Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. DR050098.
Ruvolo, P. J.
I. INTRODUCTION
Appellants Jim Severe (Severe), Coreen R. Sanchez, (Sanchez) and La Shawna Sanchez (collectively, appellants) appeal from a summary judgment in favor of respondents Phillip L. Kern and Barbara C. Kern (the Kerns). They maintain that the trial court erred in finding they had no easement over the Kerns’ property, or, in the alternative, that any easement, if it ever existed, had been extinguished by adverse possession. We affirm.
II. PROCEDURAL BACKGROUND
This appeal arises from a complaint to quiet title filed by the Kerns in March 2005 against appellants and other individuals. At the same time, the Kerns filed an application for a temporary restraining order and order to show cause. The court granted the temporary restraining order, enjoining appellants and the other defendants from entering the Kerns’ property or damaging the Kerns’ gate.
The complaint also names as defendants Vera Delyria, Sherry Delyria, Kay Brown-Rodgers, Deborah Beebe, Debra Brown, Debra Brown Wilkerson, Timothy Gray, and Daniel Waltrip, Jr. The Kerns dismissed the complaint as to Timothy Gray.
The Kerns moved for summary judgment in the instant case, on the basis that appellants had neither a deeded easement nor a prescriptive easement. They also maintained that, even if appellants had an easement over the Kerns’ property, it had been extinguished by adverse possession during the five-year time period during which both appellants were incarcerated.
Appellants filed their opposition to the motion for summary judgment, as well as the declarations of Severe, Sanchez and Kerry Perkett, a “title examiner.” The court sustained the Kerns’ objections to the entire Perkett declaration on the basis that it did “not establish that declarant had special knowledge, skill, training or education on the subject to which the testimony relates to qualify as an expert witness, and the subject matter of the declaration is not admissible in the form of a lay opinion.” The court also sustained the evidentiary objections to 10 paragraphs of the Sanchez declaration, but indicated it would consider those paragraphs as arguments in support of appellants’ position.
Appellants have not challenged the evidentiary rulings on appeal.
The trial court granted the motion and entered judgment, in which it indicated “No easement exists over [the Kerns’] [p]roperty to benefit [appellants] or [appellants’] property because: [¶] a. Any such easements, if any such easements ever existed, have been extinguished by adverse possession; [¶] b. [Appellants] and [appellants’] property have no deeded easements over [the Kerns’] [p]roperty; [¶] c. [Appellants] do not have an easement by prescription for any purpose over [the Kerns’] property; [¶] d. [Appellants’] property is not part of the Hess Subdivision of which [the Kerns’] property is a part and has no easements created to benefit real property in the Hess Subdivision; [¶] e. The ‘indeterminate easement’ purportedly created by the deed recorded at Book 192, Page 181, Humboldt County Recorders Office, which is referenced on the Hess Subdivision Map, does not benefit [appellants’] property.”
Appellants moved to set aside the judgment and for a new trial. They also filed a motion to tax costs. The court denied the motions. This timely appeal followed.
After briefing was complete, we granted the Kerns’ motion for supplemental briefing to allow the parties to address a subsequent decision of this court discussing easements by necessity. Our Supreme Court granted review of that decision on February 27, 2008. (Murphy v. Burch, S159489).
III. FACTUAL BACKGROUND
Severe and another individual obtained title to his parcel in 1978. The Kerns purchased their property and began living there in 1988. The two properties are not adjacent; two other parcels are located between Severe’s property and the Kerns’ property.
There have been numerous deeds granting interests in appellants’ property to various individuals during the time that Severe has been one of the owners. Appellants are the only named defendants who are parties to this appeal.
The deed by which Severe obtained title to his property contained the following easement description: “A non-exclusive right of way for ingress and egress over the existing road located within the Southwest Quarter of the Northeast Quarter of Section 32 and loc[a]ted within the Northwest Quarter of the Southeast Quarter of Section 32, all in Township 8 North, Range 3 East, Humboldt Meridian” (Severe Property). The Kerns’ property is described in their deed as “Those portions of the South Half of the Northwest Quarter and of the North Half of the Southwest Quarter of Section 32, Township 8 North, Range 3 East, Humboldt Meridian, described as follows: [¶] Parcel 2 as shown on Parcel Map No. 1666 on file in the office of the County Recorder of Humboldt County, in Book 14 of Parcel Maps, page 103” (Kern Property). The grant deed to the Kerns also gave them a “non-exclusive right of way for ingress, egress and utilities 50 feet wide, the center line of which is the center line of the existing road running Northeasterly through the East Half of the Southeast Quarter of Section 31, Township 8 North, Range 3 East, Humboldt Meridian, from the county road to the East line of said East Half of Southeast Quarter. Being the same as granted to Douglas Hess and Allan P. Hess, recorded June 6, 1979, Book 1571, Official Records, page 185.”
Since at least 1992, appellants and the Kerns have had ongoing disputes over use of a private road that passes through the Kerns Property. In 1992, Severe filed a lawsuit against the Kerns and other landowners, claiming he had a prescriptive easement over the Kerns’ and other landowners’ property to use the road. The court dismissed the entire action with prejudice in 1993.
In 1994, appellants filed an action to quiet title to an alleged deeded easement over the Kerns’ and other landowners’ property. The court granted summary judgment in the Kerns’ favor in 1995, dismissed the complaint with prejudice, and permanently enjoined appellants from “utilizing the lands of defendants or any roadway thereon for logging purposes or for the removal of timber.”
Both Severe and Sanchez were incarcerated on January 9, 1998. Severe was discharged on June 16, 2004, and Sanchez was discharged on September 6, 2004.
In the underlying case, the Kerns brought an action to quiet title after appellants and other individuals attempted to cross the Kerns Property over the private road on February 27, 2005. The Kerns moved for summary judgment. Appellants filed an opposition and response to the Kerns’ statement of undisputed facts in September 2006.
Appellants agreed that the following facts were undisputed. “At all times since 1997, the Kerns have maintained this locked gate [across the claimed easement] in place and have stood guard day and night.” Appellants “have be[e]n physically prevented from coming onto the Kerns[’] property or utilizing any road on the Kerns’ property since 1997[, f]or well over five (5) years. Appellants also agreed it was undisputed that “The Kern Property is part of the Hess Subdivision,” and that their property is not.
IV. DISCUSSION
A. Standard of Review
Appellants argue that the trial court erred in granting summary judgment. We review “ ‘the record de novo and independently determin[e] whether [the] decision is correct. [Citation.]’ ” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 418-419.) We “ ‘independently determine the construction and effect of the facts presented to the trial judge as a matter of law.’. . .” (City of West Hollywood v. 1112 Investment Co. (2003) 105 Cal.App.4th 1134, 1142, citing Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.) In performing this independent review, “[w]e examine: (1) the pleadings to determine the elements of the claim for which the party seeks the relief; (2) the summary judgment motion to determine if movant has established facts justifying judgment in its favor; and (3) the opposition to the motion—assuming movant has met its initial burden—to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue.’. . .” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85, citing Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) We are “not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale. [Citation.]” (Knapp v. Doherty, supra, at p. 85.)
B. Adverse Possession
The Kerns deny the existence of appellants’ claimed easement, but argue that even if it ever existed, it has been extinguished by their adverse possession of it. Appellants counter that they have an easement by necessity, which they claim cannot be extinguished by adverse possession as a matter of law.
We begin by summarizing the elements of easements by necessity and adverse possession. “An easement by way of necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way, as when the claimant’s property is landlocked and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity. [Citation.]” (Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049.) An easement may be “extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to the land by adverse possession. [Citations.]” (Glatts v. Henson (1948) 31 Cal.2d 368, 370-371.)
“ ‘The elements necessary to establish title by adverse possession are 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,’ for five years. . . .” (Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1085, citing Gilardi v. Hallam (1981) 30 Cal.3d 317, 321.) “The five-year prescriptive period begins to run when a cause of action accrues, that is, when the owner is deprived of possession. [Citation.]” (Sevier v. Locher, supra, at p. 1085.) “[T]he adverse possession statutes . . . refer to occupation of the land adverse to the legal title, rather than to a particular holder thereof. . . . (Glatts v. Henson[, supra,] 31 Cal.2d [at p.] 368, 371 . . . [easement extinguishable by use in manner ‘adverse to the exercise of the easement’ for the requisite time period].)” (Sevier v. Locher, supra, at pp. 1086-1087.) “Notice of the servient tenement owner’s adverse claim may be either actual or constructive; may arise out of the nature of his use; and need not be orally communicated to the owner of the dominant tenement.” (Masin v. La Marche (1982) 136 Cal.App.3d 687, 693.)
Appellants do not claim there is any factual dispute as to whether the elements of adverse possession have been established. Instead, they claim that an easement created by necessity cannot be extinguished by adverse possession. Appellants are mistaken. “The conceded facts deny the existence of a way of necessity. Assuming such right of way may have accrued when appellants or their predecessors acquired the parcels here involved, such easement was lost through the adverse possession of respondents . . . .” (Miller v. Fowle (1949) 92 Cal.App.2d 409, 413.) “[A]n easement, whether acquired through a grant, adverse use, or as an abutter’s right, may be extinguished by the owner of the servient tenement by acts adverse to the exercise of the easement for the period required to give title to the land by adverse possession. [Citations.]” (Popovich v. O’Neal (1963) 219 Cal.App.2d 553, 556.) “It is well settled that an easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to the land by adverse possession. [Citations.]” (Glatts v. Henson, supra, 31 Cal.2d at pp. 370-371.)
Appellants rely on Kellogg v. Garcia (2002) 102 Cal.App.4th 796 (Kellogg) for the proposition that adverse possession cannot extinguish an easement by necessity. They base their conclusion on the following language in Kellogg: “ ‘[(A) way of necessity], having been created by the necessity for its use, cannot be extinguished so long as the necessity exists.’. . .” (Id. at p. 804, citing Blum v. Weston (1894) 102 Cal. 362, 369.) The Kellogg court, however, did not address the issue of whether adverse possession of an easement by necessity can extinguish the rights of the owner of the dominant tenement. Instead, it considered whether the non-use of an easement by necessity by the owner of the dominant tenement extinguished the easement. While non-use by the owner of an easement by necessity does not extinguish it, non-use of the easement “may be considered as a factor in accomplishing the extinguishment by adverse possession.” (Glatts v. Henson, supra, 31 Cal.2d at p. 371.)
Here, the Kerns erected a locked gate blocking the easement for longer than five years, and guarded the gate around the clock, preventing appellants from accessing the easement. Appellants admitted these facts. Accordingly, even if there once had been an easement over the Kerns’ property for the benefit of appellants’ property, it was extinguished by the Kerns’ conceded adverse possession of the easement for the statutory period.
Given our holding on this issue, we need not reach the remaining issues raised by appellants.
C. Failure to Grant Continuance
Appellants assert that the trial court erred in not granting them a continuance under Code of Civil Procedure section 437c, subdivision (h), after they filed their reply to the Kerns’ evidentiary objections regarding the motion for summary judgment. While appellants claim the statements made in their pleading constituted an “inartfully” presented request for continuance, we cannot say that any reasonable person would so construe them. Vague references to requests to “allow [Mr.] Perkett to testify on his own behalf” and to “amend their declaration in opposition to the motion for summary judgment” “d[o] not serve as a substitute for . . . [a] request for continuance. . . . Appellant[s’] objection was waived in the trial court.” (Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 454.) Accordingly, appellants may not raise the issue of failure to grant a continuance on appeal.
V. DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.