Petition for Writ of Certiorari — Rabida v. Van Orden
Supreme Court brief1992
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Bupreme Court, ug,
FILED
\) i
9l-1907 : FEB 20 i992 |
|
OFFICE OF THE CLERK |
a
ee
IN THE SUPREME COURT
OF THE
UNITED STATES OF AMERICA
January Term 1992
In re.:
Patricia Rose Rabida,
Petitioner
Vv.
Joseph B. Van Orden, Jay Van Orden,
Stoye Milburn, Charles Mc Gowan III,
Kent Wardell, Alfred O. Knapp, and
Russell J. Knapp et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
CALIFORNIA STATE COURT OF APPEAL
FOR THE FIFTH DISTRICT
PETITION FOR WRIT OF CERTIORARI
Patricia Rose Rabida
5425 Shoup Ave.
Woodland Hills,
California. 91367
(818) 704-6772
l (VERIFICATION - 446 and 2015.5 C.C.P)
LOS ANGELES
2 STATE OF CALIFORNIA, COUNTY OF
Petitioner
3 I, the unaersigned, declare: | am the
4
Writ of Certiorari
5 in the above-entitled action; | have read the foregoing
6
7 and know the contents thereof; and the same is true of my own knowledge, except as to the matters which are therein
8 stated upon my information and belief, and as to those matters, I believe it to be true.
9 I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dae Signature of Oeclaram
11 Patricia Rose Rabida
Type of Prin Fu Name of Deciarant and Tule, of appicadic
12 (PROOF OF SERVICE BY MAIL - 1013a, 2015.5 C.C.P.)
13 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
14 1 am a resident of /employed in the aforesaid county, State of California; | am over the age of eighteen years and not a
1S party to the within action; my business address/residence address is:
6 9650 Sepulveda Blvd. Sepulveda Ca. 91343
17 a May 1 oe 1922 f served the foregoing
18 Writ of certiorari *
(set forth the exact cule of (he document served)
19
interested parties
20 on
1 in this action by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the Unitec
2 States mail at Van Nuys Ca. , California, addressed as follows
»% . ,;
: see attached list.
a
5
6 I certify (or declare), under penalty of perjury under the laws of the State of California, that the foregoing is true and correc:
May 19, 1992 Pe ae oe
a Y “ —_* — oe : ( et
Date - Signature of Oectaran
8 John H. Sallach
3 lyoe or Prem Full Name of Occtarant
| WOLCOTTS FORM 811P—Rev 682
— TBEST AVAIL!
Writ of Certiorari mailed to:
Hon Brown,Court of Appeal,Fifth District,
P.O.Box 45013, Fresno Ca. 93718.
Hon. John M.Nairn, Superior Court,1415 Truxton Ave.
Bakersfield Ca.93301.
Hon. John M.Stanton, County Counsel's Office,
1415 Truxton Ave. Bakersfield Ca. 93301.
(Please forward)
Stoye Milburn @ Edith’ Milburn, 1000 Pacheco Rd.
Apt. 23, Tehachapi Ca. 93307.
(Please Forward)
Charles Mc Gowan III, 9445 East Ives St.
Bellflower, Ca. 90706.
Joseph B. Van Orden and Jay Van Orden,
20154 Hatteras Street, Woodland Hills Ca. 91367.
Harry M. Reynolds, attorney at law, 1206 L. Street,
Bakersfiled Ca. 93301.
attorney representing the following:
Joseph B. Van Orden,
Jay Van Orden.
Charles Mc Gowan.
Alfred O. Knapp.
Russell P. Knapp/
Kent Wardell.
The above were put in the U.S. Mail with first class
postage affixed. °
QUESTIONS PRESENTED FOR REVIEW
Has the state court taken defendant's
land and given it to six other private
individuals without Due Process ?
Was the judgment obtained by Fraud, Cor-
ruption, Misconduct, Duress and Excess
of Jurisdiction on the part of Hon.
John M. Stanton, Hon. John M. Nairn,
Hon. Brown of the Fifth District,
attorneys Harry M. Reynolds, Virgil
Roberts Jr.,and Howard Manning et al.
Were all neccessary elements satisfied
relating to creation of easements over
the private land of another.
Is there evidence of Evidence Tampering
by the officers of the court and/or by
the court itself i.e. Hon John M. Nairn,
attorney Harry M. Reynolds, et al.?
Did attorney Harry M. Reynolds attempt
to influence Judge John M. Nairn ?
Was Reynolds successfully in influenc-
ing Judge John M. Nairn ?
Fe
8.
10.
ll.Is Joseph B. Van Orden guilty of Fraud,
> #
>»
Was the complaint fraudulant ?
Was there a conflict of interest
between attorney Harry M. Reynolds
who prepared the complaint and
Joseph B. Van Orden who verified
the Complaint and then litigated
the case in the absence of real
parties in interest and/or the
the whens plaintiffs ?
Does the record evidence a conspi-
racy between Robert C. Monroe,
his agent Stoye Milburn and his
agent's friend and former associate
Joseph B. Van Orden; which originated
prior to defendant's acquisition ?
Is Harry M. Reynolds, guilty of
subordination to perjury ?
Deceit and/or Perjury.
Is defendant's testimony uncontrovert-
ed and substantially supported by
direct evidence, credible exhibits,
-il-
*
14.
expert testimony and the preponderance
of evidence ?
Is defendant entitled to judgment on
the complaint ?
Is defendant entitled to judgment on
the Cross-complaint ?
-iii-
TABLE OF CONTENTS
Questions to be Reviewed.
Table of Contents.
Index of Appendices.
Table of Authorities involved
in the case.
Tabie of Statutory Provisions
Conferring Jurisdiction on
the U.S. Supreme Court.
Petition for Review denied
by State Supreme Court.
Concise Statement of Grounds
of Jurisdiction of the U.S.
Supreme Court.
Dates of Entries of Judgment,
and Opinion sought to be
Reviewed.
Dates of Orders Respecting
Rehearing etc.
Statutory Provisions Believed
to Confer on this Court
Jurisdiction to Review Judgment.
Statutes, Constitutional Provisions,
Codes, Etc. Involved in Case.
Concise Statement of Reasons
Relied on for Writ.
Statement of Case.
Conclusion
-iv-
xxl
14,188
31
ao
65
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
INDEX OF APPENDICES
Nov.5, 1991 OPINION
Mar.29,1985 OPINION
Nov.20,1991 State
Supreme Court Denial
of Petition for Review.
April 24, 1981 Notice
of Intended Decision.
Jun.2, 1983 Judgment.
Dec.20, 1983 Signed
Findings of Fact and
Conclusions of Law.
Letter to Judge
John M.Stanton
Re.3rd Set of
Findings.
Special Verdict
by Jury Foreman.
Judgment on Special
Verdict by Hon.
John M Nairn.
David Brown's Aug. 4,
1989 “Exhibit ‘A‘'"
filed with Hon.
Nairn's Judgment
Aug. 3,
April 27, 1978 Default
of Stoye Milburn.
1977 Complaint.
163
165
166
168
170
178
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
June 16, 1980 Dismissal
with Prejudice of Robert
C. Monroe.
Diagram of Owners in
SE% of Section li,
based on Complaint.
Bell-Shaped-Curve Road
Depicted on Alan
Whitlock's May 1970
Work Map.
Diagonal Road in SW%
of SE% as Depicted on
David R.Brown's Aug. 4,
1989 Platting.
Diagonal Road Depicted
SW% of SEX prepared by
Don Ward based on des-
cription of easement in
Brown's "Exhibit A"
Overlay of Bell-Shaped
Curve Road and Brown's
Diagonal Road.
Tracing of Roads in W*
of Sw of SEX in 1975
Aerial Photograph.
W-E Road depicted on
Aug. 1970 Whitlock Map
on which Van Orden
illustrated extensions
thereto.
Statutes, Codes,etc.
Involved in Case.
(Per Rule 14,1 (f))
ayi-
180
181
182
183
184
185
186
187
188
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
Objections Made and
Review Sought in
Court of First
Instance.
Objections Made and
Review sought in
Remand Hearing.
Exhibits Presented
by Plaintiffs at
1980-1981 Trial and
at 1989 Hearing.
Exhibits Presented
by Defendant at
1980-1981 Trial.
Exhibits Presented
by Defendant at
1989 Hearing.
-vii-
196
223
273
re ee
276
LIST OF AUTHORITIES INVOLVED IN CASE
Page
Allegre v Maryland Ins. Co. 6 Harr 25
& J. (Md.) 408, 14,Am. dec. 289
Amerco Inc. v Tullar, 182 Cal.App. 15
2d 336, 338, 6 Cal. rptr 6, 9.
A & M Records, Inc. v Heilman 24
(1977)App.142 Cal.Rptr. 390 (11)
Atlantic Coast Line R, Co. v. 20
Temple 285, US 143, 76 L.Ed.670,
Sa Be Ce Bae
Aver v Frank (1964) 227 CA2d 396, 20
406
Beck v State Farm Mut.Auto Ins. 23
Co. (1976) 54 Cal.App.3d 347,
126 Cal.Rptr.602
Bollinger v Bollinger (1908) 18
154 C 695, 99 P 196.
Bradbury v. Cronise (1873) 19
46 C 287
Brautigan v. Brooks (1964) 227, 20
CA2d 547, 38 Cal.Rptr, 784
Brown v Radcliff (1913) 21 Cal. 17,191
App. 282, 131 P 769
Bruggerman v Illnois CR 147 Iowa 25
187, 123, NW 1007, Ann Cas.1912
B 876.
Burke v. Levy 68 C 32,8 P 527 19
Burris v People's Ditch Co.(1894) 17,191
104 Cal. 268, dad, i377 P Zé
-Vvill-
Cassidy v State 18
Citizens State Bank v Bowles
NY 346,73 NE 33, 105 Am.St.Rep
765.
City of Oakland v Partridge (1963)
29 Cal. Rptr. 388, 214 CA2d 196
Clinchfield Coal Corp.v Compton
148 va 437, 139 SE 308, 55 ALR
1976.
County of L.A. v. Bartlett 203
CA2d 523, 21 Cal.Rptr. 776.
Crane v. French (1940) 104 P2d
53, 39 CA2d 642
Crimmins v Gould 149 Cal.App.2d
Curtis v Nye & Nissen (1927)
261 P 747, 86 Ca 507
Cyrus v Haverson (1976) 65 Cal.
App 3d 306, 316,135 Cal.Rptr.
D'Amico v Board of Med. EXaminers
(1974) 112 Cal.Rptr.786.
De Supulveda v Baugh 74 C 468,
16 P 223
Di Genova 57 Cal.2d 179, 18 Cal.
Rptr. 369;367 P2d 865.
Div. of Labor Law Enfor. v.
Standard. Oil Prod. Co.(1955)
288, P2d 637, 136 Ca2d Sup. 919.
Eck v Mc Micheal (1960) 1 Cal.
Rptr. 369, 176,CA2d 368.
-1x-
24
26
29
19
30
21
23
Elkinton v Cal.St. Auto Ass'n
Inter, Ins. Bureau (1959) 343,
P2d 396, 173 CA2d,338.
England v Hospital of Gd. Sam.
14 Cal.2d 791, 795, 97 P2d 813
Epley v Hiller (1954)274 p2d
696, 128 CA2d 100.
Estate of Ramsey 107 Cal.App2d
372,375, 237 P2a 20,822,232. (iS3Sid.
Feldsman v Mc Govern (1941) 112
P2d 645, 44 CA2d 566.
Feldsenthal v Warring 40 Cal.
App.119,131,180 P 67.
First Nat. Bank of Potterville
v De Moulin (1922) 205 P92,
56 Ca 3i3.
Fisher v Cheseman (1968) 260 Cal.
App2d 503, 506, 67 Cal Rptr. 258.
Franklin v Dorland (1865) 28 C.
175, 87 Am. De. Ill.
Fristoe v Drapeau 35, Cal.2d 5,
8,215 P2d 729
Furtado v Taylor (1948) 194 P2d
770, 86 CA2d 346.
Gagnon v Adamson 122 Ca.2d 678,
224,P2d 71.
George v Goshgarian (1983)189 Cal.
Rptr. 94.
Goatman v Fuller 191 216
P 326
C 245,
29
194,29
30
20
22
190,17
21
22
27
189,15
26
189,16
14,16
19
Guerra v Packard 236 CA2d 2/72,
46,Cal.Rptr.25.
Hale v George A. Hamel & Co.(1975)
121 Cal.Rptr. 144, 48 CA3d 73.
Hass v. Central Union H.S. Dist.
27 Cal.App.2d 319, 322, 80 P2d
1044.
Haun v Hyman (1963) 223 Cal.App.
2a 6201 36 Cal.Rptr. 84.
Height v Minor 113 Cal. 385, 391,
45 P 700.
H. Russell Taylor's Fire Preven-
tion Service Inc. v. Coca-Cola
Bottling Corp. (1979) 99 Cal.App.
3€ 7ii.
In Re. Mc Ginn's Estate (1889)
3 Cof.26.
In Re. Blanc's Estate (1892)
3 Cet. 7ks
In Re. Howell 114 Cal. 250,254,
46 P 159.
Jamison v City of Oxnard (1982)
134, Cal.App.3d, 856,858-859
Cal.Rptr, 864.
Johnson v Farmer 41 CA2d 874,
107 P2a 959, 108 P2d 945.
Jose v Pacific Tile & Porcelain
Co. (1967) 58 Cal.Rptr. 881.
Joseph v Ager 108 Cal.517, 520-
521, 41 P 422.
Kane v Cook 8 Cal. 449.
-xi-
17,19,
23
195, 29
192,22
194,29
22
20
20
24
30
19
18
190,16
27
Keck v Wingert (1933) 132 CA 21
475, 23 P2d 99.
Kittner v Shippy (1908) 96 P 192,18
912,8 CA 342.
Kodota Fig. Assn. of Prod. v. 192,18
Case-Swaune Co. (1946) 167 P2d
518, 73 CA2d 796.
Kosich v Braz (1967) 56 Cal.Rptr. 14
54 (4,5)
Kreiger v Pacific Gas (1981) 191,17
119, Cal. App.3d 145, 755-756.
Kuttler Estate (1960) 185 CA2d 20
189, 8 Cal.Rptr.16.
Kytasty v Godwin (1980) 162 Cal. 190,188,
Rptr. 561, (4-5)102 Cal.App.3d 15,16
rir
L.A. fire & Police Protection 27
League v City of L.A. (1972)
23 CA3d 67,74.
L.A. v Howard 244 CA2d 538,53 Cal. 192,17
Rptr.274
Lampman v Milks 21 N.Y.505 at 507. 15
Langazo v San Joaquin Light & 192,17
Power 32 CA2d 678, 9 P2d 825.
.Laverone v Weakly 155, C.395, 19
"101 P 304.
Lawrence v Montgomery,37 Cal. 14
183,188.
Leasman v Beech Aircraft Corp. 23
(1975) 48 Cal.App. 3d 376, 382,
121 Cal.Rptr. 758.
-xii-
Lee v Sm. Cl.Ct. 34 Cal.App.2d
1,5,(92)
Leonard v Haydon (1980) 110,Cal.
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Lillian F. V. Superior Court
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314.
Lord v Morris (1861) 18 Cal.
482, 491.
Luellen v City of Aberdeen
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Mc Auley v Broackway Tahoe Vista
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Mc Donald v Mc Elroy (1882)
4 Kent's Com. 473 P. 489.
Mesmer v Uharriet (1916) 174 Cal.
110, 162 104.
Montijo v Robert Sherer & Co.
(1907) 92 P 512, 6 CA 558.
Moore v Miller (cc 1890)
43 F 347.
Morrison v Wilholt (1944) 145 P2d
707, 62 CA2d 830.
Navarro v Pulley 66 CA2d 827,
153 P2d 397.
Nestle v. City of Santa Monica
Sup. 101 Cal.Rptr. 568, 6 Cal.3d
929, 573
Newhart v Pierce (1967) 62 Cal.
Rptr. 554.
-xiii-
16
21
18
193,26
14
15
21
27
192,18
189,15
25
20
Ng. v Hudson (1977) 142 Cal.Rptr.
554.
Northern Ry Co. v Jordon 87 C.
Souatoe PF Sess
Ord v. Ord (1893) 99 C. 523,
34 P 83.
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2d 678, 681, 224 P2d 71(4).
People v. Adamson (1946) 165,P2d
3, 27, C2dad 478, affirmed 67 S.Ct.
1672, 332, U.S. 46, 92 L.80. i903,
L71,A.L.R. 1223.
People v Agnew (1947) 176 P2d
724, 77 CA2d 748.
People v Byrd (1948) 198 P2d
561, 88 CA2d 188.
People v Downs (1953) 251 P2d
369, 1214,CA2d 758.
People v Fink 118 Cal App
631,634,5 P2d 641.
People v Godines 17 Cal.App.
2d 721, 724, 62 P2d 787.
People v.Goldstein (1956) 293,
P2d 495, 139 CA2d 146.
People v. Malbrough (1961) 10
Cal.Rptr. 632m 359, P2d 30,
55 C2d 249.
People v.Nelson 36 Cal.App.
2d 515, 97 P2d 1043.
-xiv-
19
18
188,189
14,15,
16
21
r
26
23
24
24
21
21
24
People v Paustau 39 Cal. App.
2d 407,413, 103 P2d 224.
People v.Phillips, 56 Cal.App.
291,296,205 P 40.
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People v Shuey 13 Cal/.3d 835,
841, 120 Cal.Rptr. 83,85, 533
P2d 211.
People v Stevens (1959) 345 P2d
582,175 CA2d 123.
Piazza v Schafer 255, CA2d 328,
63 Cal. Rptr. 246
Pollard v Rebman 162 Cal.633,
634,635, 124 P 235.
Richman v Bank of Perris (1930)
282,P 801, 102 CA 7l.
Richmond v Dart Ind. Inc. (1987)
196 Cal.App.3d 869,879, 242 Cal.
Rptr. 184.
Rigby v Sup. Ct. 94 C 354,
29 P 716.
Rivaid v Board of Pension Com.
(1985) 164 Cal.App. 3d 405,414,
210 Cal.Rptr,509.
Rosebrook v Utz 45 CA2d 729 (1941)-
Alameda County.
Roth v Cottrell 112 CA2d 621,
246 P2d 958 (1952).
Samuelson v Ingram (1969) 272,
24
24
24
30
16
189,15
)
18
195,29
22
195,29
CA2d 804,806.
Scholle v Finnell (1914) 167,
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166, 203,CA2d 819.
Stafford v Ballinger (1962) 18
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525,247 P 240.
Tarr v Watkins 4 Cal. Rptr. 203,
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643,376, P2d Sil.
(interpreting CCP 1054)
Thompson v Thompson (1936) 7 C 2d
671,681,62 P2d 358.
Vagel v. Vagel 45 C2d 804;
291 P2d 25.
Valintine v Kaiser Hosp. (1961)
15 Cal.Rptr. 26.
Wallace v Whitmore 47 CA2d 369,
117. Pada 329
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326 P2d 942.
Warren v Mould (1883) 2 C.U.
G3 22 Cac 2626 2k Pili hoe
Weber v Weber 33 C2d 153, 199
-xXvVvi-
18
26
192,18
31
18
191,17
27
26
194,29
28
17
14
19
25
P2d 934.
Weightman v Hadley (1956) 138,
CA2d, 831,292 P2d 909.
Whalen v Ruiz (1953) 40 Cal.2d
294, 300,253,P2d 457.
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390; 2 Cal.rptr. 352.
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82 Cal. Rptr.2/2.
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Ballentine Law Dictionary 650-652.
Words and Phrases Perm. Ed. 437.
28.Cal.Jur,3d.P 53,3 By
Implication (7)
54;12 Misconduct of Judge (6)
Parties to Civil Actions 4,
Powers and Duties of Court.
-xXV1l1-
194,29
eh?
191,17
194,29
18
189,16
30
14
16
188,14
193,26
193,26
188,14
2
25
Trial by Jury pg 502 #607 (a): 28
Proposed Jury Instructions:
(Added by Stats 1933, c. 744,
p.1874 #101; Stats 1951, c 1737,
p.4115,#89, operative Jan.1,1952;
Stats 1957,c 1698,p. 3073 #1)
Appeal and Error 1122(2) 30
Pretrial Procedure #45 24
Superior Court Rule 5. 22
Superior Court Rule 229(c) 27
Superior Court Rule 230. 28
6 Trial #255(2) 28
9 Trial #220 28
2 Cal. Jur.3d 107. 17
19 Cal. Jur. 917 15
28 C.J.S. 686 #30. 15,188
1 Easements 15 16
Deceit,within Section 1710(1) 23
Section 3294 23
Stats 1965,C 29 #411. 20
Stats 1933, C 744 P 1874 #101. 28
Stats 1951 C 1737 P 4115, #89. 28
(Operative Jan. 1, 1952)
Stats 1957 C 16 98 P 3073 #1 28
-xXVlii-
Best Evidence Rule #1.
6 Evidence 97, 596 (3)
Evidence Code 200, Note 1,3.
Evidence Code #597
West's Ann. Evid. Code #930,
Evidence Code 1500.
Evidence Code 1500(12)
Civil Code Section 1104
CCP 3; Fraudulant Concealment
CcP 133, (enacted 1872)
ccP 318
ccp 320,As amended, eff.
April 1, 1962; July 1, 1988.
ccP 338(2)
CCP 367
CCP 389
ccP 437(c)
West's Ann.CCP 607 (a)
ccp 608, Note 7.
ccP 909
ccp 909 #77
ccp 909 #83
CCP 1856(a)
-x1xX-
193,23
193,26
192,18
25
14
16,28
28
20
30
30
18
CCP 3527 14,27
CCP 3530 14
Penal Code 118, 118(a) 24
Penal Code 1246 22
Penal Code 1467 22
Criminal Law #1180 30
U.S.C.A. Const. Amend, 5. 25
List of Stautory Provisions Conferr-
ing Jurisdiction on U.S.Supreme Court
Alaska-Kenail v Kenai 590 P2d 437
Albelleira V. District Ct. of Appeals
(1941) 17 Cal.2d 280,291, 109 P2d 942.
Auto Equity Sales Inc. Vv Sup. Ct.
(1962),57 Cal.2d 45 454, 456, 620
Cal.Rptr. 321, 369 P2d 937.
Briston v. Cheatham 255 pP2a 173, 79
Ariz,24/ +
Byars v U.S. lowa 47 Sup.Ct. 248.
273,U.S. 28, 71 L.Ed. 520.
Davis v. Wakelee, Sup. Ct. of U.S,
39 L.Ed. pg 585.
Dickoff v Dewell 9 So.2d. 804, 152
Fla. 240.
Eggemeyer v. Eggemeyer 554 S.W.2d.
Equitable Sav. & Loan Ass'n v. Sup.
Ct. L.A. County.
Exparte Mitchell 1 De Gex B.Cas 25/7.
Ex Parte Rhodes 79 So.462,202 Ala.68,
1 Ala. 68, 1 A.L.R. 568.
Goldring vy Schubach Optical 70
P2a 87lm 93 Utah 32.
Gr. West. Power CO. Ve
Pilsbury (19
170 Cal. 180, 185,186, 3
1
191, 149 P 35.
Haggar Co. V.- United States (1955)128
F.Supp 404-406,
5 )
12
ll
12
_————EEEEi,”!_.a.a.—nNISE=-=-
Hawaii v Mankichi (1902) 190 U.S.
197, 213, 23 Sup.Ct. 787,47 L.Ed 1016.
Hayward v Duff 12 C.B.N.S. 364
Hazel-Atlas Glass Co. v Hartford-
Empire Co 322 US 238, 88 L.Ed.
1250, 64 S Ct.997
Heydenfeldt v Daney Gold etc.Co.
93 U.S 634, 638, 23 L. Ed. 995.
In Re. Baldinger D.C. Cal. 356 F Supp.
133.
Laverty v Cochran (1937) 271 NW 354,
Lee v State of Fla.1968, 88 S.Ct.
Lovisi v Slayton D.C. Va 363 F.Sup.620
affirmed 539 F2d 349 certiorari denied
97 S Ct. 485,429 US 977, 50 L.Ed.2d 585.
Meeker v Meeker 1967 (243 A2d 801.
Merchant's Nat.Bank v U.S. 214 F.
(1914).
Mitchell v Sup. Ct.(1972) 28 Cal.
3d 759, 762, 104 Cal.Rptr. 921.
Newland v Child 254 P2d 1066
Ohio & M.R.Co.v. Mc Carthy,96 U.S.
258 (24;693).
People v Bagdanoff 171 NE 890, 254
NY 16, 69 A.L.R. 1378.
People v Humphreys 187 NE 446, 353
Tii. 340.
People v Utica Ins. Co. 15 Johns ,
358,381, 8 Am.Dec.243.
-xxili-
12
5,6
2
-
7
12
Petition of Devlas 31 F.D.R. 130 (1962)
Philadelphia, W. & B. R.CO. V »
Howard 54 U.S. 13 How. 307 (14:157)
Root Refining Co. v Universal Oil
Products Co. 169 F.2d 514.
Seaboard Sys.RR Inc v Clemente 467 So.
2a 348 (Fla.App.3 Dist.(1985)
Smith v Keator 206 S.E.2d 203, 285
N.C. 530 appeal dismissed 95 S.ct.613,
419 U.S. 1043, 42 L.Ed.2d 636.
Smith v U.S. CA Tex. 502 F2d 512.
State v Vouse 264 P2d. 800. 805,
199 Or. 676.
Stimson Mill Co. v. Braun, 136 Cal.
122, 68 P.481,57 L.R.A.726, 89 Am.
St.Rep. 116.
Sutter v. Easterly 189 S.W.2d 284.
Universal Oil Products Co. v Root
Ref .Co.;328 US 575-581.
U.S. Citizens-Sep. of Church & State
v. City of Denver D.C. Colo. 481 F.
Supp. 522.
2,Const. Law #67.
1.Const. Law #87.
5S. Const. Law # 86,87.
Const. Law C. Judicial Powers and
Functions #169.
6 Const. Law # 278(1).
-xxili-
2
ll
aera nee Se ae
#446 C.J.S. Const. Law 459,12. 4
#448 Const. Law 16 A C.J,S.462. 5
#450 Const. Law 16A C.J.S.463. 3
505 Const. Law 16 A C.J.S. 9
604-605, 608,609.
Const. Law #506, 16A C.J.S. 10
608-609 & 610-611.
#1429 Const. Law 16D C.J.S. 687. 8
Const. Law Section 1 of art. 3. 8
Const. art.l ## 1, 13; I.C. #56-224a. 9
Const. art 2 #1; art 5 #1. 3
U.8.C.A. AEt.8 Ci.2. 7
1. United States 120. 7
Fed. Rules Civ. Pro. 60(b) 28 USCA 4. 2
American Law Institute, Restatement of 8
the Law, Judgments 2d,#70, Ch.5, P.180.
2 Appeal & Error 170(2). 3
10.Attorney and Client #42. 7
Corpus Juris Secundum 16, 538-542. 4
8. Equity #65(1). 7
3.Judgment #443(2). 10
4.Judgment #444. 10
Rule 60 (b). 13
6 Statutes #188. 5
-xXxX1V-
United States #120.
116A C.J.S.
16A C.J.S.
Cal«i.R. 553-554.
-XxXV-
NO.
IN THE SUPREME COURT
OF THE
UNITED STATES OF AMERICA
January Term 1992
in £e@.%
Patricia Rose Rabida, Petitioner
Vv.
Joseph B. Van Orden, Jay Van Orden,
Stoye Milburn, Charles Mc Gowan III,
Kent Wardell, Alfred O. Knapp, and
Russell J. Knapp et al].,Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
CALIFORNIA STATE COURT OF APPEAL
FOR THE FIFTH DISTRICT
l(a) The State Supreme Court denied Peti-
tion for Review on Nov. 20, 1991.
l(e) Jurisdiction of U.S. Supreme Court
is invoked pursuant to Title 28 USC
8 aS7ss
State Court has taken title to real pro-
perty rights from one party and given it
eo
to the six other parties without Due Pro
cess. Judgment obtained by fraud,duress,
and misconduct on part of officers of the
court, and of the court itself.
Petitioner, Patricia Rabida, respect-
fully prays that a writ of certiorari
issue to review the Sept. 5, 1991 Opinion
of the 5th District Appellate Court appear-
ing in Appendix A herein.
Denial of rehearing was filed Sept 27,1991.
(iv) STATUTORY PROVISIONS BELIEVED TO
CONFER ON THIS COURT JURISDICTION
TO REVIEW JUDGMENT
Fed. Rules Civ. Pro.Rule 60(b) 28 USCA 4.
Rule permitting party to file motion to
be relieved from a final judgment for
fraud, misrepresentation, or other miscon-
duct of adverse party is intended as re-
lief from injustice of allowing a fraudu-
lant party to hide behind the protective
shield of doctrine of res judicata.
(In Petition of Devlas 31 F.D.R.130 (1962)
In Laverty v Cochran (1937) 271 NW 354,
2,Constitutional Law #67: "Judicial Power"
within constitutional provisions for sep-
aration of governmental departments and
vesting judicial power in courts, is au-
thority to hear and determine controver-
sies as to rights and render judgments
binding on disputants on such determina-
tions. (Const. art 2 #1; art 5S #1)
#448 Constitutional Law 16 A C.J,S. pg.
462: “A Court may not engage in any acti-
vity which deprives a party before it of
his constitutional rights. (U.S. in Re.
Baldinger D.C. Cal. 356 F Supp. 153)
"Constitutional Rights cannot be made de-
pendent on favor of the court, but may be
asserted as a matter of right."
(People v Humphreys 187 NE 446, 353 Ill.
340; People v Bagdanoff 171 NE 890, 254
NY 16, 69 A.L.R. 1378; State v Vouse 264
p2d. 800. 805, 199 Or. 676.)
"---and in matter of safeguarding these
constitutional rights the court looks
to substance, rather than to technical
forms of procedure taken to invoke the
protection of the law." (Dickoff v Dewell
9 So.2d. 804, 152 Fla. 240; Smith v U.S.
CA Tex. 502 F2d 512; Kenai v Kenai 590
P2da 437)
2 Appeal & Error 170(2) “Supreme Court
will hear constitutional questions not
raised below where consideration of such
question is central to a correct resolu-
tion of the controversy and justice re-
quires consideration of the question."
(Meeker v Meeker 1967;243 A2d 801)
#450 Constitutional Law 16A C.J.S. Pg. 463:
“The denial or violation of a constitu-
tional right is not justified--because
the degree of such invasion is minor."
(U.S. Citizens-Sep. of Church & State v.
City of Denver D.C. Colo. 481 F.Supp. 522)
Constitutional Law C. Judicial Powers
and Functions #169:"The primary responsi-
bility of an oderly administration of jus-
tice and the protection and enforcement of
-3-
iii
constitutional rights rests ultimatly with
the courts and they cannot disclaim the
power to do what is neccessary to accom-
plish these ends.---The judicial function
of declaring what the law is requires that
constitutional provisions ,including the
Bill of Rights, be given full force and
effect." (Briston v. Cheatham 255 P2d 173,
75 Ariz,227; Corpus Juris Secundum 16,
538-542)
#446 C.J.S. Constitutional Law pg. 459:
"The Bill of Rights guarantees the pre-
servation of our natural rights against
invasion of the government or any branch
thereof."
Ex Parte Rhodes 79 So.462,202 Ala.68,
1 Ala. 68, 1 A.L.R. 568 is informative
on the holdings of the Bill of Rights. J.
Mayfield's Opinion held:“These phrases
(Due Process) are limitations upon the
power of the legislature as well as upon
that of the other departments of govern-
ment, and their officers,"(emphasis add-
ed) J. Manfield quotes the Bill of Rights
as:"Sec. 35. that the sole object and
only ligitimate end of government is to
protect citizen in the enjoyment of life,
liberty,and property, and when the govern-
ment assumes other functions it is usurpa-
tion and oppression."
"The constitutions, state and federal,,
in several provisions or clauses not only
declare but guarantee that no citizen
shall be deprived of his life liberty, or
property except by Due Process of Law."
"It was within the contemplation of
the makers of the Constitution that the
legislature should be the judge of what
is due process of law, and that due pro-
cess of law is secured by the laws, opera-
ting upon all alike, and not subjecting
-4_
individuals to the arbitrary exercise of
the powers of the government."
“The Order of the Court of appeals, based
upon an investigation in which the funda-
mental rules of evidence were, at the
court's direction, wholly disregarded,
deprived the petitioner of its property
without Due Process of law." (Universal
Oil Products Co. v Root Ref.co.;328 US
575-581)
"The inherent power of a federal court to
investigate whether a judgment was obtain-
ed by fraud, is beyond guestion."
(Hazel-Atlas Glass Co. Vv Hartford-Empire
Co 322 US 238, 88L ed 1250, 64 S Ct.997
quoted in Uni. Oil Products Co. v Root
Ref. Co. 328 US 575-581)
In Re. Baldinger 356 F.Supp. 153. (1973)
Opinion held:10."A Court may not engage
in any action which deprives a party of
his constitutional rights. 6. Statutes
#188:
“when a statute uses plain understandable
words, the court cannot legislate but must
interpret words as they read without modi-
fication."
"The Constitution of the United States is
an original, written, Federal, and social
compact, freely and voluntarily entered in-
to by the several states and ratified by
the people, and the Federal Government is
bound by that constitution to every eciti-
zen of the United States."
Chief Justice Brown in an appeal from the
District Court of the U.S. held: "Nothing
is better settled than that statutes
should receive a sensible construction
such as will effectuate the legislative
intention, and, if possible, so as to
avoid an unjust and absurd conclusion"
-5.
EE
(Hawaii v Menkichi 47 L.Ed. 1021 (1902)
In Re. Baldinger 356 F.Supp. 153 (1973
"It has been held on more than one occa-
sion by the Supreme Court that if a lite-
ral interpretation of any part of a sta-
tute would operate unjustly, or lead to
absurd results, or be contrary to evident
meaning of the act taken as a whole. it
should be neglected. Heydenfeldt v Daney
Gold etc.Co. 93 U.S. 634, 638, 23 L.Ed.
995; Hawaii v Mankichi 190 U.S. 197, 213,
23 Sup.Ct. 787, 47 L.Ed 1016. such undoubt-
ly is the rule, and we should unhesitat-
ingly follow it in any case to which it
applied.".(Merchant's Nat.Bank v U.S. 214
F. 204 (1914))
"All laws should receive a sensible con-
struction. General terms should be so li-
mited in their application as not to lead
to injustice, oppression, or an absurd con-
sequence. “"--,- _
"“---the books are full of authorities to
the effect that the intention of the law-
making power will prevail, even against
the letter of the statute;---The intention
of the lawmaker is the law---Mr. Chief
Justice Thompson--in People v Utica Ins.
Co. 15 Johns 358, 381, 8 Am.Dec.243:"A
thing which is within the intention of the
makers of a statute is as much within the
statute as if it were within the letter;
and a thing which is within the letter of
the statute is not within the statute, un-
less it be within the intention of the ma-
kers." (Hawaii v Mankichi (1902) 190 U.S.
197,213,23 Sup. Ct. 787, 47 L.EB4. 1016)
Constitutional Law #169 C.J.S. 16,543:
"The Courts are duty bound to apply not on-
ly what the Constitution expressly states,
but also what by neccessary implication
-6§-
from the values on which it is based, the
Constitution implies; in doing so, the
courts must recognize their duty to apply
the law free of emotion and of predilec-
tion." (Lovisi v Slayton D.C. Va 363 F.
Sup.620 affirmed 539 F2d 349 certiorari
denied 97 S Ct. 485,429 US 977, 50 L.Ed. 2d
585)
Seaboard Sys.RR Inc v Clemente 467 So.2d
348 (Fla.App.3 Dist.(1985) 6 Statutes #190:
"Where language of a statute clearly and
unambiguously conveys legislative intent,
it is unnecessary to resort to statutory
construction, and courts should not depart
from the plain language employed by legis-
lature."
U.S.C.A. Art.6 cl.2:"No court, state or
federal, may serve as an accomplice in the
willfull transgression of federal laws by
which judges of every state are bound,
(Lee v State of Fla.1968, 88 S.Ct. 2096)
1. United States #120: “If a Plaintiff
practices a fraud in prosecution or proof
of his case in court of claims, he forfeits
his claim no matter how meritorious his
claim might otherwise have been, or how
supererogatory may have been his attempted
fraud." (Haggar Co. v. The United States
(1955)128 F.Supp. 404)
8. Equity #65(1); "He who comes into equi-
ty must come with clean hands and keep
them clean throughout the course of Liti-
gation,and if he violates the rule he must
be denied all relief, whatever may have
been the merits of his claim."
10.Attorney and client #42: "An attorney
who attempts by personal influence to con-
trol a judge or jury in their decision in
pending case or who merely nolds himself
-j-
I neeeeieeasenesmmeiell
out as able to do so whether or not he ac-
tually makes the attempt and whether or
not he succeeds or fails in attempt, is
ejected from the courts and ceases to exist
as a lawyer." (Root Refining Co. v Univer-
sal Oil Products Co. 169 F.2d 514)
American Law Institute, Restatement of the
Law, Judgments 2d,#70, Ch.5, pg.180: "---
it is equally inappropriate that all judg-
ments be treated as absolutely invioble.
Particularly is this true when a judgment
has been procured by the fraud of the suc-
cessfull party. To immunize such a judg-
ment from attack is to compound the injus-
tice of its result on the merits with the
injustice of the means by which it was
reached. Equally important, if judgments
were wholly immune it would give powerful
incentive to use of fraudulant tactics in
obtaining a judgment. A litigant would
know that if he could sustain duress or
deception through the moment of finality,
the benefit of the judgment would be his
forever." (emphasis added)
Bribery or duress:"When a judgment is
shown to have been procured by the pre-
vailing party through corruption of the
tribunal, or of the attorney for the party
against whom the judgment was rendered,
no werthwhile interest is served in pro-
tecting the judgment."
Constitutional Law Section 1 of article 3
provides:"The judges, both supreme and in-
ferior courts shall hold their offices dur-
ing good behavior."
#1429 “Constitutional Law 16D C.J.S.687:
The constitutional guaranty providing for
open courts and insuring remedies for in-
juries gives a remedy for arbitrary
and unreasonable exercise of power."
of.
——OC~ —
1.Constitutional Law #87; Protection
of one's right to own property is one of
the most important purposes of the govern-
ment; right has been described as fundamen-
tal, natural, inherent, inalienable, not
derived from legislature and as preexist-
ing even constitutions.(16 A C.J.S. #506
guoted in Eggemeyer Vv. Eggemeyer 554 S.W.
2a 137; 5 Constitutional Law #87)
6 Constitutional Law # 278(1) Court held:
"Constitutional guarantee of Due Course
that protects citizens from deprivation
of their property by state requires not
only procedural but also substantive due
course," (Eggemeyer v Eggemeyer (Id))
The right to private property "is a common
law right, which existed before the adop-
tion of the federal and state constitu-
tions and is not now dependent on them
for it's existence---However, to insure
their continuance, property interests are
guaranteed by the federal and by various
state constitutions." (16A C.J.S. #506)
Newland v Child 254 P2d 1066; “The right
to own and enjoy private property is fun-
damental, and is one of the natural, inhne-
rent and inalienable rights of free men,
which preexisted constitutions,” (Const.
art.l1 ## 1, 13; I.C. #56-224a.)
505 constitutional Law 16 AC.J.S. 604-605:
"The right to the pursuit of happiness is
one of the inherent, natural, inalienable
rights applicable to all citizens and as
one of the purposes for which government
is organized, is protected by it*s incor-
poration into the various constitutions.~~
The pursuit of happiness embraces the idea
of the aquisition and use of private pro-
perty.” (Goldring v Schubach Optical 70
P2d 871m 93 Utah 32)
-9-
EE
_————————————eE
5. Constitutional Law # 86,87: "Constitu-
tional guaranty of right to pursue and ob-
tain happiness and safety and property is
violated when one is not at liberty to con-
tract with others respecting the use to
which he may subject his property, or the
manner in which he may enjoy it" (Const.
art 1,#1)" (Stimson Mill Co. v. Braun, 136
Cal. 122, 68 P.481,57 L.R.A.726, 89 Am.St.
Rep. 116 quoted in Goldring v Schubach
Optical (Id))
Constitutional Law #506, 16A C.J.S. 608-609:
“Under constitutional provisions, no person
can be deprived of his property except by
his own consent, or the law of the land,
or except for very urgent reasons." (Smith
v Keator 206 S.E.2d 203, 285 N.C. 530
appeal dismissed 95 S.Ct.613,419 U.S. 1043,
42 L.Ed.2d 636)
Constitutional Law #506, 16A C.J.S. 610-
6ll:"The guarantee embraces the right to
acquire, possess, use, enjoy, protect, im-
prove, as by the erection and construction
of building, lease, and dispose of, or not
dispose of, property." (Equitable Sav. &
Loan Ass'n v. Sup. Ct. L.A. County.)
3.Judgment #443(2) "Conduct of chief attor-
ney for plaintiff, in action for injuries
Sustained in automobile collision in cons-
piring with ostensibly disinterested wit-
ness who did in fact not see the accident
to give false testimony as to cause of
collision and in using such testimony to
obtain verdict for plaintiff, amounted to
a fraud on the court for which equity
should grant relief by setting aside judg-
ment entered on such verdict,
Sutter v. Easterly 189 S.W.2d 284.
4.Judgment #444 “Where an attorney cons-
pires to commit a fraud upon the court by
-10-
production of fabricated evidence and by
such means obtains judgment, enforcement
of the judgment becomes manifestly uncon-
cionable and equity may set it aside."
Sutter v. Easterly 189 S.W.2d 284.
"---wWhen a party asserts what he knows
to be false, or does not know tc be true,
to another's loss, and to his own gain,
is guilty of a fraud; a fraud in fact,,
if he knows it to be false,a fraud in law,
if he does not know it to be true....We
are clearly of the opinion, that the de-
fendant cannot be heard to say, that what
was asserted at a former trial was false,
even if the assertion was made by mistake,
If it was a mistake, of which there is no
evidence, it was one made by the defendant,
of which he took the benefit, and the pl-
aintiff the loss, and it is too late to
correct it."(Philadelphia, W & B. R.Co. Vv
Howard 54 U.S. 13 How. 307 (14:157) quoted
in Davis v. Wakelee, Supreme Court of U.S.,
39 L.Ed. pg 585)
"Tt may be laid down as a proposition that,
where a party assumes a certain position,
in a legal proceeding, and succeeds in
maintaining that position, he may not
thereafter, simply because his interests
have changed, assume a contrary position,
especially if it be to the prejudice of
the party who has acquiesced in the posi-
tion formerly taken by him." (Davis v.
Wakelee U.S.Supreme Court 39 L. Ed. 584)
"Where a party gives a reason for his con-
duct, and decision touching anything in-
volved in the controversy, he cannot, af-
ter the litigation has begun change his
ground, and put his conduct upon another
and different consideration. He is not per-
mitted thus to mend his hold." (Ohio & M.R.
Co.v. Mc Carthy,96 U.S. 258 (24;693 quoted
-ll-
in Davis v. Wakelee (Id); see also Hayward
v Duff 12 C.B.N.S. 364 & Exparte Mitchell
1 De Gex B.Cas 257)
Constitutional Law #448; 16 A.C.J.S. .461:
"The Courts must ever be watchful to pro-
tect the personal rights guaranteed by
state and Federal Constitutions. (Byars
v U.S. Iowa 47 S.Ct. 248. 273,U.S. 28,
71 L.Ed. 520)
U.S. Byars v. USA (Id). Constitutional
law construction-protection of rights (5);
"Constitutional provisions for security of
persons and property are to be liberally
construed, and it is the duty of courts
to be watchful for the constitutional
rights of the citizen and against any
stealthy encroachment thereon."
Failure to Follow Statutory Procedure:
“When a statute authorizes a prescribed
procedure and a court acts contrary to
this authority, it has exceeded it's
jurisdiction and a Writ of Review will
lie to correct the excess," (Mitchell v
Sup. Ct.(1972) 28 Cal. App.3d 759, 762,
104 Cal.Rptr. 921)
Non-Existence of Jurisdictional Facts:
“When an inferior tribunal has power to
act on certain facts, and there is no evi-
dence whatever to show the existence of
those jurisdictional facts, the Court will
annul the decision or judgment below."
(Great Western Power Co. v. Pilsbury
(1915) 170 Cal.180,185,186,191,149 P 35)
“Any acts that exceed the power of a court,
whether that power be defined by the con-
stitutional provision, express statutory
declaration, or rules developed by the
courts and followed under the doctrine of
Stare Decisis, are in excess of jurisdic-
o} 2=
tion." (Albelleira V. District Court of
Appeals (1941) 17 Cal.2d 280,291,109 P2d
942)
Refusal to Follow Stire Decisis:" The
scope of review for lack or excess of jur-
isdiction was greatly expanded in the lead-
ing case of Auto Equity Sales Inc. v Sup.
ct. (1962),57 Cal.2d 450,454,456,620 Cal.
Rptr. 321,369 P2a 937 in which the court
issuing a Writ of Review, held that appel-
late department of Sup. Ct. exceeded it's
jurisdiction by failure to follow a clear,
binding precedent, laid down by a higher
court. The court stated that the rule of
stare decisis is a rule of jurisdiction
for the purposes of a writ of review,
Fraud by officers of the court, or by the
court itself, has long been recognized as
a ground for relief."Rule 60 (b); 60 Cal.
L.R. 553-594.
~]3-
(f) STATUTES, CONSTITUTIONAL PROVISIONS,
CODES ETC.INVOLVED IN CASE
"An easement may be created by implica-
tion, in favor of a grantor or a grantee,
and can be made only in connection with
a conveyance." (Orr v Kirk 100 CA2d 678,
224, P2d 71; Warfield v Basisch 161 CA2d
493, 326 P2d 942)
"Original unity of ownership of the domi-
nant and servient parcels must be pleaded
and proved. This prevents a finding of
such easement in the land of a third per-
son, who is a stranger to the claimant's
title." (Powell on Real Property, Abridged
Ed. Powell & Ruban, 545)
As pointed out in (Mc Donald v Mc Elroy
(1882) 4 Kent's Com. 473,p. 489) quoting
(Lawrence v Montgomery, 37 Cal.183, 188)
"The absence of a road is fatal to Plain-
tiff's action for right-of-way."
CCP 3530:"One of the maxims of Jurispru-
dence is; That which does not appear to
exist is to be regarded as if it did not
exist,"
"Triable issues of fact must be resolved
before it can be determined whether appel-
lant(s) had such an easement..."
(Franson ,Acting P.J.; George v Goshgarian
189 Cal. Rptr. 95 (1983)
(See also CCP 437(c))
28 Cal.Jur.3d P 53, 3 By Implication (7)
(See also 3 Witkin Summary of Cal. Law
(8th Ed. 1973)Real Property #355 p. 2052)
Kosich v Braz (1967) 56 Cal.Rptr.54 (4,5)
"It is true that a purchaser of real pro-
perty in fee takes the property subject
only to the servitude which he knows or
«Lge
should know. (Pollard v Rebman 162 Cal.
633, 634-635, 124 P 235; Amerco Inc. V
Tullar, 182 Cal. App.2d 336, 338, 6 Cal.
Rptr.6,9)
"A purchaser of land for value,takes sub-
ject only to interest in the land of which
he has actual notice or which appears on
the record. The rule applies to easements
as to claims of greater interest." (Mesmer
vy Uharriet (1916) 174 Cal. 110, 162 P 104)
(c.c.Sec. 1104 (19 Cor. Jur. 917) in
(Kytasty Vv Godwin (1980) 162 Cal Rptr.561
(4-5);102 Cal.App.3d 727)
Orr v Kirk(1950) 100 Cal. App.2d 678,
681,224 P2d 71 (4): (28 C.J.S. 686 #30)
(Fristoe v Drapeau 35, Cal.2da 5, 8,
215 p2d 729)
(Navarro v Pulley 66 CA 2a 827,153 P2d
397;Piazza v Schafer 255,CA2a 328,63 Cal.
Rptr. 246) (County of L.A. v Bartlett 203,
CA2a 523, 21 Cal.Rptr 776)
"The elements necessary to create a ‘quasi
easement' or grant by implication, upon
severance of unity of ownership in the
estate, are:
(1) a separation of title.(which implies
unity of ownership at some former time as
the foundation of the right....”
(Orr v Kirk (1950) 100 CA2d 678, 681)
Lampman v Milks 21 N.Y. 505 at 507:"...-
but the moment severance occurs, by the
sale of a part. the right of the owner
to redistribute properties of the res~
pective portions ceases; and easements
or servitudes are created corresponding
to the benefits and burdens existing at
the time of sale."(Rosebrook v Utz 45
CA2a 729 (1941) Alameda County)
~15-
(Wilson v Abrams 1 CA3d 1030, 82 Cal.Rptr.
272; Gagnon v Adamson 122 CA2d 678, 224
P2d 71) (See also; (Orr v Kirk(Id.) 71-73)
(Kytasty v Godwin (1980) 102 Cal.App.3d
72;162 Cal. Rptr.561-563)
(Joseph v Ager, 108 Cal.517. 520-521,41 P
422; Crimmins v Gould 149 Cal.App.2d 383,
390-392, 308 P2d 786).(Kytasty v
Godwin (1980)162 Cal.Rptr,562-563)
"The purpose of the doctrine of implied
easements is to give effect to the actual
intent of the parties as shown by all the
facts and circumstances ..Among these cir-
cumstances is the use which is being made
of the dominant tenement at that time."
(Orr v Kirk (1950) 100 CA2d 678, 681;
224 P2d 7)
"Upon the sale or division of title of
realty, an easement arises by implication
because of the owner's prior existing use
of his property was of such a nature that
the parties must have intended or believed
that the use would continue.."(Miller v
Starr, Current Law of Cal. Real Estate,
3 easements, 304-305; Leonard v Haydon
(1980) 110 Cal.App.3d 263; 167 Cal.Rptr.
789)
George v Goshgarian (1983) 189 Cal.Rptr,
94, 1 Easements 15:"Before the law will
recognize easements by implication, utili-
zation of easement must be apparent and
continuous at time dominant owner acquires
his land."(West Ann.Ca. Civ. Code. 1104)
"Specific intent may be proved by circum-
stantial evidence." (People v Stevens
(1959) 345 P2d 582, 175 CA2d 123)
“Where party relies on a pre-existing use
to establish an easement by implication,
-16-
—E.
the easement created is one consistent
with the manner and extent of such use as
of the time of the conveyance." (Laux v
Freed (1960) 53, Cal2da 512, 2 Cal.Rptr,.
265)
Felsenthal v Warring 40 Cal.App.119,
131, 180 P 67;(Tarr v Watkins 4 Cal.Rptr.-
203)
Kreiger v Pacific Gas, (1981)119,Cal.App34
145,755-756;Whalen v Ruiz (1953) 40 Cal.
2d,294,300,253, P2d 457;(Burris v People's
Ditch Co. (1894) 104 Cal. 248, 252,137 P
22; Brown v Radcliff (1913) 21,Cal.App.282,
131 P 769; White v Walsh (1951) 105 Cal.
App. 2d,828,234,P2d 276)
"A finding that a prescriptive easement is
14% wide instead of 14 feet 2 inches, as
alleged, will be modified to conform to
the allegation and to stipulated evidence."
(Wallace v Whitmore 47 CA2da 369, 117 P2d
926)
"When a decree is sought to the effect
that real property is subject to a use or
easement in favor of another, the portion
of property affected must be described in
the Pleadings with such certainty as to
enable the party against whom the claim is
made to know exactly what portion of his
property is claimed." (2 Cal.Jur. 3a 107)
(Guerra & Packard 236,CA2d 272, 46 Cal.
Rptr.25, 99.8: Langazo v San Joaguin Light
and Power Co. 32 CA2d,678, 90 P2d 825; L.A.
vy. Howard 244 CA2d 538, 53 Cal.Rptr. 274)
"When matters of action concern real pro-
perty, the cause of action follows the real
property itself, not the owner at the time
the cause arose, and the successor ia if~
terest inherits whatever cause of action
-l7-
existed at the time he takes title."
(Lord v Morris (1861) 18 Cal. 482, 491)
CCP 1856(a):"Terms set forth in writing
intended by the parties as a final expres-
sion of their agreement with respect to
such terms as are included therein may not
be contradicted by evidence of any prior
agreement or of a contemporaneous oral
agreement."
(Morrison v Wilhoit (1944) 145, P2d 707,
62 CA2d 830)
"One comming into equity has burden to
show his hands are clean."(Richman v Bank
of Perris (1930) 282 P 801, 102 CA 71)
"Action to enforce private rights must be
in name of real party in interest, except
as provided to contrary by statute."
(Wiggans v Mc Donald (1861) 18C 126)
CCP 367: 1(Space Properties Inc. v Tool
Research Co. (1962) 22 Cal. Rptr.166, 203
CA2d 819; Kodota Fig. Assn.of Prod. v
Case-Swaune Co. (1946) 167 P2d 518, 73 CA
2d 796; Kittner v. Shippy (1908) 96,P 912,
8 CA 342)
Jose v Pacific Tile & Porcelain Co. (1967)
58 Cal.Rptr. 881;6 Evidence 97, 596 (3):
"Burden of proof to vary terms of a writ
ten instrument is on party claiming con-
trary thereto and he must establish his
allegations by preponderance of evidence."
"Grantor's declarations after delivery of
deed are inadmissible to disparage it,
(Ord v Ord (1893) 99 C 523, 34 P83; Bol-
linger v Bollinger (1908) 154 C 695, 99 P
196; Scholle v Finnell (1914) 167 C90, 138
P 746; Taylor v Brunnell (1926) 77 CA 525,
247 P 240)
«38~
_ Ee
“Parties are bound by their own Pleadings
and cannot controvert their own averments."
(Bradbury v Cronise (1873) 46 C 287)
"A judgment must be in accord and warrant-
ed by the pleadings." (Northern Ry Co. v
Jordon 87 C 23, 25 P273)
"If there is to be any recovery, it must
be based on the cause of action set forth
in the complaint and not some other which
may be developed by the proofs." (Burke v
Levy 68 C 32, 8 P 527)
"Judgment establishing the validity of a
claim to an easement must be definite and
certain as to the property affected,"
(Laverone v Weakly 155, C.395, 101 P 304;
Guerra v Packard 236 CA2d 272, 46 Cal.
Rptr. 25)
“Property may be sufficiently described in
a judgment by reference to land marks,
material and artificial, whereby it may be
identified as well by U.S. Survey.
(De Supulveda v Baugh 74 C 468, 16 P 223)
"A judgment must be sufficiently clear and
definite that a party may comply with it's
requirements and that it may be enforced
and constitute estopel between the parties."
(Johnson v Farmer 41 CA2d 874,107 P2da 959,
108 P2d 945;Goatman v Fuller 191 C 245,
216 P 35)
"When a substantive fact upon which the
cause of action, as stated in the complaint,
is found against the plaintiff on suffi-
cient evidence, the defendant should have
the judgment." (Warren v Mould (1883)2 C.U.
63, 24 €.0. 163, i] ¥.€.i.3, 392)
"If the existing of an essential fact on
which the party relies is left to doubt and
=-19<
uncertainty, party on whom burden rests to
establish that fact should suffer, not his
adversary." (Kuttler Estate (1960) 185 CA2d
189. 8 Cal. Rptr.16; Brautigan v Brooks
(1964) 227, CA2d 547, 38 Cal.Rptr. 784)
"The defendant is entitled to directed
verdict where evidence upon an essential
element is lacking." (Atlantic Coast Line
R. Co. v Temple 285, US 143, 76 L.Ed. 670,
52 §.Ct 334)
"It is essential that findings are made on
every material issue raised by the Plead-
ings, including the issues raised upon af-
firmative defenses in the answer, A fail-
ure to do so constitutes reversible error."
(Auer v Frank (1964) 227 CA2d 396, 406)
“Findings must be on all material issues."
(Estate of Ramsey 107 Cal.App.2d 372, 375,
237 P2d 20, 22, 23 (1951))
"A finding cannot be based on guesses, sur-
mise or conjecture." (Newhart v Pierce
(1967) 62 Cal.Rptr. 554;Evidence Code #597)
CCP 909:"Findings based on Direct Evidence
are binding on reviewing court."
Direct Evidence proves a litigated fact
in a direct manner without the neccessity
of inferences or presumption."(In re Mc
Ginn's Estate (1889) 3 Cof 26; In re
Blanc's Estate (1892) 3 Cof. 71)
"Direct Evidence means evidence that di-
rectly proves a fact without inference or
presumption and which of itself, if true,
conclusively establishes the fact." Stats
1965 C29 #411.
"Direct Evidence is evidence which if ap-
plied to the fact to be proven, proves that
« Din
iN a i hi
fact immediately and directly, and without
the aid of interveening fact or process."
(People v Goldstein (1956) 293, P2da 495,
139 CA2d 146; People v Malbrough (1961)
10 Cal.Rptr. 632, 359,P2d 30, 55 C2a 249)
Evidence Code 1500(12) Title to land cannot
be established by Parol Evidence. (Montijo
Vv. Robert Sherer & Co. (1907) 92 P 512,6
CA 558)
"A letter is the best evidence of it's
contents"(First Nat. Bank of Potterville
v de Moulin (1922) 205 P 92, 56 CA 313)
"Best evidence of contents of a writing is
the writing itself." (Div. of Labor Law En-
force. v. Stand. Oil Products Co. (1955)
228 P2d 637, 136 CA2d Sup. 919)
Evidence Code 200, Note 1,3 _
"Oral testimony which rests on the memory
of witness is -not as trustworthy as writ-
ten or documentary evidence, and party
seeking to establish fact contrary to writ-
ten evidence must make out his case with
more than usual clearness." (Keck v.
Wingert (1933) 132 CA 475, 23 P2da 99)
"All evidence must be weighed according to
proof which one party had power to produce
and the other party the power to contra-
dict." (People v Adamson (1946) 165 P2d 3,
27, C2d 478, affirmed 67 S.ct.1672, 332,
U.S. 46, 91 L.Ed 1903, 171 A.L.R. 1223)
Evidence Code 200, Note 1,3:"Clear and
convincing evidence requires a finding of
high probability, such test requires that
the evidence be so clear as to leave no
substantial doubt." (Lillian F. v Superior
Court (Kretz) (App 1 Dist. 1984) 206
Cal.Rptr. 603, 160 CA3d 314)
= 2i«
Admissible Evidence:"The declarations must
be on the personal knowledge of the decla-
rant and affirmatively show that the de-
clarant is competent to testify to the mat-
ters stated." (Fisher v Cheseman (1968) 260
Cal.App.2d 503, 506,67 Cal.Rptr.258)
“Substantial evidence means evidence -which
is of ponderable legal significance--evi-
dence that is reasonable in nature. credi-
ble and of solid value." (H. Russell
Taylor's Fire Prevention Service Inc. v
Coca-Cola Bottling Corp. (1979) 99 Cal.
App 3d 711, 726)
Best Evidence Rule #1l:"Except as otherwise
provided by statute, no evidence other than
the original writting is admissible to
prove it's contents." (Evidence C 1500)
"Where the language of the statute confer-
ring the right is so plain and uniquivocal
that it's meaning, intent, and purpose are
in no particular manner rendered obscure
or doubtful. the courts will require sub-
stantial compliance." (Rigby v Sup.cCt.94 c
354, 29 P 716; Pen. Code 1246,;Pen Code
1467)
"The presumption is always against the
pleader and ail doubts are resolved again-
st him since it is presumed that he stated
his case as favorably as possible to him-
self." (Feldsman v Mc Govern (1941) 112
P2d 645, 44 CA2d 566) ce
Rule 5:"All exhibits either admitted in
evidence or rejected are deemed part of
the clerk's transcript."
(Haun v Hyman (1963) 223 Cal.App.2d 620,
36 Cal, Rptr. 84)(Cyrus v Haverson (1976)
65 Cal.App.3d 306, 316, 135 Cal.Rptr.)
(See also Samuelson v Ingram (1969) 272
nt Be
,
CA2d 804-806)
"For purposes of Section 3294, ‘malice’
has been defined as the motive and will-
ingness to vex, harrass, annoy or injure."
(Beck v State Farm Mut.Auto. Ins.Co.(1976)
54 Cal.App.3d 347,126 Cal.Rptr.602;
"The attempt to manufacture or suppress
evidence may always be proved against a
party as showing a conciousness of guilt.
(People v Downs (1953) 251 P2d 369, 1214
CA2d 758)
CCP 133 Enacted 1872.
Credibility of Witness:"Impeachment evi-
dence goes to the credibility of a witness
--" (D'Amico v- Board of Med. Examiners
(1974) 112 Cal.Rptr. 786; Leasman v Beech
Aircraft Corp. (1975) 48 Cal.App.3d 376,
382, 121 Cal.Rptr, 768)
"Deceit, within section 1710(1) The sugges-
tion, as a fact, of that which is not true
by one who does not believe it to be true,
Fraudulent representation reguires 'scien-
ter'. an intentional concious misrepresen-
tation,” (Hale v George A Hamel & Co.
(1975) 121 Cal.Rptr. 144, 48 CA3d 73)
"A positive misstatement of fact by one
in a position to know the truth is a
‘fraudulent misrepresentation'" (Eck v
Mc.Micheal (1960) 1 Cal.Rptr, 369, 176,
CA2d 368)
"A reckless statement in a judicial pro-
ceeding which is not known to be true is
‘perjury' if in truth such averment is
false."(People v Agnew (1947) 176 P2d 724,
77 CA2d 748)
"Where a defendant willfully swears in a
-23-
judicial proceeding to a belief that a
fact exists when at the same time he
knows that it does not exist, he is
guilty of perjury." (Id)
It is perjury for one to make a false
statement in a pleading filed in a judi-
cial proceeding." (Id);People v. Godines,
17 Cal.App.2d.721, 724, 62 P2d 787; People
v Fink 118 Cal.App. 631,634, 5 P2d 641)
Penal Code 118, 118(a):"An unqualified
statement of that which one does not know
to be true is equivalent to a statement of
that which one knows to be false." (People
v Nelson 36 Cal.App.2d 515,97 P2d 1043)
“If a person wilfully swears to a belief
in the existence of a fact which he knows
does not exist he is guilty of perjury as
if he had sworn directly to the existence
of a fact which he knew did not exist."
(People v Phillips, 56 Cal. App. 291,296,
205 P 40; In re Howell 114 Cal 250,254,
46 P 159; ,Cassidy v State 18 Okla. Cr.
568, 197 P 171, 172)
"It is not until the verified false state-
ment of the accused leaves the hands of
it's author that a wrong to another is com-
mitted and crime of perjury is complete."
(People v Robles 117 Cal. 681, 684, 49 P
1042)
"Any allegation is material if the evi-
dence what would establish the truth of
it could have properly influence the court
which tried the issues."
(People v Paustau 39 Cal. App. 2d 407,413,
103 P2d 224)
A&M Records, Inc. v Heilman (1977) App.
142 Cal..Rptr. 390 (11) Pretrial Pro-
cedure #45; “Accomplishment of purpose be-
=2@-
hind discovery Act of 1957, to take the
game element out of trial preparation and
do away with surprise at trial..."
U.S.C.A. Const. Amend. 5; West's Ann.
Evid. Code #930)
In Nestle v City of Santa Monica Sup 101,
Cal.Rptr. 568,6,Cal.3d 929, 573:"...but
elimination of trial surprises is likely
to produce a more salutary result."
CCP 389: Parties to Civil Actions 4.
Powers and Duties of Court: “Court must
order bringing in of parties whose pre-
sence is necessary to complete determina-
tion of controversy. (Curtis v Nye &
Nissen (1927) 261 P. 747, 86 CA 507)
"It is a general rule that all neccessary
parties should be represented and that
party or parties whose acts are the sub-
ject of review should be before the court."
(Lee v Small Claims Court 34 Cal App.2d
1,5 (92) by J. Griffin.)
"The wide discretionary powers vested in
him are to be exercised so that abuses of
justice shall not be accomplished under
the forms of law.(Bruggerman v Illnois
CR 147 Iowa 187, 123 NW 1007, Ann.Cas.
1912 B 876)
94;12 Misconduct of Judge (6); "A judge
prejudging of an issue before receiving
any evidence by one party and so violating
the rule that a Judge should keep an open
mind until all the evidence is presented
to him."
(Weber v Weber 33 C2d 153, 199 P2d 934)
"Since judge's duties are of a judicial
nature, he should not act as counsel for
a party by raising objections which the
party should make." (Allegre v Maryland
=25-
a
Ins. Co. 6 Harr & J. (Md.) 408, 14, Am.
Dec. 289)
"Trial judge should be careful not to
throw the weight of his judicial position
into the case either for or against the de-
fendant." (People v Byrd (1948) 198 P2d
561, 88 CA2d 188)
"A directing of a verdict for the Plain-
tiff solely upon the evidence supporting
his theory of the case, while ignoring the
Supporting theory of the Defendant, is
error." (Clinchfield Coal Corp. v Compton
148 Va. 437, 139 SE 308,55, ALR 1976)
"On motion to direct a verdict for the
plaintiff, the inferences most favorable
to the defendant must be drawn."
(Citizens State Bank v Bowles 180, NY 346,
73 NE 33, 105 Am.St.Rep.765)
(Roth v Cottrell 112 CA2d 621, 246 P2d 958.
(1952))sId (1);Id 7(a);1d.(7(b);1d.(8) CCP
338(2)(Luellen v City of Aberdeen 20 Wn
2d 594, 148 P2d 819, 855) citing Words
and Phrases Perm.Ed. 437; Ballentine Law
Dictionary 650-652)
"If plaintiff is out of possession and
seeks to recover possession by quiet suit,
the action is legal." (So.Pac.Land Co. v
Dickerson (1922) 188 C 113, 116, 204 P 576;
Thompson v Thompson (1936) 7 C2d 671,681,
62 P2d 358)
"In order for the statutes to run against
the owner of realty and in favor of ad-
verse claimant, there must be definite and
positive evidence of an adverse holding by
the clearest and most satisfactory evi-
dence. “(Furtado v Taylor (1948) 194 P2d
770, 86 CA2d 346)
o260
CCP 3: Fraudulent concealment:"The sta-
tutes of limitations is not intended to
protect persons who, by fraudulant con-
cealment,has delayed the assertion of a
right. (Kane v Cook 8 Cal. 449)
"The statutes of limitations begins to run
against a suit to quiet title from the
time defendant takes possession of her
land." (Moore v Miller (CC 1890) 43 F 347)
Commencement of Actions:"This section pro-
viding that no entry on real estate is
deemed sufficient or valid as a claim un-
less the action be commenced thereon with-
in one year after making such entry, and
within five years from the time when the
right accrued." (Crane v French (1940)
104 P2d 53, 39 CA2d 642; CCP 320)
“Latches consist of unreasonable delay
with prejudice to defendant," (L.A. Fire
& Police Protective League v City of L.A.
(1972) 23 CA3d 67, 74)
"It is beyond the jurisdiction of a court
to make an order extending time to plead
beyond limits that have been set by
statute." (Thelander v Sup. Ct.(1962) 58
Cal.2d.811, 813 fn 3, 26 Cal.Rptr. 643,
376 P2d 571,(interpreting CCP 1054)
"If a grantor, subsequent to conveyance,
holds continuous adverse possession of the
premises for five years, he can set up sta-
tutes of limitations in defense of an ac-
tion of ejectment by his grantee."
(Franklin v Dorland (1865) 28 C 175, 87
Am. De. 111)
"The law helps the vigilant before those
who sleep on their rights." (CCP 3527)
Superior Court Rule 229(c)(Refusing Pro-
a27—=
posed Instructions):"Proposed Instructions,
except those required by law, which do not
comply --with law may be refused, in which
event the judge shall endorse thereon the
reason for the refusal." As amended, eff.
April 1, 1962; July 1, 1988--.
CCP #608,Note 7, Theory of Case-In General:
“Each party to an action has the right to
have the jury instructed on all his theo-
ries of the case which are supported by
the pleadings and evidence." (Ng. v Hudson
(1977) 142 Cal.Rptr. 69,75,CA3d 250)
Valintine v Kaiser Hosp.(1961) 15 Cal.
Rptr.26; 6 Trial #255 (2): “Defendant has
no duty to propose instructions on plain-
tiff's theory of the case." 9 Trial #220:
"Counsel has right to be told by court be-
fore commencement of oral argument, what
instructions will be given.(West's Ann.
Code Civ. Pro. #607(a).
Trial by Jury pg.502 #607(a):Proposed Jury
Instructions:"In every case which is being
tried before the court with a jury...the
court, on request of counsel, must...(3)
advise counsel of all instructions to be
given,"(Added by Stats 1933,c.744,P 1874
#101; Stats 1951,c 1737, p. 4115,#89,
operative Jan.l, 1952; Stats 1957,c 1698,
p.3073 #1)
Superior Court Rule 230, Requests for Spe-
cial Findings by Jury:"“Whenever a party
desires special findings by jury, he shall,
before argument, unless otherwise ordered,
present the judge in writting the issues
Or questions of fact upon which such find-
ings are requested, in proper form for
submission to the jury, and serve copies
thereof upon all other parties."
Trial by Jury #607 (30) 502:"Instructions
-28-
must be read as a whole,rather than indi-
vidually, and as out of context, and they
are to be given reasonable construction
from the standpoint of their probable ef-
fect on the jury." (City of Oakland v.
Partridge (1963) 29 Cal.Rptr.388,214 CA2d
196)
Trial by Jury # 607(a):(2) “Practice of
instructing jury on isolated portions of
evidence is not commended or encouraged."
(Elkinton v Cal.St. Auto Ass'n Interstate
Ins. Bureau(1959)343 P2d 396, 173 CA2d 338)
Weightman v Hadley (1956) 138, CA2d 831,
292 P2d 909:(2):(Height v Minor 113 Cal.
385, 391, 45 P 700)
Haas v. Central Union H.S.Dist. 27 Cal.App.
2a 319,322, 80 P2d 1044.
Re:Law of the Case "There is however, a
settled limitation upon the doctrine which
must be taken into account. This qualifica-
tion is that when an adjudication is made
upon certain state of facts there must be
substantial identity of facts on a subse-
quent appeal in order that the doctrine
shall be applicable." (Haas v Central
Union H.S. Dist. 27 Cal.App.2d 319, 322,
80 P2dad 1044)
Vagel v. Vagel 45 C2d 804; 291 P2d 25.;
Eng. v. Hosp. of G. S. 14 Cal.2d 791,795,
97 P2d 813;Wicktor v. County of L.A. 177
CA2d 390; 2 Cal.Rptr.352)
Rivaid v Bd. of Pen, Coms.(1985) 164, Cal.
App.3d 405,414, 210 Cal.Rptr. 509.
Richmond v Dart Ind.Inc.(1987) 196 Cal.
App.3d 869,879, 242 Cal.Rptr. 184.
-29-
TR ee ee ee ne
Raising of new theory on Appeal, contem-
plating factual situation consequences of
which are open to controversy are imper-
missible unless facts are undisputed and
party merely raising new question of law.
(Jamison v. City of Oxnard (1982) 134 Cal.
App. 3d,856,858-859 Cal.Rptr.864)
CCP 909 #77:Issues not Pleaded; Appeal and
Error 1122 (2)."Where no estoppel was
pleaded and Trial Court made no findings
thereon, Reviewing Court cannot make a
Finding thereon." (Mc Auley v Broackway
Tahoe Vista Corp. (1930) 293, P626, 110
CA 88)
"Doctrine of the Law of the Case does not
extend to points of law that might have
been but were not presented and determin-
ed on the first Appeal." (People v Shuey
Sup. 120 Cal.Rptr. 85 (10); Criminal Law
#1180)
People v Shuey, 120 Cal.Rptr. 90 ;"“Accord-
ingly, the latter issue is ‘not before'
the court on the first appeal, and the
plaintiff was free to present it on the
second appeal." (Di Genova 57 Cal.2d 179,
18 Cal.Rptr. 369; 367 P2d 865)
CCP 909 #83 Inferences:"“Reviewing court
may not substitute an inference different
from that drawn by the Trial Court."
(Epley v Hiller (1954) 274,P2d 696, 128
CA2d 100)
"An Appellate Court must disregard contra-
ry evidence as well as contrary inferences
and conclusions which were not but which
might have been drawn by the trier of fact, "
(Wolfson v Beatty (1953) 257,P2d 1017,118
CA2da 3920)
=~ 30-
"Plaintiffs sueing to guiet title, has
burden to show that he or his ancestor,
predecessor or grantor was seized or
possessed of the property within five
years before commencement of action."
(Stafford b Ballinger (1962) 18 Cal.
Rptr.568, 199 Ca 2d 289; CCP318.
U.S. Supreme Court has jurisdiction
because the holdings of the State Court of
Civil Appeals, Fifth District conflicts
with the rationale of the rules governing
the creation of easements, i.e CCP 1104;
CCP 806; CCP 1856(a); CCP 437(c) West's
Ann. Civ. Code #19 and/or 1104; Kytasty v
Godwin, 102 Cal.App.3d 762; Orr v. Kirk
100 CA2d 678, 224 P2ds 71; Fristoe v
Drapeau 35. Cal. 2d 5,8, 215 P2d 729;
Navarro v Pulley 66 CA2d 827, 153 P2d 397;
Tarr v Witkins 4 Cal RPtr. 203; Kreiger
v. Pacific Gas (1981) 119 Cal.App.3d 145,
755-756; Lord v Morris (1861) 16 Cal.
482, 491; Rosebrook v Utz 45 CA2d 729
(continued to next page)
ee
(1941) Alameda County; Piazza v Schafer
255, CA2d 328, 63 Cal. Rptr. 246; George
v Gosgarian 189 Cal.Rptr 95, (1983);
Gagnon v Adamson 122 CA2d 678, 224 P2d
71; Lux v. Freed (1960) 53. Cal.2d 512; —
Mc Donald v Mc Elroy (1882) 4 Kent's Com.
473, p. 489; Lawrence v Montgomery 37 Cal.
183, 188; 3 Witkin Summary of Cal. Law
(8th Ed. 1973) Real Property #355 P 2052;
Powell on Real Property Abridged Ed.
Powell Ruban 545. etc.etc.
The truth of the matter is, plaintiffs
have not satisfied a single necces-
sary element but have prevailed based on
self contradicted (perjurous) testimony
and Fraud and by virtue of misconduct
by Court and the officers of the Court.
///////
//////
/////
////
> >
STATEMENT OF THE CASE:
On Oct.29, 1969 the Mc Carthys conveyed
440 acres in Section 1l to Robert C.Monroe
(herein “Monroe") and his partner, A.
Fletcher Harris, as undivided interest by
Deed. Testimony varies as to roads exist-
ing in the SE % of Section ll
(herein "SEk"),at this time.
Phyllis Mc Carthy's declaration
(entered
into the record) states that two trails
existed from the southern portion to the
northern portion of her land which she and
her husband used for horseback riding,
ing and ranching.
Bulldozer operator, Floyd Walls,
that he widened and improved two trails,
on the land which were 2 to 3 feet apart,
in the winter of 1969.
Walls testified that the
“brush was real
high" and the trails were not visible in
some spots. He testified,"there were areas
that you couldn't walk",--
a23«
“somtimes we
hik-
testified
would walk and sometimes we would ride on
the bulldozer." Walls did not know where
the road was physically located. He knew
that surveyor Alan Whitlock had prepared
his May 1970 Work Map of Section 1l, after
Walls had completed the road.
Alan Whitlock's May 1970 Work Map "Showing
Co. Rd. and Proposed Roads" depicts the
"Piute Mt. (Co.Rd.)" as running from the
southern portion to the northern portion
of the land.
Whitlock also depicted a Proposed Road as
a Bell-Shaped-Curve (herein "BSC") in the
SE %.
May 25, 1970 Monroe conveyed the S* of
the SEX (herein "S80") to defendant,
Patricia Rose Rabida.
Defendant intended to buy only 40 acres
but decided to buy the S80 to insure her
privacy.
Plaintiff,Stoye Milburn,(herein "Milburn")
was acting as Robert C. Monroe's agent in
-34-
the selling of the property.
Milburn negotiated to acguire the N* of
the SE% (herein"N80") then he acted as
Monroe's agent in selling the S80 to the
defendant, telling her that teachers
were negotiating to acquire the N80.
On May 25, 1970 defendant agreed to pur-
chase the Ss of the SEX. Milburn used the
May 1970 Whitlock Map as defendant's depo-
Site receipt.
According to Aerial Photographs (herein
"AP") interpreted by two expert witnesses,
a W-E road was constructed sometime after
April 25, 1970 and before July 2, 1970,
across defendant's west 40 acres.
July 13, 1970, Monroe conveyed the E* of
the N% with "a road from the north" to a
Jerry D. Smith who is not involved in
this action.
On July 13, 1970 Monroe retained the N*
of the SE% bordered on the south by def-
endant and on the north by Smith.
= 2%
The following month, surveyor Alan Whitlock
prepared a "Survey Map of Access Roads in
the south half of Section 11."
This Aug. 1970 Whitlock Map depicted one
road in the SEX i.e.W-E road travelling
from the Co. Rd.across defendant's west
40 acres. (Appendix T)
On Aug. 18, 1970, Monroe conveyed this Aug.
1970 Whitlock Map to the defendant.
Monroe's transmittal letter stated, inter
alia. “Enclosed is a map prepared by our
Surveyor showing roads as they are locat-
ed on your property."
Sept. 18, 1970 Monroe conveyed his retained
N80 to Milburn. The record is silent
as to defendant's knowledge of Milburn's
acguisition..
Jan. 1971 Guilliamo Moya acquired a 20
acre parcel in the N80. Moya sued Milburn
and Joseph B. Van Orden (herein ""VOrd")
for selling him land without an easement.
June 15, 1971, Milburn purportedly con-
-36-
veyed 40 acres to VOrd.
The June 15, 1971 deed from Milburn to
VOrd presented to the court related to land
in Section 15. No such deed relating to land
in Section il was ever presented.
The record is confusing as to the con-
veyances purportedly made to the others,
and no documentation thereof was presented.
Aug. 1977, six separate purported ten-
ants of the N80 sued defendant for ease-
ment rights over her land. Guiliamo Moya
was not named in the suit. (Appendix N)
Harry M Reynolds (herein "“Reynolds")
of "Manning, Reynolds, & Roberts", who
was exchanging land with VOrd & family,
authored the complaint. VOd verified it.
Milburn, who was unrepresented, defaulted.
Said Complaint alleged that Monroe had
created an easement over defendant's land
by constructing a road which had been used
by plaintiffs and plaintiffs' predecessor
in interest until defendant, the then owner,
Pp
blocked it off. Complaint alleged that an
easement. 10 feet in width existed appur-
tenant to each of the six separate tene-
ments in the N80.
Complaint gave no description of the
land burdened by the easement nor make any
reference to a map whatsoever.
It made no allegation of grantor-grantee
relationship between defendant and any one
of the six plaintiffs, nor any separation
of their titles from that of the defendant.
Defendant cross-complained against Monroe,
Milburn and Plaintiffs.
In answer Monroe alleged no interest in
the defendant's land.
Defendant's own attorney secretly released
Monroe"with prejudice".
Municipal Court Judge, John M. Stanton
from Mojavi, presided over the trial.
When asked if he were a Superior Court
Judge, he answered in the affirmative.
Reynolds' partner, Virgil Roberts, re-
=38-
sented plaintiffs at the trial.
VOrd was the only plaintiff to testify.
Defendant's request that Monroe and/or
Milburn testify was rejected. Plaintiffs
attempted to introduce Monroe and Milburn
depositions in lieu of court testimony.
Plaintiffs declined defendant's request
that the Mc Carthy deed be submitted.
PLAINTIFFS' TRIAL TESTIMONY
In their Opening Statement, Plaintiffs sub-
mitted a zerox copy of Whitlock's May 1970
Work Map which VOrd had prepared by drawing
lines to “identify the properties"
Virgil Roberts stated: "When the land was
sold to (defendant)--there had not been
any roads placed on the liand whatsoever
--Milburn showed (defendant) the proper-
ty---also--- a map indicating the pro-
posed roads on that property."
vVOrd testified: The May 1970
Whitlock Map was a Survey Map which "show-
ed the property accurately," and he had
-39-
traveled over the BSC road on June 19,
1971. He first saw the May 1970 Whitlock
Map in 1971 when he got a copy to assist
him in deciding to buy 40 acres.
He had known Milburn before "from looking
at other land" and had joined him as the
investor in a Joint Venture in the N80.
vOrd “did not visit the property prior to
(his) purchase, it was after Milburn pur-
chased the---upper eighty from Monroe."
In 1973, VOrd realized there was a pro-
blem. He composed a letter for Monroe to
mail back to him so as to help him get the
right of way. Monroe conveyed this letter
directly to VOrd in Dec. 1975, via U.S.
Mail. VOrd gave it to his attorney. The
letter claimed that Monroe had failed to
reserve the easement through oversight.
Repeatedly, plaintiffs referred to “the
160 acres in controversy" In their find-
ings, the “the™ was dropped, saying
Mc Carthy conveyed 160 acres to Monroe
-40-
which was then divided into two 80 acres.
Milburn's deposition, read by plaintiffs
into the record, disclosed that Monroe's
attorney had discussed the May 1970 Work
Map with Milburn "in the library" imme-
diately preceeding his testimony, and had
made markings on the map, claiming it to
be his exhibit.
Milburn's deposition stated that defendant
knew that first a W-E road would be con-
structed to give them access and later a
N-S road would be constructed "spurring
off" the W-E road, to provide access to
the N80 and that there were many discuss-
ions as to the location of roads.
Milburn said:"--I did not know the length
of the road---that it was going to follow
this map exactly~---We-had a sectional map.
----a survey map which later--was created.
At end of plaintiffs' testimony, Judge
Stanton stated:"--right now we haven't
gotten very far on this----- right now
-4)]-
we are getting nowhere fast on either one
of these elements." (use of road prior to
separation of title and necessity)--if we
could keep the evidence down to those mat-
ters---the rest of it is--- irrelevant,”
DEFENDANT'S TRIAL TESTIMONY:
Defendant moved for non-suit based on the
Statutes having run. Court tentatively
granted, then denied it.
John Varin testified: Sept. or Oct. 1970,
he constructed a N-S road spurring off
defendant's W-E road. Defendant tried to
stop him. He was hired by Milburn and
acted under the assumption that he was on
Milburn's land,
Defendant submitted, Whitlock's Aug. 1970
Map of "Access Roads in The Southern Por-
tion of Section 11".
Judge Stanton, rejected it saying:
“But that isn't the map. as I gather from
the evidence, counsel, that anybody bought
the property from--there was a map when she
-42-
bought the property, there was a map show-
ing a road when Mr.VOrd bought the property,"
Defendant presented her grantor's convey-
ing letter to the Aug.1970 Whitlock Map on
the issue of intent, which was also reject-
ed, saying that he didn't care what it said
“but what he may have said in the letter
and what he did are two different things."
Defendant presented 6 Aerial Photographs
(herein “AP")to which expert witness,
James Ricketts,testified as follows:
6-12-40 showed only Piute Mt. Rd..
7-23-62 showed only Piute Mt. Rd.
4-23-70-showed only Piute Mt. Rd.
4-25-70-showed only Piute Mt. Rd.
7-2-70- showed a very distinct road leav-
ing the Piute Mt. Rd. and going general-
ly easterly.
7-19-75-showed a road heading easterly
off the Piute Mt. Rd. and also a road
heading north off the W-E road.
DEEDS SUBMITTED AT TRIAL:
-43-
TEX.O:Monroe to Rose Deed on May 1970.
TEX.M:Monroe to Milburn Deed on Sept.1970.
TEX.N:Milburn to VOrd on July 1971 for
land in Section 15, instead of Section ll.
Virgil Roberts avoided defendant's request
for the Mc Carthy to Monroe deed.
Oct. 6, 1981 HEARING ON FINDINGS OF FACT:
Defendant severely objected to each one of
plaintiffs' findings. (Appendix yv)
In answer to the objections, court repeat-
edly requested new Findings on the Second
Cause of Action, on the Affirmative Defen-
ces and the Cross-Complaint.
March 24. 1983, Plaintiffs submitted 2nd
Findings which stated inter alia:"Said
easement shall be 20 feet wide and shall
follow the center line of the access road
as said road existed on May 25. 1970."
May,28, 1983, Plaintiffs submitted 3rd set
of Findings, stating inter alia:"Said ease-
ment shall be 30 feet wide and shall
follow the centerline----"“(emphasis added )
~4gu
At Oct. 6, 1981 hearing Judge Stanton said,
he was now presiding in the Fifth District
Appellate Court. In 1983,he was still there.
Dec. 1983, Judgment was rendered in favor
of plaintiffs. Again, no legal description
of the land burdened by the easement.
Defendant appealed to the Fifth District
Appellate Court.
The 1985 Opinion affirmed the judgment as
being for easement over a road entering
the S80 from the west, running north in a
BSC, then continuing back south into the
S80; stating that the Access Road as it
existed on May 25,1970 and road shown on
"Whitlock Map" are one and the same."
The Opinion concluded:
"No witness spoke of the road's width, or
the nature of traffic carried by the road
after it was bulldozed. Under these circum-
stances, ---it is neccessary to remand the
matter to the trial court on this issue for
the taking of additional evidence regarding
-45-
the existing road,and the use it was put at
time of implication. The judgement of the
trial court as it found an easement by im-
plication is affirmed. Judgement is revers-
ed as to the finding that the implied ease-
ment was 30 feet in width, and remanded to
trial court for further proceedings consis-
tent with this Opinion."
REMAND HEARING, July 31, 1989: Plaintiffs
requested a stay to have a road surveyed
Saying they had "improved the road".
David Brown testified that he had sur-
veyed the road on Aug.4, 1989 and prepared
a "Platting",at which time this diagonal
road was the only road existing on the
land. The Platting was accompanied by a
Legal Discription of an easement for in-
gress and egress and utility purposes.
Defendant objected saying:"We're talking
about a road that existed on May 25, 1970,
This map and --survey was done last week"
Court:" If in fact it is authenticated that
-46-
he surveyed the road, which according to
vOrd is the only road on the property,that
is what he surveyed and we're going to
take it in, Okay."
vVOrd also testified that this was the only
road existing on the property, then he tes-
tified that other roads did also exist.
vOrd testified that there were many maps
showing the same road in different places.
He testified that “if a boulder blocked
off half of the road you couldn't get by";
that the road was not used by Mc Carthy
from 1929, they just ran cattle;there was
no easement at that time; there was no
need for an easement before the S% was
devided 80 and 80; that no easement
existed when he made his purchase,he knew
of no other easements having been created.
vOrd now said he bought --in 1971, and he
may have gone up there in 1970, but he was
not sure. He had no knowledge the use of
the road in May 1970.
- -47-
Over the years VOrd bought, parceled, and
sold land in the vicinity, about 20 times.
He also "took care of problems like this"
for a living,"“as a hobby".
vOrd also owned land in Section 29,
He said that it was not a Joint Venture,
he was Milburn's friend so he was helping
Milburn improve and sell the property.
He testified: "I own the two 20 acre par-
cel""--I purchased 40 of the 80.--subse-
quently transferred some of that property
to others---someone else purchased the
other 40 acres in the upper 80. People in
Bakersfield bought two 10 acre pieces.
Charles Mc Gowan bought a 10 acre piece,
and Knapp bought a 10 acre piece, Kent
Wardell also bought a 10 acre piece---."
84 pages later VOrd testified: "Yes I sold
to Charles Mc Gowan and Wardell and---."
VOrd testified that he “bought and sold
other parcels in the general area but not
in this particular area."
-48-
rind bin ot Oe Beene
mie ee a Si cn at
On Cross-Examination defendant read from
vOrd's deposition as follows:
"Mr VOrd, 'Do you presently own any land--
-~---in the Ns of the SEX of Section 1l1l--.'
Answer, 'No'.
'Did you own property in that Section ?'
Answer. ‘'Yes'."
vOrd testified that Monroe and Milburn" had
no knowledge of the width of the easement."
Witnesses from Planning and Fire Department
testified that a 1984 Ordinance requires an
off-site easement to be 30 feet,when con-
structing buildings.
EXPERT WITNESS DON WARD'S TESTIMONY:
Expert, Donald E.Ward (herein "Ward") with
20 years experience as an owner and manag-
er of Western Photo Air, in the Photogra-
phic Business, specifically interpretation
of photographs, examined the various maps
and compared them directly to the APs.
Rabida charged that the record had been
altered regarding the testimony given
«49
here and elsewhere. In her "Correction of
The Record" she charged that she was very
aware of the need to give the month as
well as the year when referring to the
Whitlock Maps,which she did do, but the re-
cord was altered. Ward testified at the
hearing for Correcting the Record but the
Court still refused to make the record con-
form to the testimony. The Transcript of the
hearing was entered with Court of Appeal.
Ward compared Plaintiffs' EX. 2 (Brown's
Diagonal Road) to the July 1975 AP stating;
"The access road as shown on the exhibit-
-does not fit any of the roads that are
shown on the AP as of 1975."
Rabida:" I wish to show you another map--
This has to do with the road existing on
May 25, 1970"
Reynolds:"Your honor this is the same map
she has already tried to introduce through
VOrd. It has nothing to do with this case.
This is irrelevant. This is a sketch, it
-50-
Pe
is not a survey road, a sketch."
Ward:"--the road shown here does not
exist, so it doesn't have a width---"
Court: "I can tell you, the appellate
court says it does."
Rabida showed Ward a third Map,saying that
it had been prepared by Alan Whitlock.
Ward:"--There is a configuration on the
photograph that fits generally the config-
uration that this shows, This is not a pre-
cise survey. The AP is."
Reynolds: "Could we save time by asking this
witness if he is familiar with the width of
the road and the prior use : ie
Ward: “Yes, with respect to what you see
there, I certainly can tell you as to the
use, but not the width."
Covrt: “How can you tell the use i
1.Rabida_had tried to get the May 1970
Whitlock Map before this court.
2.At this point, Reynolds jumped up yell-
ing “He's lying."
3.Only the May 1970 Whitlock Work Map had
been put before the Appeals Court.
-5l1-
Ward:" Because it's graded and evident."
Q."That means that somebody used it ?"
Ward: "Yes."
On Voir Dir, Ward testified that he could
"discern a road through the brush unless
there was total brush--which rarely hap-
pens. That is not the case here."
Rabida then presented AP 7-2-70,
Ward:"This is an AP, very much to the same
scale as the one that our company did in
1975.---It has a date at the upper left
hand corner. It also has an identification
number on it---it was flown for photogram-
metry, which they can survey, use the pho-
tographs to survey the land---"
Rabida presented a tracing that she made
of 1975 AP.labeled A to icasdies
"Does this configuration from A to B ----
depict what existed in 1975 as far as a
road goes, that is a graded existing road?"
Ward:"The general alignment does show on
the photograph, yes." (Appendix S)
-52-
Rabida:"In your opinion, was this road con-
structed after the AP July 2,1970 ?"
Ward:"If---your question to me was~-~~- was
this road constructed the period of time
when this Photograph was taken and when
this Photograph was taken, My answer was
yes."
Rabida:"--So between 1970 and 1975 ? Okay.
Was this road constructed after Aug. 1970, -
according to this Map compared to the AP i
Ward:"Yes."
Rabida:" Mr. Ward----- have you made any ex-
aminations of this exhibit ?"
Ward:"Yes, I have.---I've plotted the des-
cription as it is written here, and I have
a map ---that was drawn showing the ease-
ment itself." (Appendix Q)
Rabida:"Now, can you tell me what you found
about the existing road compared to this
description of the easement ?"
awl "With respect to the 1975 Photograph
--It indicates there is a portion that does
-53-
not exist physically ------ -This is the be-
ginning of this road, and these little con-
figurations in here are the road coming
down in this direction, This portion of the
road over here is this portion over here.
As you can see, there is a hiatus someplace
in here, between one of these curves and
this road over here, is the way it is drawn.
----The easement shows that there is a
road across an area that the photograph
does not show. The existing road on the
Photograph is not the same as the easement."
Court:" It describes the existing road as
it exists now."
Rabida:"“But a portion of it does not exist."
Court:"It exists now. It may not have ex-
isted to be photographed in 1975."
Reynolds:"It may have existed and not
seen in the photograph."
Court:"That's correct. It may not have
been photographed."
Correction of the Record Testimony;
-54-
Ward ; "That would have been the one
later on,that showed existing road. The
first one didn't show existing road.--
The map she is referring to here was a
presentation by Whitlock--of existing
roads as of --Aug. 1970."
Court: (to clerk): "Do you have 2A there ?
Let me see it."
Court:"Does this look familiar to you ?"
Ward:"That was not the map, but that is
familiar to me, Yes."
Court: *I — it's not the map, but this
is Brown's survey-~- Of the road---Is that
somewhat like they appeared on the map ?"
Ward:"Not on this map , no."
Court:"What map does this appear on ?"
Ward:"The map that she is referring to.
here was a presentation by surveyor --
Whitlock--of existrng roads as of the
date of the map, which is Aug. 1970.
That survey and that road came much
later."
-55-
Court:"Okay. But you recognize this road ?"
Ward:" I recognize that road, yes, be-
cause I've been there and I've seen it."
Court:"“Referring to 2A, the exhibit which
is attached to 2A entitled Access Roads.”
Ward:"Your Honor, that road did not exist
as of August 1970"
Rabida:"The Brown Road didn't exist in
Aug. 1970, but the Whitlock Map (road) did
exist in Aug. 1970---"
Ward:"Those Photographs bore that out.---"
DEFENDANT'S REMAND TESTIMONY:
She first presented the Mc Carthy-Monroe
deed saying the land depicted on the May
1970 Map was conveyed“to Monroe.
She presented the original May 1970 Whit-
lock Work Map shown to her when she pur-
chased the S80, saying: "The map speaks for
itself,it says proposed roads,so that is
evidence that no road existed on the pro-
perty at that time. I says ‘County Roads
and Proposed Roads'. Very specific."
-56-
Pee eee er a sean g
"But no road existed, and no one was using
the road. Monroe was selling off this pro-
perty. He was using a road from the north.”
Monroe sent her “a letter and map on Aug.18,
1970---the Aug, 1970 Map--and that road was
actually euanteected. But as you can see ,
it only entered my land and did not go to
the land above me."
"Now the conveying letter with this map
says: ‘Enclosed is a map prepared by our
surveyor showing roads as they are located
on your property.*"
Defendant presented a certified deed from
Monroe conveying the E% of the NEX to
Jerry D.Smith, on July 13, 1970.
The deed was slipped back in with her pa-
pers and her testimony was deleated how-
ever she referred to it in her closing
argument, saying:
"Prom (Monroe's) grant deed that I present-
ed,I have shown that Monroe owned 440 acres
---shortly after my conveyance Monroe deed-
=§7=
ed a (80)acre parcel to Jerry D Smith----
with a road ---from north,in (July) 1970."
Reynolds:"I would ask the court to, in mak-—
ing up it's mind, to consider the directiom
we are going, because I think we're just
opening Pandora's Box and we will be back
in the Fifth again----I'm trying to limit
what she can do once she gets there. I
think. we are entitled to restrict her to
what the Appellate Court said this trial
was to be about, When we start talking
about Whitlock Maps and BSC, we can't de-
termine anything from the photographs---"
Court:"We will give it a go."
JURY INSTUCTIONS: After the instructions
were reviewed, Reynolds submitted a Special
Verdict without defendant's knowledge.
No objection was made to defendant's in-
structions. The record showed, Court re-
jected all of them. |
Only Reynolds' Special Verdict was given
to the jurors.
-58-
Court instructed:"You are also to give con-
sideration to what the County of Kern re-
guires as a minimum width for a road ease-
ment as granted in this case."
Bailiff presided over the deliberations.
Judgment consisted of "30" & “yes" inserted
on the Special Verdict.
Two of the jurors ran up to defendant in
the hallway, saying:
"We're so sorry. We wanted to determine if
the road existed or not but they said we
couldn't. We had to decide on the two ques~-
tions (Special Verdict) only."
DEFENDANT's APPEAL held; Plaintiffs' testi-
mony void -did not follow Reviewing Court
instructions; Plaintiffs falsified their
evidence by constructing a new and differ-
ent road by trespass; Judgment must be re-
versed since neither road testified to by
Plaintiffs, existed at implication.etc.etc.
1991 OPINION held
Plaintiff/Respondents are Joint venturers.
-59-
- aiaeaieiniannieeanentaniias
Ward "testified-- access road as shown on
map----Whitlock in May 1970---fit the gen-
eral configuration of a road on the 1975 AP
taken by him as part of a survey in 1975.
(EX.E) Ward could tell--- that the road was
graded and therefore used but he could not
tell its width. Ward compared his 1975 Pho-
tograph (EX E.) with a July 2, 1970---- and
found the Photos were ‘'very similar’. |
"Ward's examination of the Photos disclosed
only one road (the road depicted on EX. 2A)
from the lower to the upper 80 acres, He
testified the road in the 1975 AP did not
appear as a continuous road."
- Access Road as depicted on Ex. 2A is
“consistent with an ascending line of BSC
and with the applicable portion of the Ac-
cess Road that appears on defendant's Ex. F."
"Court did not err in receiving testimony
as to the width of the access road as it
presently existed (1989), or testimony as
to pertinent Ordinances,-- in refusing to
~60-
confine the testimony--to the condition of
road as it existed in 1970, i.e. the time
-<--- implication arose."
“the present uses, intervening uses and rea-
sonably to be expected uses as of 1970, are
relevant to the width of the implied ease-
ment at time--acguired.-- Kytasty v Godwin."
"---the testimony of a senior planner ---
applicable section of the Kern County Par-
cel Map Ordinance established the off-site
‘access road here required a minimum 30
foot easement. This was what was reasonably
required as of 1970,for the ‘future use of
the dominant tenement....' (See Appendix
A;67,2-3; 73,19-75,2; 86,9-87,2; 90,10-14;
105,11-14 & 16-19; 105,20-106,2)
MISSING EXHIBITS:
Twentyone (21) of the twentyfive (25) ex-
hibits submitted by defendant were not
noted in the Reporter's Transcript.
In answer to her request for Correction of
the Record, the Appellate court deemed
«Gi<
eleven (11) to twentyone (21) augumented
into the record. Upon requesting verified
copies of these eleven exhibits for incor-
poration into this Writ, defendant was
informed that they could not be located.
On Dec. 23, 1991, clerk noted that Exhi-
bits one and 2-A had been removed from
the record at the Appeallate court.
The 1991 Opinion holds that the road de-
picted on Ex. One and the road depicted
on Ex. 2h are in fact one and the same.
(See lines 11-12 at page 88 herein)
Defendant's own copy of Exhibit 2A was
also missing from her home so she ob-
tained a certified copy from the Hall of
Records on Feb. 5, 1992.
Remand Testimony Relating to BSC Road and-or
May 1970 Whitlock Map.
Plaintiffs did not mention the BSC road nor
the May 1970 Whitlock Map.
Plaintiffs confined their testimony to the
Brown Diagonal Road and the Aug. 4, 1989
=¢2-
Brown "Platting".
Plaintiffs refused to answer any and all
cross-examination which referred to the
BSC road and/or the May 1970 Whitlock Map,
saying Whitlock was dead and the May 1970
Map was "not a survey" but “just a
sketch".
Plaintiffs insisted that the 1985 Opinion
requested testimony as to the width of the
Aug. 4, 1989 Brown Diagonal Road and that
any testimony relating to the BSC road or
the May 1970 Whitlock Map was irrelevant.
Judge Nairn agreed with the Plaintiffs.
Defendant presented the original May 1970
Whitlock Map saying it was “the exact map"
shown to her. She submitted a certified
true Colored Photograph and a true Zerox
copy of it to the Court as her Exhibit F.
On the face of this photograph, it shows
notations of "S" and "sold" as well as
Mi lbucn’s notations and encircling of the
680 with an arrow pointing from the nota~
-63-
tions to the S80 to have been written in
red directly on the original map.
At the 1980-1981 trial VOrd testified that
the May 1970 Whitlock Map which was given
to him did not have any notations on the
bottom.
The 1991 Opinion held that the 1985 Opinion
asked for evidence regarding the existing
road, that Brown determined the width of
"the existing 20-foot dirt road" and that
the jury relied on this evidence in "deter-
mining the proper and neccessary width --
as of 1970° (See lines 5-20, page 91,
Appendix A herein)
The Jury's verdict did not mention any
date, It said: "The easement shall be---"
(See footnote at page 100 Appendix A)
The jury was not given any of the exhibits
to review during their deliberations.
They were only given the Special Verdict.
Ten days later, Judge John M. Nairn filed
a "judgment on the Special Verdict" con-
~ 7
sisting of Brown's "plat map included in
Exhibit 2-A, and the three page descrip-
tion incorporated therein" with the Jurys'
Verdict. Thus the verdict was made appli-
cable to the Brown Diagonal road and extend-
ed to include an easement for utilities.
CONCLUSION
For the reasons set forth above, a Writ
of Certiorari should issue to review the
Judgment and Opinion of the Court of Appeal
in this matter.
Where the prevailing party himself ,at
Remand Hearing, contradicts the entire tes~-
mony on which judgment relied, basic decency
calls for such a review.
Private Property Rights are jeolously
guarded-by the sane societies of the world.
A country that condones the taking of pro-
perty by fraud and without Due Process is,
in fact, an oppressive third world country.
Date: , 2 yy, -
Respectfully submitted: /
Patricia Rose Rabida
& Ofentne table
Court of Appeal Fifth Appellate District
Filed November 5, 1991.
by Kevin A Swanson-Clerk, Deputy
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA FIFTH APPELLATE DISTRICT
JOSEPH B VAN ORDEN,et al., ) FO012692
)
Plaintiffs and Respondents,) (Super.Ct.
; ) No.148546)
Vv )
)
PATRICIA ROSE RABIDA, ) OPINION
)
Defendant and Appellant )
APPEAL from judgment of the Superior
Court of Kern County, John M. Nairn,Judge.
Patricia Rose Rabida, in pro. per.,for
Defendant and Appellant.
Henry M. Reynolds, attorney for
Plaintiffs and Respondents.
-oo00c-
Defendant and appellant Patricia Rose
Rabida appeals from a judgment establish-
ing the width of an implied easement
across her property. We will affirm.
-66-
APPENDIX A
BACKGROUND
Plaintiffs/Respondents are joint ven-
turers and the owners of six seperate par~
cels totalling the 80 acres that comprise
the northern half of the southeast quarter
of section 11.Township 29 South,Range 33
East, Mount Diablo Meridian, in Kern
County." Defendant/Appellant Patricia
Rose Rabida is the owner of the 80 acres
comprising the southern half of the south-
east quarter of Section ll. A few months
prior to the purchase of the northern 80
acres by Respondents’ Predecessor in Inter-
est in 1970, appellant purchased her south-
ern 80 acres from the same grantor, in May
1970. The remote property is located in
rugged, high country north of Tehachapi
and south of Lake Isabella. The eastern
1/ References hereafter to “Section 11"
are to the southeast quarter of Section ll,
Township 29 southm range 33 East, Mount
Diablo Meridian, in Kern County
-67-
boundary of Section 11 borders the Sequoia
National Forrest; on the west, Section 11
is bordered by land controlled by the
Bureau of Land Management.
Respondents filed an action against
Appellant in 1977 to establish their right
to an easement appurtenant over Appel-
lant's lower 80 acres for ingress and
egress to their parcels in the upper 80
acres. Judgment following a court trial
in 1981 was rendered in Respondents' favor.
Findings of Fact and Conclusions of Law
were filed in 1983 and Judgment entered on
June l, 1983. On March 25, 1985,this court
filed an Opinion affirming lower court's
finding that Respondents held an implied
easement over Appellant's property. (Van
Orden v Rose(March 29, 1985) FO02875 (non-
pub. opn.), typed opn. pp, 13-15. (Here-
after Van Orden I) However, the judgment
with respect to the trial court's finding
that the implied easement was 30 feet in
-68&-
width was reversed and remanded to the
trial court for further proceedings after
this Court found the Lower Court's selec
tion of a 30-foot width was not supported
by substantial evidence. (Van Orden ,supra,
typed opn. ppl/-19)
PROCEEDINGS ON REMAND
In a two-day retrial before a jury
(August 7-8, 1989) Appellant appeared in
proper persona. Afte! less than an hour of
deliberations the jury found, by Special
Verdict, that the easement across Appel-
lant's property “shall be 30 feet in width'
and that such width was “reasonably re-
guired considering ali the uses for which
the property 15 adapted and available and
consistent with its prior use.” Juagment
entered and a timely Notice of Appeal fol-
lowed.
EVIDENCE ON REMAND
Respondent Joseph Van Order! recalled
first traveiling the sole road leading
ii
‘from the lower 80 acres into what would
become his upper 40 acres along the lower
Slope of Piute Mountain in early (May)
1971. It was possible that he first tra-
velled onto the property in summer of 1970
when he was contemplating the purchase.
Whether the first time was in 1970 or 1971,
the road appeared to have been there for
some period, was not overgrown with brush
(an indication of heavy use) and had "“defi-
nitely been traversed by cars in the
past, as the soil was compacted. Some ruts
and automobile tire marks were visible.
The road looked like it had been "cleaned
up" with a bulldozer, but not freshly made.
Over the years he traveled the road
nearly 20 times. Initially he traversed
the road in a Mustang; he saw people use
Pickups, Vans and Four-Wheel-Drive. The
road he first traveled in 1970 Or 1971 was
the "Main" Road Appellant later padlocked.
Van Orden testified the Northern 80 Acres
-70-
was approximately one mile from Piute Moun-
tain Road; it was located in very rough
terrain, riddled witn boulders and ravines.
The property was only Suitable to personal,
recreational use. Van Orden hopec to build
a mountain retreat for his family.
Shortly before the instant trial, Van
Orden had the “Main" Road (the same roae
he haa travelled on since 1970 or 1g J/1)
surveyed by a licensed land surveyor, David
Brown. Brown had worked as a surveyor for
approximately 30 years; for the 16 years
prior to trial he had been licensed anda
owned his own surveying business, Brown
saw and surveyed only one road running from
the lower to the upper 60 acres, The ex-
isting dirt road bed averaged 20 feet in
width. Brown explained that 1n orcer to
have a road serving more than one pare el
that would satisfy Kern County Fire Depart-
ment Regulations,, tne roaG wo jld have to
be a minimum width of « feet, as well aS
allow sufficient additional footage for
cuts and fills.
The applicable Kern County Parcel Map
Ordinance required a minimum 30 feet of
width for off-site Access roads. Brown
testified: "(T)o meet the Parcel Map Ord-
inance you need a minimum of 30 feet of
easement, which would also include the cuts
and fills." As it presently existed, the
Access Road satisfied County requirements.
Ross Elliot, a senior Planner in charge
of the Land Division Section of Kern County
2/ Philip Neufield, employed by the Kern
County Fire Department as a fire preven-
tion specialist, testified a minimum 20
foot roadbed was required in order to ob-
tain building approval so as to allow two
way traffic and emergency vehicle access,
The minimum twenty feet of flat roadbed
was defined as "where you can put a tire
on it," not including any soft shoulder.
-72-
Planning and Development Services, affirm-
ed the Kern County Parcel Map Ordinance
(# 18.80.030(B)) required off-site Access
Roads (including attendent cuts and fills)
to have a minimum easement width of 30
feet.°
The map of the Access Road drawn by
Brown on August 4, 1989, and attached to
the survey he prepared was a general G-
torial view gf the road (a general plat)
to go with the accompanying legal descrip-
tion. Due to the number of small, winding
curves on the Access Road _ the Map was only
3/ The Kern County Parcel Map Ordi-
nance defines as "off site Access Road" as
“an easement for vehicular access located
on land not owned by the applicant," (Exs.
4 & 4-A; # 18,80,010 (D).)
To responcents, owners of the upper 80
acres, the road leading into their proper-
ty over Appellant's lower 80 acres was an
Off-Site Access Road.
approximate. However the legal descrip-
tion included within his Survey was exact.
Brown described a 30-foot easement for in-
gress and egress on his survey because
"the Kern County Parcel Map Ordinance
requires a minimum of 30 foot road
easement.
Appellant called Donald Ward, a licens-
ed Land Surveyor, as a witness. He testi-
fied that the Access Road shown on a Map
prepared by Alan Whitlock in May 1970
(“Plaintiff's Exhibit 1 (1980)" and "Defen-
dant's Exhibit A (1980)")4 fit the gener-
al configuration of a road on a 1975 Aerial
4/ “Plaintiff's Exhibit 1" and "Defen-
dant's Exhibit A" bear an official Kern
County Exhibit Sticker from the first
Trial dated September 3, 1980. They were
not entered as exhibits in the instant
Trial (1989) although the Whitlock Map
in some form was referenced by Appellant
and shown to witnesses.
Faq
Photograph taken by him as part of a Survey
in 1975. (Exhibit E) Ward could tell on
the 1975 Photograph that the road had been
graded and therefore used, but he could
not tell it's width. Ward compared his
1975 Photograph (Exhibit E) with a July 2,
1970 Photograph entered as an exhibit in
~~
the first trial (but not the instant trial-
"Defendant's Exhibit J (1981)" and found
the Photos were "very similar". Ward's
examination of the Photos disclosed only
one road (the road depicted on Ex. 2-A)
from the lower 80 acres to the upper 80
acres. He testified the road on the 1975
Aerial Photograph did not appear on the
1975 Aeri. 1 Photograph as a continuous
road.
POST TRIAL PROCEEDINGS
On October 18, 1989, Appellant filed in
the Superior Court a notice of intention
to proceed by settled statement and a no-
tice of designation of the record. The re-
-75-
cord designation included the transcript of
the 1980-1981 trial, numerous "exhibits",
some of which were marked and entered at
the instant trial, some of which were re-
ferenced at trial and marked, or refer-
enced at trial and not marked, or refer-
enced, marked but denied admission as evi-
dence. As is obvious from the factual
Statement Supra, many of the exhibits
were exhibits entered at the prior, but
not the instant trial.
The Kern County clerk issued a rule
10(c) default notice (failure to post fee
for preperation of reporter's transcript) ;
relief was granted by this court on Jan-
uary 31, 1990. A single Clerk's Transcript
and Reporter's Transcript of the proceed-
ings on August 7 and 8, 1989m (instant
trial) were filed on March 30, 19909.
Appellant's April 9, 1990, Motion to
Correct the Record by the addition of cer-
tain exhibits entered only at the prior
-76-
trial, as well as an exhibit from the in-
stant trial, and to correct certain state-
ments in the reporter's transcript was
deemed to be a request to file a belated
motion to prepare a settled statement
and/or to correct the record.(People v.
Gzikowski (1982) 32 Cal.3d 580, 584-585,
fn. 2). The hearing on the belated motion
was held in the trial court on July 19,
1990.
At the hearing, a superior court clerk
testified as to the proper time and proce-
dure for transmission of exhibits entered
into evidence at the instant trial. as to
several documents Appellant wished to have
transmitted as part of the instant record,
the Court advised Appellant to file a Mo-
tion to Augment in the Appellate Court, in-
sofar as said documents were "received"
in the instant trial.
The Lower Court's Settled Statement was
filed on August 7, 1990. The court noted
the Trial Transcript was correct and need-
ed no alterations or additions; the Lower
Court suggested Appellant pursue Augmenta-
tion of the Record where appropriate. Ap-
‘parently following the Lower court's sug~
gestion at the July 19, 1990 hearing, Ap-
pellant had already filed in this court
an Application to Augment the Record with
numerous items allegedly produced or re-
ferenced during the course of the instant
trial, but not admitted into evidence, as
well as certain documents in the Superior
Court file pertaining to the first trial.
On August 17, 1990, this court entered
an — (1) determining the record of
August 7 and 8, 1989 trial to be correct
(2) denying the request as to items 12 to
21 for a variety of reasons, (3) directing
Appellant to have a Supplemental Report-
er's Transcript prepared containing her
Proposed Jury Instructions dated July 31,
1989 (item 22) and (4) deeming the Record
~
augmented to include items 1 through ll
(Photographs, Maps, and Documents not ad-
mitted but referenced, in part, at the
instant trial). As to items 1 through ll,
this court noted "(n)othing in this Order,
however, constitutes a determination of
the relevancy of this material or the pro-
priety of considering the material in con-
nection with this Appeal.” A Kern County
Deputy Clerk filed an affidavit on October
11,.1990, stating she was unable to locate
any Proposed Jury Instructions by Appellant
dated July 31, 1989, despite the copy pro-
vided by Appellant.
Respondents reviewed Appellant's Open-
ing Brief filed August 29, 199°, and, after
13 years of this litigation, decided to
stand on the record and filed no Respon-
dents' Brief. Finnally,Appellant's appli-
cations in this Court for "Findings of
Fact and Conclusions of Law" on November
14, 1990, and to “ Produce further Evi-
-79-
dence" were denied on January 17, 1991.
DISCUSSION
It appears that the majority of Appei-
lant's transcript references (i.e. "TCT"
(Trial Clerk's Transcript) must be to the
record in Van Orden I because the record
citations do not pertain to or support
what they reference in the 1989 trial re-
Cord. The record from Van Orden I was
not incorporated as part of the instant
record (although appellant asked for it
and references it in her Brief). Appel-
lant has not requested that this court
notice judicially the record in Van Orden
I, nor does it appear that would be nec-
cessary since the instant issue deals only
with establishing the width of the easement.
all relevant evidence pertaining to that
issue is contained in the 1989 transcript.
It should be noted Appellant had diffi-
culty throughout the 1989 Trial accepting
the fact that the Lower Court's Finding
=§0-
in 1983 that an easement by implication
existed had been confirmed by this court
in 1985 and that determination was now
final. not subject to relitigation or im-
peachment with further evidence.Appellant
insisted there was no road to the upper
80 acres through her property at the time
she acquired her interest in May 1970 so
there could be no easement. The Lower
Court repeatedly advised her the Appel-
late Court had determined in 1985 that
the road and easement did exist at the
time she acquired her interest, and sug-
gested she move on, but to little avail.
(E.g., Appellant: "The Appellate Court says
there is (a road) now, but I'm giving my
side of this.") Appellant continues
5 / ...to which Judge Nairn responded:
"Your side doesn't matter. They said
there is an easement there, there is a
road there, When they tell us to do some-
(Fn. continued)
=8l<
to attempt to relitigate the finding of
an easement again in this Avopeal.
The 1983 Judgment affirmed by this Court
in 1985 was rendered on the merits and is
final. "(A) matter adjudicated on a prior
Appeal normally will not be relitigated
on a subsequent Appeal in the same case."
(Davies v Krasner (1975) 14 Cal.3d 502,
507, fn,omitted.) As to those issues that
were raised, expressly or impliedly, and
resolved against Appellant, she is preclud-
ed from raising them here by the Doctrine
of Law of the Case. (Hanry v Lund (1963)
218 Cal. App. 2d 633, 638-639) “Hence
after entry of judgment in conformity with
the directions, the Respondent cannot...on
Appeal, relitigate the same issues. (Cita-
tions.)" (9 Witkin, Cal.Procedure (3d ed.
1985) Appeal, # 636, p.617.)
As to the “Points" that could have been
thing, we do it. When they say jump, we
say how high, that's it.
o22=
raised in the appeal in Van Orden Il,
those issues are outside the scope (and
jurisdiction) of the Trial Court on Remand.
They are not cognizable on this Appeal.
"(An) Appellate Court may adopt a written
Opinion determining the issues on Appeal
and modify or reverse the judgment, speci-
fically directing the Lower Court with re-
spect to particular issues. In (those)
cases the Trial Court has no discretion
to interpret the Opinion of the Appellate
Court, but, on the contrary, it is bound
to specifically carry out the instructions
of the Reviewing Court..... (Kenney v.
Kenney (1954) 128 Cal.App.2d 128, 133-134,
disapproved on another point in See v see
(1966) 64 Cal.2d 778, 785) "The trial
judge must follow the directions of the
Appellate Court and enter the Judgment
accordingly. He cannot...retry the case;
." (9 Witkin, Cal. Procedure, op.cit.
supra, Appeal, # 633,p.613.) Where a
-83-
Reviewing Court is bound by the directions
given and has no authority to retry any
other issue or to make any other Findings.
It's authority is limited wholly and sole-
ly to following the directions of the
Reviewing Court..." (Rice v Schmid)
(1944) 25 Cal.2d 259, 263.)
In Van Orden I, this Court specifically
affirmed the judgment “insofar as it found
an easement by implication"" but remanded
for further proceedings “as to the finding
that the implied easement was 30 feet in
width,...consistent with (the) Opinion,"
(Van Orden I supra, typed Opn. p. 19.)
That is the only issue the Trial Court had
jurisdiction to retry; that is the only
issue within the scope of this Court's re-
view in the instant Appeal.
POINT I
Appellant argues Respondents' testi-
mony pertaining to the 1989 Plat Map of
the Access Road prepared by Brown shortly
-84-
niall,
Se ee ee eee eT ee Oe Pe eee
ne ie celta At, ett bi Pe bs
before Trial (Ex.2-A,p.4) was outside the
scope of this Court's directions on Remand.
As specified in Van Orden I, the Remand
was limited to the issue of the “road's
width,...the nature of the traffic carried
by the road after it was bulldozed (in
early 1970)..."(Van Orden I, Supra,
typed Opn. p. 18.) To this end the Trial
Court was directed to "(take) additional
evidence regarding the existing road, and
the nature of the use to which it was put
at the time the easement by Implication
arose."(Id.,typed Opn. pp. 18-19)
This appears to be appellant's argument*
since the 1989 Map (Ex. 2A.p.4) was not in
existence when Appellant acquired her pro-
perty or at the time of the Trial in Van
Orden I (1980-1931), it could not properly
be considered in determining the road's
width nor the nature of fits use in May
1970, when Appellate acquired the southern
80 acres. Appellate seems to infer the
-85-
“Bell-Shaped-Curve" Road, referenced in
Van Orden iI as the Access Road here in
question (Van Orden I supra, typed Opn.
p. 3), and the Abbriviated Access Road
sketched by Brown at page 4 of Exhibit 2-A,
are not the same road. The evidence sup-
ports the conclusion that they are the same
road and Exhibit 2-A was properly entered
in evidence and considered.
Although the survey Map prepared in
“May 1970" by a surveyor named Whitlock
was not properly tendered as an exhibit
by Appellant or entered into evidence in
the 1989 Trial, it is referenced in Van
Orden I, was shown to witnesses during
the 1989 proceedings and was the subject
of considerable testimony. An enlarged
Copy of the Whitlock Map also appears to
be one of the il items deemed augmented by
this Court on August 17, 1990 (Item 1).°
When considered in the context of perti-
nent testimony, it is apparent the Access
«$6-
Road depicted on Exhibit 2-A and the rough-
ly sketched Road in the form of a Bell-
Shaped-Curve on the Whitlock Map are the
same Road.
The Access Road depicted on Exhibit 2-A
does not depict a complete Bell-Shaped-
Curve. This is because it only shows that
portion of the Access Road as it appears
on the western half of Appellant's South-
ern 80 acres. It does not extend into the
Northern 80 acres, while the Road depicted
on the Whitlock Map does extend into the
Northern Half of the Quarter Section. It
is consistent with the Ascending Line of a
Bell-Shaped-Curve and with the applicable
portion of the Access Road that appears
on "Defendant's Exhibit F". The Access
6/. See two identicle 1l by 13 inch Pho-
tographic Maps denominated "Defendant F"
and "Defendant Exhibit F" by apnellant.
They are included in the Record but were
never officiallly marked as Exhibits.
— yp
Road sketched on "Plaintiff's 1 (1980)" is
obvously roughly drawn and not to scale.
Brown testified the portion of the Access
Road sketched by him on Exhibit 2-A was
“a general pictorial view" of the road;
it was only approximate due to the number
of small winding curves. Van Orden ,
Brown and Appellant's Surveyor Ward all
testified there was only one road from the
Southern 80 entering the Northern 80 acres.
That is the Access Road depicted on "Plain-
tiff's Exhibit 1 (1980)" and Exhibit 2-A.
The judgment in Van Orden I describes
the easement as following"'...the center
line of the Access Road as said road ex-
isted on May 25, 1970.'..." (Van Orden I,
Supra, typed Opn.p.15) there was no Sur-
veyor's Description. In Van Orden Il,
Mr Van Orden testified that he hired Brown,
a licensed surveyor, to make a survey of
the road. About a week before the Second
Trial he took Brown to the premises, point-
-88-
ed out and walked the road that existed in
May 1970. He testified it was the only
road that extended all the way from the
western line of the Southwest Quarter
of the Southeast Quarter of Section ll
into the Northern Half of the Scutheast
Quarter of Section 1l. When questioned,
Van Orden noted:
"O. Whenever you went there the very
first time. what did you see with
respect to a road ?
A. The road was there, and the same
Road that David Brown surveyed, the
road that David Brown surveyed, the
same road that was there at that time.
There are other roads, but the Main
Road going into the property, into my
property~ thet I had to go across was
there the first time I went up to see
abe 6 28 66.6028 BHA ee a8 Se ee 8 SC Se See 2.2 2 Se SS
O.Mr van Orden, you indicated last week
you went up to the property when it was
being surveyed by Mr. Brown.
A. Yes.
QO. And is that the same road that you
saw when you went to the property the
first time in 1970 or 1971 ?
A. the same Main Road entering Pat
Rose's property and entering mine, was
the same last week as it was in 1970."
;
It was therefore appropriate, and with-
in the scope of this Court's 1985 limited
Remand in Van Orden I, for the Lower
Court to receive and consider Exhibit 2-A,
74 Strangely, during trial, Appellate
Rabida herself noted: "they say the Floyd
Walls road, That is the same road that this
gentleman testified that Mc Carthy used
when they owned the land. And so that's
the same Road that the Appellate Court is
saying now there is an easement on my land,
that's the same Road.
-90-
(Hampton v. Superior Court (1952)38 Cal.
2a 652, 655; Hanna v. City of Los Angeles
(1989) 212 Cal.app.3d 363, 376.) It 1S ap-
parent that when Van Orden I is read
in context, the Lower Court was directed
to take additional evidence “regarding
(the width of) the existing Road" as a
step in determining the proper extent of
Respondents’ easement. (Van Orden Il,
Supra typed Opn.p.18.) In preparing
the Plat Map included in Exhibit 2-A, and
the three page Legal Description incorpo~
rated therein, Brown determined that the
Existing 20-foot Dirt Road Bed "averaged
20 feet in width," before allowing for
necessary cuts and fills in the road.
This was pertinent, and a portion of the
relevant evidence the Jury used in deter-
mining the proper and necessary width of
the easement as of 1970. The present uses,
intervening uses, and reasonably to be
expected uses as of 1970 are relevant to
-9l|-
the width of the implied assessment in
1970. (Kytasty v. Godwin (1980) 102 Cal.
App.3d 762, 771-772)
POINT II
Incorporating her argument under "Point
I", Appellate maintains she was Surprised
when Respondents "change(d) their testimo-
ny regarding the Road in issue." It is
alleged the "surprise" prejudiced her in
that it lessened her ability to respond to
the evidence produced on behalf of Respon-
dents.
As noted supra, the portion of the
Access Road depicted on Exhibit 2-A is a
portion of the same Access Road described
in Van Orden I as the Road with the Bell-
Shaped-Curve on the 1970 Whitlock Survey
Map ("Plaintiff's Exhibit 1 (1980)"). Fur-
thermore, Appellant acknowledges she was
aware Respondents were having a Survey
prepared of the road as trial was briefly
delayed while the Survey was completed.
-92-
- —
While Van Orden mentioned he last improved
the Access Road six months prior to the
1989 trial. The improvements consisted of
clearing regrown brush and filling in gul-
lies. There is no evidence to support
Appellant's inference Van Orden changed
the direction,location and/or shape of
the Road.
Appellate now complains the Trial Court
"refused to allow (her) to testify to her
theory of the case, which she had adhered
to since the onset of the litigation i.e.
no Road at all existed as of May 25, 1970
ce In Van Orden I this Court acknow-
ledged the evidence supported the follow-
ing facts: a rough form of the Access Road
had been in existence dating back to 1929;
the modification/improvement of the Access
Road in question had been completed by Feb-
ruary or March of 1970 and when Appellant
purchased her property in May 1970, she
took with Oral and Written Notice of the
-93-
“road as indicated" on the Whitlock Survey
Map. (Van Orden I, supra, typed Opn.
pp. 2-3, 12-14.)
Appellant's challenge to the Lower court's
Finding of an Implied Easement on the
ground of insubstantial evidence failed in
Van Orden I. (Id. typed Op. pp 6-15.)
As we have stated, that 1985 Opinion ,
rendered contrary to Appellant's "theory
of the case," is now final and constitutes
Law of the Case.
“POINT III"
Pressing forward with her idea that Van
Orden altered the shape of the road just
prior to Trial, Appellate argues that the
testimony of her surveyor ,Ward establish-
ed the Access Road on Exhibit 2-A was not
in existence as late as 1975 when he con-
ducted an Aerial Survey. (Exhibit E.)
In support of this argument, Appellate
first submits "quotations" from colloquies
she submitted as part of an apparent appli-
-94-
cation to proceed in part by way of Set-
tled Statement. The application was marked
"received" by the Trial Court on September
22, 1989. The September 22, 1989, Document
purports to set forth by guotation lengthy
“in chambers" exchanges outside the pre-
sence of a Court Reporter shortly before
and during Trial. In these exchanges,
Appellant is portrayed as repeatedly main-
taining the Access Road later depicted in
Exhibit 2-A did not exist in 1970. In part
of the "testimony", Ward states that on
certain (unspecified) Photographs shown to
him, he can see a beginning and end to the
Access Road but not the middle.
Insofar as the September 22, 1989,
Document purported to be an Application for
a Settled Statement pursuant to Rule 7 of
the California Rules of Court, it was un-
timely and did not conform to the cited Rule.
Furthermore, the Record contains nothing
to demonstrate the Trial Court ever set~
-95-
ae eee
tled the Statement and/or Appellate ever en-
grossed, served and filed such a document.
Taking into account the Trial Court's Find-
ings following the July 19, 1990, hearing
on Appellant's Motion for a Settled State-
ment, this Court “determined” in an Order
filed August 7 and 8, 1989, hearing was
“correct and no further proceedings to
Correct the Record (were) warranted." The
cited “testimony" is not part of the re-
cord.
During the 1989 Trial Ward did testify
the Access Road burdened with the Easement
(Ex 2-A)did not appear on his 1975 Photo-
graph (Exhibit E) as a continuous road.
Counsel for Respondent commented the miss-
ing portion of the Access Road may have
existed but did not appear on the Photo-
graph (due to altitude and aspect of the
plane, the angle of the camera, etc.) and
the Trial Court agreed the missing portion
may not have been photographed. Ward ac-
-96-
knowledged there could be some distortion
from the apex of the camera.
Appellant uses this portion of the tes-
timony to support her contention "the mid-
portion was constructed ‘last month' when
VOrd ‘was up there with a bulldozer---re-
grading the roads.'" As previously noted,
the record supports Van Orden merely clear-
ed brush and filled in gullies as part of
necessary and routine maintenance and re-
pairs he was entitled by law to perform.
(Burris v People's Ditch Co (1894) 104
Cal. 248, 252.) There is no showing the re-
pairs six months prior to trial affected
the "substance" of the easement, (Kreiger
Vv Pacific Gas & Electric co (1981) 119 Cal.
App.3d.137, 145-146.)
Van Orden I established the Access
Road, the only feasible Access Road run-
ning from the southern 80 acres into the
Northern 80 acres, was in existence in
rough form dating back to the late 1920's.
-97-
It was bulldozed and improved. and in the
form generally depicted on the Plat Map
drawn by Brown in 1989, prior to Appel-
lant's purchase of the property in May of
1970. (Van Orden I,supra, typed Opn. p.
12.) The record does not support Appel-
lant's contention that Van Orden unlawful-
ly altered the Access Road just prior to
the 1989 Trial.
“POINT IV"
Appellant contends she never saw the
two questions embodied in the "Special
Verdict" form submitted by Respondents and
read to the Jury just prior to delibera-
tions, the questions were submitted by
Respondents and Appellant voiced no objec-
tion (on the record) to them. After the
Jury had begun deliberations Appellant
asked where the questions had come from
and wanted to know why she had not been
able to submit questions, The court
advised her she could have.
-98-
hs leg
It is likely the Special Verdict Form
was approved by the court during the Con-
ference on Instructions, which Appellate
attended earlier in the day the matter was
submitted to the Jury. A Special Verdict
can be submitted to the Jury at the behest
of either party or on the Court's own mo-
tion. The determination whether or not to
submit a Special Verdict to a Jury rests
in the Trial Court's sound discretion and
no abuse of discretion is demonstrated
here. (Code Civ. Proc., #625; Gherman v
Colburn (1977) 72 Cal.App.3dd 544, 590;
Wiencke v Bibby (1910) 15 Cal.App. 50,55)
Appellate maintains the Special Verdict
was really all that the Jury was given to
8
consider.
8/ The special Verdict submitted to the
Jury read as follows: “We the Jury in the
above entitled cause, find the following
Verdict on the questions submitted to us:
Question No.l: How wide shall the easement
(Fn. continued)
-99-
The concluding instruction --BAJI 15.52
(Concluding Instruction --Special Verdict)
was read to the Jury just prior to the
two guestions contained in the Special Ver-
dict Form. BAJI 15.52 instructed the Jury
to "(a)nswer the questions according to
instructions on the (Special Verdict) Form
and all instructions of the 5g I
(emphasis added. )!
The Jury was further instructed to "con-
Sider all of the instructions as a whole"
in reaching their Verdict (BAJI £.Ok),
in light of all the evidence received,
across the Plaintiff's 80 acres be ? Answer:
The easement shall be feet in width,
Question No. 2: Is the extent of the Right
of access, that is, use by vehicular traf-
fic for ingress and egress, reasonably re-
guired considering all the uses for which
the property is adapted and available and
consistent with prior use ? Answer ‘yes '
Or 'no'. Answer: Ms
according to the value the Jury accorded
the evidence (BAJI 1.00 & 1.00.5). The
Jury considered the evidence and the law
set out in the applicable Instructions in
arriving at the answers provided on the
Special Verdict Form. The Jury was not
given the Special Verdict Form to consid-
er in a vacuum.
The Special Instruction submitted by Res-
pondents advising the Jurors of the effect
of Van Orden I, which Appellant main-
tains she was “unaware of." was obviously
approved during the instruction conference,
was factually correct and given, as indi-
cated, by the Trial Judge.
Appellant suffered no conceivable harm
by the fact the court instructed the Jury
pursuant to Respondents' BAJI Instructions
and rejected Appellant's BAJI Instructions
where they were duplicative. The Jury
never asked to look at the written instruc-
tions, so they never saw it was Appel-
-101-
lant's duplicates that were rejected.
The Jury would have no way of knowing
Appellant had submitted duplicate In-
structions because the Jury would not
have been provided duplicates. If Appel-
lant wanted reasons stated why the Court
rejected certain of her other Instruc-
tions she should have asked for the Court
Reporter to be present during the Instruc-
tion Conference so there would be a record
for this Court to review. Anvpellant has
established no prejudice.
“POINT V"
Appellant erroneously refers to
record testimony from Van Orden I in
support of her next contention that the
testimony as to the width of the easement
at the time of Implication does not sup-
port the judgment. All the relevant testi-
mony on the issue on Remand from Van
Orden I is contained in the Clerk's and
Reporter's Transcripts of the August 7 & &,
102-
ee
1989, Retrial, and appropriate Exhibits.
That is the Record considered by this
Court. Many of the Exhibits referenced in
this portion of the Brief (and elsewhere)
were not marked and entered as Exhibits
during the 1989 Trial, despite the fre-
quent urging of Respondents' Counsel and
the Court that Appellant do so. Even Ap-
pellant acknowledged this was creating a
problem. 4 Often Appellant's "Exhibits"
( e.g.,Photographs, Maps etc.) were simply
shown to the witness Appellant was ques-~-
tioning. In many instances they were un-
identified in and unidentifiable from,
the Record, even in context of testimony
in which the “exhibits" were presumably
pertinent.
9/ Ms. Rabida:"The problem (is); your
Honor, we have different Maps, and they
haven't been actually described to the
Court of Appeals. And the Map--I will
save that for my testimony.
-103-
It is not the responsibility of the Appel-
late Court to match unidentified Exhibits
to Record testimony, nor was it the respon-
Sibility of the Trial Court to make a sa-
tisfactory record to facilitate any later
Appellate Review Appellant might seek.
""A layman with resources who insists upon
exercising the privilege of representing
himself must expect and receive the same
treatment as if represented by an attorney
--no different, no better, no worse'..."
(Lambardi v Citizens Nat. Trust etc. Bank
(1955)137 Cal.App. 2d 206, 209; Taylor v
Bell (1971) 21 Cal.App.3d 1002, 1009';
Doran v Dryer (1956) 143 Cal.App.2d 289,
290.) Otherwise ignorance is unjustly re-
warded. (Ibid)
Again, the import of Appellate's argu-
ment on this issue seems to be the Access
Road did not exist at the time she acquired
her property in 1970, therefore it had no
width, That issue was finally decided
-104-
against her in 1985; again we cite Van
Orden I.
"POINT VI"
Appellate next claims that Van Orden
had no knowledge of her property prior to
his traveling on it in 1971, therefore he
had no knowledge of the use to which the
land was put prior to the time she acquired
the property in May 1970. Actually, upon
cross-examination by appellant, Van Orden
recalled he likely travelled across Appel-
Vant's property sometime in the summer of
1970, probably June of 1970, i.e. a month
after Appellant purchased the southern 80
Acres. Van Orden testified on his first
trip the road had been "cleaned up with a
bulldozer, but not freshly made."
In upholding the Lower Court's determi-
nation that respondents held an Easement
by Implication in Van Orden I, the Court,
in effect, affirmed that all the condi-
tions precedent to such a finding were
-105-
Satisfied. The road was used by Van Orden,
and by implication the other Respondents
Similarly situated in the upper 80 acres,
for access to their northern parcels ona
limited, recreational basis. Van Orden -
established the road was subject to Access
for recreational use as far back as 1929,
(Van Orden I, supra typed Op. Pe
On Remand the Trial Court was directed
to establish the width of the Implied Ease-
ment. In so doing it was directed to take
"additional evidence regarding the (width
of) the existing road," taking into account
"the nature of the traffic carried by the
road after it was bulldozed (in 1970)" ana
"the nature of the use to which it was put
at the time the Easement by Implication
arose." (Van Orden I supra, typed, Opn.
ppl8-19) a 30-foot Easement on an "Off-Site
Access Road" was required by the Kern
County Parcel Ordianace; the 30-foot Ease-
ment established by the Jury is Supported
-106-
by substantial evidence. As established,
the Access easement is the minimum width
required to satisfy an applicable Local
Ordinance, and is consistent with it's
prior ae:
"POINT VII"
Appellant argues the Trial court erred
in refusing to confine the testimony at
Trial to the condition of the road as it
existed in 1970, i.e. the time the Easement
by Implication arose. As previously ex-
plained, the Court did not err in receiving
testimony as to the width of the Access
Road as it presently existed, or testimo-
ny as to pertinent Ordinances. As we
stated, the present uses, interveening
uses, and reasonably to be expected uses
of 1970, are relevant to the width of the
Implied Easement at the time it was ac-
quired in 1970.
As this Court stated in Van Orden I:
"'t"(w)henever an easement is implied, re-
-10/7-
—_ aleemaas aati nian
gardless of how the implication arises,
the extent of it's use is not neccessari-
ly limited to the prior use made of the
property by the grantor, the Court in
each case examines all of the facts and
circumstances surrounding the transaction
to give effect to the actual intent of
the parties. The prior use of the ease-
ment, or the nature of the Easement as
evidenced by a Map or by representations,
are persuasive circumstances that usually
lead to the conclusion that the prior or
represented use is the limit of the future
use of the Easement, However, such use is
not always so limited. In some cases the
court measures the future use of the ease-
ment by the future utilization and develop-
ment of the dominant tenement which might
reasonably have been expected by the
parties."(citation.)..."The Implied Ease-
ment is not confined to the precise use
at the time of transfer? i.e., it may have
-108-
a broader scope that the quasi-easement
on which it is based. The test is the
Intent of the Parties as to the use rea-
sonaly contemplated." (Citations. )'
(Horowitz v Noble (1978) 79 Cal.App3d
120, 133-134; see also George v Goshgarian
(1983) 139 Cal.app.3d 856, 861-863.)"
(Van Orden I, supra typed Opn. p. 11)
In Kytasty v Godwin, supra 102 Cal.
App.3d 762, 771772, the appellate Court
explained: “where the easement is acquired
by an Implied Grant, the scope of the ease-
ment is measured by the extent the proper-
ty was obviously and permanently used at
the time when the transfer was completed.
(ccP # 1104)...the extent of an easement
by Implied Grant must be inferred from
all of the circumstances of the case among
which the existing and reasonably to be
expected uses are considered (Citations).
a number of California Cases have dis-
cussed the uses permitted and suggest the
-109-
Intent of the Parties should be controll-
ing.(citation)....The question as to the
amount of property subjected to the Ease-
ment, the width of the existing Road or
Easement, is one of fact for determina-
tion by the Trial Court.(Citation)."
(Ibid., emphasis added)
In Kytasty the Appellate court held the
evidence "(did) not support a finding the
Easement used or reasonably expected for
future use of the dominant tenement was
60 feet wide," reversed the Judgmemt on
that point and remanded for further pro-
ceedings. (Kytasty v Godwin, supra,
102 Cal. App.3d 762, 772, 774, emphasis
added.) Here, in addition to the evidence
recited at length , the testimony of a Se-
nior Planner in the Kern County Planning
and Development Services, and the applica-
ble Section of the Kern County Parcel Map
Ordinance established the Off-Site Access
Road here required a minimum 30-foot Ease-
-110-
rer eee
ment. this is what was reasonably required
as of 1970, for the "future use of the
Dominant Tenement...." (Id, at p. 7/72)
"Points" VIII-XIX
These "Points" cover matter that could
have been raised or were resolved (direct-
ly or impliedly) contrary to Appellant's
position in Van Orden I, or are address-
ed in Points I-III and V-VII of the In-
stant Opinion.
The Judgment is affirmed.
Brown (Sno. A.)
Brown, J.*
WE CONCUR:
Best
Best, P.J.
Buckley
Buckley, J.
* Retired Presiding Judge of the Court of
Appeal sitting under assignment by the
Chairperson of the Judicial Council.
-111-
Court of Appeal Fifth Appellate District
Filed Mar. 29, 1985
by Kevin A. Swanson-Clerk, Deputy
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA FIFTH APPELLATE DISTRICT
JOSEPH PB. VAN ORDEN,et al., ) 5 Civil No.
Plaintiffs, Cross- F002875
defendants and bdininaeaes (Super. Ct.
Vv. No. 148546)
PAT ROSE, OPINION
Defendant, Cross-
)
complainant, and Appellant.
APPEAL from judgment of the superior
Court of the County of Kern, John M.
Stanton, Judge. Affirmed in part;
reversed in part.
Sylvia T. Whitmore, Levin, Ballin,
Plotkin & Zimring, Stuart D. Zimring and
Nancy O. Marutani for Defendant, Cross-
complainant and Appellant.
Gerald Goldfarb and Harry M. Reynolds
-ll2- -
APPENDIX B
OS ee
for Plaintiffs, Cross-defendants and
Respondents.
Defendant Pat Rose appeals from a judg-
ment in favor of plaintiffs on the com-
plaint and in favor of plaintiffs and
cross-defendants on the cross-complaint.
STATEMENT OF THE FACTS
From 1929 until 1969, the southeast
guarter of section 11, Township 29 south,
Range 33 East, Mount Diablo Meridian was
owned by Jeremiah and Phyllis M. Mc Carthy.
During this period, the Mc Carthys utilized
at least two clearly marked and defined
trails to travel from the southern half to
the northern half of the property for
hiking, horseback riding and other ranching
purposes.
In October 1969, the Mc Carthys sold this
property to Robert C. Monroe. Early in 1970,
Floyd Walls Jr., a licensed engineer, was
hired by Monroe to do surveying and road
work on the subject property. Working with
“113°
Allan Whitlock, Walls walked the property,
observing an “undesirable road" or “horse
and buggy trail" which generally followed
the terrain, and was visible in some places
but obscured by growth and washed away in
others. Using a bulldozer, Walls modified
this existing road, following it fr4om the
western border of the southern 80 acres,
north into the northern 80 acres and then
south into the southern 80 acres again.
Walls completed this road work in February
or nasck 1970; the surveyor prepared his
map after the road had been completed.
Responding to an advertisement concern-
ing the sale by Monroe of the property, de-
fendant, in May 1970, visited it for the
purpose of viewing the southern 80 acres,
accompanied by Monroe's agent, Russ 1/
Milburn, among others. Milburn showed de-
fendant a surveyor's map of the quarter
1/ Russ Milburn and Stoye Milburn
appear to be the same person.
-114-
a
section, which depicted a road entering
the southern 80 acres from the west, run-
ning north into the northern 80 acres in
a bell-shaped-curve, then continuing back
south into the southern 80 acres. Thie map
receited, inter alia, “these two parcels 80
acres--22(,)600(.)00 with roads as indicat-
ed." On the day that defendant viewed the
property, and during subsequent conversa-
tions, Milburn discussed with her the fact
that the road depicted on the surveyor's
map would provide access to the northern
80 acres, and defendant never voiced any
objection. In May 1970, defendant pur-
chased the southern 80 acres of the pro-
perty.
On Sept 28, 1970, the Milburns purchased
the northern 80 acres of the subject proper-
ty from the Monroes. Plaintiff Joseph Van
Orden purchased 40 fo the 80 acres from
Milburn in 1971. When Van Orden first vi-
sited the property in 1971, he utilized the
-1i5-
road that passed through defendant's pro-
perty from west to north for access to his
(Van Orden's) property, and there was no
gate preventing use of said road. Van Orden
visited his property about two times a year,
including a visit in late summer 1972, to
show it to a prospective buyer. Although
he noticed a gate in 1972, the gate was not
locked until 1973. The only public road in
the vicinity of the subject property is
Piute Mountain road. Plaintiffs‘ property
does not abut Piute Mountain Road, which is
about one-fourth of a mile distant at the
nearest points, to the north and to the
west. The land to the west of plaintiffs'
land is controlled by the Bureau of Land
Management (BLM), and is very steep and
impassable. The land to the north of plain-
tiffs' property is very steep with large
boulders and numerous ravines. East of
Plaintiffs' property is Sequoia National
Forrest wilderness land.
-116-
)
Three or four years prior to the time of
trial, engineer Walls walked plaintiffs’
property in order to determine the feasibi-
lity of constructing an access road which
did not cross defendant's property. Build-
ing a road from the north would be prohibi-
tively expensive because of the need to
blast through rock. A road constructed from
the west would cost about $50,000 to build.
At the time of trial, new county regula-
tions would increase the cost of a western
access road to $100,000. Plaintiff Van
Orden never investigated obtaining an ease-
ment over BLM land to the west, alleging it
would have been pointless, since no road
could be built there.
Defense Case
When defendant first visited the south-
ern 80 acres in May 1970, with (among
others) Milburn, there were no roads on the
property. When Milburn showed her the map
depicting a bell-shaped road extending from
-117-
the southern 80 acres into the northern 80
acres, she objected, and stated that she
did not want a road crossing her property
into the northern 80 acres. Defendant had
Originally intended to purchase only 40
acres (on the eastern side), but purchased
the western 40 acres to insure her privacy.
Milburn assured her that there would be no
need for any road passing through her pro-
perty, and that some teachers who also want-
ed privacy, were purchasing the northern
80 acres.
An access road to defendant's property
from the west was constructed in May 1970,
In September 1970, John E. Varin was hired
by Milburn to build a road from the south-
ern 80 acres into the northern 80 acres.
When Varin began bulldozing, defendant ap-
peared and ordered him to stop and get off
her property, but Varin thought he was on
Milburn's land, so continued working.
Varin did not follow existing roads or
-115-
trails in constructing the road into the
northern 80 acres, and did not see any
road as supposedly built by Walls. After
his initial confrontation with defendant,
Varin became her friend and did other road
construction work for her, In 1971, when
he went to defendant's property to do some
work, the road was blocked by a locked gate,
and defendant's brother had to come and un-
lock it so Varin could get past
Defendant first put up the locked gate in
September 1970. Her locks were shot off
twice, and the gate was broken once, but
defendant replaced the locks each time.
Defendant's friend Hope Gentry visited
defendant's property in 1971, 1972, 1973,
or 1974 and 1975 or 1976, and each time
the gate was locked with a padlock and
chain.
Donald E. Ward, a land surveyor and
civil engineer, visited defendant's proper-
ty in August 1980. Walking on BLM land west
-119-
of the subject property, Ward concluded
that a road could be constructed across BLM
land from the Piute Mountain Road southeast
to plaintiffs' land for between $2,000 to
$4,000.
Lewis A. Boll, local district manager
for BLM, stated that if all federal re-
gGuirements were met, the BLM office in
Sacramento would grant an easement over
BLM land.
James Rickett, general manager of West-
ern Photo Air, took an aerial photo of the
Subject area on July 19, 1975. Comparing
that photo to other photos of the same
area taken in 1940, 1962, April 1970 and
July 1970, Rickett could not observe any
road crossing defendant's property and
entering plaintiffs' property until the
1975 photo.
DISCUSSION
I. There was substantial Evidence to Support
a Finding of Implied Easement
-120-
"The law with regard to implied easements
is not uncertain and was most amply summa-
rized by (the) court in Orr v Kirk
(1950) 100 Cal.App.2d 678, at page 681...
"'The elements necessary to create a
"“guasi-easement" or grant by implication,
upon serverance of unity of ownership in an
estate, are: (1) a separation of title
(which implies unity of ownership at some
former time as the foundation of the right);
(2) necessity that before separation takes
place the use which gives rise to the ease-
ment shall be so long continued and obvious
as to show it was meant to be permanent;
and (3) the easement must be reasonably nec-
cessary to the beneficial enjoyment of the
land granted. (Citation) The law does not
favor the implication of easements . Such
implication can only be made in connection
with a conveyance, and in view of the rule
that a conveyance is to be construed against
the grantor, the court will imply an ease-
-l12i-
ment in favor of the grantee more easily
than it will imply an easement in favor of
a grantor. Whether an easement arises by
implication on a conveyance of real estate
depends on the intent of the parties, which
must clearly appear in order to sustain an
easement by implication. In order to deter-
mine the intent, the court will take into
consideration the circumstances attending
the transaction, the particular situation
of the parties, and the state of the thing
granted. (Citation.) The purpose of the
doctrine of implied easements is to give
the effect to the actual intent of the par-
ties as shown by all the facts and circum-
Stances....'"(Kytasty v. Godwin (1980)
102 Cal.App.3d 762m 769.)
Defendant attacks the trial court's
finding of implied easement in a number of
particulars, considered below. In connec-
tion with these attacks, and throughout her
briefs on appeal, defendant argues that the
-122-
evidence was insufficient to support the
factual findings of the court, In this re-
gard, it should be noted that where the
trial court's findings are challenged on
sufficiency of evidence, the appellant
bears the heavy burden of showing that
there is no substantial evidence whatsoever
to support those findings, (Division of
Labor Law Enforcement v. Transpacific
Transportation Co. (1979) 88 Cal.App.3d
823, 829.) The reviewing court starts with
the presumption that the record contains
evicence to sustain every finding of fact,
(Foreman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875, 881.) "‘" The power of the
appellate court begins and ends with
the determination as to whether there is
any substantial evidence contradicted or
uncontradicted which will support the find-
ing of fact,'" (Ibid.) If the appellant
contends that some particular issue of fact
is not sustained, she is “'required to set
-123-
forth in (her) brief all the material
evidence on the point and not merely her
own evidence. Unless this is done the
error assigned is deemed waived,'" (Ibid.)
“Substantial evidence means evidence which
is of ponderable legal significance--evi-
dence that is reasonable in nature, credi-
ble and of solid value," H. Russell
Taylor's Fire Prevention Service ,Inc. v.
Coca-Cola Bottling Corp. (1979) 99 Cal.
App.3d 711,726.) “The trier of fact is the
sole arbiter of all conflicts in the evi-
dence, conflicting interpretations thereof,
ani contiictiae inferences which may be
reasonably may be drawn therefrom; is the
sole judge of the credibiliity of witness-
es; may disbelieve them even though they
are uncontradicted if there is any rational
ground for doing so, one such reason for
disbelief being the interests of the wit-
nesses in the case; and , in the exercise
of a sound legal discretion, may draw or
-124-
refuse to draw inferences reasonably dedu-
Ccible from the evidence." (Johnson v.
Pacific Indemnity Co. (1966) 242 Cal.App.
2d 878, 880.) "(T)he appellate court ordi-
narily looks only at the evidence support-—
ing the successful party, and disregards
the contrary showing. (6 Witkin, Cal.
Procedure ((2d ed. 1971)) #249, at p.
4241.)" (Nestle v. City of Santa Monica
(1972) 6 Cal.3d 920, 925.) The testimony
of a single witness, even a party, is suf-
ficient to support a judgment, (In re Mar-
riage of Mix (1975) 14 Cal.3d 604, 614.)
A Separation of Title
The trial court found, inter alia, that
the original owners of the 160 acres in
question herein conveyed them (in Oct.
1969)"...to ROBERT C. MONROE, MARY ALICE
MONROE and A FLETCHER HARRIS (herein
'MONROE'). (sic)" The trail court fur-
ther found that "MONROE (sic) conveyed
the (southern 80 acres) to PAT and RAYMOND
-125-
ROSE(,)" and then "conveyed the (northern
80 acres) to STOYE and ANNA MILBURN. The
court also found that plaintiffs "are the
present owners of various parcels in the
(northern 80 acres)." defendant now con-
tends that these findings do not include
"a finding as to the disposition of A.
Fletcher Harris's (sic) interest."
It must first be pointed out that the
trial court, in its recitation of findings,
specifically referred to Robert C. Monroe,
Mary alice Monroe and a. Fletcher Harris
collectively as "'"MONROE.'" in finding
No. 3, so that the subsequent references in
findings 6 and 8 to "'MONROE'" as a grantor
included the interest of all three of the
1969 grantees. Since the findings thus de-
monstrably did account for the interest of
A. Fletcher Harris, defendant's contention
in this regard is patently specious.
Further, it is apparent that plaintiffs'
counsel prepared the findings of fact for
~126-
the court's signature with uncritical re-
ference to the original complaint, since
there was absolutely no evidence at trial
that Harris was ever involved as a grantor
or grantee in any of the relevant land
transactions. By the time of trial,
plaintiffs had already obtained an order
that the chain of title of the subject
properties was without substantial contro-
versy and did not include A. Fletcher
Harris, but evidently forgot this little
detail when preparing the findings for
Signature after trail.
A similar problem arose in Estate of
Moore (1953) 143 Cal.App.2d 64, wherein
the "draftsman (of the trial court's find-
ings) went through the allegations of the
pleadings paragraph to be true or untrue."
(Id., at pp. 77-78.) This let to “numerous
conflicts and some ertroneous findings as
to evidentiary facts." (Id., at p. 78.)
The Court of Appeal held that the erroneous
-127-
i
findings resulting from the poor draftsman-
ship were not prejudicial. since "' (a) re-
viewing court will liberally construe find-
ings in support of the judgment. Any uncer-
tainties will be construed so as to uphold
rather than defeat the judgment. (Citation. )
In reviewing the sufficiency of findings to
support a judgment, the court will regard the
ultimate facts found.' (Citation.) The find-
ings as to the evidentiary facts may be
ignored. (Citations)" (Ibid.) 7
In the present case, if there are any
uncertainties in the findings bearing upon
separation of title because of the presence
or absence of mention of A. Fletcher Harris,
the findings should be liberally construed
to uphold the judgment and to regard the
fact of separation of title as found by the
trial court. The evidence at trial supports
unity of ownership in the Mc Carthys, fol-
lowed by conveyance to the Monroes, then to
defendant (southern 80 acres) and the
-128-
Milburns (northern 80 acres) and succes-
sively to the other plaintiffs, all with-
out uncertainty or contradiction.
Under these circumstances, it cannot pre-
judice defendant to interpret the findings
in consonance with the record.
B. Long and obvious Use prior to Separation
Defendant appears to have abandoned
the contention, made in her opening brief,
that the findings relating to prior use are
insufficiently definite to support the
judgment, since her reply brief merely as-
serts that the findings are not supported
by the evidence, without any inadequacy as
to the findings themselves. Defendant
argues that the sole evidence of prior use
--the declaration of Phyllis Mc Carthy--
established that the trails which were
ultimately bulldozed into the north/south
"bell-shaped" road were used by the Mc
Carthys for ranching and recreational pur-
poses, and thus will not support an
-129-
implied easement for ingress and egress.
The distinction between travel into the
northern 80 acres for "ranching and recrea-
tional" purposes and travel into the same
land for "ingress and egress" is a subtle
one. There was no evidence produced at
trial to indicate the “purpose" for which
plaintiffs visited their property, although
Joseph Van Orden's testimony that he went
there about twice a year strongly suggests
that his interests were recreational.
In any case,"“' (w)henever an easement is
implied, regardless of how the implication
arises, the extent of its use is not neces-
Sarily limited to the prior use made of
the property by the grantor, the court in
each, examines all of the facts and circum-
stances Surrounding the transaction to give
effect to the actual intnet of the parties.
The prior use of the easement, or the na-
ture of the easement as evidenced by a map
Or by representations, are persuasive cir-
-130-
ee
cumstances that usually lead to the conclu-
sion that the prior or represented use is
the limit of the future use of the easement.
However, such use is not always so limited.
In some cases the court measures the future
use of the easement by the future utiliza-
tion and development of the dominant tene-
ment which might reasonably have been ex-
pected by the parties.' (Citation.)...'The
implied easement is not confined to the
precise use at the time of the transfer;
i.e., it may have a broader scope than the
quasi-easement on which it is based. The
test is the intent of the parties as to the
use reasonably contemplated.' (Citations. )"
(Horowitz v Noble (1978) 79 Cal.App.3d
120,133-134; see also George v Goshgarian
(1983) 139 Cal. App3d 856, 861-863.)
Ignoring the dposition testimony of
“i lburn,* the trial court had the fol-
2/ Treating Milburn as an adverse party
pursuant to Code of Civil Procedure section
(Fn. continued. )
-13i-
lowing evidence regarding the intent of
the parties as to the scope of the easement
crossing defendant's property: Defendant
admitted that Milburn had shown her the
“Whitlock map" which depicted the subject
road and receited "with roads as indicat-
ed," and that Milburn told her that her
property would be subject to those roads.
Defendant was aware that the property to
the north of hers was being purchased by
others. Engineer Walls testified that he
constructed the subject road in early 1970.
prior to defendant's first visit to the
property, and that he had been hired by
2016, subdivision (d)(now subd,(e)) (2),
which permits the use of deposition testi-
mony Of a party “for any purpose" if offer-
ed by “an adverse party", appears to have
been error by the trial court, Milburn was
named plaintiff and an owner of property
in the northern 80 acres, and as such shar-
ed the interests of the other plaintiffs
-132-
cd
Monroe to do the road work. The “Whitiock
map" which was shown to defendnt was pre-
pared after Walls had buldozed the access
road. Finally, the access road was built
following a previous “undesirable road" or
trail which Phyllis Mc Carthy established
had been used for access to the northern
80 acres for many years, and that this
road was the only feasible means of travel
from the southern to the northern property.
in establishing the easement in dispute.
The fact that the other plaintiffs might
have sought redress in the future (i.e.,
had the sought after easement been reject-
ed by the court, other purchasers of land
in the northern 80 acres might have sued
Milburn, their grantor, for misrepresenta-
tion) did not render their positions ad-
verse in the litigation against defendant,
Mahoney v. Founders' Ins. Co. (1961)
190 Cal.App.2d 430, cited by plaintiffs,
is of no help on this issue, since the depo-
(Fn. continued)
«i133-
Under these circumstances, it was en-
tirely reasonable for the trial court to
conclude that the parties (Monroe and de-
fendant) intended the easement crossing
defendant's land to provide access to pro-
spective purchasers of the northern 80
acres. Assuming that the court believed
Wall's testimony that the subject road had
been constructed prior to May 1970, and
that defendant had in fact examined her
property prior to purchase, the court may
have simply have disbelieved defendant's
story of protestations to Milburn, and her
claimed failure to observe any roads going
into the northern 80 acres. The fact that
Monroe caused the road to be constructed
prior to the sale of the southern 80 acres
Sition testimony admitted wareonnt to Code
of Civil Procedure section 2016, subdivi-
sion (d) (2) in that case was of the prin-
Cipal obligor ina suit by the obligee
against the surety. (Id.,at pp 434-435.)
(Fn. continued)
-134-
to defendant is alone persuasive evidence
that he intended the easement for the in-
gress and egress of the owners of the nor-
thern land, and defendant's intent can be
inferred from her purchase after seeing the
"Whitlock map," after she physically examin-
ed the property and after she was told by
Milburn that the access road existed. Con-
trary evidence of defendant's intent mere-
ly raises a conflict which the court, as
the trier of fact, resolved in plaintiffs’
favor.
Defendant contends that the Milburn dep-
osition contained the only evidence support-
ing the trial court's implied finding that
the parties to the conveyance of the south-
The interests of creditor and debtor are
nitestie makin and adverse, and the
surety stands in the position of the debt-
or as to a default by the latter. (Ibid)
In the present matter, at the point at
which Milburn's testimony was offered by
(Fn. continued)
-135-
ern 80 acres intended that the "bell-shaped"
road provide access to the northern 80 acres,
and because Milburn's deposition was inad-
missible (see fn. 3), the requisite finding
of intent to support the implied easement
is contrary to the evidence.
As noted above, the Milburn deposition
was not the only evidence of the parties'
intent--the circumstances surrounding the
transaction , including prior construction
of the road, defendant's own description of
her interaction with Milburn, and the prior
use of the “wagon trail" by the Mc Carthys,
all indicate that the Monroes and defendant
plaintiffs, he was unambiguously alined in
interest with them, and could not be con-
sidered adverse except in the most specu-
lative sense. As noted in the main discus-
sion, the absense of Milburn's testimony
does not rob the trial court's findings of
evidentiary support, and the error in ad-
mitting it was therefore nonprejudicial.
-136-
mast have intended that the access ease-
ment be reserved with regard to the north--
ern 80 acres. Defendant's evidence to the
contrary simply has no significance ina
sufficiency ana
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