Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CVCV050000475
RAYE, J.Plaintiff Cletius Rogers has no access to his 26-acre parcel of land in Yuba County as a result of the summary judgment granted defendant Regents of the University of California (University) based on the University’s defense of laches to a declaratory relief action to establish an easement. The trial court found plaintiff’s 26-year delay in reinstituting litigation to assert his right to use a road traversing University property for ingress and egress was unreasonable and, as a result, the University suffered prejudice because potential knowledgeable witnesses had died and the University was forced to defend the action at public expense for a second time. Our review is de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67-68 (Johnson).)
We are confronted with two questions. Is laches a possible defense to the establishment of an easement? If so, did plaintiff’s delay in filing his complaint constitute laches as a matter of law? Although we reject plaintiff’s inflexible notion that laches can never be a defense to the establishment of an easement that arises by operation of law, we conclude the University did not establish the requisite prejudice to sustain a finding of laches. We also reject a new theory raised by the University for the first time on appeal. We reverse the judgment and remand to the trial court for further proceedings.
FACTS
The facts relevant to the trial court’s ruling on laches can be simply stated.
In 1960 the University purchased over 5,000 acres in Yuba County for a research facility known as the Sierra Foothills Range Extension Center (Center). The University conducts agriculture, forestry, and livestock experiments at the Center. A roadway runs through the Center property.
In 1972 plaintiff Cletius Rogers purchased land on the north and south banks of the Yuba River. This lawsuit involves the 26 acres he owns on the north bank, which is bounded on three sides by the Yuba River and on the north side by the University’s property. For approximately two years Rogers used the road across the Center for ingress and egress to his property. But in approximately 1975 the University locked the gates that had been installed in 1970 to prevent use of the road in order to protect sensitive crops.
In 1976 Rogers filed a declaratory relief action requesting the court to protect his easement across the Center property. He abandoned the lawsuit, explaining, many years later in a declaration filed in support of his motion for summary adjudication in the instant case, that he “was forced to abandon the litigation against the [University] due to financial constraints and military obligations. My attorney of record withdrew while I was out of the Country. No judgment or dismissal was ever issued in that matter to the best of my knowledge.” Similarly, his lawyer justified his delay at the hearing on the motion for summary adjudication as follows: “[H]e brought a lawsuit that he had to drop out of because of costs, because he was out of the country as explained in his deposition, he was on military duty, he was in Japan. [¶] During the 1980s he tried to work with the [University] to acquire a license . . . . [¶] . . . [¶] And then he brought the present lawsuit. It appears to me that, you know, he did more than what would be required under any sort of, you know, reasonable person’s standard. He’s spent a lot of time, a lot of money, trying to get access to that property. [¶] During the 1990’s he tried to sell the property as part of trying to remedy the situation and found that nobody wanted to buy a property that didn’t have access.”
In the late 1970’s, plaintiff sought to grade the bed of the Yuba River in an attempt to cross the river during low river flows from his property on the south side of the river. He was cited by the California Department of Fish and Game and thus was prevented from any future use of the riverbed for access.
In the mid-1980’s a real estate agent on plaintiff’s behalf requested the University’s permission to cross the University property to reach plaintiff’s north parcel. The agent was denied access. The University has been steadfast in its refusal to allow Rogers to use the road.
The University does, however, allow others to use the road for educational and recreational purposes. Members of the public have utilized the road for turkey hunts, timber harvesting, deer hunts, grazing and watering cattle, fishing, canoeing, insect collecting, and overnight camping. Individual members of the University staff in conjunction with various environmentalists formed a foundation to conserve property along the Yuba River by purchasing parcels adjacent to the river; the foundation was interested in plaintiff’s acreage. Plaintiff argued in the trial court that the University’s motive for denying him the use of the road was to depress the value of the property and thereby to enable the foundation to purchase it.
The trial court rejected plaintiff’s justifications for the delay. It pointed out that, contrary to his lawyer’s representation at the hearing on the motion for summary judgment, there was no evidence he had been in Japan. More damaging yet, the court found plaintiff’s declaration at odds with his deposition. The court stated, “It is untrue, as implied in both the argument and declaration, that counsel withdrew while the plaintiff was on active duty and deployed overseas. Rather, Mr. Rogers had retired from the military and was out of the country, in Canada, pursuing his mining avocation . . . .”
The court concluded: “Because Mr. Rogers’ declaration contradicts his deposition testimony as to the reasons why the 1976 litigation was not prosecuted to completion, and the activities undertaken to try to obtain a license from the Regents, the Court declines to consider the declaration. D’Amico v. Board of Medical Examiners (1974) 11 C[al].3d 1, 21.
“In short, the record shows that the plaintiff did not pursue his claimed rights because the economic rationale for purchasing the property in the first place, construction of the Narrows Dam, had evaporated. The facts, as testified to in the plaintiff’s deposition, show that the plaintiff did practically nothing to protect his claimed right from 1979 to 2005. On the undisputed facts, the Court determines that, as a matter of law there is no valid excuse for the delay in the plaintiff pursuing his claim.”
Although the court provided a detailed and persuasive analysis of plaintiff’s conduct, it provided only a brief description of the prejudice suffered by the University, noting “the death of knowledgeable witnesses shows the existence of prejudice,” and added its own observation that “the expense to the taxpayers of defending the same litigation twice” also constituted prejudice.
Plaintiffs Rogers and Charles Vertrees, who owns an option with the right of first refusal to purchase Rogers’s interest in the property, appeal the judgment.
The University, in a footnote, for the first time challenges Vertrees’s standing to bring the underlying claim. The University argues that an optionee is not a real party in interest, citing a 1927 case in which the court commented that an optionee does not acquire “any actual interest in the property itself.” (Ludy v. Zumwalt (1927) 85 Cal.App. 119, 130-131.) It does not cite any authority for the pivotal question whether an optionee can have standing based on its inchoate interest in the property. In the absence of a fully developed argument punctuated by compelling authority, we feel no compulsion to do the University’s homework at this late stage. We do note that the owner of an unexercised option has a valuable property right that, if taken by the government by eminent domain, is compensable. (County of San Diego v. Miller (1975) 13 Cal.3d 684.) This runs counter to the University’s brief footnote that such a valuable property does not confer standing on an optionee.
DISCUSSION
I.
Is Laches a Possible Defense to the Establishment of an Easement?
The operative complaint requested declaratory relief for an easement by necessity, a public right-of-way, a private easement, an easement by implication, and an easement in equity. As to each theory for the establishment of an easement, plaintiff asked the court to permanently enjoin the University from interfering with the easement. Plaintiff asserts that laches is not a defense to the establishment of an easement that arises by operation of law, and thus, the court erred by finding that laches barred his claim of an easement by necessity, a public right-of-way, a private easement, and an easement by implication. He argues most vehemently that laches can never bar an easement by necessity.
Plaintiff’s argument rests on a faulty premise and inapposite authority. He contends that laches, an equitable defense, is not available in an action at law. His premise is that his first four causes of action assert easements that arise by operation of law, and therefore his claims are actions at law presenting exclusively legal questions. By using a hodgepodge of cases distinct both factually and legally from the case before us, he cribs together a novel, hard-and-fast rule that laches is not a defense to easements that arise by operation of law. His cases, while certainly sound on the facts and issues presented, bear little relevance to the issue before us.
Blue Cross of Northern California v. Cory (1981) 120 Cal.App.3d 723 involved a claim by the State Controller for the recovery of unclaimed money. In that context, the court recited the unremarkable proposition that “[t]he doctrine of laches applies in equitable actions alone.” (Id. at p. 743.) Nor did the single cause of action for declaratory relief contained in the cross-complaint make laches available. (Id. at p. 744.) There was no easement at issue in Blue Cross. Similarly, the underlying claim in Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424 involved a claim for damages, and therefore the court properly observed that a declaratory relief action is not subject to laches when the underlying nature of the claim arises out of an action at law. (Id. at p. 439.)
Plaintiff directs us to this court’s own Kellogg v. Garcia (2002) 102 Cal.App.4th 796 (Kellogg), a case that did involve an easement by necessity but did not involve laches. Responding to plaintiff’s reliance on Kellogg, the trial court stated: “Plaintiffs mischaracterize what their authorities state, as Kellogg most certainly does not hold that actions relating to easements by necessity are legal actions. While Kellogg can be cited, 803, for the proposition that easements by necessity arise by operation of law, it does not follow perforce that litigation relating to the same are legal actions. Declaratory relief actions, such as this, are equitable actions.” We agree.
It is true, as the trial court recognized, that in reiterating the basic elements of an easement by necessity we quoted an earlier case in stating: “‘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.’” (Kellogg, supra, 102 Cal.App.4th at p. 803, quoting Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049.) As the trial court astutely observed, however, the mere fact that a right arises by operation of law does not determine the nature of the action.
Determining the nature of the action is not always a straightforward exercise. We must look to “[t]he allegations of the pleading and the relief sought [to] establish the character of the action.” (St. James Church v. Superior Court (1955) 135 Cal.App.2d 352, 356.) When certain facts “are neither legal or equitable,” the court must look to the “relief sought.” (Dills v. Delira Corp. (1956) 145 Cal.App.2d 124, 128 (Dills).) And in cases seeking declaratory or injunctive relief, the case is said to be equitable in nature. (Vesper v. Forest Lawn Cemetery Assn. (1937) 20 Cal.App.2d 157, 163-164; Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1190.)
The University argues that laches is available as a defense in this case precisely because plaintiff sought a permanent injunction as an adjunct to his request for declaratory relief. In the University’s view, plaintiff’s claim is, at its essence, equitable in nature and therefore subject to the equitable defense of laches. The University’s position is hardly revolutionary. Historically, as the University points out, requests for injunctive relief support the application of laches against causes of action seeking to establish easement rights. (Ocean Shore Railroad Co. v. Doelger (1954) 127 Cal.App.2d 392, 403-404; Frabotta v. Alencastre (1960) 182 Cal.App.2d 679, 685; Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 433.) Plaintiff makes a feeble attempt to distinguish these cases but fails to rebut the fundamental principle that laches can bar the establishment of an easement.
Plaintiff hones his objection to the application of laches to one particular type of easement -- an easement by necessity. He argues there is no case applying laches as a defense to an easement by necessity and, from his vantage point, for good reason. He argues that an easement by necessity is a floating concept until its location is fixed by judicial decree, and as a consequence, neither the time nor prejudice elements of laches can accrue until that point in time.
Two cases do, in fact, suggest the possibility that laches can be used as a defense to establishment of an easement by necessity. In Lichty v. Sickels (1983) 149 Cal.App.3d 696 (Lichty), the Court of Appeal held that the statute of limitations does not apply to an action for an easement by necessity based on the strong public “policy of freeing up land for beneficial use.” (Id. at p. 703.) But the court warned the lackadaisical property owner, “‘Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant.’” (Ibid.) In conclusion, the court emphasized, “Nothing we say, of course, affects any assertions pertaining to issues such as the creation or continued existence of the easement by necessity, or laches [citation], that Sickles may seek to establish factually at a trial.” (Id. at p. 704.)
A trial court in North Carolina granted a grantee’s motion for summary judgment based on the doctrine of laches. (Cieszko v. Clark (1988) 92 N.C. App. 290, 292 [374 S.E.2d 456, 457] (Cieszko).) As in the case before us, the judgment meant that the claimant had no access to his land. In Cieszko, the plaintiffs argued, as here, that laches cannot bar a claim for an easement by necessity. The North Carolina Court of Appeals wrote plainly: “We do not accept this contention. Easements by necessity cannot be lost through mere misuse over a period of time. [Citation.] The doctrine of laches, however, is not based upon mere passage of time; it will not bar a claim unless the delay is (i) unreasonable and (ii) injurious or prejudicial to the party asserting the defense. [Citation.] Whether a delay constitutes laches depends upon the facts and circumstances of each case. [Citation.] Therefore, we decline to hold that laches may never bar a claim for an easement by necessity.” (Id. at pp. 460-461.) The Court of Appeals reversed the summary judgment, finding triable issues of fact whether the grantor’s delay was unreasonable and whether the grantees suffered the requisite prejudice. (Id. at p. 461.)
The University has not cited a case, and we have not found any, where laches was applied on the facts to bar an easement by necessity. In Lichty, laches was not at issue, and in Cieszko, the plaintiffs failed to demonstrate laches as a matter of law. In both cases, the reversal of the summary judgment gave the plaintiffs a further opportunity to prove their claim of laches. We acknowledge the obvious limitations of both cases: in Lichty, the issue of laches was dicta, and Cieszko is not binding authority in our court. Nevertheless, the reasoning in both cases is sound. We reject plaintiff’s invitation to be the first court to announce that laches can never apply to an action to establish an easement by necessity.
The conclusion we reach is rather mundane. Laches is available when an action is equitable in nature, and here, as we explained above, plaintiff seeks equitable relief in asking us to enjoin the University from interfering with his easement. Moreover, the court properly and efficiently considered the equitable defense first. (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671; Dills, supra, 145 Cal.App.2d at p. 129.) Courts have routinely applied laches in cases involving easements and the same logic applies to easements by necessity. It may be, as we will discuss below, that the University cannot sustain its burden of proving laches as a matter of law in cases involving an easement by necessity. But that is not to say the University should be precluded from attempting to make a sufficient factual showing. We simply conclude that when, as here, a plaintiff seeks equitable relief while attempting to establish an easement, a defendant has the opportunity to prove that laches bars the action even if the easement is one that arises by operation of law.
II.
Did the University Sustain Its Burden of Proving Prejudice as a Matter of Law?
We have no quarrel with the trial court’s conclusion that plaintiff’s delay was unreasonable. But delay alone does not constitute laches. Rather, equity intervenes when delay results in prejudice. (Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29, 38-39.) The prejudice may be factual in nature or compromise the presentation of a defense. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 605, overruled on other grounds in San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402-403.) But “[p]rejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue.” (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.)
These principles put us in a pickle. The University presupposes an obligation to demonstrate prejudice and, indeed, offers a superficially alluring argument -- the death of key witnesses. The trial court, without explanation, accepted the University’s suggestion that the death of three witnesses compromised its defense. Given the troublesome fact that plaintiff delayed bringing his claim for over 25 years, it is tempting to presume prejudice from the death of any witnesses. But this, as the cases instruct, we cannot do. We therefore must carefully scrutinize the evidence offered by the University to carry its burden of proving prejudice.
The University does not argue that plaintiff’s acquiescence in the absence of prejudice is sufficient to demonstrate laches. We therefore do not address the significance of the disjunctive used by the Supreme Court in describing the elements of laches: “‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’” (Johnson, supra, 24 Cal.4th at p. 68, quoting Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359.)
First, we observe that the University has been very vague about prejudice to the actual operation of the Center. It alludes to the sensitive experiments in agriculture, forestry, and livestock it conducts on the property, but it fails to tell us anything about the experiments themselves, where they are located, and how the use of the road would compromise them. The University has also failed to provide any kind of chronology on the use of the property, documenting if and how plaintiff’s acquiescence induced it to alter or enlarge its operations. The best evidence the University offers is its concern that “[i]ncreased use of Forbes Ranch Road would create security risks for valuable research projects.” Thus we are left to weigh the possible, yet elusive, security risk against the certainty that plaintiff will have no access to his property in the absence of the claimed easement. And the University has failed to explain how that risk is any greater today than it was in 1975 when the University first blocked plaintiff’s access and how plaintiff’s forbearance enhanced the University’s security concerns.
In the absence of a more concrete demonstration as to how plaintiff’s delay resulted in prejudice to the Center itself, we must confront the prejudice the trial court accepted at face value; that is, the death of the three witnesses. We certainly accept the University’s premise that if plaintiff’s delay precluded it from proving a viable defense because of the death of key witnesses, it would have suffered the kind of prejudice necessary to sustain laches. But who are these witnesses, what testimony could they have offered, how was that testimony essential to the defense, and what other defense witnesses were available? The University offers little specificity and little argument to demonstrate how the witnesses’ demise torpedoed the defense.
The University identifies two former employees, both of whom worked at the Center. Paul Rowell was a former director from 1975 to 1983 and purportedly dealt with plaintiff regarding his initial request for a right-of-way. According to his successor, Michael Connor, Rowell also worked with Don Springsteen, the superintendent of agriculture, about the right-of-way. On appeal, the University argues, “These men would have been material witnesses to circumstances refuting the existence of the claimed easements” and goes on to complain that it had lost the testimony of its “most knowledgeable witnesses.” The University does not explain what kind of circumstances would refute the existence of the easements. Particularly with reference to an easement by necessity, it is difficult to speculate on what testimony the witnesses could have offered to demonstrate plaintiff no longer needed ingress and egress. As to conversations they might have had with plaintiff in the mid-1970s when the University began to block his access, we are left to conjecture how their perceptions mattered. In short, as plaintiff argues, there is no evidence creating a nexus between plaintiff’s causes of action and the University’s claim of prejudice because of the unavailability of these two former employees.
Moreover, two other knowledgeable employees were available and did offer evidence by way of deposition and declarations. David Labadie, principal superintendent of agriculture from 1962 to 2003, as well as Michael Connor, director of the Center from 1983 to 2005, both testified in support of the University. Yet the University fails to explain in what ways their testimony was deficient and how Rowell and Springsteen could have provided material information their successors lacked.
The other missing witness was plaintiff’s real estate agent, who, according to the University, might have rebutted plaintiff’s claim that the real estate agent told him he had an easement. On appeal, plaintiff reiterates that any testimony as to the parties’ intent in the 1970’s is irrelevant since it was the parties’ intent at the time of the severance of the title that determines the validity of a claim of an easement by necessity. Nor is the testimony relevant to the severance issue for the deeds dating back to the early 20th century.
The University does suggest that the real estate agent’s testimony would have helped in its defense against a claim of an implied easement. But in the two cases cited, Day v. Robison (1955) 131 Cal.App.2d 622 and Horowitz v. Noble (1978) 79 Cal.App.3d 120, the implied easements rested primarily on evidence contained in maps or from prior use and only incidentally from remarks made by real estate agents or others. While the real estate agent’s testimony might have been relevant to establishing the facts and circumstances at the time plaintiff purchased the property, we conclude the absence of his testimony would not have derailed the defense or seriously jeopardized the University’s resistance to an implied easement. In the grand scheme of the evidentiary basis upon which an easement would have been implied by operation of law, we believe the possibility the real estate agent would have testified he did not represent that plaintiff could have used the road would have played a de minimis role in the case. In laches vernacular, his absence did not sufficiently prejudice the University’s defense to bar a claim of laches.
III.
Can We Affirm the Judgment on the Alternative Theory, Advanced for the First Time on Appeal, That the University Acquired Exclusive Rights to the Easement by Prescription or Adverse Possession?
Perhaps anticipating the vulnerability of its laches defense, the University urges us to affirm the judgment on an alternative theory it argued in its motion for summary judgment and politely reminds us we can affirm a summary judgment on any correct legal theory argued below. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) The University’s argument on appeal is a blatant distortion of the argument advanced in the trial court. The record clearly belies the University’s revisionist account on appeal.
The University did not allege either prescription or adverse possession in its answer to the complaint, nor did it raise either one as a separate ground for summary judgment. In claiming these issues were raised below, the University cites to a portion of its points and authorities in which was buried the concept of a prescriptive easement but in a completely different context. In a section entitled “The Third Cause of Action Fails Because No Private Easement Exists in Favor of Plaintiffs,” the University argued that if plaintiff had acquired an implied easement or an easement by prescription, it was terminated by nonuse for a period of five years. The University did not allege, as it does now on appeal, that it had acquired the easement by prescription or adverse possession. “‘The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory upon appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. [Citation.]’” (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.) We reject the University’s attempt at bait and switch.
We therefore cannot address the merits of the University’s claim of adverse possession. Indeed, the scope of our ruling is quite narrow and the case is remanded to the trial court for further proceedings. In this appeal, we hold only that the University did not prove the necessary prejudice to sustain the defense of laches as a matter of law. We express no opinion as to the validity of its other defenses, including adverse possession or prescription. Although we do not condone plaintiff’s delay and uphold the court’s legal conclusion that the delay was unreasonable, we cannot presume prejudice from the passage of time, and the University has failed to demonstrate that the deaths of the named witnesses materially damaged its ability to prove its defenses. The University, to its credit, appears to reject the trial court’s gratuitous finding that the cost to the taxpayers of defending the action constituted the kind of prejudice embodied by laches. As a result, the case will be returned to the trial court for further proceedings.
DISPOSITION
The judgment is reversed and remanded. Plaintiff is entitled to costs on appeal.
I concur: HULL , J.
I concur in the majority opinion.
SIMS , Acting P. J.
I write separately to emphasize that our reversal of the summary judgment does not mean that the Regents cannot demonstrate the defense of laches at trial. A delay of 26 years is not to be sneezed at.
When a court adjudicates a motion for summary judgment, “The affidavits of the moving party are strictly construed, while those of the party opposing the motion are liberally construed, and doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion. [Citation.]” (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.) These rules frame our review of this case.
At trial, the Regents may well be able to make a fuller showing as to the prejudice suffered from the deaths of knowledgeable witnesses.
Moreover, on appeal the Regents argue, “The University was also Prejudiced by Appellants’ Acquiescence in the Developments of the SFREC.” I find this argument compelling. However, this theory of laches was not advanced in the trial court and plaintiffs had no opportunity to adduce evidence in opposition to the theory. The new theory is therefore not properly cognizable on appeal. (See San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1545.) It should be at trial.