Filed 1/26/21 Van Taylor v. Ivie CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THRIS VAN TAYLOR,

Plaintiff and Appellant,

v.

RICKEY IVIE et al.,

Defendants and Appellants.

B281545

Los Angeles County

Super. Ct. Nos.

BC268576, BC317765, 

BS098998

APPEALS from a judgment and order of the Superior Court 

of Los Angeles County, Mark V. Mooney, Judge. Affirmed.

Thris Van Taylor, in pro. per, for Plaintiff and Appellant.

Richardson, Fair & Cohen, Manuel Dominguez, Mark 

Petersen; Ivie, McNeill & Wyatt, Chandler A. Parker; Ivie, 

McNeill, Wyatt, Purcell & Diggs and Rickey Ivie for Defendants 

and Appellants.

_______________________________________
2

INTRODUCTION

Appellant and cross-respondent Thris Van Taylor (Van 

Taylor) and respondents and cross-appellants Rickey Ivie and 

Eloise Ivie (the Ivies) are next-door neighbors. For almost 20

years, they have been involved in a dispute over a narrow strip of 

land and the block wall between their homes. The dispute has 

generated three trials and several appeals.1 Van Taylor contends 

that the block wall and the strip of land are on his property, and 

he sued the Ivies for trespass, nuisance, assault, and injunctive 

relief for using the wall and encroaching onto his land. In 

response, the Ivies claim joint ownership of the wall and seek an 

easement to use the land. After the third trial in 2016, the jury 

returned verdicts for Van Taylor on the trespass and nuisance 

claims and the Ivies’ claim for a prescriptive easement; and the 

trial court granted a nonsuit on Van Taylor’s cause of action for 

assault. After a subsequent bench trial on the equitable claims, 

the court granted Van Taylor a partial injunction, the Ivies an 

equitable easement, and found that the Ivies did not have an 

ownership interest in the wall. 

In this appeal, Van Taylor contends that reversible errors 

occurred during the jury trial and bench trial. Van Taylor asserts 

the jury’s $2,000 damages award on his trespass and nuisance 

claims was insufficient. He further complains that the court erred 

in instructing the jury and granting a nonsuit on his assault 

cause of action. Van Taylor also claims that in the bench trial, the 

court: (1) ignored this court’s directives from the prior appeals 

concerning the equitable claims; (2) entered an order that 

1 Mr. Van Taylor and Mr. Ivie are lawyers. 
3

conflicted with the jury’s verdict; and (3) erred in failing to award 

him additional damages. Finally, Van Taylor contends that he 

was entitled to an award of litigation costs. In the cross-appeal, 

the Ivies challenge the court’s failure to grant a judgment 

notwithstanding the verdict (JNOV) on their cause of action for a 

prescriptive easement and the court’s ruling in the bench trial 

denying them an ownership interest in the wall. As we shall 

explain, the parties have not demonstrated reversible error. 

Accordingly, we affirm the judgment and the order denying 

JNOV. 

FACTS AND PROCEDURAL BACKGROUND

1. The Parties and the Property

Since April 1988, Van Taylor has owned a home on the 

property (known as “Lot 35”) next door to the Ivies’ home on 

South Halm Avenue in a residential neighborhood of Ladera 

Heights, an unincorporated area in Los Angeles County. The 

Ivies purchased their property (known as “Lot 34”) in June 2000.2

Lot 34 and Lot 35 were developed and the parties’ homes were 

built in the mid-1960s. 

The legal property line between Lot 34 and Lot 35 is a 

straight line running east to west, approximately 116.54 feet 

2 The fact references are taken from the record filed in this appeal and 

from this court’s prior opinions in 2005 (Van Taylor v. Ivie (May 23, 

2005, B167277) [nonpub. opn.] (Van Taylor I), and in 2012 (Van Taylor

v. Ivie (Nov. 19, 2012, B206761 & B225934) [nonpub. opn.] (Van Taylor 

II).) Our 2014 opinion involved a court-ordered inspection of a fence 

and Van Taylor’s allegations against Rickey Ivie, his law partner, and 

an arborist, for assault and invasion of privacy during the inspection; 

the facts underlying the 2014 appeal are not relevant to this appeal. 

(See Van Taylor v. Ivie (Feb. 13, 2014, B239275) [nonpub. opn.].) 
4

from the front to the back of the lots. Lot 35 is south of the legal 

property line, and Lot 34 is north of the line. A hedge of 

vegetation grows approximately 40.5 feet along the north side of 

the property line from the sidewalk to the front of the homes. A 

six-foot-tall fence constructed of masonry blocks (the “wall”) 

divides the lots and runs parallel to the boundary line for 

approximately 77 feet to the back of the lots.3 The original owners 

of Lot 34, the Heisers, placed a wooden gate between the corner 

of the front of their home and the wall. In the 1980s, the second 

owner of the home on Lot 34, the Frattos, replaced the wooden 

gate with a wrought iron gate. 

The upright stem of the wall and approximately four inches 

of land (the “land”) immediately north of the wall, running the 

wall’s length, are located south of the legal property line. Thus, 

the wall and the land are entirely on Lot 35, Van Taylor’s 

property. However, part of the wall’s subterranean foundation

extends three to six inches across the legal property line into Lot 

34, the Ivies’ property. During the years before the Ivies 

purchased Lot 34, trees, including a pear tree, vegetation, 

electrical outlets, pipes, metal boxes, the wrought iron gate, and

other items serving Lot 34, had been placed on the land or 

attached to the north side of the wall. 

3 The wall consists of two components: the six-foot high upright 

section—the stem—and a subterranean concrete foundation which 

supports the stem; together the stem and the foundation form the 

shape of an upside down “T”. The foundation is attached to the wall at 

the base of the stem and from the base of the stem approximately eight 

inches of the foundation extends underground on both sides of the wall 

for the length of the wall.
5

2. The Dispute

In March of 2001, this dispute began when Van Taylor and 

the Ivies discussed Van Taylor’s desire to raise the wall’s height. 

Van Taylor asked the Ivies to trim the pear tree branches

overhanging the wall into his yard. The Ivies refused because 

they were concerned that cutting the tree might harm it. Van 

Taylor told the Ivies that he believed that he owned the block 

wall and the land next to it because they were located entirely on 

Lot 35. Subsequently, the Ivies commissioned a survey that 

confirmed Van Taylor’s statement about the legal property line’s 

location. 

After that, the Ivies agreed to trim the pear tree to allow 

Van Taylor to increase the wall’s height. However, when the Ivies 

and Van Taylor subsequently inspected the Ivies’ backyard next 

to the wall, Van Taylor requested that the Ivies remove the pear 

tree because he believed it was growing against the block wall, 

damaging it. The Ivies trimmed the pear tree but refused to 

remove it. In December 2001, Van Taylor served a written 

demand on the Ivies, requesting that they remove all trees, 

vegetation, electrical equipment, and other items from the wall 

and the land. 

3. The First Trial 

In February 2002, Van Taylor filed a lawsuit against the 

Ivies for (1) intentional infliction of emotional distress, (2) 

trespass, (3) negligent trespass, (4) nuisance, and (5) quiet title. 

(Super. Ct. Los Angeles County, No. BC268576). He sought a 

declaration that he was the legal owner of the wall and the land 

and that the Ivies had no right or interest in the property. He 

sought compensatory and punitive damages and a permanent 
6

injunction directing the Ivies to remove the trees, vegetation from 

the land, and other items attached to the wall. 

In April 2002, the Ivies filed a cross-complaint against Van 

Taylor seeking declaratory relief and an equitable easement or 

prescriptive easement. At the time, the Ivies did not claim an 

ownership interest in the wall; the cross-complaint acknowledged 

that Van Taylor’s predecessors who owned Lot 35 constructed the 

wall. The Ivies’ request for an easement was limited to using the 

wall and the land next to the wall to maintain the pear tree, 

vegetation, and other attachments to the wall. They alleged that 

they and the two prior owners of Lot 34 (the Heisers and the 

Frattos) had used and maintained the land north of the wall 

openly, continuously, and adversely for many years. 

In February 2003, the court bifurcated the trial and heard 

the equitable issues first, without a jury. In March 2003, after the 

bench trial, the court made numerous factual findings, including 

that (1) a prior owner of Lot 35 built the fence in the mid-1960s, 

at or about the time the homes were constructed; (2) the owners 

of Lot 34 had used and maintained the north side of the fence and 

the narrow strip of land north of the wall for over 30 years; and 

(3) the upright portion, or stem, of the wall was on Lot 35, while 

the foundation extended up between four and five inches onto Lot 

34.4

The judgment declared the fence a “party wall,” entitling 

the Ivies to a nonexclusive easement to use and maintain the 

wall and the land north of the wall. The court further found that 

the Ivies and Van Taylor jointly owned the pear tree. The 

4 After the trial, the Ivies stated that they did not intend to pursue the 

prescriptive easement. 
7

judgment also awarded Van Taylor $500 in damages, but denied 

the nuisance and trespass claims, request for injunctive relief, 

and found all other issues moot. Van Taylor appealed the 

judgment.5

4. Van Taylor I

Among his contentions on appeal, Van Taylor complained 

that the trial court erred in finding that the wall was a “party 

wall,” that the Ivies had failed to establish grounds for an 

equitable easement, and that the court erred in failing to find 

that the Ivies committed trespass or a nuisance. Van Taylor 

further argued that he was entitled to an injunction and a 

judgment on the Ivies’ prescriptive easement claim because the 

Ivies had abandoned it. 

This court affirmed in part6 and reversed in part, and 

remanded the matter to the trial court. We concluded that the 

5 In October 2004, while the appeal was pending, the Ivies filed a 

separate lawsuit against Van Taylor (Super. Ct. Los Angeles County,

No. BC317765) asserting tort claims, alleging that in the fall of 2003 

Van Taylor had poisoned the pear tree and other plants north of the 

fence and that Van Taylor had harassed them. The Ivies also obtained 

a restraining order against Van Taylor. Van Taylor filed a crosscomplaint against the Ivies alleging intentional infliction of emotional 

distress, assault, trespass, nuisance, and sought an injunction based 

on claims that in March 2003 the Ivies had attached a wooden lattice 

to the block wall and that the pear tree, shrubs, and other items

continued to encroach on his property. The parties settled the Ivies’ 

complaint in BC317765. The trial court subsequently ordered all the 

cases between the parties, including Van Taylor’s cross-complaint in 

BC317765, consolidated and related for all purposes. 

6 This court affirmed the trial court’s order rejecting Van Taylor’s 

emotional distress cause of action. 
8

wall did not qualify as a “party wall” as a matter of law because 

“it is not a wall common to adjoining buildings and does not 

provide support for adjoining buildings.” We reversed the trial 

court’s order for an easement for the Ivies and its summary 

rejection of Van Taylor’s other claims. Finally, we stated that 

because the Ivies had abandoned their cause of action for a 

prescriptive easement, Van Taylor was entitled to judgment in 

his favor on the claim.7

This court guided the trial court on remand. We stated that 

Van Taylor’s ability to obtain injunctive relief would depend on 

whether he could prove the torts of continuing trespass or 

nuisance. And if shown, the trial court should then consider 

whether to grant an injunction. We instructed the trial court to 

consider the equities and the relative hardships to both parties 

and then decide whether to issue an injunction, noting that the 

trial court should address the question of an equitable easement 

only if it denied an injunction. We also stated that the trial court 

must decide whether to declare an equitable easement before 

ruling on the merits of the quiet title cause of action. 

5. The Second Trial

In 2007, the Ivies located their home’s original owner, Mrs. 

June Heiser, who, along with her late husband, had purchased 

7 In November 2005, after remand to the trial court, the Ivies filed a 

motion for relief from default on their cause of action for a prescriptive 

easement. Their attorney declared that she withdrew the claim in the 

first trial after the trial court had announced its finding that the fence 

was a party wall and that she did so because she mistakenly believed 

that a prescriptive easement was duplicative of other relief awarded by 

the court. The trial court granted the motion, which allowed the Ivies 

to revive their claim. 
9

the undeveloped Lot 34 in 1964. According to Mrs. Heiser, she 

and her husband built the home, put in a pool, and moved into 

the house in 1966. Mrs. Heiser could not recall whether the home 

on Lot 35 had already been built when she and her husband built 

their home on Lot 34, nor could she remember whether the wall 

between the lots had already been constructed at the time. She 

assumed that her husband had arranged to have the wall 

constructed. She acknowledged, however, that the fences on the 

other two sides of her property were constructed of different 

material and in a different style than the wall between Lot 34 

and Lot 35. She stated that she and her husband used their

backyard up to the wall, believing that everything enclosed in the 

backyard was their property. 

Van Taylor filed a motion for summary judgment. The trial 

court granted the motion in part. The court concluded as a matter 

of law that the Ivies could not prove that their use of the wall and 

the land was hostile and under a claim of right, as necessary to 

establish a prescriptive easement. The court also rejected the 

Ivies’ request for an equitable easement, concluding that Van 

Taylor had suffered more significant hardships than the Ivies. 

Concerning the counts alleged in Van Taylor’s complaint, the 

court denied the motion concluding that triable issues of fact 

existed as to those claims.

Before the second trial, the court ruled that its order on the 

prescriptive and equitable easement claims compelled the court 

to enter judgment for Van Taylor on his quiet title claim. The 

court also ruled that prior restraining orders issued against Van 

Taylor effectively resolved Van Taylor’s assault claim. The court 

bifurcated the trial on the remaining causes of action. 
10

In October 2007, the case proceeded to a jury trial on Van 

Taylor’s causes of action for trespass and nuisance. After hearing 

the testimony and evidence, the jury returned a special verdict in 

favor of the Ivies. In the subsequent bench trial, the trial court 

granted Van Taylor a permanent injunction and required that 

the Ivies remove certain items attached to the wall and other 

items that had encroached onto the land. The trial court did not, 

however, grant any monetary damages to Van Taylor. The Ivies 

and Van Taylor appealed. 

6. Van Taylor II

On appeal, Van Taylor assailed the court’s jury instructions 

on his counts for trespass and nuisance, and the court’s order 

preventing him from proceeding on his assault cause of action. In 

the Ivies’ appeal, they challenged the court’s order granting 

summary judgment, the order granting an injunction, and the 

quiet title. They also argued that the evidence demonstrated they 

were joint owners of the wall. 

This court reversed and remanded. In Van Taylor II, we 

concluded that Van Taylor was not entitled to a summary 

judgment. Concerning the prescriptive easement, we concluded 

that the trial court had misinterpreted the “adverse use” element 

of the claim when it concluded that the Ivies could not prove their 

entitlement to a prescriptive easement as a matter of law.8

8 We held that the trial court erred in finding that the Ivies could not 

prove the “adverse use” based on the prior owner’s mistaken belief that 

he owned the land. We pointed out: “use of the property under a 

mistaken belief that he owned the property constitutes adverse use, 

and his failure to affirmatively assert a hostile claim [to Van Taylor] is 

irrelevant.” 
11

Concerning the equitable easement, we held that a triable issue 

of fact existed based on conflicting evidence “as to the extent to 

which the Ivies’ use of Van Taylor’s property has interfered with 

the use and enjoyment of his property, the diminution in value of 

his property resulting from the Ivies’ use and other damages 

caused by the Ivies’ use.” This court also reversed the judgment 

for Van Taylor on his claim for quiet title. We further concluded 

that the trial court improperly dismissed the assault and 

intentional infliction of emotional distress claims based on an 

erroneous application of collateral estoppel. 

In addition, we also reversed the judgment for the Ivies on 

the trespass and nuisance causes of action. We concluded that the 

jury instruction and the special verdict form were prejudicially 

misleading—that the jury instruction erroneously implied that to 

prevail on his claim of trespass and nuisance, Van Taylor had to 

prove that he owned, occupied, controlled, and exclusively 

possessed the property. We also held that based on evidence: 

“There can be no reasonable doubt that Van Taylor actually 

occupies the property and that his possessory interest is 

sufficient to maintain an action for trespass. It is undisputed that 

the Ivies have encroached on the thin strip of Van Taylor’s land 

north of the fence and that they intentionally entered the 

property. It is also undisputed that vegetation from the Ivies’ 

pear tree has fallen on Van Taylor’s property south of the fence, 

which provides another basis to establish” liability if the other 

elements of the claims are met. Consequently, we concluded that 

on remand, the trial court must instruct the jury that the first 

element of trespass and nuisance relating to the ownership, 

occupancy, or possession of the property was conclusively 

established. 
12

This court also held that the trial court erred in entering a 

permanent injunction for Van Taylor because he had not 

prevailed on any underlying tort cause of action in the jury trial. 

We reiterated this court’s direction in Van Taylor I that the trial 

court first must consider the relative hardships and decide 

whether to issue an injunction and should address the question of 

an equitable easement only if it denies an injunction. We held 

that on remand, the trial court could award a permanent 

injunction only if Van Taylor established the elements of a tort 

cause of action and the trial court, after considering the relative 

hardships, found grounds for equitable relief. Finally, we 

observed that all the other contentions raised on appeal were 

moot in light of this court’s conclusions. 

7. The Third Trial

On remand, the trial court ordered that Van Taylor’s claims 

for trespass, nuisance, and assault, and the Ivies’ prescriptive 

easement claim, be tried to a jury, followed by a bench trial on 

Van Taylor’s claim for quiet title and a permanent injunction and 

the Ivies’ request for an equitable easement. 

The jury trial began in February 2016. During his case in 

chief, Van Taylor presented evidence that the vegetation, 

including vines, plants, the pear tree, and other trees, concrete 

pavers, a concrete curb, and dirt had been placed next to the land 

on Lot 35. Van Taylor also claimed that in 2005, the Ivies or their 

gardener had entered his property without his permission to trim 

the pear tree. 

Van Taylor further testified that before the Ivies purchased 

the property, he had never been inside the backyard of Lot 34. 

Van Taylor conceded that he had trimmed the trees and other 

vegetation that had grown from Lot 34 over the wall into his 
13

backyard. However, until the dispute arose with the Ivies, he did 

not know that the trees and vegetation were growing on the wall 

or on to the land immediately north of it. He was also unaware 

that items were attached to the north face of the wall. 

Van Taylor also presented evidence that he believed 

showed the pear tree, other vegetation, roots, and water from the 

Ivies’ landscaping had damaged the wall, the drain pipes on his 

property, and the foundation of his house. Van Taylor presented 

an expert engineer who estimated that the trees and vegetation 

on Lot 34 caused $55,000 in damage to the wall and Van Taylor’s

home’s foundation.

The Ivies presented evidence that they and the prior

owners of Lot 34 were unaware of the legal boundary line’s 

location between the lots. At the time of purchase, the Ivies were 

informed that the block wall was a “common wall.” Until 2001, all 

of the owners of Lot 34 assumed that they owned the land within 

their enclosed backyard, and they used and maintained the wall 

and the land immediately next to it. The Ivies also presented 

evidence that in the 13 years before they purchased the property, 

Van Taylor had never complained to the prior owners of Lot 34

about how they had used the wall or land next to it. The Ivies 

also presented evidence that the only items they had placed on 

the wall or land were the wooden lattice they attached to the wall 

in 2003 and a sheet of fiberglass that they attached to the front 

wrought iron gate in 2005.9 They also denied that they or their 

gardener entered Van Taylor’s yard in 2005 to trim the pear tree; 

9 The fiberglass sheet was not attached to the wall. According to Van 

Taylor, the fiberglass sheet blocked his view inside the Ivies’ backyard, 

and it “crossed into” his property because it was positioned on the gate 

about one inch from the wall. 
14

the Ivies testified that the gardener remained on their property 

when he trimmed the tree. 

The jury also heard evidence concerning the parties’ 

respective ownership claims to the wall and its construction 

method. Mr. Fratto, who sold the home to the Ivies, testified that 

he never claimed to own the wall but assumed his property 

extended to the wall’s face. Van Taylor presented evidence that 

the wall was constructed of similar material and style as the 

other walls enclosing his property; however, the other fences

enclosing the Ivies’ property did not match the wall in style or 

construction. The court permitted the Ivies to read Mrs. Heiser’s 

deposition testimony to the jury. The Ivies’ construction experts 

opined that the construction method for the wall would likely 

have required the coordination and cooperation of the owners of 

Lot 34 and Lot 35. 

As to his damages, Van Taylor presented evidence from his 

real estate and property appraisal experts. Van Taylor’s 

appraiser estimated that the reasonable rental value for the 

property at issue, which he assumed was 462 square feet, 

amounted to approximately $217.14 a month for a total of 

$38,000 for a period between 2001 and 2015. Van Taylor’s real 

estate expert testified that because of the litigation, Van Taylor 

lost an opportunity to sell his home in 2006, and that the home 

was worth $1,000,000 more in 2006 than in 2015. 

The Ivies’ real estate expert disputed and contradicted Van 

Taylor’s damage evidence. The expert opined that the diminution 

in value of Van Taylor’s property and the land was approximately 

$2,008 based on the value of the property and the size of the land: 

19 square feet next to the wall running from the front gate to the 

back of the lots.
15

Concerning Van Taylor’s assault cause of action, both Mr. 

Ivie and Van Taylor testified that in August 2005, they were 

involved in a confrontation in which they argued and shouted 

threats and expletives at each other as they stood in front of their 

respective homes. Neither man displayed a weapon nor used 

threatening gestures, and they remained approximately 15 feet 

apart throughout the confrontation. At the end of the 

presentation of the evidence, the Ivies made an oral motion for 

nonsuit on Van Taylor’s assault claim, which the court granted. 

After the parties rested, the court instructed the jury. 

Following this court’s directive in Van Taylor II, the trial court 

instructed the jury that the first element of trespass and 

nuisance had been conclusively established. In February 2017, 

the jury returned a special verdict for Van Taylor on the trespass 

and nuisance claims. The jury did not, however, make special 

findings or identify the conduct that constituted trespass or 

nuisance. The jury also returned a verdict for Van Taylor on the 

Ivies’ prescriptive easement cause of action, awarded Van Taylor 

$2,000 in economic damages, and denied him non-economic 

damages and punitive damages. 

On March 11, 2016, the court commenced the bench trial on 

the equitable causes of action. The court indicated that although 

it was bound by the jury’s factual determinations and would 

consider the evidence presented in the jury trial relevant to the 

equitable claims, it would accept additional evidence and 

argument on the equitable claims. Van Taylor chose not to offer 

any additional evidence. Van Taylor argued that the relative 

hardships favored him because he believed he could never sell his 

home if the court granted the Ivies an easement. The Ivies 

presented evidence of their economic and non-economic hardships 
16

if they had to build a new wall or move the trees, equipment, and 

other vegetation on the land or attached to the wall. Their 

experts also testified that building a new wall in the Ivies’ 

backyard would cost more than $150,000 and leave a portion of 

the Ivies’ property inaccessible. 

After both sides rested, the trial court issued its statement 

of decision. The court granted Van Taylor an injunction in part, 

issuing an order requiring the Ivies to remove the wooden lattice 

they had attached to the fence in 2003. In addition, the court 

ordered that the Ivies could not place new or additional 

attachments to the wall but denied the injunction as to the other 

items already on the land and attached to the wall. The court 

rejected Van Taylor’s argument that the Ivies’ conduct could be 

described as “willful.” The court found most of the items that Van 

Taylor wanted the Ivies to remove had been placed on the wall 

and land by the prior owners of Lot 34, who believed they had a 

right to use the land next to the wall. As for the fiberglass that 

the Ivies had placed on the front gate in 2005, the court 

concluded that Van Taylor had not shown that the minimal 

encroachment harmed him. 

The trial court granted an equitable easement, permitting 

the Ivies to retain the existing attachments to the wall and the 

plants, trees, vegetation, and dirt on the land. On the issue of 

damages, the court observed that Van Taylor had argued that he 

had suffered significant damage in the jury trial but that the jury 

had awarded him only $2,000. The court concluded that based on 

the evidence presented, the $2,000 awarded by the jury 

adequately compensated Van Taylor for the use of the property. 

The court also rejected the Ivies’ request for a finding that 

the wall was jointly owned. The court observed that such a 
17

finding would be contrary to the evidence presented in the trial 

and the prior appellate opinions in the case. Finally, the court 

declined to award costs to either party. 

In August 2016, the trial court entered the judgment. Van 

Taylor subsequently filed a motion for a new trial and a JNOV. 

Van Taylor, among various arguments, complained that the 

damages were inadequate, that the jury’s verdicts were not 

supported by the evidence, and that the court’s conclusions in the 

bench trial were erroneous. The Ivies filed a motion for a JNOV, 

assailing the jury’s verdict rejecting their prescriptive easement. 

In February 2017, the trial court denied the motions, 

concluding that neither Van Taylor nor the Ivies had 

demonstrated that the verdicts lacked substantial evidentiary 

support or that its orders were erroneous. 

Van Taylor timely appealed, and the Ivies filed a timely 

cross-appeal. 

CONTENTIONS

On appeal, Van Taylor asserts that the trial court erred in 

failing to grant him a new trial or a JNOV. Specifically, Van 

Taylor argues that the jury’s damages award on his trespass and 

nuisance claims was insufficient. He contends the jury should 

have awarded him damages for rental value, compensation for 

the diminution in value of his property, and his inability to sell 

his home, as well as non-economic damages. He further 

complains that the trial court erred in instructing the jury and 

granting the Ivies a nonsuit on his assault cause of action. 

Concerning the bench trial, Van Taylor claims that the trial 

court: (1) ignored this court’s directives in Van Taylor II

concerning the order in which the trial court should consider the 

equitable claims; (2) entered an order on the equitable claims 
18

that conflicted with the jury’s verdict; and (3) erred in failing to 

award him additional damages. Finally, Van Taylor contends he 

was entitled to an award of litigation costs.

In the cross-appeal, the Ivies challenge the jury’s verdict for 

Van Taylor on their cause of action for prescriptive easement and 

the trial court’s conclusion that they did not have an ownership 

interest in the wall. 

We address the issues raised in the appeal and cross-appeal 

seriatim. 

DISCUSSION

1. Standards of Review

Motions for a new trial and JNOV constitute different 

procedures for “obtain[ing] a judgment contrary to the verdict 

rendered by a jury.” (Teitel v. First Los Angeles Bank (1991) 231 

Cal.App.3d 1593, 1602.) 

A new trial motion provides the trial judge with discretion 

to disbelieve witnesses, reweigh the evidence, and draw 

reasonable inferences contrary to that of the jury. (Fountain 

Valley Chateau Blanc Homeowner’s Assn. v. Department of 

Veterans Affairs (1998) 67 Cal.App.4th 743, 751 (Fountain 

Valley).) The trial court’s decision to deny a new trial is reviewed 

for an abuse of discretion, except that the factual determinations 

are reviewed for substantial evidence. (Minnegren v. Nozar (2016) 

4 Cal.App.5th 500, 506.) Under the substantial evidence standard 

of review, when the trier of fact’s determinations are attacked on 

the ground that there is no substantial evidence to sustain them, 

the power of an appellate court begins and ends with the 

determination as to whether, on the entire record, there is 

substantial evidence, contradicted or uncontradicted, which will 
19

support the fact finder’s determinations. (Bowers v. Bernards

(1984) 150 Cal.App.3d 870, 873–874.) In addition, when two or 

more inferences can reasonably be deduced from the facts, a 

reviewing court is without power to substitute its deductions for 

those of the trial court. (Ibid.) Applying the substantial evidence 

standard of review, this court resolves every favorable inference 

and all conflicts in the evidence in favor of the party who 

prevailed on the issue. (See Kephart v. Genuity, Inc. (2006) 136 

Cal.App.4th 280, 291.)

In contrast, JNOV motions permit a party to prevail when 

the evidence is legally insufficient to support the verdict. 

(Fountain Valley, supra, 67 Cal.App.4th at p. 751.) Thus, a trial 

court may grant a JNOV motion if there is no substantial 

evidence to support the verdict. (Tognazzini v. San Luis Coastal 

Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057–1058.) In 

deciding whether to grant the motion, the trial court cannot 

weigh the evidence or assess credibility. (Castro v. State of 

California (1981) 114 Cal.App.3d 503, 512.) The court views the 

evidence in the light most favorable to the verdict, disregards 

conflicting evidence, and indulges in every legitimate inference to 

support the verdict. (Paykar Construction, Inc. v. Spilat 

Construction Corp. (2001) 92 Cal.App.4th 488, 493–494) “On 

appeal, we determine de novo whether there is substantial 

evidence to support the verdict and whether the moving party is 

entitled to judgment in its favor as a matter of law.” (Id. at p. 

494.)

2. Van Taylor’s Appeal 

Before this court, Van Taylor claims that errors in the jury 

and bench trials require reversal of the judgment and remand for 

a new trial. As we shall explain, Van Taylor has failed to 
20

demonstrate reversible error occurred during any phase of the

trial court proceedings.

2.1. Jury Trial Phase

In Van Taylor’s appeal from the jury trial, he complains 

that the jury’s verdicts on the trespass and nuisance claims were 

inadequate; he maintains that substantial evidence compelled an 

award of additional damages. He also contends the court erred in 

failing to give particular jury instructions and granting the Ivies

a nonsuit on his assault cause of action. 

2.1.1. Substantial evidence supported the jury’s 

award of damages on Van Taylor’s trespass and 

nuisance claims.

Van Taylor assails the jury’s verdict awarding him only 

$2,000 in damages on his trespass and nuisance causes of 

actions. He argues that the trial court should have granted him a 

new trial because the jury’s award reflects that it failed to 

consider his inability to sell his house and the diminution in 

value of his property. He also contends the jury should have 

awarded him rental value for the land and the wall and an award 

of non-economic damages. We disagree. 

The trial court gave the parties a full and fair opportunity 

to present their evidence during the jury trial. Van Taylor 

presented expert opinion on the harm to his property and 

evidence of his purported economic and non-economic damages.

He argued that his property’s value diminished by more than 

$1,000,000 and asserted that he could not sell the home. He 

sought an award for damage to the wall, his drain pipes, his 

home, as well as lost rents and other fees to clean up and repair 

the property. 
21

The Ivies presented evidence and experts to counter and 

contradict Van Taylor’s arguments and evidence. The Ivies’ 

experts testified that the Ivies’ use of the land and the wall did 

not harm Van Taylor or damage his property. Moreover, the Ivies’ 

real estate experts assessed the diminution in value for the land 

and wall approximately at $2,000, and they assailed Van Taylor’s 

claim that he could not sell his home.

Van Taylor has not shown that the jury failed to consider 

his evidence and arguments. Instead, based on the trial’s record, 

it is clear that the jury rejected Van Taylor’s version of the case.

To the extent the evidence at trial conflicted, the jury resolved 

the conflicts in the Ivies’ favor. The jury, acting as the trier of 

fact, was free to discard facts inconsistent with its conclusion. 

In addition, Van Taylor has not convinced us that the 

evidence that the jury believed was incredible, unreasonable, or 

improbable. The jury’s verdict awarding Van Taylor $2,000 was 

consistent with the evidence presented. Moreover, we see no error 

in the jury’s rejection of Van Taylor’s claim for additional 

damages such as rental value or his contention that he could not 

sell his home. He has also failed to present any persuasive 

argument that the jury erred in failing to award any noneconomic damages or punitive damages.

“ ‘ “Only when there is a complete absence of probative facts 

to support the conclusion reached does a reversible error 

appear. ... And the appellate court’s function is exhausted when 

that evidentiary basis becomes apparent, it being immaterial 

that the court might draw a contrary inference or feel that 

another conclusion is more reasonable.” [Citation.]’ ” (Reynaud v. 

Technicolor Creative Services USA, Inc. (2020) 46 Cal.App.5th 

1007, 1017.) Because substantial evidence supported the jury’s 
22

verdict on the trespass and nuisance causes of action, we 

conclude the trial court did not err in denying Van Taylor a new 

trial or denying his motion for a JNOV on the claims. 

2.1.2. Van Taylor abandoned his claim of error about 

the jury instructions.

Rule 8.204(a)(1)(B) of the California Rules of Court 

provides that each point in an appellate brief must be supported 

by argument and, if possible, by the citation of authority. “An 

appellant must provide an argument and legal authority to 

support his contentions. This burden requires more than a mere 

assertion that the judgment is wrong. ... It is not our place to 

construct theories or arguments to undermine the judgment and 

defeat the presumption of correctness. When an appellant ... 

asserts [a point] but fails to support it with reasoned argument 

and citations to authority, we treat the point as waived. 

[Citation.]” (Benach v. County of Los Angeles (2007) 149 

Cal.App.4th 836, 852, fn. omitted; Landry v. Berryessa Union 

School Dist. (1995) 39 Cal.App.4th 691, 699–700 [“When an issue 

is unsupported by pertinent or cognizable legal argument it may 

be deemed abandoned and discussion by the reviewing court is 

unnecessary.”].) 

Van Taylor argues that the trial court erred when it 

refused to give the jury particular legal instructions that he had 

requested.

10 However, Van Taylor abandoned any claim of error 

10 Specifically he complains that the court should have given the 

following special instructions: No. 9: the definition of adverse 

possession; No. 15: Civil Code section 3517-wrongdoers cannot take 

advantage of own wrong; No. 22: damages for restoration and market 

value loss from trespass; No. 24: liability for success owners for 

nuisance created by prior owner; No. 29: emotional distress damages 
23

as to these instructions because he did not present any specific 

argument supported by references to the law or evidence as to 

why the court erred in failing to give them. Consequently, we do 

not reach the merits of his complaints about the jury instructions.

2.1.3. The trial court properly granted a nonsuit for 

the Ivies on Van Taylor’s assault cause of action.

Van Taylor’s assault cause of action was based on an 

August 2005 confrontation between Van Taylor and Mr. Ivie. The 

undisputed evidence presented at trial showed that Van Taylor 

and Mr. Ivie shouted threats and expletives at each other as they 

stood at least 15 feet apart in front of their respective homes. 

They had no physical contact during the incident, and neither 

man displayed a weapon or used threatening gestures. At the end 

of the presentation of the evidence, the trial court granted the 

Ivies’ motion for nonsuit on the assault cause of action. 

On appeal, Van Taylor argues that he presented sufficient 

evidence to submit the claim to the jury, and thus, the court erred 

in granting a nonsuit. He also complains that the trial court 

erred by applying the criminal law definition of assault and erred 

in failing to consider his fear of anticipated harm during the 

confrontation. We disagree.

A defendant is entitled to a nonsuit if the evidence is 

insufficient for a jury to find in the plaintiff’s favor. (Code Civ. 

allowed for nuisance; No. 34: damages allowed for unanticipated injury 

in tort; No. 35: emotional distress damages for trespass and nuisance; 

No. 36: flexibility in awarding emotional distress damages for trespass; 

No. 37: Civil Code section 3334-loss of use damages and cost of 

restoration damages; No. 52: Civil Code section 3294(a)-punitive 

damages allowed for oppressive and malicious conduct; and No. 53: 

definition of malice in encroachment cases. 
24

Proc., § 581c, subd. (a).) “In determining whether the plaintiff’s

evidence is sufficient, the court may not weigh the evidence or 

consider the credibility of witnesses. Instead, the evidence most 

favorable to plaintiff must be accepted as true and conflicting 

evidence must be disregarded.” (Campbell v. General Motors 

Corp. (1982) 32 Cal.3d 112, 118.)

“ ‘ “[A]n assault is a demonstration of an unlawful intent by 

one person to inflict immediate injury on the person of another 

then present.” ’ ” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 

1590, 1604 (Plotnik), quoting Lowry v. Standard Oil Co. (1944) 63 

Cal.App.2d 1, 6–7.) To prevail, the plaintiff must prove, among 

other elements, that the plaintiff reasonably believed that the 

defendant was about to touch the plaintiff in a harmful or 

offensive manner or it reasonably appeared to the plaintiff that 

the defendant was about to carry out the threat. (See CACI No. 

1301; Plotnik, at pp.1603–1604.) 

As the appellate court observed in Plotnik, in tort actions 

for assault, the courts assume that the Penal Code section 240 

definition of assault applies. (Plotnik, supra, 208 Cal.App.4th at 

pp. 1603–1604; see also 5 Witkin, Summary of Cal. Law (10th ed. 

2005) Torts, § 381, p. 598.) Penal Code section 240 defines the 

crime of assault as “an unlawful attempt, coupled with a present 

ability, to commit a violent injury on the person of another.” 

Furthermore, although apprehension of that contact is the basis 

of assault, “ ‘[m]ere words, however threatening, will not amount 

to an assault. [Citations.]’ (5 Witkin, Summary of Cal. Law, 

supra, Torts, § 383, pp. 599–600.)” (Plotnik, at p. 1604.)

In Plotnik, for example, the defendants aggressively 

approached the plaintiff and threatened to kill him and the 

family dog. Defendants did not, however, display a weapon or 
25

otherwise attempt to touch the plaintiff. Although the 

defendants’ words were aggressive and threatening, neither 

committed an act that could inflict immediate injury.

Consequently, the court concluded the evidence was legally 

insufficient to support a judgment for the plaintiff on the assault 

cause of action. (Plotnik, supra, 208 Cal.App.4th p. 1604.) 

Following Plotnik, we conclude that the trial court properly 

considered the criminal law definition of assault in assessing Van 

Taylor’s claim. In addition, even viewing the evidence in a light 

favorable to Van Taylor and accepting it as true, Van Taylor 

failed to present sufficient evidence of the required elements of 

the assault for a jury to find in his favor. As in Plotnik, the 

situation here did not involve physical contact or weapons. Mr. 

Ivie directed angry words at Van Taylor from 15 feet away. Van 

Taylor did not present any evidence that Mr. Ivie could inflict 

immediate injury, nor did Van Taylor show that his belief that 

Mr. Ivie was about to touch him in a harmful or offensive manner 

was reasonable. Thus, the trial court properly granted the 

nonsuit on the assault cause of action.

2.2. Bench Trial Phase

Van Taylor assails the order in which the trial court 

considered the issues in the bench trial. He claims that the trial 

court violated this court’s prior directives in Van Taylor II and 

argues the trial court’s statement of decision conflicted with the 

jury’s verdict. Finally, he complains the trial court should have 

awarded litigation costs.
26

2.2.1. The trial court’s conduct and consideration of 

the equitable claims did not ignore this court’s 

instructions. 

In Van Taylor II, we held that on remand, the trial court 

“must consider the relative hardships to the parties and decide 

whether to issue an injunction before deciding whether to declare 

an equitable easement in favor of the Ivies, and that the court 

could declare an equitable easement in favor of the Ivies only if it 

denied an injunction.” 

Here, Van Taylor asserts that the trial court failed to 

consider his hardships and erred in failing to consider his claim 

for injunctive relief before considering the Ivies’ claim for an 

equitable easement. Van Taylor’s assertions fail.

Based on the bench trial record, we are not convinced that 

the trial court disregarded this court’s directives, ignored the 

evidence, or that the trial court’s method of considering the 

equitable claims prejudiced Van Taylor. Both the trial court’s 

remarks during the bench trial and statement of decision disclose 

that the court considered the evidence and arguments Van Taylor 

presented in support of the injunction before turning to the Ivies’ 

equitable claims. At the outset of the bench trial, the court stated 

that it would consider all the evidence Van Taylor presented 

during the jury trial as to his hardships. The court also offered 

Van Taylor the opportunity, which he expressly declined, to 

present additional evidence of his hardships. Instead, Van Taylor 

relied on the evidence presented during the jury trial. He argued 

that the damage to the property, its diminution in value, and his 

alleged inability to sell his house supported his request for a 

permanent injunction. The reporter’s transcript of the bench trial 
27

shows that the trial court properly considered that evidence and 

Van Taylor’s arguments. 

Furthermore, as the trial court’s statement of decision 

shows, the court addressed Van Taylor’s request for an injunction 

first; it awarded him a partial injunction on the wooden lattice

that the Ivies attached to the wall in 2003, and it issued an order 

preventing the Ivies from placing any new items on the land or 

attaching additional items to the wall. The court’s decision also 

described Van Taylor’s evidence of hardships before describing

the Ivies’ evidence. The court’s analysis thus implies that the 

court weighed the relative hardships regarding the injunction 

prior to considering the request for an easement. 

In short, Van Taylor has not convinced us that the trial 

court ignored his evidence or arguments. Likewise, he has not 

demonstrated that the order in which the trial court considered 

the claims violated this court’s directives. 

2.2.2. The court’s statement of decision did not 

conflict with the jury’s verdicts. 

Van Taylor argues that based on the jury’s verdicts on the 

trespass and nuisance causes of action the court could not, as a 

matter of law, consider the Ivies’ hardships on the equitable

claims, and he was entitled to judgment on those claims.

Specifically, he maintains that the court’s failure to enter 

judgment in his favor on all the equitable causes of action and the 

court’s consideration of the Ivies’ hardships conflicted with the 

jury’s verdicts. Neither of these contentions has merit.
28

a. The court properly considered 

the Ivies’ hardships.

In Van Taylor’s view, the court should not have considered 

the Ivies’ hardships when deciding the equitable claims. He 

points out that under Christensen v. Tucker (1952) 114 

Cal.App.2d 554, 562 (Christensen), defendants who “willfully” 

trespass cannot ask that the trial court consider their hardships 

in determining whether to grant them equitable relief. Van 

Taylor argues that, by concluding that the Ivies trespassed, the 

jury necessarily found that the Ivies’ conduct was “willful,” and 

thus the court erred in considering their hardships. In our view, 

Van Taylor misinterprets the law, and the evidence in this case 

does not support his position.

In Christensen, the appellate court identified the conditions 

for the trial court to exercise its discretion to issue an equitable 

easement, including that the “[d]efendant must be innocent—the 

encroachment must not be the result of defendant’s willful act, 

and perhaps not the result of defendant’s negligence. In this

same connection the court should weigh the plaintiff’s conduct to 

ascertain if he is in any way responsible for the situation.” 

(Christensen, supra, 114 Cal.App.2d at p. 563.)

Christensen cannot be viewed in isolation. Even before 

Christensen, California courts recognized that consideration of an 

encroacher’s hardships was permitted where the trespass 

resulted from inadvertence or mistake. (See Ukhtomski v. Tioga 

Mutual Water Co. (1936) 12 Cal.App.2d 726, 728–729; Blackfield 

v. Thomas Allec Corp. (1932) 128 Cal.App. 348, 350 

[characterizing the defendant’s trespass as an “innocent 

mistake”]; Morgan v. Veach (1943) 59 Cal.App.2d 682, 690 

[describing the defendant’s “ ‘innocent mistake or oversight’ ”]; 
29

Felsenthal v. Warring (1919) 40 Cal.App. 119, 128 [stating that 

the trespass must be the result of an “innocent mistake of fact”].) 

In addition, cases after Christensen recognized that trial 

courts have broad discretion to determine an encroacher’s 

“innocence,” based on the evidence in the case. For example, in 

Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 266

(Linthicum), the court recognized an element of “willfulness” of 

the encroaching party exists in every case of encroachment in the 

sense that the encroaching party intended to install a house or a 

fence and intended to use the property in dispute. Moreover, 

arguably in every case of trespass, the encroaching party was 

“negligent” in some sense if, for instance, it failed to have a 

property line survey done before installing the improvements. 

Thus, the court held: “The question whether defendant’s conduct 

is so egregious as to be willful or whether the quantum of 

defendant’s negligence is so great as to justify an injunction is a 

matter best left to the sound discretion of the trial court.” (Id. at 

p. 267)

Based on our interpretation of the law and the evidence in 

this case, we conclude that the jury’s verdict for Van Taylor on 

the trespass claim did not preclude the trial court from exercising 

its discretion to consider the Ivies’ hardships. The jury’s verdicts

did not identify which of the Ivies’ actions, if any, were “willful.” 

Indeed, given the evidence presented at trial, the jury could have 

based its verdicts on conduct that was not willful. The evidence 

showed that many encroaching actions were inadvertent or the 

result of an innocent mistake of fact. The prior owners of Lot 34 

placed most of the items encroaching on Van Taylor’s property

under the belief that they owned the land and had an interest in 

the wall.
30

Moreover, to the extent that the Ivies engaged in conduct 

that could arguably be characterized as “willful,” such as 

attaching the wooden lattice to the wall and the fiberglass to the 

front gate, Van Taylor did not demonstrate prejudicial, reversible 

error. The court granted the injunction requiring the Ivies to 

remove the lattice. The court denied the injunction as to the 

fiberglass, finding that the encroachment was so minimal that it 

did not harm Van Taylor. Accordingly, given the evidence and the 

verdicts, we conclude the court did not err in considering the 

Ivies’ hardships on the equitable claims.

b. The jury’s verdicts did not 

require the court to enter 

judgment for Van Taylor on his

equitable claims.

Where, as here, the legal claims are first tried by a jury and 

equitable claims later tried by a judge, the trial court must follow 

the jury’s factual determinations on the issues of fact litigated 

and necessary to the result. (Hoopes v. Dolan (2008) 168 

Cal.App.4th 146, 158, citing Los Angeles Police Protective League 

v. Gates (9th Cir. 1993) 995 F.2d 1469, 1473.) But, the court’s 

legal determinations remain separate. (Hoopes, at p. 158.)

Van Taylor contends that the jury’s verdicts on the trespass 

and nuisance causes of action entitled him to judgment, as 

matter of law, on his quiet title claim and a permanent 

injunction. We disagree.

Although the jury found for Van Taylor on the prescriptive 

easement, trespass, and nuisance claims, the jury was not 

presented with a special verdict in which they were required to 

identify the tortious conduct. The verdicts did not identify any

specific factual basis of the jury’s decision. Thus, nothing in the 
31

jury’s verdicts conclusively determined Van Taylor’s entitlement 

to his quiet title or the injunction. Indeed, the legal causes of 

action and equitable claims are distinct with separate legal 

elements. For example, the injunction request required the court 

to weigh the parties’ respective hardships—a matter outside the 

province of the jury’s determination. Thus, we find no inherent 

inconsistency between the court’s ruling on the equitable claims 

and the jury’s verdicts. Van Taylor has not shown as a matter of 

law that the jury’s verdicts compelled the court to enter a 

judgment for Van Taylor on his equitable claims. 

2.2.3. The court did not err in failing to award Van 

Taylor damages when it granted the Ivies an 

equitable easement. 

Van Taylor asserts that because the court granted the Ivies 

an equitable easement, the court was also required to award him 

damages in addition to those the jury awarded for the trespass. 

Not so.

In Linthicum, the appellate court held the trial court is not 

required to order additional damages when the trial court creates 

an easement by denying an injunction. (Linthicum, supra, 175 

Cal.App.4th at p. 268 [awarding an equitable easement, but not 

an award further damages to the defendant]; see also Tashakori 

v. Lakis (2011) 196 Cal.App.4th 1003, 1014 [holding that the trial 

court did not err when it failed to award any damages to the 

plaintiffs in compensation for the equitable easement on their 

property].)

The Linthicum court also recognized that the trial court 

could not award damages in the abstract. Even where the court 

grants an easement to the defendant, the plaintiff must prove 
32

damages. (See Wardrop v. City of Manhattan Beach (1958) 160 

Cal.App.2d 779, 791.) 

Here the court permitted Van Taylor to present evidence 

and argument on his damages, including those he would incur if 

the court granted the Ivies an easement. The court’s statement of 

decision reflects that the court determined that Van Taylor had 

not carried his burden to prove that he was entitled to any 

damages in addition to those that the jury had already awarded.

The evidence showed the Ivies’ use of the land and the north face 

of the wall did not cause Van Taylor substantial harm. Under the 

circumstances, the trial court did not err in failing to award any

additional damages to Van Taylor.

2.2.4. The trial court did not err in failing to award 

Van Taylor costs.

Under Code of Civil Procedure section 1032, a “prevailing 

party” is entitled to recover costs “as a matter of right” unless 

otherwise provided by statute. (See Code Civ. Proc., § 1032, subd. 

(b).) If, however, a plaintiff brings an action in superior court and 

recovers a judgment within the $25,000 jurisdictional limit of the 

limited jurisdiction court, the trial court has the discretion to 

deny costs to the plaintiff. (Code Civ. Proc., § 1033, subd. (a); 

Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 975 

[recognizing that if the prevailing party recovers a judgment that 

could have been rendered in a limited civil case, Code of Civil 

Procedure section 1033, subdivision (a) provides that costs or any 

portion of claimed costs shall be as determined by the court in its 

discretion].) 

Likewise, where a party obtains relief in equity, 

determining whether to award costs is within the discretion of 

the court under Code of Civil Procedure section 1032, subdivision 
33

(a)(4). (See Code Civ. Proc., § 1032, subd. (a)(4); Wakefield v. 

Bohlin (2006) 145 Cal.App.4th 963, 977 [section 1032, subdivision 

(a)(4) operates as an express statutory exception to the general 

rule that a prevailing party is entitled to costs as a matter of 

right], disapproved on other grounds in Goodman v. Lozano

(2010) 47 Cal.4th 1327, 1338.)

We review the trial court’s denial of costs under Code of 

Civil Procedure sections 1033, subdivision (a) and 1032, 

subdivision (a)(4) for abuse of discretion. (See Dorman v. DWLC 

Corp. (1995) 35 Cal.App.4th 1808, 1815.)

Van Taylor has not demonstrated any error concerning the 

court’s decision denying him litigation costs. First, contrary to his 

argument on appeal, Van Taylor was not entitled to an award of 

costs as a matter of law. In this case, the $2,000 award was 

within jurisdictional amount of the limited civil courts, and the 

relief the court awarded in the bench trial was equitable. Thus, 

the request for costs was governed by the Code of Civil Procedure 

sections that granted the trial court discretion to deny costs. 

Second, Van Taylor has not shown that the court abused its 

discretion in denying costs. As the court’s order reflects, the 

results of the trial were mixed. Neither side achieved all the 

relief they sought. The court’s order further reflects that it 

considered the parties’ claims and litigation objectives, deciding 

to deny costs. Under the circumstances, the court’s order does not 

exceed the bounds of reason. 

3. The Ivies’ Cross-Appeal

In the cross-appeal, the Ivies challenge the jury’s verdict for 

Van Taylor on their cause of action for a prescriptive easement 

and the court’s finding that they did not have an ownership 

interest in the wall. 
34

3.1. Jury Trial Phase

The Ivies argue that the trial court erred in failing to grant 

them a JNOV on their cause of action for a prescriptive easement 

on the land and wall. They assert that substantial evidence did 

not support the jury’s verdict for Van Taylor on the claim. 

“ ‘ 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.’ ” (Main Street Plaza v. Cartwright & 

Main, LLC (2011) 194 Cal.App.4th 1044, 1054; Code Civ. Proc., § 

321.) These elements are designed to ensure “ ‘that the owner of 

the real property which is being encroached upon has actual or 

constructive notice of the adverse use and to provide sufficient 

time to take necessary action to prevent that adverse use from 

ripening into a prescriptive easement.’ ” (Brewer v. Murphy

(2008) 161 Cal.App.4th 928, 938–939 (Brewer).) 

Constructive notice may arise from “ ‘actual notice of 

circumstances sufficient to put a prudent man upon inquiry as to 

a particular fact.’ ” (Field-Escandon v. DeMann (1988) 204 

Cal.App.3d 228, 236.) “To satisfy this requirement, the adverse 

use must be made in such a way that a reasonably diligent owner 

would learn of its existence, nature, and extent. “Open” generally 

means that the use is not made in secret or stealthily. It may also 

mean that it is visible or apparent. “Notorious” generally means 

that the use is actually known to the owner, or is widely known 

in the neighborhood.” (Rest.3d Property, Servitudes, § 2.17, com. 

h. pp. 276, 278.) Prescriptive rights do not arise if the adverse use 

was hidden, concealed, or clandestine. (Connolly v. McDermott

(1984) 162 Cal.App.3d 973, 977.)
35

A finding of a prescriptive easement must be based on clear 

and convincing evidence. (Brewer, supra, 161 Cal.App.4th at p. 

938.) The evidence must be “ ‘ “ ‘so clear as to leave no substantial 

doubt’; ‘sufficiently strong to command the unhesitating assent of 

every reasonable mind.’ ” ’ ” (Amerigraphics, Inc. v. Mercury 

Casualty Co. (2010) 182 Cal.App.4th 1538, 1558.) On appeal, we 

review a finding that a prescriptive easement does exist, or does 

not exist, by determining whether the record as a whole contains 

substantial evidence from which a reasonable fact finder could 

have found it highly probable that the fact was true. (See 

Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996; 

Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.)

The Ivies contend they proved the elements of the 

prescriptive easement as to the land and the wall based on (1) the 

testimony of the prior owners of Lot 34 that they used the land 

and the wall for an uninterrupted period of more than five years 

before the dispute arose; and (2) evidence that Van Taylor was 

aware of their use and did not complain about it.

Even if the Ivies proved the adverse use of the property for 

the requisite five-year statutory period by “tacking”11 their use to 

the prior owners’ use and they presented evidence establishing 

all the other elements, the evidence that the use was “open and 

notorious” was not clear or convincing. 

11 “Periods of prescriptive use by successive owners of the dominant 

estate can be tacked together ... .” (Windsor Pacific v. Samwood Co., 

Inc. (2013) 213 Cal.App.4th 263, 264; see also Miller v. Johnston (1969) 

270 Cal.App.2d 289, 295 [party seeking to establish prescriptive 

easement is “entitled to take advantage of the use made of the property 

in dispute by [his or her] predecessors in interest”].)
36

Based on the evidence presented at trial, the jury could 

have reasonably concluded that the Ivies’ use of the land and wall 

was not open or notorious because Van Taylor did not have actual 

or constructive notice of it. First, they did not present evidence to 

prove that Van Taylor had actual notice of their use of the land 

and wall, nor did they refute his testimony to the contrary. Van 

Taylor testified that he could not see into their yard and testified 

that before early 2001 he had never been inside the Ivies’ 

backyard. He told the jury that he trimmed the Ivies’ tree from 

his side of the wall and believed that the vegetation was not 

planted on the land. He stated that before the dispute arose in 

this case, he was unaware that the Ivies or the prior owners had 

placed anything on the land or attached anything directly to the 

wall. The Ivies have not shown that Van Taylor’s testimony was 

incredible or inherently improbable. Thus, as the trier of fact, the 

jury acted within its authority to believe Van Taylor’s account, 

and therefore conclude he lacked actual knowledge of their 

adverse use of the land and wall. 

In addition, the evidence on the issue of constructive notice 

supports the verdict for Van Taylor. Given that the land at issue 

is only three to four inches wide, is immediately next to the wall, 

and is surrounded by fencing and vegetation, a reasonably 

diligent owner might not be aware of any adverse encroachment 

onto the land or use of the wall. Moreover, the Ivies did not 

present evidence that their use of the land and wall was known 

in the neighborhood.

Accordingly, we conclude substantial evidence supports the 

jury’s verdict for Van Taylor on the Ivies’ prescriptive easement 

cause of action, and the trial court did not err in denying the Ivies 

a JNOV on that cause of action. 
37

3.2. Bench Trial Phase

The Ivies’ challenge to the court’s order from the bench trial 

focuses on the court’s finding that the evidence did not support 

the conclusion that the wall was a “joint wall,” and the court’s 

additional observation that “such a finding would be contrary to 

the prior appellate decisions issued in this matter.” The Ivies 

assert that they established an ownership interest in the wall, 

and thus, this court should reverse the injunction requiring that 

they remove the wood lattice from the wall and preventing them 

from attaching any new items to the wall. 

3.2.1. The Ivies did not demonstrate that the trial 

court misinterpreted the prior appellate 

opinions.

The Ivies argue that the trial court misread this court’s 

opinions in Van Taylor I and Van Taylor II and thus inferred a 

conclusion about the wall ownership that this court did not 

previously reach. 

In our view, this court’s opinions in Van Taylor I and Van 

Taylor II are open to the interpretation the trial court gave them 

in the bench trial. Preliminarily, we observe that this court’s 

prior opinions cannot be considered in a vacuum; they must be 

viewed in the context within which the parties litigated and 

presented their respective cases during the first and second 

trials. 

Initially, the Ivies did not claim an ownership interest in 

the wall and did not contest Van Taylor’s ownership. In their 

cross-complaint, they acknowledged that the wall belonged to 

Van Taylor. The Ivies’ counsel also conceded that they did not 

present evidence supporting their ownership claim at the first 

trial. During the first trial the court found the original owner of 
38

Van Taylor’s property built the wall. After that, concluding that 

the wall did not qualify as a “party wall” as a matter of law, this 

court in Van Taylor I did not revisit the trial court’s other

findings concerning the wall. Thus, in light of the first trial’s 

posture—the pleadings and the trial court’s findings—this court’s 

opinion in Van Taylor I could be interpreted in many ways, 

including, as the trial court did here. 

Van Taylor II is also open to the interpretation that the 

trial court gave it in the statement of decision. During the second 

trial, the Ivies claimed they had a joint ownership interest in the 

wall based on the original owner’s, Mrs. Heiser, statements about 

the wall’s construction, and the fact that the foundation was 

partially on Lot 34. After that, on appeal in Van Taylor II, the 

Ivies argued, among other claims of error, that the trial court 

erred in failing to find they were joint owners of the wall. 

In Van Taylor II, this court acknowledged the Ivies claimed 

an ownership interest to the wall. This court did not, however, 

explicitly address the issue. Instead, this court broadly concluded 

that Van Taylor had established the first element of trespass for 

the retrial. Thus, this court directed that on remand, the jury 

should be instructed that Van Taylor owned, occupied, controlled, 

or had the exclusive right to possess the property. Our conclusion 

about the property was not confined to the land; in this context, 

“property” could be interpreted to include the land and the wall. 

Subsequently, in the opinion, this court stated that all of the 

Ivies’ other contentions, which included their claim of joint 

ownership of the wall, were moot in light of the conclusions in the 

opinion. Thus, read as a whole, the opinion in Van Taylor II can 

be construed as implicitly rejecting the Ivies’ claim of joint 

ownership of the wall. Indeed, the trial court’s comments during 
39

the third trial reflect that the court read Van Taylor II to hold 

that Van Taylor had established that he owned the land and the 

wall—that ownership interest in the land and the wall had been 

previously established in the second trial and affirmed in Van 

Taylor II.

Thus, we conclude that this court’s opinions in Van Taylor I

and Van Taylor II are susceptible to more than one 

interpretation, including the one the trial court applied in its 

statement of decision. Consequently, the Ivies have not shown 

reversible error concerning the trial court’s interpretation of this 

court’s prior opinions. 

3.2.2. The evidence presented in this trial supported 

the trial court’s finding on the ownership of the 

wall.

In any event, even if we determined that the trial court had 

misconstrued our prior opinions concerning the wall’s ownership, 

we would nonetheless conclude that the court did not err finding 

that the Ivies had failed to prove joint ownership of the wall in 

the third trial. 

The evidence presented at trial on the ownership of the 

wall conflicted. On the one hand, Van Taylor claimed exclusive 

ownership based on (1) evidence he presented during the first 

trial as reflected in the trial court’s decision that the original 

owner of Lot 35 built the wall; (2) the fact that the stem of the 

wall and most of the foundation is located on Lot 35; (3) the fact 

that the construction, style, and appearance of wall matched the 

other walls on Lot 35; and (4) that the other fences in the Ivies 

backyard did not match the wall. On the other hand, the Ivies 

claimed joint ownership based on (1) the evidence from Mrs. 

Heiser; (2) the fact that the four to six inches of the wall’s 
40

foundation are on Lot 34; and (3) the fact that according to their 

experts, the wall must have been constructed with the 

cooperation of the owners of both lots. 

The trial court’s decision reflects that it resolved this 

conflict in the evidence in favor of Van Taylor. Based on our 

review of the record and considering the deferential standard of 

appellate review, we cannot say that the court erred in resolving 

the dispute. The evidence supporting the trial’s conclusion is 

substantial, and thus the court acted within its power as the trier 

of fact in deciding that the wall was not jointly owned.12

In view of the foregoing, we conclude that the Ivies have 

not demonstrated that the trial court committed reversible error 

in the bench trial. 

12 In reaching this conclusion, we reject the Ivies’ request raised in a 

footnote in their opening brief in the cross-appeal that this matter 

should be returned to the trial court to consider the application of Civil 

Code section 841, governing the rights and responsibilities of neighbors 

with respect to “division walls.” The Ivies do not present any argument 

that section 841, which was not operative until more than 10 years 

after the lawsuit was filed in this case, should be given retroactive 

effect. 
41

DISPOSITION

The judgment and order denying the parties’ requests for 

JNOV are affirmed. Each party shall pay its own costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.