Hill v. Axilrod

Filed 6/21/06 Hill v. Axilrod 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Walter H. Hill appeals the judgment on his complaint against respondents Richard Stephen Axilrod, Joyce Axilrod, Gregg Patronyk, and others alleging causes of action for trespass, prescriptive easement, easement by implication, and restraint of trade pursuant to the Cartwright Act. (Bus. & Prof. Code, § 1670 et seq.) Hill contends the trial court erred in granting nonsuit on his prescriptive easement claim, summary adjudication on his Cartwright Act claim, and partial summary adjudication of issues on his claim for an easement by implication. He also contends that the court improperly restricted expert witness testimony, and that the jury incorrectly calculated the damages it awarded him for the Axilrods' trespass as the result of improper remarks by Patronyk's counsel during his closing argument. Patronyk cross-appeals from the judgment on his cross-complaint against Hill for trespass, contending that he presented sufficient evidence to support a damages award, and that the court erroneously excluded evidence relevant to those claimed damages pursuant to the litigation privilege (Civ. Code, § 47, subd. (b)). We affirm.

FACTS AND PROCEDURAL HISTORY

The parties to this litigation are the owners of adjoining parcels of property in Santa Barbara. The parcels owned by the Axilrods and Patronyk are identified in a record survey map prepared in 1956 as Parcels 2A, 2B, and 2C.^[1] The Axilrods purchased Parcel 2A in 1972, and the adjacent Parcel 2B in 1985. Patronyk purchased Parcel 2C, which is adjacent to the dead-end of Arriba Way, in 1986. The record survey map reflects the existence of a 20-foot easement over Parcel 2C in order to provide the owner of Parcel 2B access from Arriba Way, and a driveway was constructed for that purpose. In 1966, a five-foot-wide easement was created across the easterly portion of Parcel 2A for the purpose of installing a water line for the benefit of properties lying north of Parcel 2B. Respondents' properties were developed with single-family residences many years ago. In 2001, Hill acquired title to a narrow parcel of undeveloped property directly north of Parcels 2A and 2B. That property, which was not identified in the 1956 map, was subsequently designated on a Santa Barbara County Assessor's Office map as Parcel 7. According to Hill, his family first acquired all of the subject property in the 1940's with the intent to construct homes on Parcels 2A, 2B, and 2C. In 1975, Hill and his stepfather, Elmer Koonce, installed a waterline along the existing utility easement on Parcel 2A for the benefit of various properties to the north of Arriba Way, including Parcel 7, that were owned at that time by Koonce Family Enterprise (KFE).

From 1975 to 1977, avocado trees were planted on Parcel 7 and the canyon in which it lies. Throughout this process, Hill and other KFE employees used the subject driveway to access the shut-off valve for the waterline, which is located at or near the southernmost border of Parcel 7. During that time, Hill's mother, Marian Koonce, and his sister, Barbara Hill Holt, used the driveway a few times a year to look at the trees.^[2] Mrs. Koonce used the driveway one other time in 1978, after the waterline broke. During that time, KFE employees also occasionally used the driveway for the purpose of accessing the waterline shut-off valve.

Sometime between 1977 and 1978, KFE abandoned its cultivation and maintenance of the trees. Since that time, the waterline has not been used for the benefit of Parcel 7. From 1977 to 1990, Holt brought prospective buyers to view Parcel 7 on five to seven different occasions, and she used the subject driveway for that purpose. After 1990, Holt used the driveway again on two different occasions: once in 2000 to pick up Hill, and the following year while showing the property.

Mr. Koonce testified at his deposition that from 1978 until approximately 2000, he used the driveway "several times a year," which he was unable to quantify as more or less than five times. From 1977 until the late 1980's--when Hill first became interested in acquiring Parcel 7--he continued to use the driveway to service the waterline. After that, he used the driveway "from none to ten" times a year for the purpose of evaluating the property.

In June of 2002, Hill began using the subject driveway^[3] to show the property to prospective buyers. Respondents did not initially object to Hill's use of the driveway for this purpose. Two months later, respondents withdrew their permission to use the driveway after a prospective buyer, Hill's nephew, threatened litigation to obtain access to Parcel 7 via the driveway. Hill thereafter listed the property for sale with real estate agent Jerome Zamos, who has also acted as Hill's attorney throughout these proceedings. Hill, Zamos, architect Jan Hochhauser, and another realtor subsequently initiated a joint venture to develop Parcel 7 with a single family residence.^[4]

In spite of respondents' refusal to allow continued access to Parcel 7 for any purpose other than for access to the waterline and its shut-off valve, Hill and Zamos continued to use the subject driveway while showing the property to prospective buyers. Hill subsequently brought suit against respondents alleging causes of action for (1) quiet title and declaratory relief for a non-exclusive easement; (2) compensatory and punitive damages for trespass on Parcel 7; (3) violations of the Cartwright Act; (4) injunctive relief to prevent interference with Hill's access to Parcel 7 from Arriba Way; and (5) injunctive relief to prevent interference with Hill's attempts to market Parcel 7. Hill alleged that the driveway over Parcel 2C constituted an express easement and an easement by implication or necessity, or a prescriptive easement for the benefit of Parcel 7.^[5] The complaint further alleged that the Axilrods had repeatedly trespassed on his property over the years for hiking and had improperly constructed trails and stairs for that purpose. Hill also claimed that respondents were liable in trespass for the slope failure of Parcel 7. According to Hill, the failure was caused by the diversion of water from respondents' properties as the result of construction activities.

On February 11, 2004, the trial court granted summary adjudication in favor of respondents on the Cartwright Act claim. The court also granted summary adjudication in favor of respondents on Hill's claims for an easement by implication or necessity, concluding that "there is no triable issue of fact that at the time plaintiff's property was severed from the defendants' respective properties, there was no continuous, obvious use of the subject driveway that was reasonably necessary for the beneficial enjoyment of plaintiff's property." The court further noted that Parcel 7 was not landlocked at the time of severance, that is, that there was an alternative access to the property. The court denied summary adjudication of the prescriptive easement claim, however, concluding that it "must be resolved by the trier of fact at the time of trial . . . ."

Trial on the matter commenced on September 27, 2004. After Zamos completed a 90-minute opening statement, the court granted nonsuit on the prescriptive easement claim on the ground that counsel had failed to offer any facts from which the jury could have found that the historical use of the driveway on Parcel 2C by Hill's family had been open, continuous, and hostile to the rights of respondents.

In support of his theory that respondents were liable for the slope failure on Parcel 7, Hill offered the testimony of Hochhauser and Thomas Blake, a geotechnical engineer, both of whom opined that the failure was the result of diverted water from respondents' properties. Hill also called James Beraldo, who testified that it would cost approximately $116,000 to repair the slope. Beraldo conceded, however, that approximately 75 percent of that cost would have to be incurred in order to build a house on the property, regardless of any slope failure. He also testified that he would adjust his repair estimate downward by 15 percent if he were retained to perform the work because Hill was a personal friend.

On October 27, 2004, the jury returned a verdict in favor of Hill on his trespass claim against the Axilrods, and awarded damages of $9,000. The jury found in favor of Patronyk on Hill's trespass claim. On respondents' trespass claims, the jury found that although Hill had trespassed, that conduct was not a substantial factor in causing actual harm to them.

DISCUSSION

I.

Summary Adjudication of Hill's Cartwright Act Claims

Prior to trial, the court granted respondents' motions for summary adjudication of Hill's claim under the Cartwright Act (Bus. & Prof. Code, § 1670 et seq.), which prohibits combinations in restraint of trade. Hill's claim is premised on the theory that respondents conspired to interfere with the marketing of Parcel 7 for sale by refusing access to it from their properties.

"The factors identified by the court which favor a finding that the plaintiff is a proper party [to pursue a Cartwright Act claim] include the following: (1) the existence of an antitrust violation with resulting harm to the plaintiff; (2) an injury of a type which the antitrust laws were designed to redress; (3) a direct causal connection between the asserted injury and the alleged restraint of trade; (4) the absence of more direct victims so that the denial of standing would leave a significant antitrust violation unremedied; and (5) the lack of a potential for double recovery. [Citation.]" (Vinci v. Waste Management, Inc. (1995) 36 Cal.App.4th 1811, 1814, fn. omitted.)

We review the grant of summary adjudication de novo (see Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972), and discern no error. Assuming for the sake of argument that the injury Hill complains of is of a type which the Cartwright Act was intended to redress, respondents' moving papers demonstrated the lack of any agreement between them to interfere with Hill's attempts to sell his property. In any event, as we will discuss later, Hill's failure to establish the existence of an easement to access Parcel 7 from respondents' property is fatal to his Cartwright Act claim because respondents cannot be said to have unlawfully interfered with Hill's rights to market and sell his property by lawfully exercising their rights to exclude others from their own. Moreover, Hill ignores the fact that he did not suffer any damages as a result of respondents' actions because his real estate agents continued to use the driveway to show Parcel 7, even after respondents had told them they could not. Accordingly, respondents were entitled to summary adjudication in their favor on the Cartwright Act claim.

To the extent Hill argues that the evidence was sufficient to state a common law claim for intentional interference with contractual and economic relationships with his real estate agents and prospective purchasers of Parcel 7, no such claim was stated in his complaint.

II.

Nonsuit on Hill's Prescriptive Easement Claim

Hill contends the trial court committed reversible error by granting nonsuit on his prescriptive easement claim because (1) the court's ruling deprived him of his constitutional right to have a jury decide the claim; (2) the court's denial of respondents' motion for summary adjudication of the claim on the ground that it "must be resolved by the trier of fact at the time of trial" constitutes the "law of the case" such that the court could not thereafter remove the issue from the jury; and (3) the court applied an incorrect legal standard in concluding that his attorney had failed as a matter of law to state any facts in his opening statement that would support his claim for a prescriptive easement.^[6]

Although Hill correctly contends that he had a right under the California Constitution to have a jury decide his claim for a prescriptive easement (Baugh v. Garl (2006) 137 Cal.App.4th 737, 740-741), it has long been established that the granting of nonsuit does not deprive a party of his constitutional right to a jury trial (see, e.g., In re Baird's Estate (1926) 198 Cal. 490, 506). Moreover, Hill's brief and cursory assertion of the law of the case doctrine in this context is specious. That rule provides that "[t]he decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, p. 928, italics added; Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) Before the issuance of this opinion, there was no appellate decision in this case.

What Hill is really arguing is that the trial court's grant of nonsuit on his prescriptive easement claim amounted to an improper reconsideration of its denial of respondents' motion for summary adjudication of the claim because that denial was based on the conclusion that there were disputed issues of fact precluding summary disposition. He fails to acknowledge, however, that the trial court had the sua sponte authority to reconsider its prior decision. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) The trial judge raised the issue after Zamos concluded his opening statement by telling respondents' attorneys that she would "be . . . amenable to a motion [for nonsuit] regarding the prescriptive easement" claim. Respondents so moved, and the parties had the opportunity to submit briefing and extensive oral argument.^[7] Under the circumstances, we find no merit in Hill's claim that the court's decision to deny summary adjudication of his prescriptive easement claim precluded the subsequent grant of nonsuit.

Moreover, the court did not err in granting nonsuit based on what Hill's attorney said (and did not say) in his opening statement. "The standard of review for a nonsuit after conclusion of the opening statement is well settled. Both the trial court in its initial decision and the appellate court on review of that decision must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts. [Citations.] A nonsuit at this early stage of the proceedings is disfavored. [Citation.] It can only be upheld on appeal if, after accepting all the asserted facts as true and indulging every legitimate inference in favor of plaintiff, it can be said those facts and inferences lead inexorably to the conclusion plaintiff cannot establish an essential element of its cause of action or has inadvertently established uncontrovertible proof of an affirmative defense. [Citations.]" (Abeyta v. Superior Court, supra, 17 Cal.App.4th at p. 1041.)

Accepting all of the facts asserted in Hill's opening statement as true and indulging every legitimate inference which may be drawn from those facts in his favor, we conclude that nonsuit was proper on Hill's prescriptive easement claim. "A prescriptive easement requires use of land that is open and notorious, hostile to the true owner and continuous for five years. [Citation.]" (Kapner v. Meadowlark Ranch Ass'n (2004) 116 Cal.App.4th 1182, 1186.) "The[se] . . . elements are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement." (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431.) The plaintiff asserting the right to a prescriptive easement bears the burden of proving each element of the claim. (Ibid.)

In his 90-minute opening statement, Zamos failed to state any specific facts that would support a finding in his favor on any of the elements of his prescriptive easement claim. Instead, he merely claimed that "[e]verybody was using the driveway

. . . ." He failed to refer to any specific facts indicating that any of his family members had ever used either easement for any purpose other than to access the water line on Parcel 7, or that they lacked permission to use the easements for any other purpose. Indeed, counsel effectively conceded that the historical use of the driveway for the latter purpose by Hill and his family had always been a matter of neighborly accommodation, at least on the part of Patronyk. Use that is permissive and a matter of neighborly accommodation is, by definition, not hostile to the owner. (See, e.g., Taormino v. Denny (1970) 1 Cal.3d 679, 687.) In referring to the historical use of the easements by Hill's family, Zamos asserted that "we've got a 27-year, potentially, plus history of unchallenged usage when everybody absolutely accepted, Mr. Patronyk wanted to be neighborly, Mr. Axilrod wanted to participate in the profits^[[8]], absolutely uninterrupted neighborly relationship in which nobody asks anybody what they're doing, why they're doing it, or how long they're doing it, because everybody knows why they're doing it."^[9] (Italics added.) Counsel also failed to refer to any specific evidence from which the jury could have found that Hill and his family's use of the driveway was continuous. "'. . . [M]ere knowledge on the part of the landowner of occasional travel across, or other use of, his property by another does not constitute notice of an adverse claim, . . .'" (McCarty v. Walton (1963) 212 Cal.App.2d 39, 44, italics added.) The opening statement demonstrated, at most, that Hill and his family used the driveway to access Parcel 7 only occasionally. No meaningful attempt was made to establish continuous and uninterrupted use of the driveway.

Hill also asserts for the first time in his reply brief that "[i]t is virtually impossible to reconcile" the trial court's decision to grant nonsuit with our recent decision in Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, in which we affirmed a judgment establishing a prescriptive easement allowing the owners of a restaurant to use a neighboring bank's parking lot for deliveries. (Id., at pp. 448-449.) He correctly notes that he cited the decision in his opening brief, but he does not explain how that decision was helpful to his case. He also faults respondents for "ignoring" the case in their respondents' briefs, but fails to explain why they would have felt compelled to distinguish a decision that Hill had made no attempt to analogize to the instant case. Indeed, none of the facts, legal analysis, or holdings from that decision are referenced in either of Hill's briefs. Even if Hill could raise this argument for the first time in his reply brief, which he cannot (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453), his cursory reference to the case would amount to a waiver of the issue. In any event, aside from the fact that Felgenhauer v. Soni also involved a claim for a prescriptive easement, the cases are factually distinguishable.^[10]

Under the circumstances, the court did not err in granting nonsuit on Hill's prescriptive easement claim. Because nonsuit on that claim was proper, we also reject Hill's claim that it improperly "prejudiced his defense" against Patronyk's claim for trespass.

III.

Summary Adjudication of Hill's Claim for an Easement by Implication

Hill next contends the trial court erred in granting summary adjudication in favor of respondents on his claim for an easement by implication.

"'The elements necessary to create a "quasi easement" or grant by implication, upon severance of unity of ownership in an estate, are: (1) a separation of title (which implies unity of ownership at some former time as the foundation of the right); (2) necessity that before separation takes place the use which gives rise to the easement shall be so long continued and obvious as to show it was meant to be permanent; and (3) the easement must be reasonably necessary to the beneficial enjoyment of the land granted. [Citation.] The law does not favor the implication of easements. Such implication can only be made in connection with a conveyance, and in view of the rule that a conveyance is to be construed against the grantor, the court will imply an easement in favor of the grantee more easily than it will imply an easement in favor of a grantor. Whether an easement arises by implication on a conveyance of real estate depends on the intent of the parties, which must clearly appear in order to sustain an easement by implication. . . .'" (Kytasty v. Godwin (1980) 102 Cal.App.3d 762, 769.)

In his motion for summary adjudication of this claim, Patronyk demonstrated that the subject properties were not under common ownership at the time of conveyance. Hill made no attempt to challenge that fact in opposing the motion, nor has he acknowledged that deficiency on appeal. Because Hill failed to offer any evidence from which the jury could find in his favor on an essential element of his claim for an easement by implication, respondents were entitled to summary adjudication in their favor on that claim.

IV.

Limitations on Hill's Expert Testimony Regarding Water Diversion

At trial, Hill presented the testimony of three purported experts to prove that respondents were liable in trespass for the damages Hill suffered as a result of Parcel 7's slope failure during a rainstorm in April of 2003. Hill's claim was based on the California Supreme Court's decision in Keys v. Romley (1966) 64 Cal.2d 396, which defines the liability of upper landowners to lower landowners for damages caused by the diversion of water from their properties. According to Hill, respondents were engaging in construction activities at the time that caused the diversion of rainwater onto Parcel 7. The jury rejected that theory outright as to Patronyk, finding that he did not trespass on Hill's property. The jury did find in favor of Hill on his trespass claim against the Axilrods, and awarded damages of $9,000. The verdict does not, however, indicate whether the award was intended to compensate Hill for damages suffered as a result of the slope failure, or for damages flowing from Mr. Axilrod's admitted trespasses on Parcel 7 over the years. On appeal, Hill complains that the jury was effectively compelled to reject his claim for damages resulting from the diversion of water because the trial court prevented him from eliciting opinions from two of his experts, Hochhauser and Blake, regarding the "impact" of respondents' alleged failure to mitigate the diversion of water onto Parcel 7.

The record does not support Hill's position. Hochhauser was allowed to give his opinion that the slope failure "was likely the result of water from upland of the subject slide." Similarly, Blake testified that "various materials were placed and removed and then redistributed around the site at various times. And those materials were in places that they would be likely to be in the flow path of water coming down the slope. And so that type of alteration of the flow path would have an influence on the drainage coming down the slope."

The testimony that Hill highlights does reflect that the court sustained an objection as to each witness that sought to elicit opinions they had not given in their depositions. Specifically, Hochhauser was not allowed to give his opinions whether the absence of any prior slope failure on Parcel 7 would contribute to his opinion as to what caused the slope failure, and Blake was prohibited from opining whether the Axilrods had made adequate provisions to mitigate the diversion of water onto Hill's property. The court did not err in precluding the experts from offering opinions that were not stated in their depositions. (Jones v. Moore (2000) 80 Cal.App.4th 557, 565.)^[11]

V.

Alleged Instructional Error

At the conclusion of the trial, Hill submitted a special instruction regarding the liability of an upper landowner to a lower landowner from damages caused by the diversion of surface water flow. That instruction was based on the holding in Keys v. Romley, supra, 64 Cal.2d 396. The court refused the instruction, but gave a substantially similar one which expanded on the issue of reasonableness as discussed in Burrows v. State of California (1968) 260 Cal.App.2d 29, 32-33.)^[12]

Hill contends that "[t]he conceptual basis for the Supreme Court's decision in Keys v. Romley was lost" by the modification because the court "eliminated the reference to the initial alteration of surface flow by an upper owner and coupled that modification with a special verdict focused on a negligence basis for liability." (Fn. omitted.)^[13] We disagree.

Hill cannot challenge the modified instruction on appeal because it is substantially similar to his proposed instruction and he did not object to the modification. (See Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d 1, 7 ["Under the doctrine of invited error, 'if instructions are given by the court at the request of the opposing party, or on its own motion, the complaining party cannot attack them if he himself proposed similar instructions.' [Citations.]"].) In any event, "'[a] party has the right to have the jury instructed on his or her theory of the case, but has no right to require the court [to] use any particular phraseology; as long as the court correctly instructs on the issue, it is free to modify an instruction or give one of its own in lieu of the one offered. [Citations.]' [Citation.] Refusal to give a proposed instruction is reversible only where '"the omission misleads and confuses the jury and it is reasonably probable a result more favorable to the requesting party would have been reached in the absence of the error. [Citations.]" [Citation.]' [Citation.]" (Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 510-511.)

Contrary to Hill's contention, the modified instruction did not inform the jury that respondents were automatically absolved of liability upon a finding that they acted reasonably. Rather, it stated that respondents' reasonableness was a defense to liability only if Hill acted unreasonably, which is a correct statement of the law. (Burrows v. State of California, supra, 260 Cal.App.2d at pp. 32-33.)^[14] To the extent the special verdict form may have confused the jury on the issue, Hill waived the error on appeal because he did not object to it below. (Joerger v. Pacific Gas & Electric Co. (1929) 207 Cal. 8, 21; Hercules Powder Co. v. Automatic Sprinkler Corp. of America (1957) 151 Cal.App.2d 387, 401.)

VI.

Patronyk's Closing Argument

In his closing argument, Patronyk's attorney urged the jury to reject the damages figure of approximately $116,000 posited by one of Hill's experts, Thomas Blake, for the slope failure on Parcel 7. Counsel reminded the jury that another of Hill's experts, James Beraldo, had conceded on cross-examination that Hill would have to incur approximately 75 percent of the damages figure if he developed Parcel 7, regardless of the slope failure. Counsel further argued that if the jury decided to award any such damages, the figure should be further reduced to account for Beraldo's testimony that he would give Hill an additional 15 percent discount if he were hired to perform the work. According to Hill, the trial court should have sustained his objection to this argument because it was not supported by the testimony. The record reflects, however, that Beraldo did testify to that effect. Apparently, Hill has confused this testimony with that of Blake, in which the court sustained an objection to a hypothetical question posed by the Axilrods' attorney regarding whether he would have recommended stabilization of the slope on Parcel 7 before constructing a home on the site even if no slope failure had occurred. Because Patronyk's argument was an accurate representation of Beraldo's testimony, the court did not err in overruling Hill's objection asserting the contrary.

VII.

Patronyk's Cross-Appeal

In prosecuting his trespass claim against Hill, Patronyk testified that Hill, Zamos, and other real estate agents and prospective buyers continued to use the subject driveway to access Parcel 7 for approximately two years after Patronyk sent a letter of complaint to Hill and his realty company. Patronyk testified that "people were just wandering all around" and a couple of times a week someone knocked on his door. He also testified that he was "extremely upset[]" and "traumatiz[ed]" by the letter he received from Hill's nephew in 2002 claiming the right to an easement over the subject driveway. He also recounted that he had experienced those emotions as a result of his confrontations with both Hill and Zamos on his property. According to Patronyk, due to the anxiety caused by these circumstances he lost approximately 25 pounds, suffered acid reflux, and was distracted while he was attempting to work at home. The court sustained Hill's objections to questioning regarding statements that Zamos purportedly made to Patronyk to the effect that he was going to "bury him" in litigation, on the ground that any such statements were protected by the litigation privilege (Civ. Code, § 47, subd. (b)). The jury ultimately found that Hill had trespassed on Patronyk's property, but also found that he had not suffered any resulting harm.

In his cross-appeal, Patronyk contends that the jury would have awarded him damages for Hill's trespass had it not confused Patronyk's testimony with that of Mr. Axilrod, who testified that Zamos, and not Hill, was solely responsible for any emotional distress he suffered as a result of the situation. He further contends that Zamos's purported threat to "bury him" in litigation is not protected by the litigation privilege.

We agree with Hill that Patronyk waived his right to claim that the jury should have awarded damages on the trespass claim because he did not preserve the issue by bringing a motion for new trial. Claims that a jury's award was excessive or inadequate must first be raised in a motion for new trial (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919), so it logically follows that claims attacking the jury's decision to award no damages must also be asserted in such a motion in order to preserve the issue for appeal. In any event, there is nothing in the record indicating that the jury confused Patronyk's testimony with Axilrod's.

We also conclude that the court did not err in excluding the statement attributed to Zamos to the effect that he would "bury" Patronyk in litigation. "The litigation privilege protects a 'publication or broadcast . . . [¶] . . . [¶] (b) In any . . . (2) judicial proceeding . . . .' [Citation.] The privilege applies to 'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) to have some connection or logical relation to the action. [Citations.]' [Citations.] [¶] It has long been the law that communications that bear 'some relation' to an anticipated lawsuit fall within the privilege. [Citations.] The privilege has been broadly applied to . . . prelitigation communications by attorneys. [Citations.] [¶] '[A] prelitigation statement is protected by the litigation privilege of [Civil Code] section 47, subdivision (b) when the statement is made in connection with a proposed litigation that is "contemplated in good faith and under serious consideration. [Citation.]" [Citations.]' [Citations.] '[T]he good faith, serious consideration of litigation test is not . . . a test for malice and it is not a variation of the "interest of justice" test.' [Citation.] Rather, it is 'addressed to the requirement the statements "have some connection or logical relation to the action. [Citations.]' [Citation.] Thus, if the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected to litigation and will be protected by the litigation privilege. [Citation.] If it applies, the privilege is absolute. [Citation.]" (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919; American Products Co., Inc. v. Law Offices of Geller, Stewart & Foley, LLP (2005) 134 Cal.App.4th 1332, 1340-1341.) Zamos's purported threat to "bury" Patronyk in litigation, although perhaps undignified, is plainly a statement made in anticipation of litigation, as contemplated by Civil Code section 47, subdivision (b). Moreover, Patronyk fails to demonstrate why Zamos's purported statement is relevant to prove his trespass claim against Hill.

Patronyk also complains that the special verdict form did not provide the option of nominal damages on his trespass claim. Because he did not object to the special verdict form, however, the issue is waived. (Joerger v. Pacific Gas & Electric Co., supra, 207 Cal. at p. 21; Hercules Powder Co. v. Automatic Sprinkler Corp. of America, supra, 151 Cal.App.2d at p. 401.)

The judgment is affirmed. The Axilrods are entitled to their costs on

appeal. Patronyk and Hill shall each bear their own costs.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Denise deBellefeuille, Judge

Superior Court County of Santa Barbara

______________________________

Law Offices of Jerome Zamos and Jerome Zamos for Appellant Walter H. Hill. Tharpe & Howell, Richard C. Gagliano and William L. Bowen for Appellant Gregg Patronyk.

Cumberland, Coates & Duenow and Greg A. Coates for Respondents Richard Axilrod and Joyce Axilrod.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Apartment Manager Lawyers.

^[1] A copy of the 1956 survey map is attached as appendix A.

^[2] The facts regarding historic use of the driveway by Hill, the Koonces, and Ms. Holt are derived from their deposition testimony, which Patronyk referenced in the separate statements of facts he submitted in support of his motion for summary adjudication of the prescriptive easement claim. Despite the importance of this evidence in reviewing the grant of nonsuit on Hill's prescriptive easement claim, neither he nor respondents have stated any of this evidence in their briefs. Indeed, Hill's brief contains no summary of the relevant facts, as the court rules require. (See Cal. Rules of Court, rule 14(a)(2)(C) [providing that an appellant's opening brief must "[p]rovide a summary of the significant facts"].)

^[3] Although the parties have not stated the issue clearly, it appears that Hill and his family used both easements (i.e., the easement on Parcel 2C and the utility easement on Parcel 2B) in order to access Parcel 7. According to Hill, the driveway extends across both easements to Parcel 7.

^[4] Prior to trial, the Axilrods moved to disqualify Zamos, asserting a conflict of interest based upon his dual representation. The court denied the motion on the ground that "[a]ny conflict which exists is a conflict between [Zamos] and [Hill]." The court added, "I can appreciate the frustration of the Defendants in suggesting that they may wish to negotiate the purchase of Parcel 7, and that Mr. Zamos may be a tough negotiator because he's got a potential real estate fee involved, but I don't feel that that rises to the level of requiring the Court to excuse a lawyer chosen by a litigant . . . ." The court also advised Zamos, however, "to consider recusing yourself from one of the roles that you've assumed." The court also noted that Zamos's dual representation "create[s] problems for the Defendants beyond the usual problems of being saddled with being Defendants in a lawsuit." In response to counsel's concerns "that Mr. Zamos has placed himself in a position of being a material witness," the court told him, "I'm not going to issue any kind of protective order precluding you from being deposed by the other side." We are not aware whether Zamos was ever deposed in the matter, and the Axilrods do not challenge the denial of their recusal motion.

^[5] The claims for an express easement and an easement by necessity are not at issue in this appeal.

^[6] We decline Patronyk's request that we either strike Hill's entire opening brief or order him to amend it to include additional citations to the record or case law in support of his arguments regarding the applicability of the law of the case doctrine and the grant of nonsuit on the prescriptive easement claim. (See, e.g., C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673.) We do, however, agree that Hill's brief is deficient in those regards, and that he has thereby effectively waived his right to assert those claims on appeal. We need not address Patronyk's arguments regarding the sufficiency of the evidence supporting the grant of nonsuit and summary adjudication on Hill's claims for a prescriptive easement and an easement by implication, respectively. In reviewing those rulings, we must presume the truth of all facts asserted by Hill and view them in the light most favorable to him. (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041.) For the same reason, Patronyk is incorrect in claiming that the trial court was empowered to weigh the evidence in disposing of Hill's easement claims.

^[7] Hill's complaint that the court rejected his request to reopen in order to address the deficiencies in his evidentiary presentation ignores the fact that he was provided the opportunity to submit an offer of proof on the matter on three different occasions: First, in response to the court's invitation for a nonsuit motion, again in briefing that was subsequently submitted on the matter, and once again after papers had been submitted. In his briefing, Hill asserted only that "PLAINTIFF, his stepfather ELMER KOONCE, his mother MARIAN KOONCE, his sister BARBARA HILL HOLT and the family's ranch foreman PABLO MARTINEZ have previously either testified during the course of their depositions or by the submission of sworn declarations filed in this action that they each used the disputed driveway for one purpose or another [without asking for or receiving permission] on a continuous basis since at least the establishment of the waterline [which is located under the disputed driveway and not within the utility easement created on PARCEL [2A] in 1966] and the confrontation with RICHARD S. AXILROD." On his third opportunity to make an offer of proof, Zamos told the judge, "I don't think I can ever meet the standard that you're giving me right now" and that "if you impose th[at] standard you might as well grant the nonsuit. Because we might as well take it up on appeal now based upon that ruling." As we conclude, the court's interpretation of the law was correct.

^[8] The remark about Mr. Axilrod's desire to "participate in the profits" apparently refers to the allegation that Hill had approached Mr. Axilrod about the possibility of participating in the joint venture to develop Parcel 7.

^[9] Zamos also referred to an incident in 1975 when Mr. Axilrod purportedly challenged Koonce's authority to install the water line on the utility easement on Parcel 2A. There is no dispute, however, that Koonce was entitled to install the water line because a utility easement was recorded for that purpose. Hill fails to appreciate that his family's use of the driveway and utility easements for the purpose of installing and maintaining the water line is irrelevant to the determination whether a prescriptive easement to otherwise access Parcel 7 was created. Zamos made no mention in his opening statement of any specific incident in which Hill, one of his family members, or their agents used the easements for that purpose without the permission of Axilrod or Patronyk or their predecessors. On the contrary, counsel expressly conceded that any such use had always been a matter of neighborly accommodation.

^[10] Hill subsequently filed a letter brief along with the recent decision in Aaron v. Dunham (2006) 137 Cal.App.4th 1244, which is offered on the ground that it "clearly supports our position that the trial court's refusal to allow our prescriptive easement claims [at a minimum] to be determined by the jury was a prejudicial error which warrants reversal." Again, no effort was made to explain why that case is helpful, so we need not explain why it is not.

^[11] In support of this claim, Hill also claims that Patronyk testified that he "did nothing to mitigate the alteration in the flow of surface water over the common driveway" because "he 'didn't think it was necessary.'" As Patronyk points out, he said no such thing. Rather, the quote attributed to him was actually made by Mr. Zamos.

^[12] Hill's proffered instruction provided in its entirety: "In an action by a lower landowner for diversion of surface water flow, the rule first asks whether the upper landowner altered the natural flow of surface water so as to increase the burden on the lower landowner. [Citation.] 'Natural' as applied to the course taken by surface water means 'that course which would be taken by such water falling . . . on the land of the upper proprietor, or carried thereto from still higher land, and flowing or running therefrom onto the lands of the lower proprietor undiverted and unaccelerated by any interference therewith by the upper proprietor.' [Citation.] If the upper landowner did not alter the natural flow of surface water, the lower landowner has no remedy against the upper landowner for the water naturally flowing onto the land. [Citation.] [¶] If the flow of surface water to the lower land is altered by an upper owner who fails to take reasonable precautions to avoid injury to the lower landowner, and whether the lower landowner likewise took precautions to avoid or reduce injury, the upper owner bears the costs caused by the alteration of the natural surface water flow and is liable to the owner." The court's instruction incorporated the first paragraph of the proposed instruction, omitted the second paragraph, and replaced it with the following: "A duty exists to take reasonable care to avoid injury to adjacent property through the flow of surface waters. It is incumbent upon every person to take reasonable care in using his or her property to avoid injury to adjacent property through the flow of surface waters. Failure to exercise reasonable care may result in liability by an upper to a lower landowner. [¶] An upper landowner is liable to a lower landowner where there is a discharge resulting in damage to the property of a reasonable lower landowner: (1) if the upper owner is reasonable and the lower owner is unreasonable, then [the] upper owner wins: (2) if the upper owner is unreasonable and the lower owner is reasonable, the lower owner wins: (3) if both the upper and lower owners are reasonable the lower owner wins. [¶] An upper landowner may not avoid liability to a lower landowner by showing that a lower landowner was unreasonable simply for failing to take affirmative action to prevent the flow of surface waters onto his or her property. [¶] Where the lower landowner acts reasonably, by action to minimize the damage, or by inaction which does not unreasonably increase his or her damages, the upper landowner is liable for the lower landowner's damage."

^[13] The special verdict forms asked the jury whether respondents "intentionally or negligently enter[ed] Walter Hill's property or intentionally or negligently cause[d] another person or thing to enter Walter Hill's property[.]" The challenged jury instruction, however, clearly provides that an upper landowner may be liable for water diversion even if he has acted reasonably to prevent it. (Keys v. Romley, supra, 64 Cal.2d at p. 409.)

^[14] Hill's citation in his reply brief to Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, is unavailing. That case merely stands for the proposition that a party need not object to an erroneous instruction in order to preserve the issue for appeal. (Id., at p. 427.) As we have explained, the modified instruction at issue here is a correct statement of the law.