Opinion
B322288
11-28-2023
DE LIMUR ENTERPRISES, LLC, Plaintiff and Respondent, v. JOHN GILBERT ELMASSIAN, Defendant and Appellant.
First American Law Group and Patrick Reider for Defendant and Appellant. Macey A. Chan for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Order Filed Date 12/18/23
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. 20STCV 25588, Michael L. Stern, Judge.
First American Law Group and Patrick Reider for Defendant and Appellant.
Macey A. Chan for Plaintiff and Respondent.
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION
BY THE COURT: [*]
It is ordered that the petition for rehearing filed December 13, 2023, is denied and the opinion filed November 28, 2023 is modified as set forth below. There is no change in the judgment.
1. On page 2, second paragraph, fourth sentence, change "boundary line between the two properties" to "disputed area" so the sentence reads: "We agree that De Limur failed to offer substantial, competent evidence regarding the location of the disputed area and therefore failed to prove, in the first instance, that Elmassian has encroached upon its property."
2. On page 4, delete footnote 4.
3. On page 8, at the end of the first full paragraph, add "and the disputed area" so the final sentence of the paragraph reads: "Accordingly, to prevail on any of its claims, De Limur needed to establish the location of the boundary line between the Ettrick and Waverly properties and the disputed area."
4. On page 9, in the first sentence of the second paragraph, add "and disputed area" following "boundary line" so the sentence reads: "The evidence presented by De Limur regarding the location of the boundary line and disputed area was extremely limited."
5. On page 9, in the fourth sentence of the second paragraph, delete "contained in the survey and apparently depicted on a map" and replace it with "apparently depicted on a survey showing buildings and other improvements and containing colored markings identifying the encroachment (marked-up survey)" so the sentence reads: "Over Elmassian's objection, Gretchen described certain conclusions about the boundary line and the disputed area apparently depicted on a survey showing buildings and other improvements and containing colored markings identifying the encroachment (marked-up survey)."
6. On page 9, in the sixth sentence of the second paragraph insert "marked-up" before "survey" and add "and disputed area" after "boundary line" so the sentence reads: "Both the marked-up survey and the photograph were offered as evidence of the location of the boundary line and disputed area."
7. On page 9, in the final sentence of the second paragraph, insert "marked-up" before "survey" so the sentence reads: "The court, however, sustained Elmassian's objections to those exhibits due to lack of foundation and neither the marked-up survey nor the photograph was admitted into evidence."
8. On page 9, at the end of the final sentence of the second paragraph, add a footnote reading: "The court did admit into evidence a "Record of Survey" bearing indications that it had been filed with the County of Los Angeles. That exhibit does not include buildings or improvements, nor does it depict the location of the disputed area. The court recognized the limited evidentiary value of the survey, inasmuch as the judgment orders the parties to obtain a new survey to identify the area of encroachment."
9. On page 10, in the first sentence of the second paragraph replace "boundary line" with "disputed area" so the sentence reads: "The only other evidence presented by De Limur regarding the location of the disputed area is contained in two photographs which were admitted into evidence."
LAVIN, ACTING P. J.
INTRODUCTION
This is a boundary line dispute between neighboring property owners. Plaintiff and respondent De Limur Enterprises, LLC (De Limur) owns a property that abuts a property owned by defendant and appellant John Gilbert Elmassian. De Limur claims that a fence between the two properties is not on the true boundary line but is instead located on its property.
Following a bench trial, the court concluded improvements relating to Elmassian's property were encroaching on De Limur's property. The court granted Elmassian an equitable easement, directed the parties to obtain a survey and property valuation, and ordered Elmassian to pay De Limur the fair market value of the encroached-upon area. Elmassian appeals, arguing there is no substantial evidence of an encroachment or, in the alternative, damages caused by the alleged encroachment. We agree that De Limur failed to offer substantial, competent evidence regarding the location of the boundary line between the two properties and therefore failed to prove, in the first instance, that Elmassian has encroached upon its property. Accordingly, we reverse the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The Dispute
Two parcels of property located in Los Angeles are involved in this dispute. De Limur owns one parcel, located at 3143-3145 Ettrick Street (Ettrick property). Elmassian owns the other parcel, located at 3132 Waverly Drive (Waverly property). The rear of the two properties are abutting.
De Limur claims that improvements on the Waverly property encroach on the Ettrick property. Specifically, De Limur contends a fence between the two properties is not located on the property line but instead is located within the Ettrick property. The area between the fence and the true property line (the disputed area) contains a shed-like structure and a paved area attached to and used by the occupants of the Waverly property. An informal attempt to resolve the issue was unsuccessful.
2. The Action
De Limur filed a verified complaint against Elmassian in July 2020 alleging trespass on the Ettrick property by Elmassian. The complaint seeks declaratory relief, injunctive relief, quiet title to the Ettrick property, and damages. Elmassian answered the complaint and asserted affirmative defenses including equitable easement and prescriptive easement. Elmassian also apparently filed a cross-complaint.
The complaint also names New Penn Financial, LLC and U.S. Bank National Association as defendants. Those entities did not actively participate in the trial and are not parties to this appeal.
The cross-complaint is not included in the record on appeal.
3. The Trial
The court conducted a bench trial in February 2022.
3.1. De Limur's Evidence
Gretchen De Limur testified on behalf of De Limur. De Limur acquired the Ettrick property in April 2015 and maintains it as a rental property. In the course of renovating a casita at the rear of the property, De Limur obtained a property survey that included the rear property boundary line. Gretchen received a copy of the surveyor's report. She learned from the report that a fence between the two properties was not on the property line and that the disputed area-approximately 300 square feet- contained improvements for the benefit of the Waverly property. The portion of the report depicting the disputed area was not admitted into evidence, however. Gretchen also described an aerial photograph purporting to depict the disputed area but the photograph was not admitted.
Plaintiff De Limur Enterprises, LLC is owned by Gretchen De Limur and her husband Charles De Limur. To avoid confusion, we will refer to Mrs. De Limur as Gretchen, intending no disrespect.
Elmassian objected to the admission of the survey due to lack of foundation. The court sustained the objection.
Gretchen was present during the survey and took photographs of the disputed area. The photographs appear to show a fence, a paved area, a detached garage, and a carport over the area between the garage and the fence. Gretchen noted that two of the photographs show orange circles marked on the pavement under the carport and she explained that the surveyor had placed the orange circles around survey markers. She said the survey markers established the location of the property line and asserted that a portion of the carport extended over the property line onto the Ettrick property.
Elmassian stipulated that De Limur paid property taxes on the Ettrick property, including the disputed area, since 2015.
3.2. Elmassian's Evidence
Elmassian testified that his parents purchased the Waverly property in 1971 and he acquired the property from them in 2001. Elmassian lived at the property from 1971 to 1988 and then again from 1998 to 2018. Beginning in 2018, he rented the Waverly property to a tenant.
The fence and the pavement shown in the photographs described by Gretchen were in place when Elmassian's parents bought the property, and they believed the fence was on the property line. His parents built the carport at some point during the 1970's. They used the carport for parking and for storage, as he did after he acquired the property. He also accesses his backyard and pool equipment using the disputed area.
4. The Judgment
After summarizing the facts presented, the court summarized the doctrine of relative hardship, which may apply when an encroachment is innocent, the rights of the public will not be harmed, and the hardship to the party removing the encroachment would be greatly disproportionate to the hardship to the encroached-upon landowner. (See, e.g., Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749.) The court found that Elmassian would suffer the greater hardship if the improvements on the encroachment area had to be removed and that De Limur had not demonstrated any immediate threat to its property interest or ownership interest. On that basis, the court granted Elmassian an easement.
The judgment reads, in pertinent part, "NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that [Elmassian] is granted an easement for the areas on the [Ettrick property] where a carport and any other structure, improved or unimproved land or fence on the [Waverly] property owned by [Elmassian] and his successor of ownership interest ... is situated on the [Ettrick] property, as verified by certified land survey delineating the true and correct property line between the [Ettrick] and [Waverly] Property, to be paid for by [De Limur]; said easement will terminate and expire when, at any time, Elmassian transfers title or ownership of the [Waverly] Property to any other entity or person in any form; Elmassian shall not add to or conduct any construction, renovation, improvements or other changes to any structure or improved or unimproved land presently occupied by Elmassian that is located on the [Ettrick] Property without the express and written permission of De Limur or its successor in interest, and, if De Lemur and Elmassian, or their successors in interest, cannot reach agreement on any construction, renovation improvements or other changes to any such structure or any improved or unimproved land, then either party may request this Court to make a determination [of] the rights or responsibilities of the respective parties upon application or motion to the Court; and Elmassian, or his successors in interest, shall pay to De Limur, or its successors in interest, the fair market value of any improved or unimproved land that Elmassian presently uses or occupies on the De Limur side of the legal property line between the [Waverly] Property and the [Ettrick] Property line, as determined by a certified land survey to be conducted by and paid for by De Limur, in cooperation with Elmassian, pursuant to a property value appraisal conducted by a certified appraiser selected by the parties, and, if the parties are not able to agree upon a certified land appraiser to conduct such an appraisal, one will be selected by the Court upon application or motion filed by either party. Upon the removal [of] any structure or improved or unimproved land encroaching upon [the Ettrick] Property by or from the [Waverly] Property that is demonstrated by a certified property survey to be encroaching on the [Ettrick] Property, the easement granted herein [for such] whole or partial removal of the structure or improved or unimproved land, and the easement for such encroachment shall terminate, even if Elmassian has already paid the fair market value of the [Ettrick] Property that has been encroached, unless the parties agree otherwise in writing.
"The case is dismissed without prejudice with the Court retaining jurisdiction in order to enforce the terms of this Order. All other parties are dismissed. Neither ... De Limur nor ... Elmassian is the prevail[ing] party on the Complaint or Cross-Complaint. Each party shall bear its own attorneys' fees and costs of suit."
Elmassian timely appeals.
DISCUSSION
Elmassian asserts the court erred in creating an equitable easement in his favor and ordering him to pay De Limur the fair market value of the encroached-upon area because De Limur failed to prove, in the first instance, that Elmassian has encroached upon its property. We agree.
1. Standard of Review
"When reviewing a trial court's exercise of its equity powers to fashion an equitable easement, we will overturn the decision only if we find that the court abused its discretion. (Hirshfield v. Schwartz[, supra,] 91 Cal.App.4th [at p.] 771.)" (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008.) "We defer to the trial court's factual findings so long as they are supported by substantial evidence, and determine whether, under those facts, the court abused its discretion. [Citation.] Under that standard, we resolve all evidentiary conflicts in favor of the judgment and will not disturb the court's decision so long as it is 'fashioned on the evidence and equities presented, and [is] narrowly tailored to promote justice.' [Citation.]" (Romero v. Shih (2022) 78 Cal.App.5th 326, 355.)
2. No substantial evidence supports the court's encroachment finding.
Each of De Limur's claims relates to the disputed area, i.e., the area De Limur alleges is part of the Ettrick property but has been used for many years by the owners of the Waverly property. De Limur asserts certain improvements (a fence, carport, and paved area) encroach on its property. "An encroachment is the extension of a building or other structure beyond the boundaries of the land on which it was rightfully constructed onto adjoining land, or into its airspace, without the permission or consent of the adjoining landowner." (6 Miller &Starr, Cal. Real Estate (4th ed. 2020) § 17:2, fns. omitted.) Accordingly, to prevail on any of its claims, De Limur needed to establish the location of the boundary line between the Ettrick and Waverly properties.
The court analyzed the issue as follows: "[T]he Court finds that De Limur has presented sufficient evidence to establish an encroachment. [Elmassian] did not present convincing evidence that ... either the carport or the surfaced area were on his side of the legal boundary line between the properties. Even while criticizing the failure by De Limur to present the testimony of a land surveyor with an admissible certification establishing the legal property line, [Elmassian] did not present substantial rebutting evidence." We disagree with the court's analysis and conclude no substantial evidence supports the court's encroachment finding.
" '[T]he question presented to the court in a boundary dispute is not that of making a resurvey but one of determining as a question of fact from the preponderance of expert and nonexpert evidence (as in all other civil cases) the actual location of the monuments, corners or lines as actually laid out on the ground by the official surveyor.' [Citation.] 'The questions where the line run by a survey lies on the ground, and whether any particular tract is on one side or the other of that line, are questions of fact. [Citation.]' [Citation.] [¶] 'Surveyors and civil engineers, like other experts, may give testimony on questions involving matters of technical skill and experience with which they are peculiarly acquainted. [Citations.]' [Citation.] The weight and credence to be given an expert's testimony is a question for the trier of fact. [Citation.]" (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 737-738.)
The evidence presented by De Limur regarding the location of the boundary line was extremely limited. Gretchen testified that she had obtained a survey of the rear boundary line of the Ettrick property and that she was present during the survey. No surveyor testified to the content of the survey. Over Elmassian's objection, Gretchen described certain conclusions about the boundary line and the disputed area contained in the survey and apparently depicted on a map. She also relied on an aerial photograph with lines apparently drawn to depict the disputed area. Both the survey and the photograph were offered as evidence of the location of the boundary line. The court, however, sustained Elmassian's objections to those exhibits due to lack of foundation and neither the survey nor the photograph was admitted into evidence.
Gretchen also testified to her view of the disputed area, i.e., that she believed Elmassian had placed improvements on the Ettrick property as depicted in several photographs she had taken around the time of the survey. The court clarified, however, that Gretchen's opinion regarding the location of the boundary line was exactly that-her opinion. No evidence suggested that she had any particular experience with or expertise relating to property surveys or other established methods of determining property boundaries.
The only other evidence presented by De Limur regarding the location of the boundary line is contained in two photographs which were admitted into evidence. Both photos show the carport next to the garage on the Waverly property and show an orange circle on the concrete floor under the carport roof. Gretchen testified that the orange circle was placed around a marker that the surveyor placed on the ground to mark the rear boundary of the Ettrick property. The photos are similar and one of them, Exhibit 8, is included for reference:
(Image Omitted)
This photograph is not substantial evidence of an encroachment. There are no points of reference in the photograph from which any reasonable conclusions may be drawn. Without a map or survey to reference, the photograph has minimal, if any, evidentiary value. Even the court's judgment recognizes the absence of evidence regarding the boundary line, as the court ordered a survey to be conducted to determine the extent of the claimed encroachment.
In sum, De Limur failed to establish with competent evidence the location of the boundary line between the two properties. Accordingly, De Limur necessarily failed to prove that improvements on the Waverly property are encroaching on the Ettrick property. The court therefore erred and the judgment must be reversed.
DISPOSITION
The judgment is reversed. Defendant and appellant John Gilbert Elmassian shall recover his costs on appeal.
WE CONCUR: EGERTON, J. ADAMS, J.
[*] LAVIN, Acting P. J. EGERTON, J. ADAMS, J.