Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC306345, Rita Miller, Judge.
Murtaugh Meyer Nelson & Treglia and John R. Armstrong for Defendant, Cross-complainant and Appellant.
Sullivan, Workman & Dee, Charles D. Cummings and D. Daniel Pranata for Plaintiffs, Cross-defendants and Respondents.
MANELLA, J.
Appellant Luca Colombo challenges a judgment requiring him to remove a deck, partially located on his property and partially located on property owned by one respondent. None of Colombo’s arguments has merit, and we affirm the judgment.
The trial involved additional property disputes, but the only issue raised on appeal concerns Colombo’s deck.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying dispute involved properties located on Crescent Drive and Wonderland Avenue in the City of Los Angeles. Lot 16 is bordered by lots D, 15, 20, 21, and 22. Colombo owns a house located at 9137 Crescent Drive, which is partially on lot 16 and partially on lot D. Colombo purchased lot 16 in 1997 and obtained part of lot D in 1999.
In approximately 1997, Colombo built a deck behind his house. The deck overhangs lot 22, and caissons supporting the deck are built into lot 22 near a retaining wall. Because Colombo knew that his deck was partially located on lot 22, Colombo attempted to purchase that property, but Marlon Brando outbid Colombo and obtained lot 22. The successor to Marlon Brando and current owner of lot 22 is the Greif Revocable Trust, and its trustee Lloyd Greif is one respondent. The other respondent is Robert J. Emmons as trustee of the Lloyd and Renee Greif Children’s Trust.
1. Pleadings
On November 19, 2003, Brando sued Colombo, asserting causes of action for declaratory relief, enforcement of easement, private nuisance, and continuing trespass. Brando alleged, among other things, that in or after 1997, Colombo constructed a wood deck, part of which was located on Brando’s property. Brando did not give permission for the construction of the deck on his property, and he demanded the deck be removed. The second-amended complaint filed by Brando’s estate contained the same allegations with respect to the deck and named additional defendants, including Emmons as trustee of the Lloyd and Renee Greif Children’s Trust. In his cross-complaint filed February 28, 2006 and subsequent second amended cross-complaint, Colombo alleged that his wood deck had been continuously used since 1962 and that a prescriptive easement had been created.
The Lloyd and Renee Greif Children’s Trust owned property at issue during trial. The property at issue on appeal is owned by the Greif Revocable Trust.
2. Trial
The matter was tried to the court. In a court trial, Colombo testified that he knew that the caissons supporting his deck were built on property that did not belong to him and that the deck was built past his property line. Colombo, a licensed contractor, testified that he did not obtain a permit for the wood deck even though he was aware that the construction of a deck required plans to be submitted to the City of Los Angeles. Colombo also was aware that the construction of the deck required an engineer to ensure the caissons were sufficiently strong to support the deck, but he did not commission such a report or cause the necessary plans to be submitted to the City of Los Angeles Department of Building and Safety. Midway through trial, Colombo changed his testimony. He claimed that, in his view, a permit was unnecessary and that he was “not adding anything” when he built the deck.
At the parties’ request, the trial court visited the property.
Gregory Shoop, an employee of the Los Angeles City Department of City Planning, testified that a permit would not have been issued for Colombo’s deck because it was built partially overhanging property he did not own. Shoop testified that a permit, geological planning, and an engineering report were mandatory to construct the deck.
With respect to the payment of taxes, Colombo testified that he paid taxes continuously from March 1997 on “the Colombo home property.” No evidence was admitted showing that Colombo had been assessed taxes for property on lot 22. Richard Ayoob, an attorney specializing in state and local taxes, testified that the history of Colombo’s payment of taxes reflected no supplemental assessment for the deck, indicating that he had never paid taxes on the deck. Ayoob testified that Colombo paid taxes only on the house at 9137 Crescent Drive (Assessor’s Identification No. 5564031023). (The tax records referred to by Colombo and Ayoob were not included in the appellate record.)~
Following trial, in an effort to persuade the court to allow him to amend the complaint to assert a cause of action for adverse possession, Colombo argued that the issue of adverse possession had been presented at trial, including the payment of taxes by Colombo “as to said wood deck....” The trial court granted his request to add a cause of action for adverse possession of the deck.
3. Trial Court Findings and Judgment
In its thorough statement of decision, the trial court concluded Colombo did not obtain a permanent exclusive easement over the deck (sometimes referred to as the “blue deck”). The court also found that Colombo did not obtain the right to possess the property by adverse possession because he did not pay any real property taxes on the property occupied by the deck. The court further found the deck caused irreparable harm to respondents because the use of the deck invaded the privacy of the occupants of the house on respondents’ property.
The court made extensive findings explaining the basis for its denial of Colombo’s requested equitable relief. Specifically, the court concluded that “the blue deck was not innocently constructed by Colombo. Colombo is a licensed contractor and real estate developer.... Colombo knew that he was required to obtain a permit from the City of Los Angeles Department of Building and Safety and that he was required to submit engineering plans before he could obtain such a permit prior to commencing construction of the blue deck. Colombo intentionally caused the blue deck to be constructed without obtaining a survey, without obtaining a permit from the City of Los Angeles and without submitting any plans to the City of Los Angeles Department of Building and Safety. Such plans and permit application would have had to disclose the location of the blue deck and the City of Los Angeles Department of building and Safety would not have granted a permit to construct the blue deck on property that Colombo did not own. Colombo’s conduct with respect to the construction of the blue deck was not innocent. The equities do not favor Colombo with respect to the blue deck.”
Judgment was entered April 29, 2008. With respect to the deck, the court found it “encroaches upon the Greif property on Lot 22. The court declare[d] that Colombo did not obtain a prescriptive easement over the area on the Greif Revocable Trust Property on Lot 22 over which he built the blue deck. The court declare[d] that Colombo did not obtain an implied easement or easement by necessity with respect to the blue deck. The court declare[d] that Colombo did not obtain the right to possess the area in which the blue deck is located by adverse possession. The court issue[d] an injunction requiring Colombo to remove the portion of the blue deck that encroaches upon the Greif property on Lot 22 within 30 days. The court issue[d] a permanent injunction requiring Colombo and his successors in interest, including tenants, to refrain from encroaching or trespassing upon the Greif property on Lot 22 in the area now occupied by the blue deck.”
4. New Trial Motion
Following the entry of judgment, Colombo moved for a new trial. For the first time, he claimed to have obtained the land underneath the deck by adverse possession, based on the existence of a retaining wall behind the deck. He argued: “[T]here was no evidence that the Brando property was ever assessed for the retaining wall that keeps Colombo’s property from tumbling down.... The retaining wall behind where the blue deck sits pre-dates any of the tax assessors records, and were the tax assessor to view Colombo’s property, Colombo’s property would likely be assessed for the retaining wall and deck by looking at... his property....” At a hearing on the motion, Colombo argued that he was not disputing that he had not paid taxes on the deck, but instead was arguing that he had paid taxes on all of the land behind the retaining wall.
The court found that “Greif established that the Colombo lot was assessed before the deck was built, and that it was never reassessed after the deck was built. Thus, Colombo has not paid taxes which included an assessment for the deck.” The court further stated, “Colombo also raises arguments which attempt to establish his adverse possession based on the retaining wall near the deck. The retaining wall was not an issue in this determination at trial. It will not be addressed in this motion.”
DISCUSSION
On appeal, Colombo argues that, as a result of the retaining wall his predecessors built in the 1950s, he obtained -- by adverse possession, prescriptive easement, or the doctrine of agreed boundaries -- the property underneath his deck. He also argues that he obtained an equitable easement over the deck. We conclude his claims are either unsupported by the record, forfeited, or contradicted by the record.
1. Adverse Possession
Colombo argues he adversely possessed the disputed property behind the retaining wall his “predecessors built in the 1950’s.” Contrary to Colombo’s statement, there was no evidence that the retaining wall was built in the 1950’s; the only evidence is a 1962 application for a building permit for a retaining wall, the location of which is not specifically identified. More significantly, Colombo did not raise this issue during trial and could raise it in his motion for new trial only if it presented a question of law to be applied to undisputed facts in the record. (The Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 500 [rejecting on appeal, as in trial court, argument raised for first time in new trial motion].) Because Colombo’s theory was based solely on his speculation that were the tax assessor to view Colombo’s property, Colombo’s property would likely be assessed for the retaining wall, the trial court properly rejected it.
Respondents claim the retaining wall identified in the application for the building permit was not the wall behind Colombo’s property. As the issue was not litigated below, the record contains no evidence indicating whether the 1962 application for the building permit was for the retaining wall behind Colombo’s property.
In any event, Colombo failed to demonstrate the elements of adverse possession -- “tax payment and open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title.” (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321; see also Preciado v. Wilde (2006) 139 Cal.App.4th 321, 325 [identifying elements of adverse possession].) First, Colombo’s own testimony undermines his claim of adverse possession because it confirmed that someone else owned legal title to the property. Specifically, he testified that he knew the deck was located on property that did not belong to him, that the caissons for his deck were drilled into property that did not belong to him, and that he tried to purchase the property. (Preciado v. Wilde, supra, 139 Cal.App.4th at p. 326 [evidence that person claiming adverse possession tried to purchase property undermined claim for adverse possession].) Second, there was no direct evidence he paid taxes on that property and no basis for such an inference. While there was evidence he paid taxes on the house at 9137 Crescent Drive, there was no evidence he paid taxes on the disputed property or that the tax assessment was based on the retaining wall. (See Gilardi v. Hallam, supra, 30 Cal.3d at p. 327 [inference that assessor based assessment on improvements visibly possessed by parties inapplicable where parties assessed by lot number and no evidence that improvements were considered in assessment of lots].) In short, there was no evidence that the property behind the retaining wall was included in the assessment of Colombo’s property.
The evidence cited by Colombo -- a 1962 application for a building permit, pictures of his deck, and the view from the deck -- does not show he paid taxes on that property. No evidence was admitted regarding taxation of improvements prior to 1983, and no evidence was admitted regarding the tax consequence of building a retaining wall. Colombo’s assertion that the building permit for the 1962 retaining wall “is the kind of event and improvement that ordinarily triggers tax liability by the County Assessor” is unsupported by any evidence in the record.
2. Prescriptive Easement
Colombo contends that he obtained a prescriptive easement over the property underneath the deck because of the retaining wall. He failed to raise this issue in the trial court and has forfeited it. (Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 194-196 [a party is not permitted to adopt new and different theories on appeal].) Colombo forfeited the issue for a second reason: he provides no legal authority supporting his argument. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
On the merits, as respondents point out, the exercise of possessory rights over parts of neighboring parcels is not sufficient to obtain a prescriptive easement. (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1186.) Courts uniformly have rejected the claim that possessory rights over neighboring parcels demonstrates a prescriptive easement. (Ibid. [and cases cited therein].) Additionally, even if Colombo had obtained a prescriptive easement over “the property behind the retaining wall” as he argues, it would have been limited to a specific use. (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1601 [“the successful claimant of a prescriptive easement gains not title, but the right to make a specific use of someone else’s property”]; (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1307 [an easement “‘is not an ownership interest, and certainly does not amount to a fee simple estate’”].) Colombo does not show how the construction of the deck would have been a permitted use of the property even had he obtained an easement over it.
3. Agreed Boundary Doctrine
For the first time on appeal, Colombo argues that “the doctrine of agreed boundaries applies to the facts of this case.” He argues this doctrine should apply “such that Colombo owns and controls all of the property behind the retaining wall for his property.” He has forfeited this contention by failing to raise it in the trial court. (Westcon Construction Corp. v. County of Sacramento, supra, 152 Cal.App.4th at pp. 194-196 [ a party is not permitted to adopt new and different theories on appeal].)
In any event, the doctrine of agreed boundaries is inapplicable. The elements required for that doctrine are: “‘(1) an uncertainty as to the true boundary line, (2) an agreement between the coterminous owners fixing the line, and (3) acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.’” (Bryant v. Blevins (1994) 9 Cal.4th 47, 55, quoting Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707.) There was no evidence of any uncertainty as to the true boundary line. Even Colombo testified he knew that the deck was built partially on lot 22. Nor was there evidence of an agreement between Colombo and the Greif Revocable Trust, or between Colombo and Brando, fixing the line. Therefore, putting aside the fact that he forfeited the contention, Colombo failed to carry his burden of showing the applicability of the agreed boundary doctrine. (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1302 [party claiming land pursuant to agreed boundary doctrine carries burden of establishing elements of that doctrine].)
4. Equitable Easement
Relying exclusively on Hirschfield v. Schwartz (2001) 91 Cal.App.4th 749 (Hirschfield), Colombo argues the trial court erred in finding he did not obtain an equitable easement over the deck. In Hirschfield, neighbors assumed that a chain link fence between their properties marked their property line. (Id. at p. 755.) In reliance on the assumption, the defendants made several improvements, including extending the fence, building waterfalls, building a koi pond, building a stone deck, and adding a putting green and sand trap. (Ibid.) A later survey revealed that two sections of land used by the defendants were on the plaintiffs’ property. (Id. at p. 756.) The trial court found the defendants innocently believed the chain link fence marked their property. (Id. at p. 757.) After visiting the property, the trial court found that the balance of equities tipped in the defendants’ favor and allowed the defendants to keep the disputed portion of property and pay damages to the plaintiffs.
The appellate court concluded the trial court correctly applied the relative hardship doctrine. “Under this doctrine, once the court determines that a trespass has occurred, the court conducts an equitable balancing to determine whether to grant an injunction prohibiting the trespass, or whether to award damages instead.” (Id. at p. 759.) Doubtful cases should be decided against the trespasser. (Ibid.) Among other things, the trespass “must be innocent,” i.e., not willful or negligent. (Id. at pp. 759, 761.) The court should also consider the parties’ hardships and the encroacher must endure a substantial hardship to defeat an equitable injunction to remove the encroachment. (Id. at p. 761.)
In contrast to Hirschfield, here Colombo fails to establish the key requirement -- that his trespass was innocent. The trial court expressly found that “the blue deck was not innocently constructed by Colombo.... Colombo knew that he was required to obtain a permit from the City of Los Angeles Department of Building and Safety and that he was required to submit engineering plans before he could obtain such a permit prior to commencing construction of the blue deck. Colombo intentionally caused the blue deck to be constructed without obtaining a survey, without obtaining a permit from the City of Los Angeles and without submitting any plans to the City of Los Angeles Department of Building and Safety.... The equities do not favor Colombo with respect to the blue deck.” The trial court’s findings were amply supported by Colombo’s testimony that he knew the property did not belong to him and Shoop’s testimony that no permit would have issued because Colombo did not own the property upon which he sought to construct a deck.
Finally, Colombo’s unsupported assertion that “the deck adds value to Lot 16 without causing any harm to Lot 22” ignores the trial court’s contrary findings. After visiting the property, the court concluded that its presence allows the occupier of the Colombo residence to invade the privacy of the occupier of the Greif residence. Moreover, Colombo’s assertion that the deck “adds value” to his property is irrelevant because “[d]eprivation of a substantial benefit... falls short of the imposition of substantial hardship.” (Fairrington v. Dyke Water Co. (1958) 50 Cal.2d 198, 200, 201 [finding that sign would result in substantial benefit without finding that its removal would result in hardship insufficient to support an equitable claim by encroacher].)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.