Opinion
No. B254487.
06-17-2015
LILLI SHOEN, Plaintiff and Appellant, v. JULIET ZACARIAS, Defendant and Respondent.
[Modification of opinion (237 Cal.App.4th 16; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT.
IT IS ORDERED that the opinion filed herein on May 22, 2015, be modified as follows and the petition for rehearing is DENIED:
1. On page 3, the second paragraph, line 15 [237 Cal.App.4th 19, advance report, 1st par., line 15], the following sentence is inserted after the sentence ending in "yard.":
The court alternatively ruled that it would grant an equitable easement independently of these considerations based on its own, unfettered view of "whatever it deems important ... in determining how the equities are to be balanced."
2. On page 4, the first paragraph, line 6 [237 Cal.App.4th 19, advance report, 1st par. under Discussion, line 14], the following words are inserted after the number "576.":
(Warsaw).) Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement. (Warsaw, at p. 576 [so noting]; Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858 [40 Cal.Rptr. 848, 395 P.2d 896] [same] (Brown Derby); see Tashakori, at p. 1009 [all three "`must be present'"].) Contrary to the trial court's suggestion, the equitable nature of this doctrine does not give a court license to grant easements on the basis of "whatever [a court] deems important," even when these prerequisites are absent.
3. On page 4, the second paragraph, line 6 [237 Cal.App.4th 19, advance report, last par., line 6], the following sentence is inserted after the sentence ending in "trespasser.":
These labels also suggest that the conveniences or hardships between the trespasser and property owner start out in equipoise, when the doctrine actually requires that they begin tipped in favor of the property owner due to
[237 Cal.App.4th 487b]
the owner's substantial interest in exclusive use of her property arising solely from her ownership of her land.
4. On page 4, the second paragraph [237 Cal.App.4th 20, advance report, 1st par., line 3], in the sentence beginning "What is more," the words "presumptively heavy hardship the" are inserted between the words "the" and "owner"; and the word "suffer" is inserted between the words "will" and "from" so that the sentence reads:
What is more, there are good reasons to require the trespasser seeking an equitable easement to prove that she will suffer a greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner will suffer from its grant.
5. On page 4, the third paragraph, line 11 [237 Cal.App.4th 20, advance report, 1st full par., lines 12-13], the case citation beginning with "Brown Derby" is deleted, and the following citation is inserted in its place:
Brown Derby, supra, 61 Cal.2d at p. 858
6. On page 5, the first full paragraph, line 9 [237 Cal.App.4th 21, advance report, 1st par., lines 5-8], the sentence beginning "It also explains" is deleted, and the following sentences are inserted in its place:
It explains why additional weight is given to the owner's loss of the exclusive use of the property arising from her ownership, independent of any hardship caused by the owner's loss of specific uses in a given case. And it elucidates why there must be a showing that the hardship on the trespasser be greatly disproportionate to these hardships on the owner.
7. On page 6, the first paragraph, line 7 [237 Cal.App.4th 21, advance report, 1st full par., line 11], the following sentence is inserted after the sentence ending in "from its use.":
It also prevents equitable easements from becoming a means of obtaining an adverse easement without having to satisfy the more onerous requirements of prescriptive easements, including the requirement of five years of adverse use. (Pulido v. Pereira (2015) 234 Cal.App.4th 1246, 1250 (Pulido); see Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1501 [courts are reluctant to interpret a doctrine in a way that nullifies other doctrines].)
8. On page 6, the first full paragraph, line 9 [237 Cal.App.4th 21, advance report, 2d full par., line 11], the following sentence is inserted before the sentence beginning "On these facts":
[237 Cal.App.4th 487c]
We also reject Zacarias's suggestion that Shoen's allegedly harassing conduct is itself a greatly disproportionate hardship; the equitable easement doctrine is not a tool for penalizing unneighborly conduct through the reassignment of property interests.
9. On page 6, the second full paragraph [237 Cal.App.4th 21, advance report, 3d full par., line 5], the case citation beginning with "Pulido" is deleted, and the following citation is inserted in its place:
(Pulido, supra, 234 Cal.App.4th at p. 1250.)
There is no change in the judgment.
Respondent's petition for rehearing is denied.