Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, No. GIC855635 Jeffrey B. Barton, Judge
O'ROURKE, J.
Plaintiff Ziad Bayasi, as trustee of the Bayasi Family Trust (Bayasi) appeals from judgments in favor of defendant The Regents of the University of California (Regents) in consolidated cases arising from Bayasi's claim of an easement on Regents' property. In one action (Bayasi v. Regents (Super. Ct. San Diego County, 2007, No. GIC855635), the Bayasi action), Bayasi sued Regents for inverse condemnation and an "equitable easement"; the trial court sustained Regents' demurrer on the inverse condemnation cause of action and granted summary judgment in Regents' favor on the equitable easement cause of action. In the other action (Regents v. Bayasi (Super. Ct. San Diego County, 2007, No. GIC859421), the Regents action), Regents sued Bayasi for quiet title on the theory of adverse possession and obtained summary judgment on that cause of action.
On appeal, Bayasi contends: (1) the statute of limitations had not run on his inverse condemnation cause of action; (2) Regents did not meet its threshold summary judgment burden to show it continuously and exclusively occupied the premises for purposes of establishing adverse possession and also operated with unclean hands, preventing summary judgment in its favor; and (3) the trial court improperly weighed the evidence in Regents' favor in granting summary judgment on Bayasi's cause of action for an equitable easement, as to which Bayasi demonstrated triable issues of material fact. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
We state the background facts from the undisputed material facts reflected in the parties' summary judgment separate statements in the Bayasi and Regents actions as well as from inferences in Bayasi's favor that may properly be drawn from the admissible evidence. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768; Suidan v. County of San Diego (1999) 72 Cal.App.4th 916, 920.)
In 1954, the County of San Diego (County) granted a 20-foot wide easement across certain property owned by it to benefit adjacent property then owned by Harrison and Elizabeth Sloane for "right of way for ingress and egress" as well as for utility, telephone and electric lines. The easement agreement was recorded in the San Diego County Recorder's office. The 1954 easement was subject to several conditions subsequent, including that "[t]he said right of way shall be used only as a private easement to serve the real property hereinafter described and designated as Parcel 2" and "shall not be used to serve more than five single-family residences. . . ." Parcel 2 was defined as Lots 1 through 6 in Block 1 of Florence Heights No. 2, Addition, according to Map thereof No. 905 filed in the office of the County Recorder of said San Diego County. By 1982, Regents had acquired County's property.
In 1985, Regents completed construction of a permanent single-story medical facility (the Magnetic Resonance Institute or MRI building) on their property. In 1994, Regents completed another permanent two-story building, the Bannister Family House (Bannister House). Both structures span the entire width of the 1954 easement and completely block access through the easement.
In 1998, Bayasi and his wife purchased three parcels of property encompassing Parcel 2 as well as additional lots (7 through 12) of Block 1 of Florence Heights No. 2, Addition (the Bayasi property). Lots 7 through 12 are not identified in the 1954 easement and the easement does not service those lots.
The Bayasi property is also described as Assessors Parcel Numbers 444-103-01, 444-103-02, and 444-060-03. Assessors Parcel Number 444-103-02 is not serviced by the 1954 easement. In 2004, Bayasi and his wife transferred the property into the Bayasi Family Trust.
In October 2005, Bayasi, representing himself, filed a complaint against Regents seeking to quiet title to the access easement. Regents filed their own complaint against Bayasi; the operative complaint in that matter was eventually narrowed to a single cause of action for quiet title. Bayasi filed a verified second amended complaint and later a verified third amended complaint setting forth causes of action for inverse condemnation and for an equitable easement. In his third amended complaint, Bayasi alleged that Regents' construction of two buildings and other improvements greatly affected the value of his property and constituted a taking for which he had not received compensation. He alleged Regents started to substantially interfere with his access only after they needed to make a case for adverse possession; Regents "only recently" began posting "no parking" signs and issuing parking citations to Bayasi when he parked or drove on the 1954 easement or portions of it and "recently" instructed its security guards to restrict access to Bayasi's property. In his cause of action for an equitable easement, Bayasi sought use of a new easement, referred to by him as the "mirror easement," which he alleged constituted the only known physical access to his property. Bayasi alleged the 1954 easement and the mirror easement had the "same beginning and ending points" and that he and his predecessors had used and improved the mirror easement since 1954 "with the mistaken belief that the Mirror Easement was the 1954 easement." He alleged he would suffer irreparable harm if he was not granted use of the mirror easement because his land would become physically landlocked. He sought to restrain Regents from blocking him from the only known physical access to his property. At some point, the parties stipulated to consolidate the Bayasi and Regents actions.
Regents demurred to the causes of action in Bayasi's third amended complaint on grounds they failed to state facts sufficient to constitute a cause of action. With regard to Bayasi's inverse condemnation cause of action, Regents asked the court to judicially notice the allegations of Bayasi's second amended complaint in which Bayasi alleged that in 1985 Regents had constructed a building "directly across the 1954 Easement" and then constructed a road around the building. Regents argued Bayasi's inverse condemnation cause of action failed under the applicable statute of limitations because any such cause of action accrued in 1985 when the Regents constructed that building, which destroyed the entire use of the 1954 easement. Regents maintained their actions in obstructing the easement and completely blocking vehicular and utility access for a five-year period in fact extinguished the easement. Regents additionally argued a reasonable person in Bayasi's position would have recognized the loss of access because the 1954 easement was recorded and listed on the title insurance policies obtained during the Bayasi's property transaction, but Bayasi in any event had actual knowledge of the 1954 easement by July of 2000, when he filed pleadings in a prior lawsuit acknowledging the easement's existence. Finally, Regents argued Bayasi's prior pleadings established he had used the 1954 easement in a manner contrary to the easement's express condition subsequent that it be used only to benefit Parcel 2, resulting in the easement's termination.
Granting Regents' request for judicial notice of Bayasi's second amended complaint, the trial court sustained Regents' demurrer to the inverse condemnation cause of action without leave to amend. It ruled Bayasi's allegations concerning Bannister House, which Bayasi omitted from his third amended complaint, demonstrated that the building substantially interfered with Bayasi's rights under the 1954 easement, requiring him to bring an action within the five year limitations period. It further ruled Bayasi was indirectly requesting compensation for property rights falling outside the scope of the 1954 easement and contrary to the easement's terms. The court overruled Regents' demurrer to Bayasi's cause of action for equitable easement.
Thereafter, Regents moved for summary judgment on their first amended complaint to quiet title to the 1954 easement under the doctrine of adverse possession, arguing the elements of that doctrine were met by the construction in 1985 and 1994 of the MRI Building and Bannister House across the entire width of the 1954 easement. Bayasi opposed the motion in part on grounds Regents did not meet their burden of demonstrating adverse possession because a tenant had occupied a structure located on one of Bayasi's lots benefitted by the easement, Lot 6, and thus Regents' possession could not be exclusive for purposes of that doctrine. Bayasi further argued Regents should be estopped from asserting adverse possession and the easement's termination because Regents had acquiesced in Bayasi's use of the 1954 easement and mirror easement. He submitted a declaration in which he averred he first learned of the 1954 easement in July of 2000 and at that time assumed it was the same location as the mirror easement; that he did not discover they were in differing locations (with the same beginning and end points) until January 2001. Bayasi stated he had rented the structures on his property to various tenants from February 2002 to January 2003 and from April 2003 to May 2005, and he had resided on his property from April 2001 to September 2001, and also in October 2005. Bayasi averred that at those times he and his tenants used the mirror easement for access; that there was no other vehicular access to his property other than the mirror easement. He averred that he began making repairs and improvements to his property in 2004 with Regents' staff's cooperation, and he had spent approximately $200,000 to bring utilities to the site and improve the structures, including repairing a paved portion of the mirror easement that is directly adjacent to his structures.
The court granted summary judgment on Regents' quiet title cause of action, ruling Bayasi had not raised any triable issue of material fact to refute Regents' showing establishing adverse possession. The court found Regents' building activity blocked any through-access along and substantially interfered with Bayasi's rights under the 1954 easement, requiring him to bring his action within the five-year limitations period. It entered judgment in Regents' favor, adjudging the easement terminated and extinguished and Bayasi, the Bayasi Family Trust, and any other predecessors, successors, or other persons had no right, title, estate, lien or interest in or to the easement.
Regents and Bayasi then filed cross-motions for summary judgment in the Bayasi action on Bayasi's remaining equitable easement cause of action, in which Bayasi sought a right to use the mirror easement. Regents argued in their motion that Bayasi could not satisfy the elements of an equitable easement because his use of the mirror easement was not innocent. They pointed to Bayasi's verified pleadings from a previous litigation indicating that as of October 1998, a Regents representative had declined Bayasi's request for an easement by prescription to access a structure on his property. Regents argued Bayasi would not suffer irreparable harm without the equitable easement because he had assumed the risk by knowingly purchasing land with obvious access problems. Regents asserted they would suffer a substantial amount of harm if the easement were granted due to the added burden of traffic in an already heavily travelled clinical and administrative zone in which ambulances transported patients to and from the MRI building and the Bannister House.
Bayasi does not assert any challenge the trial court's ruling on his motion for summary judgment in the Bayasi action, and we do not further address that ruling.
Expressly ruling on the parties' evidentiary objections filed in connection with Regents' motion, the trial court granted Regents' motion and denied Bayasi's motion. It concluded, referring to Bayasi's unsuccessful attempt in 1998 to obtain an easement from the University, that Regents met their burden of showing Bayasi had not been using Regents' land with an innocent belief he had a right to use it. It found denying the easement would yield less irreparable harm to plaintiffs than to Regents; that absent the easement Bayasi would be in the same position – owning landlocked parcels – as when he purchased the property.
DISCUSSION
I. Regents' Demurrer to Inverse Condemnation Cause of Action (Bayasi Action)
A. Standard of Review
"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer." (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800.)
B. Analysis
Bayasi advances two basic arguments challenging the trial court's order sustaining Regents' demurrer to his inverse condemnation cause of action: First, relying on a treatise and its citation to Dieterich International Truck Sales, Inc. v. J.S. & J. Services, Inc. (1992) 3 Cal.App.4th 1601, Bayasi argues Regents could not have adversely possessed the 1954 easement for a continuous five-year period because he alleged that until "recently," tenants have occupied a structure located on Lot 6 "off-and-on since 1954, with no statutory five-year gap . . . ." Bayasi asserts that due to his and his tenants' use of the 1954 easement, Regents' possession was not exclusive for purposes of applying the doctrine of adverse possession. Second, Bayasi points out the limitations period only begins to run when damage is sufficiently appreciable to a reasonable man, which was not the case here because he alleged Regents only "recently" began issuing parking citations to him and restricting his access. Because we conclude Bayasi's verified pleadings reveal the statute of limitations had run on his inverse condemnation cause of action, we need not reach his first merits-related point.
The statute of limitations for inverse condemnation based on a physical taking of real property (as opposed to property damage) is five years. (Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 607; Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1048.) In Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, a case involving a cross-complaint for inverse condemnation for the channeling of extra water onto the plaintiffs' property as a result of a freeway construction, the court stated the date the taking occurred is not necessarily the date on which the limitations period begins to run; it begins to run when the "damage is sufficiently appreciable to a reasonable man." (Mehl, 13 Cal.3d 710, 714, 717, citing Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 255; see also Otay Water Dist., at pp. 1048-1049; Smart v. City of Los Angeles (1980) 112 Cal.App.3d 232, 235 [inverse condemnation cause of action accrues "when the damaging activity has reached a level which substantially interferes with the owner's use and enjoyment of his property"]; Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 291.) Mehl, however, distinguished cases involving a "direct physical invasion of the landowner's property when [a] project is built" from one involving property damage, observing that in the former cases, the causes of action were held to accrue upon "completion of the project causing injury" (Mehl, 13 Cal.3d at p. 717, fn. 2, citing Williams v. Southern Pacific R.R. Co. (1907) 150 Cal. 624, 627) or "when the compensable interference is objectively total." (Mehl, at p. 717, fn. 2, citing Moseian v. County of Fresno (1972) 28 Cal.App.3d 493, 500 [cause of action accrued when county completed ponding and settlement basin facilities].)
As did the trial court, we take judicial notice of Bayasi's verified second amended complaint in which he alleged Regents constructed a building "directly upon the easement granted by the express, written and recorded 1954 Easement." (Evid. Code, §§ 451, subd. (a), 452, subd. (a), 459; Blank v. Kirwan, supra, 39 Cal.3d at p. 318; McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1491 [trial and appellate courts ruling on a demurrer may properly take judicial notice of a party's earlier pleadings and positions as well as established facts from the same case and other cases].) Bayasi alleged that his access was not along the "defined route" of the easement but rather along a road Regents built around their building; that as a result of the Regents' building, the alternate route to his property along the so-called mirror easement "has been the only ingress/egress to plaintiffs' property for [the past] 20 years." Bayasi cannot avoid these allegations on Regents' demurrer by omitting them in his third amended complaint. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; McKell, at p. 1491.)
Under these circumstances, Bayasi misplaces reliance on the damage cases using the test of sufficiently appreciable harm to a reasonable person. Bayasi's allegations demonstrate that any use of the 1954 easement was rendered impossible as of the completion of Regents' building. The circumstances here are like the cases distinguished by Mehl, involving a direct physical invasion of property by virtue of a construction project. Thus the statute of limitations began to run as of 1985, or 1994 at the latest, when Regents completed buildings that spanned the width of and substantially interfered with the 1954 easement. Even if we were to apply the damage rule, however, we would conclude the "damage" became apparent and discoverable to the easement holder as of the date Regents completed its construction. (E.g., Moseian v. County of Frenso, supra, 28 Cal.App.3d at pp. 500-501.)
The fact Bayasi did not own the property at the time Regents completed construction in 1985 is of no moment, because the right to recover in inverse condemnation inures "in the person who owned the property at the time of the taking or damaging, regardless of whether the property is subsequently transferred to another person." (City of Los Angeles v. Ricards (1973) 10 Cal.3d 385, 389 [involving blocked easement that constituted sole legal access to plaintiff's property], accord Brick v. Cazaux (1937) 9 Cal.2d 549, 555-556; 2 Nichols on Eminent Domain (rev. 3rd ed. 2007) § 5.01[5][d][i].) When an owner suffers a taking by being denied an access easement to his or her property, it is the owner at the time of the taking who is entitled to compensation even if she sells the property before the damage is cured; in that event the owner's damage would be the reduction in selling price. (E.g., Ricards, at pp. 388-389.) As explained in CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, a trespass case stemming from contaminated soil and groundwater: "[F]or limitations purposes the harm implicit in a tortious injury to property is harm to the property itself, and thus to any owner of the property once the property has been injured and not necessarily to a particular owner. Thus once the sewer line has been improperly located on the property [citation], or the lot preparation and foundation construction have been improperly done [citation], or the encroaching buildings are constructed [citation], the tort is complete and the statute of limitations (unless forestalled by the 'discovery rule' or some other special doctrine) begins to run: An owner must bring its claim to court within the statutory period or the claim will be barred for that and all subsequent owners. Normally, a subsequent owner will not be personally harmed by the tort until he or she becomes the owner, but no case has held that each new owner thus becomes entitled to a new statute of limitations against the tortfeasor. Such a rule would wholly disregard the repose function of statutes of limitations." (CAMSI IV v. Hunter Technology Corp., at pp. 1534-1535; see also Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216; Traveso v. Dept. of Transportation (2001) 87 Cal.App.4th 1142, 1145.)
We note that courts (see e.g., Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, disapproved on another point in Trope v. Katz (1995) 11 Cal.4th 274, 292, and Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059) decline to apply the CAMSI IV rule in cases of latent defects in real property. (Leaf, at pp. 406-407, Kirby, at p. 1065.) But this case presents an obvious, immediate and permanent injury, not an underground trespass or latent structural defect.
Bayasi does not rely upon the so-called discovery rule that "postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397; see also Lyles v. State (2007) 153 Cal.App.4th 281, 286.) Nor could he, because under that rule, "[a] plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.' [Citations.] . . . [¶] . . . [¶] . . . In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807-808; Lyles v. State, at p. 287.) Bayasi's verified second amended complaint reveals that in 1999, Bayasi sued neighboring landowners for an easement by necessity. Bayasi alleged that his "allegations were unsuccessful because defendants in that suit asserted the then-discovered 1954 Easement destroyed the elements necessary to create the easement by necessity." (Italics added.) Under these circumstances, even if the defendants in that action did not assert the 1954 easement until October 2000 or sometime within the five year period before Bayasi filed suit against Regents in October 2005, there is no question that Bayasi suspected, or at the very least should have suspected, his injury (lack of access to his property) no later than 1999, and was required at that time to conduct a reasonable investigation into his title, which would have revealed the existence and scope of the 1954 easement.
In sum, Bayasi's pleadings show the taking occurred upon completion of the Regents' MRI building in 1985, and thus the statute of limitations began to run at that time and expired in approximately 1990. Bayasi's complaint for inverse condemnation, first filed in 2005, is thus barred by the statute of limitations. The trial court correctly sustained Regents' demurrer without leave to amend.
II. Summary Judgments
A. Standard of Review
The court properly grants summary judgment if the record establishes no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question." (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850-851, fns. omitted.) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Ibid.)
We review the trial court's decision de novo, considering all of the evidence offered in connection with the motion – except that which the court properly excluded – and the uncontradicted inferences the evidence reasonably supports. (Kahn v. East Side Union High School District (2003) 31 Cal.4th 990, 1003; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) In doing so, we apply the same three-step analysis required of the trial court. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1431-1432.) After identifying the issues framed by the pleadings, we determine whether the moving party has established facts justifying judgment in its favor. If the moving party has carried its initial burden, we then decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Bono, at p. 1432.) We strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Gafcon Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402) without weighing the evidence or conflicting inferences. (Aguilar, supra,25 Cal.4th at p. 856; Code Civ. Proc., § 437c, subd. (c); Woodridge Escondido Property Owners Ass'n. v. Nielsen (2005) 130 Cal.App.4th 559, 567-568.)
B. Adverse Possession Cause of Action (Regents' Action)
Bayasi contends Regents did not meet their threshold burden to establish all of the elements of adverse possession. He points to evidence that he and former tenants have been using the 1954 Easement "or portions thereon" from 1968 until recently with no five-year gap, arguing that Regents cannot perfect title if other persons also use the property. Bayasi also contends, repeating the arguments presented in opposing Regents' demurrer, the five-year period for purposes of establishing adverse possession has not passed because Regents only recently began restricting his access. Finally, Bayasi maintains summary judgment should be denied because he presented evidence that Regents acted with unclean hands.
Our resolution of the matter is assisted by a brief overview of the law relating to easements. An easement is a nonpossessory interest in another's person's property that gives the easement holder the right to use that land for a specified purpose or prevent the property owner from using the land. (Kazi v. State Farm Fire & Cas. Co. (2001) 24 Cal.4th 871, 880; Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1598.) The land to which the easement attaches (here, Bayasi's property) is the dominant tenement; the land that is burdened (Regents' property) is the servient tenement. (Civ. Code, § 803; Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, 1384.) "It is well settled that an easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession." (Glatts v. Henson (1948) 31 Cal.2d 368, 370-371 (Glatts); Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1084 ["easement obtained by grant may be extinguished by adverse possession by the owner of the servient tenement"]; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 425, pp. 496-497.) "The nonpermissive erection and maintenance for the statutory period of permanent structures, such as buildings, which obstruct and prevent the use of the easement will operate to extinguish the easement." (Glatts, at p. 371.) Thus, when interference with use of an easement continues for five years, the easement may be terminated by the adverse possession of the servient tenement. (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) Easements, § 15:85, p. 278, fn. Omitted.)
However, "not every act which appears, at first blush, to be adverse to the rights represented by the easement will suffice to extinguish it by prescription." (Tract Development Services, Inc. v. Kepler, supra, 199 Cal.App.3d at p. 1386.) Instead, an "easement may be extinguished by the adverse possession of the servient owner" only "if his or her use satisfies the requirements for adverse possession." (6 Miller & Starr, supra, Easements, § 15:85, p. 278.) "The elements necessary to establish title by adverse possession are: (1) tax payments, (2) actual possession which is (3) open and notorious, (4) continuous and uninterrupted for five years, (5) hostile and adverse to the true owner's title, and (6) under either color of title or claim of right." (California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803; accord Gilardi v. Hallam (1981) 30 Cal.3d 317, 321; 6 Miller & Starr, Adverse Possession, supra,§ 16.2, pp. 6-7.) "The owner of a servient tenement who has paid the taxes on the entire property does not have to prove payment of any taxes on the easement unless the easement owner establishes that it was separately assessed." (6 Miller & Starr, Easements, § 15:85, p. 282, citing Glatts, supra,31 Cal.2d at p. 372.) Absent satisfaction of all of these requirements, an easement is not terminated. (6 Miller & Starr, Easements, § 15:85, p. 279.)
In Glatts, the plaintiffs brought an action to quiet title to a 30-foot wide portion of property on their land over which an easement for road purposes had been reserved for neighboring owners. (Glatts, supra, 31 Cal.2dat pp. 369-370.) Undisputed evidence established that the plaintiffs had erected buildings on a 17 1/2-foot strip of the 30-foot wide easement without the easement claimants' permission, and they had maintained the buildings for more than five years before the commencement of their quiet title action. (Id. at p. 370.) The 30-foot easement had not been used except for the east 12 1/2 feet. (Ibid.) Under those circumstances, the California Supreme Court held the 17 1/2-foot portion of the easement was extinguished. (Id. at p. 372.) Further, explaining that the burden of proving tax payment rested on the record owner of the easement, the court held that the law presumed that no taxes were levied on the easement, and there was no proof by the easement claimants that taxes were assessed. (Ibid.) It ordered that judgment be entered in plaintiffs' favor quieting title as against defendants to that portion of the easement. (Ibid.)
Here, Bayasi did not dispute Regents' evidence that they constructed buildings in 1985 and 1994 that spanned the width of and blocked access through the 20-foot wide 1954 easement. He did not dispute Regents' evidence that a diligent search of Regents' records (kept for real estate transactions after 1989) showed no indication of any permission requested or sought from any person or entity for construction of the Bannister House in 1994. Bayasi's sole opposing evidence on these points – his declaration – states he and his tenants used an alternate route, the so-called mirror easement, for access, not the 1954 easement. Indeed, Bayasi admitted in his opposing declaration that "[t]here is no other vehicular access to the subject property other than the Mirror Easement." The fact Bayasi or tenants may have used an alternate route for travel to and from his property, or that Bayasi leased structures located on Bayasi's property to tenants who accessed the property via a path other than the 1954 easement, does not bear on the question of whether Regents' use of the 1954 easement was exclusive, or whether Regents otherwise demonstrated that it acquired title to the 1954 easement by adverse possession. Bayasi's evidence that the Regents "only recently" began restricting his access to the property likewise has no bearing on the adverse possession question because Bayasi in the same declaration makes it clear that his use has been of the mirror easement, not the 1954 easement.
In sum, the evidence is undisputed that Regents' use of the 1954 easement was sufficiently hostile and exclusive because Bayasi and the tenants were deprived entirely of access to that easement. (See Gerhard v. Stephens (1968) 68 Cal.2d 864, 903; Tract Development Services, Inc. v. Kepler, supra, 199 Cal.App.3d at p. 1384.) Under these circumstances, Glatts compels us to conclude Regents met its summary judgment burden to show the 1954 easement had been extinguished by adverse possession.
Finally we conclude Bayasi did not raise triable issues of material fact defeating summary judgment on the theory that Regents has "unclean hands." "Unclean hands . . . is an equitable defense." (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1053.) Its application is a question of fact. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 639.) In attempting to raise a triable issue of material fact on this asserted defense, the sole evidence Bayasi relied upon in his summary judgment opposition was Regents' discovery admission that it did not expressly acknowledge the existence of the 1954 easement to Bayasi during earlier litigation (Bayasi v. Crabtree, et al. (Super. Ct. S.D. County, 2000, No. GIC736944)) in which Regents was a cross-complainant, as well as several summary judgment rulings in that case. Bayasi points to this same evidence on appeal.
We are unpersuaded the action is barred under this equitable doctrine. First, Bayasi's briefing requires us to conclude his appellate contention is waived. While he sets out the general legal maxim that "he who comes into equity must come with clean hands," he has not provided any coherent argument or authorities applying those principles to the facts of this case. He does not explain why Regents had some obligation to inform him of an easement that was recorded well before he purchased the property and reflected in Bayasi's title report, or how Regents' nondisclosure "violated conscience, good faith or other equitable principle" (Pond v. Insurance Company of North America (1984) 151 Cal.App.3d 280, 290) so as to amount to misconduct that would provide the basis for an unclean hands defense. Nor does he explain how Regents' nondisclosure in the prior litigation directly relates to or affects the parties' equitable relations in Regents' quiet title action based on its claim of adverse possession. (See, e.g., Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 984 ["[t]he misconduct that brings the unclean hands doctrine into play must relate directly to the transaction concerning which the complaint is made"]; Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638-639.) Because he has "cit[ed] only general principles
See, e.g., Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1063 [plaintiff barred from recovery in action in which he perjured himself]; Pond v. Insurance Company of North America, supra, 151 Cal.App.3d at pp. 291-292 [plaintiffs' knowing suppression of critical evidence in prior indemnity lawsuit that may have changed outcome of that lawsuit constituted unclean hands barring the plaintiffs' malicious prosecution action]; Elliott v. Contractors' State License Board (1990) 224 Cal.App.3d 1048, 1055 [plaintiff could not challenge revocation of license that he had obtained through fraud].)
. . . without applying those principles to the circumstances before the court" (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699), we deem the claims abandoned and disregard them for lack of cognizable legal authority. (Id. at pp. 699-700; see also San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626 [appellate court will discuss only those arguments that are sufficiently developed to be cognizable].)
In any event, we would reject his argument were we to consider it. Bayasi asserts that "each and every motion for summary judgment in that case was decided against Bayasi based primarily on the existence of the 1954 Easement." (Uppercase omitted.) In each of the summary judgment minute orders relied upon by Bayasi, the trial court ruled it is "undisputed that the subject property is served by a recorded easement." We fail to understand (and Bayasi does not explain) how this evidence raises a triable issue of material fact as to whether Regents acted with sufficient bad faith or blameworthiness to apply the unclean hands doctrine to this case when it appears from the face of the summary judgment orders that the parties in the prior Crabtree case were aware of, and did not dispute, the 1954 Easement's existence. Bayasi has not demonstrated he raised triable issues of material fact on that defense. (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at p. 849.)
C. Equitable Easement (Bayasi Action)
1. Legal Principles
An equitable protective interest in land, or equitable easement, is distinguishable from a prescriptive easement or title by adverse possession, which have different requirements. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 754-755, 769-771.)
"The fundamental distinction between a protective interest in equity and a prescriptive easement is illustrated by the differing rationales behind these two theories. Adverse possession and prescriptive easements express a preference for use, rather than disuse, of land. They are designed not to reward the taker or punish the dispossessed, but to reduce litigation and preserve the peace by protecting long-standing possession. [Citations.] Equity is manifestly different. When a court exercises its equity powers, its principal concern is to promote justice, acting through its conscience and good faith." (Hirshfield, at p. 769.)
This equitable doctrine (at times referred to as the relative hardship or balancing of hardships doctrine, see Woodridge Escondido Property Owners Association v. Nielsen, supra, 130 Cal.App.4th at p. 573, fn. 15; Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38, 45) "may be applied [by a trial court] to determine whether to grant an injunction or to quiet title to an easement." (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 237; see Donnell, at pp. 44-47; Miller v. Johnston (1969) 270 Cal.App.2d 289, 306 [applying doctrine to a plaintiff's claim for access and egress through another's property to access the plaintiff's garage].) In Christensen v. Tucker (1952) 114 Cal.App.2d 554, the court set forth three requirements for denial of an injunction against encroachment under the doctrine: "1. Defendant [i.e., encroacher] must be innocent – the encroachment must not be the result of defendant's willful act, and perhaps not the result of defendant's negligence. In this same connection the court should weigh plaintiff's conduct to ascertain if he is in any way responsible for the situation. 2. If plaintiff will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to defendant, except, perhaps, where the rights of the public will be adversely affected. 3. The hardship to defendant by the granting of the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant." (Id. at pp. 562-563; Field-Escandon, at p. 238; see also Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572-573.)
For a court exercising its equity powers under the relative hardship doctrine, "the encroaching party's innocent intent is paramount." (Hirshfield v. Schwartz, supra, 91 Cal.App.4th at p. 769.) "If the party is willful, deliberate, or even negligent in his or her trespass, the court will enjoin the encroachment." (Ibid.)
2. Analysis
Bayasi raises several points challenging the summary judgment on his so-called equitable easement cause of action. For the most part, he appears to argue the merits of his cause of action rather than address whether Regents met its summary judgment burden to show either Bayasi cannot establish any one element of his cause of action or that it can establish a complete defense. (Aguilar, supra, 25 Cal.4th at pp. 850, 853.) However, Bayasi also argues the trial court improperly weighed the evidence in Regents' favor in ruling Bayasi could not prove he had been using Regents' land (the mirror easement) with an innocent belief of the right to use it.
He contends, for example, that "Regents and their predecessors are responsible for the current situation"; that he "will suffer irreparable harm if the equitable easement is not granted"; and "the proposed easement would have an inconsequential impact on the already heavily trafficked and populated area."
We reject the latter argument. It is irrelevant since on our review we assess the underlying summary judgment papers de novo. The argument nevertheless fails for additional reasons, both procedural and substantive. Bayasi points to a statement he made in his declaration supporting his own summary judgment motion (the ruling on which Bayasi has not challenged in this appeal) – that when he purchased his property, he "believed [he] had a right to access the three (3) structures through and across the UCSD Medical Center Property." He then points to evidence presented by Regents in support of its motion via a declaration of its Assistant Vice Chancellor-Real Estate for the University of California San Diego (University), Nancy Kossan, who stated she told Bayasi in an October 1998 in-person meeting that the University would not be willing to provide him access through its property specifically because granting him access was not consistent with the University's Long Range Development Plan. Bayasi presumably asserts that the trial court wrongly weighed these two pieces of evidence in Regents' favor.
As a procedural matter, the trial court was not required to look to Bayasi's moving summary judgment evidence in ruling upon Regents' separate summary judgment motion. While Bayasi submitted a declaration in opposition to Regents' motion, he did not make the same assertions in it about his beliefs as in his declaration supporting his own summary judgment motion; rather, in his opposing declaration on Regents' motion he stated, "I believed that the Regents could and would grant me an easement" and "I also believed that I would have be able [sic] to acquire an easement by necessity. However, because of the Regents' silence about adversely possessing the 1954 Easement, I did not obtain an easement by necessity." These statements by Bayasi in opposition to Regents' motion do not contradict or conflict with Kossan's above-referenced testimony about her meeting with Bayasi in 1998, and thus there can be no issue with improperly weighing the declarants' credibility. Having reviewed the evidence presented in support of and in opposition to Regents' summary judgment motion, we conclude the trial court did not improperly judge credibility or weigh conflicting evidence.
Rather, we conclude Regents met its summary judgment burden by presenting undisputed evidence showing Bayasi cannot establish the required element of innocent use of Regents' property. Regents' evidence, via Kossan's declaration, shows Bayasi knew about the lack of access to his property at least as of September 1998, shortly after he purchased the property, and learned as a result of his request to Regents that Regents would not grant him an access easement to travel across Regents' property. Bayasi's evidence, set forth above, does not raise a triable issue of fact on that point. Nor would a triable issue be raised by Bayasi's supporting summary judgment evidence on his own motion (were we to consider it) that he believed at the time he purchased the property that he had a right to access his structures through Regents' property. There is no dispute Bayasi learned shortly thereafter Regents would not recognize any such right as evidenced by his 1998 letter to Regents to inquire about recording an access easement, which Regents flatly denied. A defendant is not innocent if he willfully encroaches on the plaintiff's land. (Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 859 [ruling in context of a building encroachment].) "To be wil[l]ful the defendant [seeking the right to encroach] must not only know that he is [traveling] on the plaintiff's land, but act without a good faith belief that he has a right to do so. [Citation.] Thus, if plaintiff in the present case induced defendant . . . to believe that he had a right to act, defendant's claim of good faith is supported. On the other hand, continuation of [travel] after objection by plaintiff suggests a lack of good faith." (Id. at p. 859.) As a matter of law based on the undisputed facts set out above, Bayasi could not act under a good faith belief that he had the right to travel across Regents' property to access his land after October 1998 at the latest. Consequently, he cannot rely upon improvements he made to his property well after that time to support his claim of hardship. We conclude Bayasi failed to raise a triable issue of material fact on the issue of his innocent use to support his claim of an equitable easement.
We note Regents sought and the trial court granted judicial notice that Bayasi had previously alleged in verified pleadings that his use of the mirror easement was done in an "actual, open, notorious, hostile, and adverse manner since 1985." On appeal, Regents argues these allegations show Bayasi's state of mind at the time he filed the pleadings and bear directly on whether he innocently believed he had a right to use Regents' property. An important limitation to the doctrine of judicial admissions is that "a mere conclusion, or a 'mixed factual-legal conclusion' in a complaint, is not considered a binding judicial admission." (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.) In the context of a summary judgment motion, for example, "[a] mixed factual-legal conclusion may be contradicted by a declaration or other evidence . . . ." (Ibid.) We need not decide whether Regents properly relied upon Bayasi's previous pleadings in support of its summary judgment motion because we conclude other evidence, namely that presented by declarant Kossan, was sufficient to meet Regents' burden.
Kossan avers: "On or about September 23, 1998, I received a letter from Mr. Bayasi dated September 18, 1998. In his September 18 letter, Mr. Bayasi informed me that he had recently purchased the Bayasi Property. Mr. Bayasi stated that his purpose for contacting me was 'regarding recording an access easement,' and he indicated in his letter that he believed a 'prescriptive right' had been 'attained' to use the USCDMC-Hillcrest Property to access the Bayasi Property. He indicated further that '[w]e are willing to work with you to designate an easement that would not inconvenience you.' " According to Kossan, she responded on Regents' behalf with a letter stating that a " 'prescriptive easement cannot be obtained across publicly owned property' and I advised him that the University 'is a public entity.' " Thereafter, the October 1998 meeting between Bayasi and Kossan took place.
DISPOSITION
The judgments are affirmed.
WE CONCUR:McCONNELL, P. J., NARES, J.