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NOT TO BE PUBLISHED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.