McDermott Ranch v. Connolly Ranch ( 2019 )

Filed 12/17/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
MCDERMOTT RANCH, LLC, C085433
Plaintiff and Appellant, (Super. Ct. Nos. STK-CV-
URP-2013-0009921 &
v. 39-2013-00302451-CU-OR-
STK)
CONNOLLY RANCH, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Joaquin County, Roger
Ross, Judge. Affirmed.
Mayol & Barringer, Bart Barringer; McCormick, Barstow, Sheppard, Wayte &
Curruth LLP and Todd W. Baxter for Plaintiff and Appellant.
Law Offices of Tony J. Tanke and Tony J. Tanke for Defendant and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II and III.
1
This case stems from a 1958 real estate transaction between the predecessors in
interest to plaintiff McDermott Ranch, LLC (McDermott) and the predecessors in interest
to defendant Connolly Ranch, Inc. (Connolly). The parties owned adjoining ranches in
an area called Section 10 in rural San Joaquin County.1 Under the 1958 transaction,
McDermott’s predecessors in interest received the entirety of Section 10, except for a
carved out parcel in the western portion that went to Connolly’s predecessors in interest
(hereinafter referred to as the McDermott parcel and the Connolly parcel, respectively).
The parties’ lands were separated on the northern and eastern sides by Carnegie Ridge,
with a fence marking the boundary.
A dispute arose between the parties concerning the location of the southern and
western borders of the Connolly parcel. According to Connolly, its parcel is
approximately 165 acres with a border that ends at the Section 10 western and southern
boundaries. McDermott, in contrast, argues the Connolly parcel is approximately 107
acres and only extends to a fence that runs along the western and southern portion of
Section 10, plus a portion (the 24-acre Connolly defect) that connects the southeastern
portion of the Connolly parcel to other land owned by Connolly in the adjacent Section
15. In September 2013, McDermott sued to quiet title to the disputed portions of Section
10 and to eject Connolly; Connolly cross-complained for the same relief.
1 “The Public Land Survey System (PLSS) is a way of subdividing and describing
land in the United States. All lands in the public domain are subject to subdivision by
this rectangular system of surveys, which is regulated by the U.S. Department of the
Interior, Bureau of Land Management (BLM). [¶] . . . [¶] The PLSS typically divides
land into 6-mile-square townships, which is the level of information included in the
National Atlas. Townships are subdivided into 36 one-mile-square sections. Sections can
be further subdivided into quarter sections, quarter-quarter sections, or irregular
government lots. . . .” ( [as of Dec.
13, 2019], archived at .)
2
After a bench trial in July 2016, the trial court awarded Connolly the disputed 58
acres under the agreed boundary doctrine, in part based on testimony from Mark
Connolly (Mark) regarding statements made by his father Robert Connolly (Robert)
about the background and intent of the parties in doing the 1958 transaction. Robert had
negotiated the deal on behalf of his mother Ann Connolly (Ann), who was a predecessor
in interest to Connolly.
On appeal, McDermott contends the trial court erred in admitting the testimony
regarding Robert’s hearsay statements under Evidence Code section 1323.2 He further
argues that the remaining evidence is insufficient to support the trial court’s judgment
because the deed and related documents reflect the parties’ intent to grant Connolly the
smaller parcel. Finally, McDermott asserts that the trial court abused its discretion in
awarding attorney’s fees after finding that McDermott had unjustifiably failed to admit
certain requests for admission. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The 1958 transaction
Prior to the 1958 transaction, McDermott’s predecessors in interest owned
approximately 75 percent of Section 10 (about 480 acres), while Connolly’s predecessors
in interest owned approximately 25 percent (about 160 acres). The parcel owned by
Connolly’s predecessors in interest was on Section 10’s southern border, roughly in the
middle of the southern half of the section. Connolly’s predecessors in interest also
owned Sections 9, 15, and 16, which bordered Section 10 to the west, south, and
southwest.
In 1958, the parties exchanged land within Section 10. Ann granted to Thomas
McDermott “[t]he East one-half of the Southwest Quarter and the West one-half of the
2 Undesignated statutory references are to the Evidence Code.
3
Southeast Quarter of Section 10,” except for “any portion of the 107.27 acre parcel of
land lying within the above described premises.” The grant deed provided a detailed
description of the excepted 107.27 acres as “[b]eginning at a point on the West line of
Section 10.” The description included portions “along the South line of Section 10 to the
Southwest corner of Section 10,” and then turned north “along the West line of Section
10 to the point of beginning, containing 107.27 acres, more or less.” Thomas executed a
corresponding grant deed granting Ann the excluded parcel.
The civil engineering firm R.W. Siegfried and Associates prepared a property
description and a sketch of the Connolly parcel. The sketch (referred to as the Siegfried
drawing) included markings for the fence lines on the southern and western borders of the
Connolly parcel, noting “Fence on Section Line.” In an accompanying letter (referred to
as the Siegfried letter), the firm representative described the parcel as the “portion of
Section 10 lying southerly and westerly of Carnegie Ridge. The description follows our
traverse line along Carnegie Ridge and along the fence lines on the south and west sides
of the parcel. The above fence lines are assumed to be the south and west Section lines
of Section 10 respectively.”
2. The 1983 litigation, 2009 survey, and instant litigation
In 1983, the Connollys filed suit against the McDermotts seeking to quiet title to
an easement that passed through McDermott’s portion of Section 10. The trial court in
the 1983 action ultimately denied the Connollys’ claim. Mark, who represented Connolly
and Ann’s estate in the 1983 litigation, testified at trial that there was no dispute about the
1958 transaction in 1983. Mark did not recall whether he had an interest in Connolly at
the time of the 1983 litigation. There was a drawing prepared for the 1983 litigation
stating that the Connolly parcel in Section 10 was 107 acres; Mark testified at trial that
the diagram had nothing to do with the issues disputed in the current action.
In 2009, the fence on the western side of Section 10 was damaged in a fire.
McDermott hired Jon Lamb to survey the area so that the fence could be rebuilt on the
4
section line. After Lamb discovered that the fence was not originally built on the section
lines, he was hired to establish the boundaries of Section 10. Lamb was not aware of any
survey of Section 10 prior to 2009. Lamb testified at trial that before his survey, the only
other way to determine the boundaries of Section 10 would have been to refer to the
United States Geological Survey (USGS) quad sheets. However, the USGS maps would
not show the acreage.
In 2013, McDermott filed suit to quiet title to the portions of Section 10 that it
argued were deeded to it. McDermott also claimed ejectment and damages, declaratory
relief, breach of implied contract and unjust enrichment, and trespass. Connolly cross-
complained, seeking to quiet title to the disputed portions of Section 10 and for
declaratory relief. Connolly also sought attorney’s fees. In July 2015, the trial court
granted Connolly’s motion for summary judgment as to McDermott’s claims of breach of
implied contract/unjust enrichment and trespass.
3. Trial testimony from Jon Lamb and Mark Connolly
Lamb testified at trial that in his opinion the parties’ intent in 1958 was to “grant
the property to the south and west of Carnegie Ridge and bounded on the west by the
west line of Section 10 and on the south by the south line of Section 10.” Lamb based his
opinion on observing the site and noting that the “intent was to provide the ability to
build a road down the top of the ridge and to separate the property to the south and west
of that incorporated in with the Connolly Ranch.” Lamb noted that there was a road on
the ridge that was very close to the ridge fence line and followed the jagged northern and
western border shown in the Siegfried drawing. Lamb did not think the parties intended
in 1958 to create a landlocked parcel or a gap between the Connolly parcel in Section 10
and the other adjacent lands owned by Connolly.
With respect to the 24-acre Connolly defect running along part of the southern
border of Section 10, Lamb testified that the boundaries were drawn based on the fence
and the road running down Carnegie Ridge. However, the Connolly defect was not
5
reflected in the legal description. In addition, the parties in 1958 did not intend to create
a gap between the McDermott property in the southern portion of Section 10.
Still, Lamb understood the 1958 transaction to grant only 107.27 acres to
Connolly’s predecessors in interest. Lamb testified that the property description and
Siegfried drawing reflected that the Connolly parcel only included 107.27 acres and did
not extend to the western or southern section boundary lines. In addition, the tax
assessor’s map of Section 10 states that the Connolly parcel is 107 acres. Lamb
acknowledged that the tax assessor’s map was not intended to be an actual survey
reflecting the actual acreage owned in a particular section. Lamb testified that with
respect to legal descriptions of real property, intent was the most important factor, then
the words, and then the area.
Lamb calculated that if the Connolly parcel were to include the disputed lands and
run to the southern and western border, it would amount to 165 acres. Such a figure was
“beyond what you would expect” as a “plus or minus” from the deed’s description of the
Connolly parcel as “containing 107.27 acres, more or less.” In sum, Lamb found nothing
in the deed, Siegfried letter, or Siegfried drawing that led him to believe the parties
intended to deed 165 acres to Connolly’s predecessors in interest.
Lamb testified that it was possible for the Connolly parcel to remain at 107 acres
and still extend to the western and southern Section 10 borders, by “shov[ing]” it into the
southwest corner of the section. Lamb acknowledged this would move the parcel border
away from the existing fences, ridge, and road.
Lamb further testified that the surveyor in 1958 would have realized that the
southern and western fences were not on the USGS section boundaries. The southern
fence/boundary line as shown in the Siegfried drawing was seven degrees from where it
should have been if it were on the USGS boundary. This deviation was “very
significant.” In addition, the western boundary line in the Siegfried drawing was about
657 feet short of the standard section boundary length, a “sizeable difference.”
6
During trial, Mark testified that the description in the 1958 grant deed was
“internally inconsistent” and “an impossibility.” Although the deed stated the Connolly
parcel was within the USGS boundaries (and not the fence lines), the description
“accurately located” the parcel on the fences running along the southern and western
edges of the parcel. Mark further testified that the parties “would have known” in 1958
that the fences on the western and southern edges of the Connolly parcel did not run
absolutely to the USGS boundaries because they were not straight. In Mark’s opinion,
the deed description reflected the surveyor’s use of the fence lines as the best evidence of
the USGS boundaries.
Mark testified that if McDermott was given everything that was not within the
Siegfried drawing and description, the Connolly parcel would be landlocked with narrow
strips owned by McDermott extending all the way around. Such a result would “defeat[]
the purpose of the 1958 exchange.”
4. Mark Connolly’s testimony at trial regarding Robert Connolly’s statements
Mark also testified that his father Robert worked on the family ranch from the end
of World War II until his death in 1991. Robert negotiated the 1958 transaction on his
mother Ann’s behalf. Starting when Mark was approximately eight years old, he and
Robert would often talk about the ranch and the 1958 transaction. Mark was one year old
at the time of the 1958 transaction.
Robert told Mark that there had “always [been] problems with the McDermotts.”
The McDermotts poached, hunted, and grazed their animals without permission on
Connolly lands. Both parties also used a road that ran along Carnegie Ridge to the
southern border of Section 10; the road was partly on McDermott’s lands and partly on
Connolly’s. In addition, the Connolly family was unable to use its land in Section 10 for
grazing because there was no fence separating its land from McDermott land.
Robert told Mark that by 1958 he had grown frustrated. The parties considered
putting up a fence or having the McDermotts pay rent, but ultimately settled on a land
7
swap. Robert said his “objective” was to “create a defensible position from this trespass
and hunting problem that he was having.” The parties agreed the McDermotts would get
the Connolly family’s existing lands in Section 10 and Connolly’s predecessors in
interest would get “everything to the south and west” of a fence that would run along the
top of Carnegie Ridge. There would be enough room on Carnegie Ridge for each party
to build a road on its own side, thereby preventing roadway access to the other’s property
along Carnegie Ridge. Mark testified that after the transaction, “anybody who crossed
the fence, other than in a fire or some kind of an emergency, was going to be arrested or
turned around.” Mark currently used the road to access his home.
Robert told Mark that the parties intended that the deal be “based on the fence
lines.” Although the parties knew that the fence lines were not “exactly” on the USGS
boundaries, they wished to avoid the expense of surveying the entire 160 acres of the
proposed Connolly parcel. Instead, they chose to survey using the ridge and existing
fence lines as “being close enough” for their purposes. Robert was unaware of any
survey that was done before the exchange.
According to Mark, Robert also said the parties intended to make the exchanges of
acres “close to even,” so as to avoid paying any funds. Robert never told Mark that any
funds were paid. Robert also “never provided an acreage figure” with respect to the
swap. Even though the deed did not refer to the fence lines, the coordinates in the
description match the location of the fence.
McDermott objected to Mark’s testimony regarding Robert’s statements as
hearsay. McDermott argued Mark was not trustworthy. Connolly argued the testimony
was admissible pursuant to sections 1323 and 1250. The trial court found the testimony
admissible as an exception to the hearsay rule pursuant to section 1323. The trial court
noted that Robert had personal knowledge of the 1958 transaction because he negotiated
the exchange. Robert was deceased and therefore unavailable. In addition, there was “no
credible evidence” that Robert’s statements were untrustworthy. Robert’s statements to
8
Mark were made before the 1983 litigation, which “dealt with a different issue.” The
trial court reasoned that even if the two had discussed the 1958 transaction again during
the 1983 lawsuit, the issue of who owned the now disputed lands did not arise until 2009.
Robert’s statements were simply “his view as to why the exchange of the property was
made,” and they “coordinate well with the other testimony.”
5. Judgment
In October 2016, the trial court found against McDermott on its claims and in
favor of Connolly on the claims in its cross-complaint. Relying on Lamb’s testimony, the
trial court held that the “mutual intent of the parties in 1958 was to give to [Connolly’s
predecessors in interest] all the property to the west and south of the existing fence lines”
on the southern and western edges of the Connolly parcel. Lamb also testified that the
parties in 1958 did not intend to create a gap between the McDermott property on the
south side of Section 10 by granting Connolly the Connolly defect. In addition, the
parties “ ‘assumed’ ” the existing fence lines to be on the USGS boundaries. The
Siegfried drawing also stated twice “ ‘Fence on Section Line,’ ” indicating that the parties
intended the Connolly parcel to “be at the intersection of Sections 9, 10, 15, and 16.”
The trial court reasoned that Robert similarly told Mark that the parties’ intent in
1958 was for the McDermotts to “give up everything to the south and west of the fence”
along Carnegie Ridge. The effect of the deal was to give a “ ‘defensible position’ ” to
Connolly’s predecessors in interest from any trespass or hunting, and exclusive access to
a roadway. Mark also testified that he understood the 1958 transaction to have given
Connolly’s predecessors in interest the 107.27 acres as described on the map, plus the
“50 plus acres” to the west and the south of the existing fence lines.
In addition, reasoned the trial court, Connolly and its predecessors in interest have
had, since 1958, “exclusive possession, occupancy and control of all property west and
south of the fence line [along Carnegie Ridge] and have excluded [McDermott and its]
9
predecessors in interest from said property.” Since the 1958 transaction, neither
McDermott nor its predecessors had ever occupied or possessed the disputed lands.
The trial court further found that the parties’ payment of property taxes did not
create an implied contract whereby Connolly would only receive 107.27 acres because
the tax parcels were not the same as property subdivisions or boundary lines. In addition,
nothing from the 1983 lawsuit suggested McDermott was entitled to “any property to the
south of the fence line,” because the parties in 1983 did not distinguish between the fence
lines and the section lines.
The trial court denied McDermott’s claim for ejectment because McDermott had
failed to “prove by a preponderance of the evidence that it possessed the lands at the time
of the entry of [Connolly and its predecessors in interest].”
With respect to Connolly’s counter-claims seeking to “correct the deeds to match
the 1958 Agreed Boundary fence,” the trial court found that Connolly had established the
elements of the agreed boundary doctrine. There was “an uncertainty as to the location of
the true boundary when the fence was erected, . . . an agreement between the neighboring
property owners to employ the location of the fence as the means of establishing the
boundary, and . . . the acceptance and acquiescence in the line so fixed was made under
such circumstances that substantial loss would be caused by a change of its position.”
From 1958 to the present, Connolly and its predecessors in interest have had “exclusive
possession, occupancy and control of all property West and South of the fence line.”
The trial court continued: “Through the weight given to the testimony of Mark
Connolly, this court finds that the parties agreed to fix the boundaries between the
property on the West and South as the barbed wire fence that had historically been
recognized as the boundary.” The circumstantial evidence “outweigh[ed]” the property
description in the deeds because the descriptions were “based on information unknown
and unknowable at the time of the transfer.” Moreover, Lamb testified that the parties’
intent during the 1958 transaction was the “most important factor.”
10
6. Order granting Connolly attorney’s fees
In November 2016, Connolly moved for attorney’s fees pursuant to Code of Civil
Procedure section 2033.420 on the grounds that McDermott failed to admit the truth of
certain facts when requested to do so and Connolly later proved the truth of those facts at
trial. Connolly identified 22 requests for admission (hereafter RFA’s or requests) in its
motion. After a hearing, the trial court awarded cost of proof fees as to 13 requests, for a
total amount of $31,637.46.
DISCUSSION
I
McDermott contends the trial court erred in finding the evidence of Robert’s
statements trustworthy and admissible under section 1323, which provides: “Evidence of
a statement concerning the boundary of land is not made inadmissible by the hearsay rule
if the declarant is unavailable as a witness and had sufficient knowledge of the subject,
but evidence of a statement is not admissible under this section if the statement was made
under circumstances such as to indicate its lack of trustworthiness.” (§ 1323.) According
to McDermott, the statements also were not admissible under sections 1251, 356, or
1241. McDermott further argues that admission of the statements was prejudicial
because it is reasonably probable that the result would have been different given the
remaining evidence.
Even though the text of section 1323 only requires the court to consider the
statement’s “trustworthiness,” McDermott argues the trial court was required to exclude
the evidence because Robert had an interest in the disputed land at the time he made his
statements. As the parties acknowledge in their briefs, there is no published authority
interpreting section 1323 or its trustworthiness requirement.
1. Standard of review
We review a trial court’s decision to admit evidence for abuse of discretion.
(Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) Here, the trial court’s decision
11
to admit the evidence was based on its understanding that it could admit Robert’s
statements under section 1323 if there were indicia of trustworthiness, and that a
declarant’s interest in the disputed boundary does not automatically make the statement
inadmissible. The proper interpretation of a statute is a question of law and subject to de
novo review. (See, e.g., Ghirardo v. Antonioli (1994) 8 Cal. 4th 791, 799-800.)
2. Analysis
The fundamental task of statutory construction is to “ ‘ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute.’ ” (Allen v. Sully-Miller
Contracting Co. (2002) 28 Cal. 4th 222, 227.) In doing so, courts should look first to the
statutory language, “because it generally is the most reliable indicator of legislative
intent.” (Ibid.) Where the intent is clear from the language itself, the court will not look
beyond the plain meaning; “ ‘the Legislature is presumed to have meant what it said, and
the plain meaning of the statute governs.’ ” (Stephens v. County of Tulare (2006) 38
Cal. 4th 793, 802.)
We turn to the text of section 1323 to apply the foregoing principles.
“Trustworthy” means “worthy of confidence” and “dependable.” (Merriam-Webster’s
Collegiate Dict. (11th ed. 2006) p. 1344, col. 2.) “Trustworthiness” is defined as the
“ability to be relied on as honest or truthful.” (Oxford Univ. Press
[as of Dec. 13, 2019], archived
at .) Rather than trying to define all the circumstances
under which evidence may be admitted under section 1323, the statute instead vests trial
courts with broad discretion to evaluate the entire record in a given case to determine
whether “the statement was made under circumstances such as to indicate its lack of
trustworthiness,” including a declarant’s potential interest in a disputed border and any
motive to lie. Had the Legislature’s intent been to make statements automatically
inadmissible if the declarant had an interest in the disputed boundary, it could have said
so. (Cf. § 1370 [identifying a nonexhaustive list of factors to consider in evaluating the
12
trustworthiness of otherwise inadmissible statements from an unavailable declarant
regarding the infliction or threat of physical injury upon the declarant].) This conclusion
is bolstered by courts’ interpretations of similarly worded statutes. For example, a
hearsay statement that would otherwise be admissible under the state-of-mind exception
(§ 1250, subd. (a)(1)) is inadmissible if made under circumstances that indicate the
statement’s lack of trustworthiness (§ 1252). As courts have explained, “[a] statement is
trustworthy within the meaning of section 1252 . . . when it is ‘ “made in a natural
manner, and not under circumstances of suspicion” ’ ” (People v. Harris (2013) 57
Cal. 4th 804, 844.)
Here, the trial court carefully evaluated all the evidence before it, including the
evidence of Robert’s (and Mark’s) stake in the outcome of the dispute, and was
persuaded by the fact that Robert’s statements were made well before any boundary
dispute arose. In addition, Robert’s statements were simply “his view as to why the
exchange of the property was made,” and “coordinate[d] well with the other testimony.”
Further, they were made in a “natural manner,” i.e., in conversations about the history of
the property between father and son at a time when no boundary dispute existed.
McDermott argues that a statement is inadmissible under section 1323 if the
declarant has an interest in the disputed land, citing the 1965 Law Revision Commission
Comments to the statute, which note that the section “codifies existing law found in such
cases as Morton v. Folger [(1860) 15 Cal. 275], and Morcom v. Baiersky [(1911) 16
Cal. App. 480].” As the comments suggest, however, Morton and Morcom were
published long before section 1323 came into effect in 1967. More importantly, neither
case addresses the issue raised by McDermott, i.e., whether a declarant’s interest in land
mandates automatic exclusion. “It is axiomatic that cases are not authority for
propositions that are not considered. [Citations.]” (California Building Industry Assn. v.
State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043.)
13
In Morton, for instance, the court considered whether the deposition of a deceased
surveyor was admissible as hearsay evidence of the location of land boundaries when the
deposition had been taken in a different action between the parties. (Morton v. Folger,
supra, 15 Cal. at pp. 277-279.) Noting that such evidence had long been admissible in
England and other American states, the court held that “the declarations on a question of
boundary of a deceased person, who was in a situation to be acquainted with the matter,
and who was at the time free from any interest therein, are admissible.” (Id. at p. 280; see
also Cornwall v. Culver (1860) 16 Cal. 423, 428 [reaffirming holding of Morton]). At
best, Morton stands for the proposition that an interest in property might be one factor to
consider under the statute. And here, the trial court evaluated the overall trustworthiness
of Robert and Mark Connolly’s statements, including evidence of their interest in the
property.
Similarly, in Morcom, the court held that the trial court properly admitted a map
prepared by a surveyor in 1870 that tended to corroborate the testimony of witnesses at
trial regarding the location of a city boundary line. (Morcom v. Baiersky, supra, 16
Cal.App. at pp. 482-483.) During trial, the map was “identif[ied]” by a different surveyor
who had checked a large part of the map by actual surveys and was “quite positive that
[the map] was correctly made.” (Id. at pp. 482, 483.) The surveyor also testified that the
map had been used as a reference map by surveyors for “a good many years.” (Id. at p.
483.) The court stated in dictum that if the record had established that the original
surveyor was deceased at the time of trial, there would have been “ample ground” to
admit the map pursuant to the rule set out in Morton. (Morcom v. Baiersky, supra, at p.
483.) This case also does not establish a per se rule against admission of statements
made by declarants with an interest in the subject land.
In sum, based upon the text of section 1323, we conclude the trial court did not
abuse its discretion in finding the evidence of Robert’s statements trustworthy and
14
admissible. Accordingly, we need not reach McDermott’s argument that the evidence
was inadmissible under other hearsay exceptions, or that its admission was prejudicial.
II
McDermott raises a number of other challenges to the judgment.
1. Evidence supporting McDermott’s claim of ejectment
McDermott argues the trial court erred in denying McDermott’s ejectment claim
because it improperly concluded McDermott had failed to meet its burden of proof that it
more likely than not owned and possessed the disputed lands at the time of the entry of
Connolly’s predecessors in interest. (See Baugh v. Consumers Associates, Ltd. (1966)
241 Cal. App. 2d 672, 675, superseded by statute on other grounds as noted in WDT–
Winchester v. Nilsson (1994) 27 Cal. App. 4th 516, 526 [the essential elements of an
ejectment action are (1) the plaintiff’s valid interest in the property and (2) the
defendant’s wrongful possession and withholding of it].) According to McDermott, the
trial court’s finding was based on Mark’s hearsay testimony regarding Robert’s
statements. Given our conclusion that the trial court did not err in admitting this
evidence, McDermott’s contentions are without merit.
2. Evidence of agreed boundary doctrine
McDermott further challenges the judgment by arguing Connolly failed to
establish the application of the agreed boundary doctrine. The doctrine only applies if
there is “ ‘[1] an uncertainty as to the true boundary line, [2] an agreement between
coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so
fixed for a period equal to the statute of limitations or under such circumstances that
substantial loss would be caused by a change of position.’ ” (Bryant v. Blevins (1994)
9 Cal. 4th 47, 55.) Courts have explained that the doctrine “should not be applied broadly
to resolve boundary disputes where there is no evidence that the neighboring owners
entered into an agreement to resolve a boundary dispute and where the true boundary is
ascertainable from the legal description set forth in an existing deed or survey.” (Ibid.)
15
McDermott first argues the trial court erred because its finding was primarily
based on the erroneous admission of evidence regarding Robert’s statements. Given our
conclusion that such evidence was admissible, we reject McDermott’s contention.
McDermott next argues there was no evidence to support that the parties agreed to
use the fence along Carnegie Ridge as the means of establishing the boundary.
According to McDermott, the parties only “agre[ed] to exchange parcels extended to the
section line and believed the fence was on the section line.”
Despite McDermott’s contentions, the record supports the finding that the fence
along Carnegie Ridge served as the agreed boundary between the parties’ parcels starting
in 1958. Prior to the 1958 exchange, McDermott owned land in the southwestern corner
of Section 10, and the boundary between this land and Connolly’s lands in the adjacent
sections was uncertain. Robert was unaware of any survey that was done before the 1958
exchange, and he told Mark that the parties knew the fence lines near the southwest
corner of Section 10 were not “exactly” on the USGS boundaries. The parties’ lack of
knowledge of the exact boundary is indicated by the surveyor’s notation that it was
assumed that the southern and western fence lines were on the Section 10 border.
That the parties agreed to mark the new border between their lands with the fence
along Carnegie Ridge is reflected in the deed and the 1958 Siegfried drawing, as well as
by the parties’ acceptance and acquiescence of the new border. Mark testified that after
the transaction, “anybody who crossed the fence, other than in a fire or some kind of an
emergency, was going to be arrested or turned around,” indicating that each party treated
the land on its side of Carnegie Ridge as its own after 1958. In sum, we find the trial
court properly found that Connolly had established the application of the agreed
boundary doctrine.
3. Trial court’s interpretation of the transaction and the parties’ intent
McDermott challenges the judgment on the basis that the language of the deed and
the Siegfried letter and drawing establish the true intent of the parties, namely, to set the
16
borders of the Connolly parcel on the western and southern borders of Section 10 under
the assumption that the fence lines were either on or very close to the section lines, plus
the 24-acre Connolly defect. McDermott points to the statement in the deed that the
Connolly parcel was to be only 107.27 acres (more or less), with McDermott’s
predecessors in interest to receive 533 acres (more or less). McDermott argues the trial
court improperly failed to first look at the language of the deed and construe it in light of
any extrinsic evidence that could prove a meaning to which the language of the
instrument is reasonably susceptible.
Like any contract, the primary object in interpreting a deed is to “ ‘ascertain and
carry out the intention of the parties.’ ” (City of Manhattan Beach v. Superior Court
(1966) 13 Cal. 4th 232, 238; Civ. Code, § 1066 [in general, grants are to be interpreted in
the same manner as contracts].) “ ‘Extrinsic evidence is “admissible to interpret the
instrument, but not to give it a meaning to which it is not susceptible” [citations], and it is
the instrument itself that must be given effect.’ ” (City of Manhattan Beach, at p. 238.)
The deed’s description of the Connolly parcel stated that it began at a point on the
west line of Section 10, included portions along the south section line to the “Southwest
corner of Section 10,” then turned north “along the West line of Section 10 to the point of
beginning, containing 107.27 acres, more or less.” Mark testified that despite stating that
the Connolly parcel extended to the USGS boundaries, the deed description actually
located and described the fence lines. In addition, Lamb testified that the Connolly parcel
would amount to 165 acres if it were to run to Section 10’s southern and western borders,
a sum that was beyond a “plus or minus” of 107.27 acres. Accordingly, the deed was
susceptible to granting the 107.27 acres contained within all the fences, or the 165 acres
bordered by Carnegie Ridge and the section lines. Moreover, Connolly was arguing that
the description in the deed was inaccurate under the agreed boundary doctrine. We
conclude the trial court did not err in considering extrinsic evidence such as the Siegfried
documents and testimony from Lamb and Mark to determine the parties’ intent.
17
To the extent McDermott is arguing that the judgment is not supported by
sufficient evidence, we also disagree. Robert stated that his “objective” was to “create a
defensible position” from McDermott’s trespassing. Although the deal was “based on the
fence lines,” the parties knew the fences were not “exactly” on the section lines. Robert
also stated that the parties intended to grant Connolly’s predecessors in interest
“everything to the south and west” of the fence along the top of Carnegie Ridge. Lamb
similarly testified that, in his opinion, the parties’ intent in 1958 was to “grant the
property to the south and west of Carnegie Ridge and bounded on the west by the west
line of Section 10 and on the south by the south line of Section 10.” Under the
circumstances, we reject McDermott’s contentions.
III
If a responding party is found to have unreasonably denied an RFA, he or she may
be ordered to pay the costs and fees incurred by the requesting party in proving the matter
at trial. McDermott challenges the trial court’s award to Connolly of $31,637.46 in
attorney’s fees, the cost incurred in proving certain matters at trial. We find no abuse of
the trial court’s discretion.
Under Code of Civil Procedure section 2033.420, “[i]f a party fails to admit the
genuineness of any document or the truth of any matter when requested to do so under
this chapter, and if the party requesting that admission thereafter proves the genuineness
of that document or the truth of that matter, the party requesting the admission may move
the court for an order requiring the party to whom the request was directed to pay the
reasonable expenses incurred in making that proof, including reasonable attorney’s fees.”
The court “shall” award fees unless “(1) An objection to the request was sustained or a
response to it was waived under Section 2033.290[;] [¶] (2) The admission sought was of
no substantial importance[;] [¶] (3) The party failing to make the admission had
reasonable ground to believe that that party would prevail on the matter[; or] [¶]
18
(4) There was other good reason for the failure to admit.” (Code Civ. Proc., § 2033.420,
subd. (b).)
“The purpose of requests for admissions is to expedite trial by ‘setting at rest a
triable issue so that it will not have to be tried.’ [Citations.] If there was no reasonable
basis to deny the requests, . . . then that is exactly why an award is proper.” (Grace v.
Mansourian (2015) 240 Cal. App. 4th 523, 532.) “ ‘The determination of whether “there
were no good reasons for the denial,” whether the requested admission was “of
substantial importance,” and the amount of expenses to be awarded, if any, are all within
the sound discretion of the trial court. [Citation.]’ [Citations.]” (Bloxham v. Saldinger
(2014) 228 Cal. App. 4th 729, 753.) “ ‘An abuse of discretion occurs only where it is
shown that the trial court exceeded the bounds of reason. [Citation] It is a deferential
standard of review that requires us to uphold the trial court's determination, even if we
disagree with it, so long as it is reasonable. [Citation.]’ [Citation.]” (Ibid.)
As to each of the contested RFA’s, the trial court found that McDermott failed to
admit the matter in question, requiring Connolly to elicit the facts at trial. The trial court
further found that there was “no objection to the request or that a response was waived;
that the admission sought was of substantial importance to the issues at trial; that
[McDermott] had no reasonable ground to believe that it would prevail on the matter; and
that the [sic] there was no other good reason for the failure to admit.” With respect to
RFA Nos. 18 and 19, the trial court also noted that McDermott failed to amend its
response before trial, despite Mark’s 2015 declaration stating facts claiming to refute
McDermott’s response.
1. RFA Nos. 10 and 11
RFA Nos. 10 and 11 sought admissions regarding the use by Connolly and
McDermott’s predecessors in interest of land in and around Section 10 during the five-
19
year period prior to the 1958 transaction.3 In February 2014, McDermott responded to
each of these RFA’s that it was “unable to admit or deny this request. A reasonable
inquiry concerning this matter has been made and the information known or readily
obtainable is insufficient to enable responding party to admit this matter.”
In February 2015, Connolly filed a declaration from Mark describing Robert’s
statements to Mark that (1) the McDermott family poached and grazed in the Connolly
family’s lands prior to 1958, and (2) there was a “frequently traveled road” along the top
of Carnegie Ridge. Robert also said that the parties agreed in 1958 to exchange property
within Section 10 so as to establish a new boundary between their lands at the fence
along Carnegie Ridge; the parties had maintained that boundary since the 1958
transaction. Mark also stated that the section boundary lines were unknown to the parties
in 1958 and had not been surveyed.
In opposing Connolly’s motion, McDermott argued the members of its LLC were
either unborn or between the ages of one and five in 1958, making them too young to
have had any knowledge of the events during or prior to 1958. Although its members
had “looked through all documents available to them[,] no information was located that
would allow [McDermott] to admit or deny this request.” In addition, McDermott did not
have knowledge of Robert’s statements about the issue until Mark’s 2015 declaration,
which was filed after McDermott originally responded to the RFA’s. Finally, McDermott
argued the issue was not of substantial importance to the case.
3 RFA No. 10 read: “For at least 5 years prior to January 1, 1958[,] Predecessor’s in
interest to Connolly Ranch, Inc. and its guests, invitees and agents traveled along the
Carnegie Ridge through the parcels of Section 10, . . . owned by Thomas F. McDermott
and the ‘CONNOLLY SECTION 10 160 ACRES’.”
RFA No. 11 read: “For at least 5 years prior to January 1, 1958[,] Thomas F.
McDermott and his guests, invitees and agents grazed and hunted the un-surveyed,
unmarked and unfenced ‘CONNOLLY SECTION 10 160 ACRES’.”
20
Three members of the McDermott family each filed a supporting declaration in
April 2017 that included their birthdates. Each declarant also stated that he had “no
knowledge of any oral communications between Robert Connolly and Mark Connolly” in
February 2014, and believed McDermott would likely prevail in the lawsuit based on the
written documents entered as evidence during trial.
During the May 2017 hearing, the trial court reasoned that even if McDermott did
not know about the use of the land in Section 10 prior to 1958 when it originally
responded to RFA Nos. 10 and 11, it knew about Robert’s statements when Mark’s 2015
declaration was filed.
McDermott contends no attorney’s fees should have been granted with respect to
RFA Nos. 10 and 11 because it was unable to respond. Similar to its argument in the trial
court, McDermott argues members were either not yet born or were under the age of five
between 1953 and 1958, making it impossible for them to have direct knowledge of the
issue.4 In addition, according to McDermott, the issue of land use prior to 1958 was not
of substantial importance to the case, did not require time at trial to prove, and was only
supported by hearsay testimony from Mark regarding Robert’s statements.
On the record before us, we find no abuse of discretion in the trial court’s
determination that the requested admission was of substantial importance. Connolly’s
fundamental assertion was that the deed failed to describe the parties’ agreed boundary,
namely, Carnegie Ridge. At trial, Connolly argued that McDermott’s history of poaching
and grazing had led Connolly’s predecessors in interest to want to create a defensible
barrier, while still allowing each side to build a road along Carnegie Ridge. As such, the
4 Connolly argues McDermott has forfeited the issue by failing to summarize all the
facts in the light most favorable to the judgment. Regardless, we will proceed to the
merits.
21
parties’ actions and use of the lands at issue in the years preceding the 1958 transaction
were substantially important to establishing their intent and agreement.
In addition, the trial court was within its discretion under the applicable standard
in determining that McDermott did not have a good reason for maintaining its denial after
receiving Mark’s 2015 declaration and failing to present any contrary evidence at trial.
As courts have explained, a party responding to requests for admissions has a “duty to
make a reasonable investigation to ascertain the facts even though the party has no
personal knowledge of the matter when the party has available sources of information as
to the matters involved in such requests for admissions.” (Brooks v. American
Broadcasting Co. (1986) 179 Cal. App. 3d 500, 510; see also Bloxham v. Saldinger, supra,
228 Cal.App.4th at p. 752 [“ ‘[w]here it becomes clear from evidence introduced by
either party at trial that the party who denied for lack of information or belief had access
to the information at the time requests for admissions were propounded, sanctions are
justified because that party has a duty to investigate’ ”].)
Even if a party “justifiably” denies a request for admission given the information
available at the time of the denial, it may later learn of additional facts or information
which would have called for the request to be admitted if the information had been
known at the time of the denial. In such a situation, if the party “stands on the initial
denial and then fails to contest the issue at trial,” a trial court would be “well justified in
finding that there had been no good reasons for the denial, thus mandating the imposition
of sanctions.” (Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 510.)
In sum, we conclude the trial court did not abuse its discretion in awarding expenses
against McDermott for its responses to RFA Nos. 10 and 11.
2. RFA Nos. 15, 17-19
RFA No. 15 asked McDermott to admit that “[a]t all times prior to January 1,
2009[,] the section line boundaries of Section 10 were uncertain.” McDermott
responded: “Responding Party admits it did not survey or mark Section 10 prior to the
22
Lamb Record of Survey and has no knowledge of any other surveys or markings at the
corners of Section 10, except a corner marking near the actual Southeast corner in the
form of a rock pile and a marking near the Southwest corner of Section 10. Responding
Party admits to receiving written notification of an application Referral from the County
of San Joaquin dated May 2, 2003 in connection with a minor subdivision application by
[Connolly] on Section 15.”
RFA Nos. 17 through 19 asked McDermott to admit facts regarding the agreed
boundaries within Section 10, the location of those boundaries, and the parties’ use of a
parcel exchange.5 McDermott responded to each of these RFA’s as follows:
“Responding Party admits that Robert J. Connolly hired Siegfried to survey the Carnegie
Ridge and that Siegfried and the parties incorrectly assumed the fence lines along the
5 RFA No. 17 asked McDermott to admit that “[i]n 1958 Robert J. Connolly,
representing Ann R. Connolly, entered into an agreement to [sic] with Thomas F.
McDermott to establish an agreed boundary between the McDermott Ranch parts of
Section 10 and the Connolly Ranch parts of Section 10.”
RFA No. 18 asked McDermott to admit that “[i]n 1958 Robert J. Connolly and
Thomas F. McDermott agreed that the 1958 Agreed Boundary would start at intersection
of the then existing fence near the unmarked and un-surveyed corner of Sections 3, 4, 9
and 10 located near the northwest corner of Section 10, proceed south along a then
existing fence to a point where the new Carnegie Ridge fence would begin and intersect
it, then along the Carnegie Ridge east and then south to a point where the new fence
intersected a then then [sic] existing fence which ran east/west near the southern section
line boundary of Section 10, and following said existing fence east until it no longer
bordered the McDermott Ranch. This 1958 boundary fence is shown on Exhibit A to the
Cross-Complaint.”
RFA No. 19 asked McDermott to admit that “[i]n 1958 Robert J. Connolly and
Thomas F. McDermott agreed that the 1958 Agreed Boundary would be accomplished by
a property trade with Thomas F. McDermott deeding to Ann R. Connolly all property
south and west of the 1958 Agreed Boundary and Ann R. Connolly would deed to
Thomas F. McDermott the ‘Connolly Ranch Section 10 160 acre parcel’ less any parts of
said parcel south and west of the 1958 Agreed Boundary.”
23
south boundary and the west boundary of Section 10 were on the Section 10 boundaries.
Responding party further admits that Robert J. Connolly and Thomas F. McDermott used
the resulting parcel, identified in Exhibit B to [McDermott’s] Complaint as the Connolly
Exchange Parcel, as the basis for an exchange by which Thomas McDermott deeded the
Northwest quarter of Section 10 and the Southwest half of the Southwest quarter of
Section 10 to Ann R. Connolly in exchange for the Connolly Exchange Parcel.”
During the hearing, McDermott argued it had admitted RFA No. 15. The trial
court disagreed, finding that McDermott had not “clearly admitted” RFA No. 15, despite
failing to contend during trial that the boundaries were certain before 2009. The court
described McDermott’s response as “giv[ing] certain information, and [leaving] the
requesting party wondering, well, is there other information there that he has that he’s
going to use to prove that the boundaries were certain before those times?”
McDermott also argued during the hearing that it had admitted RFA Nos. 17
through 19. Connolly argued McDermott’s answer responded with a set of facts but
failed to admit certain elements of the agreed boundary doctrine, the key portion of
Connolly’s claims.
McDermott contends the trial court erred in awarding expenses with respect to
RFA No. 15 because it admitted that prior to January 1, 2009, the section line boundaries
were not known. As to RFA Nos. 17 through 19, McDermott further argues it “admitted
as fully as possible with the information and belief permitted.” McDermott reiterates that
its members were either not yet born or were very young in 1958 and would not have
knowledge about the events. McDermott further argues it should not have been forced to
admit the application of the agreed boundary doctrine, especially since it believed it
would prevail at trial.
Despite McDermott’s contentions, the trial court did not abuse its discretion in
determining that McDermott had failed without justification to admit RFA No. 15.
McDermott’s response that it “did not survey or mark Section 10” before Lamb’s 2009
24
survey, and that it had “no knowledge of any other surveys or markings,” fails to admit
that the section line boundaries of Section 10 were uncertain prior to January 1, 2009.
McDermott’s responses to RFA No. 17 through 19 similarly fail to admit the requested
information.
For the reasons stated above regarding RFA Nos. 10 and 11, we also reject
McDermott’s argument that it admitted RFA Nos. 17 through 19 as completely as
possible because its members were either not yet born or were very young in 1958 and
would not have direct knowledge about the events. Just as with RFA Nos. 10 and 11, the
trial court did not act outside its broad discretion in determining that McDermott did not
have a good reason for maintaining its response after receiving Mark’s 2015 declaration
and failing to present any contrary evidence at trial.
Finally, we reject McDermott’s contention that it should not have been forced to
admit the application of the agreed boundary doctrine. As courts have explained, a party
“ ‘cannot object’ ” to an RFA “ ‘simply by asserting that the request calls for a
conclusion of law.’ ” (Joyce v. Ford Motor Co. (2011) 198 Cal. App. 4th 1478, 1489; see
also Code Civ. Proc., § 2033.010 [allowing any party to a civil action to obtain discovery
“by a written request that any other party to the action admit . . . the truth of specified
matters of fact, opinion relating to fact, or application of law to fact”].) In sum, we
conclude the trial court did not abuse its discretion in awarding attorney’s fees due to
McDermott’s responses to RFA Nos. 15 and 17 through 19.
3. RFA No. 22
RFA No. 22 asked McDermott to admit that “[t]he parties to the 1958 transaction
marked and surveyed the new boundary on the Carnegie Ridge and the points it would
join and merge with the existing southern and eastern boundary fences of Section 10.”
McDermott responded: “Responding party admits that Siegfried and the parties wrongly
assumed they were connecting the surveyed Carnegie Ridge to the western and southern
boundaries of Section 10, which they believed to be along the existing fence lines.”
25
On appeal, McDermott argues it admitted as much as it could in response to RFA
No. 22, given the information it had and that the fact is based on Mark’s testimony about
Robert’s statements. McDermott also argues it had reasonable grounds to believe it
would prevail on the matter and that it was being asked to admit a legal issue.
Like its responses to RFA Nos. 15 and 17 through 19, McDermott’s response to
RFA No. 22 fails to admit (or clearly deny) the information requested. The admission
does not make clear whether McDermott admitted that the Carnegie Ridge boundary was
connected to the existing southern and eastern fences of Section 10. It also characterizes
the parties’ assumption about the boundaries as “wrong,” despite that not being asked in
RFA No. 22. The trial court did not act outside its discretion in determining that
McDermott did not have a good reason for maintaining this response, or that McDermott
had reasonable ground to believe that that it would prevail on the matter, given Lamb’s
testimony and description of the Connolly parcel as being 107.27 acres. In addition, for
reasons previously discussed, we reject McDermott’s argument that it could not respond
because it was being asked in RFA No. 22 to admit a legal issue. (Joyce v. Ford Motor
Co., supra, 198 Cal.App.4th at p. 1489 [a party may not object to an RFA on the basis
that it calls for a legal conclusion].)
4. RFA Nos. 28, 30-32
RFA Nos. 28 and 30 through 32 ask about the 1958 survey by Siegfried, including
its basis and the surveyor’s actions in establishing the boundaries and preparing the
property exchange description.
RFA No. 28 asked McDermott to admit that “[a]t no time in 1958 did the parties
to the 1958 transaction locate the section lines of Section 10, . . . relative to the new
Carnegie Ridge or existing fence lines.” McDermott responded: “Responding Party
admits it has no documents in its possession to indicate that the parties to the 1958
transaction correctly located the section lines of Section 10, . . . relative to the new
Carnegie Ridge or existing fence lines. Responding party further admits the parties
26
incorrectly assumed they were locating the Section 10 section lines on the existing fence
lines.”
RFA No. 30 asked McDermott to admit that “[i]n 1958 the surveyor Siegfried and
parties to the 1958 transaction ‘assumed’ the new fence joined the existing fences at the
section line boundary.” McDermott responded: “Responding Party admits the parties
incorrectly assumed they were locating the Section 10 section lines on existing fence
lines. Responding party further admits it has no documents in its possession to indicate
that the parties to the 1958 transaction correctly located the Section lines of Section
10, . . . relative to the new Carnegie Ridge or existing fence lines.”
RFA No. 31 asked McDermott to admit that “[t]he surveyor Siegfried in 1958
used the existing fences and new Carnegie Ridge fence to estimate or determine the
approximate acreage of the parcel to be deeded by Thomas F. McDermott to Ann R.
Connolly.” RFA No. 32 asked McDermott to admit that “[t]he surveyor Siegfried in
1958 did not use surveyed section lines to estimate or determine the approximate acreage
of the parcel to be deeded by Thomas F. McDermott to Ann R. Connolly.”
McDermott responded to RFA Nos. 31 and 32 as follows: “Responding Party
admits the parties incorrectly assumed they were locating the Section 10 lines on the
existing fence lines when creating the Connolly Exchange Parcel and estimating its
acreage.”
McDermott argues it admitted RFA Nos. 28 and 30 through 32. However, like its
response to RFA No. 22, McDermott equivocated and failed to admit or deny the
information requested in RFA Nos. 28 and 30 through 32. McDermott again
characterizes the parties’ assumption regarding the location of the fences as incorrect,
despite evidence that it was made knowingly. McDermott also does not address the
surveyor’s actions and assumptions, despite having access to the Siegfried letter,
drawing, and property description. Moreover, Lamb, who served as McDermott’s expert,
testified that the surveyor assumed that the fence lines were on the south and west section
27
lines of Section 10. McDermott also does not address the location of the fence lines,
despite the 2009 Lamb survey showing the existing fences were not on the section line
boundaries. In sum, we conclude the trial court did not abuse its discretion in awarding
attorney’s fees to Connolly based on McDermott’s responses to RFA Nos. 28 and 30
through 32.
5. RFA Nos. 35 and 38
RFA No. 35 asked McDermott to admit that “Thomas F. McDermott provided to
the San Joaquin County Assessor the areas of 120 acres, 173 acres and 80 acres for
parcels 15, 17 and 16 respectively as show on Exhibit J to YOUR Complaint.”6
McDermott responded: “Responding party is unable to admit or deny this request. A
reasonable inquiry concerning this matter has been made and the information known or
readily obtainable is insufficient to enable responding party to admit this matter.”
RFA No. 38 asked McDermott to admit that “[s]ince 1958 the parties and their
predecessors in interest have used new fence[s] along the Carnegie erected in 1958 and
the fence lines to which is joined on the west and south of Section 10, . . . as the agreed
boundary for in excess of 54 years.” McDermott responded: “Responding Party admits
that Robert J. Connolly hired Siegfried to survey the Carnegie Ridge and that Siegfried
and the parties incorrectly assumed the fence lines along the south boundary and the west
boundary of Section 10 were on the Section 10 boundaries. Responding party further
admits that Robert Connolly and Thomas McDermott used the resulting parcel, identified
in Exhibit B to the Complaint as the Connolly Exchange Parcel, as the basis for an
exchange by which Thomas deeded the Northwest quarter of Section 10 and the
Southwest half of the Southwest quarter of Section 10 to Ann Connolly in exchange for
6 Although the request for information references “Exhibit J” to the complaint, we
construe this request to relate to the assessor’s parcel map, which appeared with notations
as exhibits H and I to the complaint and McDermott’s exhibit 13 at trial.
28
the Connolly Exchange Parcel. Responding party further admits the fences have not been
moved since they were installed along the Carnegie Ridge in 1958, and that [McDermott]
and its predecessors assumed the fence lines on the western and southern boundary areas
were the Section 10 section lines until the Lamb Record of Survey was prepared.”
McDermott contends it could not respond to RFA No. 35 because it did not have
knowledge of Thomas McDermott’s actions. In addition, according to McDermott,
Connolly did not present any evidence that Thomas McDermott provided the information
to the assessor. However, Lamb (who testified on behalf of McDermott) testified at trial
that the assessor’s map would have been based on the Siegfried description, which was
directed by the parties. Lamb also testified that he had no knowledge that either Siegfried
or the assessor did anything other than take the number of acres in the Siegfried drawing
of 107.27 acres, subtract it from the assumed 640 acreage of a standard USGS section,
and assume that the remaining McDermott acreage was 533 acres. Moreover,
McDermott made no showing that it conducted a reasonable inquiry with respect to this
issue, other than stating it did so in its response. The trial court did not abuse its
discretion in finding that McDermott had no good reason for failing to admit or clearly
deny.
McDermott contends it admitted RFA No. 38, and Connolly relied on Mark’s
testimony regarding Robert’s statements to prove the issue at trial. We disagree because
McDermott’s response does not address the parties’ use of the fence as a border between
the Connolly parcel and McDermott’s lands, despite Mark’s 2015 declaration describing
the parties’ use of the fence along Carnegie Ridge as a border since 1958. Under the
circumstances, the trial court did not abuse its discretion in awarding attorney’s fees with
respect to RFA Nos. 35 and 38.
29
DISPOSITION
The judgment is affirmed. Connolly is awarded its costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1), (2).)
KRAUSE , J.
We concur:
DUARTE , Acting P. J.
RENNER , J.
30