Filed 10/3/16; pub. & mod. order 10/27/16 (see end of opn.)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                            DIVISION THREE


NELLIE GAIL RANCH OWNERS
ASSOCIATION,
                                                              G051244
     Plaintiff, Cross-Defendant and
     Respondent,                                              (Super. Ct. No. 30-2013-00653834)

        v.                                                    OPINION

DONALD G. McMULLIN et al.,

     Defendants, Cross-complainants and
     Appellants.



                 Appeal from a judgment of the Superior Court of Orange County, David R.
Chaffee, Judge. Affirmed.
                 Everett L. Skillman for Defendants, Cross-complainants and Appellants.
                 Neuland, Whitney & Michael, Frederick T. Whitney and Jane A. Gaba for
Plaintiff, Cross-defendants and Respondent.
                                      *                 *           *
              Plaintiff, cross-defendant, and respondent Nellie Gail Ranch Owners
Association (Nellie Gail) sued defendants, cross-complainants, and appellants Donald G.
McMullin and Cynthia Jensen-McMullin (collectively, McMullins)1 to quiet title and
compel the McMullins to remove a retaining wall and other improvements they built
without Nellie Gail’s approval on more than 6,000 square feet of common area Nellie
Gail owned adjacent to the McMullins’ property. Following a bench trial, the trial court
entered judgment for Nellie Gail and awarded Nellie Gail its attorney fees. The
McMullins appeal, claiming the trial court should have quieted title in them or at least
granted them an equitable easement over the disputed property. We disagree and affirm
the trial court’s judgment.
              First, the McMullins contend Nellie Gail was equitably estopped to bring
this quiet title action because it told the McMullins it would not pursue construction of
the wall as a violation of the governing declaration of covenants, conditions, and
restrictions (CC&R’s) and instructed the McMullins to work with Nellie Gail’s architect
to develop and implement a landscaping, irrigation, and drainage plan to help screen the
wall from view. The McMullins, however, forfeited this claim by failing to assert it at
trial. Moreover, equitable estoppel requires the party asserting it to be ignorant of the
true facts and to justifiably rely on the conduct or statements of another who has
knowledge of those facts. The evidence supports the conclusion Nellie Gail did not know
all of the facts and it made its statements after the McMullins knowingly constructed the
retaining wall and other improvements on Nellie Gail’s property without obtaining the
required written approvals from Nellie Gail. The McMullins therefore could not
justifiably rely on Nellie Gail’s statements even if they did not forfeit the claim.



       1
            We also refer to the McMullins individually by their first names to avoid
confusion. No disrespect is intended.


                                              2
              Second, the McMullins contend the trial court erred when it rejected their
adverse possession claim because the McMullins failed to pay property taxes on the
disputed property. The McMullins contend the disputed property had no value, and
therefore they were excused from establishing that essential element. The McMullins
were excused from paying property taxes only if they established no property taxes were
levied or assessed on the disputed property during the relevant five-year period.
Substantial evidence, however, supports the conclusion the disputed property had a value
and property taxes were levied against it, but were assessed to the individual property
owners in the community consistent with the law concerning property taxes on common
areas owned by homeowners associations.
              Next, the McMullins contend the trial court erred in granting Nellie Gail a
mandatory injunction authorizing it to remove the retaining wall and other improvements
at the McMullins’ expense, rather than requiring Nellie Gail to accept monetary damages
as compensation for an equitable easement that would allow the McMullins to maintain
the wall and improvements. A property owner generally is entitled to a mandatory
injunction requiring an adjacent owner to remove an encroachment, but a trial court has
discretion to deny an injunction and grant an equitable easement if the encroacher acted
innocently and the balancing of the hardships greatly favor the encroacher. Substantial
evidence supports the trial court’s conclusion the McMullins were not innocent
encroachers and therefore the court properly granted Nellie Gail an injunction.
              Finally, the McMullins challenge the trial court’s award of attorney fees to
Nellie Gail, but we lack jurisdiction to review that award because the court made it after
entry of judgment and the McMullins neither identified the award in their notice of
appeal nor filed a separate notice of appeal. We therefore dismiss that portion of the
appeal challenging the fees award.




                                             3
                                              I

                            FACTS AND PROCEDURAL HISTORY

              Nellie Gail Ranch is a 1,407-unit residential planned development on
approximately 1,350 acres in Laguna Hills, California. Nellie Gail is the homeowners
association the developer formed to own the common areas and administer the
community’s CC&R’s. The community has horse trails, an equestrian center, parks,
tennis courts, and other common areas Nellie Gail manages.
              In December 2000, the McMullins purchased a home in Nellie Gail Ranch
located at the end of a cul-de-sac on a hilltop with canyon views. The back of their
property slopes down towards and abuts lot 274, which is an approximately 15-acre
canyon lot owned by Nellie Gail and dedicated as open space. One of the community’s
horse trails runs across lot 274 directly behind the McMullins’ property. The back left
corner of the McMullins’ property also touches lot 273, which is an approximately 5-acre
lot owned by Nellie Gail that is home to the community’s largest park.
              The McMullins’ backyard has three retaining walls used to provide level,
useable space because of the sloping nature of their property. There is a short three-foot
retaining wall that separates their house and patio from their grass area. A second, nearly
six-foot retaining wall separates their house, patio and grass area from a lower area where
they have a swimming pool and deck. The third retaining wall is a six-foot wall that
separates all of these areas from the slope that leads to lots 273 and 274. Beyond this
final retaining wall is a wrought iron fence that encircles the entire back portion of the
McMullins’ property. The area between the final retaining wall and the wrought iron
fence has a considerable slope.
              Nellie Gail’s CC&R’s and its Architectural Review Committee Guidelines
required all homeowners to obtain written approval from the Architectural Review
Committee (Review Committee) before constructing or making significant alterations to


                                              4
any improvements on their property. In January 2008, the McMullins applied to the
Review Committee to replaster their swimming pool, redo the pool deck, construct a bar
area near the pool, install a solar heater for the pool, replace the wrought iron fence with
an eight-foot retaining wall, backfill behind that new wall, install a large patio slab or
sports court and garden in the flat area created, and build a staircase from the pool area
down to the flat area behind the new retaining wall. The application included a site plan
Donald prepared showing the location of the proposed improvements, and depicting the
new retaining wall would be constructed in the same location as the existing wrought iron
fence. The plan identified the property lines between the McMullins’ property and their
neighbors on either side, but did not identify the rear property line between the
McMullins’ property and lot 274. The plan included two dashed lines that extended from
the existing six-foot retaining wall that surrounded the back yard to the side property
lines, but did not explain what those lines represented. Nellie Gail later discovered these
unlabeled, dashed lines showed the rear property line’s location.
              In February 2008, the Review Committee sent the McMullins’ a letter
denying their application and explaining how it failed to comply with the CC&R’s and
the committee’s guidelines. The letter also informed the McMullins that “a fully
dimensioned site plan showing property lines, easement areas, setbacks and fully defined
landscaping and drainage will be needed [for any future applications].”
              Two weeks later, Donald prepared and resubmitted an application with a
revised, more detailed site plan. That plan again represented the new retaining wall
would be constructed in the same location as the existing wrought iron fence, and also
identified the property lines between the McMullins’ property and their neighbors, but
not the property line between the McMullins’ property and Nellie Gail’s lot 274. The
plan also included the same dashed lines extending from the end of the existing, six-foot
retaining wall without explaining what those lines represented. In March 2008, the
Review Committee sent the McMullins a letter denying the revised application and

                                              5
explaining the reasons for the denial. This letter again notified the McMullins that any
future application must be accompanied by “a fully dimensioned site plan showing
property lines” and other necessary information “from a licensed Civil Engineer.” The
committee’s letter also suggested the McMullins submit a new application limited to just
the pool-related improvements if they wanted to get started on their project.
              The McMullins followed the Review Committee’s suggestion and
submitted a new application limited to the pool-related improvements only, which
included a staircase from the pool area down to the slope behind the existing six-foot
retaining wall. In April 2008, the Review Committee sent the McMullins a letter
approving this application subject to a few conditions, including one that prohibited the
McMullins from modifying the grade on the slope behind their existing retaining wall.
              Almost a year later, Cynthia went to the Review Committee’s office to
submit a new application and plans for the retaining wall and sports court. She spoke
with Sandi Erickson, the Review Committee’s community relations person. Cynthia
testified Erickson said the plans were not necessary because the McMullins’ application
already was approved. Cynthia asked Erickson to double check her information, and
after looking on Nellie Gail’s computer system, Erickson again told Cynthia she did not
need to submit the plans because they were approved. Erickson stopped working for
Nellie Gail a few weeks after this conversation, and she did not testify at trial. Cynthia
did not obtain written confirmation of this conversation or the Review Committee’s
alleged approval for the retaining wall.
              In May 2009, the McMullins obtained a building permit for the retaining
wall from the City of Laguna Hills and began construction. None of the parties could
explain how the McMullins obtained this permit when they did not have Nellie Gail’s
written approval for construction of the wall. The appellate record only includes a copy
of the permit; it does not include the application the McMullins submitted to the city.



                                             6
              Jeff Hinkle began working as Nellie Gail’s Facilities and Compliance
Manager in June 2009. That same month, he received a phone call from a resident
informing him construction trucks were on the horse trail near the McMullins’ property.
Hinkle spotted a cement truck and a pickup truck on the trail directly behind the
McMullins’ property. After speaking with Nellie Gail’s general manager and reviewing
its computer files to confirm the McMullins had obtained an approval to perform work on
their property, Hinkle returned to the horse trail to speak with the McMullins’ contractor
and Cynthia. In confirming the McMullins had an approval, Hinkle did not look at the
plans or determine the type of work the McMullins were authorized to perform; he
simply confirmed they had obtained some approval. Hinkle informed the contractor and
Cynthia they needed a trail permit to have vehicles or equipment on the horse trail, and
the contractor returned to Nellie Gail’s office with Hinkle to obtain the permit. During
these visits to the trail near the McMullins’ property, Hinkle did not observe any
construction work in progress. The wall had not been constructed, and he did not see any
excavations for the wall footings.
              In August 2009, Hinkle was in the park near the McMullins’ property and
noticed they were building a wall at the back of the property. He returned to Nellie
Gail’s office to check on the nature of the improvements the McMullins were authorized
to construct. He discovered the McMullins’ approvals authorized work on their pool, the
installation of solar panels on the slope behind the existing retaining wall, and a staircase
from the pool down to the slope. He noticed one of the conditions for the approval
prohibited the McMullins from modifying the slope and the approval did not authorize a
new retaining wall. Hinkle then wrote the McMullins a letter directing them to
immediately stop all work and to contact Nellie Gail to discuss their project.
              At this point, the wall and related improvements essentially were completed
and the McMullins were waiting for the city to sign off on the project. The work that
remained was backfilling against the wall on the side facing lot 274, some minor finish

                                              7
grading, and completing the irrigation, drainage, and landscaping. Creation of the flat
surface behind the wall and the sports court were complete, and a wrought iron fence had
been installed on top of the new retaining wall.
              After receiving the cease and desist letter, the McMullins stopped work and
began discussions with Nellie Gail about what was necessary to complete the project.
Nellie Gail informed the McMullins their architect would inspect the wall and the
McMullins should submit an application and detailed plans to the Review Committee for
possible approval. The McMullins submitted the application and plans to the Review
Committee on September 30, 2009. As with all previous applications, Donald prepared
the site plan and failed to identify the location of the rear property line between the
McMullins’ property and Nellie Gail’s lot 274. The site plan again included the
unlabeled, dashed lines that extended from the original six-foot retaining wall that Nellie
Gail later learned was the rear property line.
              On October 15, 2009, the Review Committee sent the McMullins a letter
denying their application for the retaining wall as constructed. The letter explained why
the application was denied and what additional information the committee needed from
the McMullins before it would approve the wall, including a dimensioned site plan by a
licensed surveyor that depicted the easement for the trail and the wall. The McMullins
therefore hired a surveyor to conduct a survey and prepare a plan showing the
relationship between the horse trail and the retaining wall. Donald told the surveyor not
to include the rear property line on this plan. The McMullins submitted this plan to
Nellie Gail before the end of October.
              On November 10, 2009, Hinkle sent the McMullins an e-mail explaining
that many of the problems concerning the wall could have been avoided if the
McMullins’ plans had identified their rear property line. The e-mail also stated, “In any
case, the wall was built and is on [Nellie Gail’s] property. Let’s move forward on how
we can make this an amicable and reasonable resolution.” A week later, Nellie Gail’s

                                                 8
board of directors considered in closed session how to address the issues surrounding the
McMullins’ wall. The board voted and “agree[d] not to pursue the installation of the
McMullin’s wall as a violation, and [to] direct the [Review Committee] to decide on
appropriate screening options.” On December 9, 2009, Nellie Gail sent the McMullins a
letter informing them of the board’s vote and instructing them to meet with Nellie Gail’s
architect to finalize a landscaping, irrigation, and drainage plan to help screen the wall.
              After receiving this letter, the McMullins met with Nellie Gail’s architect
and developed a landscaping, irrigation, and drainage plan for the areas on both sides of
the wall. In January 2010, the Review Committee approved this plan and the McMullins
implemented it at a cost of approximately $20,000. This expenditure was in addition to
the approximately $150,000 they already spent to construct the retaining wall, sports
court, and other improvements. Neither Nellie Gail nor the Review Committee, however,
ever approved any of these improvements other than the landscaping, irrigation, and
drainage relating to the screening for the wall.
              In July 2010, the city sent a letter to both the McMullins and Nellie Gail
explaining the wall was constructed entirely on Nellie Gail’s property and did not fully
comply with the city’s requirements regarding the wall’s height and the slope adjacent to
the wall. The city further informed the parties the wall could not remain in its current
condition—either Nellie Gail must grant its approval for the wall and the wall must be
brought into compliance with the city’s requirements, or the wall must be removed.
              Based on the city’s letter, Nellie Gail wrote the McMullins in
November 2010 to inform them the wall could not remain in its current, unapproved
condition and the two sides should try to resolve the situation. Nellie Gail’s letter
explained the McMullins never provided any plans that showed the location of the
property line between the McMullins’ property and Nellie Gail’s lot 274 despite the
Review Committee’s repeated requests. Nellie Gail therefore requested that the
McMullins obtain a professional survey showing all of the McMullins’ improvements in

                                              9
relation to the property line between the two properties, and that the parties engage in
alternative dispute resolution after the survey.
              When the McMullins did not immediately respond, Nellie Gail hired its
own surveyor to locate the property line. Nellie Gail’s surveyor completed his survey in
March 2011, and determined the original six-foot retaining wall was constructed on the
property line and the new retaining wall and improvements were built almost entirely on
Nellie Gail’s property. The area between the property line and the new retaining wall
totaled more than 6,100 square feet of lot 274 (hereinafter, Disputed Property) and
increased the total size of the McMullins lot from approximately 16,400 square feet to
more than 22,500 square feet. Contrary to the McMullins’ repeated representations in
their applications, Nellie Gail’s surveyor determined the retaining wall was built well
outside the location of the previous wrought iron fence and enclosed more than
2,000 square feet of lot 274 that were not enclosed by the previous fence. In
January 2012, the McMullins hired a surveyor to determine the relationship between the
property line and the retaining wall. Their surveyor confirmed the retaining wall
enclosed more than 6,100 square feet of Nellie Gail’s lot 274, and the parties stipulated at
trial there was no significant difference between these two surveys.2
              After receiving these surveys, the parties continued to explore possible
resolutions for the problem. In July 2012, Nellie Gail conducted a vote of its members on
whether to sell the Disputed Property to the McMullins based on an appraisal they
obtained. The members overwhelmingly voted not to sell the Disputed Property to the
McMullins. Of the 572 member who voted, only 142 voted in favor of the sale.


       2
               The only area of disagreement was whether the Disputed Property included
a few square feet of lot 273. Nellie Gail’s surveyor concluded it did not, but the
McMullins’ surveyor concluded it did. Whether the Disputed Property included a portion
of lot 273 is not significant to our analysis and the trial court nonetheless quieted title to
both lots in Nellie Gail’s name. We therefore refer to lot 274 only for ease of reference.


                                             10
              In June 2013, Nellie Gail sued the McMullins to quiet title to the Disputed
Property in its name, ask for an injunction requiring the McMullins to remove the
retaining wall and all other improvements from the Disputed Property, and request a
declaratory judgment declaring the parties’ rights and duties under the CC&R’s. The
McMullins answered and filed a cross-complaint against Nellie Gail seeking to quiet title
to the Disputed Property in their name and a declaratory judgment regarding their rights
and duties concerning the Disputed Property. They alleged they either acquired title to
the Disputed Property through adverse possession or a prescriptive, implied, or equitable
easement over the Disputed Property.
              Following a six-day bench trial, the trial court entered judgment for Nellie
Gail on all claims. The judgment declared the McMullins breached the CC&R’s by
failing to accurately depict their property lines on the plans they submitted to the Review
Committee, constructing the retaining wall and other improvements without the Review
Committee’s approval or the city’s permission, and constructing the retaining wall and
improvements on Nellie Gail’s property. The judgment further declared the McMullins
did not acquire title to the Disputed Property by adverse possession because they failed to
establish the essential elements of their claim, and the McMullins likewise did not
acquire a prescriptive or equitable easement because they failed to establish the requisite
elements. The court therefore quieted title to lot 274 and lot 273 in Nellie Gail and issued
a mandatory injunction authorizing Nellie Gail to do the following at the McMullins’
expense: (1) remove the sports court; (2) cut down and remove the retaining wall to the
existing grade in a manner that meets the city’s approval; and (3) “address the grade of
the ground on the entirety of Lot 274 and Lot 273 in order to restore the area to a gradual
open space slope and to restore the plantings on said Lot 274 and Lot 273 to native
California vegetation.” Neither side requested a statement of decision.
              Shortly after the trial court entered judgment, Nellie Gail filed a motion for
attorney fees and costs. The court granted that motion, awarding approximately

                                             11
$187,000 in attorney fees and $10,000 in costs. Following the trial court’s ruling
granting the fee motion, the McMullins filed their notice of appeal from the trial court’s
judgment. The trial court later entered an amended judgment adding the attorney fees
and costs to the judgment.

                                                II

                                          DISCUSSION

A.        We Infer the Trial Court Made All Necessary Findings Supported by Substantial
          Evidence Because the Parties Failed to Request a Statement of Decision
                “Upon a party’s timely and proper request, [Code of Civil Procedure]
section 632 requires a trial court to issue a statement of decision following ‘the trial of a
question of fact by the court.’ The statement must explain ‘the factual and legal basis for
[the court’s] decision as to each of the principal controverted issues at trial. . . .’”
(Acquired II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970
(Acquired II); see Code Civ. Proc., § 632.)3 If the parties fail to request a statement of
decision, the trial court is not required to provide one. (Ibid.)
                “A party’s failure to request a statement of decision when one is available
has two consequences. First, the party waives any objection to the trial court’s failure to
make all findings necessary to support its decision. Second, the appellate court applies
the doctrine of implied findings and presumes the trial court made all necessary findings
supported by substantial evidence. [Citations.] This doctrine ‘is a natural and logical
corollary to three fundamental principles of appellate review: (1) a judgment is presumed
correct; (2) all intendments and presumptions are indulged in favor of correctness; and
(3) the appellant bears the burden of providing an adequate record affirmatively proving
error.’” (Acquired II, supra, 213 Cal.App.4th at p. 970.)

          3
                All statutory references are to the Code of Civil Procedure unless otherwise
stated.


                                               12
               Here, it is undisputed the trial court conducted a six-day bench trial to
determine the parties’ rights, duties, and interests in the Disputed Property. Similarly, no
one disputes the parties did not request, and the court did not prepare, a statement of
decision explaining the factual and legal basis for the court’s decision. We therefore
infer the court made factual findings favorable to Nellie Gail on all issues necessary to
support the judgment, and we review those findings under the substantial evidence
standard. (Acquired II, supra, 213 Cal.App.4th at p. 970; Fladeboe v. American Isuzu
Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.) We more fully address the specific
standard of review applicable to each of the McMullins’ challenges in our discussion
below.
               The McMullins contend the doctrine of implied findings does not apply
because all relevant facts were undisputed, and therefore the trial court did not resolve
any factual issues in reaching its decision. Thus, the McMullins conclude they have
raised only legal issues subject to de novo review. We disagree. There are many
disputed factual issues underlying the court’s judgment. For example, the trial court had
to determine the extent of the parties’ knowledge about the location of the McMullins’
rear property line, whether the McMullins deliberately failed to identify their rear
property line on their submissions to Nellie Gail, and numerous other issues. Moreover,
we do not independently review factual issues unless the facts are undisputed and no
conflicting inferences can be drawn from the facts. (Montague v. AMN Healthcare, Inc.
(2014) 223 Cal.App.4th 1515, 1521; DiQuisto v. County of Santa Clara (2010)
181 Cal.App.4th 236, 270.) The McMullins failed to establish no conflicting inferences
could be drawn from the evidence presented at trial.

B.       The McMullins Forfeited Their Equitable Estoppel and Statute of Limitations
         Defenses by Failing to Assert Them at Trial
               The McMullins contend the trial court erred in quieting title to the Disputed
Property in Nellie Gail because two of their defenses defeated Nellie Gail’s quiet title

                                              13
claim as a matter of law. First, the McMullins contend equitable estoppel barred Nellie
Gail’s claim. Second, they contend section 318’s five-year limitations period bars Nellie
Gail’s claim. The McMullins forfeited these defenses by failing to assert them at trial.
              “As a general rule, theories not raised in the trial court cannot be asserted
for the first time on appeal; appealing parties must adhere to the theory (or theories) on
which their cases were tried. This rule is based on fairness—it would be unfair, both to
the trial court and the opposing litigants, to permit a change of theory on appeal.”
(Eisenberg et al., Cal. Practice Guide: Civil Appeal & Writs (The Rutter Group 2015)
¶ 8:229; p. 8-167.) “New theories of defense, just like new theories of liability, may not
be asserted for the first time on appeal.” (Bardis v. Oates (2004) 119 Cal.App.4th 1,
13-14, fn. 6.) “‘Appellate courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the trial court did not have an
opportunity to consider. . . . Bait and switch on appeal not only subjects the parties to
avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases
on theories that could have been raised earlier.’” (Brandwein v. Butler (2013)
218 Cal.App.4th 1485, 1519.)
              In their answer, the McMullins alleged boilerplate defenses based on
equitable estoppel and the statute of limitations. Similarly, in the joint list of
controverted issues the parties filed on the eve of trial, the McMullins identified these
defenses as two of their 19 controverted issues for trial. The McMullins, however,
thereafter abandoned those defenses by failing to raise either of them at trial.
              The trial brief the McMullins filed neither argued these defenses nor
identified them as issues for the trial court to decide. In his opening statement, the
McMullins’ trial counsel stated he would present evidence to show the McMullins were
entitled to maintain the retaining wall and other improvements on the Disputed Property
based on three theories—adverse possession, prescriptive easement, and equitable
easement. Counsel failed to mention equitable estoppel or the statute of limitations as a

                                              14
basis for the court to deny Nellie Gail’s quiet title claim. Similarly, in his closing
argument, counsel argued the court should quiet title in the McMullins or grant them an
exclusive easement over the Disputed Property based on adverse possession, prescriptive
easement, or equitable easement. At no time during trial did the McMullins assert that
Nellie Gail was equitably estopped to bring a quiet title claim or that the statute of
limitations barred Nellie Gail’s claim.
              The McMullins fail to cite anywhere in the trial record where they
mentioned the statute of limitations, and they cite just one page of the reporter’s
transcript where their counsel uttered the words “equitable estoppel” during closing
argument. This isolated utterance, however, is not sufficient to preserve the issue for
appeal because the McMullins’ counsel did not utter those words as part of an argument
that Nellie Gail was equitably estopped to assert a quiet title claim. Indeed, it appears as
though the McMullins’ counsel may have misspoke by mentioning equitable estoppel
because he uttered that phrase when urging the trial court to grant an equitable easement,
which, as explained below, is a separate doctrine that allows a landowner who
constructed an improvement on an adjacent owner’s property to defeat that owner’s
injunction request based on a balancing of the hardships or conveniences. (See, e.g.,
Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008-1009 (Tashakori).)
              Nonetheless, assuming the McMullins’ trial counsel meant to argue
equitable estoppel, substantial evidence supports the implied finding the McMullins
failed to establish the essential elements necessary for equitable estoppel. “‘“A valid
claim of equitable estoppel consists of the following elements: (a) a representation or
concealment of material facts (b) made with knowledge, actual or virtual, of the facts
(c) to a party ignorant, actually and permissibly, of the truth (d) with the intention, actual
or virtual, that the ignorant party act on it, and (e) that party was induced to act on it.”’
. . . Other, more general formulations have been proposed [citation], but all formulations
require that the conduct of the party to be estopped induced action on the part of the

                                               15
complaining party. ‘Such causation is essential to estoppel. . . .’” (Stephens &
Stephens XII, LLC v. Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th 1131, 1149.)
“‘“‘[T]he existence of an estoppel is generally a question of fact for the trier of fact, and
ordinarily the [fact-finder’s] determination is binding on appeal unless the contrary
conclusion is the only one to be reasonably drawn from the facts.’”’” (J.P. v. Carlsbad
Unified School Dist. (2014) 232 Cal.App.4th 323, 333.)
              As the basis for their equitable estoppel claim, the McMullins cite Nellie
Gail’s December 2009 letter and January 2010 e-mail, informing the McMullins the
board of directors decided not to pursue the unauthorized construction of the retaining
wall and related improvements as a violation of the CC&R’s, and instructing the
McMullins to work with Nellie Gail’s architect to develop a landscaping plan to screen
the wall from view. In reliance on these letters, the McMullins assert they spent $20,000
to develop and implement a landscaping plan for the area surrounding the retaining wall.
The evidence simply is insufficient to equitably estop Nellie Gail from bringing a quiet
title claim as a matter of law.
              The McMullins ignore that these communications and their reliance on
them occurred well after the retaining wall was constructed, and therefore they could not
justifiably have relied on them in spending approximately $150,000 to construct the wall
and related improvements that did not include the landscape screening, irrigation, and
drainage around the wall. Moreover, the evidence supports the implied finding Nellie
Gail did not know all of the essential facts because it was unaware of the extent of the
McMullins’ encroachment onto its property when it voted not to pursue the wall as a
CC&R’s violation and approved the plans to screen the wall. The evidence also supports
the implied finding the McMullins were not ignorant of the facts because they concealed
their rear property line’s location from Nellie Gail and knowingly started construction
without Nellie Gail’s written approval.



                                              16
              Specifically, the record includes testimony from a member of Nellie Gail’s
board of directors who participated in the vote not to pursue the retaining wall as a
CC&R’s violation. That board member testified the board simply was looking for an
amicable resolution to the situation, but did not know where the McMullins’ rear property
line was or the extent of the encroachment when it voted. The record also reveals the
trial court found the McMullins were not “innocent” in their construction of the wall
because (1) they intentionally failed to identify their rear property line in each of the
many plans they submitted despite Nellie Gail’s repeated request for them to identify
property lines; (2) they knew where the property line was located because all of their
plans included a dashed, unlabeled line that approximated the rear property line’s
location, and (3) they started construction based on an ambiguous oral statement from a
Nellie Gail employee about the approval of their plans when they knew written approval
from the Review Committee was required before construction could begin. Moreover,
the city later informed both parties the wall was on Nellie Gail’s property and it could not
remain there unless Nellie Gail expressly authorized it to remain on its property. This
evidence supports the implied finding the trial court rejected the McMullins’ equitable
estoppel defense to the extent they did not forfeit it.4




       4
                We also note the McMullins asserted a quiet title claim in their
cross-complaint that would support the trial court’s judgment quieting title to the
Disputed Property in Nellie Gail. The McMullins contend Nellie Gail was equitably
estopped to bring its quiet title action, but did not assert Nellie Gail was equitably
estopped from defending the McMullins’ quiet title claim or that the trial court could
not quiet title in Nellie Gail based on the McMullins’ claim.


                                              17
C.     The McMullins Failed to Establish They Acquired Any Interest in the Disputed
       Property by Adverse Possession
              The McMullins contend the trial court erred by failing to sustain their quiet
title claim to the Disputed Property because they presented evidence sufficient to
establish a claim to title by adverse possession. We disagree.5
              To establish they acquired title by adverse possession the McMullins must
show (1) they possessed the Disputed Property under a claim of right or title; (2) they
actually, openly, and notoriously occupied the Disputed Property in a manner that gave
reasonable notice to Nellie Gail; (3) their possession and occupancy was adverse and
hostile to Nellie Gail; (4) they continually possessed and occupied the Disputed Property
for five years; and (5) they paid all property taxes levied and assessed on the Disputed
Property during that five-year period. (Main Street Plaza v. Cartwright & Main, LLC
(2011) 194 Cal.App.4th 1044, 1054.)
              The trial court found the McMullins’ adverse possession claim failed
because they did not pay any property taxes on the Disputed Property.6 (See Mesnick v.
Caton (1986) 183 Cal.App.3d 1248, 1260 [“The adverse claimant’s failure to pay taxes
on the land he claims is fatal to his claim”].) The payment of property taxes is a statutory

       5
              The McMullins do not separately argue they were entitled to an interest in
the Disputed Property by adverse possession. Rather, they raise their adverse possession
argument as the basis for their contention Nellie Gail’s quiet title action was time-barred.
We nonetheless consider the argument on its merits because the governing five-year
limitation period on a property owner’s quiet title action against an adverse possessor is
triggered when an adverse possessor begins to use and occupy the property to acquire
title. An adverse possessor who claims the legal owner’s quiet title action is time barred
therefore bears the burden to establish all elements of an adverse possession claim to
show the quiet title claim is time barred. (Harrison v. Welch (2004) 116 Cal.App.4th
1084, 1095-1096.)
       6
              The trial court also found the McMullins failed to establish their possession
and occupation of the Disputed Property was “open, notorious, and hostile,” but we need
not address this finding because substantial evidence supports the court’s finding the
McMullins failed to pay property taxes.


                                             18
requirement for adverse possession. (§ 325, subd. (b).) For section 325 purposes, a tax is
levied when the county board of supervisors fixes the tax rate and orders payment of the
taxes. A tax is assessed when the county assessor prepares the annual roll listing all
properties subject to taxation and their assessed value. (Hagman v. Meher Mount Corp.
(2013) 215 Cal.App.4th 82, 90 (Hagman); see Allen v. McKay (1898) 120 Cal. 332, 334.)
              The party claiming an interest based on adverse possession bears the
burden to show either that “no taxes were assessed against the land or that if assessed he
paid them.” (Gilardi v. Hallam (1981) 30 Cal.3d 317, 326; Glatts v. Henson (1948)
31 Cal.2d 368, 372.) Section 325 requires that payment of the property taxes must be
“established by certified records of the county tax collector.” (§ 325, subd. (b).)
“Ordinarily, when adjoining lots are assessed by lot number, the claimant to the disputed
portion cannot establish adverse possession because he cannot establish [he paid taxes on
the portion of the adjoining property he occupied and possessed].” (Gilardi, at p. 326.)
              The McMullins do not dispute they paid no property taxes on the Disputed
Property. Instead, citing Hagman, they contend they were not required to pay taxes to
establish their claim because the larger parcel that included the Disputed Property—lot
274—had no value, and therefore no taxes were levied and assessed against it. To show
the Disputed Property had no value, the McMullins point to the recorded quitclaim deed
transferring lot 274 to Nellie Gail in 1984 and recent property tax statements.
              According to the McMullins, the recorded quitclaim deed showed lot 274
had no value because the deed states no documentary transfer tax was required for the
transfer because the consideration was less than $100. The McMullins contend the tax
statements show lot 274 had no value because the statements did not show the county
levied and assessed any specific property taxes against lot 274 and did not identify a
specific value for the parcel. This evidence, however, is not sufficient to meet the
McMullins burden to show no taxes were levied and assessed.



                                             19
              In Hagman, the adverse possession claimant presented evidence showing
the holder of legal title applied for and obtained a property tax exemption for the property
at issue during the entire period of adverse possession because the title holder was a
religious organization that used the property for educational purposes. (Hagman, supra,
215 Cal.App.4th at p. 86.) That exemption precluded the county from levying or
assessing any property taxes against the property. The Court of Appeal therefore
concluded the claimant was not required to pay property taxes to establish adverse
possession because no property taxes were assessed or levied on the property during the
period of adverse possession. (Id. at pp. 90-91.)
              Here, the McMullins rely on evidence that fails to show lot 274 was exempt
from property taxes, lot 274 had no value, or no property taxes were levied and assessed
on lot 274. The quitclaim deed transferred lot 274 from Nellie Gail’s original developer
to Nellie Gail and dedicated the parcel as open space. Nowhere does the deed state
lot 274 has no value and the McMullins do not cite any authority to support their
assumption that the absence of any documentary transfer tax on this type of transfer
establishes the property has no value. Moreover, at trial, the parties agreed lot 274 and
the Disputed Property had value, but merely disagreed on what that value was. Similarly,
although the property tax statements showed Nellie Gail was not billed for any property
taxes on lot 274, and did not identify a specific value for that parcel, the statements
stated, “common area values separately assessed.” (Capitalization omitted.)
              That statement is consistent with Revenue and Taxation Code
section 2188.5’s assessment of property taxes for common areas owned by homeowners
associations like Nellie Gail. That section provides that all parcels owned by individual
homeowners that make up the association are assessed property taxes based not only on
the value of their separate lots, but also the value of their proportionate, undivided share
of all common areas owned by their homeowners association. (Rev. & Tax. Code,



                                             20
§ 2188.5, subd. (a)(1).)7 Common areas like lot 274 therefore have value and property
taxes are levied against them; those taxes are billed to and paid by the individual
homeowners. (Lake Forest Community Association v. County of Orange (1978)
86 Cal.App.3d 394, 397 [“pursuant to Revenue and Taxation Code section 2188.5, the
real property taxes levied against the clubhouse and the parcel of land on which it is
located are assessed to the separately owned residential properties owned by the
Association’s members”].)
              The McMullins argue these authorities do not apply to lot 274 because
there is no evidence to show the developer or Nellie Gail properly annexed lot 274 to
make it part of the common areas governed by Nellie Gail under the CC&R’s. At trial,
however, the McMullins stipulated that lot 274 is “‘Common Area’” as defined in Nellie
Gail’s CC&R’s. Having tried the case based on that stipulation, the McMullins may not
seek to repudiate it on appeal. (See People v. Pijal (1973) 33 Cal.App.3d 682, 697 [“It is,
of course, well established that the defendant is bound by the stipulation or open
admission of his counsel and cannot mislead the court and jury by seeming to take a
position on issues and then disputing or repudiating the same on appeal”].)
              The McMullins therefore failed to meet their burden to show they were not
required to pay any property taxes on the Disputed Property, and the trial court properly
found their adverse possession claim failed as a result.



       7
               In pertinent part, Revenue and Taxation Code section 2188.5,
subdivision (a)(1), provides as follows: “[W]henever real property has been divided into
planned developments as defined in Section 11003 of the Business and Professions Code,
the interests therein shall be presumed to be the value of each separately owned lot,
parcel, or area, and the assessment shall reflect this value, which includes all of the
following: [¶] (A) The assessment attributable to the value of the separately owned lot,
parcel, or area and the improvements thereon. [¶] (B) The assessment attributable to the
share in the common area reserved as an appurtenance of the separately owned lot,
parcel, or area.”


                                             21
D.     The Trial Court Did Not Abuse Its Discretion in Granting Nellie Gail an
       Injunction Against the McMullins’ Encroachment
              The McMullins contend the trial court erred in granting Nellie Gail a
mandatory injunction that requires them to pay for removing the visible portions of the
retaining wall and restoring the surrounding area to its natural condition. According to
the McMullins, the trial court could not grant the equitable remedy of an injunction
without first finding Nellie Gail had no adequate remedy at law, and the record lacks
substantial evidence to support the finding monetary damages was an inadequate legal
remedy. The McMullins misconstrue the governing legal standards, and we conclude
substantial evidence supports the trial court’s decision.
              In an action between adjoining landowners based on the defendant
constructing an improvement on the plaintiff’s property, the plaintiff generally is entitled
to a mandatory injunction requiring the defendant to remove the encroachment. (Brown
Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858 (Brown Derby); Salazar v.
Matejcek (2016) 245 Cal.App.4th 634, 649 (Salazar).) Under the doctrine of “balancing
of conveniences” or “relative hardships,” a trial court has discretion to deny an injunction
and instead compel the plaintiff to accept damages as compensation for a judicially-
created easement that allows the defendant to maintain the encroaching improvement.
(Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19-20 (Shoen); Tashakori, supra,
196 Cal.App.4th at pp. 1008-1009; Linthicum v. Butterfield (2009) 175 Cal.App.4th 259,
265 (Linthicum).)
              “When a trial court refuses to enjoin encroachments which trespass on
another’s land, ‘the net effect is a judicially created easement by a sort of non-statutory
eminent domain.’ [Citations.] However, the courts are not limited to judicial passivity as
in merely refusing to enjoin an encroachment. Instead, in a proper case, the courts may
exercise their equity powers to affirmatively fashion an interest in the owner’s land which
will protect the encroacher’s use.” (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749,



                                             22
764-765 (Hirshfield).) That interest commonly is referred to as an equitable easement.
(Shoen, supra, 237 Cal.App.4th at pp. 19-20; Tashakori, supra, 196 Cal.App.4th at
pp. 1008-1009.)
               For a trial court to exercise its discretion to deny an injunction and grant an
equitable easement, “three factors must be present. First, the defendant must be innocent.
That is, his or her encroachment must not be willful or negligent. The court should
consider the parties’ conduct to determine who is responsible for the dispute. Second,
unless the rights of the public would be harmed, the court should grant the injunction if
the plaintiff ‘will suffer irreparable injury . . . regardless of the injury to defendant.’
Third, the hardship to the defendant from granting the injunction “must be greatly
disproportionate to the hardship caused plaintiff by the continuance of the encroachment
and this fact must clearly appear in the evidence and must be proved by the
defendant. . . .’” (Hirshfield, supra, 91 Cal.App.4th at p. 759, italics omitted.) “Unless
all three prerequisites are established, a court lacks the discretion to grant an equitable
easement.” (Shoen, supra, 237 Cal.App.4th at p. 19.)
               “Overarching the analysis is the principle that since the defendant is the
trespasser, he or she is the wrongdoer; therefore, ‘doubtful cases should be decided in
favor of the plaintiff.’” (Hirshfield, supra, 91 Cal.App.4th at p. 759; see Linthicum,
supra, 175 Cal.App.4th at p. 265.) Moreover, “courts approach the issuance of equitable
easements with ‘[a]n abundance of caution.’” (Shoen, supra, 237 Cal.App.4th at p. 21.)
When courts compare the hardships or conveniences, the scales “begin tipped in favor of
the property owner due to the owner’s substantial interest in exclusive use of her property
arising solely from her ownership of her land.” (Shoen, supra, 237 Cal.App.4th at p. 20.)
               “‘When the court finds . . . that the defendant was not innocent, it should
grant an injunction [because an essential element for denying an injunction and
establishing an equitable easement is missing].” (Salazar, supra, 245 Cal.App.4th at
p. 649, quoting Brown Derby, supra, 61 Cal.2d at p. 858, italics omitted.) “The

                                               23
defendant is not innocent if he wilfully encroaches on the plaintiff’s land. [Citations.]
To be wilful the defendant must not only know that he is building on the plaintiff’s land,
but act without a good faith belief that he has a right to do so.” (Brown Derby, supra,
61 Cal.2d at p. 859.) “Where the conduct is willful, it may be presumed that a defendant
acted with full knowledge of the plaintiff’s rights ‘“‘and with an understanding of the
consequences which might ensue. . . .’”’” (Salazar, supra, 245 Cal.App.4th at p. 649.)
“The question whether the defendant’s conduct is so egregious as to be willful or whether
the quantum of the defendant’s negligence is so great as to justify an injunction is a
matter best left to the sound discretion of the trial court.” (Linthicum, supra,
175 Cal.App.4th at p. 267.) “We review the trial court’s application of this doctrine for
an abuse of discretion.” (Shoen, supra, 237 Cal.App.4th at p. 20.)
              Here, the trial court refused to grant the McMullins an equitable easement,
and instead issued an injunction for the removal of the retaining wall and restoration of
the surrounding area. The court found the McMullins were not innocent in constructing
the wall on Nellie Gail’s property, and therefore did not satisfy the first of the three
requirements described above. The record supports the court’s ruling because substantial
evidence supports the implied findings the McMullins knew where their rear property
line was located, they intentionally did not identify it, and they began constructing the
wall knowing they did not have the necessary approvals from Nellie Gail.
              For example, the evidence showed Nellie Gail denied several applications
by the McMullins seeking approval for the retaining wall and related improvements.
Each time, Nellie Gail told the McMullins in writing that any future application must
include “a fully dimensioned site plan showing property lines,” but the McMullins
repeatedly submitted applications that failed to identify the rear property line. Indeed, the
McMullins never submitted a plan identifying the location of their rear property line.
The evidence also showed Donald prepared all of the plans the McMullins submitted to
Nellie Gail, and each time he drew in a dashed, unlabeled line that Nellie Gail later

                                              24
discovered was the rear property line and showed the retaining wall and other
improvements were on Nellie Gail’s property. Moreover, the applications repeatedly
represented the retaining wall would be constructed in the same location as the original
wrought iron fence, but the McMullins constructed the new retaining wall in a location
that enclosed 2,000 square feet more than the original wrought iron fence. Finally, the
trial court could rely on evidence that showed the McMullins constructed the retaining
wall based on Erickson’s oral and ambiguous statement that she thought the McMullins’
plans had been approved, but the McMullins knew all of their previous plans for the
retaining wall had been rejected in writing, they had not submitted any new plans since
the last rejection, and a written approval from the Review Committee was required before
construction could commence.
              The McMullins point to the Review Committee’s approval of the landscape
screening for the retaining wall as a basis for the trial court to grant an equitable easement
and deny injunctive relief. As explained above, however, that approval occurred after the
McMullins knowingly constructed the wall on Nellie Gail’s property without the Review
Committee’s approval. Moreover, the $20,000 cost for the screening portion of the
project amounts to less than 12 percent of the total cost for the project. On these facts,
we cannot say the trial court abused its discretion in concluding the McMullins were not
innocent, and therefore were not entitled to an equitable easement.
              The McMullins also argue Nellie Gail should have known the location of
the property line between the two properties, and Nellie Gail acquiesced in the
McMullins’ construction of the retaining wall by failing to tell them to stop construction
until the wall essentially was complete. These arguments, however, ignore the governing
standard of review and improperly seek to reargue the evidence on appeal. As explained
above, we review the trial court’s decision to grant an injunction and deny an equitable
easement under the abuse of discretion standard. (Shoen, supra, 237 Cal.App.4th at
pp. 19-20; Linthicum, supra, 175 Cal.App.4th at p. 267.) The abuse of discretion

                                             25
standard, however, includes a substantial evidence component: “We defer to the trial
court’s factual findings so long as they are supported by substantial evidence, and
determine whether, under those facts, the court abused its discretion. If there is no
evidence to support the court’s findings, then an abuse of discretion has occurred.” (Tire
Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)
              When we review the record for substantial evidence, we do not determine
whether substantial evidence supports the factual conclusions advanced by the
McMullins. Rather, we review the entire record solely to determine whether substantial
evidence supports the trial court’s expressed and implied factual findings. If there is, our
analysis ends; we may not substitute our deductions for those of the trial court. (Rupf v.
Yan (2000) 85 Cal.App.4th 411, 429-430, fn. 5.) As explained above, we conclude
substantial evidence supports the trial court’s finding the McMullins were not innocent,
and therefore were not entitled to an equitable easement.
              In arguing monetary damages provided an adequate legal remedy that
required the trial court to deny injunctive relief, the McMullins fail to recognize the
foregoing authorities governed the court’s decision whether to grant an injunction or
require Nellie Gail to accept monetary damages instead. The McMullins rely on cases
that discuss injunctive relief generally and involve different factual contexts. Reliance on
these authorities is unavailing here because they do not address awarding injunctive relief
when an adjoining property owner constructs an improvement that encroaches on his or
her neighbor’s property. Under the foregoing authorities, whether Nellie Gail suffered
irreparable injury or monetary damages provided an adequate legal remedy is addressed
by the second element of the governing standard, but the court need not decide that issue
where, as here, the court determines the defendant was not innocent and therefore was
ineligible for an equitable easement. (See Brown Derby, supra, 61 Cal.2d at p. 858 [“The
rationale behind the rule is . . . to prevent a wrongdoer from gaining control of land
merely by paying a penalty of damages”].)

                                             26
              Finally, the McMullins challenge the terms and scope of the trial court’s
injunction. First, they contend the injunction requires the city to issue permits for and
approve the retaining wall’s demolition, but there is no guarantee the city will approve
the demolition or issue any permits. Second, the McMullins contend the injunction is
overbroad because it authorizes Nellie Gail to address the grade and groundcover on the
entirety of lot 274 and lot 273 at the McMullins’ expense, but those lots total more than
20 acres and the McMullins’ construction disturbed much less than one acre. Neither of
these arguments invalidates the injunction or requires our intervention at this time.
              We will not speculate on the city’s position concerning the retaining wall’s
demolition and the trial court has the authority to modify the injunction if necessary to
comply with the city’s building code or other requirements. Moreover, the injunction
essentially requires the wall to be removed in whatever manner the city requires. As for
the McMullins’ concern Nellie Gail will attempt to regrade and replant the entire 20 acres
at the McMullins’ expense, that too is based on nothing more than speculation. The trial
court’s judgment includes a procedure for the McMullins to challenge the reasonableness
of the expenses Nellie Gail seeks to impose on them and they always may seek to modify
the injunction if necessary.

E.     This Court Lacks Jurisdiction to Review the Trial Court’s Attorney Fees Award
              The McMullins contend the trial court erred in awarding Nellie Gail
attorney fees under Civil Code section 5975, subdivision (c), because this lawsuit is not
an action to enforce Nellie Gail’s governing documents, but an action to enforce the
quitclaim deed transferring lot 274 to Nellie Gail. We lack jurisdiction to review the
attorney fees award because the McMullins failed to timely appeal the award. We
therefore dismiss that portion of their appeal.
              “‘An appellate court has no jurisdiction to review an award of attorney fees
made after entry of the judgment, unless the order is separately appealed.’ [Citation.]


                                             27
‘[W]here several judgments and/or orders occurring close in time are separately
appealable (e.g., judgment and order awarding attorney fees), each appealable judgment
and order must be expressly specified—in either a single notice of appeal or multiple
notices of appeal—in order to be reviewable on appeal.”’” (Colony Hill v. Ghamaty
(2006) 143 Cal.App.4th 1156, 1171 (Colony Hill); see Allen v. Smith (2002)
94 Cal.App.4th 1270, 1284; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43
(DeZerega).) Indeed, “‘[w]hen a party wishes to challenge both a final judgment and a
postjudgment costs/attorney fee order, the normal procedure is to file two separate
appeals: one from the final judgment, and a second from the postjudgment order.’”
(Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222.) “‘“[I]f a judgment or
order is appealable, an aggrieved party must file a timely appeal or forever lose the
opportunity to obtain appellate review.”’” (Silver v. Pacific American Fish Co., Inc.
(2010) 190 Cal.App.4th 688, 693 (Silver).)
              Here, the trial court entered judgment in Nellie Gail’s favor in early
November 2014. In mid-December, the court granted Nellie Gail’s attorney fees motion
and awarded Nellie Gail $187,000 in attorney fees and $10,000 in costs. The McMullins
filed their notice of appeal on December 30, 2014, stating they appealed from “the
judgment executed and filed on November 6, 2014.” Their notice of appeal did not
identify the trial court’s ruling on Nellie Gail’s attorney fees motion or otherwise suggest
the McMullins were appealing the attorney fees award. On January 21, 2015, the trial
court entered an “Amended Judgment,” granting Nellie Gail’s attorney fees motion and
amending the original judgment to include the attorney fees and costs award. The
amended judgment stated the judgment “shall remain in all other respects as originally
entered, and as modified to date, and shall retain its original entry date of
November 6, 2014.” The McMullins did not file a separate notice of appeal to
challenge either the trial court’s ruling on the attorney fees motion or the amended
judgment, and therefore we lack jurisdiction to review the attorney fees award.

                                              28
              Citing Grant v. List & Lanthrop (1992) 2 Cal.App.4th 993 (Grant), the
McMullins contend their notice of appeal necessarily encompassed the trial court’s
attorney fees award because the original judgment awarded Nellie Gail attorney fees and
left a blank space for the amount to be inserted later, and the amended judgment
expressly amended the original judgment nunc pro tunc to include the amount of fees.
The McMullins misconstrue Grant and the court’s judgment and amended judgment.
              In Grant, the Court of Appeal determined it had jurisdiction to decide an
appeal challenging a postjudgment award of attorney fees where the judgment identified
in the notice of appeal expressly awarded attorney fees to the prevailing party and merely
left the determination of the amount for postjudgment proceedings. (Grant, supra,
2 Cal.App.4th at pp. 996-997.) The foregoing authorities emphasize Grant established a
narrow exception to the rule requiring a separate notice of appeal for a postjudgment
attorney fees award, and that exception applies solely when “the entitlement to fees [is]
adjudicated by the original judgment, leaving only the issue of amount for further
adjudication.” (DeZerega, supra, 83 Cal.App.4th at p. 44; see Silver, supra,
190 Cal.App.4th at p. 692; Colony Hill, supra, 143 Cal.App.4th at p. 1172.)
              In Silver, for example, the appellant sought to challenge a postjudgment
attorney fees award on his appeal from the underlying judgment that stated attorney fees
were awarded to the respondent and left a blank space for the amount of fees to be
inserted later. (Silver, supra, 190 Cal.App.4th at pp. 690-691.) The Court of Appeal
concluded it lacked jurisdiction to review the attorney fees award because the trial court
made the award after entry of judgment and the appellant did not file a separate notice of
appeal challenging the award. Although the judgment stated fees were awarded and left a
blank space for the amount, the Silver court conclude Grant did not apply because the
record showed the trial court determined both entitlement to and the amount of fees in
postjudgment proceedings. (Silver, at pp. 691-692.)



                                            29
              Here, the original judgment similarly stated Nellie Gail shall recover its
attorney fees and left a blank space for the amount to be inserted later, but the record
shows the trial court made no determination regarding attorney fees before entering
judgment, and determined both Nellie Gail’s entitlement to and the amount of fees after
entry of judgment. Grant therefore does not apply.
              Contrary to the McMullins’ contention, the trial court’s amended judgment
did not amend the original judgment nunc pro tunc and thereby bring the attorney fees
award within the scope of their notice of appeal. Although Nellie Gail’s attorney fees
motion requested that the trial court amend the original judgment nunc pro tunc to
include the fees award, neither the trial court’s ruling nor the amended judgment stated
the original judgment was amended nunc pro tunc. Rather, the amended judgment
simply stated the original judgment was amended to include the attorney fees and costs
award and the original judgment shall retain its original entry date.
              More importantly, a trial court’s authority to amend its judgment nunc pro
tunc is limited to correcting clerical errors in the judgment. (APRI Ins. Co. v. Superior
Court (1999) 76 Cal.App.4th 176, 185-186; Lang v. Superior Court (1961)
198 Cal.App.2d 16, 17-18.) Amending a judgment to include an award of attorney fees
and costs when the court determined both the entitlement to and amount of fees after
entry of judgment is not an amendment to correct a clerical error. Indeed, the Rule of
Court addressing postjudgment awards of costs, including attorney fees, directs the court
clerk to enter the award on the judgment. It does not authorize the court or clerk to
amend the judgment nunc pro tunc. (Cal. Rule of Court, rule 3.1700(b)(4).) If a
judgment could be amended nunc pro tunc to include a postjudgment attorney fees award,
an appellant would never have to file a separate appeal from a postjudgment order
granting attorney fees, but that is contrary to the foregoing authorities. (Cf. Colony Hill,
supra, 143 Cal.App.4th at p. 1172.)



                                             30
              Finally, the McMullins contend we must liberally construe their notice of
appeal to encompass the trial court’s postjudgment attorney fees award. No so. The
Colony Hill court rejected this same argument: “‘The rule favoring appealability in cases
of ambiguity cannot apply where there is a clear intention to appeal from only part of the
judgment or one of two separate appealable judgments or orders. [Citation.] “Despite
the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be
considered adequate if it completely omits any reference to the judgment [or order] being
appealed.”’” (Colony Hill, supra, 143 Cal.App.4th at p. 1172; see Norman I. Krug Real
Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.) The McMullins’
notice of appeal unmistakably stated they appealed from the trial court’s November 6,
2014 judgment, and nothing else.

                                              III
                                        DISPOSITION

              The judgment is affirmed. The purported appeal from the trial court’s order
awarding attorney fees and costs is dismissed for lack of jurisdiction. Nellie Gail shall
recover its costs on appeal.



                                                    ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




                                              31
Filed 10/27/16




                             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                       DIVISION THREE

NELLIE GAIL RANCH OWNERS
ASSOCIATION,                                          G051244

     Plaintiff, Cross-Defendant and                   (Super. Ct. No. 30-2013-00653834)
     Respondent,
                                                      ORDER (1) MODIFYING OPINION,
        v.                                            (2) DENYING REHEARING, AND
                                                      (3) CERTIFYING OPINION FOR
DONALD G. McMULLIN et al.,                            PUBLICATION; NO CHANGE IN
                                                      JUDGMENT
     Defendants, Cross-complainants and
     Appellants.



                 It hereby is ordered that the opinion filed in the above-entitled matter on
October 3, 2016, is hereby MODIFIED as follows:
                 1.     On page 2, the first sentence of the second paragraph, beginning
with “First, the McMullins contend,” delete the words “and implement” between the
words “develop” and “a landscaping,” and delete the word “help” between the words
“plan to” and “screen,” so the sentence reads:
       First, the McMullins contend Nellie Gail was equitably estopped to bring
       this quiet title action because it told the McMullins it would not pursue
       construction of the wall as a violation of the governing declaration of
       covenants, conditions, and restrictions (CC&R’s) and instructed the
       McMullins to work with Nellie Gail’s architect to develop a landscaping,
       irrigation, and drainage plan to screen the wall from view.
              2.     On page 3, the second sentence of the second paragraph, beginning
with “A property owner generally,” delete the word “favor” between the words “greatly”
and “the encroacher” and replace it with the word “favors,” so the sentence reads:
       A property owner generally is entitled to a mandatory injunction requiring
       an adjacent owner to remove an encroachment, but a trial court has
       discretion to deny an injunction and grant an equitable easement if the
       encroacher acted innocently and the balancing of the hardships greatly
       favors the encroacher.
              3.     On page 4, the first sentence of the third paragraph, beginning with
“The McMullins’ backyard,” delete the word “the” between the words “because of” and
“sloping nature” and replace it with the words “their property’s,” and also delete the
words “of their property” at the end of the sentence, so the sentence reads:
       The McMullins’ backyard has three retaining walls used to provide level,
       useable space because of their property’s sloping nature.
              4.     On page 4, the first sentence of the fourth paragraph, beginning with
“Nellie Gail’s CC&R’s,” delete the word “all” between the words “required” and
“homeowners,” so the sentence reads:
       Nellie Gail’s CC&R’s and its Architectural Review Committee Guidelines
       required homeowners to obtain written approval from the Architectural
       Review Committee (Review Committee) before constructing or making
       significant alterations to any improvements on their property.

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              5.    On page 5, the first sentence of the second full paragraph, beginning
with “Two weeks later,” delete the word “resubmitted” between the words “prepared
and” and “an application” and replace it with the word “submitted,” and also delete the
word “an” between the words “resubmitted’ and “application” and replace it with the
words “a new,” so the sentence reads:
      Two weeks later, Donald prepared and submitted a new application with a
      revised, more detailed site plan.
              6.    On page 6, the third sentence of the second full paragraph, beginning
with “Cynthia asked Erickson to double check,” delete the word “were” between the
words “they” and “approved” at the end of the sentence and replace it with the words
“had been,” so the sentence reads:
      Cynthia asked Erickson to double check her information, and after looking
      on Nellie Gail’s computer system, Erickson again told Cynthia she did not
      need to submit the plans because they had been approved.
              7.    On page 7, the fifth sentence of the first paragraph, beginning with
“In confirming the McMullins had an approval,” delete the words “some approval” at the
end of the sentence and replace them with the words “an approval for some work,” so the
sentence reads:
      In confirming the McMullins had an approval, Hinkle did not look at the
      plans or determine the type of work the McMullins were authorized to
      perform; he simply confirmed they had obtained an approval for some
      work.
              8.    On page 8, the second sentence of the first full paragraph, beginning
with “Nellie Gail informed the McMullins,” delete the word “their” between the words
“McMullins” and “architect” and replace it with the word “its,” so the sentence reads:




                                            3
      Nellie Gail informed the McMullins its architect would inspect the wall and
      the McMullins should submit an application and detailed plans to the
      Review Committee for possible approval.
             9.       On page 9, the last sentence of the partial paragraph at the top of the
page, beginning with “On December 9, 2009,” delete the word “help” between the words
“plan to” and “screen,” so the sentence reads:
      On December 9, 2009, Nellie Gail sent the McMullins a letter informing
      them of the board’s vote and instructing them to meet with Nellie Gail’s
      architect to finalize a landscaping, irrigation, and drainage plan to screen
      the wall.
             10.      On page 10, the second sentence of the first full paragraph,
beginning with “Nellie Gail’s surveyor completed,” delete the word “survey” between the
words “completed his” and “in March” and replace it with the word “investigation,” so
the sentence reads:
      Nellie Gail’s surveyor completed his investigation in March 2011, and
      determined the original six-foot retaining wall was constructed on the
      property line and the new retaining wall and improvements were built
      almost entirely on Nellie Gail’s property.
             11.      On page 10, the last sentence of footnote no. 2, beginning with “We
therefore refer,” delete the word “only” between the words “lot 274” and “for ease” and
insert the word “only” between the words “refer” and “to lot 274,” so the sentence reads:
      We therefore refer only to lot 274 for ease of reference.
             12.      On page 11, the first sentence of the first paragraph, beginning with
“In June 2013,” insert the word “to” between the words “name” and “ask,” and insert the
word “to” between the words “and” and “request,” so the sentence reads:
      In June 2013, Nellie Gail sued the McMullins to quiet title to the Disputed
      Property in its name, to ask for an injunction requiring the McMullins to

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      remove the retaining wall and all other improvements from the Disputed
      Property, and to request a declaratory judgment declaring the parties’ rights
      and duties under the CC&R’s.
             13.    On page 15, the second sentence of the first full paragraph,
beginning with “This isolated utterance,” delete the words “as part of an argument that”
and replace them with the words “while arguing,” so the sentence reads:
      This isolated utterance, however, is not sufficient to preserve the issue for
      appeal because the McMullins’ counsel did not utter those words while
      arguing Nellie Gail was equitably estopped to assert a quiet title claim.
             14.    On page 15, the third sentence of the first full paragraph, beginning
with “Indeed, it appears,” delete the words “as though” between the words “appears” and
“the McMullins’ counsel,” so the sentence reads:
      Indeed, it appears the McMullins’ counsel may have misspoke by
      mentioning equitable estoppel because he uttered that phrase when urging
      the trial court to grant an equitable easement, which, as explained below, is
      a separate doctrine that allows a landowner who constructed an
      improvement on an adjacent owner’s property to defeat that owner’s
      injunction request based on a balancing of the hardships or conveniences.
             15.    On page 16, the first sentence of the first full paragraph, beginning
with “As the basis for their equitable estoppel claim,” insert the word “which” between
the words “e-mail” and “informing,” delete the word “informing” and replace it with the
word “informed,” and delete the word “instructing” between the words “and” and “the
McMullins” and replace it with the word “instructed,” so the sentence reads:
      As the basis for their equitable estoppel claim, the McMullins cite Nellie
      Gail’s December 2009 letter and January 2010 e-mail, which informed the
      McMullins the board of directors decided not to pursue the unauthorized
      construction of the retaining wall and related improvements as a violation

                                             5
       of the CC&R’s, and instructed the McMullins to work with Nellie Gail’s
       architect to develop a landscaping plan to screen the wall from view.
              16.     On page 16, the last sentence of the first full paragraph, beginning
with “The evidence simply is insufficient,” delete the word “The” at the beginning of the
sentence and replace it with the word “That,” and delete the word “simply” between the
words “evidence” and “is insufficient,” so the sentence reads:
       That evidence is insufficient to equitably estop Nellie Gail from bringing a
       quiet title claim as a matter of law.
              17.     On page 17, the fourth sentence of the first paragraph, beginning
with “Moreover, the city later informed,” delete the entire sentence and replace it with the
following sentence:
       Moreover, the city later informed both parties the wall was on Nellie Gail’s
       property and it could not remain there without Nellie Gail’s express
       approval.
              18.     On page 19, the last sentence of the partial paragraph at the top of
the page, beginning with “A tax is assessed when,” delete the word “all” between the
words “listing” and “properties,” so the sentence reads:
       A tax is assessed when the county assessor prepares the annual roll listing
       properties subject to taxation and their assessed value.
              19.     On page 19, the last sentence of the third full paragraph, beginning
with “This evidence, however,” delete the words “is not sufficient” and replace them with
the word “fails,” and delete the word “McMullins” and replace it with the possessive
“McMullins’” so the sentence reads:
       This evidence, however, fails to meet the McMullins’ burden to show no
       taxes were levied and assessed.




                                               6
              20.    On page 20, the last sentence of the second paragraph, beginning
with “Similarly, although the property tax statements,” insert the word “tax” between the
words “parcel, the” and “statements stated,” so the sentence reads:
       Similarly, although the property tax statements showed Nellie Gail was not
       billed for any property taxes on lot 274, and did not identify a specific
       value for that parcel, the tax statements stated, “common area values
       separately assessed.”
              21.    On page 25, the last partial sentence on the bottom of the page that
continues on page 26, beginning with “The abuse of discretion standard,” delete the word
“however” and the surround commas, so the sentence reads:
       The abuse of discretion standard includes a substantial evidence
       component:
              22.    On page 26, the third sentence of the second full paragraph,
beginning with “Reliance on these authorities is unavailing,” add the following new
footnote no. 8 at the end of the sentence:
              8.
                     The McMullins in their rehearing petition fault us for not
       discussing the following statement from Intel Corp. v. Hamidi (2003)
       30 Cal.4th 1342 (Intel Corp.): “Even in an action for trespass to real
       property, in which damage to the property is not an element of the cause of
       action, ‘the extraordinary remedy of injunction” cannot be invoked without
       showing the likelihood of irreparable harm.’” (Id. at p. 1352.)
                     Intel Corp. addressed whether a claim for trespass to chattels
       could be based on an employee’s unauthorized use of a company’s e-mail
       system. (Intel Corp., supra, 30 Cal.4th at pp. 1346-1348.) It did not
       address an adjoining landowner’s encroachment on his or her neighbor’s
       property by constructing an improvement. The quote on which the
       McMullins rely is merely dictum from the court’s response to an argument

                                              7
         that actual injury was not an element of a claim for trespass to chattels
         when the only remedy sought is injunctive relief. (Id. at pp. 1351-1352.)
         Moreover, the McMullins fail to recognize the quote on which they rely
         addresses a trespass in general, which may include simple entry onto
         another’s land, but the cases discussed above address the more specific
         situation of a landowner encroaching on his or her neighbor’s property by
         constructing an improvement, not merely entering upon the property.
                23.    On page 27, the first sentence of the second paragraph, beginning
with “We will not speculate,” insert a “.” after the word “demolition,” delete the word
“and,” and capitalize the word “the” between the words “demolition” and “trial court,” so
the sentence becomes two sentences and reads:
         We will not speculate on the city’s position concerning the retaining wall’s
         demolition. The trial court has the authority to modify the injunction if
         necessary to comply with the city’s building code or other requirements.
                24.    On page 27, the last sentence of the second paragraph, beginning
with “The trial court’s judgment includes,” delete the word “always,” so the sentence
reads:
         The trial court’s judgment includes a procedure for the McMullins to
         challenge the reasonableness of the expenses Nellie Gail seeks to impose
         on them and they may seek to modify the injunction if necessary.
                25.    On page 29, the final sentence of the third paragraph, beginning with
“Although the judgment stated,” delete the word “conclude” between the words “court”
and “Grant” and replace it with the word “concluded,” so the sentence reads:
         Although the judgment stated fees were awarded and left a blank space for
         the amount, the Silver court concluded Grant did not apply because the
         record showed the trial court determined both entitlement to and the
         amount of fees in postjudgment proceedings.

                                               8
              26.    On page 31, the second sentence of the first paragraph, which reads
“No so,” replace the word “No” with the word “Not,” so the sentence reads:
       Not so.

              These modifications do not change the judgment.
              The rehearing petition appellants Donald G. McMullin and Cynthia
Jensen-McMullin filed is DENIED.
              Neuland, Whitney & Michael, APC, Adams Stirling, Community Legal
Advisors Inc., and Epstein Grinnell & Howell APC have requested that our opinion be
certified for publication. It appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c). The request is GRANTED.


                                                  ARONSON, J.


WE CONCUR:


BEDSWORTH, ACTING P. J.


THOMPSON, J.




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