Filed 4/12/22 Mori v. Murdock CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SETSUKO MORI et al.,

 Plaintiffs and Respondents,

v.

BRETT MURDOCK et al.,

 Defendants and Appellants.

 G058649

 (Super. Ct. No. 30-2017-00921063)

 O P I N I O N

Appeal from a judgment and postjudgment order of the Superior Court of 

Orange County, Geoffrey T. Glass and James Di Cesare, Judges. Affirmed.

Law Offices of Brett Murdock and Brett M. Murdock for Defendants and 

Appellants.

Law Offices of Russell P. Nowell and Russell P. Nowell for Plaintiffs and 

Respondents.

* * *
2

INTRODUCTION

This case disproves the old adage that good fences make good neighbors. 

Brett Murdock and Veronica Murdock (the Murdocks) discovered that the fence between 

their property and the property of their neighbors, Setsuko Mori Ogino and Hiroshi Ogino 

(the Oginos), was not on the property line, but rather was encroaching on the Murdocks’ 

property. The Murdocks built a new block wall on the property line, and the Oginos sued 

to quiet title to the disputed land. After a bench trial, the trial court created an equitable 

easement in the disputed land—approximately 15 square feet. The Murdocks appealed. 

We affirm.

Substantial evidence supports the trial court’s findings regarding the 

equitable easement, and the creation of the easement was within the court’s authority and 

jurisdiction. Further, the trial court did not err in denying the Murdocks relief from their 

waiver of a jury trial.

The Murdocks also appealed from an order denying them attorney fees in 

connection with the Oginos’ recordation of a lis pendens on the Murdocks’ property. We 

find no error in the court’s discretionary order, and therefore affirm that order as well.

STATEMENT OF FACTS

This case involves a property dispute between the owners of adjoining 

properties on South Pine Avenue and Maple Avenue in Brea, California. The two 

properties are adjoined for about 15 feet at the southwest corner of the Maple Avenue 

property and the northeast corner of the Pine Avenue property. 

The Oginos acquired the Pine Avenue property in 1989. When the Oginos

purchased the property, the real estate transfer disclosure statement stated the “[o]wner 

modified garage to accommodate workshop without benefit of permit.” 

In April 1996, Hiroshi Ogino built a chain link fence along the adjoining 

sections of the Pine Avenue and Maple Avenue properties; the owner of the Maple 
3

Avenue property at that time paid for half of the supplies and did not object to the 

placement of the chain link fence. 

The Murdocks acquired the Maple Avenue property in July 2015. In 

May 2017, the Murdocks decided to build a block wall along their south property line, a 

portion of which adjoins the Oginos’ property. In this process, the Murdocks learned the 

chain link fence was not on the property line, but was actually encroaching on their 

property.

Brett Murdock advised the Oginos the chain link fence was on his property, 

and that he planned to build the block wall along the official property line, which was on 

the Oginos’ side of the chain link fence, and closer to their garage and workshop than the 

existing chain link fence. Murdock offered to build the block wall “where the [Oginos] 

wanted it” if they paid him $7,500. The other neighbor whose property adjoins the 

Murdocks’ property paid the Murdocks $7,000 to place the block wall on the original 

fence line, which was on the Murdocks’ property.

Because the Oginos did not accept the Murdocks’ offer, Brett Murdock had 

the chain link fence torn down and the block wall built closer to the Oginos’ garage. The 

wall is not in a straight line; along the Oginos’ property it runs on the property line, while 

the rest of the way it is about six inches off the property line and on the Murdocks’ 

property.

The placement of the block wall prevents the Oginos from using the space 

between their garage and the block wall. Hiroshi Ogino had used this space to move the 

lawn mower and other yard equipment. The unpermitted garage is too close to the 

property line, and the Oginos have been advised they may need to remove part of the 

garage. The cost to remove and rebuild the garage would be between $40,000 and 

$50,000.

Both the Murdocks’ expert witness and a surveyor hired by the Oginos 

testified the chain link fence was on the Murdocks’ property. 
4

PROCEDURAL HISTORY

The Oginos filed a complaint in May 2017 to quiet title to the 15 foot by

14.5-inch strip of land at which the properties are adjoined. The complaint also alleged 

that the Murdocks had trespassed on the Oginos’ property, and sought damages against 

the Murdocks for that trespass.

The Oginos sought a temporary restraining order and a preliminary 

injunction to prevent the Murdocks from building the proposed block wall. The trial 

court denied the requested injunctive relief, but noted that if the Oginos prevailed at trial, 

the Murdocks would be required to remove the wall or pay damages for it. “[The 

Murdocks] have acknowledged that, if required, they will remove the wall and the court

further notes that [the Murdocks] will not be able to argue in future hearings that removal

of the wall will be a substantial burden upon them; they take the risk of having to remove

the wall and restore the property to the preconstruction state if [the Oginos] prevail.”

In October 2017, the Oginos recorded a lis pendens against the Murdocks’ 

property. This action followed the Murdocks’ filing of a motion for judgment on the 

pleadings, which asserted, among other arguments, that the Oginos could not state a 

cause of action to quiet title because they had not recorded a lis pendens. In December 

2017, the Murdocks filed a motion to expunge the lis pendens and enter judgment against 

the Oginos. The trial court denied that motion. In November 2018, the Murdocks filed 

another motion to expunge the lis pendens; the Oginos filed a notice of non-opposition

and the trial court granted the motion while noting in its minute order that it was “not 

inclined to award fees or costs for, essentially, a stipulation. Further, moving party is a 

lawyer representing himself and therefore would not be able to recover his professional 

fees.”
5

At a case management conference on July 2, 2018, the trial court set the 

matter for a five-day jury trial on January 2, 2019. The Murdocks filed a notice of 

posting jury fees on December 3, 2018. 

The Oginos’ counsel’s declaration regarding compliance with rule 317 of 

the Superior Court of Orange County Local Rules, filed December 28, 2018, stated in 

part, “[Brett] Murdock has requested a jury trial, but paid jury fees after the deadline, 

resulting in an automatic waiver of a jury under the Code. This issue should be resolved 

so that we can determine whether jury instructions [are] required.” 

On January 2, 2019, the case was placed on the trailing trial list. At the 

parties’ request, January 22, 2019 was selected as the continued trial date. On January 

22, the Murdocks requested relief from their waiver of jury trial for the first time. The 

next morning, the court found the Murdocks had waived a jury trial, and denied their 

request for relief from the waiver.

After the bench trial, the court issued a minute order containing a tentative 

decision awarding the Oginos an equitable easement to the disputed land, followed by a 

13-page statement of decision addressing each controverted issue identified in the 

Murdocks’ request for a statement of decision. Judgment was entered in June 2019. The 

judgment required the Oginos to pay the Murdocks $2,000 “as the reasonable value of the 

equitable easement.” The judgment also ordered Brett Murdock to remove the section of 

the block wall upon the newly created easement.

1

The Murdocks filed a motion for attorney fees pursuant to Code of Civil 

Procedure section 405.38. The trial court denied the motion. The Murdocks filed a 

notice of appeal from the judgment and postjudgment order denying attorney fees. 

1

 The trial court also awarded damages to the Oginos based on Brett Murdock’s trespass; 

this portion of the judgment is not challenged on appeal.
6

DISCUSSION

I.

THE TRIAL COURT DID NOT ERR IN CREATING AN EQUITABLE EASEMENT.

The trial court’s use of its equitable authority to create an equitable 

easement is reviewed for abuse of discretion. (Hirshfield v. Schwartz (2001) 91 

Cal.App.4th 749, 771; see City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 

1224, 1256.) We review the trial court’s express and implied factual findings for 

substantial evidence. (Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 

1009.) The appellate record does not show that the Murdocks objected to the trial court’s 

statement of decision. Therefore, we will imply any necessary findings to support the 

judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)

A. Substantial evidence supports the creation of an equitable easement.

The trial court had the discretionary authority to require the Murdocks to 

accept damages as compensation for the creation of an equitable easement on their 

property in favor of the Oginos if (1) the Oginos’ trespass on the Murdocks’ property was 

innocent and not willful or negligent, (2) the Murdocks would not be irreparably injured 

by the easement, and (3) the hardship to the Oginos if they were required to cease the 

trespass on the Murdocks’ property would be greatly disproportionate to the hardship to 

the Murdocks if their encroachment continued. (Shoen v. Zacarias (2015) 237 

Cal.App.4th 16, 19.)

Substantial evidence supports the trial court’s findings that all three

prerequisites were established in this case. First, the trial court found that the Oginos 

were, at most, innocent trespassers. The Oginos installed their chain link fence in 1996 

with the permission of the Murdocks’ predecessors-in-interest, and that fence was 

consistent with the physical boundaries of the adjoining property. Further, the Oginos’ 

property “met the setback standards of the City of Brea, based upon historic and physical 
7

boundaries.” On appeal, the Murdocks do not challenge that the Oginos met this 

requirement for an equitable easement.

Second, “[t]he public and the Murdocks will not be irreparably injured by 

the easement. In fact, having the block wall without discontinuities would adjure to [sic] 

common and classical notions of architectural aesthetics. The Murdocks presented no 

credible evidence of any injury from keeping [the] wall in a more natural line.” 

On appeal, the Murdocks make two arguments. Initially, they argue that 

the Oginos failed to present any evidence on the irreparable harm element. We disagree. 

In response to the trial court’s questioning, Veronica Murdock testified the Murdocks had 

never used the property in dispute because a wooden fence was on the Murdocks’ 

property on their side of the official property line. Thus, the strip of land in question was 

essentially inaccessible to them. 

Additionally, the Murdocks argue that their inability to use the strip of land 

“that they rightfully own is irreparable injury enough.” But the Murdocks have not 

shown that they have any use for the strip of land. Further, the Murdocks admitted they 

had been willing to give up the use of the disputed land permanently in exchange for 

$7,500. The trial court required the Oginos to pay $2,000 as the reasonable value of the 

easement. It seems disingenuous for the Murdocks to now claim they have been 

irreparably harmed because they will be receiving $5,500 less for the loss of that land. 

As the trial court found, the Murdocks effectively sold a longer strip of land to their other 

neighbors for $7,000, and placed what the court referred to as a “jog” in the block wall in 

order to “spite” the Oginos.

Third, “[t]he imposition on the [Oginos] of allowing the block wall was 

comparatively large. The City of Brea has certain setback rules that the block wall 

violated. The rules, among other reasons, are intended to allow access to emergency 

personnel, including fire safety personnel. It is [the City of] Brea’s right and obligation 

to pay attention to those setbacks. The [Oginos] would have to expend time and money 
8

to either move or remove their structures or try to get a waiver from the City of Brea, 

with no guarantee of success. The court finds that the [Oginos’] injury, if the wall stays, 

far exceeds the injury to the Murdocks, if the wall moves. The court considers the 

hardship to the [Oginos] to be greatly disproportionate to the hardship to the Murdocks.” 

The Oginos offered evidence of what it would cost to rebuild their garage, 

as well as evidence of the general inconvenience they faced due to the position of the 

block wall. While the Murdocks note that the city’s setback requirements are tied to the 

property line rather than the placement of a wall or fence, it is important to note that the 

setbacks were never an issue until the block wall was built.

All findings necessary to the creation of an equitable easement were 

supported by substantial evidence.

B. An equitable easement was within the relief sought by the Oginos.

The Murdocks argue they were denied due process when the trial court

created an equitable easement—a remedy not specifically called for in the Oginos’ 

complaint. As the California Supreme Court has held, however, “[t]he novelty of the 

incident is no bar to its recognition as an easement if its creation violates no principle of 

public policy.” (Wright v. Best (1942) 19 Cal.2d 368, 382.) 

Indeed, the concept of an equitable easement arises when another type of 

easement is unavailable. “In appropriate cases in which the requirements for traditional 

easements are not present, California courts have exercised their equity powers to fashion 

protective interests in land belonging to another, sometimes referring to such an interest 

as an ‘equitable easement.’” (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008; see 

Ranch at the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 155, 165-166, 183 [appellate 

court addresses propriety of equitable easement based on Shoen test requirements, 

although no cause of action for equitable easement was alleged].)

The trial court did not act in excess of its jurisdiction in creating an 

equitable easement.
9

C. The equitable easement created by the trial court is not a prohibited 

prescriptive easement.

The Murdocks argue the rule that prescriptive easements are improper as a 

remedy for “backyard disputes” also applies to equitable easements. “The notion of an 

exclusive prescriptive easement, which as a practical matter completely prohibits the true 

owner from using his land, has no application to a simple backyard dispute.” (Silacci v. 

Abramson (1996) 45 Cal.App.4th 558, 564; see Mehdizadeh v. Mincer (1996) 46 

Cal.App.4th 1296, 1308.) 

In Hirshfield v. Schwartz, supra, 91 Cal.App.4th 749, the court held that the 

cases holding that a prescriptive easement is “an unlawful remedy in residential boundary 

disputes” are inapplicable in cases where the trial court has created an easement through 

its equity power. (Id. at p. 764.) We reject the Murdocks’ contention that the equitable 

easement was improper in this case.

II.

THE TRIAL COURT DID NOT ERR IN DENYING THE MURDOCKS’ REQUEST 

FOR ATTORNEY FEES.

The Murdocks requested an award of attorney fees pursuant to Code of 

Civil Procedure section 405.38, which provides: “The court shall direct that the party 

prevailing on any motion [for expungement of a lis pendens] be awarded the reasonable 

attorney’s fees and costs of making or opposing the motion unless the court finds that the 

other party acted with substantial justification or that other circumstances make the 

imposition of attorney’s fees and costs unjust.” (Code Civ. Proc., § 405.38, italics 

added.)

Whether and how much to award as attorney fees to a party prevailing on a 

motion to expunge a lis pendens are matters for the trial court’s discretion. (Castro v. 

Superior Court (2004) 116 Cal.App.4th 1010, 1017.)
10

In the minute order denying the motion for attorney fees, the trial court 

made the following findings:

(1) the Murdocks “specifically demanded” that the Oginos record a 

lis pendens in order to proceed with the case; 

(2) soon after the Oginos recorded the lis pendens, the Murdocks filed a 

motion to expunge, which the court denied; 

(3) when the Murdocks filed a second motion to expunge, the Oginos filed 

a notice of non-opposition and stated they would have agreed to stipulate to the

expungement.

Based on these findings, the trial court concluded that the imposition of 

attorney fees in favor of the Murdocks and against the Oginos would be unjust, and 

therefore denied the motion for attorney fees. 

When a lis pendens is withdrawn while a motion to expunge is pending, the 

trial court must use a “practical approach to determine the prevailing party based on the 

trial court’s determination of which party realized its objectives in the proceeding. Such 

a determination requires the trial court to consider the merits of the motion, and whether 

the lis pendens claimant acted with substantial justification in withdrawing the 

lis pendens, or whether, in light of all of the circumstances, the imposition of fees would 

otherwise be unjust.” (Castro v. Superior Court, supra, 116 Cal.App.4th at p. 1014, 

fn. omitted.)

Under this practical approach, “there may . . . be facts and circumstances 

militating against imposing attorney fees and costs on the lis pendens claimant. The trial 

court must consider whether the withdrawal of the lis pendens was for reasons unrelated 

to the merits of the motion.” (Castro v. Superior Court, supra, 116 Cal.App.4th at 

p. 1023.)

In this case, the trial court found that the Oginos recorded the lis pendens 

only because the Murdocks demanded they do so, and the Oginos were willing to 
11

stipulate to the withdrawal of the lis pendens and did not oppose the motion to expunge. 

The court therefore found that the Oginos had acted with substantial justification in 

recording the lis pendens, and that the award of attorney fees and costs to the Murdocks 

would be unjust. There was no abuse of discretion by the trial court in denying the 

Murdocks’ motion for attorney fees.

III.

THE MURDOCKS WAIVED A JURY TRIAL BY FAILING TO TIMELY POST JURY FEES; THE TRIAL 

COURT DID NOT ERR IN DENYING THEIR REQUEST FOR RELIEF FROM WAIVER.

Except for certain factual situations not applicable here, jury fees must be

paid “on or before the date scheduled for the initial case management conference in the 

action.” (Code Civ. Proc., § 631, subd. (c).) The failure to timely pay jury fees waives 

the right to a trial by jury. (Id., § 631, subd. (f)(5).) 

The case management conference in this case was held on July 2, 2018, at 

which time trial was set for January 2, 2019; neither party timely posted jury fees. The 

Murdocks do not dispute that they failed to post jury fees on time. 

Code of Civil Procedure section 631, subdivision (g) allows the trial court, 

in its discretion, to permit a jury trial despite a waiver. (Gonzales v. Nork (1978) 20 

Cal.3d 500, 507.) Among the factors a trial court may consider in determining whether to 

grant relief from waiver are the possibility of delay in rescheduling a jury trial, the 

timeliness of the request for relief, whether the waiver was the result of excusable 

surprise or mistake, and whether relief would cause prejudice to the other litigants. 

(Gonzales v. Nork, supra, 20 Cal.3d at p. 509; Still v. Plaza Marina Commercial Corp.

(1971) 21 Cal.App.3d 378, 388; Hayden v. Friedman (1961) 190 Cal.App.2d 409, 412.) 

“A court does not abuse its discretion where any reasonable factors supporting denial of 

relief can be found even if a reviewing court, as a question of first impression, might take 

a different view.” (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 

1704.)
12

The Murdocks posted jury fees on December 3, 2018—five months late. 

The Oginos raised the waiver issue in a December 28 filing regarding the parties’ pretrial 

meet and confer. On January 2, 2019, the trial was trailed until the following day; on 

January 3 it was trailed to January 22, at which time the trial began. Sometime on the

afternoon of January 22, the Murdocks for the first time requested relief from waiver of 

jury trial. After taking the matter under consideration, the trial court denied the request 

for relief. 

The trial court explained its reasons for denying relief in its statement of 

decision. First, the court found that the Murdocks had unreasonably delayed in seeking 

relief from their waiver. The court found that the Murdocks could have brought their 

request for relief any time after July 2, 2018, and that the Oginos had advised the 

Murdocks and the court in writing no later than the end of December that they contended 

a jury trial had been waived. Yet the Murdocks did not seek relief from their waiver until 

the afternoon of the first day of trial in late January.

Second, the court found that there was no surprise to or excusable mistake 

by the Murdocks because Brett Murdock is an attorney who should have known the 

requirements of the law. As the court stated in the statement of decision: “The surprise 

that will justify a party’s relief from a jury waiver in a civil case must be some condition 

or situation in which the party is unexpectedly placed to the party’s injury, without any 

default or negligence of the part of the party, which ordinary prudence could not have 

guarded against. [Citation.] The failure of an attorney to know the provisions of the 

Code of Civil Procedure is negligence that ordinary prudence could have avoided. The 

existence of a code section is not sufficient surprise to grant relief from the waiver.”

Third, the court considered the potential for delay. The court found that the 

scheduling of a jury trial to consider legal issues after the court considered equitable 

issues could result in significant delays and inconvenience to witnesses who might be 

called to testify twice.
13

Finally, the court found that the Oginos would be prejudiced by granting 

relief from waiver. The Oginos had prepared for a shorter bench trial, and the need to 

prepare instead for a longer jury trial would cause them prejudice. (Gann v. Williams

Brothers Realty, Inc., supra, 231 Cal.App.3d at pp. 1703, 1704-1705 [request for relief 

from waiver made five days before trial would “work a hardship” in nonmoving party’s

trial preparation, justifying denial of the request].)

The Murdocks contend they were deprived of their constitutional right to a 

jury by the trial court’s refusal to grant them relief. Not so. The law is clear that when a 

jury trial has been waived due to a litigant’s failure to deposit jury fees, “the litigant is not 

thereby deprived of a constitutional right.” (Byram v. Superior Court (1977) 74 

Cal.App.3d 648, 650; see Davis v. Conant (1935) 10 Cal.App.2d 73, 75.) 

The trial court did not abuse its discretion in denying the Murdocks’ request 

for relief from waiver of jury trial.

DISPOSITION

The judgment and postjudgment order are affirmed. Respondents to 

recover costs on appeal.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

SANCHEZ, J.