Siefe v. Shepherd

Filed 8/23/07 Siefe v. Shepherd CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Defendant appeals a judgment awarding treble damages for maliciously removing and trimming oak trees on her neighbor's property. The trees were within a roadway easement, but were not interfering with defendant's use of the easement. We affirm.

FACTS

Vincent and Angela Siefe reside in Lompoc. Dulce Shepherd is their neighbor. A 20-foot-wide nonexclusive easement for ingress and egress runs over the Siefes' property in favor of Shepherd's property. A 12-foot-wide paved road runs over the easement. County standards for access to a single lot require a 12-foot-wide roadway.

A dispute arose between the Siefes and Shepherd. The Siefes requested that Shepherd reduce her speed when traveling the roadway, and to refrain from trimming trees on the Siefes' property. The Siefes threatened to install speed bumps on the portion of the roadway that crossed their property.

In May of 2005, Shepherd entered the Siefes' property without their consent, removed two oak trees and trimmed other trees. The trees were within the 20-foot-wide easement, but outside the 12-foot-wide paved road.

Shepherd's actions precipitated the instant law suit. The Siefes filed a complaint against Shepherd seeking damages for trespass, injunction and declaratory relief. Shepherd cross-complained for declaratory relief. Shepherd named not only the Siefes, but also James Snyder, a neighbor, over whose property a portion of the paved roadway runs. Snyder, cross-complained against both Shepherd and the Siefes, claiming a portion of the paved roadway encroached onto his property. The trial court bifurcated the actions between Shepherd and the Siefes from Snyder's cross-complaint.

At trial, Shepherd did not dispute that she removed two oak trees and trimmed other oak trees on the Siefes' property without their permission. Shepherd testified she did not talk to the Siefes before removing the trees because they were not on speaking terms. She believed she had the right to remove and trim the trees because they were in the easement.

Snyder owns the property directly across from the two large oaks Shepherd removed. He testified that at the time he purchased the lot in 1999, he was aware the paved road encroached onto his property. He did not care as long as it did not affect his record title. Prior to the removal of the oaks, he had a conversation with Shepherd. Snyder gave Shepherd permission to remove some pine trees from his property to allow any expansion of the paved roadway to further encroach onto his lot. That would save the oak trees. Snyder was surprised when he saw the oak trees had been removed. He said it did not make sense to him.

A landscape consultant testified that replacement of the oak trees would cost $43,425. A licensed arborist testified that remediation of the "thoughtless and irresponsible" trimming of the other oaks would cost $850.

A traffic engineer testified that a reasonable speed on the paved roadway is between 15 and 20 miles per hour. He said that speed bumps on the driveway are a reasonable and effective traffic control measure. The trial court admitted the engineer's two-page report into evidence.

The trial court granted judgment in favor of the Siefes and against Shepherd on the complaint and cross-complaint. The court found the removal of the oak trees was malicious, and trebled the award of damages to $130,515. The court enjoined Shepherd from expanding the paved portion of the easement, removing or trimming trees on the Siefes' property, and traveling in excess of 15 miles per hour near the Siefes' home and 20 miles per hour over the remainder of the easement. The court also allowed the Siefes to place three speed bumps on the portion of the easement that traverses their property.

Neither party requested a statement of decision.

DISCUSSION

I

The Siefes contend that Shepherd has waived her right to appeal by voluntarily paying the judgment.

It is true that a complete voluntary satisfaction of the judgment waives the right to appeal. (Rancho Solano Master Assn. v. Amos & Andrews, Inc. (2002) 97 Cal.App.4th 681, 688.) But Shepherd has satisfied only the monetary portion of the judgment. The Siefes cite no authority that a partial satisfaction constitutes a waiver of the right to appeal.

II

Shepherd contends she had the legal right to remove the oak trees in the easement area.

The owner of the servient estate retains every incident of ownership that is consistent with the easement. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 35.) Thus the owner of the servient estate may make every use of the area encompassed by the easement, so long as the use does not unreasonably interfere with the easement's purpose. (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702-703.)

The precise specification of width and location of an easement does not always determine the extent of the burden placed on the servient estate. (Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at p. 705.) Instead, the scope of the easement can be properly measured by the purpose for which the easement has been granted. (Ibid.)

In Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th 697, an easement for ingress and egress was described in the deed as being 52 feet wide. The owner of the dominant estate used a 15-foot-wide roadway over the easement for access to his parcel. The court refused to enjoin the owner of the servient estate from using the remainder of the easement area. Because the 15-foot-wide roadway over the easement was adequate for access, the servient owner's use of the easement area outside of the roadway did not unreasonably interfere with the dominant owner's use of the easement. (Id. at p. 706.)

Similarly here, the 12-foot-wide paved roadway is adequate for access to Shepherd's property. Because the Siefes' oak trees did not interfere with Shepherd's use of the easement, Shepherd had no right to remove or prune them.

Shepherd's reliance on Kapner v. Meadowlark Ranch Association (2004) 116 Cal.App.4th 1182, is misplaced. There the question was whether a property owners' association had the power to protect the rights of its members in an easement. Covenants governing the subdivision gave the association the power to maintain the easement. In concluding that the association had the power to prosecute an action to remove obstructions on the easement, we stated, "One cannot maintain a roadway by allowing obstructions on it." (Id. at p. 1188.) Kapner did not involve a question of the scope of the easement. It concerned only the power of the association to maintain the action. A case is not authority for matters not considered therein. (Contra Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 660.) It is true that the owner of the easement has the right to maintain it. (See Civ. Code,  845, subd. (a).) But Shepherd's actions were not necessary to maintain the easement.

Shepherd argues she acted to abate a trespass on Snyder's property. But the trial court rejected that theory. In fact, Snyder testified he was aware of the encroachment and did not care. Snyder even allowed Shepherd to remove pine trees on his property so that any expansion of the paved roadway would not affect the oaks. Shepherd points to Snyder's cross-complaint alleging that the paved roadway encroached onto his property. But the trial court could reasonably conclude Snyder would not have cross-complained had Shepherd not first included him in her cross-complaint.

III

Shepherd contends the evidence is insufficient to support an award of treble damages.

Civil Code section 3346, subdivision (a), and Code of Civil Procedure section 733, allow the trial court to award treble damages for the removal of or injury to trees on the land of another. In order to support an award of treble damages, the conduct must be willful and malicious, engaged in with the intent to vex, harass, annoy or injure. (Sills v. Siller (1963) 218 Cal.App.2d 735, 743.)

"In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]" (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)

Here there had been a dispute about Shepherd's use of the driveway and trimming the Siefes' trees even before the incident that precipitated the law suit. Shepherd admitted the parties were not speaking at the time she removed and trimmed the oaks. There was no valid reason for removing the oaks. Snyder testified he was surprised she did it. The trial court could reasonably conclude that Shepherd acted with malice.

IV

Finally, Shepherd contends the engineer's report on the speed bumps should not have been admitted into evidence.

At trial, Shepherd objected that the report should not be admitted into evidence because it had not been provided to her as part of the exchange of expert witness information. (Code Civ. Proc.,  2034.270.) But the engineer testified without objection as to the appropriate speed on the roadway and the efficacy of speed bumps in maintaining that speed. Any error in admitting the report is harmless. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  410, p. 461 & 438, p. 484.) Moreover, because Shepherd does not contend on appeal that the trial court erred in allowing the installation of the speed bumps, the admission of the report is moot. (Id. at  320, p. 359.)

Shepherd objects that the report was attached to the judgment. Not only is the issue moot, but Shepherd's counsel approved the judgment as to form with the report attached.

The judgment is affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Zel Canter, Judge

Superior Court County of Santa Barbara

______________________________

Alan W. Courtney for Defendant and Appellant.

Grokenberger & Smith, David Grokenberger; and Diane Matsinger for Plaintiffs and Respondents.

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