Opinion
F084353
09-28-2023
BRIAN DOLE, as Trustee, etc., et al., Plaintiffs and Respondents, v. ADOLFO F. GREGORIO et al., Defendants and Appellants.
Michael S. Warda for Defendants and Appellants. Berliner Cohen, Benjamin M. Johnson and Robert Aversa-Goodman for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. CV-20-003331 Stacy P. Speiller, Judge.
Michael S. Warda for Defendants and Appellants.
Berliner Cohen, Benjamin M. Johnson and Robert Aversa-Goodman for Plaintiffs and Respondents.
OPINION
DE SANTOS, J.
Appellants/defendants Adolfo Gregorio and Lifang Liu appeal from an amended judgment in favor of respondents/plaintiffs Brian Dole (in his capacity as a trustee) and Richard Vande Pol and Annette Vande Pol (in their capacities as trustees), in which the Stanislaus County Superior Court declared defendants' commercial real property burdened by a nonexclusive perpetual easement for the benefit of, and appurtenant to, plaintiffs' adjacent commercial real property.
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs are the owners of commercial real property commonly known as 2028 West Orangeburg Avenue, Modesto, California ("plaintiffs' parcel"). They acquired plaintiffs' parcel in July 2019 from its prior owners (hereafter, "plaintiffs' predecessors in interest") who had acquired title to the property in 2010.
Plaintiff Brian Dole holds a fifty percent (50%) undivided interest in plaintiffs' parcel in his capacity as trustee of the Dole 2019 Trust dated May 10, 2019. Plaintiffs Richard and Annette Vande Pol hold the remaining fifty percent (50%) undivided interest in plaintiffs' parcel in their capacity as trustees of the R & A Vande Pol 2016 Revocable Trust, dated December 15, 2016.
John R. Rico and Manuel H. Pires, plaintiffs' predecessors in interest, obtained title to plaintiffs' parcel by way of grant deed recorded on May 27, 2010. Rico subsequently transferred his interest in plaintiffs' parcel to himself as trustee of The John R. Rico Family 2016 Trust. Pires subsequently transferred his interest to himself and Connie D. Pires, as trustees of the Manuel H. Pires and Connie D. Pires Revocable Trust dated June 15, 2007. Plaintiffs' predecessor in interest, Connie D. Pires, was added to title in her capacity as a trustee by way of a trust transfer deed recorded on August 20, 2018.
Defendants are the owners of commercial real property located adjacent to plaintiffs' parcel and commonly known as 2024 West Orangeburg Avenue, Modesto, California ("defendants' parcel"). Defendant Gregorio has owned an interest in defendants' parcel since 2011. He transferred title to the property to himself and defendant Liu, as husband and wife, on October 26, 2017.
In 2011, title to defendants' parcel was transferred from its prior owners to defendant Adolfo Gregorio and Lucy Gregorio (also a named defendant), husband and wife, as community property. Lucy Gregorio, as an unmarried woman, transferred her interest to Adolfo Gregorio as his sole and separate property by way of interspousal transfer deed recorded on October 26, 2017. Defendant Liu was added to title by way of interspousal transfer (grant) deed recorded on October 26, 2017.
On August 5, 2020, plaintiffs filed a verified complaint to quiet title to a prescriptive easement across land owned by defendants, and for declaratory and injunctive relief. In their complaint, plaintiffs claimed to have acquired a prescriptive easement over a portion of defendants' parking lot and driveway entrance.
I. Description of the Parcels
Plaintiffs' parcel is situated immediately northwest of defendants' parcel and immediately southeast of a Jack-in-the-Box-all of which are located along West Orangeburg Avenue in Modesto. Plaintiffs' parcel contains a single commercial building abutting the lot line of defendants' parcel. On the other side of plaintiff's parcel (i.e., the northwestern side) is a single driveway entrance providing ingress to plaintiffs' parcel from West Orangeburg Avenue. A concrete wall or curb runs alongside plaintiffs' driveway entrance and separates plaintiffs' parcel from the Jack-in-the-Box parcel. To reach plaintiffs' parking area, a vehicle entering plaintiff's driveway entrance will continue alongside plaintiffs' building and make a left turn behind the building where there are four or five parking spaces. Plaintiff's parking area extends to the lot line of defendants' parcel.
On defendants' side of the lot line between plaintiffs' parcel and defendants' parcel (i.e., immediately southeast of the lot line) is defendants' parking lot area with parking spaces along the side of plaintiffs' abutting building. This parking lot area may be accessed from West Orangeburg Avenue using defendants' driveway entrance. Immediately southeast of this parking lot area and driveway entrance is defendants' commercial building.
There are no curbs or other impediments separating plaintiffs' parking area from defendants' parcel and parking area. Thus, except for a brief period of time during which
Plaintiffs obtained an entry of default against defendant Lucy Gregorio. Although Lucy Gregorio is a name defendant, any subsequent reference herein to "defendant Gregorio" or "Gregorio" is a reference to Adolfo Gregorio. defendant Gregorio obstructed the route, it was physically possible for vehicles exiting plaintiffs' parking area to do so by entering the parking lot of defendants' parcel, turning left, and then traveling through to defendants' driveway entrance to reach, and exit onto, West Orangeburg Avenue. Plaintiffs contend they have a prescriptive right to use this route ("easement route") along the northwestern side of defendants' parcel as a means of egress from their parking area. The diagram below illustrates the easement route and its relationship to the plaintiffs' parcel and defendants' parcel.
The diagram is an exhibit to the amended judgment.
(Image Omitted)
II. Plaintiffs' Case-in-Chief
A. Testimony of Plaintiffs' Predecessors In Interest
Plaintiffs' predecessors in interest, John R. Rico and Manuel H. Pires, testified they became owners of plaintiffs' parcel on May 27, 2010, and sold the property to plaintiffs in 2019. Their first tenant was a business identified by Rico as Choku Rei Center, LLP ("Choku Rei"). In 2012, after Choku Rei's tenancy ended, they leased the property to Angelica Hernandez who operated an insurance business. (Ms. Hernandez testified she also ran an online business selling women's athletic wear from the property.)
Rico testified that, during his ownership of plaintiffs' parcel, he always used the easement route to exit plaintiffs' parcel. He never received defendants' permission or consent to use it and, to his knowledge, neither did any of his tenants. Whenever vehicles were parked in defendants' parking stalls along the side of plaintiffs' building, Rico was able to navigate around them safely. Rico said it would have been possible for him to exit using plaintiffs' driveway entrance-but only if there were no incoming vehicles because the entrance was too narrow for two-way traffic. Rico's use of the easement route was relatively infrequent since he visited the property, on average, only four times a year. He did not know whether defendants saw him use the easement route but he never attempted to hide his use of it.
Pires testified he visited plaintiffs' parcel once or twice each quarter. He usually visited the property on his way to work around eight o'clock in the morning, or after work around five or six o'clock in the late afternoon/evening. Pires sometimes parked in the neighboring Jack-in-the-Box parking lot. More often, he parked in plaintiffs' parking area and always exited through defendants' parcel. He would typically use the easement route to exit but would sometimes use a different exit on defendants' parcel. He never asked for or obtained defendants' consent to exit over defendants' parcel and did not think he needed it. He never attempted to hide his use of the easement route.
This second means of exiting defendants' parcel is not subject to plaintiffs' prescriptive easement claims.
B. Plaintiff Brian Dole's Testimony
Plaintiff Brian Dole and the Vande Pols purchased plaintiffs' parcel on August 2, 2019. Angelica Hernandez was the then current tenant and her lease was scheduled to expire on November 1, 2019. After her lease expired, the property was vacant for two months before the new tenant, J's Smoke Shop, leased the property on January 3, 2020.
Dole testified he visited plaintiffs' parcel between five and 10 times prior to purchasing it. He always entered the property through plaintiffs' driveway entrance and always exited via the easement route. Prior to his purchase, Dole observed others, five to 10 individuals, including tenant Hernandez, doing the same. Dole never received defendants' permission to use the easement route and, to his knowledge, no one else did either. The only time Dole spoke with defendant Gregorio was in May 2020 when Gregorio told Dole not to use the easement route under any circumstances.
During the two month vacancy period prior to leasing the property to J's Smoke Shop, Dole witnessed leasing agents and prospective tenants using the easement route to exit plaintiffs' parcel on five to 10 occasions. During subsequent visits, he witnessed patrons and employees of J's Smoke Shop use the easement route on approximately another 10 occasions.
When Dole leased plaintiffs' parcel to J's Smoke Shop, he stated in the lease that there was a prescriptive easement over defendants' parcel. He based this on the design and apparent use of the ingress, egress, and parking areas of the two properties. Dole testified there was no nearby street parking.
Dole measured the width of plaintiffs' driveway entrance as 16 feet 4 inches and testified it was striped only with an arrow for entering vehicles. A video he took was entered into evidence and depicted two vehicles simultaneously attempting to use plaintiffs' entrance as both a means of ingress and egress to demonstrate it was too narrow for two-way traffic. After the trial court issued a preliminary injunction to prohibit plaintiffs (and those in privity with them) from using the easement route while the litigation was pending, Dole would have to make a multi-point turn to exit plaintiffs' parking area and use plaintiffs' driveway entrance to exit onto West Orangeburg Avenue.
Dole estimated defendants' driveway entrance, like plaintiffs' driveway entrance, was also too narrow to accommodate two-way traffic if defendants' parking spots were to be avoided.
C. Angelica Hernandez's Testimony
Plaintiffs' former tenant, Angelica Hernandez, testified that, during her entire seven-year tenancy, she regularly used the easement route to exit plaintiffs' parcel approximately eight times a month. At other times, she would exit via plaintiffs' driveway entrance without difficulty. Her husband would visit the property approximately once a month and would also use the easement route to exit plaintiffs' parcel. Her clients rarely, if ever, parked in plaintiffs' parking area-estimating such use at "maybe" one time per week. Typically, her clients would park in the adjacent Jack-in-the-Box parking lot.
At Hernandez's first encounter with Gregorio, he informed her that he had problems with the prior tenant's use of the easement route as an exit. However, Hernandez testified this did not cause her concern since her landlords at the time (i.e., plaintiffs' predecessors in interest) told her she should have no problem using the easement route to exit plaintiffs' parcel.
Hernandez testified defendant Gregorio never gave her permission, written or verbal, to use the easement route. She believed Gregorio knew she was using the easement route but he never told her to stop using it. Because they were good neighbors to each other, she believed she had Gregorio's consent to use the easement route. Later in her tenancy, Gregorio told her he was getting permits to construct a restaurant on defendants' parcel and that he was going to block the easement route.
D. Testimony of the Owner of J's Smoke Shop
Abdul Shaibi, the owner of J's Smoke Shop, testified he began renting plaintiffs' parcel in January 2020 and started serving customers toward the end of that month. During the period he was considering leasing plaintiffs' parcel and for the first several months thereafter, Shaibi used the easement route to exit plaintiffs' parking area. He used the easement route five or six days a week during the first two months and three to five days a week in the month or two thereafter. During those periods, he also witnessed two to four other cars use the same route each day he was present.
Shaibi testified Gregorio demanded Shaibi pay $15,000 a year or he would block the easement route. Shaibi did not agree. True to his word, defendant Gregorio blocked the easement route in or about March 2020. Thereafter, Shaibi used plaintiffs' driveway entrance as his means of exiting plaintiffs' parking area. Shaibi said exiting through the driveway entrance was difficult because he would have to make a five-point turn to reorient his car in the parking area and watch for cars as he was exiting.
III. Defendants' Case-in-Chief
A. Defendant Gregorio's Testimony
Defendant Gregorio testified he had a dispute with a former tenant of plaintiffs' parcel (i.e., the tenant prior to Hernandez, presumably an owner or employee of Choku Rei) shortly after purchasing the property. Specifically, in or about April 2011, Gregorio blocked the easement route with construction tape so he could remodel his property and the tenant drove through the tape. Gregorio then blocked the route with construction vehicles which prompted the tenant to come into Gregorio's building shouting obscenities. Both parties called the police. After that, the tenant stopped using the easement route.
Gregorio described his early interaction with tenant Hernandez. According to Gregorio, Hernandez visited him shortly after leasing plaintiffs' parcel and told him she knew of the incident with the prior tenant. Hernandez told him, "I know I'm not supposed to drive or park here" and "I usually go out through [plaintiffs' driveway entrance]." Gregorio did not say anything in response, and admitted he never told Hernandez she could, or could not, use the easement route. Gregorio testified, "if she had told me she was going to drive through there like the other customers and had a right to do that, I would have said, 'No, you cannot, and you cannot park there.' She didn't do that, sir." According to Gregorio, Hernandez was "very friendly, very nice" so he decided to merely monitor her use of the easement route, stating, "if I [had] seen customers there, if I [had] seen a lot of traffic through there, I would [have] shut her [down] in a heartbeat." Gregorio claimed he consented to Hernandez's use of the easement route by saying nothing to her and allowing her to use it. In defendants' original verified answer to plaintiffs' complaint, however, defendants admitted (without qualification) that "[p]laintiffs and those in privity, did not have [d]efendants' consent to use the [easement route]."
In defendants' amended verified answer to the complaint, defendants changed their response and averred Hernandez (but not others) had consent to use the easement route.
Gregorio confirmed he advised Hernandez he was going to start blocking the easement route in order to construct a restaurant. He said he told her this because he "didn't want to just drop that on her. [He] just wanted to say she needed to find other means."
Subsequently, when construction workers were remodeling plaintiffs' building in preparation for the opening of J's Smoke Shop and were parked in defendants' parking spaces along the side of plaintiffs' building, Gregorio told the smoke shop owner, "Okay, I'll allow you guys to use it for like two weeks, but after that you can't drive and you cannot park on that side."
Gregorio contends the easement route is too narrow to both accommodate twoway traffic and preserve parking capability in his existing parking spaces. He said his plans are to remodel the easement route area to provide more parking spaces, a trash enclosure, a grease trap, and an underground sewer to lead to the main city sewer.
B. Other Testimony
A licensed private investigator, Tim Helton, was hired by defendants to monitor customer and business-related traffic to J's Smoke Shop. He surveilled the area for three days in January 2021. He testified that, over the course of that three-day period, 341 cars had parked in the Jack-in-the-Box parking lot with ninety percent of those vehicle's occupants visiting the smoke shop; 34 cars used defendants' driveway entrance usually as a means of both ingress and egress; and foot traffic accounted for approximately 28 smoke shop patrons. (A paralegal for plaintiffs' counsel, Tim Kolb, reviewed investigator Helton's surveillance videos and, in rebuttal testimony, gave smaller estimates for the number of vehicles surveilled. He counted 95 cars entering the Jack-in-the-Box parking lot on January 7, 2020, with the occupants of 85 of those vehicles entering the smoke shop; 93 cars entering the Jack-in-the-Box parking lot on January 8, 2020, with the occupants of 59 of those cars visiting the smoke shop; and 100 cars entering the Jack-in-the-Box parking lot on January 9, 2020, with the occupants of 71 of those vehicles visiting the smoke shop.) Neither Kolb's nor Helton's testimony clearly indicated how many vehicles parked in, or entered, plaintiffs' parking area or whether the vehicles observed using defendants' driveway entrance were attributable to smoke shop patronage.
Investigator Helton subsequently testified the number of vehicles counted as parking in Jack-in-the-Box actually included a "minimal" number of vehicles that entered plaintiffs' parcel through plaintiffs' driveway entrance.
Cynthia Van Empel, a senior planner for the City of Modesto's Economic Development Department, testified that plaintiffs' commercial building "is larger than the parking lot would typically allow if [the City] were to permit [it] today." However, she testified that fact does not impact plaintiffs' continued use of the existing building.
IV. The Trial Court's Statement of Decision and Judgment
A. The Statement of Decision
After a three-day bench trial, the trial court issued a statement of decision (SOD). The court found plaintiffs had proven by clear and convincing evidence that their use of the easement route (and that of those in privity with them) was (1) continuous and uninterrupted for five years; (2) open and notorious; and (3) hostile.
The trial court noted that "California courts differ on whether evidence of open and notorious use creates an inference or a presumption that the use is hostile and adverse," citing Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 571 (Warsaw) [presumption] and O'Banion v. Borba (1948) 32 Cal.2d 145, 149 [inference]. Adopting the Warsaw approach, and having found plaintiffs met their burden of proving each element of a prescriptive easement by clear and convincing evidence, the court concluded the burden had shifted to defendants to negate plaintiffs' showing or to make their own showing that use of the easement route was actually permissive. The court found defendants had not met their burden under a preponderance of evidence standard.
Defendants do not challenge the trial court's adoption of the Warsaw approach.
The trial court also addressed defendants' argument that the scope of plaintiffs' use of the easement route had significantly expanded beyond that which occurred during the majority of the prescriptive period. The court noted that plaintiffs' prior tenant, Angelica Hernandez (whose use of the easement route during her tenancy from October 2012 through November 1, 2019, provided much of the basis for plaintiffs' claims) "had an insurance business which did not require many clients to frequent the property." The court likewise found that, although plaintiffs' current tenant, J's Smoke Shop had "upwards of 100 transactions per day," most of its customers parked in the adjacent Jack-in-the-Box parking lot and would not need to use the easement route to exit. Thus, the court wrote "while there may be a slight increase in motor vehicle traffic, the use is still the same, i.e. use as an egress for those parked in [plaintiffs'] parking lot."
On March 11, 2022, the trial court entered its "AMENDED JUDGMENT DECLARING EASEMENT" (hereafter, the judgment) and quieted title to a "nonexclusive perpetual" easement along the easement route "for the benefit of and appurtenant to" plaintiffs' parcel.
Notice of entry of the judgment was given on March 14, 2022. On May 10, 2022, defendants timely appealed.
DISCUSSION
I. Standard of Review
Defendants contend this court should conduct an independent or de novo review of the judgment because the issues on appeal involve the "selection of a rule of law, or requires critical consideration, in a factual context, of legal principles and their underlying values," citing Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 (Crocker).
Conversely, plaintiffs argue defendants' appeal challenges the trial court's determination that Hernandez's use of the easement route was hostile, and that the easement route "has not been impermissibly overburdened." Plaintiffs contend both issues raise questions of fact subject to substantial evidence review.
Each contention has merit for select issues presented on appeal. Crocker articulated the following general principles of appellate review:
"Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test. Questions of law relate to the selection of a rule; their resolution is reviewed independently. Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently." (Crocker, supra, 49 Cal.3d at p. 888.)
Defendants argue, for example, that the trial court's "decision was substantially based on an issue of law and a failure to . recognize that the lack of express permission is not the standard to establish hostile use by a claimant of a prescriptive easement." Whether the court applied the wrong legal standard is a question of law subject to de novo review. (Crocker, supra, 49 Cal.3d at p. 888.)
Defendants also argue, however, that there is no evidence Hernandez's use of the easement route was hostile or under a claim of right. "Whether the elements of prescription are established is a question of fact for the trial court [citation], and the findings of the court will not be disturbed where there is substantial evidence to support them." (Warsaw, supra, 35 Cal.3d at p. 570.) Relatedly, defendants contend the trial court "failed to distinguish between hostile use and a matter of neighborly accommodation" but concede this is a question of fact. Accordingly, we review the court's findings as to these issues for substantial evidence.
II. The Trial Court Selected and Applied Correct Legal Principles in Determining Whether a Prescriptive Easement Had Been Established
A. Use of the Easement Route By Those In Privity With Plaintiffs Is Properly Considered in Determining Whether Prescriptive Rights Have Accrued
As a preliminary matter, we note that "plaintiffs are entitled to take advantage of the use made of the property in dispute by their predecessors in interest"-i.e., Rico and Pires. (Miller v. Johnston (1969) 270 Cal.App.2d 289, 295.) Similarly, "[t]he possession of the tenant is the possession of the landlord so that the tenant's possession is sufficient to establish a prescriptive right in favor of the landlord." (6 Miller &Starr, Cal. Real Estate (4th ed. 2023) § 15:37, p. 15-160; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432 [use of servient tenement by tenant, but not landlord, does not break continuity necessary for vesting of prescriptive rights].) Consequently, the trial court correctly considered the use of the easement route by plaintiffs' predecessors in interest and by plaintiffs' tenants, Hernandez and Shaibi, in determining whether prescriptive rights had accrued.
B. The Trial Court Did Not Err By Omitting the "Claim of Right" Element From Its Discussion of the Elements of a Prescriptive Easement
In its SOD, the trial court wrote, "[i]n order to establish a prescriptive easement, one must prove their use of another's land was (1) continuous and uninterrupted for five years; (2) open and notorious; and (3) hostile," citing Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449 (Felgenhauer). Although somewhat unclear from their briefing, it appears defendants may contend a fourth element is required-i.e., that the claimant's use be under a claim of right. We conclude the trial court did not err.
Felgenhauer discussed the "claim of right" element for the establishment of a prescriptive easement as follows:
"Claim of right does not require a belief or claim that the use is legally justified. [Citation.] It simply means that the property was used without permission of the owner of the land. [Citation.] As the American Law of Property states in the context of adverse possession: 'In most of the cases asserting [the requirement of a claim of right], it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.' [Citation.] One text proposes that because the phrase' "claim of right"' has caused so much trouble by suggesting the need for an intent or state of mind, it would be better if the phrase and the notions it has spawned were forgotten." (Felgenhauer, supra, 121 Cal.App.4th at p. 450.)
In Aaron v. Dunham (2006) 137 Cal.App.4th 1244 (Aaron), the court concluded any tension between Felgenhauer and cases requiring a "claim of right" element for the establishment of a prescriptive easement "was resolved in Warsaw ... in which the Supreme Court held, in effect, that continuous use over a long period of time constitutes communication of the claim of right." (Aaron, at pp. 1252-1253.) In Warsaw, the California Supreme Court wrote "[we agree with the view, supported by numerous authorities,] that continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment," citing, with approval, MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 702 (MacDonald) and cases cited therein. (Warsaw, supra, 35 Cal.3d at pp. 571572.)
In MacDonald, the trial court quieted title to a prescriptive easement in favor of the defendant golf course allowing it to use a portion of plaintiffs' adjacent property as fairway rough. (MacDonald, supra, 72 Cal.App.3d at p. 698.) On appeal, the plaintiff argued there was no evidence to "establish[] an adverse or hostile claim to the property." (Id. at p. 699.) In considering the issue, the McDonald court wrote:
"A prescriptive easement in property may be acquired by open, notorious, continuous, adverse use, under claim of right, for a period of five years. [Citations.] The owner of the servient property must have actual knowledge of its use. Once knowledge of use is established, . the key issue becomes one of permissive use under license as against adverse use under claim of right. The decisions on the burden of proving adverse use are widely divergent. Clarke v. Clarke (1901) 133 Cal. 667, puts the burden on the person asserting the easement to establish that his use was adverse under claim of right; whereas Fleming v. Howard (1906) 150 Cal. 28, holds that undisputed use of an easement for the prescriptive period raises a presumption of claim of right and puts the burden on the party resisting the easement to prove permissive use. Each decision has acquired a following ..
"We think the better and more widely held rule is that continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence. [Citations.] This rule, . was quoted as controlling in Miller v. Johnston (1969) 270 Cal.App.2d 289, 294, as follows:' "It is true that title to an easement for the use of a private roadway must be established by clear and satisfactory evidence that it was used for more than the statutory period of five years openly, notoriously, visibly, continuously and without protest, opposition or denial of right to do so. But clear and satisfactory evidence of the use of the road in that manner creates a prima facie title to the easement by prescription. Such evidence raises a presumption that the road is used with an adverse claim of right to do so, and in the absence of evidence of mere permissive use of the road, it will be sufficient upon which to sustain a judgment quieting title to the easement therein." '" (MacDonald, supra, 72 Cal.App.3d at pp. 701-702, italics added.)
Under the reasoning of MacDonald, as approved by our Supreme Court in Warsaw, clear and satisfactory evidence of open and obvious adverse use of the property of another for the requisite time period "creates a prima facie title to the easement by prescription," and is presumed to be done under a claim of right. (MacDonald, supra, 72 Cal.App.3d at p. 702.) Thus, the claim of right element is presumed upon proof of the remaining elements of prescriptive use.
Based on the foregoing authorities, we ascribe no significance to the trial court's omission of the "claim of right" element from its discussion of elements necessary to create a prescriptive easement. The court selected and applied the correct legal principles in determining whether a prescriptive easement was established.
C. The Trial Court Did Not Apply Incorrect Law in Determining Whether Plaintiffs' Had Met the Hostility Element
Defendants contend the trial court "failed to recognize that the lack of express permission is not the standard to establish hostile use by a claimant of a prescriptive easement." They assert "[t]here is no case that requires written permission or prevents circumstantial evidence to establish permission." We do not take issue with the latter proposition. (See Jones v. Tierney-Sinclair (1945) 71 Cal.App.2d 366, 370 ["where the use of a way by a neighbor is by the express or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right" (italics added)].) However, the court never indicated in its SOD that written permission was required in order for defendants to rebut the presumption of adverse use. Rather, the SOD made it clear that a prima facie case for an easement by prescription may be made out by demonstrating, among other things, a lack of express permission and, once that prima facie case was made, the burden shifted to defendants to demonstrate the claimed adverse use was actually permissive. We conclude this was the correct application of law in this matter. Our review of the evidence submitted in plaintiffs' case-in-chief reveals no evidence of implied permission to use the easement route. Under such circumstances, proof of a lack of express permission was sufficient to shift the burden to defendants to prove use of the easement route was permissive.
III. Substantial Evidence Supports the Establishment of a Prescriptive Easement
" 'Whether the elements of a prescriptive easement have been established is a question of fact, which we review under the substantial evidence rule. [Citation.] ". Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable." '" (Ditzian v. Unger (2019) 31 Cal.App.5th 738, 743.)
On appeal, defendants contend the trial court erred in quieting title to a prescriptive easement because "there was no evidence that Hernandez['s] use of the [easement route] [h]as ever been . hostile to the true owner or . under a claim of right." We disagree.
As discussed in the prior section of this opinion, the "claim of right" element is presumed once the remaining elements necessary to establish a prescriptive easement have been met by clear and convincing evidence. (Aaron, supra, 137 Cal.App.4th at pp. 1252-1253; Felgenhauer, supra, 121 Cal.App.4th at p. 450; Warsaw, supra, 35 Cal.3d at pp. 571-572; MacDonald, supra, 72 Cal.App.3d at p. 702.) Here, defendants do not challenge the trial court's determination that use of the easement route by plaintiffs' and those in privity with them was continuous and uninterrupted for five years, and open and notorious. Accordingly, we focus our attention on the hostility element. If substantial evidence does not support the court's finding of hostility, then that is the end of our inquiry and the judgment must be reversed. However, if substantial evidence does support the court's finding, we will then turn our attention to the evidence, if any, that demonstrates permissive use of the easement route.
It has been said that the court in Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057 (Vieira) held the correct burden of proof of a prescriptive easement is not clear and convincing evidence. (Husain v. California Pacific Bank (2021) 61 Cal.App.5th 717, 726, fn. 4; 6 Miller & Starr, supra, § 15:32, p. 15-137.) However, the Vieira court stated it was only questioning the principle and that it "need not consider" the issue since the trial court had concluded the claimant did not meet the lower preponderance of evidence standard. (Vieira, at p. 1074.)"' "An opinion is not authority for propositions not considered." '" (People v. McGraw-Hill Companies, Inc. (2014) 228 Cal.App.4th 1382, 1390.)
"[A]n appellate court evaluating the sufficiency of the evidence in support of a finding must make an appropriate adjustment to its analysis when the clear and convincing standard of proof applied before the trial court. In general, when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) We conclude sufficient substantial evidence of hostile use of the easement route exists to meet a clear and convincing standard of proof.
Other modern authority holds that the proper burden of proof of a prescriptive easement is clear and convincing evidence. (E.g., Husain v. California Pacific Bank, supra, 61 Cal.App.5th at p. 726; Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310; Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938; Applegate v. Ota (1983) 146 Cal.App.3d 702, 708; see Connolly v. Trabue (2012) 204 Cal.App.4th 1154, 1162; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 235; contra, Skelly v. Cowell (1918) 37 Cal.App. 215, 217 .)
Here, because we conclude, infra, substantial evidence meets the heightened clear and convincing standard of proof to establish the elements of a prescriptive easement, we need not resolve any arguable split of authority on the applicable burden of proof.
Notably, there was no evidence that any of the plaintiffs or those in privity with them lulled defendants into allowing their use of the easement route by disclaiming any intent to assert an adverse claim to the easement route. (See Felgenhauer, supra, 121 Cal.App.4th at p. 450 [hostility in the adverse possession context "means only that the owner has not expressly consented to it . or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor" (italics added)].) Thus, to meet the hostility element, plaintiffs merely needed to prove that use of the easement route was without defendants' permission. (Aaron, supra, 137 Cal.App.4th at p. 1252.)
Here, there is substantial evidence sufficient to meet a clear and convincing standard of proof that defendants never gave plaintiffs, Hernandez, or others in privity with plaintiffs permission to use the easement route. The undisputed testimony of plaintiffs, plaintiffs' predecessors in interest, and plaintiffs' tenants, Hernandez and Shaibi, was that they never received permission from defendants to use the easement route. Moreover, in their original verified answer to plaintiffs' complaint, defendants admitted "[p]laintiffs and those in privity, did not have [d]efendants' consent to use the [e]asement [route]."
In addition, Gregorio testified he attempted to block the tenant prior to Hernandez from using the route and eventually sought police assistance to prohibit such use. He also testified that when Hernandez told him she knew she was not supposed to use the easement route, he said nothing to disavow her understanding and did not grant her permission to use the route. He further stated that, if Hernandez had told him she was going to use the easement route "like the other customers and had a right to do that," he would have said" 'No, you cannot ..'" Gregorio testified he told the owner of J's Smoke Shop that they were not allowed to use, drive or park on his property but gave them limited permission to do so for two weeks. Later, Gregorio demanded $15,000 a year to allow their use of the easement route or else he would block the route which he subsequently did. Dole testified that, in or around the same time period, Gregorio told him not to use the easement route "under any circumstances."
Viewing the record as a whole, substantial evidence supports the trial court's determination that plaintiffs made a clear and convincing, prima facie case of a prescriptive easement.
At oral argument, Gregorio's counsel contended the trial court failed to address in its SOD Gregorio's argument that he allowed Hernandez to use the easement route as a "neighborly accommodation." We disagree. A "statement of decision is sufficient if it fairly discloses the [trial] court's determination as to the ultimate facts and material issues in the case." (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380.) Here, the trial court found that all elements of a prescriptive easement were met. In particular, the court found the hostility element was met by clear and convincing evidence and discussed evidence supporting its determination. In doing so, the court necessarily rejected the argument that Gregorio allowed Hernandez to use the easement route as a "neighborly accommodation." (See, e.g., Taormino v. Denny (1970) 1 Cal.3d 679, 687 [distinguishing between use that is "permissive and a matter of neighborly accommodation" from use that is under a "claim of right"]; Fobbs v. Smith (1962) 202 Cal.App.2d 209, 213 [distinguishing between use that is "merely a matter of neighborly accommodation" and use that is adverse].) Moreover, the trial court wrote in its SOD, "while Gregorio and tenant Hernandez had a neighborly relationship, this relationship does not give rise to permission." We conclude the court's SOD sufficiently addressed all material issues in the case and made all necessary determinations of ultimate fact.
IV. Defendants' Rebuttal Evidence Does Not Compel a Finding of Permissive Use Under a Preponderance of Evidence Standard
Once plaintiffs' met their burden of demonstrating, by clear and convincing evidence, a prima facie case for the existence of a prescriptive easement, it was defendants' burden to negate plaintiffs' showing or to otherwise demonstrate, by a preponderance of evidence, that use of the easement route was actually permissive. (Chapman v. Sky L'Onda Mut. Water Co. (1945) 69 Cal.App.2d 667, 678 (Chapman) ["when one who claims an easement by prescription offers satisfactory evidence that all the required elements existed, the burden of showing that the use was merely permissive shifts to the owner of the land"].) The trial court found defendants did not meet their burden.
" '[W]here the issue on appeal turns on a failure of proof at trial [to sustain a burden of proof], the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic).) We review this issue de novo (Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 274) and conclude the evidence proffered in support of defendants' affirmative defense does not compel a finding that Hernandez's use of the easement route was permissive.
Defendants' basis for contending Hernandez had permission to use the easement route appears to be limited to (1) the conversation between Hernandez and Gregorio that occurred shortly after Hernandez leased plaintiffs' parcel in which Hernandez stated, "I know I'm not supposed to drive or park here" and "I usually go out through [plaintiffs' driveway entrance]"; (2) Gregorio's lack of a response to Hernandez's statements; (3) his lack of any attempt to preclude Hernandez's use of the easement route thereafter; (4) Hernandez's belief that, because they were good neighbors, she had his consent; and (5) his subsequent conversation with Hernandez that he intended to construct a restaurant and would be blocking the easement route. Defendants contend this evidence, taken together, demonstrates Hernandez's prior use of the easement route was permissive.
Even if we accept defendants' argument that the above recited facts allow for an inference that Gregorio gave Hernandez permission to use the easement route, those facts also support the inference that no permission was given. Gregorio did not attempt to disavow Hernandez's understanding that she could not drive or park along the easement route. Silence in the face of these statements may be viewed as an acknowledgement that Hernandez's statements were correct-i.e., she had no right or permission to drive or park along the easement route. Moreover, allowing the use to continue is conduct that supports the establishment of a prescriptive easement-i.e., continued use for the prescriptive period is a necessary element of the claim. (Felgenhauer, supra, 121 Cal.App.4th at p. 449.) Hernandez's belief that she and Gregorio were good neighbors-without more-is insufficient to imply Gregorio's consent. Finally, advising Hernandez that Gregorio would soon be blocking access to the easement route might just as easily support the inference that such access was never actually permitted. The trial court, sitting as a trier of fact, was permitted to draw inferences from the above facts to find that defendants did not give Hernandez permission to use the easement route and we are precluded from drawing contrary inferences even if those contrary inferences are also reasonable. (Ditzian v. Unger, supra, 31 Cal.App.5th at p. 743.)
In short, the evidence in support of a finding of permissive use of the easement route is not of such a character as to compel it, as a matter of law. (See Sonic, supra, 196 Cal.App.4th at p. 466.) Consequently, we will not disturb the trial court's finding that defendants did not successfully rebut plaintiffs' showing of a prescriptive easement either by negating elements of plaintiffs' showing or by establishing the affirmative defense of permissive use.
V. The Scope of the Easement Has Not Been Impermissibly Expanded
Defendants contend that, "[i]n this case and giving the testimony of Hernandez full credit, she and her daughter occasionally used [the easement route] for egress at best generated [sic] 28 vehicle trips per month." Defendants do not explain how they calculated the number of trips and their citation to the record does not appear to support the contention. Notwithstanding, we will accept the estimate for purposes of argument.
Defendants further contend that the retail use of plaintiffs' parcel has increased since J's Smoke Shop became the tenant, that it generates hundreds of trips per week, and that this creates "an impermissible increase and burden to [defendants'] [p]arcel."
Cushman v. Davis (1978) 80 Cal.App.3d 731 (Cushman) discussed the permissible use of an easement gained by prescription. The court wrote:
"There is a strict limit, however, to that use. Formerly, it was very strict, was 'fixed and determined by the manner of use in which it originated ... [and] cannot be extended or increased so as to enlarge the burden except by grant or by adverse user which has been acquiesced in ...' [Citation.] That rule has been modified ... if the change is one of degree, not kind..' "In ascertaining whether a particular use is permissible under an easement appurtenant created by prescription there must be considered . the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement." '
"[Case law] amplifies that, using Restatement comments, to require that the increase be a normal development, reasonably foretold, and' "consistent with the pattern formed by the adverse use by which the prescriptive easement was created." '" (Cushman, at pp. 735-736.)
Citing comment c of section 479 of the Restatement (First) of Property, Cushman also adopted the requirement that "added use not constitute '[an] unreasonable increase in burden' which 'it is reasonable to assume would have provoked the owner of the land being used to interrupt the use had the increase occurred during the prescriptive period.'" (Cushman, supra, 80 Cal.App.3d at p. 736.)
Here, the trial court found "the evidence showed that customers of the smoke shop almost exclusively park in an adjacent parking lot that does not require use of [the easement route] as an egress." The court further found that the parking area of plaintiffs' parcel has not increased and remains at four or five parking spots. It then concluded, "while there may be a slight increase in motor vehicle traffic, the use is still the same, i.e. use as an egress for those parked in [defendants' parking area]." Finally, the court determined that there was no evidence defendants could not proceed with their plan to develop defendants' parcel with a restaurant "without completely impeding" the easement route, noting defendants "may be able to reconfigure [the] property, and the evidence showed that there are multiple points of access to [the] property."
The record supports the trial court's determination. The testimony of both defendants' private investigator, Helton, and plaintiffs' counsel's paralegal, Kolb, support the finding that the vast majority of patrons visiting J's Smoke Shop park in the Jack-in-the-Box parking lot. Moreover, there has been no change in kind in the use of the easement route by plaintiffs and those in privity with them. Plaintiffs' building is a commercial building used for retail services (i.e., the buying and selling of goods and services to consumers). That use has not changed. Changes in tenancy are normal incidents of commercial leasing. Normal evolution of the property certainly suggests small increases (or decreases) in the amount of traffic may occur. Moreover, the parking area of defendants' parcel has not increased in size so as to necessarily invite a substantial increase in traffic.
In addition, although defendants' private investigator, Helton, testified that a total of 34 cars during a three-day period in January 2021 used defendants' driveway entrance, neither investigator Helton, nor paralegal Kolb, who reviewed Helton's surveillance videos, testified clearly as to how many of those vehicles had patrons or employees of J's Smoke Shop. Notwithstanding, even if we were to assume all of that observed use was attributable to the smoke shop, a reasonable trier of fact could still determine (1) that such use represented a normal evolution of the retail use of plaintiffs' parcel; (2) that any increase was one of degree and not kind; and (3) that any such increase is not unreasonable, does not impede the future contemplated use(s) of defendants' parcel, and would not likely have provoked defendants to take steps during the prescriptive period to prevent a prescriptive easement from vesting.
Consequently, we uphold the trial court's determination that any arguable increase in the use of the easement route does not constitute an impermissible expansion of the scope of the easement.
DISPOSITION
We affirm the amended judgment declaring easement entered by the trial court on March 11, 2022, in its entirety. Costs on appeal are awarded to plaintiffs.
WE CONCUR: LEVY, Acting P. J., MEEHAN, J.