Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment and orders of the Superior Court of Los Angeles County Super. Ct. No. SC082523, Joe Hilberman and Paul G. Flynn, Judges. Reversed and remanded with directions.
Dapeer, Rosenblit & Litvak, William Litvak and Lisa A. Vidra for Defendant and Appellant.
Gilchrist & Rutter, Richard H. Close and Christine A. Page for Plaintiff and Respondent.
WOODS, J.
SUMMARY
Finding the establishment of a prescriptive easement as a matter of law, the trial court entered summary judgment in favor of a hillside property owner who had installed footpaths and landscaping encroaching on his downhill neighbor’s property. The downhill neighbor moved to set aside the judgment on the grounds of excusable neglect or, in the alternative, his attorney’s positive misconduct. The trial court denied this motion. The downhill owner appeals, claiming the trial court abused its discretion in refusing to set aside the entry of judgment and erred as a matter of law in finding the establishment of a prescriptive easement on the facts of this case. Because we find the trial court erred in granting summary judgment, we reverse and remand with directions.
FACTUAL AND PROCEDURAL SYNOPSIS
Since 1972, James Goldstein owned and lived in a residence at 10104 Angelo View in Beverly Hills. The hillside property afforded Goldstein “commanding” views of downtown and midtown Los Angeles. In 1993, he acquired an adjoining lot to the west of his home for the development of a tennis court and to serve as a buffer with neighboring houses.
Between 1991 and 1995, Goldstein planted a tropical garden around his residence and on the downhill slope south of this home. He planted bamboo, palm trees and numerous other exotic plants and vegetation and installed sprinklers, lighting and wood tie and flagstone footpaths. Because of their size and the terrain, many trees were installed with the use of a crane from Angelo Drive.
The garden has been featured in various magazines.
In 1997, Behrooz Haghnazarzadeh (also known as Bruce Juliani) bought an undeveloped hillside lot in Benedict Canyon located at 1244 North Angelo Drive in Beverly Hills—downhill from Goldstein’s property. The entire property was on a steep grade with rocky, uneven terrain including a massive rock outcropping descending to the street below.
Between 1996 and 1998, Goldstein extended his landscaping and footpaths along part of the easterly strip sharing its western border with Haghnazarzadeh’s property and also downhill from a concrete viewing platform Goldstein added in 1997. He was not aware that his landscaping encroached onto Haghnazarzadeh’s property. Goldstein never asked for permission to use the landscaped area, and Haghnazarzadeh never posted a sign consenting to Goldstein’s use. From the time of their installation forward, Goldstein openly used and maintained the landscaping and footpaths for recreation and access to the eastern portion of his property. In addition, his landscape designer and up to three gardeners continually accessed the landscaping during this time.
Haghnazarzadeh learned that Goldstein’s landscaping encroached on his property shortly after he bought it. In December 1997, he commissioned a survey on which Lawrence Schmahl noted the approximate location encroachments in existence at the time. In addition to providing Haghnazarzadeh with this survey, Schmahl directly informed Haghnazarzadeh of the encroachments during a telephone conversation at the time. Haghnazarzadeh admitted he never disclosed this survey to Goldstein until after Goldstein filed this action—almost seven years later.
In July 2000, Haghnazarzadeh complained to Goldstein that the Los Angeles Fire Department was requiring him to remove brush from the hillside and said Goldstein needed to remove “the bamboo.” Goldstein responded that the bamboo was his (Goldstein’s) and, in any case, the Fire Department order did not apply to his irrigated landscaping. That month, Goldstein’s attorney sent Haghnazarzadeh a letter memorializing the dispute and proposing as a resolution that Goldstein would clear Haghnazarzadeh’s brush to avoid any damage to Goldstein’s landscaping.
In July 2004, Haghnazarzadeh demanded that Goldstein remove all of the “bamboo” from his property. Haghnazarzadeh’s attorney followed up with a July 26 letter stating Haghnazarzadeh would “remove all plantings” if Goldstein failed to do so by August 9.
On August 10, Goldstein filed a complaint, asserting causes of action to quiet title to his claim of easement by prescription, implication or estoppel; for declaratory and injunctive relief; and for a finding of good faith improver. (Code Civ. Proc., § 871.1 et seq.) He immediately sought and obtained a temporary restraining order and order to show cause re: preliminary injunction preventing Haghnazarzadeh from removing the landscaping and footpaths or interfering with their maintenance and use.
In November, however, the trial court (Hon. Lorna Parnell) denied Goldstein’s request for a preliminary injunction without prejudice based on “the conflicting evidence . . . concerning the major issues presented,” emphasizing “this case is at an early state of the proceedings, and the Court cautions the parties that this ruling is not intended to be determinative of the ultimate outcome of this case.” In opposition, Haghnazarzadeh had submitted a declaration directly contradicting Goldstein. Haghnazarzadeh stated he had personally verified there was no encroachment at the time he bought his property in 1993. Further, Haghnazarzadeh said, the landscaping and access paths did not appear on his property until 2003. He attached a portion of a survey prepared by Lawrence Schmahl, asserting it did not disclose any encroachment.
Transactional attorney Michael Meade prepared these papers for Haghnazarzadeh, but Robert Gentino substituted in before the hearing and argued the motion on Haghnazarzadeh’s behalf.
Thereafter, Goldstein obtained a declaration from Schmahl stating that extensive encroachments (“filled with palm trees and other varieties of tropical trees, plants, and flowers, as well as stone footpaths, and a sprinkler system”) did exist in two separate locations at the time of Haghnazarzadeh’s 1997 purchase. Not only did Schmahl note these two areas of encroachment on the survey he prepared for Haghnazarzadeh by marking them with a scalloped border, but he also spoke with Haghnazarzadeh on the telephone and expressly informed him of the landscaping encroachments. A copy of the full survey—bearing the scalloping Schmahl described and the notations regarding the “approximate extent of the landscaping”—was attached as an exhibit to the declaration. Haghnazarzadeh testified at his deposition that he did not know the boundary line between the properties at the time he inspected the property he purchased.
The partial copy of the survey Haghnazarzadeh submitted depicted only one of the two areas of encroachment and, as to that one, obscured the markings and notations Schmahl had made.
In January 2005, supported by this additional evidence, Goldstein sought and obtained a temporary restraining order and order to show cause re: preliminary injunction. Goldstein also cited a recently adopted ordinance restricting hillside development which he argued would make development of Haghnazarzadeh’s particularly steep hillside very difficult, if not impossible. Hearing on the preliminary injunction was set for February 17 and trial was set for June 20. Haghnazarzadeh (through Gentino) filed opposition, but then stipulated to the preliminary injunction pending trial in exchange for Goldstein’s agreement to post a $20,000 bond.
After entry of the preliminary injunction, Haghnazarzadeh (represented by Gentino) filed an answer and cross-complaint against Goldstein for trespass. The parties then engaged in settlement discussions and, in May 2005, stipulated to continue the trial date to October 24 to attend private mediation. In June 2005, the parties participated in mediation and counsel had numerous conversations over the next few months regarding a settlement proposal. During these conversations, Gentino told Goldstein’s counsel he was in communication with Haghnazarzadeh and Haghnazarzadeh’s architect.
Haghnazarzadeh did not seek to dissolve the preliminary injunction in light of the continuance. (Code Civ. Proc., § 533.)
On July 8, Goldstein filed a motion for summary adjudication of his causes of action to quiet title on a prescriptive easement claim and for permanent injunctive relief as well as Haghnazarzadeh’s trespass claim. Hearing was set for September 22. On September 8, Gentino filed opposition requesting a continuance on the ground he had been unable to schedule Goldstein’s deposition because of Gentino’s and Goldstein’s conflicting travel schedules over the summer and needed to “cross-examine” Goldstein to oppose the summary judgment motion. Goldstein’s deposition was completed on September 20—two days before the hearing.
In the meantime, Judge Parnell had retired, and the case was reassigned to Hon. Joe Hilberman.
Gentino told Goldstein’s counsel (Christine Page) that he had a three-hour meeting with Haghnazarzadeh that night to discuss the pending motion. Gentino told her he and Haghnazarzadeh had a disagreement about the “appropriate evidence” to be submitted in opposition. The following day, Goldstein’s counsel received a letter from Haghnazarzadeh (Juliani) himself stating that Gentino no longer represented him and he was seeking another attorney. He asked that she seek to postpone all pending dates and said he would do the same.
Gentino appeared at the hearing, however, and succeeded in obtaining the requested continuance. The new hearing date was set for October 12 with Haghnazarzadeh’s opposition due September 29. Goldstein argued against the continuance, expressing concern Haghnazarzadeh wanted to find new counsel for the sole purpose of filing a false declaration in order to create a triable issue of material fact. Under Code of Civil Procedure section 437c, subdivision (h), the trial court limited the scope of Haghnazarzadeh’s opposition to the evidence obtained at Goldstein’s deposition.
Gentino did not file Haghnazarzadeh’s opposition when it was due (September 29). Instead, on October 5, he sought a further continuance by ex parte application because, he said, Goldstein’s deposition transcript was garbled. In opposition, Goldstein argued the transcript was clearly readable despite a transcription error, the electronic copy had no errors and the request was untimely. The trial court denied the request for a further continuance. Gentino then filed an opposition and separate statement on October 6, and Goldstein filed a late reply brief.
At the October 12 hearing, the trial court struck Haghnazarzadeh’s untimely opposition and granted summary adjudication in Goldstein’s favor, finding Goldstein had established the elements of his prescriptive easement claim (the first cause of action). On that basis, the court granted summary adjudication of Goldstein’s fourth cause of action for permanent injunctive relief and granted summary judgment in Goldstein’s favor on Haghnazarzadeh’s cross-complaint.
On November 8, Haghnazarzadeh obtained an over-the-counter permit for the purported purpose of grading a temporary access road to conduct soils exploration on his property. The Los Angeles Department of Building and Safety temporary permit expressly stated that Haghnazarzadeh was required “to restore site to its original condition, no export of dirt is permitted under this Permit.” Despite a warning letter from Goldstein’s counsel, Haghnazarzadeh began illegally grading his property, including the impermissible excavation and removal of dirt, on November 25—the day after Thanksgiving when the Building and Safety office was closed. Haghnazarzadeh told Goldstein he would continue grading to the top of the hillside, including into the areas of landscaping and access paths. He did not stop until November 28 when a City inspector issued an order to cease and desist and remediate the illegal excavation.
On December 2, Goldstein sought an order to show cause re: contempt against Haghnazarzadeh. Because Haghnazarzadeh had not substituted him out, Gentino appeared and opposed the application on Haghnazarzadeh’s behalf. Judge Hilberman denied the application as it constituted only a threat to violate the court’s injunction, stating, however: “Mr. Gentino, you have someone with you. I don’t know if this is a representative of your client; but I don’t think I can be any more clear in saying that any violation of the court’s order may be treated as a contempt and result in fine and imprisonment.” Gentino responded, “Of course.” The court then stated: “I trust that you explained that to your client. I am sure you have and I trust your client understands that.”
On December 12, Goldstein found a crew of gardeners cutting down palm trees within the easement area. The gardener said he had been offered $2,500 to clear Haghnazarzadeh’s hillside and had been hired by the contractor who had done the previous grading work there. Goldstein sought and this time obtained an order to show cause re: contempt against Haghnazarzadeh for his violation of the injunction. Gentino again represented Haghnazarzadeh at the December 13 hearing. Judgment was entered in Goldstein’s favor against Haghnazarzadeh on December 14.
On February 10, 2006, Haghnazarzadeh filed a substitution of attorney, replacing Gentino with William Litvak. On that same date, Haghnazarzadeh filed a motion to set aside and vacate the order for summary judgment and judgment on the grounds of excusable neglect or positive misconduct of his former counsel. On March 28, Judge Flynn denied Haghnazarzadeh’s motion, stating: “This case was mishandled, but I don’t think what happened amounted to a total failure on the part of Mr. Gentino in representing [Haghnazarzadeh]. I think there are a lot of issues here that warrant that conclusion. There are a lot of credibility issues.” (Italics added.)
The case had been reassigned to Hon. Paul G. Flynn in January 2006.
Haghnazarzadeh appeals.
DISCUSSION
The Trial Court Erred in Granting Goldstein’s Motion for Summary
Adjudication.
According to Haghnazarzadeh, Goldstein failed to carry his burden of proof to establish a prescriptive easement as a matter of law. Therefore, even without any opposition, the trial court erred in granting Goldstein’s motion. For the reasons addressed in Harrison v. Welch (2004) 116 Cal.App.4th 1084 (Harrison), and Raab v. Casper (1975) 51 Cal.App.3d 866 (Raab), we agree.
To the extent Haghnazarzadeh argues judgment was entered solely on the basis of his failure to file opposition, he is mistaken. (He raises no issue regarding the limitation on the scope of his opposition.) The record establishes that the trial court ruled as it did because it found Goldstein had presented evidence establishing the elements for a prescriptive easement as a matter of law.
“The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must 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, citations omitted.) However, under California law, the “rule” is that “an exclusive prescriptive easement, ‘which as a practical matter completely prohibits the true owner from using his land’ (Silacci v. Abramson[ (1996)] 45 Cal.App.4th [558,] 564), will not be granted in a case (like this) involving a garden-variety residential boundary encroachment.” (Harrison, supra, 116 Cal.App.4th at p. 1093, italics added.) A party may “not properly acquire what [i]s—under the circumstances—the equivalent of fee ownership, without satisfying the requirements of adverse possession.” (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1601[citing numerous supporting authorities].)
In Raab, which involved not only encroaching utility lines and part of a driveway but also part of a yard and landscaping, the court noted, “As the difference between prescriptive use and adverse possession is sometimes obscure, so is the difference between an exclusive easement and outright title.” (Raab, supra, 51 Cal.App.3d at p. 876, italics added.) “An exclusive interest labeled ‘easement’ may be so comprehensive as to supply the equivalent of an estate, i.e., ownership. In determining whether a conveyance creates an easement or estate, it is important to observe the extent to which the conveyance limits the uses available to the grantor; an estate entitles the owner to the exclusive occupation of a portion of the earth’s surface. . . . ‘If a conveyance purported to transfer to A an unlimited use or enjoyment of Blackacre, it would be in effect a conveyance of ownership to A, not of an easement.’” (Id. at pp. 876-877, internal quotations and citations omitted; first and second italics added, third italics in original.) Confronted with the facts in Raab, the court noted: “Although adroitly phrased to avoid the language of a grant of title the [provision granting an “easement for the maintenance of lawn, fences, shrubs, fruit trees, and landscaping around the Casper house”] was undoubtedly designed to give defendants unlimited use of the yard around their home. . . . They doubtless did not intend to own a house on one side of the boundary with an unmarketable yard on the other.” (Id. at p. 877.)
Accepting that an exclusive permissive easement is impermissible in this context, we must consider whether the judgment grants Goldstein such an easement.
The scope of a prescriptive easement is determined by its historical use. (Hirschfield v. Schwartz (2001) 91 Cal.App.4th 749, 769, fn. 11, citing Civ. Code, § 806 and O’Banion v. Borba (1948) 32 Cal.2d 145, 155.) Civil Code section 801 provides for easements for right of pasture, fishing, right-of-way, transacting business, conducting sports, flooding land, and multiple other uses.
The only evidence Goldstein presented in this regard was his statement that “no fence or other barrier” excluded Haghnazarzadeh’s access to the areas he landscaped on Haghnazarzadeh’s property. The same argument was advanced in Harrison, supra, 116 Cal.App.4th at page 1094, which also involved encroaching landscaping. There, in rejecting this attempted distinction, the Harrison court noted that no such barrier was present in Raab, supra, 51 Cal.App.3d 866, either. “It is the exclusivity of the use of the surface of the land in the encroachment area that is determinative, and the landscaping scheme of [the encroaching defendant] has essentially co-opted the encroachment area to an exclusive use designed by [this encroaching property owner].” (Ibid.)
The photographs in this record of Goldstein’s extensive landscaping do not establish as a matter of law that this landscaping does not “effectively prevent[ Haghnazarzadeh] from determining how the area of the encroachment is to be used.” (Harrison, supra, 116 Cal.App.4th at p. 1094; see ibid. [“From what we can discern from the photographs in the record, the trial court was more than justified in concluding that, as a practical matter, Welch’s installation of trees, railroad-tie planter boxes, and an
irrigation system on the Harrisons’ property ‘completely prohibits the [Harrisons] from using [that part of their] land’”].) Goldstein failed to establish as a matter of law that the easement he sought did not constitute such a “forbidden” exclusive easement. (Id. at p. 1093.) Accordingly, the trial court erred in granting Goldstein’s motion for summary adjudication and judgment which resulted in the entry of judgment in his favor.
In light of our determination that summary adjudication was improperly granted in the first instance, we need not address Haghnazarzadeh’s further argument that the trial court erred in denying his subsequent motion to vacate the judgment.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to vacate the order granting Goldstein’s motion for summary adjudication and judgment and enter a new order denying summary adjudication and judgment. Haghnazarzadeh is entitled to his costs of appeal.
We concur: PERLUSS, P. J., ZELON, J.