CHAVEZ, J.
This appeal and cross-appeal concern a boundary dispute between neighbors. The trial court granted a prescriptive easement to plaintiffs Jon N. Manzanares and Nancy Guitierrez (plaintiffs) over an approximately 1.5-foot wide strip of land owned by defendants Angela Bertolino and Carla Lewis (defendants) that lies between plaintiffs' driveway and defendants' house. After a five-day trial, the court also granted to plaintiffs an equitable easement over another approximately 1.5-foot wide strip of defendants' land along the north-south boundary separating the two properties. The trial court limited the duration of the equitable easement to the period of time that either of the plaintiffs owns or resides on their property. In addition, as a condition to granting the equitable easement, the court required plaintiffs to pay to defendants the sum of $40,000.
Neither of the parties is satisfied with the result, and both sides have appealed. We affirm the judgment.
Plaintiffs and defendants own adjoining properties in Studio City, California. Plaintiffs have owned their property since 1987, and defendants have owned theirs since 2006.
Plaintiffs' property consists of a single family dwelling with a detached garage. Plaintiffs' current driveway is made of cement and brick and runs immediately adjacent to the north side of their property. The previous driveway was asphalt, which plaintiffs replaced with cement and brick in 1990. The driveway is 9.38 feet in width, including brick borders that are each 1.26 feet in width. Plaintiffs' house is immediately adjacent to the south side of their driveway. There is a step up from the driveway into an entry door near the kitchen, which has always been there. A gate runs across the driveway immediately adjacent to the rear (east) of plaintiffs' house.
Defendants' house is located approximately 1.5 feet from the north side of the brick border of plaintiffs' driveway. Until April or May of 2007, a short decorative fence separated the north side of plaintiffs' driveway and the southwestern portion of defendants' property, and an eight-foot high redwood fence separated the back yards of the two properties.
Because plaintiffs' driveway is relatively narrow, their vehicles parked on the driveway adjacent to their house cannot be entered or exited from the passenger side. Plaintiffs must enter and exit from vehicles parked on the driveway from the north side of the driveway, and to do so, they must open the vehicle door over, and then step onto, defendants' property. Plaintiffs used their driveway in this manner, without complaint, from 1990 until April of 2007. At that time, defendants removed the fences that had separated the two properties for many years and informed plaintiffs that they intended to construct an eight-foot wall along the entire property line, which defendants had determined by survey to be on the concrete portion of plaintiffs' driveway and approximately 1.5 feet south from the location of the redwood fence that defendants removed. Construction of the new wall would have prevented a person from exiting any vehicle parked on plaintiffs' driveway and would have prevented plaintiffs from accessing their garage.
Plaintiffs filed the instant action in May 2007 seeking a temporary restraining order, declaratory relief, a prescriptive easement, an equitable easement, and a permanent injunction. In July 2007, the trial court granted plaintiffs' request for a preliminary injunction to prevent defendants from interfering with plaintiffs' continued use of the disputed area for ingress and egress from vehicles parked on their driveway and maintaining the gate to the rear portion of plaintiffs' property.
On September 10, 2008, the trial court granted plaintiffs' motion for summary adjudication of their cause of action for a prescriptive easement. Defendants objected on the ground that plaintiffs had submitted new evidence in their reply to defendants' opposition to the motion, and defendants had no opportunity to respond to that new evidence. The trial court thereafter granted defendants' request to vacate the order granting the summary adjudication motion and allowed defendants the opportunity to file a supplemental opposition to plaintiffs' reply brief. The trial court also allowed plaintiffs' to respond to the supplemental opposition. After reviewing the additional briefing, the court again granted the motion for summary adjudication and accorded plaintiffs a prescriptive easement over a strip of land between the brick border of plaintiffs' driveway and the south side of defendants' residence, to enable plaintiffs to enter and exit vehicles parked on plaintiffs' driveway.
The matter proceeded to a court trial on the causes of action for an equitable easement and for a permanent injunction. On December 22, 2008, the trial court issued its tentative decision in a written memorandum of decision in which the court found that plaintiffs' encroachment onto defendants' property was not willful or negligent, the encroachment does not irreparably injure defendants, and the hardship plaintiffs would suffer if no easement were granted is disproportionately greater than the hardship caused to defendants by the continued encroachment. Based on these findings, the trial court granted plaintiffs an equitable easement over "`(i) . . . that portion of Defendants' Property that is: currently occupied by the northern portion of Plaintiffs' driveway running east from the western end of Plaintiffs' driveway up to and including such area of Defendants' Property occupied by the northern portion of Plaintiffs' driveway gate; and (ii) over that portion of Defendants' Property that is south of the former location of the redwood fence that Defendants caused to removed on or about May 24, 2007, and that is bounded on the east where said fence connected at a right angle to the northwest corner of Plaintiff's garage and bounded on the west where said fence connected to Plaintiffs' driveway gate.'"
The trial court denied plaintiffs' request that the equitable easement run with the land, reasoning that future prospective tenants or buyers would be informed of the true boundary lines and could determine, based on that information, whether or not to lease or buy the property. The court accordingly limited the duration of the easement to the period of time that either of the plaintiffs resides on or owns the property. The trial court also conditioned the easement grant upon plaintiffs paying to defendants the sum of $40,000.
The trial court also granted plaintiffs a permanent injunction prohibiting defendants from using that portion of their property comprising the prescriptive easement area and the equitable easement area in a manner inconsistent with the easement rights granted to plaintiffs. The court denied plaintiffs' request for a mandatory injunction requiring defendants to rebuild the redwood fence that formerly separated the two properties. The court found that the uncontradicted testimony showed that the fence was not a common fence but was located solely on defendants' property. In light of its rulings, the court denied plaintiffs' request for declaratory relief as unnecessary.
Defendants filed objections to the memorandum of decision, requesting additional factual findings by the trial court. The trial court subsequently made minor modifications to the memorandum of decision and overruled defendants' objections. Judgment was entered granting plaintiffs a prescriptive easement, an equitable easement, and a prohibitory injunction. This appeal and cross-appeal followed.
Defendants contend the trial court's grant of a prescriptive easement must be reversed because: (1) the trial court erred as a matter of law by considering evidence not presented in plaintiffs' separate statement; (2) defendants' due process rights were violated when the trial court allowed plaintiffs to introduce new evidence in their reply brief; (3) triable issues of fact exist as to the existence of a prescriptive easement; (4) summary adjudication of the prescriptive easement claim was improper until the equitable easement claim was decided; and (5) the scope of the easement granted was an impermissible exclusive easement under California law.
Defendants further contend the trial court's grant of an equitable easement must be reversed because: (1) the trial court misapplied the relative hardship doctrine; (2) the evidence does not support the trial court's factual finding that plaintiffs' encroachment was innocent; (3) there is no basis for imposing an equitable easement over land that is not adjacent to the prescriptive easement; and (4) there are various improprieties and deficiencies in the trial court's statement of decision.
Plaintiffs contend the trial court's ruling requiring them to pay $40,000 to defendants for an equitable easement that does not run with the land was improper and must be reversed. Plaintiffs further contend that the trial court's grant of a prohibitory injunction should be modified to provide them with exclusive use of a portion of the equitable easement area.
Defendants cite San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 as support for their argument that the trial court committed reversible error by considering evidence not disclosed in plaintiffs' separate statement of undisputed facts when summarily adjudicating plaintiffs' prescriptive easement claim. That case does not hold, however, that a court may never consider such evidence when ruling on a motion for summary adjudication. To the contrary, the court in San Diego Watercrafts expressly rejected "the absolute prohibition against consideration of nonreferenced evidence" (id. at p. 315), noting that Code of Civil Procedure section 437c accords a trial court discretion to consider or reject such evidence: "[W]e may not mechanically conclude . . . that the court should never consider evidence not referenced in the separate statement. The statute is permissive, not mandatory: `[f]acts stated elsewhere [than in the separate statement] need not be considered by the court [citation] . . . .' [Citations.] Whether to consider evidence not referenced in the moving party's separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion." (Id. at pp. 315-316.) The record discloses no abuse of discretion by the trial court in considering such evidence in this case.
Defendants contend their due process rights were violated because they were not accorded sufficient opportunity to respond to evidence not disclosed in plaintiffs' separate statement. Defendants raised this argument in the trial court below, after the court's initial grant of the motion for summary adjudication on September 10, 2008. The trial court took the matter under advisement and on September 19, 2008, vacated its order granting summary adjudication and accorded defendants the opportunity to file a supplemental opposition to plaintiffs' reply. Defendants were given three court days, or until September 24, 2008, in which to do so. Defendants' counsel filed a timely supplemental opposition and made no request for additional time. Thereafter, defendants' counsel entered into a written stipulation in which defendants agreed to give plaintiffs additional time to respond to the supplemental opposition. The trial court granted plaintiffs' motion for summary adjudication on October 7, 2008.
Defendants were accorded sufficient opportunity to respond to the evidence and argument presented in plaintiffs' reply. No due process violation occurred.
The standard of review for an order granting or denying a motion for summary adjudication is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) The trial court's stated reasons for granting summary adjudication are not binding on the reviewing court, which reviews the trial court's ruling, not its rationale. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
The elements necessary to establish a prescriptive easement are use of another's property for five years, which use is open and notorious, continuous and uninterrupted, and adverse to the property owner. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.)
Defendants contend the trial court's summary adjudication of the prescriptive easement claim must be reversed because there were triable issues of fact as to whether plaintiffs' use of the disputed area was open and notorious, and whether it occurred continuously throughout the five-year period alleged in the complaint.
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 (3d ed. 2006) § 15:34, p. 15-129, fn. omitted.) The owner of the land must have either actual knowledge of the use or the use must be so open, visible and notorious as to constitute reasonable notice. (Kerr Land & Timber Co. v. Emmerson (1969) 268 Cal.App.2d 628, 634.)
Plaintiffs met their burden of establishing open, notorious, continuous, and uninterrupted use of the disputed portion of defendants' property. Plaintiff Manzanares's declaration submitted in support of the motion for summary adjudication states that he has lived continuously on plaintiffs' property for 21 years and that he and members of his family have used the disputed area on defendants' property to enter and exit their cars on a daily basis throughout this period without interference or objection by anyone. Manzanares's domestic partner, Ron Goins, also submitted a declaration in which he stated that he has resided with Manzanares on plaintiffs' property for the past nine years and that he has used the disputed area on defendants' property to enter and exit his car on a daily basis for nine years and that he has observed Manzanares and Gutierrez doing so as well.
Defendants' evidence in opposition failed to raise a triable issue concerning the open and notorious use of the disputed portion of their property. Defendants submitted the deposition testimony of previous owners of their property, Cheryl Parker and Larry McCarthy, who said they had no recollection of observing Manzanares or Goins using their property to enter or exit their vehicles. The declarations of former owners who cannot recall whether or not they observed plaintiffs using their property raises no triable issue of fact. Actual notice of plaintiffs' use is not required to establish that such use was open and notorious. "Even a property owner who has no actual notice of the possessor's claim or occupancy may nonetheless be presumed to have notice of an adverse claim that is sufficiently open and notorious. As one California Court of Appeal colorfully wrote, an 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.'" [Citations.]' [Citations.]" (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 327.) Defendants failed to raise a triable issue as to open and notorious use.
Defendants claim they raised a triable issue regarding the continuity of plaintiffs' use during the time period alleged in the complaint (between 1987 and 1992) by presenting evidence that plaintiffs repaved their driveway in 1990 and that when they did so, they expanded the width of the driveway by the 1.26-foot brick border. Defendants claim this raises a triable issue regarding the location of the easement and whether plaintiffs were using the disputed area continuously throughout the five-year period alleged in the complaint.
Defendants raised no factual dispute concerning the location of the easement. Defendants' own evidence showed that plaintiffs' current cement and brick driveway follows the footprint of the former asphalt driveway. Defendants submitted deposition testimony by Manzanares stating that when plaintiffs replaced the former asphalt driveway with cement and brick in the summer of 1990, they followed the footprint of the former asphalt driveway. Although defendants claim they presented other evidence that the 1990 repaving expanded the width of plaintiffs' driveway that evidence fails to raise any factual issue concerning the location of the easement. Defendants' evidence consists of the deposition testimony of Berge Kevorkian, a former owner who resided at plaintiffs' property from 1964 to 1977 but had not returned to the property for 31 years, who had no personal knowledge concerning the 1990 driveway repaving, and who testified that he was uncertain about the precise location of the driveway during his ownership of the property. Defendants raised no triable issue concerning the location of the easement.
Defendants also failed to raise any triable issue regarding the continuity of plaintiffs' use. Although defendants dispute plaintiffs' use of the prescriptive easement area during the period between 1987 and the 1990 driveway repaving, they admit that plaintiffs have used this portion of the driveway continuously for the past 18 years — a period of time far in excess of the five years necessary to establish a prescriptive easement. Defendants failed to raise any triable issue that would have precluded summary adjudication of the prescriptive easement claim.
Having failed to raise any triable issue of fact that would have precluded summary adjudication of the prescriptive easement claim, defendants next argue that it was improper to adjudicate the prescriptive easement claim before the equitable easement claim was decided. They offer no legal authority or argument to support this contention, however, and we therefore disregard it. (Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 42-43 [contentions unsupported by argument or citation to authority may be deemed to be without foundation and abandoned].)
A prescriptive easement may not grant the user exclusive use over the servient tenement. An easement is not an estate in land, but rather "`a nonpossessory and restricted right to a specific use or activity upon another's property, which right must be less than the right of ownership. [Citation.]' [Citation.]" (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1598.) For this reason, a prescriptive easement is an inappropriate remedy in "a garden-variety residential boundary encroachment" when the encroachment effectively prohibits the owner of the servient tenement from using his or her land. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093, fn. omitted.)
Defendants contend the trial court's grant of a prescriptive easement must be reversed because the easement granted was an exclusive one. This contention is unsupported by the record. Plaintiffs presented evidence that the dirt area on defendants' property covered by the prescriptive easement contains two crawl spaces and a gas meter owned by defendants, and Manzanares attested to personally observing defendants and their workmen make use of that area. Defendants presented no evidence that plaintiffs' use of the easement area, to open and close their car doors and to enter and exit their cars, completely prohibits defendants from using their land.
Harrison v. Welch, on which defendants rely as support for their position, is factually distinguishable. In that case, Welch, the encroaching neighbor, built a woodshed partially on her neighbor's property and landscaped the neighbor's property with trees, railroad tie planter boxes, and an irrigation system. (Harrison v. Welch, supra, 116 Cal.app.4th at p. 1086, 1088.) Welch conceded that the encroaching woodshed was an exclusive use because it prohibited her neighbors from using the land lying under it, but argued that the landscaping was not exclusive because there were no "physical" or "practical" barriers excluding her neighbors from using the landscaped area. (Id. at pp. 1093-1094.) The court disagreed, concluding that the trees, planter boxes, and irrigation system completely prohibited the neighbors from using that part of their land. (Id. at p. 1094.) Here, plaintiffs' use of the easement area to enter and exit their cars does not completely prohibit defendants from using that portion of their land.
Although defendants cannot use their property for the purpose of constructing an eight-foot wall between the two properties, the trial court's grant of the prescriptive easement did not prohibit defendants from doing so. That prohibition was imposed at the conclusion of the trial, after the trial court granted plaintiffs' request for an injunction prohibiting defendants from interfering with plaintiffs' prescriptive easement rights. Injunctive relief was not granted as part of the motion for summary adjudication, and defendants' objection to the scope of that relief is not a proper basis for challenging the trial court's summary adjudication of the prescriptive easement claim.
A trial court exercising its powers in equity may enjoin or refuse to enjoin encroachments which trespass on another's property. When a court refuses to enjoin such encroachments, "`the net effect is a judicially created easement by a sort of non-statutory eminent domain.' [Citations.]" (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 764 (Hirshfield).) A court is not limited, however, "to judicial passivity as in merely refusing to enjoin an encroachment." (Id. at p. 765.) It may also exercise its equity powers "to affirmatively fashion an interest in the owner's land which will protect the encroacher's use" by granting an equitable easement. (Ibid.)
When deciding whether to grant such an equitable easement to an encroaching user, a trial court applies the relative hardship doctrine,
We review the trial court's exercise of its equity powers in imposing an equitable easement under the abuse of discretion standard. (Hirshfield, supra, 91 Cal.App.4th at p. 755.) "Under that standard, we resolve all evidentiary conflicts in favor of the judgment and determine whether the court's decision `"falls within the permissible range of options set by the legal criteria."' [Citations.]" (Id. at p. 771.)
Defendants contend the trial court misapplied the third criterion of the relative hardship doctrine by improperly determining the relative hardship to the parties. They maintain that the hardship caused by the continuing encroachment — an inability to build an eight-foot fence separating the two properties — is greatly disproportionate to the hardship plaintiffs would suffer if they were precluded from using a portion of their driveway.
In its statement of decision, the trial court noted that there has never been a substantial fence between plaintiffs' driveway and the southern side of defendants' residence, and that when defendants purchased their residence, they made no inquiry as to the possibility of building such a fence. Plaintiffs provided expert testimony that the inability to build such a fence would have no impact on defendants' ability to sell their house or the price at which it could be sold. There was also testimony that the granting of the equitable easement would not prevent defendants from expanding their house to the east if they choose to do so in the future. The court then considered defendants' reasons for wanting to build a fence — privacy, noise abatement, aesthetics — and weighed them against plaintiffs' interests — the inability to access their garage and loss of a significant portion of their existing driveway — and ruled in favor of plaintiffs. The record discloses no error on the part of the trial court.
Substantial evidence supports the trial court's finding that plaintiffs' encroachment was innocent. The factual bases for that finding are set forth in detail in the statement of decision, and are amply supported by the record. Manzanares testified that a chain link fence separated the northern edge of plaintiffs' property behind their driveway gate from the southern edge of defendants' when plaintiffs purchased their residence in 1987, and that plaintiffs believed the fence marked the boundary between the two properties. That belief was reinforced in 1990 when the then owner of defendants' property asked plaintiffs' permission to tear down the chain link fence and replace it with a redwood fence in the same location. When plaintiffs repaved their driveway in 1990, Manzanares instructed the paving contractor to follow the footprint of the old driveway and to stay at all times south of the fence separating the two properties. Plaintiffs believed the entire driveway was located on their property, and they used it without complaint, from 1990 until April 2007.
Although defendants contend Manzanares's testimony was not credible and that they presented evidence to contradict plaintiffs' claim of innocent encroachment, under the substantial evidence standard, an appellate court cannot reweigh the evidence, second-guess credibility determinations made by the trier of fact, or resolve conflicts in the evidence. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204.) There is substantial evidence in the record to support the trial court's finding that plaintiffs' encroachment was innocent.
Defendants contend there is no basis for imposing an equitable easement over any portion of their property west, or to the rear of plaintiffs' house, including the driveway gate and the area east of the gate. There was evidence, however, that the width of the gate opening is approximately the same as the width of the driveway and that eliminating the encroachment at the location of the driveway gate would prevent plaintiffs from accessing the garage located behind (east of) the gate. Substantial evidence supports the scope and location of the easement.
Defendants dispute the adequacy of the statement of decision, arguing that the trial court ignored their request for additional factual findings concerning the location of the white fence that separated the two properties in 1987, the shape of plaintiffs' driveway in 1987, the width of the driveway from 1938 to 1987, and the width of plaintiffs' cars. Defendants further contend the trial court failed to explain its reasons for discounting or disregarding defendants' evidence, specifically building plans from the City of Los Angeles depicting the width of the driveway, the testimony of previous owners of their property, and the testimony of an aerial photogrammetry expert. We review this claim of error under an abuse of discretion standard. (Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1077-1079.)
Code of Civil Procedure section 632 requires a trial court to issue a statement of decision explaining the factual and legal basis for its decision upon the request of any party appearing at trial.
The trial court in this case issued a 13-page statement of decision that sets forth in detail the factual and legal bases for its rulings. The trial court was not obliged to address every question raised by defendants in their request for a statement of decision, nor was the court obligated to make an express finding of fact on every disputed factual matter. (Hirshfield, supra, 91 Cal.App.4th at p. 763.) The court's refusal to do so does not render the decision inadequate. (Hellman, supra, 6 Cal.App.4th at p. 1230.)
Plaintiffs contend the trial court erred by limiting the duration of the equitable easement to the period of time that either Manzanares or Gutierrez owns or resides on the property and by requiring them to pay defendants $40,000 as a condition to the granting of the easement. They argue that they should not be required to pay anything to defendants unless their equitable easement rights are deemed to run with the land.
As noted earlier, an equitable easement is not an interest in land, but an equitable remedy that may be tailored to protect the parties' specific uses and interests. (Hirshfield, supra, 91 Cal.App.4th at p. 766.) The trial court here expressly noted in the statement of decision that plaintiffs' encroaching use was innocent and inadvertent, and that they were being granted an easement in equity to continue such use to allow them access to their parked cars and their garage. The trial court further noted that should plaintiffs in the future choose to sell or lease their property, they will be obligated to disclose the true boundary lines to any potential buyer or tenant. The limitation imposed by the trial court on the duration of the easement was not an abuse of discretion.
The trial court's conditioning of the equitable easement grant upon plaintiffs' payment of $40,000 to defendants was likewise not an abuse of discretion. The court could properly order payment for an interest granted pursuant to its equity powers, even if that interest does not run with the land. (Hirshfield, supra, 91 Cal.App.4th at p. 767.)
After filing the instant appeal, plaintiffs filed a motion in the trial court for a modification of the prohibitory injunction to make a portion of the equitable easement an exclusive one by precluding defendants from accessing a portion of the equitable easement area because of alleged vandalism by defendants. The trial court denied the motion without prejudice.
Plaintiffs ask that we modify the prohibitory injunction to provide for exclusive use over that portion of the equitable easement that has been the subject of defendants' alleged acts of vandalism, or that we remand the matter to the trial court with instructions to make such modification. Because plaintiffs' arguments concern developments that occurred after the issuance of the injunction, those arguments are best addressed by the trial court on an appropriate motion to modify the injunction, not in this appeal.
The judgment is affirmed. The parties will bear their respective costs on appeal.
I concur:
DOI TODD, J.
BOREN, P.J., Concurring and Dissenting
I concur as to all of Justice Chavez's opinion except as to the awarding of $40,000 to defendants as a condition of granting plaintiffs the equitable easement. While ordering payment for an interest granted pursuant to equity powers may be proper (see Hirschfield v. Schwartz (2001) 91 Cal.App.4th 749, 767), ordering plaintiffs to pay $40,000 is an abuse of discretion under the circumstances here. Plaintiffs are clearly entitled to the prescriptive easement, the equitable easement provides them little protection beyond that of the prescriptive easement and does not run with the land, and any value removed from defendants' property is de minimus.
