SCV-252674; Savio v. Skelley

Plaintiff/Cross-defendant Dr. Edward F. Savio II moves for summary judgment or, in the alternative, summary adjudication of the first cause of action for Declaratory Relief (Existence and Scope of Prescriptive Easement on Savio Property). The motion was made in response to the cross-complaint filed on December 2, 2013. A First Amended Cross-Complaint was filed on June 18, 2014. Thus, technically, the motion is moot. However, cross-complainants have not objected and have instead filed opposition. Therefore, the court will consider the motion as it pertains to the First Amended Cross-Complaint.

Plaintiff/Cross-defendant’s motion is denied.

The facts provided to prove that cross-complainants had permission to use the land only establish that the father of plaintiff/cross-defendant Dr. Edward Savio II gave defendant/cross-complainant Eugene Skelley and “the family” permission to use the property. (See UMFs 1-9.) There is evidence that permission to use the property was withdrawn; plaintiff/cross-defendant later put up a fence to try to keep cross-complainants off the property. (See Oppo., Dec. of Richard Bobus, Ex. I, 71:20-22.)

With regard to whether the use was open and notorious, cross-defendants have only established that between 2003 and 2008, Eugene Skelley indicated that there was no way that Dr. Savio II knew that he was traveling the road on Savios’ property because the Savios had “deserted the place.” (UMF #11.) As cross-defendants have not addressed use from 1998 onwards, they have not met their burden on this issue. (See First Amended Cross-Complaint, ¶ 4.)

Cross-defendants have not provided sufficient authority or analysis of the facts to establish that the use was not sufficiently “continuous” or its location not sufficiently specific to support the creation of a prescriptive easement.

Cross-complainants are to submit a written order consistent with this ruling.