Case Number: BC549176    Hearing Date: September 04, 2014    Dept: 82

Christopher Barreca; and Mona Heinze-Barreca
v.
Marcello D’Andrea; Luisa D’Andrea; and Does 1 through

Tentative Decision on OSC re PI: Granted

Through a stipulated order to show cause, Plaintiffs Christopher Barreca and Mona Heinze-Barreca move to enjoin Defendants Marcello D’Andrea and Luisa D’Andrea from:

1. Interfering with, blocking and/or restricting, in any fashion, Plaintiffs, Plaintiffs’ guests and invitees, Plaintiffs’ contractors and/or other workers or persons with business on Plaintiffs’ property (24280 Logdell Avenue) from using the access road (the “Access Road”) off Logdell Avenue that traverses in part across Defendants’ property for ingress to and egress from Plaintiffs’ home, garage, and parking area on Parcel No. 2, including, but not limited to, installing any gate across the Access Road, parking Defendants’ cars on the Access Road in a manner designed to prevent Plaintiffs, Plaintiffs’ guests and invitees, Plaintiffs’ contractors and/or other workers or persons, from leaving Plaintiffs’ property.

2. Any act of demolition, destruction, excavation, or removal of the planter/retaining wall (the “Planter”) attached to Plaintiff’s home, including any part of the Planter that may encroach on Defendants’ property, including, but not limited to, any destructive testing of the walls of the Planter, including the retaining walls, and any geotechnical or geological testing of the soil or subsoil within the confines of the Planter.

In turn, Defendants move to enjoin Plaintiffs from parking on Defendants’ property, except that they may use the area in front of the Plaintiffs’ garage for loading and unloading only.

This matter was continued from July 31, 2014 to September 4, 2014 to allow Defendants to submit supplemental papers. Having considered Defendants’ August 25, 2014 supplemental papers, the Court rules as follows:

Evidentiary Objections

Evidentiary objections must be specific and accompanied by a reasonable, definite statement of the grounds. See Evidence Code § 353 (a) (objections must “make clear the specific ground of the objection”); People v. Porter, (1947) 82 Cal. App.2d 585, 588 (“An objection must usually be specific and point out the ground or grounds relied upon in a manner sufficient to advise the trial court and opposing counsel of the alleged defect so that the ruling may be made understandingly and the objection obviated if possible.”). With these principles in mind, if a party objected to several sentences or an entire paragraph in a declaration and one of the sentences is not objectionable, or if a party raised a hearsay objection but the challenged statement could be offered for a non-hearsay purpose, the Court overruled the objection.

Plaintiffs’ Objections

The Court sustains Plaintiffs’ objections Nos. 21-22, 25, 31, and 32, to the declaration of Marcello D’Andrea filed on July 18, 2014. The Court overrules the remaining objections.

Defendants’ Objections

The Court sustains Defendants’ objections Nos. 1, 4, and 9-12, to the declaration of Christopher Barreca filed on June 20, 2014. The Court overrules the remaining objections.

The Court sustains Defendants’ objections to the declaration of Mona Heinze-Barreca filed on June 20, 2014.

The Court overrules Defendants’ objections to the declaration of Priscilla Chelson filed on July 24, 2014.

Request for Judicial Notice

The Court grants Plaintiffs’ unopposed request for judicial.

Statement of the Case

On May 15, 1998, Plaintiffs purchased the property located at 24280 Logdell Avenue, Newhall, California 91321 (“Plaintiffs’ Property”) from the Chelsons. (Request for Judicial Notice (“RJN”) Exhibit 1; June 20, 2014 Christopher Barreca (“June 20 Christopher”) Decl., ¶ 3). On September 16, 2010, Defendants purchased the property located at 24278 Lodgell Avenue, Newhall, California 91321 (“Defendants’ Property”) from the Teskes. (RJN Exhibit 4).
Before the parties’ predecessors purchased the subject properties, the two parcels comprised a single, undivided parcel. (RJN Exhibit 9). The parcels were split into separate properties in 1979. (RJN Exhibit 10).

This dispute arises out of the parties’ use of an access road that originates on the east side of Logdell Avenue and crosses over a northern portion of Defendants’ Property (the “Access Road”). (See RJN Exhibit 10; July 20 Christopher Decl., ¶ 7, Exhibit 1). Although Defendants own the property over which the Access Road runs, the road is used by both parties to park their cars and to access their respective garages and other areas of their properties. (June 20 Christopher Decl., ¶¶ 4, 7; July 18 Marcello Decl., ¶ 5).

The Access Road runs east to west and splits into two legs near the entrances to the garages for Plaintiffs’ and Defendants’ homes. (July 24 Christopher Decl., ¶ 7, Exhibit 1). At the split, one leg continues to run east to west along the Plaintiffs’ front yard for approximately 30 feet until it dead ends in front of the Plaintiffs’ side yard on the northern side of their property (the “North Spur”). (Id., ¶ 7, Exhibit 1; July 18 Marcello Decl., ¶ 10). The second leg veers right and provides access to the parties’ respective garages (the “South Spur”). (July 24 Christopher Decl., ¶ 7, Exhibit 1). Immediately after entering the South Spur, Plaintiffs enter their garage by making a 90-degree left-hand turn, and Defendants enter their garage by making a 90-degree right-hand turn. (See Id., ¶ 7, Exhibit 1). The eastern portion of the Access Road near its Logdell Avenue entrance contains a turnout on its southern side that Defendants use as a landing for their home. (July 18 Marcello Decl., ¶ 8, Exhibit C-5).

The physical divider for the split is a raised planter (the “Planter”) fronting the northern exterior wall of the Plaintiffs’ house. (See July 24 Christopher Decl., ¶ 7, Exhibit 1). The Planter is contained by a wall that extends several feet from the western wall of Plaintiffs’ house. (Id., ¶ 7, Exhibit 1). The wall then turns 90 degrees to the north and runs another several feet to the southern edge of the North Spur. (Id., ¶ 7, Exhibit 1). It then turns another 90 degrees to the east, running parallel to the North Spur until it reaches the edge of the Plaintiffs’ side yard, where it terminates. (See July 24 Christopher Decl., ¶ 7, Exhibit 1). Nearly the entire exterior wall of the Planter is located on Defendants’ Property. (See July 18 Marcello Decl., ¶ 7, Exhibit B; see also July 24 Christopher Decl., ¶ 7, Exhibit 1).

The Access Road Dispute

In 2012, Defendant Marcello began complaining about Plaintiffs’ use of the Access Road. (June 20 Christopher Decl., ¶ 8). Specifically, Defendant Marcello was upset about Plaintiffs allowing their friends and residential-business guests to use portions of the Access Road, including Defendants’ southern landing area, to park their cars. (Id., ¶ 8; July 18 Marcello Decl., ¶ 14). According to Plaintiffs, Defendant Marcello has approached several of Plaintiffs’ guests and threatened to have their cars towed if they continued to park in the Access Road. (June 20 Christopher Decl., ¶ 8).

In January 2013, the parties began discussing a possible negotiation concerning their rights to use the Access Road. (June 20 Christopher Decl., ¶ 9). After negotiations fell apart in March 2013, Defendants began parking their cars on the Access Road to prevent Plaintiffs and their guests from entering or exiting the road. (June 20 Christopher Decl., ¶¶ 9, 10, Exhibits 3 and 4).

The North Spur Dispute

Although it is owned by Defendants, Plaintiffs have used the North Spur, as well as the portion of their property fronting the North Spur, as parking space since they purchased their property in 1998. (July 24 Christopher Decl., ¶ 10; July 24 Mona Decl., ¶ 9). Before the Plaintiffs purchased their property, the Chelsons also used the North Spur as a parking area without any apparent dispute from Defendants’ predecessors, the Teskes. (See Chelson Decl., ¶¶ 4-6, 9, 11).

In March 2014, Plaintiffs removed a gate that fronted the north end of the North Spur and separated the North Spur from the Plaintiffs’ side yard. (July 28 Christopher Decl., ¶¶ 15-18). After removing the gate, Plaintiffs replaced the elevated paving that had existed in their side yard with flagstones that are flush with the North Spur’s paving. (Id., ¶ 17). Plaintiffs claim they removed the gate and repaved the side yard in response to Defendants’ complaints about Plaintiffs’ guests parking in the North Spur to provide the guests with access to parking space in their side yard. (Id., ¶ 16).

According to Plaintiffs, after they removed their gate, Defendants began threatening to construct their own gate across the North Spur in a location several feet in front of where Plaintiffs’ old gate had stood. (June 20, Christopher Decl., ¶ 16; July 28 Christopher Decl., ¶ 10; see also July 18 Marcello Decl., ¶ 11). Defendants claim that both parties used the parking area of the North Spur for parking. (August 24 Marcello Decl., ¶ 15).

The Planter Dispute

The Chelsons constructed the Planter a few years after they purchased Plaintiffs’ Property from Janil Inc. in 1981. (Chelson Decl., ¶¶ 7-8). The Chelsons built the Planter to prevent soil runoff from a dirt slope that fronted the western side of Plaintiffs’ Property. (Id., ¶ 7). Although Plaintiffs claim the Planter provides structural support for their home and is located atop their property’s main gas, water, and sewer lines, they do not provide structural plans for the Planter or an engineer’s analysis of the Planter’s structural-support capabilities. (See June 20 Christopher Decl., ¶ 18). Recently, Defendants contracted with USA Dig Alert to investigate whether critical utilities run under the Planter. (July 18 Marcello Decl., ¶¶ 19, 20, 23).

Defendants intend to remove the Planter to provide additional parking for their home. (July 18 Marcello Decl., ¶ 16). On March 28, 2014, Defendant Marcello sent Plaintiffs’ representative an email demanding that Plaintiffs remove the Planter within 60 days. (June 20 Christopher Decl., ¶ 20, Exhibit 7). Defendants have yet to remove the Planter.

The TRO

On June 20, 2014, the parties entered into a stipulated temporary restraining order (“TRO”) preventing Defendants from blocking Plaintiffs’ access to the Access Road, including the North and South Spurs. The TRO also prevents Plaintiffs from parking on Defendants’ property, except for loading and unloading in front of Plaintiffs’ garage.

Summary of Applicable Law

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. Major v. Miraverde Homeowners Ass’n., 7 Cal. App. 4th 618, 623 (1992). A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. Code Civ. Pro. §526(a)(4). The law generally presumes that real property is unique, and its loss cannot be compensated in money damages. Glynn v. Marquette, 152 Cal. App. 3d 277, 280 (1984).

In determining whether to issue a preliminary injunction, the trial court is to consider the likelihood that the plaintiff will prevail on the merits at trial and to weigh the interim harm to the plaintiff if the injunction is denied against the harm to the defendant if the injunction is granted. King v. Meese, 43 Cal. 3d 1217, 1226 (1987). A party seeking an injunction must demonstrate a reasonable probability of success on the merits. IT Corp. v. County of Imperial, 35 Cal.3d 63, 73-74 (1983).

Analysis

1. Plaintiffs are likely to prevail on the merits

a. The Access Road Prescriptive Easement

Plaintiffs contend that they are entitled to continue to use the Access Road, including the North Spur and the area fronting their garage, without interference from Defendants because they have acquired a prescriptive easement over Access Road.

“An easement involves primarily the privilege of doing a certain act on, or to the detriment of, another’s property. . . . An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership.” Mehdizadeh v. Mincer, (1996) 46 Cal.App.4th 1296, 1306, quoting Wright v. Best, (1942) 19 Cal.2d 368, 381. A prescriptive easement requires use of land that is open and notorious, hostile to the true owner and continuous for five years. Warsaw v. Chicago Metallic Ceilings, Inc., (1984) 35 Cal.3d 564, 570. To establish a prescriptive easement, a plaintiff must establish four elements: (1) open, notorious, and uninterrupted use; (2) hostile to the true owner; (3) under the claim of right; (4) for the statutory period of five years. Civ. Code, § 1007; Code Civ. Proc., § 321; Mehdizadeh, supra, 46 Cal.App.4th at p. 1305; Silacci v. Abramson, (1996) 45 Cal.App.4th 558, 563; Applegate v. Ota, (1983) 146 Cal.App.3d 702, 708. A prescriptive easement is not an ownership right, but a right to a specific use of another’s property. Mehdizadeh, supra, 46 Cal.App.4th at p. 1296.

Whether the use of the real property of another is hostile or merely a matter of neighborly accommodation “is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties.” Warsaw, supra, 35 Cal.3d at p. 572. “Continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment.” Id., at pp. 571-572. Moreover, “once a prima facie case is shown by the party asserting the easement, the burden of proof shifts to the landowner to show the use is permissive rather than hostile.” Applegate, supra, 146 Cal.App.3d at p. 709. Continuous and uninterrupted use does not mean that the plaintiff was required to use the disputed property every day. The use can fluctuate, and it is sufficient if plaintiff shows that the use occurred on those occasions when it was necessary for his convenience. See Fogerty v. State of California, (1986) 187 Cal.App.3d 224, 239.

Plaintiffs have established the existence of a prescriptive easement to use the Access Road, including the North Spur and the area leading to their garage. Plaintiffs have continuously used the Access Road to access their home since they purchased their property in 1998. (July 28 Barreca Decl., ¶¶ 8, 11). Additionally, Plaintiffs have regularly used the North Spur to park their cars and access their side yard throughout this same period. (Id., ¶ 8). Defendants’ predecessors never objected to Plaintiffs’ use of the Access Road and, until 2012, Defendants allowed Plaintiffs to use the road without interference. (July 28 Barreca Decl., ¶ 11). Although Defendants dispute the regularity with which Plaintiffs have parked their cars on the North Spur (see July 28 Marcello Decl., ¶ 2), Defendants have not presented credible evidence rebutting Plaintiffs’ claimed continuous use of the Access Road for purposes of accessing their garage and parking their cars on the North Spur. See Applegate, supra, 146 Cal.App.3d at p. 709. In fact, Defendants admit that Plaintiffs have used the North Spur as a parking area when necessary to cool their cars off outside during the heat of summer. (July 28 Marcello Decl., ¶ 2). This admission is sufficient to establish that Plaintiffs’ use has been continuous for purposes of a prescriptive easement. See Fogerty, supra, 187 Cal.App.3d 224, 239 (the use can fluctuate, and it is sufficient if plaintiff shows that the use occurred on those occasions when it was necessary for his convenience). Plaintiffs’ continuous and open use establishes a prescriptive easement over the Access Road for purposes of: (1) accessing Plaintiffs’ garage; and (2) using the North Spur for parking and accessing Plaintiffs’ side yard. See Warsaw, supra, 35 Cal.3d at pp. 571-572; Applegate, supra, 146 Cal.App.3d at p. 709.

b. The Planter Equitable Easement

Plaintiffs next claim that Defendants should be enjoined from removing the Planter because Plaintiffs have established an equitable easement over the portion of Defendants’ property on top of which the Planter is located. In appropriate cases in which the requirements for traditional easements are not present, California courts have exercised their equity powers to fashion protective interests in land belonging to another, sometimes referring to such an interest as an “equitable easement.” See Linthicum v. Butterfield, (2009) 175 Cal.App.4th 259, 262; Hirshfield v. Schwartz, (2001) 91 Cal. App. 4th 749, 767. To create an equitable easement, “three factors must be present. First, the defendant must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury . . . regardless of the injury to defendant.’ Third, the hardship to the defendant from granting the injunction ‘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.’” Hirshfield, supra, 91 Cal.App.4th at p. 759 (italics and citations omitted.)

Here, Plaintiffs have established an equitable easement over the portion of Defendants’ Property on top of which the Planter is located. First, the Planter was innocently constructed on Defendants’ Property. The Chelsons constructed the Planter a few years after they purchased Plaintiffs’ Property from Janil Inc. in 1981. (July 24 Chelson Decl., ¶¶ 7-8). At the time they constructed the Planter, the Chelsons were under the belief that they owned the property on top of which the Planter is located. (Id., ¶ 8). In other words, the Chelsons were unaware that the Planter encroached on Defendants’ Property. (Id., ¶ 8). Second, the Planter’s existence does not irreparably harm Defendants. The Defendants have been aware of the Planter since they purchased their property in November 2010. Further, Defendants became aware of the Planter’s encroachment in January 2013, when they conducted a boundary survey; however, they did not begin complaining about the Planter’s encroachment until March 2014, three-and-a-half years after they purchased their property and more than one year after they discovered the encroachment. (See July 28 Christopher Decl., ¶ 12; June 20 Christopher Decl., ¶ 20, Exhibit 7). Defendants’ substantial delay in seeking to have the Planter removed demonstrates that they will not suffer irreparable harm should the Planter remain in place. Finally, the cost of removal of the Planter to Plaintiffs will greatly exceed any harm suffered by Defendants should the Planter remain in place. The Planter is connected to Plaintiffs’ home and protects against soil runoff from the dirt slope abutting the northern side of Plaintiffs’ Property. (See Chelson Decl., ¶ 7). Further, removal of the Planter would aesthetically detract from Plaintiffs’ Property, as the Planter is physically connected to, and constructed in a similar architectural style as, Plaintiffs’ home. (See July 24 Christopher Decl., ¶ 7, Exhibit 1; July 18 Marcello Decl., ¶ 14, Exhibit G [photographs of the Planter and Plaintiffs’ home]).

2. The balance of harms weighs in favor of Plaintiffs

Plaintiffs argue that the balance of harms weighs in their favor because use of the Access Road is necessary to access their home, including their garage, front yard, and side yard. Defendants do not offer any arguments in opposition. The Court has addressed the balance of harms as it relates to removal of the Planter in the preceding section.

The Court finds that the balance of the harms weighs in Plaintiffs’ favor. Since they purchased their home in 1998, Plaintiffs have openly and continuously used the Access Road as a means of accessing their garage, front yard, and side yard. For almost 15 years, Plaintiffs used the road without interference from Defendants or Defendants’ predecessors. To restrict Plaintiffs from using the Access Road now would place a significant burden on their ability to access their home, as the road provides the only vehicle access to Plaintiffs’ garage, front yard, and side yard. (See July 24 Christopher Decl., ¶ 7, Exhibit 1).

However, the Court is mindful of Defendants’ complaints that Plaintiffs have recently increased their use of the Access Road by allowing guests to park along the road and in Defendants’ landing area. As a result, the Court limits Plaintiffs’ right (including their guests and invitees) to use the Access Road for purposes of entering and exiting their property, accessing their garage, and accessing the North Spur to reach the front of their home and their side yard. Additionally, Plaintiffs may continue to use the North Spur to park their cars; however, Plaintiffs may not park their cars, or allow their guests and invitees to park their cars, in other areas of the Access Road, including: (1) along the side of the Access Road before the North Spur and South Spur split; (2) in Defendants’ landing area west of the split; and (3) in the area of the South Spur that separates Plaintiffs’ garage from Defendants’ garage.

3. Undertaking

Code of Civil Procedure section 529(a) provides:

On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant’s undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.
“Thus, the trial court’s function is to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum.” Abba Rubber Co. v. Seaquist, (1991) 235 Cal.App.3d 1, 14. Here, Defendants do not request that Plaintiffs post an undertaking. Because there is no evidence that Defendants will suffer economic harm in the event an injunction is granted, the Court orders Plaintiffs to post a nominal undertaking in the amount of $1,000.

Disposition

While the case is pending, Defendants Marcello D’Andrea and Luisa D’Andrea, as well as their guests, agents, contractors, and employees, are enjoined from:

1. Interfering with, blocking and/or restricting, in any fashion, Plaintiffs, Plaintiffs’ guests and invitees, Plaintiffs’ contractors and/or other workers or persons with business on Plaintiffs’ property (24280 Logdell Avenue) from using the access road (the “Access Road”) off Logdell Avenue that traverses in part across Defendants’ property for ingress to and egress from Plaintiffs’ home, garage, and parking area on Parcel No. 2, including, but not limited to, installing any gate across the Access Road, parking Defendants’ cars on the Access Road in a manner designed to prevent Plaintiffs, Plaintiffs’ guests and invitees, Plaintiffs’ contractors and/or other workers or persons, from leaving Plaintiffs’ property.

2. Any act of demolition, destruction, excavation, or removal of the planter/retaining wall (the “Planter”) attached to Plaintiff’s home, including any part of the Planter that may encroach on Defendants’ property, including, but not limited to, any destructive testing of the walls of the Planter, including the retaining walls, and any geotechnical or geological testing of the soil or subsoil within the confines of the Planter.

Plaintiffs may continue to use the area immediately in front of their garage, as depicted in exhibit 1, third photograph, to the July 28 Supplemental Christopher Declaration, to temporarily park their cars (i.e., they made not be left overnight). However, Plaintiffs may not park their cars, or allow their guests and invitees to park their cars, in other areas of the Access Road, including: (1) along the side of the Access Road before the North Spur and South Spur split; (2) in Defendants’ landing area west of the split; and (3) in the area of the South Spur that separates Plaintiffs’ garage from Defendants’ garage

Plaintiffs shall post an undertaking in the amount of $1,000 within 5 business days.

IT IS SO ORDERED.