Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BC355912, Mary Thornton House, Judge.
Angel Ayala Dias, in pro. per., and Sharon Ayala, in pro. per., for Defendants and Appellants.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
Defendants and appellants Angel Ayala Diaz and Sharon Ayala (collectively, defendants) appeal from a judgment (1) declaring plaintiff and respondent Pak Sun Ng (plaintiff) to be the fee simple owner of a disputed parcel of real property (the disputed parcel), and (2) ordering defendants to remove an encroaching wall from the disputed parcel. We affirm.
FACTUAL AND PROCEDURAL HISTORY
I. The Present Case
Plaintiff filed the present action on July 25, 2006. It alleges that plaintiff is the owner of a vacant lot commonly known as 415-417-419 East Avenue 43, Los Angeles. It further alleges that defendants, who are plaintiff’s neighbors, encroached on the vacant lot by building a retaining wall on it and by “taking possession of the enclosed portion of [plaintiff’s property] for their own use, without plaintiff’s knowledge or consent.” Plaintiff asserted five causes of action: (1) quiet title, (2) ejectment, (3) trespass, (4) injunctive relief, and (5) declaratory relief.
Defendants filed a cross-complaint. They asserted: (1) quiet title, (2) adverse possession, and (3) agreed boundary. Further, they asserted five affirmative defenses: (1) plaintiff and defendants set an “agreed boundary” concerning the disputed parcel, (2) plaintiff is estopped to complain about the alleged encroachment, (3) plaintiff is guilty of unclean hands, (4) plaintiff is not entitled to relief because defendants are good faith improvers of real property, and (5) defendants are entitled to an easement to the disputed property.
The case went to trial on August 20, 2007, with both parties representing themselves. It was undisputed at trial that defendants erected a block wall approximately 12 feet into plaintiff’s property in 1993. The parties disputed, however, the circumstances under which defendants did so.
Angel Ayala Diaz testified that he asked plaintiff to sell him the disputed parcel, which was immediately adjacent to defendants’ property, in December 1992. Plaintiff agreed to discuss it with his wife, who then owned the parcel. The following day, plaintiff and his wife asked Diaz how much they would give him for the parcel, and he offered $1,000. Plaintiff and his wife accepted the $1,000 and signed a document stating that they “were accepting the thousand dollars for the small piece of land.” However, the transfer was never recorded, and Diaz said he was not able to produce the document at trial because he lost it. Diaz said that after he bought the disputed parcel from plaintiff’s wife, he erected a block wall on it.
Diaz’s wife, Sharon Ayala, gave similar testimony. She said that she was present when plaintiff and his wife accepted money for the disputed parcel and “the paper was signed.” Subsequently, she asked plaintiff several times to put the disputed parcel in her and her husband’s names so that they could pay the taxes on it, but plaintiff refused. She also testified that she and her husband had tried to find the paper documenting the sale of the disputed parcel, but it had been lost.
Plaintiff testified that defendants never asked to purchase the disputed parcel and did not pay $1,000 for it. Plaintiff also testified that he never signed a paper transferring the property to defendants. Plaintiff said that although he was aware that defendants had erected a block wall, he did not know that the wall was on his property until 2005, when his wife transferred the property to him during divorce proceedings and he had the property surveyed.
II. Decision and Judgment
The trial court found for plaintiff on the first and second causes of action (for quiet title and ejectment), granting declaratory and injunctive relief. It found for defendants on the third cause of action for trespass. It awarded no damages. In a statement of decision, it explained as follows.
The court said that a transfer of real property requires a written instrument. Thus, because defendants had not been able to produce a written instrument evidencing their alleged purchase of the disputed parcel, they could not prove that the parcel had been transferred to them.
The court further said that defendants had not established a right to a prescriptive easement. It said that a prescriptive easement in property may be acquired by open, notorious, continuous, adverse use, under claim of right, for a period of five years. The finding that a prescriptive easement exists must be based on clear and convincing evidence. Further, the person asserting the easement has the burden of establishing that his use was adverse and under claim of right. In the present case, the court determined that under either version of the facts, a prescriptive easement failed. Defendants testified that they had permission to use the parcel and, in fact, owned the parcel. In that case, the court said, proof of adverse possession could not exist. Plaintiff testified that he was aware that defendants were building a wall, but he believed that the wall enclosed only defendants’ property. Thus, the court said, plaintiff could not be said to have knowingly permitted defendants’ use of the property, and so he cannot have waived his right to reclaim it.
The court therefore ordered as follows: (1) Plaintiff is the fee simple owner of the disputed parcel. (2) Defendants, their successors, assignees, or transferees are enjoined from entering or encroaching upon the disputed parcel. (3) Defendants are directed to remove and relocate the brick wall onto their property within 45 days of the final order and judgment. (4) The evidence was insufficient to persuade the court that plaintiff suffered any damages; thus, no damages would be awarded except for costs of suit.
Judgment was entered on October 1, 2007, and notice of entry of judgment was served on October 19, 2007. Defendants timely appealed.
DISCUSSION
Defendants make several contentions on appeal.
First, defendants contend that the trial court erred in finding that they did not have an easement in the disputed parcel. Specifically, defendants argue that the trial court erred in crediting plaintiff’s testimony that neither he nor his wife had never transferred the disputed parcel to them.
Second, defendants urge that the trial court abused its discretion by ordering them to remove the encroaching wall without considering the “relative hardships” to the parties.
I. Easement
Defendants claim that the trial court erred in concluding that they had not acquired an easement in the disputed parcel. Although it is not entirely clear, they appear to be contending that their open use of plaintiff’s land over the last 14 years created a prescriptive easement. We disagree.
“‘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.) The term ‘adverse use’ ‘means only that the owner has not expressly consented to [the use] by lease or license . . . .’ (E.g., Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 . . . .) Whether the elements of prescriptive use have been established is ordinarily a question of fact, reviewed under the substantial evidence standard. (Ibid.)” (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1249-1250.)
To establish a prescriptive easement in the disputed parcel, therefore, defendants had to establish, among other things, that their use was “adverse”—i.e., that plaintiff and his wife had not consented to it. Defendants’ evidence at trial, however, was precisely to the contrary: Defendants testified that plaintiff and his wife had expressly agreed to their use of the parcel and, indeed, had accepted payment for it. Such testimony fundamentally undermined defendants’ claim to a prescriptive easement.
Moreover, even if defendants had been able to establish all of the elements of a prescriptive easement, they still would not be entitled to the relief they seek. They are asking for an exclusive prescriptive easement. Defendants want to keep the current wall intact and continue to utilize plaintiff’s land as their storage area. This would, as a practical matter, keep plaintiff from using his property. An exclusive prescriptive easement “will not be granted in a case (like this) involving a garden-variety residential boundary encroachment.” (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093.)
For these reasons, we conclude that the trial court did not err in finding that defendants had not established a prescriptive easement in the disputed parcel.
II. “Relative Hardships”
Defendants also contend that the trial court abused its discretion by ordering them to remove the encroaching wall without considering the “relative hardships” to the parties, as discussed in Christensen v. Tucker (1952) 114 Cal.App.2d 554. 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. (11 Witkin, [Summary of Cal. Law (9th ed. 1990)] Equity, § 156, at p. 835.)” (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 759.)
Based on the record we have before us, it appears that defendants did not raise the “relative hardships” issue in the trial court. Accordingly, it is forfeited on appeal. “‘“‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]’” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fns. omitted.) “Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. . . .” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.)’ (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830.)” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) By failing to raise the “relative hardships” issue in the trial court, defendants forfeited this claim on appeal.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.