Green v. DeVaul

Filed 9/5/06 Green v. DeVaul CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Judith Ann Green (Green) appeals judgments in favor of respondents Margaret Rozella DeVaul (DeVaul); Robert Evenson and Donna Evenson, individually and as Trustees of the Evenson Irrevocable Family Trust, and Edward Evenson (collectively "the Evensons") in this boundary dispute concerning four acres of property. The trial court granted respondents' motions for summary judgment and denied Green's motion for new trial. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Following the July 27, 1987, death of Thomas DeVaul, his wife, Margaret DeVaul, and their daughter, Green, served as cotrustees of a marital trust, an exemption trust and a survivor's trust. The survivor's trust held DeVaul's separate property. The DeVaul marital and exemption trusts each held an undivided one-half interest in approximately 35 to 40 acres called the Borland parcel or Peterson Ranch in See Canyon, San Luis Obispo County. DeVaul's separate property included approximately 75 to 85 acres known as the Hampton parcel, north of and adjacent to the Borland parcel.

DeVaul and Green disagreed over the management of the DeVaul trust. DeVaul revoked the survivor's trust on January 9, 1990. Green and DeVaul entered into formal settlement negotiations with respect to the DeVaul trust, through their respective attorneys.

DeVaul transferred the Hampton parcel to Edward and Laura Evenson on April 13, 1990. The Evenson Irrevocable Family Trust now holds the Hampton parcel.

Shortly after April 13, 1990, Green saw and photographed Edward Evenson removing fences that were at or near the boundary of the Hampton and Borland parcels (the Hampton/Borland boundary). When Green questioned Edward about the boundary's location, he said that he thought it was located near the cattle guard. Green advised Edward that she wanted a survey to determine the correct boundary. At Green's direction, her attorney sent DeVaul's attorney a letter dated May 2, 1990, which explained that if the Hampton/Borland boundary was near the cattle guard, it would place "approximately two to four acres of [Borland parcel property]" within the Hampton parcel. While Green was not sure of the boundary's location, she knew that the area Edward had indicated was "just too far off."

In late May 1990, Green observed Edward Evenson discing property that she thought was on the Borland parcel. Green's attorney again sent DeVaul's attorney a letter, stating it was "now imperative that a survey be done and the fences be placed on the correct lot line so that [Edward] Evenson [could not] . . . accrue any permanent rights through adverse use." Under Green's settlement with DeVaul, she would receive the Borland parcel.

In a letter dated June 7, 1990, DeVaul's attorney notified Green's attorney that they were having the Hampton/Borland boundary surveyed. On August 28, 1990, a record of survey prepared by surveyor Tom Mastin was recorded (Mastin survey). Green understood that the purpose of the Mastin survey was to define the Hampton/Borland boundary.

In January 1991, Green and DeVaul entered into a written agreement (Agreement). Among other things, the Agreement provides for the reformation of the DeVaul trust and the transfer of the Borland parcel to a newly established Exemption Trust B. Green is the sole trustee and the sole beneficiary with any remainder interest in Exemption Trust B. DeVaul executed the necessary documents to convey all remainder interests in the Borland parcel to Green as trustee of Exemption Trust B.

"In or about 1991," Edward Evenson built a fence where Mastin had placed the survey markers between the two parcels (the "Evenson fence"). Green observed the Evenson fence. Green understood that Evenson had built that fence to mark the Hampton/Borland boundary.

In 2000, Green initiated a subdivision of the 35- to 40-acre Borland parcel. The Borland and Hampton parcels are in a part of San Luis Obispo County with a 10-acre minimum parcel size. Green hired surveyor Daniel Stewart to locate the boundaries of the Borland parcel. Stewart's survey, which Green obtained in December 2002, placed the Hampton/Borland boundary in the middle of the Evensons' apple orchard. Stewart concluded that the Mastin survey placed approximately four acres of Borland parcel property (the "disputed property") within the Hampton parcel. Stewart's survey depicts the disputed property, in a cross-hatched area.

The Evensons and Green accepted the Evenson fence as the Hampton/Borland boundary from 1991 until December 2002, when Green obtained Stewart's survey. During that time, Edward Evenson occupied and made substantial improvements to the disputed property, by constructing a bridge and cultivating an apple orchard. Green observed Edward occupying and improving the disputed property but did not object until 2002.

On May 29, 2003, Green filed a complaint against the Evensons and DeVaul concerning the disputed property. In the current (third amended) complaint, Green names the Evensons in the first (declaratory relief), second (quiet title), third (ejectment), and fourth (trespass) causes of action, and names only DeVaul in the fifth (breach of contract), sixth (breach of fiduciary duty), seventh (fraud), eighth (negligent misrepresentation), and ninth (deceit/suppression of fact) causes of action. Green initially had named (but later dismissed) the Evensons as defendants in the seventh and eighth causes of action.

The Evensons and DeVaul filed motions for summary judgment or, alternatively, for summary adjudication. The Evensons sought summary judgment based upon two defenses: the statute of limitations and the agreed boundary doctrine. The trial court granted the Evensons' motion for summary judgment on both grounds.

In seeking summary judgment, DeVaul argued that there were no disputed material facts to support Green's claims against her and that all of those claims were based on the theory that DeVaul either knew that the Mastin survey was inaccurate or that she had no reasonable basis to believe that it was accurate. The trial court found that Green did not produce any admissible evidence (1) "that DeVaul knew, or had constructive notice, that the Mastin Survey was allegedly inaccurate . . . at the time that DeVaul allegedly represented to [Green] that the Mastin Survey accurately depicted the [Hampton/Borland] boundary," or (2) that DeVaul conspired with surveyor Mastin and/or Edward Evenson to record an inaccurate survey. After finding no basis for liability against DeVaul, nor any triable issue of material fact, the trial court granted her motion for summary judgment.

Green filed a motion for new trial, which the trial court denied. She filed a notice of appeal, challenging the summary judgments, and an amended, untimely notice of appeal from the denial of the motion for new trial. She now challenges only the summary judgment rulings.

DISCUSSION

Summary judgment is appropriate when there is no material issue of fact or where the record establishes as a matter of law that a cause of action cannot prevail. Code of Civil Procedure section 437c, subdivision ( p)(2) provides, "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists . . . ." On appeal, we independently review an order granting summary judgment. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 159.)

I

The Trial Court Properly Granted the Evensons' Summary Judgment Motion

A. The Relevant Statute of Limitations Bars Green's Claims Against the Evensons

Green contends that the trial court erred when it ruled that the statute of limitations barred her actions against the Evensons and granted them summary judgment on that ground. Green also contends that she is excused from not filing any action against the Evensons under the delayed discovery rule. We reject both contentions.

Code of Civil Procedure section 318 prescribes a five-year statute of limitations for actions for the recovery of real property. Green filed her initial complaint against the Evensons in May 2003 and a first amended complaint in August 2003. Prior to granting the Evensons' summary judgment, the trial court granted Green multiple opportunities to amend to plead delayed discovery.

In April 1990, after observing and photographing Edward Evenson removing an old fence between the Hampton and Borland parcels, Green spoke with Edward and was suspicious enough to direct her attorney to demand a survey. In May 1990, after observing Edward discing property that she thought belonged to the Borland parcel, Green directed her attorney to demand a survey. Her attorney notified DeVaul's that it was "imperative that a survey be done and the fences be placed on the correct lot line . . . ." The Mastin survey was performed and recorded later (on August 28, 1990).

In 1991 or earlier, Edward Evenson built the Evenson fence along the markers that Mastin had placed between the Hampton and Borland parcels. Green testified that her father had told her the boundary was near the old fence and that she saw that the completed Evenson fence was in a different location.

We reject Green's argument that the delayed discovery rule excused her failure to file an action earlier than 2002, when she learned of Stewart's conclusion that the Mastin survey incorrectly placed the Hampton/Borland boundary. "Under the general rule, a cause of action accrues when the wrongful act is done and not when a plaintiff discovers he or she has a cause of action to pursue. . . . However, '[t]he harshness of this rule has been ameliorated in some cases where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured.'. . . Accordingly, 'a cause of action under the discovery rule accrues when the . . . "plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence."'" (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1423, fns. omitted.)

"[J]udicial decisions have declared the discovery rule applicable in situations where the plaintiff is unable to see or appreciate a breach has occurred. These . . . situations typically involve underground trespass, . . . negligently manufactured drugs, . . . latent defects in real property, . . . or breaches of contract committed in secret." (Moreno v. Sanchez, supra, 106 Cal.App. at pp. 1423-1424, fns. omitted.) "Delayed accrual of a cause of action is . . . appropriate where the relationship between the parties is one of special trust such as that involving a fiduciary, confidential or privileged relationship. [T]he discovery rule has been applied . . . to claims against professionals such as trustees, . . . stockbrokers, . . . escrow agents, [etc.]." (Id. at p. 1424, fns. omitted.)

Unlike the cases Green cites, this is not a case where the delayed discovery rule applies. For example, Marsh v. Industrial Acc. Com. (1933) 217 Cal. 338, 345-353, concerned pneumonoconiosis or silicosis, a latent and progressive disease contracted by silica factory employees, where the date when the employees should have discovered the presence of silicosis was difficult to determine. Here, the "injury" or "wrong" of which Green now complains was not latent. Green personally observed that the Evenson fence was not where her father had thought that the boundary was located. Many of the other delayed discovery cases Green cites involve a relationship of special trust between the parties which triggers the delayed discovery rule. Because the Evensons and Green were not in such a relationship, those cases do not support Green's delayed discovery argument.

Green also argues that she should be excused from noticing an error in the Mastin survey where "it was represented to her" that it was a correct survey of the boundary. We disagree. On multiple occasions before Mastin conducted his survey, Green manifested her suspicions regarding DeVaul and Edward Evenson. Green observed that the Evenson fence was not where her father had thought that the boundary was located. The trial court reasonably concluded that under these circumstances, knowledge of the Evenson fence location was sufficient to put a reasonable person on notice for purposes of the statute of limitations. The statute of limitations bars Green's claims against the Evensons.

B. The Agreed Boundary Doctrine is a Complete Defense to Green's Claims Against the Evensons

Green's claims against the Evensons require or assume that the Evensons lacked title to the disputed property. Under the agreed boundary doctrine, a defendant can establish title by showing the following elements: (1) An uncertainty as to the true boundary line; (2) an agreement between coterminous owners fixing the line; and (3) acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change in the position of the line. (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707.) The record contains undisputed evidence of each element of the agreed boundary doctrine.

1. There was Uncertainty as to the True Boundary Line

Uncertainty as to the true boundary means that "at the time of the location of the division line neither of the coterminous owners knew the true position of the line . . . on the ground." (Nusbickel v. Stevens Ranch Co. (1921) 187 Cal. 15, 19.) The uncertainty as to the location of a boundary "may be proven by direct evidence or inferred from the circumstances surrounding the parties at the time when the agreement is deemed to have been made." (Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691, 699.) Green was not sure where the boundary was located. Edward Evenson thought the boundary was near the cattle guard but "was uncertain as [to] where the boundary line was." DeVaul was "unsure of the location of the [Hampton/Borland] boundary . . . , which is why the Mastin Survey was commissioned in the first place." The parties were uncertain of the boundary. (See Martin v. Lopes (1946) 28 Cal.2d 618, 626-627.)

Green argues that the Evensons were not uncertain of the location of the Hampton/Borland boundary because they had either actual or constructive notice of alleged errors in the Mastin survey. Green further contends that the Mastin survey itself provides notice of its alleged errors. The record, however, undermines that contention: In her opening brief, Green states that "land surveying is [a] highly specialized profession" and it cannot be presumed that a layperson should discover errors in a survey prepared by a professional surveyor. Stewart, a professional surveyor, stated that it was only after "much research and investigation [that he found] Mastin's assumptions . . . to be false." Assuming without deciding that the Mastin survey was false or inaccurate, there is no evidence that the Evensons had knowledge of its falsity or inaccuracy, or that they even saw that survey.

In arguing that the property owners were not uncertain about the true boundary, Green also relies on a statement attributed to Edward Evenson by Scott Newell. Newell declared that Edward Evenson told him that he (Edward) "was told and understood that the [boundary] line was further north" than the existing Evenson fence. Because Newell encountered Evenson while working as part of Stewart's surveying crew, sometime after December 2000, however, Edward could not have made any such statements before January 2001. The trial court properly found it was not reasonable to infer from Newell's declaration that Edward knew in 1990 or 1991 (the relevant time frame) that the Mastin survey was incorrect.

2. The Evensons and Green Agreed Upon the Mastin Survey/Evenson Fence Boundary

The second element of the agreed boundary doctrine is an express or implied agreement between coterminous owners fixing a boundary line. The agreement may be "implied from the facts and circumstances . . . , including . . . the conduct of the parties." (Aborigine Lumber Co. v. Hyman (1966) 245 Cal.App.2d 938, 942.) Here, Green was uncertain of the location of the Hampton/Borland boundary, and she requested a survey to determine, and fences to mark, the Hampton/Borland boundary. The Evenson fence was constructed where Mastin had placed markers between the Hampton and Borland parcels. The Evensons and Green accepted the Evenson fence as the Hampton/Borland boundary. Their conduct reflects their agreement that the Evenson fence was the Hampton/Borland boundary (ibid), and there is no triable, disputed material fact regarding that agreement.

3. The Evensons and Green Accepted the Mastin Survey/Evenson Fence Boundary for a Period Longer than the Statute of Limitations

The third element of the agreed boundary doctrine is "[a]cceptance or acquiescence in the line so fixed for a period equal to that prescribed in the applicable statute of limitation (five years) . . . ." (Finley v. Yuba County Water Dist., supra, 99 Cal.App.3d at p. 699.) Even where the statutory period is not met, if circumstances are such that a change in the boundary after a lengthy period of time would cause a substantial loss, a court may apply the agreed boundary doctrine. (McCormick v. Appleton (1964) 225 Cal.App.2d 591, 595-596; Kirkegaard v. McLain (1962) 199 Cal.App.2d 484, 488-489.) In this case, the record shows that the parties accepted the agreed boundary for the statutory time period and that a change in the boundary's location would cause the Evensons a substantial loss.

Green admits that "[i]n or about 1991," Edward Evenson constructed the Evenson fence where Mastin had placed the markers between the Hampton and Borland parcels. Green treated the Evenson fence as the boundary from the time it was built until 2002. This period more than meets the third element. Further, the evidence shows that a change in the Hampton/Borland boundary, after this long time period, would cause the Evensons a substantial loss. The Evensons cultivated a producing apple orchard and built a bridge on the disputed property.

The record includes evidence of each element of the agreed boundary doctrine. The trial court properly granted summary judgment to the Evensons.

II

The Trial Court Properly Granted DeVaul's Summary Judgment Motion

Green named DeVaul in five causes of action for breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation and deceit/suppression of fact. These claims were all premised on the theory that DeVaul conspired with the Evensons to alter the true Hampton/Borland boundary or knowingly made false representations concerning that boundary, with the intent to prevent Green from further inquiring into the true location of that boundary. Green contends that the trial court erroneously granted DeVaul's motion for summary judgment. We disagree.

The trial court made several findings in its order granting summary judgment to DeVaul: "Green did not produce any admissible evidence that DeVaul knew, or had constructive notice, that the Mastin Survey was allegedly inaccurate . . . at the time that DeVaul allegedly represented to [Green] that the Mastin Survey accurately depicted the boundary between the Hampton and Borland Parcels." "[T]he alleged inaccuracies and flawed assumptions asserted by Green to be the basis of the conclusions in the Mastin Survey are not sufficiently apparent from the face of the Mastin Survey so as to impart actual or constructive notice to DeVaul." "Green . . . failed to produce any admissible evidence that DeVaul conspired with the surveyor, Tom Mastin, and/or Defendant Ed Evenson to purposefully commission and record an inaccurate survey."

The trial court accepted the following proposed facts despite Green's claims that they were disputed: "Margaret DeVaul did not conspire with surveyor Tom Mastin and/or Ed Evenson to cheat [Green] out of any land by recording an inaccurate survey"; "No one told Margaret DeVaul that the Mastin Survey was inaccurate in any way"; and "Tom Mastin did not tell Defendant Ed Evenson or anyone else, that it was inaccurate." Our review of the record indicates that the trial court carefully reviewed the evidence and acted reasonably in concluding that there was no dispute as to any material facts and in accepting the proposed facts despite Green's objections.

A. The Fraud, Deceit, and Negligent Misrepresentation Causes of Action Lack Merit

The elements of fraud, which also give rise to the tort action for deceit, are (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of the falsity of the misrepresentation ("scienter"); (3) an intent to defraud; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The omission of any one of these elements in an action for deceit will preclude recovery. (Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 100-101; Cox v. Westling (1950) 96 Cal.App.2d 225, 229.) The absence of scienter defeats a cause of action for fraud (Marvin v. Adams (1990) 224 Cal.App.3d 956, 962-963) or deceit (Wishnick v. Frye (1952) 111 Cal.App.2d 926, 931), with the exception of the form of deceit known as negligent misrepresentation (Gagne v. Bertran (1954) 43 Cal.2d 481, 488, fn. 4).

As Green's opening brief indicates, it cannot be presumed that a layperson should discover errors in a survey prepared by a professional surveyor. Stewart, a professional surveyor, declared that the "survey of this property was complex and difficult" and that only after "much research and investigation [did he find] Mastin's assumptions . . . to be false." The trial court properly found that DeVaul had no actual or constructive notice of those alleged errors, that Green could not establish the element of scienter, and that there was no disputed material fact regarding this issue. The absence of the element of scienter defeated Green's fraud and deceit causes of action.

Scienter is not an element of negligent misrepresentation. (Gagne v. Bertran, supra, 43 Cal.2d at pp. 487-488.) However, negligent misrepresentation encompasses "[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true" (Civ. Code, § 1710, subd. 2), and "[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true." (Id., § 1572, subd. 2; see Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.) Where a defendant makes false statements, honestly believing that they are true, and with reasonable ground for such belief, the misrepresentation is innocent and there is no tort liability. (Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 297.) DeVaul had no actual or constructive notice of alleged inaccuracies in the Mastin survey. Even if Green could establish that DeVaul represented that the Mastin survey was accurate, Green could not establish that DeVaul had no reasonable ground for making that misrepresentation. The trial court correctly concluded that Green could not establish the necessary elements of her negligent misrepresentation claim.

B. The Breach of Fiduciary Duty Cause of Action Lacks Merit

Green argues that because DeVaul hired Mastin, whom Green alleges prepared an erroneous survey, DeVaul is responsible for Mastin's errors. In so arguing, she relies upon two cases, Barry v. Raskov (1991) 232 Cal.App.3d 447 and Van Arsdale v. Hollinger (1968) 68 Cal.2d 245. Barry is distinguishable. It addresses whether a mortgage loan broker should be liable for the torts of an independent property appraiser retained by the broker, based on characteristics specific to the mortgage loan brokering business. (Barry, at pp. 453-454.) Van Arsdale also is distinguishable, as it involves activities undertaken by an independent contractor which impose a peculiar risk of bodily harm. (Van Arsdale, at p. 254, overruled by Privette v. Superior Court (1993) 5 Cal.4th 689, 702, fn. 4, 690-696, in the context of a homeowner's liability to employees of an independent contractor for injuries under the peculiar risk doctrine.)

Green's breach of fiduciary duty claim would require a non-professional trustee of a family trust to second-guess a professional she retains to perform services for the trust. Green has cited no cases where the courts have imposed liability on such a trustee for the errors or malpractice of a professional, particularly in the context presented here: The professional was retained when the plaintiff, a cotrustee, demanded the defendant cotrustee obtain a professional opinion (here, from a surveyor) without specifying that the trustee retain a particular surveyor. Whether a legal duty of care exists in a given factual situation is a question of law to be determined by the court, not the trier of fact. (Padgett v. Phariss (1997) 54 Cal.App.4th 1270, 1285; Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 754, citing Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) We conclude that DeVaul was not required to second-guess the Mastin survey or obtain a second opinion to determine its accuracy. Her failure to do so does not provide a basis for a breach of fiduciary duty claim.

Green also bases her fiduciary duty claim on DeVaul's alleged failure to provide Green with a copy of the Mastin survey. Green was suspicious or concerned enough to demand a survey at least twice. There is no suggestion that Green even asked DeVaul to give her a copy of the Mastin survey. Moreover, there is no reasonable evidence that had DeVaul done so, Green would have recognized any of the alleged errors in that survey. The trial court reasonably concluded that there is no triable issue regarding any material, disputed fact relevant to the fiduciary duty cause of action.

C. The Breach of Contract Cause of Action Lacks Merit

Green's complaint describes her breach of contract cause of action as follows: "DeVaul breached her obligations to transfer trust assets to [Green] having value equivalent to [Green's] agreed interest in the DeVaul Trust. This breach consisted of conspiring with . . . [the Evensons] to . . . to alter the boundary line between the Hampton [and Borland parcels] without adequate consideration to the DeVaul Trust . . . [for] the Disputed Area."

Without deciding whether the Mastin survey was "correct or incorrect," the trial court found that "there [was] no admissible evidence of any knowledge or awareness or complicity or involvement by . . . DeVaul in any inaccuracies which might exist." The trial court concluded that there was no triable issue as to any material facts and no basis of liability against DeVaul for breach of contract.

The court specifically found there was no dispute as to the following facts relevant to the breach of contract claim: The Borland parcel had been part of the Rancho San Miguelito. DeVaul formerly owned the Hampton parcel which had been part of sectionalized government lots. The Hampton and Borland parcels share a common boundary. All of Green's predecessors-in-interest for the Borland parcel describe it as being a portion of the Rancho San Miguelito. Albert J. Peterson owned the Hampton and Borland parcels before he conveyed those parcels to Thomas and Margaret DeVaul in 1963. DeVaul conveyed the Hampton parcel, containing the disputed property, to the Evensons more than a year before the Borland parcel was conveyed to Green. DeVaul did not conspire with Mastin and/or Edward Evenson to cheat Green out of any land by recording an inaccurate survey. In January 1991, pursuant to the Agreement, Green relinquished any interest in the DeVaul trust property, in exchange for consideration, including the transfer of the Borland parcel to a newly created Exemption Trust B. In November 1991, the Borland parcel was conveyed to the Exemption Trust B (of which Green was the sole trustee and sole beneficiary of the remainder interest).

In her most recent complaint, Green alleges that the "breach consisted of conspiring with Defendants Evenson to attempt to alter the [Hampton/Borland] boundary . . . ." In her opening brief, Green argues her breach of contract claim more generally, asserting that she did not get what she was supposed to get from the Agreement, as if she could rely on a theory other than conspiracy. Green's reply brief argues the breach of contract claim based on her conspiracy theory.

In reviewing a summary judgment, this court "'must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal. [Citations.]'" (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 790, italics omitted.)

The trial court granted Green multiple opportunities to amend her complaint. She did so three times, and on each occasion alleged that DeVaul breached the contract by "conspiring with the Defendants Evenson." The parties conducted discovery, drafted pleadings, and framed arguments based on the breach of contract by conspiracy theory. The trial court reasonably found that Green failed to produce any admissible evidence that DeVaul conspired with the Evensons to alter the Hampton/Borland boundary and correctly concluded there is no disputed material fact concerning Green's breach of contract cause of action. Green cannot challenge the trial court's ruling by raising some new theory for her breach of contract claim on appeal. (Uriarte v. United States Pipe & Foundry Co., supra, 51 Cal.App.4th at p. 790.)

The judgments are affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Martin J. Tangeman, Judge

Superior Court County of San Luis Obispo

______________________________

William S. Walter for Plaintiff and Appellant Judith Ann Green, individually and as Trustee of the Exemption Trust "B" of the Thomas A. DeVaul and Margaret Rozella DeVaul Trust U/A/T, dated 11/9/79, as amended and restated on 1/19/86.

Ogden & Fricks LLP, Roy E. Ogden, Sue N. Carrasco for Defendant and Respondent Margaret Rozella DeVaul.

Andre, Morris & Buttery, Kathryn M. Eppright; Diane M. Matsinger for Defendants and Respondents Donna Evenson and Robert Evenson, Trustees of the Evenson Irrevocable Family Trust, and Edward Evenson.

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