Filed 10/3/16; pub. & mod. order 10/27/16 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NELLIE GAIL RANCH OWNERS 

ASSOCIATION,

Plaintiff, Cross-Defendant and 

Respondent,

v.

DONALD G. McMULLIN et al.,

Defendants, Cross-complainants and 

Appellants.

 G051244

 (Super. Ct. No. 30-2013-00653834)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. 

Chaffee, Judge. Affirmed.

Everett L. Skillman for Defendants, Cross-complainants and Appellants.

Neuland, Whitney & Michael, Frederick T. Whitney and Jane A. Gaba for 

Plaintiff, Cross-defendants and Respondent.

* * *
2

Plaintiff, cross-defendant, and respondent Nellie Gail Ranch Owners 

Association (Nellie Gail) sued defendants, cross-complainants, and appellants Donald G. 

McMullin and Cynthia Jensen-McMullin (collectively, McMullins)1to quiet title and 

compel the McMullins to remove a retaining wall and other improvements they built 

without Nellie Gail’s approval on more than 6,000 square feet of common area Nellie 

Gail owned adjacent to the McMullins’ property. Following a bench trial, the trial court 

entered judgment for Nellie Gail and awarded Nellie Gail its attorney fees. The 

McMullins appeal, claiming the trial court should have quieted title in them or at least 

granted them an equitable easement over the disputed property. We disagree and affirm 

the trial court’s judgment.

First, the McMullins contend Nellie Gail was equitably estopped to bring 

this quiet title action because it told the McMullins it would not pursue construction of 

the wall as a violation of the governing declaration of covenants, conditions, and 

restrictions (CC&R’s) and instructed the McMullins to work with Nellie Gail’s architect 

to develop and implement a landscaping, irrigation, and drainage plan to help screen the 

wall from view. The McMullins, however, forfeited this claim by failing to assert it at 

trial. Moreover, equitable estoppel requires the party asserting it to be ignorant of the 

true facts and to justifiably rely on the conduct or statements of another who has 

knowledge of those facts. The evidence supports the conclusion Nellie Gail did not know 

all of the facts and it made its statements after the McMullins knowingly constructed the 

retaining wall and other improvements on Nellie Gail’s property without obtaining the 

required written approvals from Nellie Gail. The McMullins therefore could not 

justifiably rely on Nellie Gail’s statements even if they did not forfeit the claim.

 

1 We also refer to the McMullins individually by their first names to avoid 

confusion. No disrespect is intended.
3

Second, the McMullins contend the trial court erred when it rejected their 

adverse possession claim because the McMullins failed to pay property taxes on the 

disputed property. The McMullins contend the disputed property had no value, and 

therefore they were excused from establishing that essential element. The McMullins 

were excused from paying property taxes only if they established no property taxes were 

levied or assessed on the disputed property during the relevant five-year period. 

Substantial evidence, however, supports the conclusion the disputed property had a value 

and property taxes were levied against it, but were assessed to the individual property 

owners in the community consistent with the law concerning property taxes on common 

areas owned by homeowners associations.

Next, the McMullins contend the trial court erred in granting Nellie Gail a 

mandatory injunction authorizing it to remove the retaining wall and other improvements 

at the McMullins’ expense, rather than requiring Nellie Gail to accept monetary damages 

as compensation for an equitable easement that would allow the McMullins to maintain 

the wall and improvements. A property owner generally is entitled to a mandatory 

injunction requiring an adjacent owner to remove an encroachment, but a trial court has 

discretion to deny an injunction and grant an equitable easement if the encroacher acted 

innocently and the balancing of the hardships greatly favor the encroacher. Substantial 

evidence supports the trial court’s conclusion the McMullins were not innocent 

encroachers and therefore the court properly granted Nellie Gail an injunction.

Finally, the McMullins challenge the trial court’s award of attorney fees to 

Nellie Gail, but we lack jurisdiction to review that award because the court made it after 

entry of judgment and the McMullins neither identified the award in their notice of 

appeal nor filed a separate notice of appeal. We therefore dismiss that portion of the 

appeal challenging the fees award.
4

I

FACTS AND PROCEDURAL HISTORY

Nellie Gail Ranch is a 1,407-unit residential planned development on 

approximately 1,350 acres in Laguna Hills, California. Nellie Gail is the homeowners 

association the developer formed to own the common areas and administer the 

community’s CC&R’s. The community has horse trails, an equestrian center, parks, 

tennis courts, and other common areas Nellie Gail manages. 

In December 2000, the McMullins purchased a home in Nellie Gail Ranch 

located at the end of a cul-de-sac on a hilltop with canyon views. The back of their 

property slopes down towards and abuts lot 274, which is an approximately 15-acre 

canyon lot owned by Nellie Gail and dedicated as open space. One of the community’s 

horse trails runs across lot 274 directly behind the McMullins’ property. The back left 

corner of the McMullins’ property also touches lot 273, which is an approximately 5-acre 

lot owned by Nellie Gail that is home to the community’s largest park. 

The McMullins’ backyard has three retaining walls used to provide level, 

useable space because of the sloping nature of their property. There is a short three-foot 

retaining wall that separates their house and patio from their grass area. A second, nearly 

six-foot retaining wall separates their house, patio and grass area from a lower area where 

they have a swimming pool and deck. The third retaining wall is a six-foot wall that 

separates all of these areas from the slope that leads to lots 273 and 274. Beyond this 

final retaining wall is a wrought iron fence that encircles the entire back portion of the 

McMullins’ property. The area between the final retaining wall and the wrought iron 

fence has a considerable slope. 

Nellie Gail’s CC&R’s and its Architectural Review Committee Guidelines 

required all homeowners to obtain written approval from the Architectural Review 

Committee (Review Committee) before constructing or making significant alterations to 
5

any improvements on their property. In January 2008, the McMullins applied to the 

Review Committee to replaster their swimming pool, redo the pool deck, construct a bar 

area near the pool, install a solar heater for the pool, replace the wrought iron fence with 

an eight-foot retaining wall, backfill behind that new wall, install a large patio slab or 

sports court and garden in the flat area created, and build a staircase from the pool area 

down to the flat area behind the new retaining wall. The application included a site plan 

Donald prepared showing the location of the proposed improvements, and depicting the 

new retaining wall would be constructed in the same location as the existing wrought iron 

fence. The plan identified the property lines between the McMullins’ property and their 

neighbors on either side, but did not identify the rear property line between the 

McMullins’ property and lot 274. The plan included two dashed lines that extended from 

the existing six-foot retaining wall that surrounded the back yard to the side property 

lines, but did not explain what those lines represented. Nellie Gail later discovered these 

unlabeled, dashed lines showed the rear property line’s location. 

In February 2008, the Review Committee sent the McMullins’ a letter 

denying their application and explaining how it failed to comply with the CC&R’s and 

the committee’s guidelines. The letter also informed the McMullins that “a fully 

dimensioned site plan showing property lines, easement areas, setbacks and fully defined 

landscaping and drainage will be needed [for any future applications].” 

Two weeks later, Donald prepared and resubmitted an application with a 

revised, more detailed site plan. That plan again represented the new retaining wall 

would be constructed in the same location as the existing wrought iron fence, and also 

identified the property lines between the McMullins’ property and their neighbors, but 

not the property line between the McMullins’ property and Nellie Gail’s lot 274. The 

plan also included the same dashed lines extending from the end of the existing, six-foot 

retaining wall without explaining what those lines represented. In March 2008, the 

Review Committee sent the McMullins a letter denying the revised application and 
6

explaining the reasons for the denial. This letter again notified the McMullins that any 

future application must be accompanied by “a fully dimensioned site plan showing 

property lines” and other necessary information “from a licensed Civil Engineer.” The 

committee’s letter also suggested the McMullins submit a new application limited to just 

the pool-related improvements if they wanted to get started on their project. 

The McMullins followed the Review Committee’s suggestion and 

submitted a new application limited to the pool-related improvements only, which 

included a staircase from the pool area down to the slope behind the existing six-foot 

retaining wall. In April 2008, the Review Committee sent the McMullins a letter 

approving this application subject to a few conditions, including one that prohibited the 

McMullins from modifying the grade on the slope behind their existing retaining wall. 

Almost a year later, Cynthia went to the Review Committee’s office to 

submit a new application and plans for the retaining wall and sports court. She spoke 

with Sandi Erickson, the Review Committee’s community relations person. Cynthia

testified Erickson said the plans were not necessary because the McMullins’ application 

already was approved. Cynthia asked Erickson to double check her information, and 

after looking on Nellie Gail’s computer system, Erickson again told Cynthia she did not 

need to submit the plans because they were approved. Erickson stopped working for 

Nellie Gail a few weeks after this conversation, and she did not testify at trial. Cynthia

did not obtain written confirmation of this conversation or the Review Committee’s 

alleged approval for the retaining wall.

In May 2009, the McMullins obtained a building permit for the retaining 

wall from the City of Laguna Hills and began construction. None of the parties could 

explain how the McMullins obtained this permit when they did not have Nellie Gail’s

written approval for construction of the wall. The appellate record only includes a copy 

of the permit; it does not include the application the McMullins submitted to the city.
7

Jeff Hinkle began working as Nellie Gail’s Facilities and Compliance 

Manager in June 2009. That same month, he received a phone call from a resident 

informing him construction trucks were on the horse trail near the McMullins’ property. 

Hinkle spotted a cement truck and a pickup truck on the trail directly behind the 

McMullins’ property. After speaking with Nellie Gail’s general manager and reviewing 

its computer files to confirm the McMullins had obtained an approval to perform work on 

their property, Hinkle returned to the horse trail to speak with the McMullins’ contractor 

and Cynthia. In confirming the McMullins had an approval, Hinkle did not look at the 

plans or determine the type of work the McMullins were authorized to perform; he 

simply confirmed they had obtained some approval. Hinkle informed the contractor and 

Cynthia they needed a trail permit to have vehicles or equipment on the horse trail, and 

the contractor returned to Nellie Gail’s office with Hinkle to obtain the permit. During 

these visits to the trail near the McMullins’ property, Hinkle did not observe any 

construction work in progress. The wall had not been constructed, and he did not see any 

excavations for the wall footings. 

In August 2009, Hinkle was in the park near the McMullins’ property and 

noticed they were building a wall at the back of the property. He returned to Nellie 

Gail’s office to check on the nature of the improvements the McMullins were authorized 

to construct. He discovered the McMullins’ approvals authorized work on their pool, the 

installation of solar panels on the slope behind the existing retaining wall, and a staircase 

from the pool down to the slope. He noticed one of the conditions for the approval 

prohibited the McMullins from modifying the slope and the approval did not authorize a 

new retaining wall. Hinkle then wrote the McMullins a letter directing them to 

immediately stop all work and to contact Nellie Gail to discuss their project. 

At this point, the wall and related improvements essentially were completed

and the McMullins were waiting for the city to sign off on the project. The work that 

remained was backfilling against the wall on the side facing lot 274, some minor finish 
8

grading, and completing the irrigation, drainage, and landscaping. Creation of the flat 

surface behind the wall and the sports court were complete, and a wrought iron fence had 

been installed on top of the new retaining wall. 

After receiving the cease and desist letter, the McMullins stopped work and 

began discussions with Nellie Gail about what was necessary to complete the project. 

Nellie Gail informed the McMullins their architect would inspect the wall and the 

McMullins should submit an application and detailed plans to the Review Committee for 

possible approval. The McMullins submitted the application and plans to the Review 

Committee on September 30, 2009. As with all previous applications, Donald prepared 

the site plan and failed to identify the location of the rear property line between the 

McMullins’ property and Nellie Gail’s lot 274. The site plan again included the 

unlabeled, dashed lines that extended from the original six-foot retaining wall that Nellie 

Gail later learned was the rear property line. 

On October 15, 2009, the Review Committee sent the McMullins a letter 

denying their application for the retaining wall as constructed. The letter explained why 

the application was denied and what additional information the committee needed from 

the McMullins before it would approve the wall, including a dimensioned site plan by a 

licensed surveyor that depicted the easement for the trail and the wall. The McMullins 

therefore hired a surveyor to conduct a survey and prepare a plan showing the 

relationship between the horse trail and the retaining wall. Donald told the surveyor not 

to include the rear property line on this plan. The McMullins submitted this plan to 

Nellie Gail before the end of October. 

On November 10, 2009, Hinkle sent the McMullins an e-mail explaining 

that many of the problems concerning the wall could have been avoided if the 

McMullins’ plans had identified their rear property line. The e-mail also stated, “In any 

case, the wall was built and is on [Nellie Gail’s] property. Let’s move forward on how 

we can make this an amicable and reasonable resolution.” A week later, Nellie Gail’s 
9

board of directors considered in closed session how to address the issues surrounding the 

McMullins’ wall. The board voted and “agree[d] not to pursue the installation of the 

McMullin’s wall as a violation, and [to] direct the [Review Committee] to decide on 

appropriate screening options.” On December 9, 2009, Nellie Gail sent the McMullins a 

letter informing them of the board’s vote and instructing them to meet with Nellie Gail’s 

architect to finalize a landscaping, irrigation, and drainage plan to help screen the wall. 

After receiving this letter, the McMullins met with Nellie Gail’s architect 

and developed a landscaping, irrigation, and drainage plan for the areas on both sides of 

the wall. In January 2010, the Review Committee approved this plan and the McMullins 

implemented it at a cost of approximately $20,000. This expenditure was in addition to 

the approximately $150,000 they already spent to construct the retaining wall, sports 

court, and other improvements. Neither Nellie Gail nor the Review Committee, however, 

ever approved any of these improvements other than the landscaping, irrigation, and 

drainage relating to the screening for the wall.

In July 2010, the city sent a letter to both the McMullins and Nellie Gail 

explaining the wall was constructed entirely on Nellie Gail’s property and did not fully 

comply with the city’s requirements regarding the wall’s height and the slope adjacent to 

the wall. The city further informed the parties the wall could not remain in its current 

condition—either Nellie Gail must grant its approval for the wall and the wall must be 

brought into compliance with the city’s requirements, or the wall must be removed. 

Based on the city’s letter, Nellie Gail wrote the McMullins in 

November 2010 to inform them the wall could not remain in its current, unapproved 

condition and the two sides should try to resolve the situation. Nellie Gail’s letter 

explained the McMullins never provided any plans that showed the location of the 

property line between the McMullins’ property and Nellie Gail’s lot 274 despite the 

Review Committee’s repeated requests. Nellie Gail therefore requested that the 

McMullins obtain a professional survey showing all of the McMullins’ improvements in 
10

relation to the property line between the two properties, and that the parties engage in 

alternative dispute resolution after the survey. 

When the McMullins did not immediately respond, Nellie Gail hired its 

own surveyor to locate the property line. Nellie Gail’s surveyor completed his survey in 

March 2011, and determined the original six-foot retaining wall was constructed on the 

property line and the new retaining wall and improvements were built almost entirely on 

Nellie Gail’s property. The area between the property line and the new retaining wall 

totaled more than 6,100 square feet of lot 274 (hereinafter, Disputed Property) and 

increased the total size of the McMullins lot from approximately 16,400 square feet to 

more than 22,500 square feet. Contrary to the McMullins’ repeated representations in 

their applications, Nellie Gail’s surveyor determined the retaining wall was built well 

outside the location of the previous wrought iron fence and enclosed more than 

2,000 square feet of lot 274 that were not enclosed by the previous fence. In 

January 2012, the McMullins hired a surveyor to determine the relationship between the 

property line and the retaining wall. Their surveyor confirmed the retaining wall 

enclosed more than 6,100 square feet of Nellie Gail’s lot 274, and the parties stipulated at 

trial there was no significant difference between these two surveys.2 

After receiving these surveys, the parties continued to explore possible 

resolutions for the problem. In July 2012, Nellie Gail conducted a vote of its members on 

whether to sell the Disputed Property to the McMullins based on an appraisal they

obtained. The members overwhelmingly voted not to sell the Disputed Property to the 

McMullins. Of the 572 member who voted, only 142 voted in favor of the sale. 

 

2

The only area of disagreement was whether the Disputed Property included 

a few square feet of lot 273. Nellie Gail’s surveyor concluded it did not, but the 

McMullins’ surveyor concluded it did. Whether the Disputed Property included a portion 

of lot 273 is not significant to our analysis and the trial court nonetheless quieted title to 

both lots in Nellie Gail’s name. We therefore refer to lot 274 only for ease of reference.
11

In June 2013, Nellie Gail sued the McMullins to quiet title to the Disputed 

Property in its name, ask for an injunction requiring the McMullins to remove the 

retaining wall and all other improvements from the Disputed Property, and request a 

declaratory judgment declaring the parties’ rights and duties under the CC&R’s. The 

McMullins answered and filed a cross-complaint against Nellie Gail seeking to quiet title 

to the Disputed Property in their name and a declaratory judgment regarding their rights 

and duties concerning the Disputed Property. They alleged they either acquired title to 

the Disputed Property through adverse possession or a prescriptive, implied, or equitable 

easement over the Disputed Property. 

Following a six-day bench trial, the trial court entered judgment for Nellie 

Gail on all claims. The judgment declared the McMullins breached the CC&R’s by 

failing to accurately depict their property lines on the plans they submitted to the Review 

Committee, constructing the retaining wall and other improvements without the Review 

Committee’s approval or the city’s permission, and constructing the retaining wall and 

improvements on Nellie Gail’s property. The judgment further declared the McMullins 

did not acquire title to the Disputed Property by adverse possession because they failed to 

establish the essential elements of their claim, and the McMullins likewise did not 

acquire a prescriptive or equitable easement because they failed to establish the requisite 

elements. The court therefore quieted title to lot 274 and lot 273 in Nellie Gail and issued 

a mandatory injunction authorizing Nellie Gail to do the following at the McMullins’ 

expense: (1) remove the sports court; (2) cut down and remove the retaining wall to the 

existing grade in a manner that meets the city’s approval; and (3) “address the grade of 

the ground on the entirety of Lot 274 and Lot 273 in order to restore the area to a gradual 

open space slope and to restore the plantings on said Lot 274 and Lot 273 to native 

California vegetation.” Neither side requested a statement of decision.

Shortly after the trial court entered judgment, Nellie Gail filed a motion for 

attorney fees and costs. The court granted that motion, awarding approximately 
12

$187,000 in attorney fees and $10,000 in costs. Following the trial court’s ruling 

granting the fee motion, the McMullins filed their notice of appeal from the trial court’s 

judgment. The trial court later entered an amended judgment adding the attorney fees 

and costs to the judgment. 

II

DISCUSSION

A. We Infer the Trial Court Made All Necessary Findings Supported by Substantial 

Evidence Because the Parties Failed to Request a Statement of Decision

“Upon a party’s timely and proper request, [Code of Civil Procedure] 

section 632 requires a trial court to issue a statement of decision following ‘the trial of a 

question of fact by the court.’ The statement must explain ‘the factual and legal basis for 

[the court’s] decision as to each of the principal controverted issues at trial. . . .’” 

(Acquired II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970 

(Acquired II); see Code Civ. Proc., § 632.)3 If the parties fail to request a statement of 

decision, the trial court is not required to provide one. (Ibid.)

“A party’s failure to request a statement of decision when one is available 

has two consequences. First, the party waives any objection to the trial court’s failure to 

make all findings necessary to support its decision. Second, the appellate court applies 

the doctrine of implied findings and presumes the trial court made all necessary findings 

supported by substantial evidence. [Citations.] This doctrine ‘is a natural and logical 

corollary to three fundamental principles of appellate review: (1) a judgment is presumed 

correct; (2) all intendments and presumptions are indulged in favor of correctness; and 

(3) the appellant bears the burden of providing an adequate record affirmatively proving 

error.’” (Acquired II, supra, 213 Cal.App.4th at p. 970.)

 

3 All statutory references are to the Code of Civil Procedure unless otherwise 

stated.
13

Here, it is undisputed the trial court conducted a six-day bench trial to 

determine the parties’ rights, duties, and interests in the Disputed Property. Similarly, no 

one disputes the parties did not request, and the court did not prepare, a statement of 

decision explaining the factual and legal basis for the court’s decision. We therefore 

infer the court made factual findings favorable to Nellie Gail on all issues necessary to 

support the judgment, and we review those findings under the substantial evidence 

standard. (Acquired II, supra, 213 Cal.App.4th at p. 970; Fladeboe v. American Isuzu 

Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.) We more fully address the specific 

standard of review applicable to each of the McMullins’ challenges in our discussion 

below.

The McMullins contend the doctrine of implied findings does not apply 

because all relevant facts were undisputed, and therefore the trial court did not resolve 

any factual issues in reaching its decision. Thus, the McMullins conclude they have

raised only legal issues subject to de novo review. We disagree. There are many 

disputed factual issues underlying the court’s judgment. For example, the trial court had 

to determine the extent of the parties’ knowledge about the location of the McMullins’ 

rear property line, whether the McMullins deliberately failed to identify their rear 

property line on their submissions to Nellie Gail, and numerous other issues. Moreover, 

we do not independently review factual issues unless the facts are undisputed and no 

conflicting inferences can be drawn from the facts. (Montague v. AMN Healthcare, Inc.

(2014) 223 Cal.App.4th 1515, 1521; DiQuisto v. County of Santa Clara (2010) 

181 Cal.App.4th 236, 270.) The McMullins failed to establish no conflicting inferences 

could be drawn from the evidence presented at trial. 

B. The McMullins Forfeited Their Equitable Estoppel and Statute of Limitations 

Defenses by Failing to Assert Them at Trial

The McMullins contend the trial court erred in quieting title to the Disputed 

Property in Nellie Gail because two of their defenses defeated Nellie Gail’s quiet title 
14

claim as a matter of law. First, the McMullins contend equitable estoppel barred Nellie 

Gail’s claim. Second, they contend section 318’s five-year limitations period bars Nellie 

Gail’s claim. The McMullins forfeited these defenses by failing to assert them at trial.

“As a general rule, theories not raised in the trial court cannot be asserted 

for the first time on appeal; appealing parties must adhere to the theory (or theories) on 

which their cases were tried. This rule is based on fairness—it would be unfair, both to 

the trial court and the opposing litigants, to permit a change of theory on appeal.” 

(Eisenberg et al., Cal. Practice Guide: Civil Appeal & Writs (The Rutter Group 2015) 

¶ 8:229; p. 8-167.) “New theories of defense, just like new theories of liability, may not 

be asserted for the first time on appeal.” (Bardis v. Oates (2004) 119 Cal.App.4th 1, 

13-14, fn. 6.) “‘Appellate courts are loath to reverse a judgment on grounds that the 

opposing party did not have an opportunity to argue and the trial court did not have an 

opportunity to consider. . . . Bait and switch on appeal not only subjects the parties to 

avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases 

on theories that could have been raised earlier.’” (Brandwein v. Butler (2013) 

218 Cal.App.4th 1485, 1519.)

In their answer, the McMullins alleged boilerplate defenses based on 

equitable estoppel and the statute of limitations. Similarly, in the joint list of 

controverted issues the parties filed on the eve of trial, the McMullins identified these 

defenses as two of their 19 controverted issues for trial. The McMullins, however, 

thereafter abandoned those defenses by failing to raise either of them at trial.

The trial brief the McMullins filed neither argued these defenses nor 

identified them as issues for the trial court to decide. In his opening statement, the 

McMullins’ trial counsel stated he would present evidence to show the McMullins were 

entitled to maintain the retaining wall and other improvements on the Disputed Property 

based on three theories—adverse possession, prescriptive easement, and equitable 

easement. Counsel failed to mention equitable estoppel or the statute of limitations as a 
15

basis for the court to deny Nellie Gail’s quiet title claim. Similarly, in his closing 

argument, counsel argued the court should quiet title in the McMullins or grant them an 

exclusive easement over the Disputed Property based on adverse possession, prescriptive 

easement, or equitable easement. At no time during trial did the McMullins assert that 

Nellie Gail was equitably estopped to bring a quiet title claim or that the statute of 

limitations barred Nellie Gail’s claim. 

The McMullins fail to cite anywhere in the trial record where they 

mentioned the statute of limitations, and they cite just one page of the reporter’s 

transcript where their counsel uttered the words “equitable estoppel” during closing 

argument. This isolated utterance, however, is not sufficient to preserve the issue for 

appeal because the McMullins’ counsel did not utter those words as part of an argument 

that Nellie Gail was equitably estopped to assert a quiet title claim. Indeed, it appears as 

though the McMullins’ counsel may have misspoke by mentioning equitable estoppel 

because he uttered that phrase when urging the trial court to grant an equitable easement, 

which, as explained below, is a separate doctrine that allows a landowner who 

constructed an improvement on an adjacent owner’s property to defeat that owner’s 

injunction request based on a balancing of the hardships or conveniences. (See, e.g., 

Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008-1009 (Tashakori).) 

Nonetheless, assuming the McMullins’ trial counsel meant to argue 

equitable estoppel, substantial evidence supports the implied finding the McMullins 

failed to establish the essential elements necessary for equitable estoppel. “‘“A valid 

claim of equitable estoppel consists of the following elements: (a) a representation or 

concealment of material facts (b) made with knowledge, actual or virtual, of the facts 

(c) to a party ignorant, actually and permissibly, of the truth (d) with the intention, actual 

or virtual, that the ignorant party act on it, and (e) that party was induced to act on it.”’

. . . Other, more general formulations have been proposed [citation], but all formulations 

require that the conduct of the party to be estopped induced action on the part of the 
16

complaining party. ‘Such causation is essential to estoppel. . . .’” (Stephens & 

Stephens XII, LLC v. Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th 1131, 1149.) 

“‘“‘[T]he existence of an estoppel is generally a question of fact for the trier of fact, and 

ordinarily the [fact-finder’s] determination is binding on appeal unless the contrary 

conclusion is the only one to be reasonably drawn from the facts.’”’” (J.P. v. Carlsbad 

Unified School Dist. (2014) 232 Cal.App.4th 323, 333.)

As the basis for their equitable estoppel claim, the McMullins cite Nellie 

Gail’s December 2009 letter and January 2010 e-mail, informing the McMullins the 

board of directors decided not to pursue the unauthorized construction of the retaining 

wall and related improvements as a violation of the CC&R’s, and instructing the 

McMullins to work with Nellie Gail’s architect to develop a landscaping plan to screen 

the wall from view. In reliance on these letters, the McMullins assert they spent $20,000 

to develop and implement a landscaping plan for the area surrounding the retaining wall. 

The evidence simply is insufficient to equitably estop Nellie Gail from bringing a quiet 

title claim as a matter of law.

The McMullins ignore that these communications and their reliance on 

them occurred well after the retaining wall was constructed, and therefore they could not 

justifiably have relied on them in spending approximately $150,000 to construct the wall 

and related improvements that did not include the landscape screening, irrigation, and 

drainage around the wall. Moreover, the evidence supports the implied finding Nellie 

Gail did not know all of the essential facts because it was unaware of the extent of the 

McMullins’ encroachment onto its property when it voted not to pursue the wall as a 

CC&R’s violation and approved the plans to screen the wall. The evidence also supports 

the implied finding the McMullins were not ignorant of the facts because they concealed 

their rear property line’s location from Nellie Gail and knowingly started construction 

without Nellie Gail’s written approval. 
17

Specifically, the record includes testimony from a member of Nellie Gail’s 

board of directors who participated in the vote not to pursue the retaining wall as a 

CC&R’s violation. That board member testified the board simply was looking for an 

amicable resolution to the situation, but did not know where the McMullins’ rear property 

line was or the extent of the encroachment when it voted. The record also reveals the 

trial court found the McMullins were not “innocent” in their construction of the wall 

because (1) they intentionally failed to identify their rear property line in each of the 

many plans they submitted despite Nellie Gail’s repeated request for them to identify 

property lines; (2) they knew where the property line was located because all of their 

plans included a dashed, unlabeled line that approximated the rear property line’s 

location, and (3) they started construction based on an ambiguous oral statement from a 

Nellie Gail employee about the approval of their plans when they knew written approval 

from the Review Committee was required before construction could begin. Moreover, 

the city later informed both parties the wall was on Nellie Gail’s property and it could not 

remain there unless Nellie Gail expressly authorized it to remain on its property. This 

evidence supports the implied finding the trial court rejected the McMullins’ equitable 

estoppel defense to the extent they did not forfeit it.4

 

4 We also note the McMullins asserted a quiet title claim in their 

cross-complaint that would support the trial court’s judgment quieting title to the 

Disputed Property in Nellie Gail. The McMullins contend Nellie Gail was equitably 

estopped to bring its quiet title action, but did not assert Nellie Gail was equitably 

estopped from defending the McMullins’ quiet title claim or that the trial court could 

not quiet title in Nellie Gail based on the McMullins’ claim.
18

C. The McMullins Failed to Establish They Acquired Any Interest in the Disputed 

Property by Adverse Possession

The McMullins contend the trial court erred by failing to sustain their quiet 

title claim to the Disputed Property because they presented evidence sufficient to 

establish a claim to title by adverse possession. We disagree.5

To establish they acquired title by adverse possession the McMullins must 

show (1) they possessed the Disputed Property under a claim of right or title; (2) they 

actually, openly, and notoriously occupied the Disputed Property in a manner that gave 

reasonable notice to Nellie Gail; (3) their possession and occupancy was adverse and 

hostile to Nellie Gail; (4) they continually possessed and occupied the Disputed Property 

for five years; and (5) they paid all property taxes levied and assessed on the Disputed 

Property during that five-year period. (Main Street Plaza v. Cartwright & Main, LLC

(2011) 194 Cal.App.4th 1044, 1054.) 

The trial court found the McMullins’ adverse possession claim failed 

because they did not pay any property taxes on the Disputed Property.6 (See Mesnick v. 

Caton (1986) 183 Cal.App.3d 1248, 1260 [“The adverse claimant’s failure to pay taxes 

on the land he claims is fatal to his claim”].) The payment of property taxes is a statutory 

 

5

The McMullins do not separately argue they were entitled to an interest in 

the Disputed Property by adverse possession. Rather, they raise their adverse possession 

argument as the basis for their contention Nellie Gail’s quiet title action was time-barred. 

We nonetheless consider the argument on its merits because the governing five-year 

limitation period on a property owner’s quiet title action against an adverse possessor is 

triggered when an adverse possessor begins to use and occupy the property to acquire 

title. An adverse possessor who claims the legal owner’s quiet title action is time barred 

therefore bears the burden to establish all elements of an adverse possession claim to 

show the quiet title claim is time barred. (Harrison v. Welch (2004) 116 Cal.App.4th 

1084, 1095-1096.) 

6

The trial court also found the McMullins failed to establish their possession 

and occupation of the Disputed Property was “open, notorious, and hostile,” but we need 

not address this finding because substantial evidence supports the court’s finding the 

McMullins failed to pay property taxes. 
19

requirement for adverse possession. (§ 325, subd. (b).) For section 325 purposes, a tax is 

levied when the county board of supervisors fixes the tax rate and orders payment of the 

taxes. A tax is assessed when the county assessor prepares the annual roll listing all 

properties subject to taxation and their assessed value. (Hagman v. Meher Mount Corp.

(2013) 215 Cal.App.4th 82, 90 (Hagman); see Allen v. McKay (1898) 120 Cal. 332, 334.) 

The party claiming an interest based on adverse possession bears the 

burden to show either that “no taxes were assessed against the land or that if assessed he 

paid them.” (Gilardi v. Hallam (1981) 30 Cal.3d 317, 326; Glatts v. Henson (1948) 

31 Cal.2d 368, 372.) Section 325 requires that payment of the property taxes must be 

“established by certified records of the county tax collector.” (§ 325, subd. (b).) 

“Ordinarily, when adjoining lots are assessed by lot number, the claimant to the disputed 

portion cannot establish adverse possession because he cannot establish [he paid taxes on 

the portion of the adjoining property he occupied and possessed].” (Gilardi, at p. 326.)

The McMullins do not dispute they paid no property taxes on the Disputed 

Property. Instead, citing Hagman, they contend they were not required to pay taxes to 

establish their claim because the larger parcel that included the Disputed Property—lot 

274—had no value, and therefore no taxes were levied and assessed against it. To show 

the Disputed Property had no value, the McMullins point to the recorded quitclaim deed 

transferring lot 274 to Nellie Gail in 1984 and recent property tax statements. 

According to the McMullins, the recorded quitclaim deed showed lot 274 

had no value because the deed states no documentary transfer tax was required for the 

transfer because the consideration was less than $100. The McMullins contend the tax 

statements show lot 274 had no value because the statements did not show the county 

levied and assessed any specific property taxes against lot 274 and did not identify a 

specific value for the parcel. This evidence, however, is not sufficient to meet the 

McMullins burden to show no taxes were levied and assessed. 
20

In Hagman, the adverse possession claimant presented evidence showing 

the holder of legal title applied for and obtained a property tax exemption for the property 

at issue during the entire period of adverse possession because the title holder was a 

religious organization that used the property for educational purposes. (Hagman, supra, 

215 Cal.App.4th at p. 86.) That exemption precluded the county from levying or 

assessing any property taxes against the property. The Court of Appeal therefore 

concluded the claimant was not required to pay property taxes to establish adverse 

possession because no property taxes were assessed or levied on the property during the 

period of adverse possession. (Id. at pp. 90-91.)

Here, the McMullins rely on evidence that fails to show lot 274 was exempt 

from property taxes, lot 274 had no value, or no property taxes were levied and assessed 

on lot 274. The quitclaim deed transferred lot 274 from Nellie Gail’s original developer 

to Nellie Gail and dedicated the parcel as open space. Nowhere does the deed state 

lot 274 has no value and the McMullins do not cite any authority to support their 

assumption that the absence of any documentary transfer tax on this type of transfer 

establishes the property has no value. Moreover, at trial, the parties agreed lot 274 and 

the Disputed Property had value, but merely disagreed on what that value was. Similarly, 

although the property tax statements showed Nellie Gail was not billed for any property 

taxes on lot 274, and did not identify a specific value for that parcel, the statements 

stated, “common area values separately assessed.” (Capitalization omitted.) 

That statement is consistent with Revenue and Taxation Code 

section 2188.5’s assessment of property taxes for common areas owned by homeowners

associations like Nellie Gail. That section provides that all parcels owned by individual 

homeowners that make up the association are assessed property taxes based not only on 

the value of their separate lots, but also the value of their proportionate, undivided share 

of all common areas owned by their homeowners association. (Rev. & Tax. Code, 
21

§ 2188.5, subd. (a)(1).)7 Common areas like lot 274 therefore have value and property 

taxes are levied against them; those taxes are billed to and paid by the individual 

homeowners. (Lake Forest Community Association v. County of Orange (1978) 

86 Cal.App.3d 394, 397 [“pursuant to Revenue and Taxation Code section 2188.5, the 

real property taxes levied against the clubhouse and the parcel of land on which it is 

located are assessed to the separately owned residential properties owned by the 

Association’s members”].)

The McMullins argue these authorities do not apply to lot 274 because 

there is no evidence to show the developer or Nellie Gail properly annexed lot 274 to 

make it part of the common areas governed by Nellie Gail under the CC&R’s. At trial, 

however, the McMullins stipulated that lot 274 is “‘Common Area’” as defined in Nellie 

Gail’s CC&R’s. Having tried the case based on that stipulation, the McMullins may not 

seek to repudiate it on appeal. (See People v. Pijal (1973) 33 Cal.App.3d 682, 697 [“It is, 

of course, well established that the defendant is bound by the stipulation or open 

admission of his counsel and cannot mislead the court and jury by seeming to take a 

position on issues and then disputing or repudiating the same on appeal”].)

The McMullins therefore failed to meet their burden to show they were not 

required to pay any property taxes on the Disputed Property, and the trial court properly 

found their adverse possession claim failed as a result.

 

7

In pertinent part, Revenue and Taxation Code section 2188.5, 

subdivision (a)(1), provides as follows: “[W]henever real property has been divided into 

planned developments as defined in Section 11003 of the Business and Professions Code, 

the interests therein shall be presumed to be the value of each separately owned lot, 

parcel, or area, and the assessment shall reflect this value, which includes all of the 

following: [¶] (A) The assessment attributable to the value of the separately owned lot, 

parcel, or area and the improvements thereon. [¶] (B) The assessment attributable to the 

share in the common area reserved as an appurtenance of the separately owned lot, 

parcel, or area.”
22

D. The Trial Court Did Not Abuse Its Discretion in Granting Nellie Gail an 

Injunction Against the McMullins’ Encroachment

The McMullins contend the trial court erred in granting Nellie Gail a 

mandatory injunction that requires them to pay for removing the visible portions of the 

retaining wall and restoring the surrounding area to its natural condition. According to 

the McMullins, the trial court could not grant the equitable remedy of an injunction 

without first finding Nellie Gail had no adequate remedy at law, and the record lacks

substantial evidence to support the finding monetary damages was an inadequate legal 

remedy. The McMullins misconstrue the governing legal standards, and we conclude 

substantial evidence supports the trial court’s decision. 

In an action between adjoining landowners based on the defendant 

constructing an improvement on the plaintiff’s property, the plaintiff generally is entitled 

to a mandatory injunction requiring the defendant to remove the encroachment. (Brown 

Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858 (Brown Derby); Salazar v. 

Matejcek (2016) 245 Cal.App.4th 634, 649 (Salazar).) Under the doctrine of “balancing 

of conveniences” or “relative hardships,” a trial court has discretion to deny an injunction 

and instead compel the plaintiff to accept damages as compensation for a judiciallycreated easement that allows the defendant to maintain the encroaching improvement. 

(Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19-20 (Shoen); Tashakori, supra,

196 Cal.App.4th at pp. 1008-1009; Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 

265 (Linthicum).) 

“When a trial court refuses to enjoin encroachments which trespass on 

another’s land, ‘the net effect is a judicially created easement by a sort of non-statutory 

eminent domain.’ [Citations.] However, the courts are not limited to judicial passivity as 

in merely refusing to enjoin an encroachment. Instead, in a proper case, the courts may 

exercise their equity powers to affirmatively fashion an interest in the owner’s land which 

will protect the encroacher’s use.” (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 
23

764-765 (Hirshfield).) That interest commonly is referred to as an equitable easement. 

(Shoen, supra, 237 Cal.App.4th at pp. 19-20; Tashakori, supra, 196 Cal.App.4th at 

pp. 1008-1009.)

For a trial court to exercise its discretion to deny an injunction and grant an 

equitable easement, “three factors must be present. First, the defendant must be innocent. 

That is, his or her encroachment must not be willful or negligent. The court should 

consider the parties’ conduct to determine who is responsible for the dispute. Second, 

unless the rights of the public would be harmed, the court should grant the injunction if 

the plaintiff ‘will suffer irreparable injury . . . regardless of the injury to defendant.’ 

Third, the hardship to the defendant from granting the injunction “must be greatly 

disproportionate to the hardship caused plaintiff by the continuance of the encroachment 

and this fact must clearly appear in the evidence and must be proved by the 

defendant. . . .’” (Hirshfield, supra, 91 Cal.App.4th at p. 759, italics omitted.) “Unless 

all three prerequisites are established, a court lacks the discretion to grant an equitable 

easement.” (Shoen, supra, 237 Cal.App.4th at p. 19.) 

“Overarching the analysis is the principle that since the defendant is the 

trespasser, he or she is the wrongdoer; therefore, ‘doubtful cases should be decided in 

favor of the plaintiff.’” (Hirshfield, supra, 91 Cal.App.4th at p. 759; see Linthicum, 

supra, 175 Cal.App.4th at p. 265.) Moreover, “courts approach the issuance of equitable 

easements with ‘[a]n abundance of caution.’” (Shoen, supra, 237 Cal.App.4th at p. 21.) 

When courts compare the hardships or conveniences, the scales “begin tipped in favor of 

the property owner due to the owner’s substantial interest in exclusive use of her property 

arising solely from her ownership of her land.” (Shoen, supra, 237 Cal.App.4th at p. 20.) 

“‘When the court finds . . . that the defendant was not innocent, it should 

grant an injunction [because an essential element for denying an injunction and 

establishing an equitable easement is missing].” (Salazar, supra, 245 Cal.App.4th at 

p. 649, quoting Brown Derby, supra, 61 Cal.2d at p. 858, italics omitted.) “The 
24

defendant is not innocent if he wilfully encroaches on the plaintiff’s land. [Citations.] 

To be wilful the defendant must not only know that he is building on the plaintiff’s land, 

but act without a good faith belief that he has a right to do so.” (Brown Derby, supra, 

61 Cal.2d at p. 859.) “Where the conduct is willful, it may be presumed that a defendant 

acted with full knowledge of the plaintiff’s rights ‘“‘and with an understanding of the 

consequences which might ensue. . . .’”’” (Salazar, supra, 245 Cal.App.4th at p. 649.) 

“The question whether the defendant’s conduct is so egregious as to be willful or whether 

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

matter best left to the sound discretion of the trial court.” (Linthicum, supra, 

175 Cal.App.4th at p. 267.) “We review the trial court’s application of this doctrine for 

an abuse of discretion.” (Shoen, supra, 237 Cal.App.4th at p. 20.)

Here, the trial court refused to grant the McMullins an equitable easement, 

and instead issued an injunction for the removal of the retaining wall and restoration of

the surrounding area. The court found the McMullins were not innocent in constructing 

the wall on Nellie Gail’s property, and therefore did not satisfy the first of the three 

requirements described above. The record supports the court’s ruling because substantial 

evidence supports the implied findings the McMullins knew where their rear property 

line was located, they intentionally did not identify it, and they began constructing the 

wall knowing they did not have the necessary approvals from Nellie Gail.

For example, the evidence showed Nellie Gail denied several applications 

by the McMullins seeking approval for the retaining wall and related improvements. 

Each time, Nellie Gail told the McMullins in writing that any future application must 

include “a fully dimensioned site plan showing property lines,” but the McMullins 

repeatedly submitted applications that failed to identify the rear property line. Indeed, the 

McMullins never submitted a plan identifying the location of their rear property line. 

The evidence also showed Donald prepared all of the plans the McMullins submitted to 

Nellie Gail, and each time he drew in a dashed, unlabeled line that Nellie Gail later 
25

discovered was the rear property line and showed the retaining wall and other 

improvements were on Nellie Gail’s property. Moreover, the applications repeatedly 

represented the retaining wall would be constructed in the same location as the original 

wrought iron fence, but the McMullins constructed the new retaining wall in a location 

that enclosed 2,000 square feet more than the original wrought iron fence. Finally, the 

trial court could rely on evidence that showed the McMullins constructed the retaining 

wall based on Erickson’s oral and ambiguous statement that she thought the McMullins’ 

plans had been approved, but the McMullins knew all of their previous plans for the 

retaining wall had been rejected in writing, they had not submitted any new plans since 

the last rejection, and a written approval from the Review Committee was required before 

construction could commence. 

The McMullins point to the Review Committee’s approval of the landscape 

screening for the retaining wall as a basis for the trial court to grant an equitable easement 

and deny injunctive relief. As explained above, however, that approval occurred after the 

McMullins knowingly constructed the wall on Nellie Gail’s property without the Review 

Committee’s approval. Moreover, the $20,000 cost for the screening portion of the 

project amounts to less than 12 percent of the total cost for the project. On these facts, 

we cannot say the trial court abused its discretion in concluding the McMullins were not 

innocent, and therefore were not entitled to an equitable easement.

The McMullins also argue Nellie Gail should have known the location of 

the property line between the two properties, and Nellie Gail acquiesced in the 

McMullins’ construction of the retaining wall by failing to tell them to stop construction 

until the wall essentially was complete. These arguments, however, ignore the governing 

standard of review and improperly seek to reargue the evidence on appeal. As explained 

above, we review the trial court’s decision to grant an injunction and deny an equitable 

easement under the abuse of discretion standard. (Shoen, supra, 237 Cal.App.4th at 

pp. 19-20; Linthicum, supra, 175 Cal.App.4th at p. 267.) The abuse of discretion 
26

standard, however, includes a substantial evidence component: “We defer to the trial 

court’s factual findings so long as they are supported by substantial evidence, and 

determine whether, under those facts, the court abused its discretion. If there is no 

evidence to support the court’s findings, then an abuse of discretion has occurred.” (Tire 

Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)

When we review the record for substantial evidence, we do not determine 

whether substantial evidence supports the factual conclusions advanced by the 

McMullins. Rather, we review the entire record solely to determine whether substantial 

evidence supports the trial court’s expressed and implied factual findings. If there is, our

analysis ends; we may not substitute our deductions for those of the trial court. (Rupf v. 

Yan (2000) 85 Cal.App.4th 411, 429-430, fn. 5.) As explained above, we conclude 

substantial evidence supports the trial court’s finding the McMullins were not innocent, 

and therefore were not entitled to an equitable easement.

In arguing monetary damages provided an adequate legal remedy that 

required the trial court to deny injunctive relief, the McMullins fail to recognize the 

foregoing authorities governed the court’s decision whether to grant an injunction or 

require Nellie Gail to accept monetary damages instead. The McMullins rely on cases 

that discuss injunctive relief generally and involve different factual contexts. Reliance on 

these authorities is unavailing here because they do not address awarding injunctive relief 

when an adjoining property owner constructs an improvement that encroaches on his or 

her neighbor’s property. Under the foregoing authorities, whether Nellie Gail suffered 

irreparable injury or monetary damages provided an adequate legal remedy is addressed 

by the second element of the governing standard, but the court need not decide that issue 

where, as here, the court determines the defendant was not innocent and therefore was 

ineligible for an equitable easement. (See Brown Derby, supra, 61 Cal.2d at p. 858 [“The 

rationale behind the rule is . . . to prevent a wrongdoer from gaining control of land 

merely by paying a penalty of damages”].)
27

Finally, the McMullins challenge the terms and scope of the trial court’s 

injunction. First, they contend the injunction requires the city to issue permits for and 

approve the retaining wall’s demolition, but there is no guarantee the city will approve 

the demolition or issue any permits. Second, the McMullins contend the injunction is 

overbroad because it authorizes Nellie Gail to address the grade and groundcover on the 

entirety of lot 274 and lot 273 at the McMullins’ expense, but those lots total more than 

20 acres and the McMullins’ construction disturbed much less than one acre. Neither of 

these arguments invalidates the injunction or requires our intervention at this time. 

We will not speculate on the city’s position concerning the retaining wall’s 

demolition and the trial court has the authority to modify the injunction if necessary to 

comply with the city’s building code or other requirements. Moreover, the injunction 

essentially requires the wall to be removed in whatever manner the city requires. As for 

the McMullins’ concern Nellie Gail will attempt to regrade and replant the entire 20 acres 

at the McMullins’ expense, that too is based on nothing more than speculation. The trial 

court’s judgment includes a procedure for the McMullins to challenge the reasonableness 

of the expenses Nellie Gail seeks to impose on them and they always may seek to modify 

the injunction if necessary. 

E. This Court Lacks Jurisdiction to Review the Trial Court’s Attorney Fees Award

The McMullins contend the trial court erred in awarding Nellie Gail 

attorney fees under Civil Code section 5975, subdivision (c), because this lawsuit is not 

an action to enforce Nellie Gail’s governing documents, but an action to enforce the 

quitclaim deed transferring lot 274 to Nellie Gail. We lack jurisdiction to review the 

attorney fees award because the McMullins failed to timely appeal the award. We 

therefore dismiss that portion of their appeal.

“‘An appellate court has no jurisdiction to review an award of attorney fees 

made after entry of the judgment, unless the order is separately appealed.’ [Citation.] 
28

‘[W]here several judgments and/or orders occurring close in time are separately 

appealable (e.g., judgment and order awarding attorney fees), each appealable judgment 

and order must be expressly specified—in either a single notice of appeal or multiple 

notices of appeal—in order to be reviewable on appeal.”’” (Colony Hill v. Ghamaty 

(2006) 143 Cal.App.4th 1156, 1171 (Colony Hill); see Allen v. Smith (2002) 

94 Cal.App.4th 1270, 1284; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43

(DeZerega).) Indeed, “‘[w]hen a party wishes to challenge both a final judgment and a 

postjudgment costs/attorney fee order, the normal procedure is to file two separate 

appeals: one from the final judgment, and a second from the postjudgment order.’” 

(Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222.) “‘“[I]f a judgment or 

order is appealable, an aggrieved party must file a timely appeal or forever lose the 

opportunity to obtain appellate review.”’” (Silver v. Pacific American Fish Co., Inc.

(2010) 190 Cal.App.4th 688, 693 (Silver).)

Here, the trial court entered judgment in Nellie Gail’s favor in early 

November 2014. In mid-December, the court granted Nellie Gail’s attorney fees motion 

and awarded Nellie Gail $187,000 in attorney fees and $10,000 in costs. The McMullins 

filed their notice of appeal on December 30, 2014, stating they appealed from “the 

judgment executed and filed on November 6, 2014.” Their notice of appeal did not 

identify the trial court’s ruling on Nellie Gail’s attorney fees motion or otherwise suggest 

the McMullins were appealing the attorney fees award. On January 21, 2015, the trial 

court entered an “Amended Judgment,” granting Nellie Gail’s attorney fees motion and 

amending the original judgment to include the attorney fees and costs award. The 

amended judgment stated the judgment “shall remain in all other respects as originally 

entered, and as modified to date, and shall retain its original entry date of 

November 6, 2014.” The McMullins did not file a separate notice of appeal to 

challenge either the trial court’s ruling on the attorney fees motion or the amended 

judgment, and therefore we lack jurisdiction to review the attorney fees award.
29

Citing Grant v. List & Lanthrop (1992) 2 Cal.App.4th 993 (Grant), the 

McMullins contend their notice of appeal necessarily encompassed the trial court’s 

attorney fees award because the original judgment awarded Nellie Gail attorney fees and 

left a blank space for the amount to be inserted later, and the amended judgment 

expressly amended the original judgment nunc pro tunc to include the amount of fees. 

The McMullins misconstrue Grant and the court’s judgment and amended judgment.

In Grant, the Court of Appeal determined it had jurisdiction to decide an 

appeal challenging a postjudgment award of attorney fees where the judgment identified 

in the notice of appeal expressly awarded attorney fees to the prevailing party and merely 

left the determination of the amount for postjudgment proceedings. (Grant, supra, 

2 Cal.App.4th at pp. 996-997.) The foregoing authorities emphasize Grant established a 

narrow exception to the rule requiring a separate notice of appeal for a postjudgment 

attorney fees award, and that exception applies solely when “the entitlement to fees [is] 

adjudicated by the original judgment, leaving only the issue of amount for further 

adjudication.” (DeZerega, supra, 83 Cal.App.4th at p. 44; see Silver, supra, 

190 Cal.App.4th at p. 692; Colony Hill, supra, 143 Cal.App.4th at p. 1172.) 

In Silver, for example, the appellant sought to challenge a postjudgment 

attorney fees award on his appeal from the underlying judgment that stated attorney fees 

were awarded to the respondent and left a blank space for the amount of fees to be 

inserted later. (Silver, supra, 190 Cal.App.4th at pp. 690-691.) The Court of Appeal 

concluded it lacked jurisdiction to review the attorney fees award because the trial court 

made the award after entry of judgment and the appellant did not file a separate notice of 

appeal challenging the award. Although the judgment stated fees were awarded and left a 

blank space for the amount, the Silver court conclude Grant did not apply because the 

record showed the trial court determined both entitlement to and the amount of fees in 

postjudgment proceedings. (Silver, at pp. 691-692.) 
30

Here, the original judgment similarly stated Nellie Gail shall recover its 

attorney fees and left a blank space for the amount to be inserted later, but the record 

shows the trial court made no determination regarding attorney fees before entering 

judgment, and determined both Nellie Gail’s entitlement to and the amount of fees after 

entry of judgment. Grant therefore does not apply. 

Contrary to the McMullins’ contention, the trial court’s amended judgment 

did not amend the original judgment nunc pro tunc and thereby bring the attorney fees 

award within the scope of their notice of appeal. Although Nellie Gail’s attorney fees 

motion requested that the trial court amend the original judgment nunc pro tunc to 

include the fees award, neither the trial court’s ruling nor the amended judgment stated

the original judgment was amended nunc pro tunc. Rather, the amended judgment 

simply stated the original judgment was amended to include the attorney fees and costs 

award and the original judgment shall retain its original entry date. 

More importantly, a trial court’s authority to amend its judgment nunc pro 

tunc is limited to correcting clerical errors in the judgment. (APRI Ins. Co. v. Superior 

Court (1999) 76 Cal.App.4th 176, 185-186; Lang v. Superior Court (1961) 

198 Cal.App.2d 16, 17-18.) Amending a judgment to include an award of attorney fees 

and costs when the court determined both the entitlement to and amount of fees after 

entry of judgment is not an amendment to correct a clerical error. Indeed, the Rule of 

Court addressing postjudgment awards of costs, including attorney fees, directs the court 

clerk to enter the award on the judgment. It does not authorize the court or clerk to 

amend the judgment nunc pro tunc. (Cal. Rule of Court, rule 3.1700(b)(4).) If a 

judgment could be amended nunc pro tunc to include a postjudgment attorney fees award, 

an appellant would never have to file a separate appeal from a postjudgment order 

granting attorney fees, but that is contrary to the foregoing authorities. (Cf. Colony Hill, 

supra, 143 Cal.App.4th at p. 1172.)
31

Finally, the McMullins contend we must liberally construe their notice of 

appeal to encompass the trial court’s postjudgment attorney fees award. No so. The 

Colony Hill court rejected this same argument: “‘The rule favoring appealability in cases 

of ambiguity cannot apply where there is a clear intention to appeal from only part of the 

judgment or one of two separate appealable judgments or orders. [Citation.] “Despite 

the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be 

considered adequate if it completely omits any reference to the judgment [or order] being 

appealed.”’” (Colony Hill, supra, 143 Cal.App.4th at p. 1172; see Norman I. Krug Real 

Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.) The McMullins’ 

notice of appeal unmistakably stated they appealed from the trial court’s November 6, 

2014 judgment, and nothing else.

III

DISPOSITION

The judgment is affirmed. The purported appeal from the trial court’s order 

awarding attorney fees and costs is dismissed for lack of jurisdiction. Nellie Gail shall 

recover its costs on appeal.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.
Filed 10/27/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NELLIE GAIL RANCH OWNERS 

ASSOCIATION,

Plaintiff, Cross-Defendant and 

Respondent,

v.

DONALD G. McMULLIN et al.,

Defendants, Cross-complainants and 

Appellants.

G051244

(Super. Ct. No. 30-2013-00653834)

ORDER (1) MODIFYING OPINION,

(2) DENYING REHEARING, AND 

(3) CERTIFYING OPINION FOR 

PUBLICATION; NO CHANGE IN 

JUDGMENT

It hereby is ordered that the opinion filed in the above-entitled matter on 

October 3, 2016, is hereby MODIFIED as follows:

1. On page 2, the first sentence of the second paragraph, beginning 

with “First, the McMullins contend,” delete the words “and implement” between the 

words “develop” and “a landscaping,” and delete the word “help” between the words 

“plan to” and “screen,” so the sentence reads:
2

First, the McMullins contend Nellie Gail was equitably estopped to bring 

this quiet title action because it told the McMullins it would not pursue 

construction of the wall as a violation of the governing declaration of 

covenants, conditions, and restrictions (CC&R’s) and instructed the 

McMullins to work with Nellie Gail’s architect to develop a landscaping, 

irrigation, and drainage plan to screen the wall from view.

2. On page 3, the second sentence of the second paragraph, beginning 

with “A property owner generally,” delete the word “favor” between the words “greatly” 

and “the encroacher” and replace it with the word “favors,” so the sentence reads:

A property owner generally is entitled to a mandatory injunction requiring 

an adjacent owner to remove an encroachment, but a trial court has 

discretion to deny an injunction and grant an equitable easement if the 

encroacher acted innocently and the balancing of the hardships greatly 

favors the encroacher. 

3. On page 4, the first sentence of the third paragraph, beginning with 

“The McMullins’ backyard,” delete the word “the” between the words “because of” and 

“sloping nature” and replace it with the words “their property’s,” and also delete the 

words “of their property” at the end of the sentence, so the sentence reads:

The McMullins’ backyard has three retaining walls used to provide level, 

useable space because of their property’s sloping nature. 

4. On page 4, the first sentence of the fourth paragraph, beginning with 

“Nellie Gail’s CC&R’s,” delete the word “all” between the words “required” and 

“homeowners,” so the sentence reads:

Nellie Gail’s CC&R’s and its Architectural Review Committee Guidelines 

required homeowners to obtain written approval from the Architectural 

Review Committee (Review Committee) before constructing or making 

significant alterations to any improvements on their property. 
3

5. On page 5, the first sentence of the second full paragraph, beginning 

with “Two weeks later,” delete the word “resubmitted” between the words “prepared 

and” and “an application” and replace it with the word “submitted,” and also delete the 

word “an” between the words “resubmitted’ and “application” and replace it with the 

words “a new,” so the sentence reads:

Two weeks later, Donald prepared and submitted a new application with a 

revised, more detailed site plan. 

6. On page 6, the third sentence of the second full paragraph, beginning 

with “Cynthia asked Erickson to double check,” delete the word “were” between the 

words “they” and “approved” at the end of the sentence and replace it with the words

“had been,” so the sentence reads:

Cynthia asked Erickson to double check her information, and after looking 

on Nellie Gail’s computer system, Erickson again told Cynthia she did not 

need to submit the plans because they had been approved.

7. On page 7, the fifth sentence of the first paragraph, beginning with 

“In confirming the McMullins had an approval,” delete the words “some approval” at the 

end of the sentence and replace them with the words “an approval for some work,” so the 

sentence reads:

In confirming the McMullins had an approval, Hinkle did not look at the 

plans or determine the type of work the McMullins were authorized to 

perform; he simply confirmed they had obtained an approval for some 

work. 

8. On page 8, the second sentence of the first full paragraph, beginning 

with “Nellie Gail informed the McMullins,” delete the word “their” between the words 

“McMullins” and “architect” and replace it with the word “its,” so the sentence reads:
4

Nellie Gail informed the McMullins its architect would inspect the wall and 

the McMullins should submit an application and detailed plans to the 

Review Committee for possible approval.

9. On page 9, the last sentence of the partial paragraph at the top of the 

page, beginning with “On December 9, 2009,” delete the word “help” between the words 

“plan to” and “screen,” so the sentence reads:

On December 9, 2009, Nellie Gail sent the McMullins a letter informing 

them of the board’s vote and instructing them to meet with Nellie Gail’s 

architect to finalize a landscaping, irrigation, and drainage plan to screen 

the wall. 

10. On page 10, the second sentence of the first full paragraph, 

beginning with “Nellie Gail’s surveyor completed,” delete the word “survey” between the 

words “completed his” and “in March” and replace it with the word “investigation,” so 

the sentence reads:

Nellie Gail’s surveyor completed his investigation in March 2011, and 

determined the original six-foot retaining wall was constructed on the 

property line and the new retaining wall and improvements were built 

almost entirely on Nellie Gail’s property. 

11. On page 10, the last sentence of footnote no. 2, beginning with “We 

therefore refer,” delete the word “only” between the words “lot 274” and “for ease” and 

insert the word “only” between the words “refer” and “to lot 274,” so the sentence reads:

We therefore refer only to lot 274 for ease of reference.

12. On page 11, the first sentence of the first paragraph, beginning with 

“In June 2013,” insert the word “to” between the words “name” and “ask,” and insert the 

word “to” between the words “and” and “request,” so the sentence reads:

In June 2013, Nellie Gail sued the McMullins to quiet title to the Disputed 

Property in its name, to ask for an injunction requiring the McMullins to 
5

remove the retaining wall and all other improvements from the Disputed 

Property, and to request a declaratory judgment declaring the parties’ rights 

and duties under the CC&R’s.

13. On page 15, the second sentence of the first full paragraph, 

beginning with “This isolated utterance,” delete the words “as part of an argument that”

and replace them with the words “while arguing,” so the sentence reads:

This isolated utterance, however, is not sufficient to preserve the issue for 

appeal because the McMullins’ counsel did not utter those words while 

arguing Nellie Gail was equitably estopped to assert a quiet title claim. 

14. On page 15, the third sentence of the first full paragraph, beginning 

with “Indeed, it appears,” delete the words “as though” between the words “appears” and 

“the McMullins’ counsel,” so the sentence reads:

Indeed, it appears the McMullins’ counsel may have misspoke by 

mentioning equitable estoppel because he uttered that phrase when urging 

the trial court to grant an equitable easement, which, as explained below, is 

a separate doctrine that allows a landowner who constructed an 

improvement on an adjacent owner’s property to defeat that owner’s 

injunction request based on a balancing of the hardships or conveniences.

15. On page 16, the first sentence of the first full paragraph, beginning 

with “As the basis for their equitable estoppel claim,” insert the word “which” between 

the words “e-mail” and “informing,” delete the word “informing” and replace it with the 

word “informed,” and delete the word “instructing” between the words “and” and “the 

McMullins” and replace it with the word “instructed,” so the sentence reads:

As the basis for their equitable estoppel claim, the McMullins cite Nellie 

Gail’s December 2009 letter and January 2010 e-mail, which informed the 

McMullins the board of directors decided not to pursue the unauthorized 

construction of the retaining wall and related improvements as a violation 
6

of the CC&R’s, and instructed the McMullins to work with Nellie Gail’s 

architect to develop a landscaping plan to screen the wall from view.

16. On page 16, the last sentence of the first full paragraph, beginning 

with “The evidence simply is insufficient,” delete the word “The” at the beginning of the 

sentence and replace it with the word “That,” and delete the word “simply” between the 

words “evidence” and “is insufficient,” so the sentence reads:

That evidence is insufficient to equitably estop Nellie Gail from bringing a 

quiet title claim as a matter of law.

17. On page 17, the fourth sentence of the first paragraph, beginning 

with “Moreover, the city later informed,” delete the entire sentence and replace it with the 

following sentence:

Moreover, the city later informed both parties the wall was on Nellie Gail’s 

property and it could not remain there without Nellie Gail’s express 

approval.

18. On page 19, the last sentence of the partial paragraph at the top of 

the page, beginning with “A tax is assessed when,” delete the word “all” between the 

words “listing” and “properties,” so the sentence reads:

A tax is assessed when the county assessor prepares the annual roll listing 

properties subject to taxation and their assessed value.

19. On page 19, the last sentence of the third full paragraph, beginning 

with “This evidence, however,” delete the words “is not sufficient” and replace them with 

the word “fails,” and delete the word “McMullins” and replace it with the possessive

“McMullins’” so the sentence reads:

This evidence, however, fails to meet the McMullins’ burden to show no 

taxes were levied and assessed. 
7

20. On page 20, the last sentence of the second paragraph, beginning 

with “Similarly, although the property tax statements,” insert the word “tax” between the 

words “parcel, the” and “statements stated,” so the sentence reads:

Similarly, although the property tax statements showed Nellie Gail was not 

billed for any property taxes on lot 274, and did not identify a specific 

value for that parcel, the tax statements stated, “common area values 

separately assessed.”

21. On page 25, the last partial sentence on the bottom of the page that 

continues on page 26, beginning with “The abuse of discretion standard,” delete the word 

“however” and the surround commas, so the sentence reads:

The abuse of discretion standard includes a substantial evidence 

component:

22. On page 26, the third sentence of the second full paragraph, 

beginning with “Reliance on these authorities is unavailing,” add the following new 

footnote no. 8 at the end of the sentence:

8. The McMullins in their rehearing petition fault us for not 

discussing the following statement from Intel Corp. v. Hamidi (2003) 

30 Cal.4th 1342 (Intel Corp.): “Even in an action for trespass to real 

property, in which damage to the property is not an element of the cause of 

action, ‘the extraordinary remedy of injunction” cannot be invoked without 

showing the likelihood of irreparable harm.’” (Id. at p. 1352.) 

Intel Corp. addressed whether a claim for trespass to chattels 

could be based on an employee’s unauthorized use of a company’s e-mail 

system. (Intel Corp., supra, 30 Cal.4th at pp. 1346-1348.) It did not 

address an adjoining landowner’s encroachment on his or her neighbor’s 

property by constructing an improvement. The quote on which the 

McMullins rely is merely dictum from the court’s response to an argument 
8

that actual injury was not an element of a claim for trespass to chattels 

when the only remedy sought is injunctive relief. (Id. at pp. 1351-1352.) 

Moreover, the McMullins fail to recognize the quote on which they rely 

addresses a trespass in general, which may include simple entry onto 

another’s land, but the cases discussed above address the more specific 

situation of a landowner encroaching on his or her neighbor’s property by 

constructing an improvement, not merely entering upon the property.

23. On page 27, the first sentence of the second paragraph, beginning 

with “We will not speculate,” insert a “.” after the word “demolition,” delete the word 

“and,” and capitalize the word “the” between the words “demolition” and “trial court,” so 

the sentence becomes two sentences and reads:

We will not speculate on the city’s position concerning the retaining wall’s 

demolition. The trial court has the authority to modify the injunction if 

necessary to comply with the city’s building code or other requirements. 

24. On page 27, the last sentence of the second paragraph, beginning 

with “The trial court’s judgment includes,” delete the word “always,” so the sentence 

reads:

The trial court’s judgment includes a procedure for the McMullins to 

challenge the reasonableness of the expenses Nellie Gail seeks to impose 

on them and they may seek to modify the injunction if necessary.

25. On page 29, the final sentence of the third paragraph, beginning with 

“Although the judgment stated,” delete the word “conclude” between the words “court” 

and “Grant” and replace it with the word “concluded,” so the sentence reads:

Although the judgment stated fees were awarded and left a blank space for 

the amount, the Silver court concluded Grant did not apply because the 

record showed the trial court determined both entitlement to and the 

amount of fees in postjudgment proceedings.
9

26. On page 31, the second sentence of the first paragraph, which reads 

“No so,” replace the word “No” with the word “Not,” so the sentence reads:

Not so.

These modifications do not change the judgment.

The rehearing petition appellants Donald G. McMullin and Cynthia 

Jensen-McMullin filed is DENIED.

Neuland, Whitney & Michael, APC, Adams Stirling, Community Legal 

Advisors Inc., and Epstein Grinnell & Howell APC have requested that our opinion be 

certified for publication. It appears that our opinion meets the standards set forth in 

California Rules of Court, rule 8.1105(c). The request is GRANTED. 

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.