Opinion
A165781
12-14-2023
JOHN H. GOODHART et al., Plaintiffs and Respondents, v. HONEYBADGER ACQUISITIONS LLC, et al., Defendants and Appellants.
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. CIV2200512)
GETTY, J. [*]
This appeal arises from a boundary dispute between two neighbors, plaintiffs John and Kathleen Goodhart (collectively, the Goodharts) and defendant Pueo Keffer. For over ten years, the Goodharts improved and maintained approximately 950 square feet of land, believing the area was part of their front and rear yards. Keffer discovered the area was his property when he commissioned a survey in connection with his plan to build a perimeter fence. After Keffer commenced construction of the fence, the Goodharts sued Keffer and defendant Honeybadger Acquisitions LLC (collectively, the Honeybadger Defendants), through which Keffer purchased the property, seeking injunctive relief and a declaration that they are entitled to an equitable easement to use the disputed area.
The Goodharts then requested a preliminary injunction to enjoin the Honeybadger Defendants from interfering with their use of the disputed area, which the trial court granted. On appeal, the Honeybadger Defendants challenge the court's factual conclusions and contend the court applied the wrong legal standard. Additionally, they argue the trial court abused its discretion in setting the amount of the bond. We agree with the latter contention and remand the matter to the trial court to reconsider the amount of the bond. In all other respects, we affirm.
I. BACKGROUND
In 2010, the Goodharts purchased real property located near Spanish Trail Road in Tiburon and have resided there since 2011 with their family. The lot is nearly one-half acre. At the time the Goodharts purchased the property, the front yard area extended approximately 15 feet from the edge of the driveway and front steps and was landscaped with mature plantings, including palm trees. The back yard area extended about 30 feet from the back of the house and was bounded by a fence. The back yard was landscaped and included an irrigation system.
In 2020, Keffer and his family, through defendant Honeybadger Acquisitions LLC, purchased real property located adjacent to and uphill from the Goodhart property. The Honeybadger property is 2.28 acres. The house is approximately 180 feet from the Goodhart house.
Nearly a year after the Honeybadger Defendants purchased the property, Keffer applied to the Town of Tiburon to install a perimeter fence and make other modifications to the rear yard, including a turf playing area, a storage shed, and a garden path. The application included a recent survey, which showed that the Honeybadger property extended into the Goodharts' front and rear yards. Keffer's plans would require removal of the Goodharts' existing fence. The new fence would be placed one foot back from the property lines as indicated by the survey and would be built in the same open-air format as the existing fence. If built as proposed, the fence at certain points would be approximately two feet from the back of the Goodharts' house. The proposed fence would cut the Goodharts off from approximately 495 square feet in the front yard area and 470 square feet in the back yard area (the disputed areas).
After Tiburon's Planning Division approved Keffer's project, the Goodharts appealed. The Design Review Board denied the appeal. A permit was issued, and construction began on the perimeter fence.
Shortly thereafter, the Goodharts sued the Honeybadger Defendants for declaratory relief, quiet title, and injunctive relief. They sought a declaration that the disputed areas were part of their property, or, in the alternative, that they have obtained an equitable easement to use the existing fence and the disputed areas.
In March 2022, the Goodharts filed an ex parte "Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction," to prevent the Honeybadger Defendants from interfering with their use of the disputed areas. They claimed, among other things, that they were likely to prevail on their claim that the disputed areas were subject to an equitable easement, as the property was in the same condition for over twenty years, and they had maintained and improved the disputed areas since their purchase of the property in 2010, until they first learned that the disputed areas might not be their property in spring 2021, when Keffer told them it was his property.
The application was supported by the declaration of John Goodhart, which attached photographs purporting to depict the disputed areas. The photographs show numerous large bushes, flowering plants, at least one tree, mulch landscaping, and what appears to be a small retaining wall. The application was also supported by the declaration of the Goodharts' predecessor which stated that at some point during her ownership, the prior owners of the Honeybadger Defendants' property built a wrought iron fence that was later replaced by the open-air fence in approximately the same location.
The Goodharts also presented a declaration and overlay map from a licensed land surveyor, who opined that the Honeybadger Defendants' proposed six-foot fence would be midway down an undeveloped hillside which was not usable, would be 170-190 feet from the Honeybadger Defendants' home, and at points would come within two feet of the Goodharts' house and front steps.
The court granted the request for a temporary restraining order and set the matter for an order to show cause hearing regarding the Goodharts' request for a preliminary injunction.
The Honeybadger Defendants filed opposition, arguing that the Goodharts' trespass on their land was not innocent, and that on balance, the harm they would suffer if there was an equitable easement outweighed the harm the Goodharts would endure if they were denied an equitable easement. On the latter point, the Honeybadger Defendants claimed the Goodharts' irrigation system and plants could easily be removed at minimal cost. In comparison, Keffer purchased the property because of the privacy and "substantial acreage," and he was facing the "risk of not being able to establish a perimeter fence around" his property for the safety of his family.
In May 2022, the court granted the application for a preliminary injunction to enjoin the Honeybadger Defendants' construction of a perimeter fence enclosing the disputed areas.
The Honeybadger Defendants then filed an ex parte application for an "Order Vacating Void May 13, 2022 Preliminary Injunction" on the ground that the Goodharts failed to furnish a bond. Following argument on the ex parte, the court took the matter under submission.
Prior to the court's ruling on the ex parte application, the Goodharts filed a declaration from John Goodhart, in which he stated that he discovered Keffer and his worker removing part of the existing fence and prying out the roots of a tree the same day the Honeybadger Defendants had made the ex parte application. He called the police, but Keffer and his worker continued to "destroy fencing and irrigation equipment" in the disputed areas. Accordingly, the Goodharts sought to enforce the temporary restraining order and/or the preliminary injunction.
A few days later, the court vacated the May 2022 order issuing a preliminary injunction noting the vacatur was necessary because "[r]egrettably, the Order failed to require an undertaking." The court noted that defendants had taken action "inconsistent" with the order and found it appropriate to issue a temporary restraining order pending determination of the Goodharts' renewed application for preliminary injunction.
After additional briefing from the parties and a hearing, the court granted the Goodharts' request for a preliminary injunction enjoining the Honeybadger Defendants from interfering with their use of the disputed areas. This appeal followed.
II. DISCUSSION
Importantly, this appeal follows the issuance of a preliminary injunction which is a preliminary adjudication, not a trial on the merits. The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.) The ultimate questions on a motion for a preliminary injunction are (1) whether the plaintiff is "likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant," and (2) whether there is "a reasonable probability that the plaintiffs will prevail on the merits." (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.) "The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiffs showing on one, the less must be shown on the other to support an injunction." (Butt v. State of California (1992) 4 Cal.4th 668, 678.)
We review a trial court's issuance of a preliminary injunction for abuse of discretion, which is the standard of review that accords the most deference to the trial court's ruling on appeal. (Amgen v. California Correctional Health Care Services (2020) 47 Cal.App.5th 716, 731.) The burden is on the party challenging the injunction to make a clear showing of abuse. (People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 283.) "Discretion is abused when a court exceeds the bounds of reason or contravenes uncontradicted evidence." (Western Growers Assn. v. Occupational Safety &Health Standards Bd. (2021) 73 Cal.App.5th 916, 930.) In contrast, "[t]he court properly exercises its discretion where its determination is supported by substantial evidence." (Id. at pp. 930-931.)
Here, the trial court found that the Goodharts had made a "strong showing" on the interim-harm factor, and that the potential-merit factor therefore required a "lesser" showing. On appeal, the Honeybadger Defendants do not contend that the trial court abused its discretion in connection with the first factor. Their challenge goes to the court's determination that the Goodharts met their burden of showing "a reasonable probability that they will prevail on the merits of their equitable easement/declaratory judgment claim." (See Jessen v. Keystone Savings &Loan Assn. (1983) 142 Cal.App.3d 454, 458 ["In the absence of a reasonable probability of success, the court should deny the preliminary injunction."].)
A. Trial Court Had the Power to Issue a Preliminary Injunction.
Preliminarily, the Honeybadger Defendants contend the trial court had no power to grant a preliminary injunction based on the Goodharts' equitable easement claim, because an equitable easement is a remedy, and the Goodharts have not demonstrated a "legal right" to possess the disputed areas. They reason that a preliminary injunction "creates no right, but merely assumes to protect a right from unlawful and injurious interference." (M Restaurants, Inc. v. San Francisco Local Joint Exec. Bd. of Culinary etc. Union (1981) 124 Cal.App.3d 666, 674.) Their contention lacks merit.
"A preliminary injunction is a device to protect the rights of litigants pending a final determination of the merits of the action; it is but an adjunct to the action and its fate is hinged to the main action. The general purpose of such an injunction is to preserve the status quo until a final determination of the merits of the action." (City of Oakland v. Superior Court (1982) 136 Cal.App.3d 565, 569.) The Honeybadger Defendants appear to suggest that a party must demonstrate an established legal right, going so far as to point to the lack of "any judgment creating an equitable easement" in this case, but this makes no sense when the purpose of a preliminary injunction is to preserve the status quo pending a final determination of the parties' rights. Rather, a preliminary injunction requires "a complaint which states a sufficient cause of action for injunctive relief of the character embraced in the preliminary injunction." (Handyspot Co. of Northern Cal. v. Buegeleisen (1954) 128 Cal.App.2d 191, 194.) A cause of action is based on the invasion of a primary right. (Bay Cities Paving &Grading, Inc. v. Lawyers'Mut. Ins. Co. (1993) 5 Cal.4th 854, 860-861.)
Relying on Tashakori v. Lakis (2011) 196 Cal.App.4th 1003 (Tashakori), the Goodharts claim that a preliminary injunction may issue to effectuate their declaratory relief claim. In Tashakori, the Lakises argued on appeal from a judgment granting the Tashakoris an equitable easement to access the Lakises' property that the Tashakoris "could not properly allege the theory as a stand-alone claim in their complaint seeking a right of access over the Lakises' property." (Id. at pp. 1010-1011.) The reviewing court concluded that the Lakises "misconstrue[d] the nature of the equitable easement claim asserted by the Tashakoris, which is properly construed as a request for declaratory relief." (Id. at p. 1011.) The court reasoned that the" 'primary right' underlying the Tashakoris' equitable easement claims is the Lakises' alleged right to exclusive possession of their property encompassing the shared driveway, with the supposed 'wrongdoing' being the Tashakoris' breach of this property right." (Ibid.; see also Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 625 ["Examples of primary rights include . . . the right to possession of real property"].)
The Honeybadger Defendants do not argue against a conclusion that an equitable easement claim can be construed as a request for declaratory relief, or that a preliminary injunction may be issued for a cause of action for declaratory relief. In this case, the Goodharts expressly asserted a declaratory relief cause of action based on their claimed right to an equitable easement to use the disputed areas and the Honeybadger Defendants' contentions that they own the disputed areas and have the right to remove the fence and the Goodharts' improvements. The Goodharts seek injunctive relief to enjoin the Honeybadger Defendants from interfering with their use of the disputed areas. This is sufficient to state "a sufficient cause of action for injunctive relief of the character embraced in the preliminary injunction." (Handyspot Co. of Northern Cal. v. Buegeleisen, supra, 128 Cal.App.2d at p. 194; see Tashakori, supra, 196 Cal.App.4th at p. 1011.) We therefore disagree with the Honeybadger Defendants that the trial court had no authority in this case to issue a preliminary injunction.
B. In Preserving the Status Quo, the Trial Court Did Not Abuse Its Discretion in Concluding that the Goodharts Had a "Reasonable Probability" of Prevailing on an Equitable Easement Claim.
"California courts have . . . the discretionary authority to deny a landowner's request to eject a trespasser and instead force the landowner to accept damages as compensation for the judicial creation of an [equitable] easement over the trespassed-upon property in the trespasser's favor, provided that the trespasser shows that (1) her trespass was' "innocent"' rather than' "willful or negligent,"' (2) the public or the property owner will not be '" 'irreparabl[y] injur[ed]'"' by the easement, and (3) the hardship to the trespasser from having to cease the trespass is '" 'greatly disproportionate to the hardship caused [the owner] by the continuance of the encroachment.'" '" (Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 (Shoen); accord, Tashakori, supra, 196 Cal.App.4th at pp. 1008-1009.)
Unless all three elements are established, a court lacks discretion to grant an equitable easement. (Shoen, supra, 237 Cal.App.4th at p. 19.)" 'Overarching the analysis'" is the importance of the legal owner's property rights and" 'the principle that since the [encroacher] is the trespasser, he or she is the wrongdoer; therefore, "doubtful cases should be decided in favor of the [property owner with legal title]." '" (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1004.)
The Honeybadger Defendants challenge the trial court's finding that the Goodharts established a "reasonable probability" of prevailing on the elements of their equitable easement claim. We review those findings- express and implied-for substantial evidence, bearing in mind that"' "we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order." '" (Western Growers Assn. v. Occupational Safety &Health Standards Bd., supra, 73 Cal.App.5th at pp. 930-931.) We emphasize that in considering preliminary injunctive relief, the court did not make its findings on the basis of a fully developed record. Rather, the Goodharts had the burden of establishing only a "reasonable probability" of prevailing as to each of the three requisite elements.
1. Innocence Element
The first element requires the party seeking an equitable easement to prove the trespass was" 'innocent'" rather than" 'willful or negligent.'" (Nellie Gail Ranch Owners Assn. v. McMullin, supra, 4 Cal.App.5th at p. 1003.) This factor" 'is the most important'" element to establishing an equitable easement. (Ranch at the Falls LLC v. O'Neal (2019) 38 Cal.App.5th 155, 184.)
The trial court found that the Goodharts had established a reasonable probability of prevailing on this element based on evidence showing that when the Goodharts purchased their property, the disputed areas were landscaped and bounded by a fence "which remained in place until [the Honeybadger Defendants] recently removed it," that the prior owners used the disputed areas "as part of the property," and that the Goodharts "continuously" used the disputed areas in the eleven years since they purchased the property. The court further found that the Honeybadger Defendants had presented no evidence "that Plaintiffs knew there was any potential dispute regarding ownership of the disputed areas." The evidence suggests that the Honeybadger Defendants were likewise unaware of the encroachment at the time they purchased their property and likely observed the fence and landscaping associated with the Goodharts' property, but discovered this fact after a survey was completed. While the Honeybadger Defendants presented public records "reflecting applications for permits and/or approval for certain improvements on the property" by the Goodharts' predecessors, the court found that the Honeybadger Defendants failed to explain "how these documents identify or reflect boundary lines that are different than what Plaintiffs believed."
Based on these facts, the court had a reasonable basis to find that the Goodharts' failure to learn the true boundaries was innocent. A finding that an encroacher was" 'innocent'" does not require a finding of" 'no fault whatsoever,'" and instead entails a commonsense assessment of whether the encroacher knew or had a reason to know about the true facts. (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1030; see Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 266-267.) Because this analysis depends on the circumstances in a given case, "[t]he question whether the [encroacher's] conduct is so egregious as to be willful or whether the quantum of the defendant's negligence is so great as to justify an injunction is a matter best left to the sound discretion of the trial court." (Linthicum v. Butterfield, at p. 267.)
In contending that the record "proves" the Goodharts are not innocent, the Honeybadger Defendants cite evidence showing that the Goodharts were aware of their encroachment on the Honeybadger Defendants' land "[b]y at least the time [they] initiated this litigation[.]" But to conclude that an encroacher is no longer innocent once they learn of their encroachment would mean that a party can never satisfy the innocence element of an equitable easement claim. The trial court did not err in this case because there is substantial evidence showing the Goodharts had no preexisting knowledge of the encroachment and instead learned of the encroachment after-the-fact.
The Honeybadger Defendants also point to evidence that after they engaged in self-help by removing the encroaching fence in May 2022 while the court was considering their request to void the preliminary injunction, the Goodharts installed a temporary chicken-wire fence. The Honeybadger Defendants contend the "fact that the Goodharts knowingly erected another fence over the surveyed boundary line should have been an insurmountable blow to the Goodharts' assertion of innocence, yet the trial court overlooked it." Ignoring the self-help engaged in by Keffer, this evidence does not show that the other improvements made by the Goodharts in the disputed areas were not "innocently made" (Christensen v. Tucker (1952) 114 Cal.App.2d 554, 559), nor does it negate the evidence that the Goodharts purchased their property believing the property lines were delineated by the prior fence. We therefore conclude that substantial evidence supports the trial court's findings regarding its determination that the Goodharts had a reasonable probability of prevailing on the innocence element of their equitable easement claim.
2. Irreparable Injury and the Balance of Hardships
The next two elements of an equitable easement claim consider whether the encroachment irreparably injures the owner of the encroached upon property, and whether the hardship to the encroacher of enjoining the encroachment would be "greatly disproportionate" to the hardship caused to the encroached upon party by the continuing encroachment. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 758-759.) The Honeybadger Defendants contend the trial court applied the wrong legal standard to these elements. Additionally, they challenge the trial court's determination that the Goodharts met their burden on the balance of hardships element. We consider each argument in turn.
a. The Trial Court Applied the Correct Legal Standard
The Honeybadger Defendants argue that the court improperly relied on the "relative harm analysis applicable to preliminary injunctions" in assessing the balance of hardships elements of the Goodharts' equitable easement claim. Because these equitable easement elements "require[] much more than a relative harm analysis," the Honeybadger Defendants contend the trial court erred in its analysis of the Goodharts' equitable easement claim. The court's purported error is allegedly evidenced by the fact that the court's written decision states, after having analyzed the interim-harm factor, that the evidence supporting the second and third equitable easement elements "is discussed in more detail above."
As previously mentioned, in deciding whether to grant a preliminary injunction, courts must consider, as one of two factors, the relative interim harm to the parties from the issuance or nonissuance of an injunction. (Butt v. State of California, supra, 4 Cal.4th at p. 678.) Where the showing on the other preliminary injunction factor-the likelihood of prevailing on the merits-is sufficiently strong, the trial court has discretion to issue the injunction even though the party seeking the injunction cannot show that the balance of harm tips in that party's favor. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 447.) In comparison to the interim harm analysis used for purposes of a preliminary injunction, a trial court cannot grant an equitable easement if, after balancing the hardship to the encroacher from having to cease the encroachment with the hardship to the owner by the continuance of the encroachment, the hardships merely favor the encroacher; the doctrine requires that the hardships "tip disproportionately in favor of' the encroacher. (Shoen, supra, 237 Cal.App.4th at p. 20.) Thus, while there may be some overlap in the evidence used to show interim harm should a preliminary injunction issue or not issue and the hardships the parties will endure upon the granting or denial of an equitable easement, we agree with the Honeybadger Defendants that the latter analysis imposes a higher burden on the party seeking an equitable easement.
However," '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The ordinary rules of implied findings are applicable on decisions on motions, including a motion for preliminary injunction. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739.) Additionally, the trial court is presumed to have followed the law. (Wilson v. Sunshine Meat &Liquor Co. (1983) 34 Cal.3d 554, 563.) "[T]he fact that the court's conclusion is set forth in summary fashion does not mean the court failed to engage in the requisite analysis, or that its analysis was incorrect." (City of Los Altos v. Barnes (1992) 3 Cal.App.4th 1193, 1198.)
Here, the trial court's written decision summarizes the parties' evidentiary submissions in detail at the outset. The court then analyzed the interim-harm factor and the first element of the Goodharts' equitable easement claim before holding in a summary fashion that the Goodharts had "also submitted evidence supporting the second and third elements of equitable easement analysis[.]" In stating this conclusion, the trial court noted that the evidence supporting those elements is discussed "above" but does not specify which evidence supports its findings. Nor does the trial court indicate that it is relying on its interim-harm analysis in coming to this conclusion.
When viewed in its entirety, the trial court's written decision does not reflect that it failed to apply the correct standard. Neither the abbreviated nature of the court's conclusions, nor its vague reference to the evidence discussed "above," means that the trial court applied the relative harm analysis instead of the more stringent balance of hardships standard applicable to equitable easement claims. Moreover, the record shows the trial court was aware of the relevant law. The decision plainly sets forth the standards for each of the elements of the Goodharts' equitable easement claim. And contrary to the Honeybadger Defendants' assertion, there is no indication the court failed to consider and weigh the evidence relevant to those elements. We therefore conclude that the Honeybadger Defendants have not established that the trial court failed to apply the correct standard to the second and third elements of the Goodharts' equitable easement claim.
b. Balance of Hardships
On the balance of hardships element, the court must start with the presumption that the property owners will be harmed because of their "substantial interest in [the] exclusive use of [the] property arising solely from [their] ownership of [the] land." (Shoen, supra, 237 Cal.App.4th at p. 20.) Thus, the party seeking to establish the easement must "prove that [they] will suffer a greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner will suffer from its grant." (Id. at p. 20.) The size and nature of the encroachment is relevant. For example, an equitable easement is more likely to be justified where an expensive structure encroaches on the property of another only to a "minor degree." (Christensen v. Tucker, supra, 114 Cal.App.2d at p. 560.)
As previously stated, the trial court concluded that the Goodharts had met their burden in showing a likelihood of prevailing on the balance of hardships element. The Goodharts submitted a declaration from a surveyor who opined that if the Honeybadger Defendants built a fence on the true property lines as planned it would come within two feet of the Goodharts' driveway and front steps and the back of their house, and the Goodharts would lose approximately 950 square feet of their yards. In comparison, the disputed areas constitute less than 1% of the Honeybadger Defendants' property and is located downhill from their residence on undeveloped hillside which is largely unusable. Although the Honeybadger Defendants had plans to modify their rear yard and to secure their property with a perimeter fence, the cited evidence does not demonstrate that the disputed areas are necessary to the planned development of or use and enjoyment of their property. The trial court also noted that the Honeybadger Defendants could have achieved this same desired result by tying in their new fencing to the existing fencing.
The Honeybadger Defendants argue that the improvements and hardships asserted by the Goodharts are not the proper subject for an equitable easement. They rely on several cases involving either permanent physical encroachments or temporary trespasses necessary to access the trespasser's property, including Ukhtomski v. Tioga Mut. Water Co. (1936) 12 Cal.App.2d 726 (Ukhtomski), Blackfield Thomas Allec Corp. (1932) 128 Cal.App. 348 (Blackfield), and Tashakori, supra, 196 Cal.App.4th 1003.
In Ukhtomski, the defendant had constructed a concrete reservoir and pipelines, which encroached on fifteen-hundredths of an acre on the plaintiffs' three-acre parcel. (Ukhtomski, supra, 12 Cal.App.2d at p. 727.) The improvements constituted the sole water supply for 500 residents. (Ibid.) The trial court granted the defendants an easement and awarded damages to the plaintiffs. (Id. at p. 728.) The appellate court found no error after applying the relative hardship doctrine. (Id. at pp. 729-730.)
Similarly, in Blackfield, the north wall of respondent's two-story concrete building, which was erected by its predecessor in interest, encroached on the plaintiffs' property by three-quarters of an inch. (Blackfield, supra, 128 Cal.App. at pp. 348-349.) The cost to remove the wall was over $6,000, and the wall did not interfere with the plaintiffs' use of their property. (Id. at p. 349.) The reviewing court concluded that the trial court did not abuse its discretion in denying the plaintiffs' request for an injunction. (Id. at p. 350.)
In Tashakori, the plaintiffs purchased adjoining parcels believing that an easement to the public road existed. (Tashakori, supra, 196 Cal.App.4th at p. 1010.) The parcels shared a common driveway. They later sold one of the parcels, not knowing that this would leave their remaining lot landlocked. (Id. at p. 1005.) The trial court found that the owners of the other parcel would "suffer virtually no harm" from the plaintiffs' use of the shared driveway. (Id. at p. 1010.) The court granted an equitable easement over the common driveway, and the reviewing court affirmed. (Id. at pp. 1005-1006.)
Contrary to the Honeybadger Defendants' assertion, none of these cases stand for the proposition that an equitable easement is proper only where there is "harsh consequences or catastrophic losses[.]" Rather, in each of these cases, the court balanced the equities involved to determine whether an equitable easement was appropriate. As one court explained, "[t]he object of equity is to do right and justice. It 'does not wait upon precedent which exactly squares with the facts in controversy, but will assert itself in those situations where right and justice would be defeated but for its intervention.'" (Hirshfield v. Schwartz, supra, 91 Cal.App.4th at p. 770.)
While we agree with the Honeybadger Defendants that loss of landscaping alone may not compel an equitable easement, we disagree with their characterization that the only hardship the Goodharts face is the loss of use of the Honeybadger Defendants' land. The Goodharts presented evidence that if an equitable easement is not granted, at certain points the home will be within only 2 feet of the boundary fence. This, alone, can appropriately be characterized as a hardship greatly disproportionate to that suffered by the Honeybadger Defendants. (See Dolske v. Gormley (1962) 58 Cal.2d 513, 520.) We therefore need not, and do not, consider whether loss of approximately 950 square feet from their immediate front and rear yards, and the attendant landscaping and irrigation, can be considered a disproportionate hardship. The hardship to the Honeybadger Defendants caused by the Goodharts' continued use of the property is, by comparison, significantly less. They would still be able to build a fence around and use over 99% of their property. We also emphasize that at this juncture there has been no assessment by the trial court as to the appropriate scope and exact location of an equitable easement should the court ultimately determine, on a full record, that the Goodharts should be granted such an easement.
Thus, the circumstances here are markedly different than in Shoen, supra, 237 Cal.App.4th 16, relied on by the Honeybadger Defendants. In that case, the only "hardship" facing the encroacher (whose use was with permission of the prior property owner) was the removal of patio furniture at the cost of $300. (Id. at pp. 17-18, 22).
The Honeybadger Defendants claim the court "dismissed" the fact that a seven-foot setback variance obtained by the Goodharts' predecessor in interest is the reason the Goodharts' home is within two feet of the parties' shared property line. Citing Civil Code section 3521, they contend that because the Goodharts have received the benefit of the variance, they must as a matter of law accept the burden. (See Civ. Code, § 3521 ["He who takes the benefit must bear the burden."].) That statute provides a "maxim[] of jurisprudence" to "aid in the[] just application" of the Civil Code, "not to qualify" its provisions. (Civ. Code, § 3509.) The Honeybadger Defendants cite no authority suggesting that Civil Code section 3521, as a matter of law, bars an otherwise "innocent" party from claiming an equitable easement. We are not suggesting, however, that the variance is a not a factor the trial court can consider in ultimately evaluating the merits of granting an equitable easement or in determining the scope and location of such. We rule only that the setback variance does not irretrievably foreclose any right to an equitable easement.
The Honeybadger Defendants also argue that the court ignored evidence of their reasons for purchasing and developing their property and asserted at oral argument that an interest in geology in the disputed area was further reason to find in their favor. But in contending the court did not sufficiently consider their evidence, they are asking us to reweigh the evidence and reach a different factual conclusion. As an appellate court, we do not engage in this type of analysis. (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 969.)
In sum, the court's findings as to the second and third equitable easement factors-the balance of hardships-are supported by substantial evidence.
We reiterate that this is an appeal from the grant of a preliminary injunction on what is necessarily not a fully developed record, and that the standard of review we employ is simply whether the trial court abused its discretion in maintaining the status quo pending a complete examination of all the facts. In our view, this is exactly the kind of case in which such interim relief is warranted. However, in reaching this conclusion, we are not expressing any view as to the ultimate outcome of the case, including whether an equitable easement should be granted in favor of the Goodharts and if so, the extent and location of any such easement.
C. Setting Bond Amount
Finally, the Honeybadger Defendants claim the trial court abused its discretion in setting the bond amount. We agree.
In granting an injunction, the court "must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party any enjoined damages, not exceeding an amount to be specified, the party may sustain by reason on the injunction." (Code Civ. Proc., § 529, subd. (a).) "It is well settled the damage recoverable under an injunction bond, such as the bond at bench, is for all loss proximately resulting from the injunction[.]" (Surety Sav. &Loan Assn. v. National Automobile &Cas. Ins. Co. (1970) 8 Cal.App.3d 752, 757.)
In their application for a renewed preliminary injunction, the Goodharts suggested a bond of $5,000. In response, the Honeybadger Defendants contended the court should consider the attorney's fees they will incur in "either prosecuting an appeal of the preliminary injunction, or defending at trial against those causes of action upon which the preliminary injunction relief had been granted." (See Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14-15, disagreed with on another ground as stated in Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1062.) They also provided evidence of the county assessed value of their property. In conjunction with their reply, the Goodharts submitted evidence that it would cost approximately $11,000 to rebuild a fence on the true property lines if the injunction was wrongfully issued.
The trial court found that a bond in the amount of $20,000 was "appropriate" to "cover the cost of moving any fence erected by Defendants pending the trial in this action, plus an additional amount in the event there is increased costs due to timing and labor supply issues that may arise in connection with that work."
The Honeybadger Defendants contend the trial court abused its discretion by excluding the value of the land in dispute and attorney fees when setting the bond. But basing the amount of the undertaking on the value of the disputed area is not an "estimate [of] the harmful effect which the injunction is likely to have on" the Honeybadger Defendants if the court subsequently determined that they were wrongfully enjoined from reclaiming the disputed area as their property. (Abba Rubber Co. v. Seaquist, supra, 235 Cal.App.3d at p. 14.) "A determination after trial of the amount of damage done by defendant is not the kind of 'damage' contemplated by section 529, subdivision (a), as proximately caused by the wrongful issuance of an injunction." (Oiye v. Fox, supra, 211 Cal.App.4th at p. 1062, disagreed with on another ground as stated in Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 491-492.)
We agree with the Honeybadger Defendants, however, that the trial court abused its discretion by failing to account for any attorney fees when setting the bond." '[D]amages'" as used in Code of Civil Procedure section 529, subdivision (a), "include reasonable counsel fees paid an attorney for his services in obtaining a dissolution of the injunction." (Estate of Williamson (1957) 150 Cal.App.2d 334, 341; accord, Oiye v. Fox, supra, 211 Cal.App.4th at p. 1062; Abba Rubber Co. v. Seaquist, supra, 235 Cal.App.3d at pp. 16-17.) By setting the bond at an amount sufficient to cover only the cost of the fence and any increased labor and supply costs, the trial court impliedly estimated that the Honeybadger Defendants would not incur any attorney fees in obtaining a dissolution of the injunction. "That estimation is not within the bounds of reason....It is well known that litigation is extraordinarily expensive." (Abba Rubber Co. v. Seaquist, at p. 16.)
Although the trial court sustained the Goodharts' objections to the Honeybadger Defendants' evidence of their claimed attorney fees, trial courts can estimate the amount of attorney fees the restrained party is likely to incur in prevailing at trial on the cause of action on which the preliminary injunction was based. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096 [" 'The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.' "].)
We express no opinion on the appropriate amount for the bond. We leave that to the sound discretion of the court.
We need not and do not address the Honeybadger Defendants' arguments that the trial court abused its discretion in considering the evidence the Goodharts submitted with their reply, and that the trial court erred in concluding it had lost jurisdiction to hear the Honeybadger Defendants' bond objection, which raises the same arguments regarding the sufficiency of the bond amount.
III. DISPOSITION
We reverse the order imposing the undertaking and remand the matter to the trial court to determine the amount of the undertaking consistent with this opinion. The order is otherwise affirmed, and the preliminary injunction remains in effect. The parties shall bear their own costs on appeal.
WE CONCUR: MARGULIES, ACTING P. J. [**] BANKE, J.
[*] Judge of the Solano County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[**] Retired Justice of the Court of Appeal, First Appellate District assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.