Opinion
G044074 Super. Ct. No. 07CC08889
11-09-2011
REAGAN J. MARTIN et al., Plaintiffs and Respondents, v. TIM WORDEN et al., Defendants and Appellants.
Jennifer A. Gambale and Thomas L. Gourde for Defendants and Appellants. Prenovost, Normandin, Bergh & Dawe, Tom R. Normandin and Karel Rocha for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed.
Jennifer A. Gambale and Thomas L. Gourde for Defendants and Appellants.
Prenovost, Normandin, Bergh & Dawe, Tom R. Normandin and Karel Rocha for Plaintiffs and Respondents.
Tim and Leticia Worden appeal from a judgment after the trial court entered judgment in favor of Reagan and Nancy Martin in part and the Wordens in part. The Wordens argue the court erroneously (1) concluded the Martins possessed an irrevocable license on the Wordens' property, and (2) failed to apply the relative hardship doctrine. Neither of their contentions have merit, and we affirm the judgment.
Unless the context indicates otherwise, for clarity we will refer to the parties collectively by their last names and in the singular by their first names. No disrespect is intended.
FACTS
The Wordens lived on Vista Del Lago street in Santa Ana. In July 2004, the Martins purchased the property next door. The Martins property is landlocked and is only accessible via the Wordens' driveway. When the Martins purchased the home, there was a wood fence and a wood gate between the Martins' home and the Wordens' home. The Wordens and the Martins believed the property line was located in the vicinity of the wood fence and gate.
The Martins immediately began the process of remodeling their home. The Martins removed the wood fence, the wood gate, and a concrete slab but left three planter walls that were in their backyard. Nancy's primary concern was remodeling the entryway to her home and constructing a wall to hide the Wordens' trash cans. Nancy hired Mark Gennaro to design the plans. Gennaro obtained a parcel map from the County of Orange and hired a surveyor to determine the property line. Despite these efforts, Gennaro was unable to establish the exact property line but did determine the wood fence marked the property line. Gennaro created rough sketches for the design plan.
In July 2005, the Martins and Gennaro met with Tim at the property line to discuss the Martins design plans. Gennaro explained the Martins wanted to build a wall that hid the Wordens' trash cans, a wall that marked the property line, and a wall that would serve as the entryway to the Martins' home, which would include a gate. Tim was not concerned with the property line but instead about access to and easy maneuverability of his trash cans. Tim approved the preliminary design sketches and Gennaro used them to draft the final design plans.
Based on the final plans, the Martins planned to build the following three walls: wall 1—a wall running parallel to the driveway that was to enclose the Wordens' trash cans; wall 2—a wall running along the property line; and (3) wall 3—a wall that would connect to Wall 2 and the side of the Martins' house and would include a seven-foot entry gate to the Martins' property.
In 2006, Nancy hired Kevin Gilbert to construct the walls based on Gennaro's final design plans. Just prior to construction of the walls in April 2007, Reagan, Tim, and Gilbert met to discuss placement of the walls. All three men participated in marking the location of Wall 1 and Wall 2. Tim used masonry chalk and spray paint to indicate where Wall 1 and Wall 2 would be located and staked the precise location where the two walls would be erected. During construction, Tim asked Gilbert to widen the opening of the trash can enclosure and move Wall 2 closer to the Martins' home. When Walls 1 and 2 were erected, Tim capped the tops and stuccoed the inside of those walls. He also purchased a standard size 36-inch gate for the trash can enclosure. Gilbert erected Walls 1 and 2 before Wall 3.
The design plans called for Wall 3 to be six feet high but during construction Nancy decided the wall should be higher to accommodate design elements. Nancy did not want to wait for the required building permit so after the building inspection, she had Gilbert build it to nine feet. Tim did not object because he believed Wall 3 was entirely on the Martins' property. Gilbert stuccoed and capped Walls 1 and 2 after he completed Wall 3. During construction of the walls, several trees on the Wordens' property were damaged.
When the walls were complete, the Martins asked Tim if they could place a wrought iron fence on his property so they could pass their pool inspection. Tim refused because he did not want the fence to encroach on his property. Nevertheless, the wrought iron fence was installed on the Wordens' property, and when he confronted the Martins, they claimed their contractors made a mistake. They asked Tim if he would agree to leave the fence temporarily so they could pass the inspection.
A little later, Tim tried to move his trash cans into the enclosure but it seemed smaller than he remembered. Additionally, the opening to the enclosure was wider than the standard size, which forced him to purchase a custom made gate. He suspected the walls encroached on his property.
While the Martins were remodeling their home, the Wordens were building a guest house and pool in their backyard. When the building inspector came to the Wordens' home to finalize the grading permit, Tim told the inspector he suspected Walls 1 and 2 encroached on his land. The inspector told Tim that if that were true, it would cause problems for his grading permit because the walls were not depicted on the grading plan. Tim later measured the distance from his home to the walls and concluded all three walls encroached on his property. The unpermitted Wall 3 prevented the Wordens from passing the grading permit process and his structures remain unpermitted.
Tim notified the Martins of the encroachment and asked them to move Walls 2 and 3 to the property line. The Martins refused but offered the Wordens monetary compensation for the loss of their property. The Wordens refused their offer. The parties exchanged a series of letters, none of which resolved the dispute.
The Martins filed a complaint and an amended complaint against the Wordens alleging the following causes of action: (1) breach of an oral agreement and enforcement of irrevocable real property license; (2) equitable estoppel; (3) declaratory relief; (4) injunctive relief; and (5) prescriptive easement/quiet title. The Wordens answered and filed a cross-complaint alleging the following causes of action: (1) slander of title; (2) private nuisance; (3) trespass to land; and (4) negligence. The Martins answered the cross-complaint.
The parties have not included any of the pleadings in the clerk's transcript. Nor have they transmitted the exhibits to this court for our review.
At trial, both Nancy and Reagan testified they provided the final design plans to Tim, he kept them for a few days, and returned them without any objection. Nancy testified they spent $310,000 on the design and construction of the walls, a pool, and a deck. Tim testified he had plans from when he purchased the property that showed the property line. He also explained that he had previously hired a surveyor, who marked the corners of his property, and civil engineer, who had prepared drawings showing a 10-foot setback based on a site plan Tim had provided him. Tim admitted he had at least three documents that showed the property line and the 10-foot setback, he did not show them to the Martins, and they would have been helpful to the Martins.
The evidence at trial demonstrated Tim knew Wall 1 would encroach on his property. The evidence also showed the parties believed Wall 2 would run on the property line and Wall 3 would be entirely on the Martins' property.
The evidence at trial established the three walls encroached between 50.2 and 53.9 square feet on the Wordens' property. The Martins' expert witness testified the value of this land is worthless because of the steep slope of the land. The Wordens' expert testified the diminution in value to the Wordens' property was $35.87 per square foot, the cost to remove the encroaching walls would be $12,775, and the nuisance value determination was $8,000.
There was also evidence concerning the amount of square footage the three planters encroached on the Wordens' property.
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The trial court orally announced its ruling and the Wordens' counsel stated he would request a written statement of decision, which he did.
After the trial court stated it made all necessary factual and credibility findings, the court stated as relevant to this appeal, the following: "In late 2004 or early 2005, more than five years after the [concrete] pad was poured and the [wood] fence was erected near the entryway, the Martins removed them in anticipation of replacing them with more elegant structures. They never intended to abandon any possessory or use rights they had, however. [¶] The Martins' major renovation plans included putting one wall running a short distance along the driveway that served both houses (wall 1). A major purpose for wall 1 was to create a trash can enclosure for the Wordens. [¶] Another wall (wall 2) would be constructed perpendicular to wall 1 and run approximately along the property line between two residences toward the rear of the properties. Wall 2 was to be set approximately where the wooden fence had been. A third wall (wall 3) would connect between wall 2 and the side of the Martin residence and include an entry gate. . . . [¶] In the summer of 2005, well before construction began, the Martins and their landscape architect, . . . Gennaro showed [Tim] some plans, and they discussed them for about 30 minutes to an hour. [Tim] said he was not too concerned with the [property] line; he was more concerned about the trash can area. [¶] [Tim] took the plans, reviewed them to his satisfaction, and approved them with a few changes to which the Martins agreed. [Tim] desired, however, to choose the wall cap for wall 1, and the Martins agreed. The Martins were to pay all costs, with the possible exception of the capping. Things seemed fine. . . . [¶] During this time, both parties had access to plans that would have alerted them that construction of . . . walls 1, 2, and 3 would intrude on the Wordens' property. The court finds neither party was negligent for failing to review those plans and/or consult surveyors before the walls were constructed. Alternatively, if the parties were negligent, they were equally negligent. [¶] The Martins' construction finally began in late 2006 or early 2007. When the time came to construct the three walls around April 2007, the Martins contacted [Tim], and he was present when . . . Gilbert, laid out the lines for walls 1 and 2. [Tim] may have seen the line for wall 3 as well, but that is essentially irrelevant because he agreed to wall 3 that would run from wall 2 to the side of the Martins' house, and the placement of wall 2 would define any encroachment by wall 3. The parties discussed the height of walls 1 and 2, and agreed to the height [Tim] wanted. [¶] [Tim] approved the placement of walls 1 and 2, and they were erected over several days where, for all intents and purposes, they had been marked. During the days trenching, the footings pour, and construction occurred, the Wordens were, for the most part, at home where they could observe the construction. [¶] After the walls were constructed, the Worden's workers put stucco and caps on the walls. During all this time, the Wordens never expressed any concern about the placement of walls 1 and 2. These walls encroached on about 50.2 square feet of the Worden property. [¶] With regard to wall 3, the entry gate wall, the Wordens agreed to the general location of the wall, but not to the height. Plans indicated it was contemplated originally to be 7 or 8 feet tall. No evidence shows the Wordens ever agreed to a wall that was out of compliance with county building codes or ordinances. [¶] The Martins purposely refrained from building . . . wall 3 at its final height of [nine] feet until after the county signed off on the other walls. At its ultimate height, the wall violates county building codes and/or ordinances and has prevented the Wordens from obtaining final approval of the improvements they built on their property. [¶] During construction of the Martins' project, frictions arose. . . . [¶] . . . [¶] Around the same time, [Tim] returned from a trip and found the Martins had constructed a fence—apparently needed for approval of the swimming pool and to contain a dog—on the Worden property after [Tim] expressly declined to agree to it. He and [Nancy] got into an argument about it. [¶] [Tim] also discovered about this time that the entry to his trash can area that was constructed as part of wall 1 was narrower than he expected. Sometime around this time, he measured 10 feet from his house and decided the Martins had built on his side of the property line. He contacted the Martins and demanded the walls be removed. [¶] A series of letters ensued. In one letter, [Nancy] indicated if the Wordens did not like her proposal to resolve the matter, she would tear down the walls. The court finds this was not a serious offer, the Wordens could not reasonably rely on it, and admission of the evidence of the offer was improper since it violated the rule against admission of certain offers to compromise. After Worden threatened to tear down the walls, the Martins sued. [¶] The court believes [Tim] was in full agreement with the location of the [three] walls until after they were put into place. He only subjectively objected to them after he perceived the last straw concerning wrongs and impoliteness by the Martins. His objection was retributive in nature. [¶] On the other hand, [Tim] never agreed to the [nine]-foot height of wall 3. Indeed, it appears the Martins kept the intended ultimate height a secret from [Tim] and the county until the walls were in place."
As to the Martins' cause of action for breach of an oral agreement and enforcement of irrevocable real property license, the court held "the parties entered into an express oral agreement for the placement of walls 1, 2, and 3 where they were. The express agreement created an irrevocable license to maintain those walls where they are placed. [Citation.] [¶] The height of wall 3 is a different story. The Wordens never agreed to a [nine]-foot wall on their property that is in violation of county building codes and/or ordinances. The Martins are not entitled to an irrevocable license with regard to that wall as it exists."
With regard to the Martins' cause of action for equitable estoppel, the trial court stated that "to the extent[] there was no express agreement between the parties regarding placement of the three walls: (1) the Wordens were aware of where the walls were planned and where they were installed; (2) the Martins had a right to believe [Tim] intended them to proceed with the project in the absence of any objection; (3) to the extent [Tim] intended otherwise, the Martins were unaware of such intention; (4) the Martins were unaware the walls encroached on the Wordens' property; and (5) forcing them to remove walls would inure to their injury. Although a party generally has no duty to speak up to prevent an encroachment [citation], where, as here, the encroaching parties expressly sought consent from the other landowner for the construction, silence regarding the encroachment constitutes turpitude on the part of the other landowner and will support an estoppel. [Citation.] [¶] The court finds the Wordens are estopped from forcing removal or alteration of the three walls based on their location."
The trial court stated it "has found the Wordens granted an irrevocable license for the placement of walls 1-3. Thus, no trespass occurred as to the placement of the walls. The Wordens did not agree to the height of wall 3, however, and it is causing them, damage in the form of lack of approval of their project and potential damage to the value of their property until wall 3 conforms to county requirements. [¶] The apt remedy is to impose a mandatory injunction against the Martins to obtain approval from the county for the wall as it exists, to comply with county requirements for alterations to the wall necessary to obtain county approval, or to remove the wall. The Martins are to take all actions necessary to effectuate one of these actions within six months. In other words, county approval or removal of the wall is to be accomplished within six months from entry of judgment."
The trial court denied the Martins relief on their causes of action for declaratory relief and injunctive relief because of its ruling on their first and second causes of action. Finally, as to the Martins' cause of action for prescriptive easement/quiet title, the trial court denied relief reasoning encroachments that capture the land of an adjoining property owner should not be considered easements because easements concern the use of property and not the occupation of property.
As to the Wordens' cause of action for slander of title, "They allege the Martins falsely represented portions of the Wordens' property were their own, which caused damage to the Wordens in the form of the encroaching fences and damaged plants. The court finds the Martins made no such representation of ownership." With respect to the Wordens' cause of action for private nuisance based on the walls and fence, the court stated these activities were more appropriately considered under the trespass cause of action.
As to the Wordens' third cause of action, the court concluded the Martins trespassed during construction, including leaving construction materials on the Wordens' property, building the wrought iron fence on the Wordens' property, parking on the Wordens' driveway, and destroying plants and trees on the Wordens' property. The court employed a relative hardship analysis concerning the planter retaining walls in ruling removal of the planter retaining walls was inappropriate but went on to conclude a damages award was not necessary. The court concluded the Wordens' fourth cause of action for negligence was rendered moot by its ruling. The Wordens filed a timely notice of appeal.
DISCUSSION
I. Irrevocable License
The Wordens argue the trial court erroneously concluded the Martins have an irrevocable license to maintain Walls 2 and 3 on their land because they never gave the Martins permission to build Walls 2 and 3 on their land. We disagree.
The Wordens assert the applicable standard of review is de novo because it is "[their] claim the trial court erred with regard to its legal conclusion that the Wordens' actions created an irrevocable license." They add that "[they] are not appealing the court's factual findings[,]" and the issue is whether the undisputed facts created an irrevocable license. The Martins respond the Wordens are mistaken because whether the Wordens agreed to the building of the encroaching walls on their property is a factual determination.
"Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test. Questions of law relate to the selection of a rule; their resolution is reviewed independently. Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently. [Citation.]" (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) Because the Wordens do not dispute the facts but instead only the application of those facts to the law, we review the trial court's conclusions independently.
A licensee has express or implied authority from the owner to carry out an act or acts upon property. As with an easement, it is an interest in property that is less than an estate. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36.) A license ordinarily is revocable at will. (Ibid.) However, "where a party has made substantial expenditures in reliance on a license, the license acts, for all purposes, as an easement, estopping the grantor and his successor from revoking it." (Noronha v. Stewart (1988) 199 Cal.App.3d 485, 490 (Noronha).)
The Wordens contend they never expressly agreed to let the Martins build Walls 2 and 3 on their property. The Wordens maintain they thought Wall 2 would be built on the property line and Wall 3 entirely on the Martins' property. In essence, they assert, "Accident!" because they did not know the location of the property line. By their agreement to and participation in the building of the walls, the Wordens impliedly if not expressly agreed to their encroaching on their property.
The evidence was overwhelming the Martins involved Tim in the design and location of the three walls at the outset of the construction. Tim met with the Martins and Gennaro and approved the preliminary design sketches. Tim stated he was not concerned with the property line but instead access to and easy maneuverability of his trash cans. Just before the walls were built, Tim met with Reagan and Gilbert to discuss placement of the walls. Tim helped mark the walls and used masonry chalk and spray paint to indicate where Wall 1 and Wall 2 would be located and staked the precise location where the two walls would be erected.
During construction Tim asked Gilbert to widen the opening of the trash can enclosure and move Wall 2 closer to the Martins' home. The evidence established Wall 2 was originally to be built where the wood fence was located and the parties understood the wood fence to mark the approximate property line. When Walls 1 and 2 were erected, Tim helped complete Walls 1 and 2. By agreeing to and participating in the location and construction of Wall 2, Tim impliedly agreed to the location of Wall 3 as it connected Wall 2 to the Martins' house. Finally, Tim testified he had three documents that showed the property line and the 10-foot setback, he did not show them to the Martins, and they would have been helpful to the Martins. Tim's knowledge of the property line, his statement he did not care about the property line, his agreeing to the design plans, and his participation in marking the location of the walls evidences an agreement in the walls encroaching on his property.
It was not until Tim discovered the wrought-iron fence on his property, his trash can enclosure was not as large as he thought, and Wall 3's height prevented him from getting a grading permit did he complain. Tim's newfound remorse in agreeing to the encroaching walls does not now nullify his authorization to build the walls on his property where the Martins made substantial expenditures in building the walls. (Noronha, supra, 199 Cal.App.3d at p. 490 ["'well settled in this state that "where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for"'"].)
We would conclude similarly under the doctrine of equitable estoppel. (Medina v. Board of Retirement (2003) 112 Cal.App.4th 864, 868 [requisite elements for equitable estoppels are: "(1) the party to be estopped was apprised of the facts, (2) the party to be estopped intended by conduct to induce reliance by the other party, or acted so as to cause the other party reasonably to believe reliance was intended, (3) the party asserting estoppel was ignorant of the facts, and (4) the party asserting estoppel suffered injury in reliance on the conduct"].) Thus, we conclude, as the trial court did, the Wordens agreed to the placement of the three encroaching walls and the Martins' substantial expenditures render the license irrevocable.
II. Relative Hardship Doctrine
Relying on the fact the trial court employed the relative hardship analysis concerning the planter retaining walls, the Wordens contend the trial court erroneously failed to employ the same analysis anent Walls 1, 2, and 3. The Wordens claim that although the court erroneously failed to engage in that analysis, the relative hardship doctrine would not have "save[d] the Martins' encroaching walls." The Wordens add that if the walls are allowed to remain on their property, the Martins must compensate them for their loss.
In Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 759, the court explained the relative hardship doctrine used in determining whether to grant an injunction to enjoin a trespass by encroachment on another's land. Under the doctrine, once the court determines that a trespass has occurred, the court performs an equitable balancing to determine whether to grant an injunction prohibiting the trespass, or whether to award damages instead. (Ibid.) "Overarching the analysis is the principle that since the defendant is the trespasser, he or she is the wrongdoer; therefore, 'doubtful cases should be decided in favor of the plaintiff.'" (Ibid.) For the court to deny an injunction, the defendant must prove three factors. First, the defendant must be innocent, i.e., his or her encroachment must not be willful or negligent. Second, unless the rights of the public would be harmed, the injunction should be granted "if the plaintiff 'will suffer irreparable injury . . . regardless of the injury to defendant.'" (Ibid.) Third, the hardship to the defendant if the injunction is granted "'must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.'" (Ibid.)
The Wordens assert the trial court failed to employ the relative hardship analysis but in the same breath contend the doctrine does not save the encroaching walls. The court was not required to employ the relative hardship doctrine to Walls 1, 2, and 3 because the court concluded the Martins did not trespass on the Wordens' property. Indeed, the court concluded the Wordens authorized the Martins to build the three walls where they stand. The doctrine does not apply because there was no trespass. The trial court properly concluded the Wordens granted the Martins an irrevocable license, and the Wordens are not entitled to damages.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
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O'LEARY, J.
WE CONCUR:
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RYLAARSDAM, ACTING P. J.
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MOORE, J.