Case Number: SC121734    Hearing Date: November 07, 2014    Dept: O

SC121734
LENT ET AL v. PAUL ET AL

Plaintiffs’ Motion for Summary Judgment is GRANTED. Plaintiffs establish that they are entitled to a prescriptive easement based on open, notorious, adverse use of the staircase under a claim of right. See SSUMF Nos. 1-39. Defendants do not dispute any of the relevant material facts, nor do they submit any additional facts that would indicate permissive use, not adverse use under a claim of right. See Defendant’s Response to SSUMF Nos. 1-39. Likewise, Defendants fail to dispute any of the facts demonstrating trespass. See Defendant’s Response to SSUMF Nos. 41-48.

ANALYSIS: Plaintiffs move for summary judgment or adjudication on grounds that they possess an easement over the portion of Defendants’ property traversed by the staircase. Plaintiffs’ claim is based on (1) express oral easement created by Plaintiffs’ predecessor in interests, the Erpeldings, and Defendants’ predecessors in interest; (2) prescriptive easement; and an easement by estoppel. Plaintiffs also assert that Defendants Paul trespassed on their property as a matter of law in September 2013, when they blocked Plaintiffs’ access to the stairway. Finally, Plaintiffs argue that there is no triable issue of fact with regard to the declaratory relief claim.

In response, Defendants argue there is no evidence of an express oral easement, as Lynn Eperdling testified in deposition that she could not recall any of the foundational facts necessary to establish such an agreement. Defendants also oppose any finding of a prescriptive easement on summary judgment. Defendants assert the facts presented could be interpreted as either adverse use under a claim of right, or permissive use with the owner’s consent. Defendants refute that the equities favor creation of an easement by estoppel. Finally, Defendant contend that even if an easement existed, it has now been extinguished because Plaintiffs altered the use of the easement and also because the leasing of their beach home is illegal. Defendants also seek a continuance so that it may conduct further discovery.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code of Civil Procedure §437c(c).) From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to a judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. See Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.

Pursuant to Code of Civil Procedure §437c(f)(1), a party may properly seek summary adjudication of one or more causes of action, one or more affirmative defenses, the issue of punitive damages or the issue of duty. See Code of Civil Procedure §437c(f)(1). “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages or an issue of duty.” Id.

Where the plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. See CCP §437c(p)(1). “The burden of the moving party is to persuade the court that there is no material fact for a reasonable trier of fact to find. (Citations omitted) All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment.” LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776. It is not plaintiff’s initial burden to disprove affirmative defenses and x-complaints asserted by the defendant. See CCP §437c(p)(1).

Once plaintiff has established each element of his or her causes of action, the burden shifts to the defendant to raise one or more triable issues of material fact as to that cause of action. Id. The opposing party may not rely upon the allegations or denials in its pleadings. Id.

“An easement is an interest in real property, and the creation and transfer of an easement is within the statute of frauds. The creation or transfer of an easement must comply with the requirements of an instrument to convey real property. An express easement can only be created and conveyed by a grant or quitclaim deedthat satisfies the requirements of a transfer of real property, or by an oral agreement that is substantially performed by the grantee (‘executed oral agreement’).” Miller and Starr, 6 Cal. Real Est. § 15:14 (3d ed.).

Thus, in Douglas v. Lewin (1933) 131 Cal.App. 159, the court recognized an enforceable, express oral easement where the undisputed facts demonstrated that the vendor of property made such an agreement as part of the consideration in support of the sale of a portion of his land to the purchasers. The Court rejected the vendor’s argument that he had merely granted a use license, not an express easement over the trail:

“Appellant seems to take the position that as the deed contained no express grant of a right of way over said trail respondents ‘had a mere license by parole to use the trail, that it rested merely on neighborly accommodation, and that it was revocable at any time.’ We believe this position untenable. Respondents were not mere neighbors whom appellant had generously permitted to use said trail. They were the purchasers of a portion of appellant’s property and were assured of the right to use the established trail over another portion of defendant’s property at the time of their negotiations with appellant. After the payment of the purchase price appellant cannot be heard to repudiate his agreement for “even an oral agreement, if executed and based upon a valuable consideration, will convey an equitable title to the easement agreed upon.” Douglas, supra, 131 Cal.App. 159, 161-162.

Plaintiffs fail to establish the existence of an express oral easement granted by Defendants’ predecessors-in-interest to Plaintiffs’ predecessors-in-interest, the Erpeldings. Plaintiffs rely upon Lynn Erpelding’s declaration to establish the existence of such an oral easement. However, Lynn’s declaration does not attest to an express oral agreement, she fails to lay any foundation for such an assertion. Lynn testifies that she and her husband built the “deck and beach access stairway in cooperation with the owners of the easterly adjacent duplex. We decided and agreed with owners of the easterly adjacent duplex that a large common deck with a each access stairway extending across the common property line would be beneficial to all of us by creating an open appearance that provided and allowed for shared use.” See L. Erpelding Decl., ¶4. Lynn’s testimony offers no insight regarding whether the “cooperation” was grounded in a use license or a vested easement interest.

Even if Lynn’s declaration were construed as asserting an oral express agreement, Lynn’s deposition confirms that she lacks the personal knowledge to so testify. When questioned, Lynn could not recall any conversations with her neighbors at the time regarding the staircase and indicated that her husband handled those discussions. See Defendants’ Response to Plaintiffs’ SSUMF No. 4.

In Douglas, the record clearly established that (1) there was an express oral agreement whereby the vendor gave the purchasers the right to use the trail and (2) that this agreement was part of the bargained for consideration supporting the sale of the property. Here, Plaintiffs’ fail to provide clear evidence of an express oral agreement allowing their predecessors-in-interest to use the land or surrounding circumstances that would support interpretation of such an agreement as an oral express easement as a matter of law, as opposed to a mere license between neighbors who generously permitted the Erpeldings to build across their property. Summary adjudication of the quiet title claim based on express oral easement fails.

Adverse possession provides a party with fee title, while a prescriptive easement does not. See Silacci v. Abramson (1996) 45 Cal.App.4th 558, 562 (exclusive prescriptive easement doctrine could not be used in a simple backyard property dispute); cf. Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 764 (Silacci did not apply where easement created was pursuant to Court’s equitable powers and not prescriptive easement doctrine). The elements for a prescriptive easement are open, notorious, uninterrupted use hostile to the true owner, under claim of right, for the statutory period of five years. Id. at 563.

Each of the elements necessary to create an easement by prescription, whether the use of the property is adverse or permissive, whether the owner of the servient tenement has notice of the adversity and the user’s claim of right, and whether the use has been continuous for the required period of time, are questions of fact. Miller and Starr, 6 Cal. Real Est. § 15:32 (3d ed.). However, when the material facts are essentially undisputed, resolution of this case becomes a question of law as to whether the easement is a proper prescriptive easement. Silacci, supra, 45 Cal.App.4th at 562.)

“Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties.” Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572. “[C]ontinuous 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.

“When one who claims an easement by prescription offers satisfactory evidence that all the required elements existed, the burden of showing that the use was merely permissive shifts to the owner of the land.” Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 594. Adverse use under a claim of right is demonstrated where no permission was ever asked for nor was any given for use, no one ever questioned the right of the users and the claimaints treat the subject of the easement as their own. Id.

Standing alone, improving or paying for improvement of right of way is insufficient to prove permissive use. See Serrano v. Grissom (1963) 213 Cal.App.2d 300, 303. In fact, the sharing of expenses can be properly construed as a tacit admission of the user’s vested right to an easement. Id.

Plaintiffs establish long and continuous use of the staircase by predecessors and themselves, as well as their guests and invitees. See SSUMF Nos. 1-37. These facts establishing continuous, open and notorious use are undisputed, even if isolated to the period of time during which Plaintiffs and Defendants were neighbors (11 years, 2002 to present). See Defendants’ Response to SSUMF Nos. 1-37. Any dispute centers on whether the use was adverse or permissive and whether it was under claim of right. Id.

However, based on the undisputed material facts, Plaintiffs sufficiently demonstrate adverse use under a claim of right. In response, Defendants do not meet their burden of presenting affirmative evidence that the use was permissive. In fact, Defendants do not dispute the following key facts: (1) Plaintiffs subjectively were acting under a claim of right when they used the stairway (See SSUMF No. 18); (2) Plaintiffs and Defendants have never had an agreement for use of the stairs (SSUMF No. 30; (3) Plaintiffs never asked the Defendants for permission to use the stairs (SSUMF No. 32; (4) Defendants never gave express permission to Plaintiffs to use the stairs (SSUMF No. 33); (5) Plaintiffs paid for the repair and maintenance expenses unilaterally without asking Defendants for any contribution (SSUMF No. 37); (6) Defendants requested that Plaintiffs share in the maintenance cost of the stairway at least one undisputed time, even though Plaintiffs refused (SSUMF No. 38).

Defendants argue extinguishment of the easement or illegality of the easement based on Plaintiffs’ leasing their home to tenants. “The allowable usage of the prescriptive easement is defined by its historical usage. In Confederate Salish & Kootenai Tribes, supra, page 181, the court said ‘the character and extent of the use [type and intensity of traffic] determines the nature and extent of the servitude….The only limitation on use of right of way is imposed by the use made during the statutory period; subsequent use cannot exceed the prior burden.” The evidence does not support a finding that Plaintiffs’ decision to lease their single family home as a beach house has exceeded the prior burden, particularly since it is undisputed that the guests and invitees of the owners have used the staircase during the statutory period.

Likewise, the illegality argument does not prevent recognition of a prescriptive easement. Defendants argue the prescriptive easement was created for an illegal purpose, namely access to the beach for Plaintiffs’ illegal rental business. First, Defendants fail to establish that the Plaintiffs’ decision to lease their home to tenants violates any particular Malibu ordinance, because there is an insufficient showing that Plaintiffs are running a “hotel” and letting to “transients,” as defined under the Municipal Code. Defendants’ cited evidence only demonstrates that Plaintiffs are leasing their home to tenants. See Defendants’ SSUMF No. 13.
Second, even if Plaintiffs were in violation of an ordinance, the easement itself is not illegal because its purpose was not to support the Plaintiffs’ illegal hotel business.

Based on these undisputed facts, reasonable minds could only conclude that Plaintiffs’ use (1) was not permissive but (2) under a claim of right adverse to Defendants’ property interest. Plaintiffs’ Motion for Summary Adjudication of the 1st c/a for quiet title and 3rd c/a for declaratory relief based on the parties’ dispute over Plaintiffs’ easement rights is GRANTED. Plaintiffs hold a prescriptive easement for use of the beach deck and staircase located in part on Defendants’ property.

Plaintiffs allege that Defendants trespassed onto their property in late September 2013 to alter and reconfigure the common deck and stairway, so that the entirety of the stairs were shifted 6 feet to the east, thereby relocating the stairway from being partially on Plaintiffs’ property to being entirely on Defendants’ property. Plaintiffs submit evidence establishing these facts. See Plaintiffs’ SSUMF Nos. 41-48. Defendants do not dispute these facts nor do they submit their own facts in rebuttal or make any substantive argument as to this claim in their MP&As. See Defendants’ Responsive SSUMF Nos. 41-48 and MP&As. For this reason, summary adjudication of the 2nd c/a for trespass is proper and summary judgment of the entire action is GRANTED.