Opinion
D070152
04-26-2017
HAROLD MICHAEL DENARDI, Plaintiff and Respondent, v. TPL, LLLP, Defendant and Appellant.
Maurer Law Firm, Charles D. Maurer, Jr.; Hecht Solberg Robinson Goldberg & Bagley, Jerold H. Goldberg and Talon J. Powers for Defendant and Appellant. Opper & Varco; Environmental Law Group, LLP, Varco & Rosenbaum and Linda C. Beresford for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00040176-CU-OR-CTL) APPEAL from orders of the Superior Court of San Diego County, Richard E.L. Strauss, Judge. Affirmed. Maurer Law Firm, Charles D. Maurer, Jr.; Hecht Solberg Robinson Goldberg & Bagley, Jerold H. Goldberg and Talon J. Powers for Defendant and Appellant. Opper & Varco; Environmental Law Group, LLP, Varco & Rosenbaum and Linda C. Beresford for Plaintiff and Respondent.
In 2012, Ed and Carole McVaney used a limited liability limited partnership they owned (defendant TPL, LLLP) to purchase a residence in Coronado, California. After they constructed a new home on the property, the McVaneys landscaped over a frontage road that crossed their lot and for decades had provided access to the main street for neighboring residences. As a result, neighbor and plaintiff Harold DeNardi brought an action for declaratory and injunctive relief to force the McVaneys to restore the frontage road and access point. The trial court granted DeNardi's motion for summary adjudication, concluding he had a prescriptive easement for use of the road. The court then granted DeNardi's motion for a permanent injunction, ordering the McVaneys to restore the road and access point. The McVaneys challenge those orders, asserting (1) DeNardi did not establish a prescriptive easement because he and others in the neighborhood generally believed the access road was a public right-of-way prior to the McVaneys' construction, and (2) even if DeNardi did establish a prescriptive easement, substantial evidence did not support the court's finding that injunctive relief was appropriate. We reject the McVaneys' arguments and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
DeNardi purchased his home, 705 First Street, in Coronado's Bay View Estates subdivision in 1993. The home is located behind another property owned by Kathleen Clark, who has lived there since 1964. The frontage road at issue runs parallel to First Street and provided access to First Street for the adjacent properties. Prior to the McVaneys' construction there were four "access points" connecting the frontage road to First Street—one access point to the west of DeNardi's home and in front of the McVaney property at 609 First Street and three other access points to the east of DeNardi's home, near 815 First Street, 901 First Street and 909 First Street.
The original deeds conveying the subdivided properties along the frontage road, including the McVaney property, reserved "an easement and right of way over the Southerly fifty feet of the property . . . for installation and maintenance of public utilities and for road purposes . . . ." After the DeNardis purchased their property in 1993 they constructed a new home. The project took three years to complete and was overseen by their son, who lived on the property during construction. The DeNardis moved into their new house in 1996. Like their son and their neighbors, the DeNardis used the frontage road and access point in front of 609 First Street on a daily basis. At that time, 609 First Street was owned by its original purchasers, the Vernettis. DeNardi never asked the Vernettis for permission to use the frontage road or the access point, and the Vernettis never indicated that use was by their permission.
In 2010, the McVaneys acquired the Vernetti property as a second, part-time residence. Their primary residence is in Greenwood Village, Colorado. Over the next three years, the McVaneys constructed a new home on the property. During the construction, the frontage road and access point to First Street remained open and the DeNardis and others continued to use the road on a daily basis. As before, DeNardi did not ask for permission to use the frontage road and access point, and the McVaneys never indicated that use of the road was by their permission.
In 2012, while construction was underway on the new McVaney residence, the City of Coronado created a stakeholders group to "review the status and develop options for the" frontage road. The City sent a notice to the property owners whose homes were adjacent to the road stating that it was establishing the group "to develop standards for the First Street frontage road to address items such as maintenance and new construction, ingress and egress, enforcement and usage, and landscaping and appearance." The formal notice for the stakeholders group indicated the group would work with City staff to develop recommendations for the maintenance and development of the frontage road. DeNardi was an active participant in the stakeholders group.
At the time the group was formed, 32 properties used the frontage road to access First Street. In documentation prepared in 2012 by the City's staff for the group, the City indicated the frontage road was located on an easement that had been dedicated to the City at the time the property was subdivided, but that the road was private and not maintained by the City. The City stated that because "there is no single entity in charge of maintenance of the frontage road . . . [t]he stakeholders . . . may want to consider the formation of a Benefit Assessment District to assess fees and oversee maintenance of the area." During the time the stakeholder meetings were occurring, the owners of the two most western properties along the frontage road (situated west of the access point in front of the McVaney property) obtained the City's approval to extend their driveways to First Street. DeNardi did not object to these changes, which did not impact access to First Street.
Before any action was recommended by the stakeholders group, on June 19, 2014, the Coronado City Manager, Blair King, sent letters to the property owners along the frontage road stating that, as a result of community interest in the frontage road, City staff had undertaken a review of the original documents creating the easement, the City's files and title reports, title reports for several of the adjacent properties, and the history of the maintenance of the road. King's letter reported that after its review, the City concluded that it was not a party to the creation of the easement and "the easement was not in favor of the City of Coronado." The letter states "there is no information that the 50-foot easement was ever dedicated to or accepted by the City," and any dispute among private property owners over the decision to construct a driveway over the frontage road and into First Street "is a civil matter."
On July 7, 2014, an attorney representing the DeNardis sent a letter to the Coronado City Attorney, asserting that the City's position with respect to the frontage road was incorrect. DeNardi's counsel argued the City had accepted the dedication of the easement in 1949 when it approved the subdivision map. He also urged the City to exercise its jurisdiction to prevent private property owners from eliminating portions of the frontage road.
The record does not contain a response to the letter.
By October 2013, the McVaneys had begun to use their new home. As a result of the City's notification in June 2014 that the easement was private, they obtained a permit from the City to perform "a curb cut" for a new driveway directly onto First Street. In August, they blocked the frontage road at the eastern edge of their property by installing a curb, fence and shrubbery, removing the only access point to First Street to the west of DeNardi's home. As a result, DeNardi filed suit.
DeNardi's complaint asserted four causes of action, all seeking declaratory and injunctive relief: (1) express easement, (2) prescriptive easement, (3) equitable easement, and (4) easement by implication. After conducting discovery, he filed a motion for summary adjudication of his claims for express and prescriptive easement. The trial court granted the motion in part, finding that DeNardi had established a "prescriptive easement over the southerly 50 feet of [the McVaney property] for use as a road and driveway." It declined to reach the issue of injunctive relief, instead setting a further hearing to address the burdens and benefits of issuing an injunction.
After additional briefing and the hearing, the court granted DeNardi's request for a permanent injunction, finding that (1) the McVaneys were aware of the access point when they purchased the property, (2) they intentionally obstructed the access point, and (3) monetary damages were not sufficient to compensate DeNardi for the loss of the access point from the frontage road to First Street. The court ordered the McVaneys to restore the prescriptive easement over the southern 50 feet of their lot for use as a frontage road and driveway.
DISCUSSION
1. Adverse Use
The McVaneys contend that the court erred by granting DeNardi's motion for summary adjudication on his claim of prescriptive easement because he failed to establish his use of the frontage road was adverse to their ownership. Specifically, the McVaneys assert that because there was a common-but-mistaken belief that the frontage road was within a public easement and not part of their private property, DeNardi could not establish his use was hostile. In response, DeNardi asserts it is irrelevant that he and/or others mistakenly believed that the easement was public.
A
We review de novo a grant of summary adjudication. (Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 385.) "In independently reviewing a motion for summary adjudication of issues, we apply the same three-step analysis used by the superior court. 'First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.' " (Ibid.)
"An easement is a restricted right to specific, limited, defineable use or activity upon another's property, which right must be less than the right of ownership." (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261.) An easement may be created by, among other methods, prescription. (6 Miller & Starr, Cal. Real Estate (4th ed. 2016) § 15:13, pp. 15-64 to 15-7.) To obtain summary adjudication of his claim for prescriptive easement, DeNardi was required to "show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).)
The term "adverse" in the context of a prescriptive easement "is essentially synonymous with 'hostile' and ' "under claim of right." ' [Citations.] A claimant need not believe that his or her use is legally justified or expressly claim a right of use for the use to be adverse. [Citations.] Instead, a claimant's use is adverse to the owner if the use is made without any express or implied recognition of the owner's property rights. [Citations.] In other words, a claimant's use is adverse to the owner if it is . . . in defiance of the owner's property rights." (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 270-271, fn. omitted (Windsor).)
On the other hand, "[u]se with the owner's permission . . . is not adverse to the owner. [Citations.] To be adverse to the owner a claimant's use must give rise to a cause of action by the owner against the claimant. (See 6 Miller & Starr, Cal. Real Estate [(3d ed. 2012) Easements] § 15.29, p. 15-111 (rel. 8/2006); 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 403, p. 472.) This ensures that a prescriptive easement can arise only if the owner had an opportunity to protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do so." (Windsor, supra, 213 Cal.App.4th at p. 271.)
B
In this case, the relevant facts are not in dispute. Instead, the McVaneys focus solely on the element of adverse use. They do not challenge the court's determination that there were no triable issues of material fact with respect to the other elements required to create a prescriptive easement. Rather they contend that because the neighbors used the frontage road believing it was a public easement, DeNardi's use was not hostile to the McVaneys' actual ownership of the property.
Contrary to the McVaneys' assertion, the adverse use required to establish a prescriptive easement "does not require a belief or claim that the use is legally justified." (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450.) Conversely, a belief that the use is legally justified does not establish a lack of hostile use. (See Warsaw, supra, 35 Cal.3d at pp. 571-572 ["continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment"].) Hostile use means only that "the property was used without permission of the [true] owner of the land." (Felgenhauer, at p. 450.) The uncontroverted facts showed that DeNardi used the easement without permission of the Vernettis or later the McVaneys.
"[T]he rule is settled in California that the requisite hostile possession and claim of right may be established when the occupancy or use occurred through mistake." (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322 (Gilardi).) So long as the use is not legally justified, regardless of whether the claimant believes the easement is owned by himself or another, the element of adverse possession is satisfied. "[T]he hostility requirement 'means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant's possession must be adverse to the record owner, "unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter." ' " (Id. at pp. 322-323.)
The McVaneys do not claim that the easement was in fact public for the period of time that DeNardi claims a prescriptive easement was created. They only assert that DeNardi used the road with the mistaken belief that the easement was public. This mistaken belief did not alter the fact that the property was owned by the McVaneys and their predecessors, and that DeNardi's use was adverse to the McVaneys' ownership.
Although it is not critical to our analysis, the record does not establish one way or another exactly what DeNardi, the McVaneys, or other neighbors believed about the ownership of the frontage road throughout the entire period of use. When it formed the stakeholders group to consider options for the frontage road, the City represented that the road was located on an easement that had been dedicated to it at the time the property was subdivided, but also stated that the road was private. After the city notified residents that it had never accepted the dedication of the easement, DeNardi's former counsel sent a letter to the City asking the City to reevaluate the evidence and change its position. This argument by DeNardi's counsel does not establish DeNardi himself believed the easement was public. Rather, it shows a legal strategy used by DeNardi's counsel to try to prevent the McVaneys from eliminating the access point. Further, there is no evidence in the record supporting the assertion that there was a "broad consensus among all stakeholders (including, but not limited to, Mr. DeNardi, TPL, and the City itself) that the road was a public right of way." To the contrary, the only evidence concerning the City's position is the statement in the notice establishing the stakeholders group and the subsequent letter clarifying that the City had researched the easement and concluded it had not accepted the dedication.
Nor can the McVaneys fairly assert that they had no reasonable means to determine they had a private property right to protect. There is no evidence that the McVaneys did anything to inquire about, let alone investigate, the legal status of the frontage road. Moreover, most cases of prescriptive easement and adverse possession "commence[] in mistake" as to the ownership of the property. (Gilardi, supra, 30 Cal.3d at p. 322.) That the mistaken belief here was the existence of a public easement, and not DeNardi's own ownership, makes no difference. Despite uncertainty as to the legal character of the road, the McVaneys (or their predecessors in interest) had a sufficient opportunity to protect their rights, yet failed to take any action. (See Windsor, supra, 213 Cal.App.4th at p. 271.) And to require that the hostile use also be deliberate would "place[] a premium on intentional wrongdoing" that is "contrary to fundamental justice and policy." (Gilardi, supra, 30 Cal.3d at p. 322.)
The analysis of adverse use is the same for both prescriptive easement and adverse possession. The two causes of action share the same elements, except for the additional requirement of the payment of taxes that applies to adverse possession. (Felgenhauer v. Soni, supra, 121 Cal.App.4th at p. 449.)
The McVaneys suggest this court should follow a decision by the Supreme Judicial Court of Maine. In that case, Jordan v. Shea (Me. 2002) 791 A.2d 116, the court held, without analysis, "that use of a right of way under a mistaken belief that it is a town way or a public way precludes the user from asserting sufficient adversity of use to claim a right of way by prescription." (Id. at p. 124.) This nonbinding authority does not lead us to conclude that we should abandon the well-settled principle of California law that a mistaken belief in the legal status of the property does not undermine the claimant's adverse use. Further, as DeNardi points out, Maine itself no longer follows the subjective intent requirement set forth in Jordan v. Shea. (See Dombkowski v. Ferland (Me. 2006) 893 A.2d 599, 605-606 [Holding the Maine legislature abrogated its common law subjective intent requirement, considered the minority approach, for the hostile use element of adverse possession.].)
As the McVaneys recognize, the doctrine of prescriptive rights is based "on the principle that private property owners can and should take affirmative steps to establish that any use of their property by third parties is permissive rather than adverse." They purchased the property fully aware of the existence of an easement. That the easement was mistakenly believed to be in favor of the City (and not the other property owners in the subdivision) cannot recast DeNardi's use of the frontage road as permissive. The McVaneys had the opportunity to determine the legal status of the frontage road and access point before they finalized their purchase of the property; they chose not to do so.
Finally, we reject the McVaneys' assertion that DeNardi failed to establish a prescriptive easement because his use was not distinct from the public's use of the frontage road. This argument was never raised in the trial court, and we decline to reach it on appeal. (See Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, fn. 6 ["New theories of defense, just like new theories of liability, may not be asserted for the first time on appeal."].) 2. Propriety of Injunctive Relief
Accordingly, we also deny DeNardi's motion to augment the record to include portions of his deposition transcript not presented to the trial court and addressed to the McVaneys' waiver argument.
Even if DeNardi established an easement by adverse possession, the McVaneys contend injunctive relief is not appropriate because the evidence did not adequately support the trial court's findings that (1) monetary damages could not compensate DeNardi for the loss of the frontage road and access point to First Street, and (2) the balancing of hardships favored DeNardi.
A
Issuance of a permanent injunction rests within the trial court's sound discretion and will not be reversed or modified on appeal absent a showing of clear abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850; San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 952.) In granting an injunction, "[a] trial court will be found to have abused its discretion only when it has ' "exceeded the bounds of reason or contravened the uncontradicted evidence." ' [Citations.] Further, the burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion." (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.)
Civil Code section 3422 governs the granting of a permanent injunction. Under this provision, " 'a plaintiff ordinarily must show that the defendant's wrongful acts threaten to cause irreparable injury, meaning injury that cannot adequately be compensated in damages.' " (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 800.) " 'Irreparable harm may be established where there is the fact of an injury, . . . but where there is an inability to ascertain the amount of damage. In other words, to say that the harm is irreparable is simply another way of saying that pecuniary compensation would not afford adequate relief or that it would be extremely difficult to ascertain the amount that would afford adequate relief.' " (Id. at p. 801.)
The provision states in full: "Except where otherwise provided by this Title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: [¶] 1. Where pecuniary compensation would not afford adequate relief; [¶] 2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; [¶] 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, [¶] 4. Where the obligation arises from a trust." (Civ. Code, § 3422.)
In addition, "[t]he doctrine of balancing the relative hardships of the parties may be applied to determine whether to grant an injunction . . . ." (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 237.) "[I]t is well established that a court has discretion to balance the hardships and deny the removal of an encroachment if it was innocently made and does not irreparably injure the plaintiff, and where the cost of removal would greatly exceed the inconvenience to the plaintiff by its continuance." (Id. at p. 238.)
B
The McVaneys argue that because DeNardi's deed allows him to create a new access point by constructing his own driveway over the median between the frontage road and First Street, DeNardi's only actual injury is the cost of that construction. Thus, monetary damages should be sufficient to remedy the harm caused by their removal of the western access point to First Street. They claim the only evidence presented to refute DeNardi's ability to create his own access point is an interrogatory response by DeNardi that his next door neighbors told him over 20 years ago they did not want him to extend his driveway. The McVaneys also assert that because other access points east of DeNardi's property remain, he was not irreparably harmed by the destruction of the western access point.
The court found "[t]here is likely no amount of monetary compensation for [DeNardi's] inconvenience of no longer being able to use the access point." This finding is amply supported by the record. In his declaration, DeNardi stated loss of the access point made getting to his home more difficult and, because cars were required to turn around to leave the frontage road, increased the level of traffic in front of his home. Ed McVaney's own deposition testimony showed that creating a new access point in front of DeNardi's home would increase traffic around the property. Requiring DeNardi to construct a driveway over the median would also eliminate already scarce street parking for DeNardi and his guests. Finally, in focusing on the cost of constructing a new driveway as the measure of damages, the McVaneys fail to acknowledge any diminution in value to DeNardi's property that would result by putting the most western access point in front of his home.
The maps of the frontage road and adjacent properties show DeNardi's home sits behind Clark's property, further complicating the question of whether DeNardi can simply create another access point.
The other neighbors who installed access points, which the McVaneys point to as evidence that DeNardi could simply do the same, are the two most western homes along the frontage road, both west of the McVaneys' property. These new driveways, therefore, did not impact DeNardi or any of the residences to the east of the McVaneys. --------
This evidence sufficiently supported the court's conclusion that an injunction requiring the McVaneys to restore the status quo was the appropriate relief in this case. (See Warsaw, supra, 35 Cal.3d at p. 572 ["[T]here is extensive authority standing for the proposition that a court of equity may, in a proper case, issue a mandatory injunction for protection and preservation of an easement including, where appropriate, an order for removal of an obstruction already erected."].) The fact that some evidence suggested DeNardi could have constructed a new access point at the McVaneys' expense does not negate the ample evidence supporting the court's conclusion that such a remedy would be inadequate. (See Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912 [" 'When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.' "].)
Likewise, the McVaneys have not shown the court abused its discretion by rejecting their argument that the hardship of removing the new driveway is greater than the hardship to DeNardi to create a new access point. They calculate the cost of reinstating the frontage road and access point at $38,500, to which they add their sunken costs of $50,000 to $80,000 spent to make the improvements that removed the portion of the frontage road and access point in question. In addition, the McVaneys argue they would "suffer a loss of privacy and security afforded by [the] improvements" if they are removed. However, the harm to DeNardi—loss of a throughway to access First Street and increased traffic—is also significant and, as discussed, irreparable.
It is not this court's role to reweigh the evidence and competing interests of the parties in the manner the McVaneys suggest. The trial court concluded that requiring DeNardi to remedy the McVaneys' unilateral decision to obstruct access to the frontage road was less fair and a greater hardship than requiring the McVaneys to restore the preexisting access. This decision did not exceed the bounds of reason and was adequately supported by the evidence before the court. (See Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at p. 912 ["The trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion."].)
DISPOSITION
The orders are affirmed. DeNardi is entitled to costs on appeal.
/s/_________
DATO, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
BENKE, J.