Opinion
G053894
09-22-2017
GARY SAUTER, Plaintiff and Respondent, v. SIBLING ASSOCIATES, LLC, et al., Defendants and Appellants.
Cozen O'Connor, Aaron M. McKown and Paula L. Zecchini for Defendants and Appellants. Law Offices of Randall S. Waier and Randall S. Waier for Plaintiff and Respondent.
ORDER MODIFYING JUDGMENT AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
The opinion filed on September 22, 2017, is hereby modified as follows:
On page 7, at the beginning of the second full paragraph, insert a new initial sentence, and in the same paragraph modify the last sentence, so the modified paragraph now reads:
Sibling also presented historical parking ordinances under which its uses already continuously had met or exceeded the city's minimum parking requirements. But the argument remained essentially the same: Sibling's tenants' uses always had filled the parking lot to its maximum capacity under their conditional use permits from the city. In
other words, Sibling claimed again, as it had before, that because its tenants' and its tenants' customers' parking needs already reached or exceeded the city's minimum on-site parking requirements under the conditional use permits the tenants had obtained to operate their respective businesses, a prescriptive easement allotting parking to Sauter would cause Sibling's tenants to fail to meet the city's on-site parking requirements under their existing use permits. Because Sibling simply presented more of the same evidence the trial court previously had found unconvincing to preclude Sauter's claimed easement based on excess parking, the court did not err in denying Sibling's motion to dissolve the injunction on this ground.
This modification does not change the judgment. Appellant's petition for rehearing is DENIED.
ARONSON, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00762324) OPINION Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed. Cozen O'Connor, Aaron M. McKown and Paula L. Zecchini for Defendants and Appellants. Law Offices of Randall S. Waier and Randall S. Waier for Plaintiff and Respondent.
* * *
Sibling Associates, LLC, and two of its tenants, Saffron Enterprises, Inc., doing business as Mayur Cuisine of India, and Arzalan "Jacob" Azillolahi, doing business as a Subway sandwich shop (collectively, Sibling Associates or Sibling), appeal the trial court's order denying their motion to dissolve a preliminary injunction. (Code Civ. Proc., § 533; all further statutory references are to this code unless noted; see also § 904.1, subd. (a)(6); Luckett v. Panos (2008) 161 Cal.App.4th 77, 85, 90 [order refusing to dissolve an injunction is appealable].) Sibling asserts the preliminary injunction Gary Sauter obtained pending trial on his claim of a prescriptive easement for parking on Sibling's property must be dissolved because no easement can be acquired in violation of city zoning ordinances governing parking. As we explain, the trial court did not err in denying Sibling's dissolution motion.
I
FACTUAL AND PROCEDURAL BACKGROUND
Sauter and Sibling Associates own neighboring commercial lots in the parking-strapped retail shopping and dining area along the Coast Highway in Corona del Mar. With no parking on his own parcel, Sauter sued Sibling to quiet title in at least a portion of Sibling's on-site parking lot by means of an alleged "non-exclusive prescriptive easement, burdening the Sibling Property." Sauter asserted he and his commercial tenants began their open, notorious, and adverse use of parking spaces on Sibling's property after Sauter acquired his lot in the early 1980's, and continued that use in an uninterrupted fashion for an unspecified period of five years in the next three decades, ripening into a prescriptive easement. The trial court denied Sauter's initial request for a temporary restraining order, but later, in February 2015, granted his motion for a preliminary injunction prohibiting Sibling and its tenants from "interfering with or obstructing Plainiff's, his tenants' and customers' ingress, egress, and parking . . . in the parking lot at issue, pending trial."
Fifteen months after Sibling's unsuccessful opposition to the preliminary injunction, Sibling filed in May 2016 the motion to dissolve the injunction that underlies this appeal. Sibling advanced two arguments to dissolve the injunction. First, Sibling asserted, as it had in opposing the preliminary injunction, that "at all times, the claimed prescriptive easement would have . . . violated the minimum parking requirements imposed by the city." (Underlining and capitalization removed.) Sibling observed that "[t]he amount of parking required by the City for businesses . . . has depended upon the type of business at issue as well as the . . . square footage of the business, or in the case of restaurants, the net public area . . . ." Sibling argued that "while the parking calculations varied" depending upon the needs of Sibling's various tenants during the prescriptive period Sauter asserted, "even the most favorable calculations to Sauter demonstrate that there was never sufficient excess parking on the Sibling Property to accommodate the minimum parking requirements of both properties." In other words, Sibling insisted Sauter could only take by prescription parking spaces on Sibling's lot in excess of Sibling's city-mandated minimum parking needs. In the absence of any excess parking capacity, Sibling argued Sauter's prescription claim necessarily failed because it violated the city ordinances governing Sibling's minimum parking requirements for Sibling's tenants.
Second, Sibling argued Sauter could not obtain a prescriptive easement in Sibling's parking lot because that would amount to off-site parking for Sauter's tenants, and city zoning ordinances during Sauter's alleged period of prescriptive use required city approval for off-site parking for commercial uses, which Sauter never obtained. Sibling submitted with its motion to dissolve the injunction a declaration by its "specialist in land use entitlement," Carol McDermott, detailing the history of the City of Newport Beach's parking ordinances on which Sibling relied. The parties agreed Newport Beach's zoning ordinances encompassed Corona del Mar, but disagreed on whether and how the particular parking requirements under those ordinances applied to their respective lots.
The trial court in its tentative ruling indicated it was inclined to grant Sibling's motion to dissolve the preliminary injunction. The tentative ruling stated: "[Sibling Associates] presented new facts to the Court of the City of Newport Beach Municipal Codes in effect [after 1973, during the claimed prescriptive period]; The Zoning Ordinances show a prescriptive easement would violate the Municipal Code; [Sauter] cannot show a likelihood of prevailing on the merits based on this information; [¶] Ms. McDermott's declaration is admissible only to the extent she describes the accuracy and correctness of the Zoning Ordinances in effect at the relevant times, but inadmissible as it attempts to state legal conclusions on the legal questions presented in the motion." The tentative ruling concluded: "Grant without prejudice to [Sauter's] seeking of another preliminary injunction upon applying for a permit or variance."
The same day the trial court posted its tentative ruling, Sauter filed with the court a "Rebuttal Declaration" by Sauter's attorney, attaching the deposition Sauter had just taken that week of Newport Beach's senior land use planner, James Campbell, who stated in the deposition that he was "very familiar" with the "parking lot at issue." Sauter's attorney explained in the declaration that Campbell "testified that Mr. Sauter did not need, at present, to obtain a 'parking waiver' for his continued use of [Sibling's] parking lot, since such use did not violate any zoning ordinance, and his property is considered 'nonconforming.'" (Original italics in declaration.) Campbell testified, "I'm not aware of [Sauter's specific] use, but if tenants from that property were parking on the other lot, I don't see that as a violation of the zoning code." (Italics deleted.) Campbell added that, while not "neighborly," he did not view it as a zoning violation even if Sauter instructed his tenants that their customers could use Sibling's parking lot. The declaration also noted Campbell "testified that it is not the City, or its zoning, which protects private parking lots — it is the 'people' who 'control their own parking lot.' [Citation.]" (Original italics.)
In light of Campbell's deposition testimony, the trial court continued the hearing on Sibling's motion to dissolve the preliminary injunction to allow Sibling to respond. After reviewing Sibling's response, the court in a tentative ruling posted before the rescheduled hearing explained it would deny the motion. The tentative stated: "Neither Ms. McDermott nor Mr. Campbell may express legal findings, but they may each state their opinions; Mr. Campbell's testimony is sufficient for this Court to require [that] the status quo be maintained to allow [Sauter] and [his tenants] to use the parking for their customers until the ultimate determination of the legal issues [is] made upon a trial of the merits." At the hearing, the trial court adopted the tentative as its final ruling in denying Sibling's motion, and Sibling now appeals.
Sibling also had filed a summary judgment motion, which was scheduled for a hearing in two months, and the trial date was three months away, but Sibling's attorney explained at the hearing it would appeal, stating, "It's a core issue in the case, so [this is] going to stay the case" pending appeal.
II
DISCUSSION
Sibling Associates contends the trial court erred in denying its motion to dissolve the preliminary injunction under section 533. That section provides a means to modify or dissolve an injunction where the facts or law underlying the injunction have changed, or in the interests of justice. Specifically, the statute provides, "In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order." (§ 533.) Whether an injunction should be dissolved rests in the trial court's sound discretion. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.) We review, however, pure questions of law de novo, such as the interpretation of a statute or ordinance. (People ex rel. Feuer v. Progressive Horizon, Inc. (2016) 248 Cal.App.4th 533, 540.)
As Sauter observes, Sibling only sought to dissolve the injunction on grounds that "there is a material change in the facts upon which the [i]njunction was granted." Sibling asserted in its moving papers below that the injunction should be dissolved because a prescriptive easement allotting parking in Sibling's lot to Sauter would violate city regulations requiring Siblings' tenants to have a certain minimum number of on-site parking spots, depending on the tenants' respective property uses. But this was the identical argument — albeit among many alternative arguments — on which Sibling earlier had opposed Sauter's request for a preliminary injunction at the outset of the case.
Specifically, in opposing the preliminary injunction, Sibling had argued that "[a]n easement cannot be granted for purposes that violate a conditional use permit, codes, and/or zoning regulations. [Citations.]" In advancing that argument, Sibling had noted that "the City of Newport Beach regulates the amount of parking space that owners of developed property must maintain depending on the type of tenancy involved," citing "Chapter 20.52.010 of the Municipal Code that includes a minimum number of parking spots." Relying on this provision, Sibling had opposed the preliminary injunction because its tenants' and its tenants' customers' parking needs already reached or exceeded the city's minimum parking requirements for its tenants' uses at the site, and therefore "an easement . . . to allow plaintiff, his tenants, and their untold number of customers to park in the . . . lot as plaintiff seeks" would violate the city's regulations requiring Sibling's tenants to demonstrate adequate parking for their needs.
The trial court implicitly rejected this argument in granting the preliminary injunction, but then, in later seeking to dissolve the preliminary injunction, Sibling simply made the same argument again. Specifically, Sibling argued that "while the parking calculations varied" depending upon the needs of Sibling's various tenants during the prescriptive period Sauter asserted, "even the most favorable calculations to Sauter demonstrate that there was never sufficient excess parking on the Sibling Property to accommodate the minimum parking requirements of both properties." (Italics added.) The only change in Siblings' argument was to engage in detailed calculations about how much its tenants would exceed their minimum parking needs during various segments of the prescriptive period if Sauter had a parking easement.
But the argument remained essentially the same: Sibling's tenants' uses always had filled the parking lot to its maximum capacity under their conditional use permits from the city. In other words, Sibling claimed again, as it had before, that because its tenants' and its tenants' customers' parking needs already reached or exceeded the city's minimum on-site parking requirements under the conditional use permits the tenants had obtained to operate their respective businesses, a prescriptive easement allotting parking to Sauter would cause Sibling's tenants to fail to meet the city's on-site parking requirements under their existing use permits. Because Sibling did not assert there had been any change in the core law or facts concerning this aspect of Sibling's opposition to the preliminary injunction, the court did no err in denying Sibling's motion to dissolve the injunction on this ground.
We therefore turn to Sibling's alternative argument in seeking to dissolve the injunction below. Specifically, Sibling asserts Sauter could not lawfully obtain a prescriptive easement in Sibling's parking lot because that would amount to off-site parking for Sauter's tenants, and city zoning ordinances during Sauter's alleged period of prescriptive use required city approval for off-site parking for commercial uses, which Sauter never obtained.
Sauter contends the off-street parking ordinances that Sibling invokes fell outside the scope of section 533, and therefore the trial court did not abuse its discretion in rejecting Sibling's motion to dissolve the preliminary injunction. Sauter relies on the fact that Sibling itself asserted those off-street parking rules had been in force the entire prescriptive period, including when Sibling earlier opposed the preliminary injunction. In other words, Sauter argues the ordinances did not implicate a new set of facts or a change in the law for the trial court to consider dissolving the preliminary injunction. Sibling justified its failure to earlier assert the off-street parking ordinances because, at the time it opposed Sauter's request for a preliminary injunction, Sibling "had not been able to obtain any of the historical versions of the City's parking ordinances" to determine they applied during the prescriptive period. In reaching the merits of Sibling's dissolution motion, the trial court concluded Sibling met its burden to show a change in applicable facts from what the court previously had considered in issuing the preliminary injunction. Specifically, Sibling "presented new facts to the Court of the City of Newport Beach Municipal Codes in effect" at the relevant times. We need not resolve whether the court was correct because, as we explain, even if Sibling's new evidence of different governing parking regulations constituted a change in the evidence within the meaning of section 533, Sibling's challenge based on the off-street parking regulations still fails. --------
"A prescriptive easement is established by use of land that is (1) open and notorious, (2) continuous and uninterrupted, and (3) adverse to the true owner, and that is all of these things (4) for a period of five years. [Citations.]" (Windsor Pacific v. Samwood Co. (2013) 213 Cal.App.4th 263, 270.) These elements "are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement." (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431.)
The "open and notorious" element requires a use sufficiently "visible . . . so that anyone viewing the servient tenement would discover the easement." (6 Miller & Starr, Cal. Real Estate (4th ed. 2017) § 15:34 (Miller & Starr).) Similarly, the "continuous use" element "'depends on the nature of the easement. It need not be used every day during the prescriptive period. The use is sufficient if it occurs on those occasions when it is necessary for the convenience of the user.' [Citation.]" (Fogerty v. State of California (1986) 187 Cal.App.3d 224, 239.) A use is "adverse" or "under a claim of right" if undertaken without the landowner's explicit or implicit permission. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450.) "'A prescriptive title cannot arise . . . when it rests upon a license or mere neighborly accommodation.'" (Case v. Uridge (1960) 180 Cal.App.2d 1, 8; accord, Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572 (Warsaw).)
The "party seeking to establish a prescriptive easement has the burden of proof by clear and convincing evidence. [Citation.]" (Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310.) Whether the claimant has established each element is a question of fact to be determined from all the surrounding circumstances, including the relation of the parties, their conduct and "the situation of the property." (Clarke v. Clarke (1901) 133 Cal. 667, 670; Warsaw, supra, 35 Cal.3d at p. 572; Miller & Starr, supra, § 15:32, pp. 15-120 to 15-121.)
As an additional factor, Sibling is correct that an easement cannot validly be formed or employed for a use violating local zoning ordinances. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1490, 1497 [adjoining property owners' declaration of a reciprocal easement in an alleyway between them did not allow the commercial owner to use the residentially zoned half of the alley for commercial purposes]; City and County of San Francisco v. Safeway Stores, Inc. (1957) 150 Cal.App.2d 327, 332 [asserted "traffic easement" did not entitle defendant to "use its interest in violation of a zoning ordinance"].)
Sibling also appears to be correct that the city has long regulated commercial property owners' use of off-street parking on a separate lot. But Sibling overlooks that those regulations expressly state they apply in the context of meeting the "required parking" prescribed under city rules for the property owner's commercial use or uses. For example, the very ordinance Sibling cites as erecting a bar to Sauter's prescriptive easement states: "Conditional Use Permit Required. Approval of a conditional use permit shall be required for a parking facility or any portion of required parking that is not located on the same site it is intended to serve." (Newport Beach Municipal Zoning Code (NBMZC), § 20.40.100(A), italics added.)
The requisite findings for the city zoning commission to grant an off-site conditional use parking permit similarly indicate the permit is required where the purpose is to meet the commercial property owner's minimum parking requirements under city regulations. Those findings include: "Findings. In order to approve a conditional use permit for an off-site parking facility, the Commission shall make all of the following findings . . . : [¶] 1. The parking facility is located within a convenient distance to the use it is intended to serve; [¶] 2. On-street parking is not being counted towards meeting parking requirements; [¶] 3. Use of the parking facility will not create undue traffic hazards or impacts in the surrounding area; and [¶] 4. The parking facility will be permanently available, marked, and maintained for the use it is intended to serve." (NBMZC, § 20.40.100(B).)
Campbell explained in his testimony, and Sibling offered no conflicting evidence, that Sauter's property had been grandfathered in under the zoning code as a nonconforming lot for which no parking, on-site or otherwise, need be shown. In other words, neither Sauter nor his tenants had to demonstrate they met the city's minimum parking requirements. As Campbell phrased it, the commercial uses at Sauter's lot did not "require any parking because it's a nonconforming building without parking." (Italics added.) Put another way, he stated, "I'm saying they're nonconforming to current parking requirements," but that did not mean "they're in violation" of city parking regulations. To the contrary, nonconforming parcels typically utilize on-street parking and nearby public parking lots for their tenants' and customers' parking needs, and need not demonstrate that parking is available or sufficient for their commercial uses, nor that they have secured other parking. Sibling does not suggest a nonconforming lot like Sauter's has ever been required to meet minimum parking requirements subsequently imposed on other lots, nor that the owner had to apply for a permit demonstrating it meets those minimum requirements; indeed, that is the very reason Sauter's lot is deemed "nonconforming."
Campbell explained that when the owner of a nonconforming commercial lot wants to change the approved use or uses on the property, any "intensification" in the proposed use of the property may result in the property owner having to meet generally-applicable minimum parking requirements. But nothing in the record suggests Sauter has initiated any change in the uses on his lot, nor that it would be a relevant consideration in relation to Sauter's prescriptive claim against Sibling. As Campbell explained, "the zoning code right now does not require any parking [for Sauter's uses] because it's a nonconforming building without parking."
Consequently, when Sibling's attorney asked Campbell at his deposition whether Sauter was required to apply for city approval "to have his tenants use the off-site parking" or secure an agreement with Sibling for off-site parking, Campbell answered "that doesn't make much sense to me" because "we're dealing with a circumstance that the zoning code does not provide for." As Campbell explained, "[W]hen we're talking about required parking of the zoning code, the answer is you need to have an [approved] off-site parking agreement in order to make that happen." But that was not the case here, where "no parking is required" for Sauter's nonconforming lot.
Because Campbell's testimony supports the conclusion Sauter's property qualified as a nonconforming lot for which no city-mandated minimum parking requirement applied, and therefore there would be no occasion for the city to require Sauter to seek approval for off-site parking, the trial court correctly rejected Sibling's claim that Sauter's asserted prescriptive easement failed because it violated local zoning ordinances requiring a permit for off-site parking.
III
DISPOSITION
The trial court's order denying Sibling Associates' motion to dissolve the preliminary injunction is affirmed. Sauter is entitled to his costs on appeal.
ARONSON, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.