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Ormiston Family Association et al v. William J. Prater


October 7, 2011


(Super. Ct. No. 143735)

The opinion of the court was delivered by: Duarte , J.

Ormiston Family Assn. v. Prater



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case involves a dispute over a boundary line and other matters between the owners of two adjacent parcels of forested land in the town of Clipper Mills in Butte County. After many issues were resolved by a successful motion for summary adjudication, a jury found that plaintiff Ormiston Family

Association (OFA) owned the disputed property by deed or adverse possession.

Prater, representing himself on appeal as he did in the trial court, appeals. He contends no substantial evidence supports the judgment for adverse possession. He also contends the trial court made several errors: granting OFA summary adjudication on the claims in Prater's cross-complaint for breach of contract and interference with easement; denying Prater a continuance on the motion for summary judgment/ adjudication and his request to amend the cross-complaint; granting OFA a jury trial after OFA had waived jury; and denying Prater's motion to prohibit reference to the disputed land as "no man's land."

We disagree and shall affirm.



The Disputed Property Line

OFA was formed to hold land for the benefit of the Ormiston family. OFA includes David Ormiston, his sisters Jane Hart and Julie Matlin, their children and various other family members. OFA acquired property in 1999 from the siblings' mother and aunt. Their grandmother had purchased the property from Jim Binet's widow in the 1940's. She first purchased a two and a half-acre parcel. Later she purchased a 40-acre parcel. The two and a half-acre parcel, which houses a cabin that has been on the property since 1873 and that a member of the Ormiston family has owned since 1942, is the subject of this dispute.

The cabin was built in 1873. It was expanded in 1958, and again in 1982. The expansion caused the cabin to overlap the one-sixteenth line*fn1 to the south. Renovation work began in 2007 and the Ormistons restored a fence their grandparents had built in the 1940's.

Prater owns the parcel to the south of OFA's parcel. He held it as a joint tenant with his mother since the 1960's and has owned it outright since 1990. Prater planted a redwood forest on the parcel 20 or 30 years ago and uses part of the land as an equipment yard for his forestry operations. Prater does not live on this property.

In 2007, Thomas Wulfert surveyed the OFA property and the boundary with the Prater property. He determined the boundary line between the two properties was the one-sixteenth line, which cut through OFA's cabin. Earlier surveys had shown the boundary line to the south of the one-sixteenth line, thus to the south of the cabin, even though the available legal descriptions called*fn2 to the one-sixteenth line.

The primary dispute in this case is which boundary line is the correct line between the Prater and OFA properties: the one-sixteenth line passing through the cabin or the line to the south (southern line). The strip of land between these two lines was referred to at trial, over Prater's objection, as "no man's land."


OFA Complaint and Prater Cross-Complaint

In 2008, OFA filed suit against Prater for declaratory relief, adverse possession and trespass.*fn3 The complaint alleged that a recent survey of the OFA and Prater properties showed they were not contiguous, but separated by a strip of land. Both OFA and Prater claimed their parcel included this strip of land. The complaint sought quiet title to this strip of land in OFA and a judicial determination as to the ownership of this strip of land. OFA claimed title to this land "based on their actual, open, notorious, exclusive, hostile, and adverse possession of the Property for five years preceding the commencement of this action, together with the payment of all taxes assessed against the Property for the same five years." The complaint also sought damages for trespass; that claim is not at issue on appeal.

Three months later, Prater filed a cross-complaint. The cross-complaint set forth causes of action for trespass, nuisance, breach of contract, interference with easement and intentional infliction of emotional distress. Only the causes of action for breach of contract and interference with easement are at issue in this appeal.

The claim for breach of contract alleged Prater attempted to settle the property line dispute, but David Ormiston demanded a survey. It further alleged Ormiston and Prater entered into a contract by which OFA and Prater would do certain things to accomplish the survey. The "contract" was attached as Exhibit D. Exhibit D was a letter from Ormiston to Prater. The letter stated that OFA owned two parcels of land, a 40-acre parcel and a two and a half-acre parcel containing a cabin. It was the property line of this two and a half-acre parcel that needed to be surveyed. The letter made an offer: if Prater recommended a licensed and registered surveyor that he would agree to have perform the survey, and would agree to the findings of that survey, OFA would pay the entire cost of the survey.

The cross-complaint alleged the contract provided both parties would agree to the findings of the survey and OFA would pay the cost of the survey. Prater alleged Ormiston breached the contract by filing, in another case, a memorandum of costs, which included the costs of the survey, in an attempt to have Prater pay for the survey. Prater further alleged Ormiston and OFA breached the contract by not agreeing to the terms of the survey, but instead filing a "frivolous lawsuit" and conspiring to take Prater's lands unlawfully.

The claim for interference with easement alleged Prater owns an easement over Grizzly Lodge Road which burdens the OFA property. Prater used the easement to move his equipment and for recreational purpose. The cross-complaint alleged OFA erected a rail fence along the road that encroaches upon the easement. Moving caterpillar tractors and road maintenance equipment on the road would cause destruction of the fence. The cross-complaint further alleged this fence was constructed with malice and in violation of an injunction.


OFA Motion for Summary Judgment/Adjudication

OFA moved for summary judgment/adjudication of Prater's cross-complaint. OFA contended there was no contract and the condition of Grizzly Lodge Road was in full compliance with the easement, so there was no interference.

OFA provided the declaration of Ormiston, in which he declared that Prater never answered, accepted, or contacted him about the settlement offer for a survey. He further declared a split-rail fence was constructed along Grizzly Lodge Road to replace the fence his grandmother had built in the 1940's. The fence caused the road to measure not less than 10 1/2 feet wide at its narrowest and did not prevent large equipment from passing.

OFA also provided the declaration of its attorney to which was attached the judgment showing Prater had an easement over Grizzly Lodge Road varying in width from nine to 12 feet.

In opposition, Prater objected to the court considering these declarations because they were not made with personal knowledge.

Prater disputed that there was no contract; he asserted the claim he never answered the settlement offer letter was false (and a fraud upon the court). In his response to OFA's separate statement of undisputed facts, Prater cited his declaration. This declaration included a series of letters between him and Ormiston. The letters indicated Prater had selected a surveyor.

Prater's response to OFA's separate statement disputed the facts about the easement and the fence. No evidence, however, was cited in support. Instead, Prater again objected to the declarations offered by OFA. In one response, Prater claimed the road was only nine feet, not 10 1/2 feet, at its narrowest. Although not cited in the response to OFA's separate statement, Prater did provide declarations from neighboring land owners, which declared Ormiston's declaration was incorrect and the new fence was not in the same position as the old fence.

OFA provided amended or supplemental declarations that stated they were based on personal knowledge.

In its reply, OFA argued the series of letters produced by Prater did not create a contract. There were no clear terms, meeting of the minds, consideration, or acceptance. OFA argued Prater had admitted the road was nine feet at its narrowest, which complied with the court's judgment regarding the easement.

The trial court granted summary adjudication as to the breach of contract and interference with easement claims. It overruled Prater's objections to the declarations, as the declarations had been cured by amendment. The court found there was no contract as there was no promise by Prater to accept the decision of the surveyor and no express acceptance. OFA's undisputed facts about the easement were opposed only by objections to the evidence (the faulty declarations) which had been overruled. OFA's asserted facts, therefore, were deemed undisputed.


The Trial

At trial, the Ormiston siblings testified they visited the cabin regularly when they were children. They now went only in groups because they were afraid of Prater. The grant to OFA was two parcels of property, one about 40 acres and the other two and a half acres containing the cabin. For years, no one, including Prater's parents, questioned that the property that the cabin was on belonged to the Ormistons.

Ormiston testified he paid taxes on the 40 acres and two and a half-acre plots, which had a single parcel number. He testified the tax paid included the cabin; he presented the property tax bill that indicated a structural improvement. He also presented 10 years worth of receipts for property tax payments.

OFA presented the testimony of Jon Christofferson, who qualified as an expert surveyor. He had not surveyed the property; instead, he did a forensic investigation of the documents. He testified the Prater property was part of a larger parcel previously owned by Agnes Schultz. In 1923, she commissioned a survey performed by Ben McCoy. McCoy prepared a legal description. This legal description "called" to a post on what McCoy apparently thought was the fractional section line.*fn4 Christofferson testified that the post was not actually on the fractional section line;*fn5 the boundary was different depending on whether one used the post (southern line) or the fractional section line. Subsequent surveys used the fractional section line as the boundary. When asked his opinion as to who owned the property where the cabin stood, Christofferson replied, "My opinion is that's why we're in court today."

Christofferson testified this case was similar to a Butte County Superior Court case, Sharrer v. Hecker, involving a nearby property. In that case, it was determined by deed that the fractional section line ran through a house. The court ruled in favor of the party to the north, analogous to OFA here, and disregarded the reference to the fractional line in the deed.*fn6

Prater called Thomas Wulfert as a witness; he had recently surveyed the property at issue. Wulfert explained that many of the old surveys of rural areas such as the property at issue were inaccurate; some were homemade. In some of the earlier descriptions of this particular property, the description did not even close; meaning it did not return to the starting point.

Wulfert testified McCoy's survey measured to a cabin and then to a horse barn. He did not close out by measurement, but went back to his office and calculated a legal description that did close. McCoy measured to fence posts, but then inserted a "call" to the sixteenth line.*fn7 No effort, however, was made to locate the sixteenth line. In his survey, Wulfert found the 40-acre and two and a half-acre parcels overlapped.

In Wulfert's opinion, the property line between OFA's property and Prater's property was the sixteenth line. The Prater deed "calls" the sixteenth line and the Ormiston deed "calls" for "lot 2," which by implication is the sixteenth line. Until 1999, no one had carefully defined the sixteenth line; earlier surveys used a different line, to the south, as the sixteenth line. Wulfert testified that where there were conflicting deeds, intent prevailed. He did not know if Mrs. Binet intended to convey the cabin to the Ormistons.

In Wulfert's opinion, the case that Christofferson had discussed was different, but he admitted that in that case the court disregarded a "call" to the sixteenth line.

By special verdict with a vote of nine to three, the jury found that OFA owned the land referred to as no man's land by deed or adverse possession.


Ownership by Deed

OFA claimed it owned the disputed property by deed and the correct boundary line was south of the one-sixteenth line (at the southern line). Alternatively, OFA claimed the property by adverse possession. The special verdict form does not distinguish whether OFA's ownership was found by the jury to be by deed or by adverse possession.

Where two legal theories are presented to a jury and the verdict does not reveal on which theory the jury found, we will uphold the verdict if there is substantial evidence of either legal theory. (See People v. Sanchez (2001) 26 Cal.4th 834, 851; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130; Lundy v. Ford Motor Co. (2001) 87 Cal.App.4th 472, 480.) Prater has not challenged the sufficiency of the evidence that OFA owned the disputed property by deed. As set forth ante, there was evidence from which the jury could find OFA's deed contained an error in referring to the one-sixteenth line as the boundary, and that the true boundary was the southern line, marked by the post to the south of the cabin, in keeping with the original intent to convey the cabin and property around it to the Ormiston grandmother.

In any event, we address Prater's claims of insufficiency of the evidence as to adverse possession and find his claims unpersuasive.


Substantial Evidence Of Adverse Possession

The substantial evidence standard of review is highly deferential. (Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 447.) When a verdict is attacked as not supported by the evidence, "all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury." (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)

To establish ownership by adverse possession, five elements must be met: "(1) possession by actual occupation under circumstances sufficient to constitute reasonable notice to the owner's title; (2) possession hostile to the owner's title; (3) possession whereby the holder claims the property as his own under either color of title or claim of right; (4) continuous and uninterrupted possession for five years; (5) the holder has paid all taxes levied on the property during those five years." (Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691, 697.)

Prater contends OFA failed to establish that it paid taxes on the disputed property. But both Hart and Ormiston testified they paid taxes on the property. Ormiston provided tax bills and receipts for about 10 years and testified the assessment covered the disputed property because it included a structural improvement, the cabin.

Prater objects that OFA did not provide sufficient proof of tax payment. He points out that Code of Civil Procedure section 325, subdivision (b) requires proof of tax payment by "certified records of the county tax collector." OFA contends that provision applies only where a person claims title not founded on a written instrument. While we agree that limitation applies to subdivision (a) of Code of Civil Procedure section 325, subdivision (b) applies to all claims of possession "under the provision of any section of this code." (Code Civ. Proc., § 325, subd. (b).)

The requirement to prove tax payment by certified tax records does not apply here for a different reason. The amendment adding this requirement was enacted at a regular session of the Legislature in 2010 (Stats. 2010, ch. 55, § 1) and did not become effective until January 1, 2011. (Cal. Const., art. IV, § 8, subd. (c)(1) [absent urgency clause, a statute enacted at a regular session of the Legislature becomes effective on January 1 of the following year].) Nothing indicates a legislative intent for retroactive application of the amendment and, practically, it could not be given retroactive effect because the statute was approved by the Governor on July 9, 2010, after trial in this case was complete. The evidence of payment was adequate.

Prater next contends OFA's possession of the disputed land was not adverse or hostile to his claim of ownership because OFA intended to claim only to the true property line (which he asserts is the one-sixteenth line). Prater cites testimony that when Ormiston hired Wulfert to conduct the survey, there was some discussion about moving the cabin if the correct boundary line passed through it. Even if this ambiguous evidence demonstrates lack of intent to claim the disputed land, other evidence indicated OFA claimed the undisputed land. Substantial evidence may be contradicted. (Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 561.) The Ormistons had used the cabin for decades and both Hart and Ormiston testified their property included the so-called no man's land. This is substantial evidence of an adverse or hostile possession.

Prater contends OFA's possession was not adverse or hostile because OFA offered to purchase the property from Prater. Prater cites to section 104 of 3 American Jurisprudence Second (2011) Adverse Possession. That encyclopedia entry, however, distinguishes between an offer to purchase an outstanding claim, which does not weaken the force of adverse possession, and an offer to purchase title where there is no adverse claim, which is the recognition of title in another. The evidence was that Ormiston's offer to purchase arose only after Prater claimed an interest in the property. "A person may very well deny the validity of an outstanding claim or title, and yet choose to buy peace at a small price, rather than be at great expense and annoyance in litigating it." (Ibid.)

Substantial evidence supports the jury's verdict that OFA owned the disputed property.


Summary Adjudication: Breach of Contract

Prater contends the trial court erred in granting summary adjudication of the cause of action in the cross-complaint for breach of contract. He asserts he refuted OFA's claim, based on Prater's alleged failure to respond to Ormiston's offer letter, that there was no contract.

"A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1).) A moving defendant meets his burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.) We independently review an order granting summary adjudication. (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 476.)

OFA moved for summary adjudication of the breach of contract claim on the basis that there was no contract because Prater never responded to Ormiston's offer to pay for a survey. Prater effectively disputed this by providing a series of letters which showed that not only did he respond to the letter; he also partially performed by selecting a licensed surveyor. A unilateral contract may be accepted by performance. (Rest.2d Contracts, § 45(1); Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 10, fn. 4.) Thus, Prater did raise a triable issue of fact--whether there was a contract. The mere existence of a contract, however, does not raise a triable issue as to breach.

In reviewing the grant of summary adjudication, we look to the pleadings which "'delimit the scope of the issues.'" (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) The cross-complaint alleged the contract provided both parties would agree to the findings of the survey and OFA would pay the cost of the survey. It alleged Ormiston breached the contract by attempting to have Prater pay for the survey and OFA breached the contract by not agreeing to the terms of the survey, but instead filing a lawsuit.

Limited to the allegations of the complaint, Prater failed to raise a triable issue as to breach of contract. Nothing in the letters Prater provided shows an agreement by OFA to agree to the terms of the survey. The offer required Prater to agree to the survey. Prater, therefore, has failed to effectively dispute OFA's assertion there was no contract as to this term. The offer did state OFA would pay for the survey, but Prater failed to allege OFA failed to do so. He alleged only that Ormiston attempted to make Prater pay for the survey by filing a memorandum of costs that included the cost of the survey. In any event, Wulfert's testimony at trial established that OFA paid for the survey, so there was no breach in this respect. Reversing the summary adjudication on this ground would be an idle act and the law does not require idle acts. (Civ. Code, § 3532.)

The trial court did not err in granting summary adjudication on the breach of contract claim.


Summary Adjudication: Interference with Easement

Prater contends the trial court erred in granting summary adjudication on the cause of action in his cross-complaint for interference with easement. He asserts the motion was granted based on Ormiston's declarations which contained numerous falsehoods and misrepresentations. Further, he provided declarations from neighbors about the OFA's interference with the easement over Grizzly Lodge Road.

OFA moved for summary adjudication on the basis that the fence did not interfere with the easement. OFA's separate statement of undisputed facts relied upon Ormiston's declaration. Ormiston declared that the fence was in the same location as his grandmother's fence and with the fence the road was never less than 10 1/2 feet wide, which complied with the terms of the easement. Further, OFA relied upon Prater's answers to interrogatories that the large equipment identified in the cross-complaint was five to 10 feet wide.

In his separate statement in opposition, Prater disputed OFA's facts solely on the basis that Ormiston's declaration should not be considered. This was insufficient to raise a triable issue of fact because the trial court had overruled Prater's objection to Ormiston's declaration. It is not enough simply to attack credibility; "summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations

. . ." (Code Civ. Proc., § 437c, subd. (e).)

Prater did provide declarations from Marianne Dreisbach and Ronald Dreisbach disputing that the fence was in the same location as the old fence. He did not, however, reference this evidence in his separate statement and thus failed to comply with the statutory requirements for opposing summary judgment or summary adjudication.

"The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." (Code Civ. Proc., § 437c, subd. (b)(3), italics added.)

There is a split of authority as to whether a court may or should consider evidence not contained in the separate statement. (Compare North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 [if fact not mentioned in separate statement it is irrelevant that such fact might be buried in paperwork filed with court] and San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [whether to consider evidence not in separate statement is within sound discretion of court and it is an abuse of discretion not to consider such evidence where called to attention of court].) Prater did mention the Dreisbach declarations in his points and authorities in opposition to the motion. Even if we consider these declarations, however, they fail to raise a triable issue of fact as to interference with the easement.

The Dreisbachs owned Grizzly Lodge and frequently used Grizzly Lodge Road. Their declarations stated that Ormiston's declaration was false; they did not recall a fence along the road; the fence interfered with the easement, and moving large equipment on the road would damage the fence.

These declarations are not sufficient to raise a triable issue of fact. They contain the Dreisbachs' opinions and conclusions, but they do not contain facts to show the fence interferes with the easement, such as that the fence narrows the road to less than the width of the easement or the equipment. An affidavit opposing summary adjudication must set forth specific facts showing a triable issue of fact exists. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)

The trial court did not err in granting summary adjudication on interference with the easement.


Denial of Continuance and Amendment of Cross-Complaint

Prater next contends the trial court erred in ignoring his request to continue the hearing on the summary judgment/ adjudication motion so he could obtain additional discovery and also ignoring his request to amend his cross-complaint.

On March 12, 2010, the day of the hearing on the summary judgment/adjudication motion, Prater told the court there were documents and other evidence he had not yet received from OFA. Counsel for OFA invited Prater to come to his office and look through his files. The court advised Prater that if he felt there were unaddressed discovery issues, he needed to bring a properly noticed motion to address those issues.

That same day, Prater filed a declaration in which he requested a continuance of the summary judgment/adjudication motion.*fn8 He stated that Julie Matlin, a member of OFA, had failed to produce documents despite an order the previous August to produce such documents. Further, he needed to obtain certain photographs that had been mentioned in a recent deposition. Finally, Prater requested the opportunity to amend his complaint if the court found it "insufficient as a matter of law."

Prater's declaration for a continuance was untimely. A motion to continue a hearing on a motion for summary judgment/adjudication to obtain further evidence must be made on or before the date the opposition is due. (Code Civ. Proc., § 437c, subd. (h).) He has not shown why he failed to request or otherwise procure the Matlin documents well before the hearing.

His declaration was also insufficient to trigger the right to a continuance. "The statute makes it a condition that the party moving for a continuance show 'facts essential to justify opposition may exist.'" (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) While Prater's declaration stated the evidence not yet obtained was "vital to my case," "there is no statement which suggests what facts might exist to support the opposition to the motions." (Ibid.)

Prater's request to amend his cross-complaint was conditioned upon the trial court concluding the cross-complaint was "insufficient as a matter of law." The trial court did not so conclude. Before any judgment can be reversed for procedural error, it must appear that the error complained of "has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Prater has not shown a miscarriage of justice because he has not shown how he would have amended his cross-complaint or how the amendment would have made a difference to his case.


Granting Jury Trial

Prater contends the trial court erred in granting OFA a jury trial after OFA had expressly waived the right to a jury. He contends granting a jury trial after waiver does not follow the intent of the Legislature.

In various case management statements, OFA indicated it requested a non-jury trial. About a month before trial, however, it lodged jury fees. Prater opposed OFA's request for a jury trial. A jury was sworn to hear the case.

The Legislature has expressly provided for a granting a jury trial after waiver. Code of Civil Procedure section 631, subdivision (e) provides: "The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of trial by jury." This provision permits, but does not require, a trial court to grant a jury trial after there has been a waiver of jury trial. (March v. Pettis (1977) 66 Cal.App.3d 473, 480.) As Prater notes, "relief will be denied where the only reason for the demand appears to be the party's change of mind or where a demand for a jury is being used as a 'pretext to obtain continuances and thus trifle with justice.'" (Ibid.)

Prater has not shown an abuse of discretion. OFA's request for a jury trial did not delay the trial; there was no request for a continuance and trial began on the scheduled date. Although Prater states in his brief that he waived his earlier request for a jury due to health concerns, nothing in the record shows this reason. Nor has he shown how the jury trial disadvantaged or prejudiced him. "Whenever a doubt exists as to the propriety of granting relief from such waiver of jury trial such doubt, by reason of the constitutional guarantee, should be resolved in favor of according a litigant a trial by jury [citation]." (Cowlin v. Pringle (1941) 46 Cal.App.2d 472, 476.)


Denial of Motion to Exclude Reference to "No Man's Land"

Prater contends the court erred in denying his motion to exclude use of the term "no man's land." He asserts the use of this term "prejudiced the jury." We find no error.

Before trial Prater moved to exclude any reference to the term "no man's land." He contended the term was incorrect because pursuant to Civil Code section 669 "[a]ll property has an owner." He further contended the term was prejudicial. The court asked OFA if it had any objection and indicated if there were an objection, it would deny the motion. OFA objected and the trial court denied the motion. The court told Prater the ruling did not prevent him from presenting evidence that the land was owned by a property owner, to which Prater replied, "Well taken."

Prater has failed to show the use of this term resulted in any prejudice or harm to him or to his case. Prater was able to establish that all land had an owner. Both expert witnesses testified that in California there was no such thing as "no man's land" because all land belonged to someone. Indeed, much of the trial was devoted to determining who, OFA or Prater, owned the disputed property occasionally characterized as "no man's land."


The judgment is affirmed. OFA shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

We concur: BLEASE , Acting P. J. NICHOLSON , J.

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