McLear-Gary v. Scott

235 Cal. Rptr. 3d 443, 25 Cal. App. 5th 145
CourtCalifornia Court of Appeal, 5th District
DecidedJuly 11, 2018
DocketA146719
StatusPublished
Cited by8 cases

This text of 235 Cal. Rptr. 3d 443 (McLear-Gary v. Scott) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLear-Gary v. Scott, 235 Cal. Rptr. 3d 443, 25 Cal. App. 5th 145 (Cal. Ct. App. 2018).

Opinion

Jenkins, J.

*148Deborah McLear-Gary appeals from a judgment declaring her prescriptive and implied easement extinguished by adverse possession. She contends the trial court erred in finding that defendants Emrys Scott, Freyja Scott and Sophia Scott (the Scotts) established an essential element of adverse possession-the "timely" payment of taxes during the five-year statutory period. (See *447Code Civ. Proc., § 325, subd. (b).)1 We agree with McLear-Gary that the Scotts' lump sum payment of several years' worth of delinquent property taxes did not constitute "timely" payment of taxes for *149purposes of section 325, subdivision (b), and therefore the trial court erred in concluding that the Scotts extinguished her easement by adverse possession.

McLear-Gary also challenges the findings of the trial court that (1) the Declaration of Covenants, Codes and Restrictions (CC&R's) governing the properties at issue did not grant her an express easement for pedestrian and vehicular use; and (2) the scope of her prescriptive and implied easement did not include vehicular use. We conclude that substantial evidence supported both findings. Accordingly, we affirm in part and reverse in part the judgment.

BACKGROUND

This case involves three parcels of property located within Greenfield Ranch in Mendocino County. In 1972, the owner of Greenfield Ranch, Presa Investment Co. (Presa), subdivided the property into 25 parcels with a minimum acreage of 160 acres each, and one of those initial ranch parcels was subsequently divided by a January 1975 partition judgment into the three parcels at issue here. The parcels sit roughly side-by-side. McLear-Gary is the current owner of the westernmost parcel (parcel 1-A), which she inherited from her late husband, Mark Gary (Gary). Emrys and Freyja Scott are the current owners of the easternmost parcel (parcel 1-C). Marylyn Scott Brandon, Lasara Firefox, Tryntje Young, Tobias Young, and Emrys Scott (the extended Brandon-Scott family), are the current owners of the parcel which is located between parcel 1-A and parcel 1-C (parcel 1-B).

McLear-Gary claims an easement along a skid trail that passes through parcel 1-C, terminates at Jack Smith Creek, and then continues on a foot path over parcel 1-B to her parcel 1-A. In March 2006, Emrys Scott replaced an old wooden gate with a metal gate across the easement route and kept the gate locked, blocking McLear-Gary from accessing the easement across parcel 1-C, the Scotts' parcel. On June 22, 2009, McLear-Gary filed a complaint against the Scotts and others to quiet title to her claimed easement. McLear-Gary alleged several theories in support of her easement rights: an express easement pursuant to the governing CC&R's; an implied easement; an easement by necessity; and a prescriptive easement.

In December 2012, McLear-Gary filed a first amended complaint adding the extended Brandon-Scott family as defendants. The Scotts answered the first amended complaint and alleged an affirmative defense that McLear-Gary's "adverse use of the subject road was interrupted and barred by Defendants' maintenance of a gate preventing [McLear-Gary's] use for five continuous years." The extended Brandon-Scott family (other than Emrys and Freyja Scott) did not answer the first amended complaint, and defaults were entered against them.

*150A bench trial was held on October 27, 28 and 29, 2014. The trial court conducted a site inspection of the properties.

On November 21, 2014, the Scotts moved to reopen the evidence to submit proof of their payment of property taxes on parcel 1-B and parcel 1-C. The Scotts later submitted the tax payment evidence *448with their closing brief. The evidence showed that the taxes levied and assessed against parcel 1-C were timely paid, but the taxes levied and assessed against parcel 1-B for the years 2005, 2006, 2007 and 2008 were not paid on time and remained delinquent until a lump sum payment was made on April 7, 2011. The parties submitted supplemental briefing on the sufficiency of the tax payment evidence.

In February 2015, the trial court issued a tentative decision in favor of the Scotts. On August 5, 2015, the trial court issued a final statement of decision consistent with the tentative ruling. As pertinent to this appeal, the trial court found that the CC&R's did not grant McLear-Gary an express easement for pedestrian or vehicular use to and from her parcel. While the trial court found that McLear-Gary had established an "exclusively pedestrian" prescriptive and implied easement over the properties belonging to the Scotts and the extended Brandon-Scott family (collectively defendants), the court concluded this easement was extinguished by adverse possession when Emrys Scott, acting for the benefit of the common interests of his cotenants in parcel 1-B, locked and maintained the locked gate across the easement route and otherwise met the requirements for the affirmative defense.

Judgment in favor of the Scotts was entered. McLear-Gary timely appealed.

DISCUSSION

I. Motion to Reopen the Evidence

McLear-Gary contends the trial court abused its discretion in granting the Scotts' motion to reopen the evidence to submit evidence of property tax payments on parcel 1-B and parcel 1-C. She contends the Scotts failed to show good cause for not submitting the evidence during trial and they were not diligent in seeking to reopen the case. The Scotts argue they made a sufficient showing before the trial court that the failure to introduce the tax payment evidence was due to the mistake, inadvertence or excusable neglect of their counsel. According to the Scotts, the evidence showed that their counsel mistakenly believed, based on a discussion with opposing counsel during trial, that the parties would stipulate to the admission of the tax records.

*151"A request to reopen for further evidence is addressed to the discretion of the trial court whose determination is binding on appeal in the absence of palpable abuse. [Citations.]" ( Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 428, 188 Cal.Rptr. 781.) "[A] reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice. ... 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.' " ( Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65,

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Cite This Page — Counsel Stack

Bluebook (online)
235 Cal. Rptr. 3d 443, 25 Cal. App. 5th 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclear-gary-v-scott-calctapp5d-2018.