Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVSS701112, Michael J. Gassner, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Fullerton, Lemann, Schaefer & Dominick, Wilfrid C. Lemann and David P. Colella, for Defendants and Appellants.
Best Best & Krieger, Christopher M. Pisano and Robert Abiri, for Plaintiff and Respondent.
OPINION
RICHLI, J.
I INTRODUCTION
This is a trespass and ejectment action brought by the City of Colton (the City). In its complaint, the City alleges that defendants are trespassing on a former railroad right-of-way. The right-of-way is owned by the Union Pacific Railroad Company (Union Pacific) and was leased to the City for the construction of a three and one-half mile long bike path through Colton to San Bernardino. The City seeks removal of a block wall constructed by defendants within the right-of-way and removal of vehicles stored on the subject property.
On May 30, 2007, the City filed a motion for a preliminary injunction which would prevent defendants from occupying or using the railroad right-of-way during the pendency of this action. The City requested that the court order the removal of the vehicles and all other personal property currently stored on the subject property and removal of the block wall itself. After hearing, Commissioner Michael J. Gassner granted the motion and signed the requested order.
Defendants appealed and filed a petition for writ of supersedeas. Defendants asked that the preliminary injunction order be stayed pending determination of the appeal, because the injunction was a mandatory injunction.
On September 25, 2007, this court issued an order granting the petition for writ of supersedeas. We determined that the preliminary injunction issued by the trial court was mandatory insofar as it essentially required petitioner to remove the block wall. We therefore issued the writ to compel the trial court to recognize the automatic stay. We noted, however, that the trial court had discretion to condition the stay upon the posting of a bond.
On appeal, defendants acknowledge that their only defenses to the trespass allegations are the affirmative defenses of adverse possession and easement by prescription. They argue that the trial court abused its discretion in granting the preliminary injunction because (1) there was no substantial evidence to support the trial court’s implicit finding that Civil Code section 1007, defining title by prescription, provided immunity from those defenses, and (2) there was no substantial evidence to support the trial court’s implicit finding that the balance of harms weighed in favor of the City.
Finding no abuse of discretion, we affirm.
II FACTUAL AND PROCEDURAL BACKGROUND
A. The Motion for Preliminary Injunction
The City’s motion for a preliminary injunction is based on the argument that defendants’ trespass is jeopardizing the entire $1.6 million bike path project. In support of this assertion, the City cites a California Department of Transportation letter dated May 26, 2006, which warned the City that it had to complete construction by June 30, 2007. The San Bernardino Associated Governments sent a similar letter dated July 14, 2006.
Citing these letters, the City requested a preliminary injunction based on an alleged need to begin construction immediately. The requested injunction would provide for the immediate removal of the block wall and removal of defendants’ other property from the railroad right-of-way.
The City’s assertion is supported by a declaration from the City engineer, but it is not supported by the cited documents. Since the motion was filed only a month before the alleged deadline, the project could not have been completed by June 30, 2007, in any event.
The City’s motion was supported by declarations from the City engineer, the City’s administrative operations manager, and the City manager. It was also supported by a declaration from a Union Pacific real estate manager and an appendix of photographs, maps, and other documents relating to the bike path project.
The City engineer, Amer Jakher, described the bike path project. The City first obtained lease rights to the railroad right-of-way from Union Pacific in 2000. The lease was for beautification and weed control. In 2003, the lease was amended to a 20-year lease for construction of the bike path. Mr. Jakher described the steps the City then took to fund and build the bike path.
Mr. Jakher also stated that he became aware of defendants’ trespass in October 2005. The City then entered into negotiations with defendant Grossich in an attempt to resolve the issue. Mr. Grossich refused to move his property off the right-of-way, and this action was filed on May 4, 2007. Mr. Jakher stated that the bike path would not get built if construction did not begin by June 30, 2007, and the money spent for design of the project, approximately $380,000, would have been wasted.
As noted below, Mr. Jakher contradicted himself in his subsequent declaration filed on August 20, 2007, in the writ proceeding. At that time, construction was underway.
The City’s administrative operations manager, Maritza Tapia, submitted a declaration which attached photographs of the encroachment.
The City manager, Darryl Parrish, submitted a declaration which discussed the need for the bike path. Instead of an unused rail line overgrown with weeds, the bike path would clean up and beautify the railroad right-of-way while providing a recreational and transportation corridor to San Bernardino. Mr. Parrish also discussed the funding for the project and the intransigence of Mr. Grossich.
The declaration of the Union Pacific real estate manager confirmed that Union Pacific owned the right-of-way and leased it to the City in 2000. The lease was amended in 2004 to provide for construction of the bike path.
Finally, the City asked the court to take judicial notice of the county assessor’s records relating to the right-of-way. The records show that the subject property is assessed by the State Board of Equalization and that taxes are billed to Southern Pacific Transportation Company, a predecessor of Union Pacific. No joint owner is listed.
B. Defendant’s Response to the Motion
In opposition to the motion, defendants filed the declarations of defendant Ernest Grossich and David Colella, defendants’ attorney. Defendants argued that the City was not likely to prevail on the merits because they have a right to possess the property by adverse possession or an easement by prescription. They also argued that the project was “ill-conceived” and the City’s harm from denial of the preliminary injunction request would be minimal compared to the substantial harm defendants would suffer if the injunction were to be granted.
Mr. Grossich declared that he purchased the adjacent property in 1978. At that time, the railroad had already ceased using the right-of-way for several years. He built the block wall to comply with the City’s requirements and with a permit from the City. He believed he had a right to the subject property and thus did not comply with a 1993 demand letter from Southern Pacific Lines. The railroad took no action to enforce its demand that the trespass cease. Mr. Grossich also discussed various negotiations with the City for changes in the property lines. However, he did not provide any evidence of harm to him that would result from the granting of the motion. The only possible harm he mentioned in his declaration was that “Colton also wanted to eliminate the only path I can use to reach my garage/warehouse.”
Mr. Colella’s declaration attached various documents. These included two deeds by which Mr. Grossich purchased the adjacent property in 1978 and 1989. Other documents established that, in 1989, the City required a block wall to screen the outdoor storage of automobiles. The City issued a building permit for the work in 1990. Also attached was a 1993 letter from Southern Pacific Lines that demanded removal of the encroachment. The final exhibit was a 2006 letter from Union Pacific in which it tentatively offered to sell the property to Mr. Grossich for $229,524.
Both deeds clearly state that the property transferred does not include the portion within the railroad’s right-of-way.
C. The City’s Reply
In response, the City filed a reply brief attacking the adverse possession and prescriptive easement defenses. It also filed a supplemental declaration by Mr. Jakher. The declaration purported to explain why the City could not simply begin construction at one end of the bike path.
As described above, the City argued that it had to begin construction by June 30, 2007. Defendants responded that, if commencement of construction was all that was required, construction could have been started on another part of the bike path by the alleged deadline.
D. The Hearing
The motion was heard on June 21, 2007. The City argued that a two-prong analysis was required and that it met the requirements for the issuance of a preliminary injunction. First, it argued that it would sustain a greater harm if the injunction was not granted than defendants would sustain if the motion was granted. Second, it argued that it would prevail on the merits because the defendants could not establish the elements of their affirmative defenses of adverse possession and prescription.
Attacking defendants’ affirmative defenses, the City specifically argued that (1) a person cannot obtain title or prescriptive rights of property owned or possessed by a government agency or a railroad; (2) to obtain title by adverse possession a person must pay taxes on the property; here, defendants did not pay taxes on the right-of-way property; and (3) defendants’ occupancy must be hostile to title; here, defendants’ occupancy was not hostile because they had offered to purchase the property from the railroad.
In response, defendants argued that removal of the block wall and the automobiles stored on the railroad right-of-way would effectively destroy the value of the adjacent property owned by defendants. Since defendants claimed that the railroad had abandoned the right-of-way more than 35 years ago, they argued that they would prevail on the adverse possession defense because of their open and notorious use of the property for 33 years.
The following day, the trial court issued its order granting the preliminary injunction. No explanation for the ruling was given, and this appeal followed.
III STANDARD OF REVIEW
“In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. [Citation.] ‘The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.’ [Citation.] [¶] The determination whether to grant a preliminary injunction generally rests in the sound discretion of the trial court. [Citation.] ‘Discretion is abused when a court exceeds the bounds of reason or contravenes uncontradicted evidence. [Citation.]’ [Citation.] [¶] When, as here, the trial court is presented with evidence on the two factors in both cases but fails to make express findings, we presume that the trial court made appropriate factual findings [citation] and review the record for substantial evidence to support the rulings [citation]. However, to the extent that the determination on the likelihood of a party’s success rests on an issue of pure law not presenting factual issues to be resolved at trial, we review the determination de novo. [Citation.] [¶] We reverse an order denying a preliminary injunction only if the trial court has abused its discretion in ruling on both factors. [Citation.] We reverse an order granting a preliminary injunction if the trial court has abused its discretion in ruling on one of the pertinent factors. [Citation.]” (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402-1403; see also Hunt v. Superior Court (1999) 21 Cal.4th 984, 999; IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 68-72; Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 823-824.)
IV DISCUSSION
Defendants first argue that the trial court implicitly found that the immunity of Civil Code section 1007 protects the City and the railroad from adverse possession claims. They contest this conclusion and argue that the outcome of the appeal depends on interpretation of the statute. They then argue that the statute does not apply to the facts presented here.
The argument that this is purely an issue of law thus conflicts with the heading of their argument, which states: “There was no substantial evidence to support the trial court’s implicit finding that Civil Code [section] 1007 applied to the subject property.” (Capitalization omitted.)
Defendants thus attempt to construe their appeal as involving a statutory interpretation — that is, an issue of law which is reviewed de novo. They ask us to interpret the statute and find that the trial court erred in its implicit finding that the statute barred defendants’ adverse possession and prescriptive rights claims.
“The general rule is that an order granting a preliminary injunction is reviewed under the abuse of discretion standard. [Citation.] However, where the issuance of a preliminary injunction ‘is dependent upon the construction of a statute, and the matter is purely a question of law, the standard of review is not whether discretion was appropriately exercised, but whether the statute was correctly construed.’ [Citation.] Here, the question is solely one of law, that is, whether the city’s expenditures were reportable within the meaning of the Political Reform Act. Accordingly, we review de novo the court’s order granting a preliminary injunction.” (Yes on Measure A v. City of Lake Forest (1997) 60 Cal.App.4th 620, 623.)
We find the argument unconvincing. The issues raised by defendants are not pure questions of law because the facts here were disputed. The issue was not merely the application of a statute to undisputed facts. As noted above, the City cited three strong reasons why adverse possession and prescriptive easement defenses would not be successful. First, Civil Code section 1007 provides that title to public property may not be obtained by prescription. Second, Code of Civil Procedure section 325 provides that the party claiming title by adverse possession must have paid taxes on the subject property, and defendants apparently concede that they have not done so. Third, Code of Civil Procedure section 324 provides that possession must be held under a claim of title, i.e., the possession must be hostile to title. Defendants’ argument under the latter statute is undermined by their attempts to purchase the right-of-way from the railroad.
Each of the City’s arguments was undeveloped factually or legally at the time of the hearing on the preliminary injunction. It would be inappropriate to decide the applicability of these statutes upon the current record. (14859 Moorpark Homeowner’s Assn. v. VRT Corp., supra, 63 Cal.App.4th at p. 1403.) For example, defendants argue that the question of the applicability of Civil Code section 1007 depends upon whether the property was dedicated to public use, i.e., whether the property owned by a public utility is actually used to carry out the regulated activities of the utility. These arguments raised factual issues. Other factual issues raised by defendants include the nature of the use of the property by the railroads, whether the railroads abandoned the property and, if so, when the abandonment occurred.
The exception clause of Civil Code section 1007 states: “[N]o possession by any person, firm or corporation no matter how long continued of any land . . . dedicated to a public use by a public utility, or dedicated to or owned by . . . any public entity, shall ever ripen into any title, interest or right against the owner thereof.”
We decline defendants’ invitation to render an advisory opinion on the issue. At trial, the court will undoubtedly decide the issue on the facts presented to it in connection with its decision of defendants’ affirmative defenses.
Similarly, the parties continue to debate whether taxes were assessed on the subject property, whether they were levied and paid and, if so, the years for which they were paid. The issue is properly reserved for appropriate discovery and trial.
In response to the City’s argument that their possession was not hostile because defendants attempted to purchase the subject right-of-way property, defendants contend their attempts to purchase the right-of-way property were legitimate efforts to settle a disputed claim. (See, e.g., Mills v. Laing (1918) 38 Cal.App. 776, 779 [“[t]he essence of adverse possession is that the holder claims the right to his possession not under but in opposition to the title to which his possession is alleged to be adverse”].) Again, the facts supporting either side of the argument were undeveloped and were not presented to the trial court.
Generally, neither the trial court nor this court is concerned with the ultimate issues in the case. “‘The granting or denying of a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy. [Citations.]’ [Citation.] In determining the propriety of preliminary relief, neither the trial court nor an appellate court may undertake a final adjudication of the lawsuit. [Citation.]” (Hunt v. Superior Court, supra, 21 Cal.4th at p. 999, fn. omitted; see generally 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, §§ 287, 289, pp. 228-230.)
The only issues at the preliminary injunction hearing were whether there was evidence supporting the trial court’s determination that the City was likely to prevail on its trespass claim and the consideration of the relative harm from granting or denying the preliminary injunction.
Although defendants would have the burden of establishing their affirmative defenses of adverse possession and easement by prescription at trial, we do not decide the merits of those defenses now. It would be sufficient if the City submitted compelling arguments showing that it was likely to prevail in the action, which it did.
Defendants also argue that there was no substantial evidence to support the trial court’s implicit finding that the balance of harms weighed in Colton’s favor. Defendants characterize the City’s argument as based on the sole premise that, without the injunction, the City would lose $1.6 million in funding for the bike path project. Defendants find that harm illusory and emphasize that there is no evidence that the City actually suffered any harm despite passage of the alleged deadline.
In response, the City argues that it offered significant evidence detailing the harm it would suffer if an injunction was not granted. This evidence included the City manager’s description of the social importance of the project and the possible economic losses the City would sustain if construction did not begin immediately. Thus, the City finds “the potential for a true disaster if the project funds were lost due to delay.”
Despite the City’s hyperbole, we stated, in the order issuing the writ of supersedeas: “We are not convinced by the representations in the record that respondent City of Colton will, in fact, suffer any financial harm if immediate completion of the bicycle path is delayed.” Although we find nothing in the current record or arguments which inclines us to change this opinion, we agree with the City that its declarations, and particularly the City manager’s declaration, did provide some evidence that the City would sustain some harm if the project was delayed or cancelled. The question is whether the trial court could properly find that this evidence outweighed the evidence of harm produced by the defendants.
The question is easily resolved because the defendants did not address the issue of harm in their declarations. Although they contend that they presented evidence of drastic and irreparable harm to Mr. Grossich from the granting of the injunction, Mr. Grossich did not describe any such harm in his declaration. As noted above, the only possible harm he mentioned in his declaration is that “Colton also wanted to eliminate the only path I can use to reach my garage/warehouse.”
Defendants now argue that their counsel’s statements in their opposition to the preliminary injunction motion, and counsel’s discussion of unsupported “facts” during counsel’s argument at the preliminary injunction hearing, were evidence. They were not.
The trial court did not abuse its discretion in finding that the potential harm to the City outweighed the potential harm to defendants. Thus, we agree with the City that it presented sufficient evidence to support the trial court’s implied findings that it is likely to prevail on the merits of the case, and it presented sufficient evidence to allow the trial court to conclude that the balance of harm weighs in its favor. Defendants have not demonstrated that the trial court’s decision on either of these issues was wrong, or that its decision granting the motion for a preliminary injunction was an abuse of its discretion.
Other potentially significant arguments arising from the mandatory preliminary injunction are not raised by defendants and, accordingly, are not properly before us. (See generally 6 Witkin, Cal. Procedure, supra, Provisional Remedies, §§ 287 [a preliminary injunction is a provisional remedy to preserve the status quo until judgment], 289 [a preliminary injunction should not be a judgment on the merits unless the case is submitted for decision].)
“The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court. [Citations.] As this court explained in People v. Black’s Food Store [1940] 16 Cal.2d [59, 61], ‘The authorities are numerous and uniform to the effect that the granting or denial of a preliminary injunction on a verified complaint, together with oral testimony or affidavits, even though the evidence with respect to the absolute right therefor may be conflicting, rests in the sound discretion of the trial court, and that the order may not be interfered with on appeal, except for an abuse of discretion. [Citations.]’” (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 69.)
V DISPOSITION
The order granting the City of Colton’s motion for a preliminary injunction is affirmed. Respondent shall recover its costs on appeal.
We concur: McKINSTER, Acting P.J., GAUT, J.
The supplemental declaration by the City engineer, under penalty of perjury, states: “Defendant’s suggestion that Colton start work at one end and work its way down the right-of-way is not possible.”
We note, however, that the same person submitted a declaration in connection with the writ of supersedeas, also under penalty of perjury, which states: “Because of this pending dispute and appeal . . . Colton therefore has been constructing the bike path on the other areas of right-of-way, including the areas immediately adjacent to the Subject Property.” Such contradictions do not lend credibility to the City’s arguments.