Bloxham v. Saldinger

Filed 8/1/14/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JACQUES BLOXHAM et al., H038040
(Santa Cruz County
Plaintiffs, Cross-defendants and Super. Ct. No. CV159793)
Appellants,
v.
TODD SALDINGER et al.,
Defendants, Cross-complainants and
Appellants.
Jacques Bloxham (or Jack Bloxham) and Janette Magoc (the Bloxhams) and Todd
Saldinger and Barbara Saldinger, also known as Barbara Zylbert,1 (the Saldingers)
disputed the location of their common property lines. At trial, the determinative issue
was the location of the western boundary of the Shoquel Augmentation Rancho (more
recently denominated the “Soquel Augmentation Rancho”; hereinafter sometimes
“Rancho”), a line roughly seven miles long. The deed descriptions of the parties’ parcels
at issue called to that western boundary line of the Rancho (hereinafter “Rancho line”).
The exterior boundaries of the Rancho were surveyed by United States Deputy
Surveyor John Wallace in 1858, and the plat of the Rancho specified that it encompassed
over 32,702 acres. The corners, or termini, of the Rancho line are SA-2 (at the southerly
end) and SA-3 (at the northerly end). The parties’ surveyors reached different
conclusions about the location of the Rancho line and the parties’ common boundaries.
1
For the sake of clarity, we will refer to Barbara Zylbert as Barbara Saldinger in
this opinion.
1
Following a court trial, which included a judicial view of the property, the court
quieted title in favor of the Bloxhams. On appeal, the Saldingers contend that the survey
done by their surveyor, Stanley Gray, was sufficient as a matter of law because it
“sufficiently” utilized the original 1858 survey, while the survey done by the Bloxhams’
surveyor, Paul Jensen, was insufficient as a matter of law because it did not. We find no
basis for concluding that Jensen’s 2009 survey, upon which the Bloxhams relied at trial,
was insufficient as a matter of law.
In a cross-appeal, the Bloxhams maintain that the trial court abused its discretion
by denying their motion to recover their cost of proving the location of the common
boundary lines of the parties’ properties based on Barbara Saldinger’s failure to admit a
request for admission (See Code Civ. Proc., § 2033.420, subds. (a) & (b)). We find no
abuse of discretion.
Accordingly, we affirm the judgment.
I
Procedural History
The Bloxhams filed a verified complaint alleging causes of action for trespass,
quiet title, and injunctive relief. The Saldingers cross-complained. Their verified second
amended cross-complaint asserted causes of action for quiet title, slander of title,
trespass, and injunctive relief.
The case was tried to the bench. In addition to the evidence presented in the
courtroom, the judge visited Soquel Creek, a redwood “witness tree” stump toward the
southerly end of the Rancho line, a redwood “line tree” stump located near the properties
in dispute, the disputed area, and the Laguna Sarjento at the northerly end of the Rancho
line. The trial court determined that the Bloxhams’ surveyor, Jensen, “tied back” to the
original federal survey, and “the location of the Rancho line as shown by Jensen is
correct.” It concluded that the Bloxhams’ Parcel Four was senior to the Saldingers’
2
property and, consequently, the Bloxhams’ Parcel Four “must be located first along the
Rancho line before determining where the junior parcel, the Saldinger property, is
located” and “[a]ny overlap must be resolved in favor of Bloxham.”
After trial, the Bloxhams filed a motion for an order awarding costs of proof in the
amount of $123,196.58 for the failure of defendant Barbara Saldinger to admit facts in
response to a request for admission (see Code Civ. Proc., § 2033.420). The ground for
the motion was that defendants “had no reason to deny that the boundary between the
litigants’ property was as claimed by plaintiffs.” The Saldingers opposed the motion. By
order filed August 29, 2010, the trial court denied the motion.
The court’s statement of decision and judgment in favor of the Bloxhams with
respect to quiet title, slander of title, and injunctive relief was filed on February 14,
2012.2
II
Appeal
A. Background
The Bloxhams own real property, which includes Parcel Four, off Laurel Road.
The Del Dot family sold the first parcel of their lands, now Bloxhams’ “Parcel Four,” to
the Bloxhams’ grandparents, the Chabres. The Bloxhams’ property now includes
approximately 28 to 30 acres.
Predecessor owners of the Saldingers’ property, the ones who built the house on
the property, planted a line of cedar trees in the disputed area as a privacy screen. The
trees roughly marked the boundary line but there was never an agreement as to the exact
boundary line. In about late November 2004, Jack Bloxham discovered an excavation,
approximately 50 feet by 60 feet, west of the trees at the north end of the line of trees.
2
The parties indicate in their briefs that they agreed to dismiss their trespass causes
of action.
3
Jensen, a professional land surveyor for roughly 26 years, surveyed the Bloxhams’
property and testified on their behalf at trial. Martin Marcott, a professional land
surveyor licensed since 1975 and former Santa Clara County Surveyor, testified as an
expert on behalf of the Bloxhams.
Gray, a professional land surveyor licensed since 1992, surveyed the Saldingers’
property and testified on their behalf at trial. Walter Robillard, an attorney and member
of the Georgia bar, a registered land surveyor, and a forester, testified as an expert on
behalf of the Saldingers.
B. Bloxhams’ Parcel Four and Senior Rights
The parties’ properties are located in Santa Cruz County east of Highway 17. The
Bloxhams’ Parcel Four and the Saldingers’ “Parcel II” (hereinafter “Parcel Two”) share
common boundaries and both parcels are described in their respective grant deeds with
reference to the Rancho line and each parcel’s description begins and ends at a station on
the Rancho line.3 The Bloxhams’ Parcel Four is quadrilateral shaped and shares a
3
The grant deed description of Bloxhams’ Parcel Four provides: “Being a part of
the lands conveyed by Albert C. Schaeffer, et al., to Peter D. Del Dot and Laura Del Dot
by Deed Recorded February 28, 1944, . . . and further described as follows: [¶] Beginning
at a station on the southwest line of said lands, being also the southwest line of the
Rancho Soquel Augmentation from which the most western corner of said lands of Del
Dot bears north 28° 30’ west 502.0 feet distant; thence along the southwest line of said
lands of Del Dot, north 28° 30’ west 502.0 feet to said most western corner; thence along
the northwest line of said lands of Del Dot, north 45° 30’ east 260.0 feet to a station;
thence leaving last mentioned line and running parallel to first mentioned line, south 28°
30’ east 390.0 feet to a station; thence south 25° 11’ 22” west 310.13 feet to the place of
beginning.” (Italics added.) The grant deed description of the Saldingers’ Parcel Two
provides: “Part of the said land conveyed to Peter D. Del Dot and Laura Del Dot, . . . and
further bounded and described as follow: [¶] Beginning at a station on the Westerly
boundary line of the Soquel Augmentation Rancho, from which the intersection of the
said boundary line and the County Road known as Laurel Road bears South 28° 30’ East
617.33 feet distant, the said station being also the Northwest corner of the land of Riedel;
thence North 28° 30’ West 33.00 feet to a station; thence along the Southeasterly line of
the lands of Louis J. Chabre bearing North 25° 11’ East 310.13 feet to a station; thence
North 28° 30’ West 177.32 feet to a station; thence leaving the last mentioned course and
4
common boundary along its southerly boundary and part of its easterly boundary with the
Saldingers’ Parcel Two, which the Saldingers describe as a “small, hockey-stick-shaped
parcel” located between the Bloxhams’ Parcel Four and their “Parcel I” (hereinafter
“Parcel One”).4 The parties agree that the location of the Rancho line determines the
common boundaries of their properties.
At trial, there was no dispute that the Bloxham’s Parcel Four enjoys senior rights
over the Saldingers’ property. Gray, the Saldingers’ surveyor, explained, as to senior
rights, that “[i]n a meets [sic] and bounds legal description, the parcel that’s senior gets
[its] full width and length, and if there is an overlap the junior parcel would give way to
the senior parcel.” A respected treatise states: “If a grantor conveys part of his or her
land, he or she cannot at a later date convey more than his or her remainder. The first
buyer has what is known as senior rights, and the second buyer has junior or remainder
rights. The senior buyer is entitled to all land conveyed to him according to his
description; the junior buyer is entitled to all land conveyed to him, provided it does not
interfere with the senior rights. If such interference occurs, the junior deed loses.” (3
Miller & Starr, Cal. Real Est. (3d ed. 2011) § 8:72.)
At trial, Jensen acknowledged that, in this case, senior rights did not alter the
location of the parties’ disputed common boundaries once they were properly determined
with respect to the Rancho line.
C. Original Official Survey of the Rancho Line
At trial, Jensen confirmed that a golden rule of surveying is “to follow . . . the
footprints of the original surveyor.” The parties essentially agree that Wallace’s 1858
returning on itself bearing South 36° 30’ East 192.50 feet to a station; thence South 25°
11’ West 343.00 feet to the place of beginning.” (Italics added.)
4
The Saldingers’ property is composed of three parcels, the largest being Parcel
One. The other two parcels are much smaller and irregularly shaped; they fill in gaps
between Parcel One and other properties. The Saldingers’ Parcel One and the Bloxhams’
Parcel One also call to the Rancho line.
5
“final survey of the Rancho Shoquel Augmentation, Martina Castro, Confirmee,” fixed
the location of the Rancho line.5
Under California law, the location of a disputed boundary line is proven by
retracing, as nearly as possible based upon existing evidence, the footsteps of the original
surveyor whose survey fixed the boundaries. (See Pauley v. Brodnax (1910) 157 Cal.
386, 396-397 [“ ‘The survey as made in the field and the lines actually run on the surface
of the earth . . . must control.’ [Citation.]”]; Kimball v. McKee (1906) 149 Cal. 435, 462
[Trial court correctly instructed that “ ‘. . . . any surveyor, who for private parties
thereafter undertakes to re-establish or relocate lines or corners, should endeavor as
nearly as possible to follow in the footsteps of the surveyor who made the last-accepted
government survey and place the corners and lines where they were placed by him.’ ”];
Yolo County v. Nolan (1904) 144 Cal. 445, 448-449 [“[A later surveyor] should endeavor
to retrace the steps of the man who made the original survey. If by so doing the line can
be located, it must be done, and, when so located, it must control.”]; Harrington v.
Boehmer (1901) 134 Cal. 196, 199 [“The question in all cases similar to this is, where
5
We assume that the exterior boundaries of the Rancho were surveyed by Wallace
under a decree of confirmation and the land was patented by the United States in
conformity with Wallace’s field notes. “To fulfill its obligations under the Treaty of
Guadalupe Hidalgo, under which California became a part of the United States, Congress
enacted the Act of March 3, 1851, to ascertain and settle land claims in California. The
act required persons claiming right or title in lands from the Spanish or Mexican
governments to present their claims to a commission for settlement. Following a decree
of confirmation by the commission, the land was surveyed by the Surveyor General and a
map of the survey prepared. Thereafter, on proof of confirmation and approved survey to
the General Land Office, the federal government issued a patent to the claimant. The
patent issued on confirmation of a land grant ‘was conclusive of both (a) the validity of
the grant . . . and (b) the land’s boundaries. U.S. v. Coronado Beach Co. (1921) 255 US
472. . . .’ [Citations.]” (Aptos Seascape Corp. v. County of Santa Cruz (1982) 138
Cal.App.3d 484, 503; see Summa Corp. v. California ex rel. State Lands Com’n (1984)
466 U.S. 198, 202-203 [104 S.Ct. 1751].)
6
were the lines run in the field by the government surveyor? A government township lies
just where the government surveyor lines it out on the face of the earth.”].)
In Weaver v. Howatt (1911) 161 Cal. 77, a quiet title action, the issue was the
location of the boundary line between the parties’ lands. (Id. at pp. 78-79.) They shared
a “common section line,” which was “fixed by the official survey of the United States,
from whom both parties derive[d] title.” (Id. at p. 79.) The Supreme Court stated: “It is
for the trial court, upon all the evidence, to fix the [common sectional corner] at a point
where it will best accord with the natural objects described in the [original] field-notes as
being about it, and found to exist on the ground, and which is least inconsistent with the
distances mentioned in the notes and plat.” (Id. at p. 86.)
In this case, more than 150 years have passed since the original survey. Neither
surveyor found any original corner monument set by Wallace at either SA-2 or SA-3 as
described in his field notes of the 1858 survey. Both surveyors claimed to have
ascertained, as nearly as possible based upon Wallace’s field notes and other evidence,
the location of the Rancho line.
D. Standard of Review
On appeal, the Saldingers argue that Jensen’s survey was insufficient as a matter
of law. The Bloxhams counter that the substantial evidence rule governs.
“[T]he question presented to the court in a boundary dispute is not that of making
a resurvey but one of determining as a question of fact from the preponderance of expert
and nonexpert evidence (as in all other civil cases) the actual location of the monuments,
corners or lines as actually laid out on the ground by the official surveyor.” (Chandler v.
Hibberd (1958) 165 Cal.App.2d 39, 55.) “The questions where the line run by a survey
lies on the ground, and whether any particular tract is on one side or the other of that line,
are questions of fact. Russell v. Land Grant Co., 158 U. S. 253, 259, 15 Sup. Ct. 827, 39
L. Ed. 971.” (U.S. v. State Inv Co (1924) 264 U.S. 206, 211 [44 S.Ct. 289].)
7
“Surveyors and civil engineers, like other experts, may give testimony on
questions involving matters of technical skill and experience with which they are
peculiarly acquainted. [Citations.]” (Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d
729, 741.) The weight and credence to be given an expert’s testimony is a question for
the trier of fact. (See Estate of Schluttig (1950) 36 Cal.2d 416, 424.)
In Curtis v. Upton (1917) 175 Cal. 322, two surveys conflicted. The California
Supreme Court stated: “[I]t was the duty of the court to ascertain, if possible, the true
position of the corner, accurately, if it could be done, or approximately within reasonable
limits if the exact position could not be ascertained with absolute certainty. Weaver v.
Howatt, supra, 171 Cal. 307 . . . ; Weaver v. Howatt, 161 Cal. 86 . . . . The Richardson
survey was, of itself, evidence of the actual position of the true corner; obviously, it was
more convincing to the court below than that of Dodge. It was the duty of the court to
decide the question of fact in accordance with its own views of the preponderance of the
evidence.” (Id. at p. 333.)
In Luginbuhl v. Hammond (1960) 179 Cal.App.2d 350, the principal question on
appeal was whether the court could accept the testimony of respondents’ surveyor,
Parrott, that an irrigation ditch constructed and maintained by respondents did not
trespass on the appellant’s land. (Id. at pp. 351-352.) The “[a]ppellant’s surveyor,
Bumgarner, testified the ditch did trespass.” (Id. at p. 352.) On appeal, the appellant
asserted that “the trial court erred in accepting the testimony of respondents’ surveyor, in
that his survey was not according to established legal rules.” (Ibid.) She contended that
the corner reestablished by the respondents’ surveyor Parrott, “using the proportional
method, was improper since the line could be established from the calls and monuments.”
(Ibid.) The appellant further argued that the testimony of surveyor Parrott was “based
upon legally erroneous grounds and should be ignored and eliminated and that when this
8
is done there would be no substantial evidence to support the trial court’s conclusion.”
(Id. at p. 353.)
The appellate court responded: “Appellant’s chief criticism of Parrott’s testimony
is upon that portion which states that he established the north corner as being 200 feet
west of a ravine, whereas the field notes called for a point 100 feet west of the ravine.
Appellant argues that the ravine was a natural monument and could not be disregarded by
Mr. Parrott in establishing the ‘North Corner,’ and that his testimony be ignored and
disregarded because it was based on erroneous grounds. However, Mr. Parrott gave his
reasons for establishing the corner 200 feet west of the ravine, and we believe it was for
the trial court to weigh and evaluate his testimony.” (Luginbuhl v. Hammond, supra, 179
Cal.App.2d at p. 354.) The appellate court noted that the trial court “heard and observed
the witness and also viewed the premises.” (Id. at p. 355.) It affirmed the trial court’s
judgment, stating that “[i]ssues of fact must be determined in the trial court.” (Ibid.)
In reviewing the evidence for its sufficiency, “all conflicts must be resolved in
favor of the respondent, and all legitimate and reasonable inferences indulged in to
uphold the verdict if possible.” (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427,
429.) “It is an elementary, but often overlooked, principle of law, that when a verdict is
attacked as being unsupported, the power of the appellate court begins and ends with a
determination as to whether there is any substantial evidence, contradicted or
uncontradicted, which will support the conclusion reached by the [trier of fact]. When
two or more inferences can be reasonably deduced from the facts, the reviewing court is
without power to substitute its deductions for those of the trial court. [Citations.]”
(Crawford v. Southern Pac. Co., supra, 3 Cal.2d at p. 429; see Chandler v. Hibberd,
supra, 165 Cal.App.2d at p. 60.) “The fact that it is possible to draw some inference
other than that drawn by the trier of fact is of no consequence. [Citation.]” (Jessup
Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) These rules apply “in reviewing the
9
findings of a judge as it is when considering a jury’s verdict.” (Estate of Bristol (1943)
23 Cal.2d 221, 223.)
The Saldingers do not attack the sufficiency of the evidence to support the court’s
judgment except insofar as they assert that Jensen’s survey was legally insufficient as a
matter of law. We disagree.
E. Jensen’s 2009 Survey Not Shown to be Contrary to Law
Citing Saunders v. Polich (1967) 250 Cal.App.2d 136, the Saldingers maintain
that, “on the essentially undisputed facts, the governing law did not permit the trial court
to find in favor of [the Bloxhams]” because Jensen failed to locate the Rancho line with
reference to the 1858 field notes of the original survey and the plat of that survey. In
Saunders v. Polich, the testimony of the plaintiff’s surveyor indicated that “he did not
commence his survey from any known point established by a prior official government
survey . . . .” (Id. at p. 141) “[H]e admittedly failed to locate or utilize any markers or
monuments established, as section corners or otherwise, by the last official government
survey of this region.” (Ibid.) The plaintiff’s surveyor apparently relied upon “a point
established by a Department of Highways freeway survey” without comparing “the
Department of Highways’ field notes to those of the official survey.” (Id. at
pp. 141-142.) The appellate court concluded that the “survey was insufficient as a matter
of law, and the judgment must, in consequence, be reversed.” (Id. at p. 142.)
This case is distinguishable because Jensen’s 2009 survey did not completely
disregard the original 1858 survey. Both surveyors in this case claimed to have utilized
proper surveying principles and methodology and located, within reasonable limits, the
Rancho line as originally surveyed. We discern nothing more than conflicts in the
evidence, which the trial court resolved adversely to the Saldingers.
The Saldingers first point out that Jensen, in preparing his 2007 Record of Survey,
did not consider Wallace’s 1858 survey of the Rancho. Jensen admittedly did not see the
10
field notes of the 1858 survey until his deposition and he did not identify any original
survey points in his 2007 survey. At trial, however, the Bloxhams relied upon Jensen’s
2009 Record of Survey.
The Saldingers next direct us to Jensen’s 2009 declaration, which was executed
prior to his 2009 survey for purposes of opposing the Saldingers’ pretrial motion for
summary judgment. In his declaration, Jensen attempted to “tie back” to the original
federal surveys, and indicated that the Rancho line followed a different course than
shown in his 2007 Record of Survey and was approximately 16 feet to the east of where
he had first placed it.6 At trial, Jensen no longer thought his declaration was correct.
Jensen explained that his declaration had been based in part upon Gray’s map but he
subsequently determined that Gray had misidentified a “bearing tree” described in
Wallace’s field notes. When Jensen went into the field and did additional work, he found
the remains of the true bearing tree and he concluded that the location of the Rancho line
was consistent with his 2007 survey.
The Saldingers emphasize that Jensen’s 2009 survey “did not depart in any
material way” from his 2007 survey. It is not altogether surprising that Jensen’s 2009
survey was essentially consistent with his 2007 survey, although the earlier survey was
more limited in that Jensen did not attempt to locate SA-2 or SA-3. In preparing his 2007
survey, Jensen considered the survey of George Darling, recorded in 1982. The Darling
survey retraced M.V. Bennett’s 1870’s retracement survey of the Rancho line between
station 11 and station 16, southeast of the parties’ properties. A retracement is a retracing
of an original line.
The notes on Darling’s Record of Survey referred to Wallace’s original 1858
federal survey of the Rancho and the 1866 field notes of Alexander McPherson. The
6
Nevertheless, even in this declaration, Jensen determined that the disputed trees
were located entirely on the Bloxhams’ property.
11
notes indicated that McPherson surveyed the exterior boundaries of Township 9 South,
Range 1 West, he “reran” the western line of the Rancho, and he marked a “closing
corner” on the south boundary of section 34 and the Rancho’s west boundary.
In preparing his 2009 Record of Survey, Jensen considered evidence of the
location of the Rancho line described in Wallace’s 1858 field notes. Those field notes
indicated that, upon verifying the former location of the “Pala de la Yesca punk tree”
(punk tree), Wallace placed a large redwood post on that spot, he then made Soquel
Creek the boundary (SA-2), and he ran the Rancho line from the creek through the former
punk tree’s location to the Laguna Sarjento. According to those field notes, the stake at
the original spot of the punk tree was on a course “N. 31 W,” 13.50 chains from SA-2.7
The field notes described a bearing tree: “A redwood 3 feet diameter” bearing “north 72
west 220” from the stake. Wallace’s field notes also indicate a line tree, a “[s]trike
redwood tree 3 feet diameter on side hill face west,” on a course “N. 31 W,” 397.55
chains from SA-2.
Jensen testified to identifying in the field the stumps of those two trees, which had
been logged, based upon their markings. The 58-inch diameter stump of the redwood
bearing tree had a blaze; the 46-inch diameter stump of the redwood line tree had a notch
on its southwest side.8 The location of the notch on the stump of the line tree was
significant to Jensen because he could conclude, within reason, that the Rancho line ran
through the tree. The stump of the line tree was just about “100-and-something feet south
of Laurel Road,” the southern boundary of the Bloxhams’ and Saldingers’ properties.
7
Early surveyors used chains to measure distance. A chain was 66 feet long and
included 100 links. Each link was 7.92 inches. The original federal surveyors were paid
by the mile.
8
Jensen testified that a tree is blazed by a surveyor on the side facing the reference
point, which in this case was the punk tree. Jensen described a “strike” as basically a
notch, which is usually smaller than a blaze. He stated that a notch is a horizontal chip
out of the tree about the size of an ax head.
12
The trial court’s judgment indicates that the judge viewed those trees and impliedly found
Jensen’s testimony credible.
The Saldingers claim that Jensen did not have the expertise to identify the stumps
as being the remains of a bearing or line tree on the Rancho line. At trial, Jensen testified
that, based upon the appearance of the logged stump, how old it looked, and how much
its notch had filled in, he believed the stump of the tree he identified as a line tree was a
three-foot redwood tree back in 1858. The Saldingers’ counsel objected on the ground
that Jensen had been qualified as a surveyor but not as an arborist or a forester. The court
impliedly overruled the objection, indicating that Jensen was stating his belief as a
surveyor based on his observations of the tree and its location. The Saldingers present no
legal authority establishing that a professional surveyor may not opine whether he
believes that a particular tree is a bearing or line tree based upon its aged appearance,
location, and markings.9
Jensen established the former location of the punk tree on the Rancho line by
measuring from the stump of the bearing tree that he identified, holding “record bearing
and distance” as described in Wallace’s field notes.10 Holding the bearing and distance
between the point of the former punk tree and SA-2, Jensen calculated the location of
9
Counsel for the Saldingers was free to cross-examine Jensen regarding his
opinion, which he did. Jensen later confirmed that it would be necessary to know the age
of a tree when logged to determine whether its present diameter was consistent with
having a three-foot diameter in 1858. He conceded he was not a trained arborist.
10
At trial, Jensen criticized Gray’s identification of an 84-inch merged, double
redwood tree as the bearing tree to the punk tree on the Rancho line because the original
notes did not call for a double tree. In addition, there was no blaze on that tree. Jensen
also criticized Gray for using a 22-link distance between the bearing tree and the point of
the punk tree instead of 220 links because the original 1858 field notes specified “220.”
Bennett’s field notes of his 1870’s retracement survey of the Rancho line confirmed the
original distance of 220 links, specifying “a redwood faced as described in the original
notes” at 2.20 chains distant. Jensen did not believe the tree identified by Gray was the
bearing tree to the punk tree on the Rancho line.
13
SA-2.11 Jensen’s 2009 Record of Survey indicated that he searched for but did not find
any monument marking SA-2.12
In Ayers v. Watson (1891) 137 U.S. 584, the United States Supreme Court stated
that “the beginning corner of a survey does not control more than any other corner
actually well ascertained, and that we are not constrained to follow the calls of the grant
in the order said calls stand in the field-notes, but are permitted to reverse the calls and
trace the lines the other way, and should do so whenever by so doing the land embraced
would most nearly harmonize all the calls and the objects of the grant.” (Id. at p. 604.) It
found that “the judge was entirely right in charging [the jury] that the footsteps of the
original surveyor might be traced backward as well as forward, and that any ascertained
monument in the survey might be adopted as a starting-point for its recovery.” (Id. at
p. 590.) “The location of the monuments placed in connection with the original survey is
of primary importance; monuments control over courses, distances, lines and angles.
Code Civ. Proc. § 2077; Weaver v. Howatt, 161 Cal. 77, 80 . . . ; Trabucco v. Sorrels, 113
Cal.App. 401, 403 . . . ; Kimball v. McKee, 149 Cal. 435, 450 . . . ; de Escobar v. Isom,
112 Cal.App.2d 172, 175 . . . ; Gordon v. Booker, 97 Cal. 586, 588 . . . ; Phelps v. Pacific
Gas & Elec. Co., supra, 84 Cal.App.2d 243, 248 . . . .” (Verdi Development Co. v.
Dono-Han Min. Co. (1956) 141 Cal.App.2d 149, 153.)
11
On appeal, the Saldingers do not suggest that the difference between Gray’s
placement of SA-2 and Jensen’s placement of SA-2 had any material effect on the
determination of the parties’ common property boundaries. Both surveyors found the
Rancho line ran through a tagged half-inch iron pipe north of SA-2 and south of the point
of the former punk tree.
12
Wallace’s 1858 field notes stated: “Set stake and pile of stone on small bar in
middle of creek marked stake S.A. No. 2.” A note on Gray’s Record of Survey
recognized that the exact position of SA-2 on the bar in the middle of Soquel Creek was
not known since the creek’s “waterflow & geology have changed over the last 151
years.”
14
Wallace’s 1858 field notes indicated that the course of the line running from SA-2,
through the stake at the original spot of the punk tree, to Laguna Sarjento was “N. 31 W.”
Jensen indicated that later surveyors discovered an actual angle point on the ground, a
deflection from the straight line indicated in Wallace’s field notes, at the point of the
former punk tree, and Jensen held this angle point in the Rancho line.13
The 1866 federal survey executed by United States Deputy Surveyor Alexander
McPherson found an angle point at the original location of the punk tree on the Rancho
line (“N. 28° 30’ W.”), as did Bennett’s 1870’s retracement survey (“N 28° 45’ W”). In
his research, Jensen found that an angle point at the punk tree was also reflected in a
grant deed’s description of property that borders the Rancho line at the punk tree.
Marcott indicated that surveyors used the local stakes set on the Rancho line and
tied into those local points when the land was conveyed shortly after the Rancho line was
run. Gray indicated that there were “long-standing lines of occupation” in the vicinity of
SA-2 and he acknowledged that Jensen’s angle point “more closely approximates the
occupation running down to the creek in this area.”
In Jensen’s opinion, the point of the former punk tree, “controlled by the found
bearing tree,” was more significant than SA-2 in this case. The original 1858 field notes
referred to the former punk tree, this was an angle point on the Rancho line, and that
point was closer than SA-2 to the parties’ properties.
Jensen considered the Darling’s retracement survey of Bennett’s 1870’s
retracement of part of the Rancho’s western boundary, between station 11 and station 16,
to the southeast of the parties’ properties. Darling’s retracement survey found the
Rancho line ran “N 28° 52’ 30” W” from station 11. From the location of the former
punk tree, Jensen tied to three monuments on the Darling survey. Jensen explained that
Bennett performed a more accurate survey than Wallace. In Jensen’s opinion, Bennett’s
13
Jensen described an angle point as a change in direction.
15
references to stakes in his field notes indicate that Bennett was finding Wallace’s original
stakes as he progressed, noting the chains to stakes, and labeling those stakes as stations.
Jensen tied the Rancho line to the stump of the redwood line tree that he located to
the north of the area retraced by Darling. In Jensen’s opinion, the distance measured
from SA-2 to the stump of the redwood line tree matched up, within reason, with the
distance of 397.55 chains reported in Wallace’s field notes. This line tree confirmed his
Rancho line.
Jensen considered the Edmundson survey of lands to the north of the parties’
disputed common boundaries. Jensen tied to an untagged monument, a half inch capped
iron pipe, called to be on the Rancho line by a number of documents, including the
Edmundson survey, a county engineering map, and “deed documents.”14 Jensen thought
the monument was on the Rancho line even though it could not be directly traced to the
original survey.
Jensen acknowledged that tying to the Edmundson monument resulted in a very
slight deflection of 38 seconds in the Rancho line compared with the course of the
Rancho line established using monuments on the Darling survey. The standard
compasses used in the 1850’s generally were accurate to a quarter of a degree or 15
minutes but they could not measure a smaller deflection. Surveying parties worked in
line segments, which each might involve a quarter degree of error and the error could
accumulate. Robillard, the Saldingers’ expert, confirmed that, in the 1850’s, compasses
were capable of measuring accurately to a quarter of a degree, which meant that there
could be a discrepancy of plus or minus 15 minutes or 900 seconds. On the evidence
before it, the trial court could reasonably conclude that a 38-second deflection from a
14
Jensen indicated that an “untagged point” is a monument lacking a land surveyor’s
license number or the civil engineer’s registration number.
16
straight line was de minimis15 and the stump of the redwood line tree to the south of the
Edmundson monument corroborated Jensen’s Rancho line.
The Saldingers argue that the stumps of the bearing tree and line tree did not
establish Jensen’s reliance upon Wallace’s 1858 survey because they were “irrelevant as
a matter of fact” to his “determination of the disputed portion of the Rancho line and,
consequently, his determination of the disputed boundary line.” They assert that the
Rancho line identified by Jensen actually consisted of “line segments” and the trees had
no effect on the line segment relevant to their property dispute. The Saldingers have
failed to show that any deflections in the Rancho line to the north of the stump of the
redwood line tree found by Jensen were more than de minimis, especially given the
accuracy of surveying in the 1850’s. Moreover, they do not argue, and present no legal
authority, that evidence of line trees or bearing trees called in an original survey of a line
are irrelevant to its location. The stumps of those trees, which the trial court impliedly
found were the trees called in the original survey, were not “irrelevant” to the court’s
evaluation of Jensen’s opinion as to the location of the Rancho line. “ ‘Relevant
evidence’ means evidence, including evidence relevant to the credibility of a witness . . . ,
having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, § 210.)
The Saldingers contend that Jensen “did not ‘utilize’ the 1858 Federal Survey in
crucial part” because the crucial part of the Rancho line, from which the common
boundaries of their properties were determined, “ran from the northernmost of Darling’s
monuments (to the south) to Edmundson’s one monument (to the north)” and the
15
Jensen testified that if he had merely extended the Rancho line north of Darling’s
survey in a straight line, the alignment would have been different by four inches at the
southeast corner of the Bloxhams’ property (south of the parties’ disputed common
boundaries) and eight inches at the northeast corner of the Bloxhams’ property (north of
the parties’ disputed common boundaries). Robillard, the Saldingers’ surveying expert,
indicated that a four-inch discrepancy was probably de minimis.
17
Edmundson monument was not a point recorded by the original survey as being on the
Rancho line. The Saldingers overlook the stump of the redwood line tree found by
Jensen between those points. In any event, the Saldingers have not shown any error of
law.
“ ‘Lines actually run and marked on the ground may be proved by any evidence,
direct or circumstantial, competent to prove any other disputed fact, and where markers
of the original survey have been destroyed, secondary evidence as to the authenticity of
their relocation is admissible.’ California recognizes these rules to be sound.” (Chandler
v. Hibberd, supra, 165 Cal.App.2d at p. 55.) The Saldingers have not provided legal
authority establishing that a monument “called to be on the Rancho line by common
report” of a number of documents could not be considered by surveyor Jensen in locating
the Rancho line established by the original survey.
Wallace’s field notes recorded the distance from SA-2 to SA-3 as 562.00 chains.
They described SA-3 as being on a “northeast point of Laguna Sarjento” and recorded
that Wallace “set a post marked S.A. No. 3, on north bank of Laguna.” At trial, Jensen
described Laguna Sarjento as “a bean-shaped lagoon” with a gentle “northerly slope.”
Gray described it as kidney shaped. Gray and Robillard, the Saldingers’ expert, both
indicated that the Laguna Sarjento runs north-south almost parallel to the Rancho line.
Jensen indicated that the best evidence that he had for the location of SA-3 was the
1866 compiled map of Township 9 South, Range 1 West, Mount Diablo Meridian, which
showed the “sectionalized land” bordering part of the “Rancho Shoquel Augmentation”
and tied to corner SA-3. The map was based on field notes of surveys on file in the
Surveyor General’s Office, including field notes of Wallace’s 1858 survey and Alexander
McPherson’s 1866 surveys. McPherson’s field notes of his 1866 survey of the “Exterior
Meander and Subdivision of Township 9 South[,] Range 1 West[,] Mount Diablo
Meridian,” indicated that he retraced the Rancho line. McPherson’s field notes of his
18
1866 survey of the “Subdivision & Meander lines of Township 9 South[,] Range 1
West[,] Mount Diablo Meridian,” reported that a post was set at the quarter section
corner, running north between sections 20 and 21.16 The field notes indicated that
McPherson proceeded one chain further and set a post at the Soquel Augmentation “grant
line.” Jensen indicated that this showed McPherson found the intersection between the
Rancho line and the section line. McPherson’s notes recorded his setting of a post on the
northern line of the “Soquel Augmentation Rancho” at a specified distance on the section
line and stated the bearing and distance from that point to the northeast corner of “Laguna
Sargiento.” Jensen indicated that McPherson in effect tied to SA-3.
Jensen surveyed in the field with a crew at the nearest quarter section corner to
SA-3. Using the 1866 federal survey, Jensen could calculate the “locus area,” but not the
precise point, of SA-3, because surveyors in 1866 used a compass and chains, which led
to discrepancies in distance and angles.
Walter Robillard, the surveying expert who testified on behalf of the Saldingers,
explained that the federal government surveyed land in the public domain to create
sections, townships and ranges and tied to existing federal surveys. When asked whether
the 1866 survey honored the seniority of the 1858 survey, Robillard stated, “In my belief
they did by the recognition in the field notes.”
Jensen attempted, but was unable, to find the actual post marked SA-3 or any
physical evidence of SA-3. Jensen calculated the position of SA-3 based on ties to the
16
“The rectangular system of surveying was adopted by the federal government in
1785. This system generally provides for townships six miles square, containing 36
sections, each approximately one mile square.” (Cal. Real Prop. Sales Transactions
(Cont. Ed. Bar 4th ed. 2010) § 11.17, p. 948.) “Sections are commonly subdivided into
quarters or halves, and this quartering or halving may be carried down into further
quarters or halves.” (Cal. Real Prop. Sales Transactions (Cont. Ed. Bar 4th ed. 2010)
§ 11.21, p. 953.) Jensen indicated that a post set midway between section corners at the
half-mile point was designated a “quarter corner” because it divided a section into
quarters.
19
federal government’s “sectionalized land” surveys and located SA-3 about 50 to 75 feet
off the Laguna Sarjento on a slight northerly slope that he took as a northerly bank.17
That vicinity matched the terrain calls of the 1858 field notes. Jensen pointed out that the
point identified by Gray as SA-3 was less consistent with the overall length of the
Rancho line than Jensen’s locus of SA-3.18
Jensen indicated that the best he could do was determine the locus or vicinity of
SA-2 and SA-3. In Jensen’s opinion, the loci he determined for SA-2 and SA-3 “fit
within reason”- that is, they were within 10 to 15 feet of the original locations.
17
In locating SA-3, Gray relied on Baldwin’s and Hale’s map of the 1929-1930
survey of the Hihns’ lands. That map contained a notation with reference to SA-3 to the
northwest of the Hihns’ lands: “Iron pipe set at site of old Post SA-3 for Northwest
Corner of Rancho Soquel Augmentation.” Gray did not find the pipe. Marcott, the
Bloxhams’ expert, considered Baldwin’s notation regarding SA-3 to be ambiguous
because the “normal wording” would be “I found a 4-by-4 post and replaced it with
one-quarter inch iron pipe or one-half inch iron pipe.” The notation was susceptible of
the interpretation that the iron pipe had been placed in the general area of SA-3 rather
than in a specific location. Gray put SA-3 some feet off the east bank of the Laguna
Sarjento, approximately midway along its length paralleling the Rancho line. That
location did not match the 1858 field notes’ terrain calls to the “north bank” on the
“northeast point” of the lagoon. Gray’s location of SA-3 missed the tie to the 1866
federal land survey by approximately 200 feet. Gray’s Record of Survey showed the
Rancho line extending in a straight line (“S 28° 12’ 39” E”) from the point he identified
as SA-3 to the point he identified as SA-2. Jensen stated that Gray’s erroneous location
of SA-3 caused Gray’s Rancho line to increasingly deflect toward the west as one moved
from SA-2 toward SA-3. Jensen criticized Gray’s Rancho line for leaving a gap between
the Bloxhams’ property and the MacDonalds’ lands (to the northeast), which should not
exist. Marcott also concluded that Gray had failed to locate Bloxhams’ Parcel Four first
with reference to the Rancho line which caused the Bloxhams’ parcel to shift north.
18
Both Jensen and Gray agreed that the Rancho line as measured in the field with
today’s instruments was shorter than reflected in Wallace’s field notes. Jensen found that
the Rancho line was actually about 1000 feet shorter. Gray found that the line was
approximately 1100 feet shorter than reported. Jensen pointed out that Gray’s calls were
not consistently short but rather his call to his location of the former punk tree on his
Rancho line was long.
20
Jensen concluded that SA-2 and SA-3 were “lost corners” because, in his opinion
and based on the information he had, those corners could not be reestablished without
reasonable doubt.19 Jensen did not think they were “obliterated corners” as defined by
the Manual of Surveying Instructions.
The Saldingers lastly assert that the “lost corner doctrine” does not excuse
Jensen’s “failure to utilize the 1858 survey.” They also argue that “under governing law”
the trial court erred in finding corners SA-2 and SA-3 to be “lost” corners rather than
“obliterated” corners.
The phrases “lost corner” and “obliterated corner” are surveying terms of art.
According to Jensen, an “obliterated corner” is a corner that can be established beyond a
reasonable doubt even though the corner and its accessories have been lost. That is not
true for a “lost corner.” Robillard, the Saldingers’ expert, testified that an “obliterated
corner” is a corner for which “the evidence of the original survey has been destroyed or is
missing but whose position can be located by the acts and testimony of interested
landowners, competent evidence, necessary records in order to show where the corner
was actually located on the ground by the creating surveyor.”
California cases recognize: “ ‘A lost corner is a point of a survey whose position
cannot be determined, beyond reasonable doubt, either from traces of the original marks
or from acceptable evidence or testimony that bears upon the original position, and whose
location can be restored only by reference to one or more interdependent corners.’
(Manual of Surveying Instructions 1947, § 360. See also Chandler v. Hibberd, 165
Cal.App.2d 39, 52 . . . .) [¶] ‘If there is some acceptable evidence of the original location
that position will be employed in preference to the rule that would be applied to a lost
corner.’ (Manual of Surveying Instructions, § 360.)” (Reid v. Dunn (1962) 201
19
Jensen indicated that he could do quite a bit more work and this was the reason for
his uncertainty about the exact locations of SA-2 and SA-3.
21
Cal.App.2d 612, 614; see Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691,
695, fn. 1 [defining “lost corner”].)
“In Reid v. Dunn (1962) 201 Cal.App.2d 612 . . . , the court discussed at length the
various methods of relocating an obliterated corner and pointed out that such a corner
could not be deemed a ‘lost’ corner justifying a resort to the proportionate measurement
method unless there was no possibility of locating the original corner on the ground. The
court pointed out that under section 355 of the Manual of Surveying Instructions, a corner
was merely obliterated and not lost if its location had been perpetuated or the point for
the corner could be recovered beyond reasonable doubt by the acts and testimony of
interested landowners, competent surveyors, other qualified local authorities or witnesses.
Likewise, under section 360 of said manual, the corner would not be treated as lost if
there was some ‘acceptable evidence’ of its original location ([Id. at] p. 614 . . .).” (State
of California v. Thompson (1971) 22 Cal.App.3d 368, 378.)
In Yolo County v. Nolan (1904) 144 Cal. 445, a quiet title action, the issue was
whether a mile-long, 20-foot-wide strip of land was part of the east half or part of the
west half of the west half of a section. (Id. at p. 446.) The Supreme Court stated that
“the rule as to restoring lost corners by putting them at an equal distance between two
known corners has no application, if the line can be retraced as it was established in the
field.” (Id. at p. 448.)
In Weaver v. Howatt, supra, 161 Cal. 77, a quiet title action mentioned above, the
trial court determined that the monuments set by the United States surveyors at the
common corner of four sections and quarter section corners had disappeared and those
corners were lost corners. (Id. at pp. 79-80.) It concluded that the whole line had to be
remeasured and divided into four equal parts “without regard to the government survey.”
(Id. at p. 80.)
22
The Supreme Court determined in Weaver that the trial court had improperly
applied the proportional method of locating corners: “While it is true that the errors in the
field-notes and plat make it impossible to locate the exact spot fixed by the official
survey as the common corner of [four sections], in the absence of the monument set to
mark it, yet there is ample evidence to show that it was not fixed at or near the place
selected by the court, upon its theoretical subdivision of the line. It is not the province of
the court to determine where the corner should have been fixed. This is not an action to
vacate the government survey. It must be assumed that the line was measured and the
monuments set. Their positions, as set, fix the rights of the parties, regardless of the
inaccuracy of the measurements and the errors in distance found in the field-notes. The
trial court must ascertain, as near as may be, where this monument was set by the
government surveyor. If the exact spot [of a section corner] cannot be found, [the court]
must, if possible, decide from the data appearing in evidence its approximate position,
and the proportional method is to be used only when no other reasonable method is
possible and it must be so used that it does not contradict or conflict with the official data
that are not impeached, and which, when not impeached, confine the actual position
within certain limits.” (Weaver v. Howatt, supra, 161 Cal. at p. 84.) In a subsequent
appeal in the same case, the Supreme Court stated that even if “[a]ll trace of that [corner]
monument has disappeared, and the exact place where it was erected cannot now be
identified,” those “circumstances do not destroy the survey nor justify the court in
disregarding it, when enough can be ascertained therefrom and identified on the ground
to approximately locate the corner.” (Weaver v. Howatt (1915) 171 Cal. 302, 307.)
As indicated by our previous discussion, Jensen sought to locate, as nearly as he
was able to ascertain under the circumstances, the Rancho line as run on the ground by
Wallace, the original surveyor. Jensen testified that he was able to determine the loci of
corners SA-2 and SA-3 and his 2009 Record of Survey reflects those corners. Neither
23
Jensen nor the trial court applied any rule for restoring lost corners. Subsequent to
judgment, the trial court explained that it found it “had to rely on other physical evidence
that went back to the federal survey” because the SA-2 and SA-3 were “lost corners.”
Consequently, even if the two corners of the Rancho Line, SA-2 at the southern end and
SA-3 at the northern end, should not have been deemed “lost corners” as that phase is
technically understood by surveyors, we fail to discern any resulting prejudice.
The Saldingers have failed to establish that Jensen’s location of the Rancho line in
his 2009 survey was contrary to law. As stated, they do not otherwise challenge the
sufficiency of the evidence to support the court’s judgment. The court impliedly found
that Gray had not located the true SA-2 and SA-3 corners and Jensen’s opinion as the
location of the Rancho line was more persuasive.
“ ‘ “Although an appellate court will not uphold a judgment or verdict based upon
evidence inherently improbable, testimony which merely discloses unusual circumstances
does not come within that category. [Citation.] To warrant the rejection of the
statements given by a witness who has been believed by a trial court, there must exist
either a physical impossibility that they are true, or their falsity must be apparent without
resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends.” ‘ (People v.
Thornton (1974) 11 Cal.3d 738, 754 . . . .)” (People v. Maciel (2013) 57 Cal.4th 482,
519.) These appellate rules of review apply to the testimony of expert witnesses as well
as that of lay witnesses. (Daly v. Wallace (1965) 234 Cal.App.2d 689, 693.)
As the reviewing court, “[w]e resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citations.]” (People v. Maury (2003) 30
Cal.4th 342, 403.) Substantial evidence supports the trial court’s judgment.
24
III
Cross-Appeal
A. Background
The Bloxhams cross-appeal, claiming that the trial court abused its discretion in
denying their request for costs of proof for the Saldingers’ failure to admit one of the
Bloxhams’ written requests for admission. Barbara Saldinger was requested to admit
“[t]he boundary lines between plaintiffs’ property and defendants’ property are
accurately described by the plaintiffs’ deed.” (Italics added.) About a year before trial,
the following response was given to the request for admission: “OBJECTIONS: Request
is not full and complete in and of itself. C.C.P. § 2033.060(d). Further, defendants lack
the information or knowledge sufficient to allow them to admit or deny the Request in
that the Request calls for expert witness testimony and, as such, is untimely expert
witness discovery. Based on the foregoing objections, the Request is denied.” After trial,
the Bloxhams requested $123,196.58 for their costs of proving the location of their
properties’ common boundaries.
The court denied the motion. It indicated that there were reasonable grounds for
refusing to make the admission because the critical issue was the location of the Rancho
line. The court also mentioned that the former owner of the Saldingers’ property had
indicated in her deposition that she was informed that the trees had been planted on her
property and she refused to permit them to be cut. Further, the court made clear that,
even if it had found that there were no reasonable grounds for denying the admission, the
Bloxhams were not entitled to “the entire time and costs” to prepare for trial.
B. Governing Law
A written request for an admission may request a party to “admit the genuineness
of specified documents, or the truth of specified matters of fact, opinion relating to fact,
or application of law to fact.” (Code Civ. Proc., § 2033.010.) “A request for admission
25
may relate to a matter that is in controversy between the parties.” (Ibid.) Ordinarily,
“[a]ny matter admitted in response to a request for admission is conclusively established
against the party making the admission in the pending action . . . .” (Code Civ. Proc.,
§ 2033.410, subd. (a).)
An answer in response to a request for admission must “[s]pecify so much of the
matter involved in the request as to the truth of which the responding party lacks
sufficient information or knowledge.” (Code Civ. Proc., § 2033.220, subd. (b)(3).) “If a
responding party gives lack of information or knowledge as a reason for a failure to admit
all or part of a request for admission, that party shall state in the answer that a reasonable
inquiry concerning the matter in the particular request has been made, and that the
information known or readily obtainable is insufficient to enable that party to admit the
matter.” (Code Civ. Proc., § 2033.220, subd. (c).)
A party to an action may not necessarily avoid responding to a request for
admission on the ground that the request calls for expert opinion and the party does not
know the answer. (See Chodos v. Superior Court for Los Angeles County (1963) 215
Cal.App.2d 318, 322-323 [defendants claimed request for admission “call[ed] for an
expert opinion as to engineering practice” and, “as lay property owners,” they could not
express an opinion].) “[S]ince requests for admissions are not limited to matters within
personal knowledge of the responding party, that party has a duty to make a reasonable
investigation of the facts before answering items which do not fall within his personal
knowledge. (Lindgren v. Superior Court (1965) 237 Cal.App.2d 743, 746 . . . ; Chodos v.
Superior Court (1963) 215 Cal.App.2d 318, 323 . . . .)” (Smith v. Circle P Ranch Co.
(1978) 87 Cal.App.3d 267, 273.)
“Requests for admissions . . . are primarily aimed at setting at rest a triable issue
so that it will not have to be tried. Thus, such requests, in a most definite manner, are
aimed at expediting the trial. For this reason, the fact that the request is for the admission
26
of a controversial matter, or one involving complex facts, or calls for an opinion, is of no
moment. If the litigant is able to make the admission, the time for making it is during
discovery procedures, and not at the trial.” (Cembrook v. Superior Court In and For City
and County of San Francisco (1961) 56 Cal.2d 423, 429.)
“If a party fails to admit the genuineness of any document or the truth of any
matter when requested to do so . . . , 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.” (Code Civ. Proc., § 2033.420, subd. (a), italics added.) The
trial court must make such an order “unless it finds any of the following: [¶] (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. [¶] (4) There was other good reason for the failure to
admit.”20 (Code Civ. Proc., § 2033.420, subd. (b).)
“[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 (Lindgren v. Superior Court, supra, 237 Cal.App.2d 743, 746;
Chodos v. Superior Court, supra, 215 Cal.App.2d 318, 323).” (Smith v. Circle P Ranch
Co., supra, 87 Cal.App.3d at p. 275.)
20
“An issue is of ‘substantial importance’ if it has ‘at least some direct relationship
to one of the central issues in the case, i.e., an issue which, if not proven, would have
altered the results in the case.’ (Brooks v. American Broadcasting Co. (1986) 179
Cal.App.3d 500, 509 . . . fn. omitted.)” (Wimberly v. Derby Cycle Corp. (1997) 56
Cal.App.4th 618, 634-635 [former Code Civ. Proc., § 2033, subd. (o)].)
27
“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.]” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508
[former Code Civ. Proc., § 2034, subd. (c)].) “An abuse of discretion occurs only where
it is shown that the trial court exceeded the bounds of reason. (Piscitelli v. Friedenberg
(2001) 87 Cal.App.4th 953, 972 . . . .) 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. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882 . . .)” (Stul
v. Sparrow (2001) 92 Cal.App.4th 860, 864.)
C. No Abuse of Discretion
The Bloxhams now argue that the trial court abused its discretion because the
Saldingers always knew they were encroaching on their property and they took
affirmative steps to produce a false survey. The Bloxhams assert that, at the time of the
response, the Saldingers did not have a reasonable basis for denying the request for
admission. Jensen’s 2007 survey was already completed and the Saldingers had not yet
consulted a surveyor who reached a substantially different result.
The Bloxhams have not shown that Barbara Saldinger failed to make a reasonable
investigation to ascertain the accuracy of the Bloxhams’ deed description. Although the
Bloxhams now question the truth of Todd Saldinger’s 2009 deposition testimony that the
Saldingers walked the property line with Lynne Tinel (the prior owner of their property)
because Tinel stated in her 2009 deposition testimony that she did not remember doing
so, Tinel’s deposition testimony corroborated Todd Saldinger’s deposition testimony that
Tinel told the Saldingers that the trees were on her property. According to Todd, they did
walk the property line with Tinel and they were shown a property line beyond the trees.
28
In any case, the request for admission concerned the legal accuracy of the
Bloxhams’ grant deed description, not where the Rancho line ground was located on the
ground. The Bloxhams’ request for admission was not susceptible of an interpretation
that the request asked for an admission that the Rancho line was located as indicated in
Jensen’s 2007 survey.
The Bloxhams merely requested an admission that the common boundary lines
between the parties’ properties were “accurately described by the plaintiffs’ deed.” The
accuracy of the grant deed’s legal description of the property acquired by the Bloxhams
was not an issue at trial. Rather, as recognized by the trial court, the decisive issue was
the location of the Rancho line on the ground since the relevant deed descriptions called
to the Rancho line.
The Saldingers did not, for example, assert that the legal descriptions of parcels
contained in the Bloxhams’ grant deed were inaccurate under the doctrine of agreed
boundaries (see Bryant v. Blevins (1994) 9 Cal.4th 47)21 or a theory of adverse possession
(see Civ. Code, § 1007) or because the Saldingers rather than the Bloxhams held the
senior rights. The Saldingers acknowledged throughout the trial that Bloxhams’ Parcel
21
“The agreed-boundary doctrine constitutes a firmly established exception to the
general rule that accords determinative legal effect to the description of land contained in
a deed.” (Bryant v. Blevins, supra, 9 Cal.4th at p. 54.) “Although the agreed-boundary
doctrine is well established in California, our case law has recognized that the doctrine
properly may be invoked only under carefully specified circumstances. . . . ‘The
requirements of proof necessary to establish a title by agreed boundary are well settled by
the decisions in this state. [Citations.] The doctrine requires that there be [1] an
uncertainty as to the true boundary line, [2] an agreement between the 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 its position.’ (Ibid.)” (Id. at p. 55.) “[W]hen existing
legal records provide a basis for fixing the boundary, there is no justification for
inferring, without additional evidence, that the prior owners were uncertain as to the
location of the true boundary or that they agreed to fix their common boundary at the
location of a fence. [Citations.]” (Id. at p. 58.)
29
Four had senior rights and took precedence over the Saldingers’ Parcel Two. Even if the
Saldingers’ surveyor misapplied senior rights as the Bloxhams assert, there was no
challenge to the accuracy of the deed’s description of Bloxhams’ Parcel Four at trial.22
At trial, the Saldingers did not dispute that “[t]he boundary lines between plaintiffs’
property and defendants’ property are accurately described by the plaintiffs’ deed.”
(Italics added.)
In any case, the Bloxhams did not demonstrate that they incurred any cost to prove
the correctness of their deed’s description of common boundaries between the Bloxhams’
and the Saldingers’ properties. “ ‘Proof’ is the establishment by evidence of a requisite
degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid.
Code, § 190.) The extensive testimony at trial by the Bloxhams’ surveyor and surveying
expert related to the location of the Rancho line and the resulting location of the common
boundaries of the parties’ properties on the ground.
The trial court acted within its discretion in denying the Bloxhams’ request for a
costs of proof award.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
ELIA, J.
WE CONCUR:
RUSHING, P. J.
PREMO, J.
22
A note to Gray’s Record of Survey acknowledged the Bloxham’s Parcel Four has
senior rights.
30
Trial Court: Santa Cruz County Superior Court
S.Ct. No. CV159793
Trial Judge: Hon. Robert B. Atack
Hon. Timothy R. Volkmann
Counsel for Plaintiffs,
Cross-defendants and Appellants: Redenbacher & Brown
Gary Redenbacher
Counsel for Defendants,
Cross-complainants and Appellants: Hicks Thomas
Eric Grant
John B. Thomas
Doherty Georgeson
Adamont N. Georgeson
Bloxham, et al. v. Saldinger, et al.
H038040
31