Johnson v. Little Rock Ranch, LLC

• Citation: 73 Cal.App.5th 576,288 Cal.Rptr.3d 507
• Decision Date: 03 January 2022
• Docket Number: F078173
• Parties: Roger JOHNSON, Individually and as Trustee, etc. et al., Plaintiffs, Cross-defendants and Appellants, v. LITTLE ROCK RANCH, LLC, Defendant, Cross-complainant and Respondent; Premier Valley, Inc., Cross-complainant, Cross-defendant and Respondent; Albert Roen et al., Cross-defendants and Respondents.
• Court: California Court of Appeals

73 Cal.App.5th 576

288 Cal.Rptr.3d 507

Roger JOHNSON, Individually and as Trustee, etc. et al., Plaintiffs, Cross-defendants and Appellants,

v.LITTLE ROCK RANCH, LLC, Defendant, Cross-complainant and Respondent;

Premier Valley, Inc., Cross-complainant, Cross-defendant and Respondent;

Albert Roen et al., Cross-defendants and Respondents.

F078173

Court of Appeal, Fifth District, California.

Filed January 3, 2022

Michael J.F. Smith and John L. Migliazzo, Fresno, for Plaintiffs, Cross-defendants and Appellants.

Law Offices of Mayol & Barringer, Bart Barringer, Modesto, for Defendant, Cross-complainant, and Respondent.

Fores Macko Johnston, Cory B. Chartrand, Turlock, for Cross-complainant, Cross-defendant, and Respondent.

Thompson Welch Soroko & Gilbert, Darin T. Judd, San Rafael, for Cross-defendants and Respondents.

SMITH, J.

Little Rock Ranch, LLC, the defendant in this matter, bought 677 acres of land in 2012, for the purpose of developing a walnut orchard. The plaintiffs, the Johnson family, own a 210-acre property adjacent to, and to the south of, the property acquired by Little Rock Ranch. The Johnsons filed the instant lawsuit in 2014, alleging that Little Rock Ranch, which had proceeded to develop and plant an irrigated walnut orchard, was trespassing on 3.44 acres of the Johnsons' property. The Johnsons alleged Little Rock Ranch's walnut orchard encroached on their property's northern edge, specifically on a 3.44-acre strip adjoining Little Rock Ranch's property. The Johnsons alleged that Little Rock Ranch had excavated a hillside, leveled land, planted walnut trees, and laid irrigation and sprinkler systems on the disputed strip. The Johnsons sought injunctive relief to end the encroachment and restore the hillside strip to its original condition, among other remedies.

After a bench trial, the trial court found Little Rock Ranch was trespassing by encroachment on the Johnsons' property. However, applying the defense of laches and the "relative hardship" doctrine, the court denied the injunctive relief sought by the Johnsons. The court fashioned an alternative equitable remedy: Little Rock Ranch was required to pay damages to the Johnsons and undertake corrective action to limit erosion of the now-excavated hillside, while the Johnsons were required to deed the strip of land at issue to Little Rock Ranch. In a parallel analysis, the trial court found the trespass by Little Rock Ranch was permanent such that the appropriate measure of damages was "diminution in value" damages, rather than other alternative measures. The Johnsons challenge the trial court's ruling in multiple respects. We affirm.

FACTS AND PROCEDURAL BACKGROUND

This case is about a dispute over the boundary between two adjoining parcels of land in Waterford, in the vicinity of Highway 132 and Tim Bell Road, that ripened into a lawsuit following the sale, in February or March 2012, of one of the parcels. The parcels of land are in a north-south configuration; the northern parcel is accessed from Tim Bell Road, while the southern parcel is accessible from Highway 132. The northern parcel is 677 acres, and the southern parcel is 210 acres. A relatively straight barbed-wire fence, which has existed for over half a century at least (possibly even over a century), physically separates the two parcels. However, the actual property line lies about 50 feet to the north of the fence, such that the fence in fact cuts across a northern segment of the southern parcel. The strip of land between the fence and the actual property line to the north constitutes 3.44 acres, effectively sandwiched between the far larger parcels on either side.¹ The northern parcel was sold in 2012 to Little Rock Ranch, LLC (Little Rock Ranch or Little Rock). Prior to the sale, both parcels were owned, for decades, by members of the same extended family.

Prior to its sale in 2012, the northern parcel had been owned by Albert and Betty Roen since 1974. At an earlier point, the northern parcel was owned by Albert Roen's grandfather, who also owned the southern parcel. The southern parcel eventually came to be held, in the 1960s, by the Johnson family, specifically LaVerne Johnson, who was a first cousin of Albert Roen. LaVerne Johnson placed her land, i.e., the southern parcel, in a family trust in 1992. The Johnson family—specifically, three of LaVerne Johnson's children (Roger Johnson, Ellen Ratzlaff, and Gary Johnson) and the Johnson Family 1992 Trust—initiated the instant lawsuit (we will refer to the Johnson plaintiffs collectively as the Johnson family or the Johnsons). Two of the Johnson plaintiffs, namely Roger Johnson and Gary Johnson, testified at the trial in this matter.

For the many decades that Albert and Betty Roen owned the northern parcel, they used the land mostly for grazing cattle; they had also occasionally farmed grain on it. As for the southern parcel, the Johnsons used it for dry grain farming or cattle grazing. The Johnsons also leased their entire parcel to the Roens at times; the Roens would use the Johnson property for cattle grazing, much as they used their own land. Albert Roen testified that, regardless of whether he was leasing the Johnsons' parcel, he always had access to and used all the land north of the barbed-wire fence for his cattle. Betty Roen testified that she "knew the fences were not on the [property] line," but did not "per se" know the Roens were using the Johnsons' land in grazing their cattle up to the barbed-wire fence.

The Johnsons eventually leased, in 1997, their parcel to an almond farmer, who planted an almond orchard on the land south of the barbed-wire fence. The strip of land between the fence and the property line to the north remained an unirrigated and unfarmed strip. The land in the strip was sloping; the fence ran along the crest and the land sloped down towards the property line to the north. A dirt road serving the almond orchard ran along the south side of the fence, on the Johnsons' property. The almond farmer had a 20-year lease on the Johnson parcel, and had the option to renew the lease for an additional five years. The Johnsons only occasionally visited their land parcel; they did not use the strip north of the barbed-wire fence for any purpose other than shooting squirrels or rodents on a few occasions.

The Johnsons were aware the Roens had made efforts to sell their parcel over the years; they were aware the property was for sale before Little Rock Ranch bought it. In fact, some 18 months before the Roens finally sold their parcel in 2012, LaVerne Johnson had called Albert Roen and told him the fence ostensibly separating their parcels did not properly align with the property line. Albert Roen told LaVerne Johnson to commission a survey and to move the fence if and as required.

Albert Roen did not hear back from any of the Johnsons in this regard. Albert Roen did not mention the phone call from LaVerne Johnson when he subsequently sold his property to Little Rock Ranch; he said it "slipped [his] mind." The Johnsons, for their part, did not do anything about moving the fence.

The events leading to the sale of the Roen property to Little Rock Ranch took place in the fall of 2011, when the Roens ran into a local real estate agent named Jim Booth, whom they had known for approximately 50 years. Albert Roen told Booth that his property on Tim Bell Road was in escrow but was in danger of falling out of escrow. Booth subsequently contacted Roen and determined the property had fallen out of escrow. Booth eventually found a buyer for the Roen property. The buyer, Little Rock Ranch, was represented by its principal, Raymond Brian Greer.

Booth had passed away by the time of trial; however, his deposition testimony was admitted at trial; Greer testified at trial. In connection with Little Rock's purchase of the Roen property, Booth went to see the property; he met up with Albert Roen there. As Albert Roen and Booth looked out over the property from a knoll, a canal as well as the barbed-wire fence could be seen crossing the property. Booth asked Albert Roen whether the canal marked the property line; Albert Roen answered the fence marked the property line. Booth in turn told Greer that the fence marked the property's southern boundary (both Booth and Greer testified to this effect). Booth testified he informed Greer that the fence marked the property's boundary because that is what Albert Roen had confirmed to Booth. Booth further testified that Albert Roen never told Booth he was using a part of his neighbors' property. Albert and Betty Roen both testified at trial; their respective testimony differed in various respects from Booth's testimony.

Greer began the process of purchasing the Roen property for Little Rock Ranch in late 2011. During the process, various documents were generated. Booth ended up representing both sides to the transaction, i.e., the Roens as the sellers, and Little Rock Ranch (via Greer) as the buyer. The Roens provided sellers' disclosures, including a sellers' vacant land questionnaire, which was completed and signed by the Roens under penalty of perjury. One of the questions on the questionnaire was whether the sellers were using any neighboring property; the Roens answered this question in the negative. At trial, the Roens testified they answered these questions in the negative at Booth's direction; however, in his deposition Booth denied directing the Roens to provide false information in the questionnaire. Greer, for his part, could not recall whether he saw this document prior to close of escrow on the property, although Booth maintained he provided it to Greer upon its completion by the Roens.

Another document generated for purposes of the transaction was a preliminary title report. The report noted that "the fence line encroaches onto adjoining land in multiple areas," but did not specify the extent of divergence between the fence lines and property lines. The preliminary title report referenced a...