Filed 5/5/21 Lobenstein v. Khodayari CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DREW LOBENSTEIN et al.,

Plaintiffs and Respondents,

v.

MOHAMMAD KHODAYARI et al.,

Defendants and Appellants.

 B296769

 (Los Angeles County

 Super. Ct. No. LC106634)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Virginia Keeny, Judge. Affirmed. 

Mohammad Khodayari and Bahman Khodayari, in pro. 

per., for Defendants and Appellants.

Rosen and Loeb and Alan L. Rosen for Plaintiffs and 

Respondents. 

__________________________________
2

Plaintiffs and respondents, Drew Lobenstein, Primitivo L. 

Valle, Elvia Valle, Russell O’Hearn, Christopher Becker, 

Frances L. Davey, Nava Skolnik and Ilan Skolnik (Respondents) 

brought a civil action seeking a prescriptive easement against the 

defendants and appellants, Mohammad Khodayari and Bahman 

A. Khodayari (Appellants).1 The dispute centered on a decades 

long use of an alley that, in 2016, was partially blocked by the 

Appellants who extended their back fence making ingress/egress 

by automobiles nearly impossible. After a two-day bench trial, 

the trial court found a prescriptive easement in Respondents’ 

favor and ordered the Appellants to remove the fence within 30 

days. The trial court’s judgment was entered on February 29, 

2019. Thereafter, the Appellants filed a notice of appeal and 

sought a stay on the trial court’s fence destruction order which 

we granted pending the outcome of this appeal.2 

Appellants raise three contentions: (1) Respondents failed 

to prove the element of hostile use of the property for prescriptive 

easement; (2) the trial court’s judgment created an inappropriate 

exclusive easement/adverse possession; and (3) the trial court in 

deciding the case erred by using the preponderance of the 

evidence instead of the clear and convincing standard. We affirm 

the judgment.

1 As in this appeal, the Appellants were self-represented for 

the court trial. 

2 On May 28, 2019, we granted in part a petition for a writ of 

supersedeas staying the trial court’s fence destruction order 

pending disposition of the appeal. 
3

FACTS 

Appellants are brothers. In 2004, one of the Appellants, 

Bahman Khodayari, purchased 19106 Cantara Street, Reseda, 

California 91335. This Property is located in a suburban 

residential neighborhood subdivided into parcels with a 14 feet 

wide alley running along the back of the lots. The Appellants’ 

property is located on the corner of Cantara Street and Vanalden 

Avenue at one of the mouths of the alley. The residents on 

Cantara Street have used the alley since the 1950’s. According to 

trial testimony, there are 38 properties that use this alley for 

ingress and egress from their lots. The alley is accessed through 

Vanalden Avenue on one end, and Tampa Avenue on the other. 

The alley is a private road that is 14 feet wide. 

In 2016, one of the Appellants, Bahman Khodayari, 

extended his back fence to the limit of his property line 

decreasing the alley by seven feet because of alleged theft, 

trespass, vandalism, garbage dumping, loitering and graffiti on 

his property. Before he extended his back fence, residents were 

able to enter the alley on either end (Tampa or Vanalden) and 

drive through to the other. The decrease in the width of the alley 

on Vanalden, however, meant automobiles could no longer drive 

through the alley – they would now have to enter on Tampa 

Avenue and back up to exit. Many commercial delivery services 

refuse to enter the alley for this reason. 

After a two-day court trial, the court ruled as follows: “The 

court finds that the use of the alleyway, including that portion 

that falls within the Defendant’s property, to have been hostile to 

the true owner in that they were not acknowledging that the 

owner had the right to exclude them. It was done in an adverse 

manner in that they were claiming, each one of them, that they 
4

had the right to use that alleyway pursuant to prior agreement 

among all homeowners or based on prior usage within the 

neighborhood. And that was a claim of right that each one of 

them asserted. And that was contrary and adverse to the 

defendant’s claim of right to the property. [¶] And, further, the 

court finds that their use of this driveway was continuous and 

uninterrupted for five years prior to the erection of the sign.” 

DISCUSSION

I. Proof of the Element of Hostile Use for the 

Prescriptive Easement

Appellants contend the Respondents failed to prove the 

element of hostile use of the property on two bases: a) “the 

original homeowners had a verbal agreement as a neighbor 

accommodation which permitted access to 7 [feet] of their 

respective property lines for access to the [a]lley,” and, b) the 

Appellants posted a sign establishing a permissive use. We 

disagree.

A. Legal Principles 

“To establish the elements of a prescriptive easement, the 

claimant must prove use of the property, for the statutory period 

of five years, which use has been (1) open and notorious; (2) 

continuous and uninterrupted; (3) hostile to the true owner; and 

(4) under claim of right.” (Mehdizadeh v. Mincer (1996) 46 

Cal.App.4th 1296, 1305.) 

The Appellants contend the element of hostile use of the 

property was not established. As the Respondents point out, this 

challenges the sufficiency of the evidence supporting the trial 

court’s decision as a trier of fact in a court trial on the element of 

hostile use. “Whether the use is hostile or is merely a matter of 

neighborly accommodation . . . is a question of fact to be 
5

determined in light of the surrounding circumstances and the 

relationship between the parties. [Citations.]” (Warsaw v. 

Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572.)

“In reviewing the sufficiency of the evidence, our task 

begins and ends with a determination whether any substantial 

evidence exists, contradicted or uncontradicted, which will 

support the trier of fact’s conclusion. [Citation.]” (Hellman v. La 

Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1229.) 

“[A] reviewing court will not find unsupported the trial court’s 

findings merely because it might reasonably draw different 

inferences from those the trial court reasonably drew unless it 

clearly appears that under no hypothesis is there substantial 

evidence to support the trier of fact’s finding. [Citation.] 

Questions of credibility and resolution of conflicting evidence are 

for the trier of fact. [Citation.]” (Ibid.) 

B. The Agreement

Appellants claim the Respondents failed to establish that 

their use of the alley was hostile and adverse because “[t]he 

[a]lley was created by an oral agreement amongst the original 

homeowners, which was ratified by their conduct of allocating 7 

[feet] of their property to create the [a]lley.” 

During cross-examination of Robert Alan Scott called by 

the Respondents, appellant Bahman Khodayari asked whether 

Scott was upset with him. Scott responded:

“I am upset that you, without asking anyone else’s 

permission, chose to violate an agreement that had been in place 

for many decades.” 

Scott further testified that when he purchased his property, 

his next-door neighbor had explained that in 1952, everyone had 

agreed to give away seven feet of their property to create an alley. 
6

Similar testimony came from another one of Respondents’ 

witnesses, Wyllyam Davey. During cross-examination by 

appellant Bahman Khodayari, Davey testified, “In 1950 my mom 

and dad granted - - the whole neighborhood let them do that. So 

[the alley’s] been open since 1950. Okay.”

Appellants cite Windsor Pacific LLC v. Samwood Co., Inc. 

(2013) 213 Cal.App.4th 263 for the rule that, “[u]se with the 

owner’s permission . . . is not adverse to the owner. [Citations.]”

(Id. at p. 271.) Windsor goes on the explain, “[t]o be adverse to 

the owner a claimant’s use must give rise to a cause of action by 

the owner against the claimant. [Citations.] This ensures that a 

prescriptive easement can arise only if the owner had an 

opportunity to protect his or her rights by taking legal action to 

prevent the wrongful use, yet failed to do so. [Citations.]” (Ibid.)

It stands to reason, if the owner of a property has given 

permission to the claimant to use the property, the owner would 

have no reason to protect his property as he is the one who 

permitted the use. The relationship is clearly not hostile.

Such is not true here. First, Appellants, if they wanted the 

trial court to seriously consider this issue, could have developed 

this defensive theory of “permissive” use in greater detail. As it 

was, the testimony on this supposed oral agreement was thin, 

secondhand, and unclear. The trial court was not provided with 

any definite information about who may have originally agreed, 

what the terms of the agreement may have been, or whether 

there actually ever was an agreement. Other than to establish 

that Respondents believed they had a right to use the alley, very 

little about the oral agreement was actually established. It was 

up to the Appellants, if they chose to rely upon it at trial, to 
7

develop it. They failed to do so. The trial court can only base its 

decision on the facts presented. 

Furthermore, there is no evidence in the record that the 

Appellants even knew of the existence of the supposed oral 

agreement before the trial. The purpose of the rule is to provide 

owners with an opportunity to take legal action against 

encroachers to eject them. The rationale for the rule simply does 

not apply to the facts of this case. The Appellants failed to 

provide the trial court with sufficient facts for it to rule in their 

favor.

Indeed, the trial court saw this testimony as supportive of 

another element – that the Respondents believed they had a 

claim of right to use the alley. 

C. Posted Sign

Appellants contend when they purchased the property in 

2004, a sign was posted on the back fence which read: “A Private 

Lane [sic], For Residents ONLY, By Permission Of Owner Of 

This Property, No Trespassing, No Dumping, No Parking, No 

Loitering.” Appellants claim during Scott’s testimony, he

admitted to seeing this sign. The question and answer went as 

follows:

“[Counsel for Plaintiffs:] Okay. You see that sign?

“[Mr. Scott:] Uh-huh.

“[Counsel for Plaintiffs:] Have you ever seen that sign 

before other than today?

“[Mr. Scott:] Yeah.

“[Counsel for Plaintiffs:] Where did you see it?

“[Mr. Scott:] I’ve seen it at the end on Tampa.

“[Counsel for Plaintiffs:] That same exact sign?
8

“[Mr. Scott:] No. Not the same exact sign. But, it’s a 

private lane for residents only.

“[Counsel for Plaintiffs:] My question is have you ever seen 

that sign?

“[Mr. Scott:] No.”

Appellants cite Villanueva v. City of Colton (2008) 

160 Cal.App.4th 1188 and invoke the doctrine of judicial estoppel. 

“Judicial estoppel, sometimes referred to as the doctrine of 

preclusion of inconsistent positions, prevents a party from 

‘asserting a position in a legal proceeding that is contrary to a 

position previously taken in the same or some earlier proceeding.

The doctrine serves a clear purpose: to protect the integrity of the 

judicial process.’ ” (7 Witkin, Cal. Procedure (5th ed. 2020) 

Judgments, § 339.) This doctrine is often cited when a party, 

seeking to avoid an adverse ruling by the court, claims as true 

facts inconsistent with a position taken earlier in the same or

related proceedings. The doctrine is aimed at curtailing legal 

gamesmanship. 

Scott’s testimony does not fit within the reach of this rule.

Instead, when a witness makes a statement that may be 

inconsistent with a prior statement, it is the trier of fact’s duty to 

ascertain credibility. (People v. Zapien (1993) 4 Cal.4th 929, 956.) 

Here, it is difficult to say Scott’s testimony contained any 

inconsistency at all. If there was any, it was the trial court’s duty 

as the trier of fact to resolve it.

On this contention, Appellants also ask us to consider a 

letter from the previous owner, Greg Reed. During the 

presentation of evidence, the trial court excluded this letter based 

on lack of foundation. “It is an elementary rule of appellate 

procedure that, when reviewing the correctness of a trial court’s 
9

judgment, an appellate court will consider only matters which 

were part of the record at the time the judgment was entered. 

[Citation.]” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 

800, 813.) By this rule, we are prevented from considering Greg 

Reed’s letter.

On this same topic, Appellants also contend the trial court 

abused its discretion by denying their mid-trial continuance to 

call Greg Reed. “The decision to grant or deny a continuance is 

committed to the sound discretion of the trial court. [Citation.] 

The trial court’s exercise of that discretion will be upheld if it is 

based on a reasoned judgment and complies with legal principles 

and policies appropriate to the case before the court. [Citation.] 

A reviewing court may not disturb the exercise of discretion by a 

trial court in the absence of a clear abuse thereof appearing in 

the record.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 

984–985.) California Rules of Court, rule 3.1332(c), provides in 

pertinent part, “Although continuances of trials are disfavored, 

each request for a continuance must be considered on its own 

merits. The court may grant a continuance only on an 

affirmative showing of good cause requiring the continuance.”

After appellant Bahman Khodayari finished testifying in 

his own defense, he was asked by the trial court if he had any 

further witnesses. He replied, “At this point, I cannot reach 

them. But if the Court is willing to continue, I will call to the 

previous owner from 2004. But that person has to be - - come 

another day. Not today.” The trial court denied the request 

stating, “The court is going to deny the request to continue the 

trial. Any witnesses for either side should have been subpoenaed 

to court for this date. Because defendant has already indicated 
10

he did not subpoena him, apparently this gentleman to trial, then 

I see no basis for continuing the trial.” 

Respondents filed their complaint on December 22, 2017. 

The trial occurred on January 29 and 30, 2019. Appellants had 

over a year to locate and subpoena their witnesses, including 

witness Reed. At the time of Appellants’ request, all the 

testimony had concluded. Appellants’ request was unspecific on 

due diligence and on the potential success of obtaining Reed’s 

appearance. Based on these factors, the trial court’s denial was 

within its sound discretion. 

On the issue of the posted sign, the trial court ultimately 

ruled, “The court did not find credible [Appellants’] testimony, 

and this will be both [Appellants’] testimony, that there was a 

sign placed on the back fence - - this is Exhibit 3 - - as all of the 

[Respondents] and Mr. Scott denied ever seeing this alleged sign. 

There was no photograph anywhere showing that it actually had 

been placed in a visible place prior to the fence being erected in 

2016.” 

The trial court found the main evidence provided through 

the testimony of the Appellants not credible. Factual disputes 

are resolved by the trier of fact, here, the trial court. “It is 

elementary that an appellate court does not weigh or resolve 

conflicts in the evidence nor does it judge the credibility of 

witnesses.” (Halagan v. Ohanesian (1967) 257 Cal.App.2d 14, 

17.) After review of the record, we hold substantial evidence 

supports the trial court’s decision that Respondents proved all 

the elements necessary for a prescriptive easement including the 

element of hostile use of the property.
11

II. Exclusive Easement/Adverse Possession

Appellants contend the trial court “essentially quieted title 

to the 7 [feet] strip of land in the [a]lley which was Appellants’ 

[p]roperty without any satisfaction of the requirements of adverse 

possession.” We disagree.

“There is a difference between a prescriptive use of land 

culminating in an easement (i.e., an incorporeal interest) and 

adverse possession which creates a change in title or ownership 

(i.e., a corporeal interest); the former deals with the use of land, 

the other with possession; although the elements of each are 

similar, the requirements of proof are materially different. 

[Citations.]” (Raab v. Casper (1975) 51 Cal.App.3d 866, 876.)

Appellants cite Silacci v. Abramson (1996) 45 Cal.App.4th 

558 and argue the trial court’s judgment granted an exclusive 

easement to the Respondents. Appellants, however, do not show 

how the trial court’s judgment created an “exclusive” as opposed 

to a “non-exclusive” easement.

Our review of the record shows the easement at issue here 

is for the use of seven feet of the Appellants’ property for an alley. 

None of the Respondents are claiming a right to possess 

Appellants’ land. On the contrary, they simply want the use of 

the seven feet at the mouth of the alley on Vanalden so that 

automobiles can pass through the alley without having to back up 

to exit. The pertinent question is whether the easement was to 

obtain an incorporeal, as opposed to, a corporeal interest. Here, 

it is clear, the Respondents were seeking an incorporeal interest 

to use Appellants’ property as an alley.

III. Standard of Proof

The Appellants contend the proper standard of proof in 

deciding a prescriptive easement case is clear and convincing and 
12

that since the trial court, in its statement of decision, used the 

preponderance of the evidence standard, the trial court erred 

requiring a reversal of the judgment. We disagree.

Currently, there is a split of opinion on the proper standard 

to be applied in a prescriptive easement case. Appellants cite 

Grant v. Ratliff (2008) 164 Cal.App.4th 1304 (Grant) which held 

that the clear and convincing standard is the correct one for 

resolving prescriptive easement disputes. (Id. at p. 1310 [“a 

party seeking to establish a prescriptive easement has the 

burden of proof by clear and convincing evidence”].) Vieira 

Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057 (Vieira) 

reviewed Grant’s line of authority and disagreed. (Id. at p. 1074, 

declined to follow in Husain v. California Pacific Bank (2021) 

61 Cal.App.5th 717 (Husain).)3

On this, Vieira said, “[w]e recognize that a short line of

authority has stated that ‘a party seeking to establish a 

prescriptive easement has the burden of proof by clear and 

convincing evidence.’ (Grant[, supra,] 164 Cal.App.4th 1304, 

1310 [79 Cal.Rptr.3d 902] . . . .) Grant cited Brewer v. Murphy

(2008) 161 Cal.App.4th 928, 938 [74 Cal.Rptr.3d 436], in support 

of this proposition, which in turn cited Applegate v. Ota (1983) 

146 Cal.App.3d 702, 708 [194 Cal.Rptr. 331] . . . , which in turn 

referred generally to Stromerson v. Averill (1943) 22 Cal.2d 808 

[141 P.2d 732] (Stromerson).” (Vieira, supra, 8 Cal.App.5th at 

p. 1074.)

In analyzing Grant’s line of authority stemming from the 

Stromerson case, Vieira noted a two-fold problem – first, the 

3 Husain recognized the split in footnote 4 but did not 

analyze why clear and convincing is the proper standard.
13

claim in Stromerson did not involve litigation over a prescriptive 

easement, but instead, dealt with a judgment quieting title on a 

claim of constructive fraud. (Vieira, supra, 8 Cal.App.5th at p. 

1074.) Second, the Vieira court observed that the California 

Supreme Court, in the case, Liodas v. Sahadi (1977) 19 Cal.3d 

278 (Liodas), determined that the proper standard of proof in a 

civil fraud case is preponderance of the evidence instead of the 

clear and convincing standard. (Id. at p. 282.) 

We also have reviewed Grant’s line of authority and reach 

the same conclusion. The original source for this line of authority 

is Stromerson, a case published in 1943 which applied the clear 

and convincing standard to a civil fraud cause of action. As 

pointed out in Vieira, Liodas changed the standard in civil fraud 

to a preponderance of the evidence. (Liodas, supra, 19 Cal.3d at 

p. 291 [“we observe that in proposing an appropriate jury 

instruction on the standard of proof of fraud, the editors of 

California Jury Instructions, Civil, recommend . . . the jury be 

instructed to determine all issues of fraud by the ordinary civil 

standard of preponderance of the evidence. [Citation.] We 

approve the recommendation.”].) The standard used in 

Stromerson that served as the original source for Grant’s line of 

authority shifted decades ago in Liodas. 

“Evidence Code section 115 states in pertinent part:

‘Except as otherwise provided by law, the burden of proof 

requires proof by a preponderance of the evidence.’ The ‘law’ 

referred to in Evidence Code section 115 is not limited to 

statutory law; it includes constitutional and decisional law. 

[Citation.] Therefore, ‘[t]he default standard of proof in civil 

cases is the preponderance of the evidence,’ unless otherwise 

indicated by constitutional, statutory, or decisional laws. 
14

[Citation.]” (Baxter Healthcare Corp. v. Denton (2004) 120 

Cal.App.4th 333, 364-365.) As in Vieira, we hold the proper 

standard in a prescriptive easement case is the default one for 

civil cases as set forth in Evidence Code section 115 -

preponderance of the evidence.

Assuming the trial court erred, we find no prejudice. For 

errors of state law, “No judgment shall be set aside, or new trial 

granted, in any cause, on the ground of misdirection of the jury, 

or of the improper admission or rejection of evidence, or for any 

error as to any matter of pleading, or for any error as to any 

matter of procedure, unless, after an examination of the entire 

cause, including the evidence, the court shall be of the opinion 

that the error complained of has resulted in a miscarriage of 

justice.” (Cal. Const., art. VI, § 13.) “The effect of this provision 

is to eliminate any presumption of injury from error, and to 

require that the appellate court examine the evidence to 

determine whether the error did in fact prejudice the defendant. 

Thus, reversible error is a relative concept, and whether a slight 

or gross error is ground for reversal depends on the 

circumstances in each case.” (6 Witkin & Epstein, Cal. Criminal 

Law (4th ed. 2021) Reversible Error, § 1.)

“In contrast to errors having a basis in the federal 

Constitution, the so-called Watson standard applies generally to 

all manner of trial errors occurring under California law, 

precluding reversal unless the error resulted in a miscarriage of 

justice. [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 

780, 801, fn. omitted.) “Although the Watson standard is most 

frequently applied in criminal cases, it applies in civil cases as 

well.” (Ibid.) “Accordingly, errors in civil trials require that we 

examine ‘each individual case to determine whether prejudice 
15

actually occurred in light of the entire record.’ [Citations.]” (Id.

at pp. 801-802.) “[A] ‘miscarriage of justice’ should be declared 

only when the court, ‘after an examination of the entire cause, 

including the evidence,’ is of the ‘opinion’ that it is reasonably 

probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.” (People v. 

Watson (1956) 46 Cal.2d 818, 836.)

Conservatorship of Maria B. (2013) 218 Cal.App.4th 514 

(Maria B.) involved a petition by the conservator on behalf of a 

developmentally disabled adult conservatee to obtain a medical 

procedure (hysterectomy and oophorectomy) to alleviate 

menstrual migraines. (Id. at pp. 520-522.) Since the medical 

procedure impacted the conservatee’s fundamental right to 

procreate, the heightened clear and convincing standard applied. 

However, the trial court used the preponderance standard which 

was error. (Id. at pp. 525-526.) In finding no prejudice, the court 

noted, “Here, [the conservatee’s] counsel failed to explain how the 

result would have been any different if the trial court had applied 

the clear and convincing evidence standard of proof instead of the 

preponderance of the evidence standard.” (Id. at p. 533.)

As in Maria B., Appellants provide little analysis on how 

the outcome would have been different had the trial court used 

the clear and convincing standard. Appellant argues, “The trial 

Court in using the preponderance of the evidence standard in 

making its ruling, looked over the essential elements of a 

prescriptive easement. The trial Court made conclusory 

determinations of equity and law when there was substantial 

evidence to the contrary of hostile and adverse use of Appellants 

[sic] Property.” 
16

Our review of the record shows Respondents presented five 

witnesses4 who testified in like manner, that: (1) they have used 

the alley for many years (more than five), (2) they never sought 

permission from the Appellants to use the alley, (3) they believed 

they had a right to use the alley, (4) in 2016, Appellants extended 

their back wall seven feet into the alley making automobile 

ingress/egress very difficult as cars can only enter through 

Tampa Avenue, and (5) they did not see a sign posted at 

Appellants’ property.5 To counter this evidence, Appellants both 

testified a sign was posted on their property to establish 

“permissive” use to negate the element of hostile use.

Resolving this trial, as in many cases, boiled down to a 

credibility contest. Determining whether a witness is credible is 

not dependent on the standard of proof. Be it preponderance of 

the evidence, clear and convincing, or beyond a reasonable doubt, 

the trier of fact’s duty is the same – resolve whether the witness’s 

testimony is worthy of belief. The only evidence helpful to the 

Appellants was flatly rejected when the trial court as the trier of 

fact expressly found their testimony not credible. There was no 

prejudice.

4 Witnesses called by the Respondents were Drew 

Lobenstein, Robert Alan Scott, Christopher Becker, Wyllyam 

Davey, and Russell O’Hearn.

5 As noted in section I(B) of this opinion, Scott and Davey 

also talked about an oral agreement by the original owners that 

each owner ceded seven feet of their own properties to create the 

alleyway.
17

DISPOSITION

The judgment of the trial court is affirmed. The stay on the 

Writ of Supersedeas is lifted. Respondents to recover their costs 

on appeal.

OHTA, J.*

We concur:

GRIMES, Acting P. J.

WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.