yes, sir.

Q.

Where along that fence line was it cut?

A. By the ditch, past the ditch, probably 20

or 30 feet up the hill, below it, below the ditch

to the west.

Q.

Did you ever learn who cut that fence?

A. Not really. Well, I mean, we got videos of

them and pictures of them climbing through

there and tearing it up, but I myself, I don’t

believe Ramon Mora, the ditch tender, would

ever cut my fence intentionally. I’ve known

him for 20 or 30 years, before he became a

ditch employee.

Q. So you have no information as to who cut

those fences?

A. No, sir, except when Virgil Rogers took it

down.

When asked about the fence “on the northern perimeter,” Jones testified:

App. 81

A.

Oh, it’s that way right now.

Q.

How long has it been that way?

A. Every time I fix it it gets – they take a

post out, put a wire down. I tied it back with a

piece of hay twine, I’ve tied it with vellum

wire, I’ve tied it with – and they just keep

climbing through the fence. But it really has

nothing to do with the Dildays or the Ferreros

on that.

In describing how he fixed the fence, Jones testified:

I had to fix the fence 586 times.

Q. When you say you had to fix the fence,

what did you do to fix it?

A. I had to redo the fence and change cedar

posts because after so many times they start

splitting. I take out T posts, take out cedar

posts for the barbed wire.

Q.

Were the posts broken?

A. No, they like – they like split apart from

putting the staples in them.

Q. So the post that was in the ground actually broke apart, split?

A. Not at the bottom, just up at the top

where like you put the staples in, they

wouldn’t stay. I went all the way to two and a

half to two inch staples. We used to use like

inch staples.

App. 82

Q. Did you – when you had to replace these

posts, or fix these posts, did you actually have

to dig them out of the ground or were you able

to replace them or fix them some other way

without digging?

A. No, some of them we dug out, some of

them they were broke off at the bottom, some

of the T posts were snapped from like trying

to hold on to it and going through it. They

were a little old and they would break and

they rot, just like wood does.

***

Q. When you saw these problems with the

fence that you are describing, and you looked

at them, did it appear that somebody had been

trying to go through the fence and inadvertently broke it or somebody had deliberately

tried to break the fence to injure the fence?

A.

I think they deliberately did it.

Q. What did it look like that made you think

they were deliberately trying to injure the

fence?

A. I don’t know how you would put it. When

I had to fix the same fence twice in one day, I

think it’s been deliberate.

Referring to the day of the altercation between

Jones and Dilday, Jones testified:

Q.

Did it appear that the fence had been cut?

A.

Yes, sir.

App. 83

Q.

What did you see?

A. That’s when I went through and I went –

tried to go through Julie’s to call, and I ended

up going to –

Q. Before you go on, I want to know what

you saw on the fence. Was it cut somewhere?

A. Yeah, all five or six wires. I don’t remember how many wires of the fence it was. It was

rolled up again, nice and pretty like they always do.

Q.

Where was it cut?

A.

Where the gate is. They didn’t, Virgil did.

On day 6 of the trial Jones testified that Rogers

had cut and knocked down a fence, reiterated that he

had pictures to prove that his fence had been cut 586

times, then explained that cutting of the fence began

well before” and finished before the 2009 lawsuit. The

only other evidence regarding damage to Plaintiffs’

property related to Dilday digging holes over the pipeline in order to find and repair the breach in the pipeline where Jones had capped it.

Considering this evidence in the light most favorable to Cross-Complainants, Jones has seen broken

wires and posts in the fence which he considers to be

caused intentionally. He saw Dilday cut the wires of

the fence. He stated that he saw Ferrero cut the fence,

but then testified that he has never seen Ferrero cut or

break his fence, though he believes that she did. He

never saw Tanna Dilday cut or break his fence. He has

App. 84

seen Ferrero and Dilday cross the fence. There are numerous cattle on the property. The photographs introduced show fences that are old and decrepit with posts

that are deteriorated.

Against this conflicting and uncertain testimony

by Jones, both Dilday and Ferrero denied ever cutting

Cross-Complainants’ fences. It stretches credulity to

believe that Jones would possess 586 photographs and

video of Plaintiffs cutting his fences yet not introduce

even one into evidence. At best, Cross-Complainants

proved that Rogers cut a gate into the fence separating

the Dilday and Bi-Rite properties although Jones and

Bi-Rite opposed it, and that Dilday, Ferrero and their

agents climbed over or through the fence at other locations in order to attend to their weir and pipe. There

was no credible proof that Plaintiffs have caused any

monetary damage or loss to Cross-Complainants.

There was no evidence that Plaintiffs have engaged in

any conduct that would justify an award of punitive

damages.

3. Costs

As between Plaintiffs and Defendants, Plaintiffs

are the prevailing party and are entitled to recover

costs.

As between, Cross-Complainants and CrossDefendants Dildays and Ferrero, Cross-Defendants

are the prevailing party and are entitled to recover

costs.

App. 85

As between Cross-Complainants and CrossDefendant PVCC, Cross-Defendants were the prevailing party on all issues. PVCC is therefore the

prevailing party and entitled to recover costs.

4. Attorneys Fees

Plaintiffs have requested attorneys fees pursuant

to Code of Civil Procedure §532(b). The language of

that section makes it clear that it applies only when an

injunction has been granted or may be granted “pending the litigation.” In this case no temporary restraining order or preliminary injunction was issued by the

Court, therefore §532(b) does not apply.

Cross-Complainants have requested attorney fees

under Code of Civil Procedure §1021.9, however because they are not the prevailing party they are not

entitled to an award of attorney fees.

Dated: 5-10-18

/s/ Roper

App. 86

Court of Appeal, Fifth Appellate District - No. F077682

S273289

IN THE SUPREME COURT OF CALIFORNIA

En Banc

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

RUSSELL DILDAY et al., Plaintiffs,

Cross-defendants and Respondents,

v.

MIKAL JONES et al., Defendants,

Cross-complainants and Appellants;

PLEASANT VALLEY CANAL COMPANY,

Cross-defendant and Respondent.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(Filed Apr. 20, 2022)

The petition for review is denied.

CANTIL SAKAUYE

Chief Justice

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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