Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Rolf M. Treu, Judge, Los Angeles County Super. Ct. No. BC342411
A. Marcus Hall & Associates and Alvin M. Hall for Defendants and Appellants.
Law Office of Robert G. Klein and Robert G. Klein for Plaintiff and Respondent.
CHAVEZ, J.
This action concerns two parcels of property in Los Angeles. Lot 122 is located at 5255 Adams Boulevard and is owned by defendants and appellants Richard Wilson and Gilda Wilson (the Wilsons), as co-trustees of the Wilson Family Trust (the Trust). Defendant and appellant Alpha Schools, Inc. (Alpha Schools) is a school that operates on the property. Lot 120 is an undeveloped, triangular-shaped parcel that adjoins the southern border of Lot 122, and is owned by plaintiff and respondent Itai Ben-Artzi, as trustee of The 5242 Adams Land Trust (respondent). Appellants claimed to have an easement over Lot 120, and respondent filed this action for quiet title, trespass, and injunctive and other relief.
The Wilsons, the Trust, and Alpha Schools are referred to collectively as appellants.
Following a bifurcated trial, the trial court ruled that appellants had no easement rights over Lot 120 and enjoined appellants from entering onto or obstructing access to Lot 120, and from interfering with respondent’s use and enjoyment of that property. A jury tried the trespass and damages issues and awarded respondent $41,400 in damages. A judgment in that amount was entered against appellants. We affirm the judgment, as modified herein.
BACKGROUND
1. The Parties and the Properties
The Wilsons purchased Lot 122 in October 1979. The grant deed conveying Lot 122 to the Wilsons described the property rights conveyed as including a “[r]ight of way over the Northerly 12 feet of Lot 120 Tract 1446, as recorded in Book No. 8303, page 248 of Official Records of Los Angeles County, California.” The document recorded in Book No. 8303, page 248 of the Official Records of Los Angeles County is a grant deed dated January 20, 1928, from Fred J. Long conveying Lot 120 to Robert E. Duff and Belle McClure Duff, but “[r]eserving unto the owners of Lot One Hundred and Twenty-Two (122) . . . a right of way over the Northerly Twelve (12) feet of said Lot One Hundred Twenty (120) for driveway purposes only.”
At the time the Wilsons purchased Lot 122, there were no walls or fences around the property. A house was located at the rear of the property, and the only way to access the house was to drive across Lot 120. After the Wilsons purchased Lot 122, they demolished the house and constructed a school. In late 1978 or early 1979, the Wilsons erected a chain-link fence between Lot 122 and Lot 120. They subsequently replaced the chain-link fence with a solid wall.
After the Wilsons constructed the wall separating Lot 120 and Lot 122, they placed a roll-off trash container inside a gated housing on the southeast corner of Lot 122, immediately adjacent to Lot 120. A refuse service company came to empty the trash container on a weekly basis, and its employees accessed the trash container by driving or walking over Lot 120.
In February 2003, respondent purchased Lot 120 and Lot 123, an undeveloped parcel immediately adjacent to Lot 120, from Steven Yablock. Respondent had purchased the two properties with the intent to construct an office building on Lot 123 and to provide parking on Lot 120. In order to proceed with the proposed development, respondent applied for a zoning variance from the City of Los Angeles, as Lot 120 was zoned for residential use only. In December 2003, a hearing was held before the Los Angeles Department of City Planning, Office of Zoning Administration, concerning the requested zoning change. The Wilsons appeared at the hearing and opposed respondent’s application, claiming they had an easement over Lot 120. In February 2004, the City denied respondent’s application for a zoning change.
In September 2005, appellants undertook construction activity at Alpha Schools, created space for additional parking on Lot 122, and removed the wall separating Lot 122 from Lot 120. Respondent thereafter noticed construction debris being deposited on Lot 120, as well as an increase in traffic over Lot 120 as Alpha Schools employees began driving across Lot 120 to park in the school’s parking lot.
2. The Instant Lawsuit
Respondent commenced this action against appellants in November 2005, alleging causes of action for quiet title, trespass, nuisance, unfair competition, and declaratory and injunctive relief. Appellants answered and cross-complained against respondent for quiet title, trespass, nuisance, destruction of personal property, ejectment, interference with right to quiet enjoyment, interference with contractual relationship, and injunctive and declaratory relief.
The trial court bifurcated the quiet title and declaratory relief causes of action and tried those claims without a jury. At the trial, respondent’s beneficiary, Gabriel Fedida, testified concerning respondent’s acquisition of Lot 120 and its efforts to obtain a zoning change for the property. Fedida also testified about appellants’ removal of the wall that had separated Lot 120 and Lot 122, and their subsequent use of Lot 120 as a staging area for construction debris and as a driveway access to Lot 122.
Gilda Wilson testified that she and her husband purchased Lot 122 in 1978, that the property rights they acquired included an easement over the northerly 12 feet of Lot 120, and that the documents recorded during that purchase transaction described the easement. Wilson said that at the time they purchased Lot 122, no fences or walls surrounded it, but that the only way to access a house that was located at the rear of the property was to use Lot 120 as a driveway. Wilson stated that in late 1978 or early 1979, she and her husband installed a chain-link fence between Lot 122 and Lot 120, and that they later replaced the fence with a solid wall. Wilson testified that they stored a roll-off trash container in a gated area on Lot 122, and a refuse service company drove its truck over Lot 120 in order to empty the trash container. Wilson further testified that she advised respondent’s predecessor in interest, Stephen Yablock, that appellants had the right to use Lot 120 for ingress and egress. According to Wilson, some time in the late 1990’s, Yablock had parked a truck on Lot 120, blocking access to the trash container stored on appellants’ property. Wilson said that she showed Yablock a copy of the deed describing appellants’ purported easement rights, asked him to move the vehicle, and Yablock complied with her request.
Yablock testified that he owned other property in the neighborhood since 1990 and that he owned Lot 120 from 1994 until February 2003. He said that he was familiar with Lot 120 and what happened on that property from 1990 until 2003, but that he did not know what happened on the property before 1990. Yablock said that he did not recall having had any discussion with the Wilsons about their purported easement rights over Lot 120, that they never showed him any document indicating they had an easement over Lot 120, and that appellants never did anything that would have led him to believe they were attempting to use Lot 120 in a manner adverse to him. Yablock testified that he tried to be “a good neighbor” by allowing one of the teachers at Alpha Schools to park her car on Lot 120 from time to time. Yablock further testified that the Wilsons had asked for his permission to roll their trash container across his property when it needed to be emptied, and that he gave them permission to do so.
Kenneth Price, a neighbor who lived near Alpha Schools, testified that he observed the school’s trash container being emptied many times. He said that the trash truck “would pull up and just nose into the entrance” of Lot 120, and the drivers would exit the truck and roll the trash container across Lot 120 to be emptied, and then roll it back across Lot 120 to appellants’ property.
Seton Smith testified that his refuse service company removed the trash at Alpha Schools for approximately 20 years, and that he and his father drove a 10-wheel, front-loading trash collection truck across Lot 120 to empty the dumpster located on the Alpha Schools property.
At the conclusion of the quiet title portion of the trial on January 2, 2007, the trial court issued a tentative ruling in favor of respondent. Respondent’s trespass and damages claims were then tried by a jury. On November 20, 2007, the jury returned a verdict in respondent’s favor, determining that appellants had trespassed on respondent’s property and that their unauthorized entry onto the property was a substantial factor in causing harm to respondent and its property. The jury awarded respondent $41,400 in damages for past economic losses, including lost rental value.
Judgment was entered in respondent’s favor on December 4, 2007. The judgment states that any express easement or easement by reservation that may have existed over the northerly 12 feet of Lot 120 was extinguished by appellants’ abandonment; that appellants failed to establish a prescriptive easement over Lot 120; that respondent has title to Lot 120 free from any interest, easement, title or right in favor of appellants or their successors to Lot 122; and respondent’s proposed development plans submitted to the City of Los Angeles would not interfere with any rights, title, or easement that may have been found to exist in favor of appellants. The judgment further enjoins appellants from trespassing, entering onto, or driving any vehicle over respondent’s property, from obstructing access to respondent’s property, from removing any fences on or damaging any personal property located on respondent’s property, and from interfering with respondent’s use and enjoyment of its property.
Appellants contend the evidence is insufficient to support the trial court’s findings that any express easement or easement by reservation that may have existed over Lot 120 was extinguished by appellants’ abandonment; that appellants failed to establish a prescriptive easement over Lot 120; and that the proposed development plans respondent submitted to the City of Los Angeles would not interfere with any rights, title, interest or easement that may have been found to exist in favor of appellants. Appellants also challenge the sufficiency of the evidence to support the scope of the injunctive relief granted by the trial court and the amount of damages awarded by the jury.
DISCUSSION
I. Standard of Review
We review appellants’ challenges to the judgment, based on the sufficiency of the evidence, under the substantial evidence standard of review. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Under this standard, a reviewing court has no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
II. Extinguishment of Easement
Appellants contend the evidence is insufficient to support the trial court’s finding that any easement that existed over Lot 120 was extinguished by their abandonment. As we discuss, substantial evidence supports that finding.
A. Nature and Scope of Easement
The extent of an easement is determined by the terms of the grant. (Civ. Code, § 806; City of Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 579.) The scope of appellants’ purported easement rights is determined by two separate grant deeds. The first grant deed, dated October 31, 1979, conveyed Lot 122 to the Wilsons and included a “[r]ight of way over the Northerly 12 feet of Lot 120 . . . as recorded in Book No. 8303, page 248 of Official Records of Los Angeles County, California.” The second grant deed, dated January 20, 1928, is the document recorded in Book No. 8303, page 248 of the Los Angeles County records that is referred to in the Wilsons’ grant deed. The January 20, 1928 grant deed conveyed Lot 120 to Robert E. Duff and Belle McClure Duff but “[r]eserv[ed] unto the owners of Lot One Hundred and Twenty-Two (122) of said Tract Fourteen hundred Forty-six (1446) a right of way over the Northerly Twelve (12) feet of said Lot One Hundred Twenty (120) for driveway purposes only.” Any easement conveyed to the Wilsons was thus “for driveway purposes only.” (Civ. Code, § 803.)
B. Abandonment
An easement, regardless of how created, can be abandoned by its owner. (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 15:79, p. 15-253.) Whether an easement has been abandoned depends upon the intent of the owner. (Tract Dev. Serv. v. Kepler (1988) 199 Cal.App.3d 1374, 1385.) “Whether the owner of an easement intends to abandon it is a question of fact determined by his or her conduct and the surrounding circumstances.” (6 Miller & Starr, Cal. Real Estate, supra, § 15:79, p. 15-255, fns. omitted.) The evidence must show an express or implied intent to abandon all present and future use of the easement by some unequivocal or decisive act demonstrating such intent. (Ibid.; Tract Dev. Serv. v. Kepler, supra, at p. 1385.)
The record contains substantial evidence of the Wilsons’ express or implied intent to abandon any easement over Lot 120 conveyed to them. At the time the Wilsons acquired Lot 122, no walls or fences surrounded the property, and the only way to access the house that was located on the property was to drive across Lot 120. The grant deed conveying Lot 122 to the Wilsons accordingly included a driveway easement over Lot 120. The Wilsons eliminated the driveway access when they constructed a wall separating the two properties. Installation of a solid wall between Lot 120 and Lot 122 was an unequivocal act manifesting an intent to abandon the driveway easement.
Appellants contend that continued use of the easement by their refuse service company conflicts with the trial court’s finding of an intent to abandon their easement rights. Such conflicting evidence, however, is insufficient to overturn the trial court’s finding. “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Substantial evidence supports the trial court’s finding that any easement that may have existed over Lot 120 was extinguished by appellants’ abandonment.
III. Prescriptive Easement
Appellants challenge the sufficiency of the evidence to support the trial court’s finding that they failed to establish a prescriptive easement over Lot 120. The elements necessary to establish a prescriptive easement are use of the property over a five-year period that is (1) open and notorious, (2) continuous and uninterrupted, (3) adverse or hostile to the owner, and (4) under a claim of right. (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045.)
The open and notorious element requires a use that is “sufficiently visible . . . so that anyone viewing the servient tenement would discover the easement.” (6 Miller & Starr, Cal. Real Estate, supra, § 15:34, p. 15-129, fn. omitted.) The use must be sufficient to give the owner actual or constructive notice of the use. (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977.) Constructive notice may arise from “actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact.” (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 236.)
The elements of hostility and claim of right refer to adverse use by the claimant. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252.) The element of hostility means “‘the claimant’s possession must be adverse to the record owner, “unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter.” [Citation.]’ [Citations.]” (Otay Water Dist. v. Beckwith, supra, 1 Cal.App.4th at p. 1045.) To establish a prescriptive easement the adverse user “‘“must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.”’” (Myran v. Smith (1931) 117 Cal.App. 355, 362, quoting Curtis v. La Grande Water Co. (S.Ct. Or. 1890) 23 P. 808, 810.) “Permissive use alone is not sufficient to establish a prescriptive title to a right of way over the lands of another. [Citation.] [¶] . . . [¶] ‘The presumption of ownership of land is with the paper title and clear evidence is necessary to overcome this presumption; and the adverse claim of right must not only exist in the mind of the claimant, but must be proved to have been communicated in some way to the owner, so that his failure to object may be taken against him as an acknowledgement or acquiescence in the right claimed. [¶] . . . [¶] A prescriptive title cannot arise out of an agreement, but must be acquired adversely, and it cannot be adverse when it rests upon a license or mere neighborly accommodation.’” (Case v. Uridge (1960) 180 Cal.App.2d 1, 7-8, quoting Eddy v. Demichelis (1929) 100 Cal.App. 517, 520-521.)
The burden of proof as to each element is ordinarily upon the person claiming the prescriptive easement. (Civ. Code, § 1007; Code Civ. Proc., § 321; Bennett v. Lew (1984) 151 Cal.App.3d 1177, 1183.) There is a split in authority, however, as to whether a claimant’s showing of open and continuous use for a long period of time without the landowner’s interference gives rise to a presumption of adverse use that shifts the burden to the landowner to show permissive use. (Compare Warsaw v. Chicago Metallic Ceilings (1984) 35 Cal.3d 564, 571-572; Fleming v. Howard (1906) 150 Cal. 28, 30; MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 701-702; Applegate v. Ota (1983) 146 Cal.App.3d 702, 709; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Smith v. Skrbek (1945) 71 Cal.App.2d 351, 358 [applying presumption] with O’Banion v. Borba (1948) 32 Cal.2d 145, 148-150; Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1309; Bennet v. Lew, supra, at p. 1184; LeDeit v. Ehlert (1962) 205 Cal.App.2d 154, 160-162, 170-171 [declining to apply presumption].)
In Grant v. Ratliff, supra, 164 Cal.App.4th 1304, Division Six of this court concluded that a presumption shifting the burden of proof should not be applied to favor the creation of a prescriptive easement. The court reasoned: “A presumption affecting the burden of proof is a presumption established to implement some public policy. . . . Certainly the doctrine of prescriptive easement, like all legal doctrines, exists to provide some social benefit. But continually trespassing on another’s land is generally not such a socially useful activity that a presumption affecting the burden of proof in favor of an easement by prescription is warranted.” (Id. at p. 1310.) We agree with the reasoning set forth in Grant and decline to apply a rule that would require the landowner to bear the burden of proving permissive use.
Appellants here presented evidence that their refuse company drove a trash truck across Lot 120 on a weekly basis over a 20-year period, but there was no showing that such use was adverse to the owners of Lot 120. Respondent, on the other hand, presented evidence of permissive use. Stephen Yablock, a former owner of Lot 120, testified that the Wilsons asked for his permission to enter Lot 120 in order to empty their trash container, and that he gave them his express permission to do so. Yablock further testified that appellants never did anything that would have led him to believe they were attempting to use Lot 120 in a manner adverse to him. There was also evidence that appellants’ use of Lot 120 was more limited than they claimed. Kenneth Price, who lived next door to appellants’ property and who observed the trash container being emptied on many occasions, testified that the trash truck “would pull up and just nose into the entrance” of Lot 120, rather than driving across the property, as appellants claimed. According to Price, the drivers would exit the trash truck, retrieve the dumpster stored on appellants’ property, roll the dumpster across Lot 120 to the truck to be emptied, and then roll it back to appellants’ property. Lot 120 was, at all relevant times, an undeveloped parcel of property. From this evidence, one could reasonably infer that the owners of Lot 120 would not have had actual or constructive notice of appellants’ use, which was not so apparent “that anyone viewing the servient tenement would discover the easement.” (6 Miller & Starr, Cal. Real Estate, supra, § 15:34, p. 15-129, fn. omitted.) Substantial evidence supports the trial court’s determination that appellants failed to establish a prescriptive easement over Lot 120.
IV. Respondent’s Development Plans
Appellants challenge the sufficiency of the evidence to support the trial court’s finding that “[Respondent’s] development plan submitted to the City of Los Angeles as evidenced as trial exhibit 7 does not and would not interfere with any rights, title, interest, or easement that may have been found to exist in favor of [Appellants] and or any successor to Lot 122 of Tract 1446.” Substantial evidence does not support the finding that respondent’s development plan does not and would not interfere with “any” rights, title and interest that may have been found to exist in favor of appellants and their successors in interest. The evidence presented was limited to appellants’ purported easement rights over Lot 120 and the harm suffered by respondent as the result of appellants’ entry onto that property. The judgment accordingly should be modified to state that respondent’s development plan does not and would not interfere with “any rights, title, interest or easement over Lot 120 of Tract 1446 that may have been found to exist in favor of Defendants and Cross-Complainants or any successor to Lot 122 of Tract 1446.”
V. Scope of Injunctive Relief
Appellants challenge the sufficiency of the evidence to support the scope of the injunctive relief granted by the trial court. The trial court enjoined appellants, “their tenants, successors, agents, occupants, shareholders, principals, and all those acting on their behalf or in concert with them” from (a) trespassing or entering onto respondent’s property, including Lot 120; (b) driving any vehicle over respondent’s property, including Lot 120; (c) obstructing respondent’s access to its property, including Lot 120; (d) removing any fences on respondent’s property; (e) damaging any personal property located on respondent’s property; and (f) interfering with respondent’s use and enjoyment of respondent’s property.
“‘A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate. . . .’ [Citation.]” (City of S. Pasadena v. Dep’t of Transp. (1994) 29 Cal.App.4th 1280, 1293.) A permanent injunction “is an appropriate remedy for a continued trespass. [Citation.]” (Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390, fn. omitted.) We review the trial court’s issuance of the injunction for substantial evidence. (City of S. Pasadena, supra, at p. 1293.)
The evidence shows that appellants trespassed on respondent’s property and that they continued to do so after the trial court issued its tentative ruling in respondent’s favor and respondent demanded that they stop entering onto the property. Appellants removed the wall separating Lot 122 and Lot 120 sometime after August 2004 and began directing traffic from Cloverdale Avenue across Lot 120 to the Alpha School parking lot. After the trial court issued its tentative ruling in respondent’s favor in November 2006, appellants continued to allow cars to drive across Lot 120 in order to park at Alpha Schools. Although respondent wrote appellants a letter in June 2007 attaching a copy of the trial court’s tentative ruling and asking appellants to stop allowing cars to drive across Lot 120, appellants continued to do so. Substantial evidence supports the trial court’s issuance of the injunction.
VI. Damages Award
Appellants contend the evidence is insufficient to support the jury’s award of $41,400 in damages for past economic loss, including loss of reasonable rental value. During the damages portion of the trial, Gabriel Fedida testified that the reasonable rental value of Lot 120 was approximately $1,000 per month, based on previous offers he had received to rent both Lot 120 and Lot 123, and the relative square footage of the two properties. Fedida also testified about expenses respondent incurred in connection with the hearing on the application to rezone Lot 120, damage to and loss of personal property respondent had stored on Lot 120, and the cost of repairing asphalt damaged as the result of cars being driven over Lot 120. Substantial evidence supports the damages award.
DISPOSITION
The trial court shall modify the judgment to state that the development plan respondent submitted to the City of Los Angeles does not and would not interfere with any rights, title, interest, or easement over Lot 120 that may have been found to exist in favor of appellants and their successors in interest to Lot 122. The judgment, as modified, is affirmed. Respondent is awarded costs on appeal.
We concur: DOI TODD, Acting P.J., ASHMANN-GERST, J.