California Court of Appeal Feb 13, 2014 No. B239275Unpublished
Filed 2/13/14 Taylor v. Ivie CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THRIS VAN TAYLOR, B239275
Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC408629) v.
RICKEY IVIE et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los Angeles County, Mel Red Recana and Daniel J. Buckley, Judges. Affirmed. Thris Van Taylor, in pro. per.; Law Offices of Raven C. Viltz and Raven C. Viltz for Plaintiff and Appellant. Richardson, Fair & Cohen and Manuel Dominguez for Defendant and Respondent Rickey Ivie. LeClairRyan, Gary P. Simonian, Robert G. Harrison and Charles H. Horn for Defendant and Respondent Guy Stivers. Ivie, McNeill & Wyatt and Wendy Y. Wu for Defendant and Respondent
W. Keith Wyatt.
_______________________________________
A backyard fence has spawned a series of lawsuits between next door neighbors
Thris Van Taylor and Rickey Ivie (Ivie). This case arises from a court-ordered
inspection of the fence in a prior action. Van Taylor alleges that Ivie and Ivie’s law
partner, W. Keith Wyatt, assaulted him during the inspection and that Ivie’s arborist,
Guy Stivers, invaded his privacy by photographing the inside of Van Taylor’s garage
and his enclosed backyard.
The trial court ordered a directed verdict against Van Taylor’s counts for
The Ivies filed a cross-complaint against Van Taylor in April 2002 alleging that
they and their predecessors have used and maintained the thin strip of Van Taylor’s land
north of the fence openly, continuously, exclusively and adversely for many years.
They alleged counts for (1) an equitable easement and (2) a prescriptive easement.
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The trial court (Hon. Malcolm Mackey) bifurcated the trial and heard the
equitable issues first, without a jury. The court entered a judgment in March 2003
declaring the fence a party wall and granting the Ivies an easement to use and maintain
the north side of the fence and the thin strip of Van Taylor’s land north of the fence.
The judgment also declared the pear tree to be owned in common by Van Taylor and the
Ivies as coterminous owners. The court found in favor of the Ivies on Van Taylor’s
counts for nuisance, quiet title and an injunction, and found in favor of the Ivies on their
count for an equitable easement. The court concluded that the other counts were moot.
Van Taylor appealed the judgment.
3. Action Commenced by the Ivies
The Ivies filed a complaint against Van Taylor in June 2004 (Super. Ct.
L.A. County, No. BC317765) and filed a first amended complaint in October 2004 and
a second amended complaint in August 2006. They alleged in their second amended
complaint that Van Taylor poisoned the pear tree and other plants north of the fence in
or about November 2003. They also alleged that he harassed them by complaining to
local government agencies about a barking dog and electrical equipment on the Ivies’
property and by threatening to file another lawsuit. The Ivies alleged counts for
(1) trespass; (2) negligent destruction of personal property; (3) intentional destruction of
personal property; (4) negligent infliction of emotional distress; (5) intentional infliction
of emotional distress; (6) assault; and (7) invasion of privacy.
Van Taylor filed a cross-complaint against the Ivies in October 2004 and filed
a first amended cross-complaint in January 2006. Van Taylor alleged that the Ivies
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attached a wooden lattice to the fence in March 2003 and that the pear tree, shrubs and
other items encroached on his property, causing damage and interfering with the use and
enjoyment of his property. Van Taylor also alleged that the Ivies had caused their
agents to enter his enclosed yard on several occasions in 2005 and that Rickey Ivie
verbally threatened him from the public sidewalk in August 2005. Van Taylor alleged
counts for (1) intentional infliction of emotional distress; (2) assault; (3) trespass;
(4) negligent trespass; (5) nuisance; and (6) an injunction.
4. Reversal in Part and Affirmance in Part of the March 2003 Judgment
On appeal from the March 2003 judgment declaring the fence a party wall and
granting an easement in favor of the Ivies, we concluded as a matter of law based on
undisputed facts that the fence was not a party wall. We concluded that the trial court’s
declaration of an easement in favor of the Ivies, its decision in favor of the Ivies on
Van Taylor’s counts for nuisance, quiet title, and an injunction, and its determination
that the other counts were moot all were based on the erroneous finding that the fence
was a party wall. We therefore reversed the judgment in its entirety with the sole
exception of the denial of relief on Van Taylor’s count for intentional infliction of
emotional distress, which we affirmed. (Van Taylor v. Ivie (May 23, 2005, B167277)
[nonpub. opn.] pp. 13-14, 17, 19.) We directed the trial court to conduct further
proceedings consistent with our opinion. (Id. at p. 19.)
5. Rickey Ivie’s Application for an Injunction to Stop Harassment
Rickey Ivie filed an application for an injunction against Van Taylor to stop
harassment on September 7, 2005 (Super. Ct. L.A. County, No. BS098998). He alleged
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that Van Taylor had harassed him and his family members by shouting profanities,
verbally threatening him and peering over the fence to photograph guests in the Ivies’
living room. The court granted the application and issued a restraining order to stop
harassment on October 25, 2005. The court also consolidated case No. BS098998 with
case No. BC317765.
6. Consolidation of Cases
The Ivies moved to consolidate case No. BC268576 with the two previously
consolidated cases (Nos. BC317765 & BS098998). The trial court granted the motion
and ordered the three cases consolidated on January 12, 2006.1
7. March 2007 Site Inspection and Subsequent Order
The trial court granted Van Taylor’s ex parte application to compel an inspection
of the Ivies’ property on February 1, 2007, and ordered the inspection to take place on
March 1, 2007. Van Taylor and his counsel, Ivie and his counsel, and the parties’
expert witnesses were present at the inspection. During the inspection, Stivers
photographed the inside of Van Taylor’s garage through the open garage door and also
photographed both Van Taylor’s and Ivie’s property. Stivers used a small automatic
camera with a zoom lense. He stood on a footstool on the north side of the fence and,
over the fence, photographed Van Taylor in his backyard on one knee with a camera in
his hand together with his arborist. Other photographs apparently show plumbers on
Van Taylor’s property during the inspection.
1 We judicially notice the minute order filed on January 12, 2006, granting the motion to consolidate the three cases. (Evid. Code, § 452, subd. (d).)
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Van Taylor was kneeling close to the north side of the fence attempting to
remove a leaf that was resting on the roots of the pear tree when, according to
Van Taylor, Wyatt stated to him in a very hostile tone of voice, “If you touch that block
wall fence, you are going to get hurt.” According to Van Taylor, Ivie then repeated
essentially the same statement to him, also in a hostile tone of voice, and the two men
rapidly approached him. Van Taylor stood to his feet and responded, “Fuck you. . . .
This is my fence. I will touch it any time I get ready,” or words to that effect.
According to Van Taylor, the two men approached to within three feet of him and were
standing over him as he stood up. Van Taylor and his attorney, John Morning, then
stated that Wyatt and Ivie should direct their comments to Morning. Morning stood
between Van Taylor and the two men, who stepped away after a short time.
According to Wyatt, Van Taylor was digging with what appeared to be a pen
when Wyatt stated to Van Taylor that he was not supposed to be digging and that he
should leave any digging to the experts. Wyatt maintains that no one said that
Van Taylor was going to get hurt, but someone stated that Van Taylor should be careful
because if he got hurt there would be another lawsuit.
Van Taylor moved to compel compliance with the inspection order and for
monetary sanctions. He argued that Ivie and Wyatt had prevented him from completing
his inspection and threatened him with physical harm. Both sides filed declarations
regarding the events of March 1, 2007. The trial court granted the motion in an order
filed on August 8, 2007, stating in the order, in relevant part, “The Court finds that
Van Taylor and his experts were intimidated and impeded by the presence of Ivie and
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his counsel.” The court ordered the Ivies to allow Van Taylor to complete his
inspection and awarded Van Taylor $1,700 in sanctions.
8. Trial and Judgment in the Consolidated Cases and Appeal
A jury trial in the consolidated cases commenced in October 2007. Van Taylor
moved for leave to amend his complaint to add a count for assault arising from the
incident during the property inspection on March 1, 2007. The trial court tentatively
agreed to allow the amendment and continue the trial for a few days. Rickey Ivie stated,
“Your honor, also, this was a bilateral, mutual situation. I would then move to be
allowed to file a cross-complaint for assault . . . arising out of this incident and to seek
counsel to represent me on that claim.” The court ultimately decided to proceed with
the trial without any assault count.
On cross-examination of Van Taylor, the Ivies’ counsel displayed a photograph
of the inside of Van Taylor’s garage that was taken during the property inspection on
March 1, 2007. The jury returned a special verdict finding in favor of the Ivies on
Van Taylor’s counts for trespass and nuisance. On January 22, 2008, the court ordered
the entry of judgment in favor of the Ivies on those counts and judgment in favor of
Van Taylor on his count for quiet title and the Ivies’ counts for equitable and
prescriptive easements, based on the prior summary adjudication of the easement
counts. The court bifurcated Van Taylor’s count for a permanent injunction and entered
a judgment on June 17, 2010, awarding Van Taylor a permanent injunction against the
Ivies.
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On appeal, we concluded that the summary adjudication of the easement counts
in favor of Van Taylor was error, that Van Taylor had not established a right to quiet
title, that the dismissal of his counts for assault and intentional infliction of emotional
distress based on collateral estoppel was error, that the jury instructions and special
verdict questions on trespass and nuisance were prejudicially erroneous, and that
Van Taylor had failed to establish any basis for a permanent injunction. We therefore
reversed the judgment with directions and remanded the matter for a retrial.
(Van Taylor v. Ivie (Nov. 19, 2012, Nos. B206761, B225934) [nonpub. opn.]
pp. 21-35.)
9. Van Taylor’s Complaint in the Present Action
Van Taylor commenced the present action by filing a complaint in February
2009. He filed a first amended complaint in November 2009 against Ivie, Wyatt, and
Stivers. Van Taylor alleges that during the property inspection on March 1, 2007, Ivie
and Wyatt threatened to physically harm him if he touched the fence. He also alleges
that the photographing of his garage and his enclosed backyard constituted an invasion
of privacy. Van Taylor alleges counts for (1) assault, against Ivie and Wyatt;
(2) intentional infliction of emotional distress, against all defendants; (3) negligent
infliction of emotional distress, against all defendants; and (4) invasion of privacy,
against Ivie and Stivers.
The trial judge originally assigned to this case, Judge Mel Red Recana, was the
same judge who had presided in the trial in the consolidated actions. Judge Recana
recused himself in this case, stating in a minute order filed on May 8, 2009:
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“Given that the allegations in the BC408629 Complaint are so intertwined with
the facts in BC268576 involving the same parties, these two cases should be related
under C.R.C. 3.300[.] However, in the BC268576 jury trial, this Court considered the
credibility of the witnesses and the evidence that will be proffered in BC408629. This
Court can no longer be fair and impartial, therefore this Court recuses itself from
hearing BC408629.”
11. Van Taylor’s Consolidation Motion
Van Taylor moved to consolidate the present action with the three previously
consolidated cases (Nos. BC268576, BC317765 & BS098998). He argued that this
action and the other consolidated cases should all be assigned to Judge Recana, despite
the judge’s recusal from this action. The trial court denied the motion in October 2009.2
12. Trial and Judgments in the Present Action
A jury trial in the present action commenced in November 2011. Stivers moved
for a directed verdict on the three counts alleged against him after both sides had rested.
He argued that his conduct of photographing Van Taylor’s property while standing
outside the property was protected by the litigation privilege. The trial court concluded
that the photographs were taken in furtherance of the prior litigation in the consolidated
cases and were admitted in evidence in that litigation. It stated that the conduct of
photographing Van Taylor’s property was not illegal, that the images showed no more
2 The register of actions shows that the trial court denied the consolidation motion. No minute order or reporter’s transcript of the hearing appears in the appellate record.
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than would be visible to a person standing outside the property, and that the litigation
privilege applied.
The trial court also concluded that the photographing of Van Taylor’s property
did not constitute an invasion of privacy as a matter of law and that there was no
evidence that the defendants’ conduct apart from the alleged assault caused serious or
severe emotional distress as necessary to support the counts for intentional and
negligent infliction of emotional distress. The court therefore ordered a directed verdict
in favor of all three defendants on the counts for invasion of privacy and intentional and
negligent infliction of emotional distress.
Van Taylor moved for a directed verdict on his assault count. He argued that the
ruling by the trial court in the consolidated cases on August 8, 2007, that Van Taylor
and his experts were intimidated and impeded by Ivie and his counsel was collateral
estoppel and conclusively established an assault. The court disagreed and denied the
motion.
During examination by Van Taylor, Ivie testified that he approached to within
10 feet of Van Taylor at the site inspection but did not speak to him from that distance,
and that he did not assault Van Taylor and Van Taylor did not assault him. The trial
court read to the jury Ivie’s statement during the trial in the consolidated cases, “Your
honor, also, this was a bilateral, mutual situation.” Ivie testified that he told the truth
when he made that statement. Van Taylor then asked, “Do you know how a bilateral
assault could occur if you never spoke to me or you never approached me?”
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Ivie’s counsel objected, and the trial court stated, “Let’s be very clear,
Mr. Van Taylor. The word ‘assault’ was not in that statement. I let you bring that
evidence in.” The court also stated, “I’m not in any way suggesting to anyone that that
refers to an assault at all.”
Van Taylor then asked, “The bilateral situation that you had with
Mr. Van Taylor, were you not trying to get the court to allow you time to file an
amended complaint and to obtain counsel—an attorney to defend you in my assault; is
that correct?” The trial court sustained an objection to the question based on Evidence
Code section 352.
The jury returned a special verdict answering “No” to the following questions,
designated as questions Nos. 1 and 2, respectively, as to both Ivie and Wyatt:
“Did any of the following persons act, intending to cause a harmful contact with
Thris Van Taylor or intending to place Thris Van Taylor in fear of a harmful contact?”
“Did either of the following persons threaten to touch Thris Van Taylor in
a harmful manner?”
The trial court entered a judgment on November 14, 2011, on the directed verdict
in favor of Stivers and entered a separate judgment on that same date on the directed
verdict and special verdict in favor of Ivie and Wyatt. The judgments award Van Taylor
no relief on his complaint.
Van Taylor timely appealed the judgments.
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CONTENTIONS
Van Taylor contends (1) the denial of his motion to consolidate was prejudicial
error; (2) the trial court erred by ordering a directed verdict on his counts for invasion of
privacy and intentional and negligent infliction of emotional distress; (3) the court erred
by denying his motion for a directed verdict on the assault count; (4) the evidence does
not support the defense verdict on the assault count; and (5) a question on the special
verdict form erroneously required an intent in order to cause harmful contact to
establish an assault.
DISCUSSION
1. The Trial Court Properly Denied the Consolidation Motion
allegations” are at stake in the two proceedings, not whether the ultimate issues or
dispositions are the same. [Citation.]’ [Citation.]” (Hernandez, supra, 46 Cal.4th at
pp. 511-512.) An issue was “actually litigated” for purposes of collateral estoppel only
if it was properly raised, submitted for determination, and decided in the prior
proceeding. (Id. at p. 511.)
A civil assault is an act that is intended to cause harmful or offensive contact to
a person, or intended to cause an apprehension of such immediate contact, and that
actually causes an apprehension of such immediate contact. (Lowry v. Standard Oil Co.
(1944) 63 Cal.App.2d 1, 6-7; see 1 Dobbs et al., Law of Torts (2d ed. 2011) § 38, p. 97;
1 Harper et al., Torts (3d ed. rev. 2006) §§ 3.4, 3.5, pp. 320-326; Rest.2d Torts, § 21.)
This common law definition of the tort of assault differs somewhat from the definition
of a criminal assault.3 Van Taylor has not shown that these issues were actually
litigated and necessarily decided in ruling on the motion to compel compliance with the
3 Penal Code section 240 defines a criminal assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Thus, a civil assault emphasizes and requires the plaintiff’s awareness of the threat, while a criminal assault emphasizes and requires an intent to injure. (See 1 Dobbs et al., Law of Torts, supra, § 40, p. 101 [“Assault may be a crime as well as a tort, but criminal law definitions of assault sometimes emphasize the intent to injure . . . so criminal assault cases are not necessarily sound authority in the tort setting”].) We decline to follow Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604, to the extent that it held based on Penal Code section 240 that a civil assault requires an intent to injure and that an intent to cause an apprehension of immediate injury is insufficient.
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inspection order. That motion was brought under Code of Civil Procedure
section 2031.320, which provides for an order compelling compliance with an
inspection demand in the event that the responding party fails to allow an inspection in
accordance with that party’s statement of compliance. (Id., subd. (a).) The court ruling
on the motion necessarily decided that the Ivies failed to allow an inspection, but did not
necessarily decide whether Ivie and Wyatt intended to cause harmful or offensive
contact or an apprehension of such immediate contact. Van Taylor has not shown that
those issues were actually litigated or necessarily decided in ruling on the motion.
Collateral estoppel therefore is inapplicable, and the trial court properly denied Van
Taylor’s motion for a directed verdict.
Van Taylor also argues that he was entitled to a directed verdict because Ivie
admitted an assault when he stated during the trial in the consolidated cases that “this
was a mutual, bilateral situation.” In our view, that statement suggested that the
inspection was marked by mutual hostility, but the statement was not a binding
admission or conclusive evidence of an assault. We also reject Van Taylor’s
perfunctory arguments that the trial court erred by stating, “I’m not in any way
suggesting to anyone that that refers to an assault at all,” and by sustaining an objection
to his question whether Ivie made the statement in connection with an assault claim.
4. The Evidence Supports the Verdict on the Assault Count
Van Taylor contends the evidence does not support the verdict in favor of Ivie
and Wyatt on the assault count. We review findings by the trier of fact under the
substantial evidence standard. Substantial evidence is evidence that a rational trier of
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fact could find to be reasonable, credible and of solid value. We view the evidence in
the light most favorable to the judgment and accept as true all evidence tending to
support the judgment, including all facts that reasonably can be deduced from the
evidence. We must affirm the judgment if an examination of the entire record viewed in
this light discloses substantial evidence to support the judgment. (Crawford v.
Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Mealy v. B-Mobile, Inc. (2011)
195 Cal.App.4th 1218, 1223.)
Van Taylor cites evidence purportedly showing that Ivie and Wyatt “conspired to
assault, bully and inflict emotional distress on appellant.” He argues that he “put on
sufficient evidence of the assault . . . for a direct[ed] verdict and sufficient evidence for
the jury to find an assault on appellant.” But he fails to cite and discuss the evidence
supporting the verdict and therefore fails to show that the evidence was insufficient to
support the verdict and abandons his claim of error. (Bell v. H.F. Cox, Inc. (2012)
209 Cal.App.4th 62, 80; Provost v. Regents of University of California (2011)
201 Cal.App.4th 1289, 1304-1305.)
Moreover, our review of the record discloses substantial evidence supporting the
verdict, including Wyatt’s testimony that he and Ivie never verbally threatened to harm
Van Taylor or approached him in a threatening manner, and similar testimony by Ivie.
5. Van Taylor Has Shown No Error in the Special Verdict Form
The first question on the special verdict form was, “Did any of the following
persons act, intending to cause a harmful contact with Thris Van Taylor or intending to
place Thris Van Taylor in fear of a harmful contact?” This was followed by blank lines
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for the jury to indicate “Yes” or “No” with respect to Ivie and Wyatt. The jury
answered “No” as to each defendant.
Van Taylor argues, “The special verdict mislead [sic] the jury by using the term
‘intending to cause a harmful contact.’ ” We cannot understand this cryptic argument.
An appellant must support each contention with reasoned argument and citation to legal
authority. Van Taylor provides neither and therefore abandons his claim of error.
(Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132; Badie v.
Bank of America (1998) 67 Cal.App.4th 779, 784-785.) To the extent that he complains
that the special verdict question misstated the law because it required an intent to cause
harmful contact, we disagree. The question was disjunctive and required either an
intent to cause harmful contact or an intent to create fear of harmful contact. We
conclude that Van Taylor has shown no error.4
4 Van Taylor did not object to the special verdict form in the trial court and stipulated to its use. We need not decide whether he waived any claim of error as to the form the verdict (see Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457, fn. 2; Lynch v. Birdwell (1955) 44 Cal.2d 839, 851) because we conclude that Van Taylor has shown no error.
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DISPOSITION
The judgments are affirmed. The defendants are entitled to recover their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
21
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defense judgments, holding that the trial court did not abuse its discretion in denying consolidation, properly granted directed verdicts on invasion of privacy and emotional distress claims, and correctly denied a directed verdict on the assault claim.
Issues
Did the trial court abuse its discretion by denying the motion to consolidate the present action with prior cases?
Did the trial court err in granting a directed verdict on the invasion of privacy and emotional distress claims?
Did the trial court err in denying a directed verdict on the assault claim based on collateral estoppel?
Was the evidence sufficient to support the jury's defense verdict on the assault count?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude that Van Taylor has shown no error and therefore will affirm the defense judgments.”
“The factual and legal issues concerning the alleged assault and invasion of privacy on the date of the inspection are separate and distinct from the factual and legal issues presented in the consolidated cases.”
“We conclude as a matter of law that Van Taylor had no reasonable expectation of privacy with respect to the contents of his garage depicted in the photographs, and that the photographs did not constitute a serious invasion of any privacy interest.”