Filed 3/23/16 Sharma v. Tyannikov CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




RUDRA SHARMA et al.,                                                                         C078238

                   Plaintiffs and Respondents,                                   (Super. Ct. No. CV13-740)

         v.

YELENA TYANNIKOV et al.,

                   Defendants and Appellants.




         This action involves a boundary dispute between homeowners in a subdivision in
West Sacramento. After owning their home for 15 years, plaintiffs Rudra and Kamla
Sharma suspected the fence between their property and their neighbors’ was in the wrong
place. They confirmed that suspicion with a survey and approached the neighbors about
moving the fence. When the neighbors refused, the Sharmas brought suit against them--
defendants Yelena Tyannikov and her husband Andrey--for trespass, assault, and
declaratory relief to establish their rights to the disputed property. The trial court granted
a nonsuit as to the assault claim and the case proceeded to a court trial. The Tyannikovs

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asserted the defenses of the agreed boundary doctrine and laches. The trial court found in
favor of the Sharmas.
       On appeal, the Tyannikovs contend the trial court erred in concluding that neither
the agreed boundary doctrine nor laches applied. The Sharmas move to dismiss the
appeal and seek sanctions for a frivolous appeal. We affirm the judgment. As we
explain, defendants failed to establish uncertainty and agreement to apply the agreed
boundary doctrine, and failed to establish prejudice for the defense of laches. We do not,
however, find the appeal frivolous.
                 FACTUAL AND PROCEDURAL BACKGROUND
       The Sharmas live at 3126 Allan Avenue in West Sacramento. They purchased the
property in 1998. Next door, separated from the Sharmas’ property by a fence, is 3138
Allan Avenue, which Yelena Tyannikov purchased in 2012. From 1998 until 2012, the
various owners of the two properties treated the fence as the boundary, each using the
property up to the fence line. There was no discussion or agreement between neighbors
about the fence or the boundary.
       In 2012, the Sharmas planned to build a storage shed in their backyard. Rudra
Sharma went to the planning department where he received a map of the properties.
When he measured his property in accordance with the map, he discovered the fence was
not on the property’s legal boundary. He needed the additional space for the storage
shed, which he would gain by moving the fence. He hired a surveyor who performed a
survey and confirmed the fence was not located on the true boundary between the two
properties.
       The surveyor reviewed the subdivision map which had been recorded in 1980.
The recorded subdivision map was the basis of the legal descriptions in the deeds for the
properties, and was based on monuments in the street. The survey disclosed that the
fence was not on the line dividing the two properties on the subdivision map, but instead



                                            2
encroached eight feet onto the Sharmas’ property at the rear of the yard, and over four
feet in front.
       Rudra Sharma spoke with Andrey Tyannikov about the fence and offered to move
it to the true boundary at his expense. Tyannikov would not allow it; he threatened to
“mess up” anyone who tried to move the fence. The Tyannikovs would not allow the
fence to be moved without a court order. Sharma told Tyannikov that in walking around
the neighborhood he had observed that most houses had access for an RV, but his house
did not, which added to his suspicion that the fence was in the wrong place.
       In purchasing their house, a large backyard was a priority for the Tyannikovs, for
their children to play and to store a trailer that Andrey used in his landscaping business.
       The Sharmas brought suit against Yelena Tyannikov and a doe defendant.1 The
complaint stated causes of action for trespass, assault based on Andrey’s alleged threats,
and declaratory relief to establish the Sharmas’ rights to the property.2
       The Sharmas moved for summary adjudication on the trespass action. The trial
court denied the motion, finding triable issues of material fact.
       The case proceeded to a court trial. The court granted defendants’ motion for a
nonsuit on the assault claim, finding threats alone were insufficient to constitute an
assault. The defendants asserted two defenses at trial: the agreed boundary doctrine and
laches. The trial court rejected both. It found the agreed boundary doctrine did not apply
where the boundary was not uncertain. The court found defendants failed to prove the
prejudice necessary for laches, concluding that the mere discovery that the amount of



1Yelena Tyannikov alone held title to the property. The Sharmas did not know
Andrey’s name. He is described in the complaint as defendant Doe 1, a male resident of
Yelena Tyannikov’s house and the man Rudra Sharma spoke with about the fence.
2 The Tyannikovs moved to augment the record on appeal to include the complaint, as
well as the parties’ trial briefs, all of which had been filed in the trial court but not
designated as part of the record on appeal. We grant the unopposed motion.

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property owned was less than previously thought did not constitute prejudice for purposes
of the laches defense.
       The court entered judgment in favor of the Sharmas, finding the boundary between
the properties was as determined by the survey, and awarding the Sharmas one dollar in
trespass damages. It ordered defendants to remove their property, including a metal gate
they had installed, from plaintiffs’ side of the boundary.
       Defendants appealed.
       Plaintiffs moved to dismiss the appeal and requested sanctions for a frivolous
appeal.
                                       DISCUSSION
                                              I
                                    Standard of Review
       The parties disagree as to the proper standard of review. Defendants contend our
review should be de novo because the issue on appeal is a question of law. They contend
the trial court used the wrong legal standards in determining that the agreed boundary
doctrine did not apply and the defense of laches did not apply. Plaintiffs contend the
proper standard of review is substantial evidence because the trial court found the
defenses failed for insufficient evidence.
       “[T]he application of the rule to the facts and the consequent determination
whether the rule is satisfied” is a mixed question of law and fact. (Crocker National
Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) “ ‘There are three
steps involved in deciding a mixed fact/law question. The first step is the establishment
of basic, primary or historical facts. The second is the selection of the applicable law.
The third is the application of law to the facts. All three trial court determinations are
subject to appellate review. Questions of fact are reviewed by giving deference to the
trial court’s decision. Questions of law are reviewed under a nondeferential standard,
affording plenary review.’ ” (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800.) The

                                              4
standard of review for the third step depends on the nature of the inquiry required. If
application of the law to the facts requires an inquiry that is primarily factual in nature,
the deferential substantial evidence standard applies; if application of the law to the facts
requires an inquiry that is primarily legal in nature, the de novo standard applies. (Id. at
pp. 800-801; Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 1009.)
       Here, the parties agree the facts are largely undisputed. The dispute is over the
precise requirements of the defenses of agreed boundary and laches and how those
requirements may be proved. We review the trial court’s resolution of that dispute de
novo, and conclude defendants failed to establish a defense.
                                              II
                                 Agreed Boundary Doctrine
       A. The Law
       “The agreed-boundary doctrine constitutes a firmly established exception to the
general rule that accords determinative legal effect to the description of land contained in
a deed.” (Bryant v. Blevins (1994) 9 Cal.4th 47, 54 (Bryant).) The party claiming the
land pursuant to the doctrine bears the burden of establishing that there is “[1] an
uncertainty as to the true boundary line, [2] an agreement between the coterminous
owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a
period equal to the statute of limitations or under such circumstances that substantial loss
would be caused by a change of its position.” (Id. at p. 55, quoting Ernie v. Trinity
Lutheran Church (1959) 51 Cal.2d 702, 707 (Ernie).)
       “The purpose of the agreed-boundary doctrine is to secure repose and prevent
litigation. [Citation.] The doctrine promotes the stability of agreements adjusting a
disputed boundary as a method adopted in good faith by the parties to settle a
controversy. It arose as a way to settle disputes over boundaries in an earlier time, when
surveys were notoriously inaccurate and the monuments and landmarks they described
could not be located. In more recent times, however, accurate surveys and verifiable

                                              5
recorded deeds are the rule. [Citation.] Where the evidence does not satisfy the
requirements of the doctrine, the law should not employ the agreed-boundary doctrine ‘to
trump the boundary established by the legal records’ [citation] and ‘to disposses[s] an
owner of his land when a legal means of establishing an accurate boundary lies quite
readily and conveniently to hand.’ [Citation.]” (Mehdizadeh v. Mincer (1996) 46
Cal.App.4th 1296, 1304.)
        In Armitage v. Decker (1990) 218 Cal.App.3d 887 (Armitage), plaintiff sought to
apply the agreed boundary doctrine to establish that an old picket fence was the true
boundary even though it was not built along the boundary set forth in the deed
descriptions. The court considered the role of acquiescence in the fence as the boundary
line. “Both the elements of uncertainty as to the true line and agreement to fix a
boundary may be inferred from evidence of many years of acceptance of a fence as a
boundary. [Citations.] Thus, proof of long-standing acquiescence in a fence as a
boundary may be sufficient to prove an agreed boundary in the absence of proof that the
boundary was not created to resolve uncertainty. [Citation.] On the other hand, proof of
acquiescence in the existence of a fence without evidence of an agreement to take the
fence as a boundary is not sufficient to establish an agreed boundary. [Citations.]
Similarly, the mere assumption by an owner on one side of an existing fence or other
marker that it in fact marks the boundary is insufficient. [Citations.]” (Id. at pp. 899-
900.)
        The Armitage court found insufficient evidence to establish the elements of the
doctrine. Plaintiff failed to prove the fence had been built to resolve uncertainty as to the
boundary, instead relying on “the jury inferring uncertainty and agreement from long-
standing acquiescence in the picket fence as the boundary.” (Armitage, supra, 218
Cal.App.4th at p. 901.) Plaintiff failed to prove landowners on both sides of the fence
accepted the fence as their properties’ boundary. (Ibid.)



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       The Armitage court went on to discuss the policy objectives underlying the
doctrine and endorsed the view that gave preference to boundaries set by legal
descriptions. It suggested a limited use of the agreed boundary doctrine where recorded
legal descriptions permit accurate surveys.3 (Armitage, supra, 218 Cal.App.4th at pp.
902-903.) “[T]o allow the doctrine of agreed boundaries to supercede recorded legal
descriptions of the property where, as here, they are fully consistent, would not only
destroy the significance of recorded instruments but would foster litigation rather than
preventing it. [Citation.] While the doctrine of agreed boundaries has never been
intended to be a means of divesting an unconsenting landowner of his property [citation],
this is precisely its effect when used to overcome long-standing accurate legal
descriptions of property.” (Id. at p. 903.)
       In Bryant, our Supreme Court decided “whether a court should apply [the agreed-
boundary] doctrine to resolve a boundary dispute where available legal records provide a
reasonable basis for fixing the boundary and the party relying upon the doctrine fails to
establish that uncertainty as to the location of the true boundary led to an agreement
between the landowners to create a boundary at an agreed-upon location. We hold that
the doctrine is inapplicable under these circumstances.” (Bryant, supra, 9 Cal.4th at pp.
49-50.) Although the court declined to limit application of the doctrine to situations
where existing legal records were inadequate to establish the boundary (id. at p. 54), the
court refused to apply the doctrine in that case despite long-standing acquiescence in a
barbed wire fence as the boundary where the boundary could be determined from legal
records. Accepting the reasoning of Armitage, the court found the doctrine did not apply
where there was an objectively certain legal description and no evidence suggested that



3 Although defendants contend this portion of Armitage is merely dicta, our Supreme
Court endorsed this policy discussion in Bryant, supra, 9 Cal.4th at page 58, as we
discuss post.

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uncertainty led to the creation of an agreed boundary of a fence. (Id. at p. 60.) “[W]hen
existing legal records provide a basis for fixing the boundary, there is no justification for
inferring, without additional evidence, that the prior owners were uncertain as to the
location of the true boundary or that they agreed to fix their common boundary at the
location of a fence. [Citation.] In view of the significant policy considerations set forth
in Armitage, the agreed-boundary doctrine should not be invoked under the
circumstances of the present case to trump the boundary established by the legal records.
[Citation.]” (Id. at p. 58.)
          The Bryant court compared the facts in Ernie, supra, 51 Cal.2d 702, where the
agreed boundary doctrine was applied based in part on acquiescence. There, the dispute
was over ownership of a strip of land less than a foot wide and 140 feet in length.
Defendant’s predecessor, also a church, had constructed a rectory and a cement walkway
with a fence imbedded in it on this strip of land, and there had been no objection to these
structures for 26 years. (Id. at pp. 704, 708.) After plaintiff purchased the lot next to the
church, she commissioned a new survey and then claimed title to the strip of land. (Id. at
pp. 704-705.) Noting that: “The court may infer that there was an agreement between
the coterminous owners ensuing from uncertainty or a dispute, from the long-standing
acceptance of a fence as a boundary between their lands. [Citation.]” (id. at p. 708), the
Ernie court continued: “It may be inferred that there was an uncertainty as to the true
line at the time the structures were erected, which uncertainty was settled by practical
location on the ground at that time and was agreed to by the then coterminous owners.”
(Ibid.)
          The Bryant court read this passage of Ernie to infer uncertainty “presumably
because the defendant’s predecessor had a survey conducted immediately prior to
construction of the rectory, walkway and fence.” (Bryant, supra, 9 Cal.4th at p. 57.)
Ernie was distinguishable because in that case there was additional evidence of
uncertainty and acceptance, beyond mere acquiescence, so the doctrine applied despite

                                               8
the ability to establish the true boundary from recorded legal documents. Further, in
Ernie, the improvements on the disputed property were more substantial than a fence.
“Thus, a fence--which, in [Ernie], we observed ‘might in and of [itself] be of an
uncertain, temporary or equivocal nature’--is not the type of ‘substantial structure[]’ from
which an agreement to accept an agreed boundary reasonably may be inferred in the
absence of evidence that uncertainty on the part of the property owners led to their
agreement to rely upon the fence as evidence of their common boundary.” (Id. at pp. 59-
60.)
       B. Analysis
       Defendants contend that both the elements of uncertainty and agreement can be
inferred from the acquiescence to the fence as the boundary. They rely on portions of
statements in Bryant, as well as Ernie and other pre-Bryant cases, and factual distinctions
based on the sturdiness of the fence at issue here compared to a barbed wire or picket
fence. However, as Bryant made clear: “[W]hen existing legal records provide a basis
for fixing the boundary, there is no justification for inferring, without additional
evidence, that the prior owners were uncertain as to the location of the true boundary or
that they agreed to fix their common boundary at the location of a fence. [Citation.]”
(Bryant, supra, 9 Cal.4th at p. 58, italics added.) In Ernie, the survey conducted before
the rectory and walkway were built provided that additional evidence of uncertainty.
There is no such additional evidence of uncertainty here.
       Defendants argue uncertainty can be inferred here because, as in Ernie, there was
a survey before the fence was constructed. At trial, the surveyor testified a survey was
required to set the monuments before the property could be subdivided. There is no
evidence, however, that the fence was constructed based on that survey. Indeed, as
subsequently determined by the Sharmas’ survey, which defendants do not dispute, the
fence was not placed in accordance with the survey subdividing the land. Accordingly,



                                              9
the survey provides no evidence that the fence was intended to clarify and establish an
uncertain boundary.
       Because there was no evidence to support application of the agreed boundary
doctrine in this case, the trial court did not err in rejecting it.
                                                III
                                              Laches
       Defendants next contend the trial court erred in concluding that the defense of
laches did not apply. The trial court found insufficient evidence of prejudice. Plaintiffs
argue that they were prejudiced by plaintiffs’ delay in seeking to correct the boundary
because they detrimentally relied upon the fence as the boundary.
       “Laches is an equitable time limitation on a party’s right to bring suit, resting on
the maxim that ‘equity aids the vigilant, not those who sleep on their rights.’
[Citations.]” (Magic Kitchen LLC v. Good Things Intern., Ltd. (2007) 153 Cal.App.4th
1144, 1156.) “The elements required to support a defense of laches include unreasonable
delay and either acquiescence in the matter at issue or prejudice to the defendant resulting
from the delay. [Citation.] Generally, laches is a question of fact, but where the relevant
facts are undisputed, it may be decided as a matter of law. [Citation.]” (City of Oakland
v. Oakland Police and Fire Retirement System (2014) 224 Cal.App.4th 210, 248.)
       Although plaintiffs acquiesced in the location of the fence for many years,
defendant points to no evidence that plaintiffs knew the fence was not on the boundary,
and we see none. Unknowing acquiescence will not support the defense of laches.
“ ‘Laches is an implied waiver resulting from knowing acquiescence in existing
conditions and an inexcusable delay in asserting a right which results in prejudice to the
adverse party.’ ” (Marriage v. Keener (1994) 26 Cal.App.4th 186, 191.)
“ ‘Acquiescence, to constitute laches, “must be with the knowledge of the wrongful acts
themselves and of their injurious consequences, it must be voluntary, not the result of
accident, nor of causes rendering it a physical, legal or moral necessity, and it must last

                                                10
an unreasonable length of time, so that it will be inequitable even to the wrongdoer to
enforce the peculiar remedies of equity against him, after he has been suffered to go on
unmolested and his conduct apparently acquiesced in.” ’ ” (Nelson v. Robinson (1941) 47
Cal.App.2d 520, 531; see Alexander v. State Capital Co. (1937) 9 Cal.2d 304, 313; 30
Cal.Jur.3d, Equity (2013) § 43, p. 598.)
       In asserting prejudice, defendants rely on Brown v. State Personnel Bd. (1985) 166
Cal.App.3d 1151, which held at page 1162 that “prejudice may also be established by
detrimental reliance by the affected party upon the status quo. [Citations.]”4 In Brown, a
university professor was dismissed based on three instances of sexual harassment, two in
1975 and one in 1979. (Id. at pp. 1155-1157.) This court found laches barred use of the
two earlier incidents. We found prejudice because Brown had relied upon the status quo.
In 1976, the tenure committee had advanced Brown to tenure, despite knowledge and
discussion of the 1975 incidents, causing him to forego other employment opportunities.
(Id. at p. 1162.) “The loss of four years at the outset of an academic career is a
considerable change of position in reliance upon the status quo. That works a sufficient
prejudice to transform the unreasonable delay in this case into the bar of laches.” (Id. at
p. 1163.)
       We find Brown distinguishable. In Brown, the university alone controlled whether
the status quo of Brown’s continued employment would be changed because of the 1975
allegations of misconduct. Brown was justified in believing the university did not believe
the 1975 allegations warranted either investigation or discipline because he was promoted
to tenure after the allegations were raised and discussed. It was only the university’s



4 Plaintiffs unhelpfully dismiss Brown without discussion because it “has nothing
whatsoever to do with property or property lines, or purchasing property. Its facts
provide no guidance on the application of the laches defense here at all.” We disagree
because Brown does provide guidance on the application of laches, although it is
distinguishable.

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delay in pursuing the known 1975 allegations of misconduct that caused Brown’s
detrimental reliance. That is not the case here. Plaintiffs were not aware that the fence
was not placed correctly as to constitute an accurate boundary line. While they could
have easily ascertained the true boundary, the same is true of defendants. Unlike in
Brown, the plaintiffs did not control the situation. Had plaintiffs sold their house to
another who immediately investigated the true boundary, defendants would have been in
the same position as they are now. Any harm to them was not due solely to plaintiffs’
delay.
         Further, there was no evidence that defendants relied to their detriment on the
misplaced fence. They testified a large backyard was important to them, but did not
testify they passed over opportunities to purchase other houses with large yards or would
not have purchased the house on Allan Avenue if they had known the yard was actually
smaller than it appeared.5 Unlike in Brown, we cannot assume that plaintiffs’ delay
induced defendants to forego other opportunities.
         Defendants have failed to show detrimental reliance sufficient to constitute
prejudice for purposes of laches. The trial court did not err in rejecting the defense.
                                              IV
                               Sanctions for Frivolous Appeal
         Plaintiffs contend defendants’ appeal is frivolous because it is “indisputably has
no merit.” They moved to dismiss this appeal and for sanctions against defendants in the
amount of $21,241.25, the amount they spent on costs and attorney fees.
         Code of Civil Procedure section 907 and rule 8.276(a)(1) of the California Rules
of Court authorize a court of appeal to impose sanctions for a frivolous appeal. “[A]n



5 In an answer to interrogatories, defendants claimed they would not have purchased the
house if it had a smaller yard. However, there was no evidence presented at trial on this
point.

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appeal should be held to be frivolous only when it is prosecuted for an improper motive--
to harass the respondent or delay the effect of an adverse judgment--or when it
indisputably has no merit--when any reasonable attorney would agree that the appeal is
totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637,
650 (Flaherty).)
       In Flaherty, our Supreme Court stressed the difficulty in distinguishing frivolous
and nonfrivolous appeals and cautioned that any definition of “frivolousness” must be
applied “so as to avoid a serious chilling effect on the assertion of litigants’ rights on
appeal. Counsel and their clients have a right to present issues that are arguably correct,
even if it is extremely unlikely that they will win on appeal. An appeal that is simply
without merit is not by definition frivolous and should not incur sanctions. Counsel
should not be deterred from filing such appeals out of a fear of reprisals.” (Flaherty,
supra, 31 Cal.3d at p. 650.) Sanctions for frivolous appeals “should be used most
sparingly to deter only the most egregious conduct.” (Id. at p. 651.)
       Although we have found no merit in defendants’ appeal, given the strict standard
for imposing sanctions, we do not find the appeal was frivolous. There is no evidence
that the appeal was taken for the purpose of harassment or delay, or in bad faith. As to
the merits, it appears counsel had a sincere belief in the merits of the appeal and set forth
reasoned arguments with citation to authority. Further, plaintiffs’ motion for sanctions is
lacking. Plaintiffs rely solely on defendants’ assertion of the agreed boundary defense,
and fail to even mention the laches defense, let alone argue it was frivolous. They fail to
address defendants’ argument of detrimental reliance as prejudice. We will deny their
motion.




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                                       DISPOSITION
          The motion to dismiss the appeal and for sanctions is denied. The judgment is
affirmed. Plaintiffs shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)
& (2).)



                                                         /s/
                                                   Duarte, J.



We concur:



      /s/
Blease, Acting P. J.



      /s/
Butz, J.




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