Filed 8/30/18 Striegel v. Swajian CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

GEORGE STRIEGEL, as Co-trustee, etc. et al.,

Cross-Complainants and Appellants,

v.

GREGORY SWAJIAN et al.,

Cross-Defendants and Respondents.

E066455

(Super.Ct.No. INC 10000239)

O P I N I O N

APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.

Gusdorff Law, Janet R. Gusdorff; Hannemann Law Firm and Brian G. Hannemann for Cross-Complainants and Appellants.

Swajian and Swajian Attorneys at Law for Cross-Defendants and Respondents Gregory A. Swajian and Dawn M. Swajian.

Joseph A. Gibbs for Cross-Defendant and Respondent Bighorn Development, LLC.

Blasdel Guinan Lawyers and Eric Joseph Guinan for Cross-Defendant and Respondent Marie Befeld.

I. INTRODUCTION

In this action, cross-complainants and appellants, George and Patricia Striegel (the Striegels), through their revocable intervivos trust, the Striegel Family Revocable Trust, dated October 19, 1991 (the Striegel Trust), sought to quiet title to an easement by prescription for ingress and egress to their unimproved, five-acre parcel in Cahuilla Hills (the Striegel Parcel), over a dirt roadway or “access route” traversing seven other parcels. Cross-defendants and respondents, Gregory A. Swajian and Dawn M. Swajian (the Swajians), Bighorn Development, LLC (Bighorn), and Marie Befeld (Befeld), owned six of the other seven parcels. Following a bench trial, the court denied the Striegels’ prescriptive easement claim and entered judgment in favor of cross-defendants on the Striegels’ cross-complaint.

In this appeal, the Striegels claim insufficient evidence supports the court’s finding that they failed to establish their prescriptive easement claim by clear and convincing evidence. They also claim the court erroneously applied an incorrect legal standard for establishing a prescriptive easement, by requiring them to show that their use of the access route was unique and exclusive, or different than the use by others or the public. They argue this error led the court to erroneously reject evidence of their open and obvious use of the access route during two five-year prescriptive periods: 1981 through 1986 as to the Swajians and Bighorn, and 1994 through 1999 as to Befeld.

We find no merit to these claims and affirm the judgment. As we first explain, substantial evidence supports the court’s determination that the Striegels failed to prove by clear and convincing evidence that they had established a prescriptive easement, over the access route, for ingress and egress to the Striegel Parcel.

Additionally, the court’s statement of decision shows it did not apply an incorrect legal standard for establishing a prescriptive easement. Specifically, the court did not erroneously require the Striegels to show their use of the access route was, in the words of the Strigels, “unique” or “exclusive.” Rather, in noting that the Striegels’ use of the access route was “consistent with the use by others,” the court was merely explaining that the Striegels’ use was insufficiently open and notorious to impart implied notice of the Striegels’ prescriptive easement claim.

II. FACTS AND PROCEDURE

A. Background

The Striegels purchased the Striegel Parcel (Parcel 12) from Mr. Scott in January 1981. At that time, Mr. Scott told the Striegels they could reach the Striegel Parcel via the access route, and Mr. Scott drove the Striegels the entire length of the access route in his four-wheel drive vehicle. In 1981, the access route was a “well delineated and clearly identifiable roadway” crossing seven parcels “all the way to the northwest corner” of the Striegel Parcel, where it terminated at a “homestead” cabin on the Striegel Parcel. The cabin was torn down in 1991.

The United States government originally owned all eight parcels and conveyed the parcels to the parties, or their predecessors, through land patents. The legal titles of each parcel contain either a 33-foot or a 50-foot “boundary right-of-way for roadway and public utility purposes.” Thus, none of the parcels were landlocked; each had a roadway easement around its boundaries for ingress and egress. In addition, a “water line” easement in favor of the Coachella Valley Water District closely followed the access route.

B. The Operative Pleadings

This litigation began in 2010 when the Swajians sued the Striegels for trespassing upon and damaging the Swajians’ parcels by grading along their portion of the access route with earthmoving equipment. In their operative fourth amended complaint, the Swajians alleged causes of action against the Streigels for quiet title, trespass, nuisance, injunctive relief, and “abandonment of easement.”

The Striegels cross-complained against the Swajians, Bighorn, Marie Befeld, Gerhard Befeld, and The John Angeloni Trust. By their operative second amended cross-complaint, the Streigels sought to quiet title to an easement by implication, necessity, and prescription, and related declaratory relief. In their fourth cause of action for prescriptive easement, the Streigels sought a prescriptive easement along the access route, “starting at the terminus of Jaguar Way and then southerly and then generally easterly, across the parcel or parcels owned (in order of east to west geographically) by Befeld, Angeloni, Bighorn and Swajian . . . .” The Striegels alleged that, for more than five years, they had used the access route for ingress and egress to the Striegel Parcel, in a manner that was open, notorious, clearly visible, hostile, and adverse to the interests of cross-defendants.

C. The Phase I Bench Trial

Before trial, the court granted the Striegels’ motion to substitute the Striegel Trust as cross-complainant in lieu of the Striegels, and granted the Swajians’ motion to add the Striegel Trust as a defendant to the complaint. Trial proceeded in two phases: a bench trial on the Striegels’ cross-complaint (Phase I), followed, months later, by a bench trial on the Swajians’ complaint (Phase II).

After the Striegels presented their case-in chief in Phase I, the Swajians, Bighorn, and Befeld moved for judgment (nonsuit) on all of the Striegels’ causes of action. (Code Civ. Proc., § 631.8.) The motion was granted on all causes of action except the Striegels’ fourth cause of action for easement by prescription. Phase I of the trial continued on that cause of action only.

The following pertinent evidence was adduced during Phase I:

1. Background

At the time of the Phase I trial in December 2014, the Swajians owned two of the seven parcels underlying the access route (Parcels 13 and 14). The Swajians’ purchased Parcel 13 in 1987 and Parcel 14 in 1994. In 1992, Bighorn purchased three parcels (Parcels 31, 32, and 33), and the John Angeloni Trust acquired one parcel. In 1994, Befeld acquired one parcel (Parcel 19).

2. Ms. Striegel’s Testimony

Ms. Striegel testified that, from 1981 to 1986, she and Mr. Striegel would park their motor home at a friend’s house on Jaguar Way (on or near the access route), then hike or drive either ATVs or pickup trucks along the access route to get to the Striegel Parcel. During cross-examination, Ms. Striegel said the friend’s house was located on Cholla Way, north of and away from the access route.

Ms. Striegel recalled that, between 1981 and 1986, the access route was an “unpaved meandering roadway” 12 to 15 feet wide. Initially, the Striegels visited their parcel two or three times monthly, but after a few years they reduced their visits to once or twice monthly, then monthly or less often.

Ms. Striegel claimed she and Mr. Striegel maintained the access road when it became impassible due to rainstorms. The Striegels’ friend, Mr. Burgess, who hiked and rode horses in the area, voluntarily maintained the access route until he moved away from the area in 1990. The Striegels never personally performed any maintenance or repair work on the access route.

In 1988, the Striegels obtained two alternative estimates to construct a roadway to the Striegel Parcel. One roadway would have approached the parcel from the north, and the other would have approached the parcel from Jaguar Way on the south side of the parcel, near the access route. Due to the costs, the Striegels did not pursue building any roadway, and Ms. Striegel did not know whether they would have been able to obtain a permit to build a roadway in any event. Until 2008, Ms. Striegel was unaware that there was a 50-foot easement on the boundaries of the Striegel Parcel, for ingress and egress, under the United States Land Patent.

Until it was torn down in 1991, the Striegels would leave the homestead cabin unlocked. On several occasions when they visited the cabin, the Striegels found “thank you” notes left by strangers who had used the cabin for shelter. The Striegels never built any structures on their parcel.

A video from around 1991 revealed tire tracks on the access route, which Ms. Striegel testified were made by a truck that transported the demolished cabin material. The Striegels believed Bighorn or its predecessor had torn down the cabin, and pursued litigation. In a 1991 letter to Bighorn demanding monetary compensation for the cabin, the Striegels did not claim or suggest that they had access to the cabin through the Bighorn parcels.

In 2000, the Swajians sent a letter to the Striegels indicating that the Striegels did not have permission to enter the Swajian parcels—one of which abutted the Striegel Parcel. One day in 2009, Mr. Rhodes, the owner of Dirt Works, performed grading work on the access route for the Striegels.

During the relevant prescription periods, the Striegels never attempted to ascertain who owned any of the seven parcels underlying the access route. At some point, Ms. Striegel learned that Bighorn owned some property somewhere on the mountain.

3. The Swajians’ Evidence

The Swajians purchased Parcel 13 in 1987 and Parcel 14 in 1994. The Swajians had always accessed their parcels from Cholla Way to the north, and they had never seen the Striegels or Messrs. Burgess or Rhodes use the access route. Mr. Swajian had never seen any vehicles drive over the Swajian Parcels, and he had never observed any maintenance performed on the access route, except that in 2009 he noticed that some grading work had been performed. Mr. Swajian had also never seen anyone around the cabin on the Striegel Parcel.

4. Befeld’s Evidence

Befeld purchased her parcel from the Nature Conservancy in 1994. The deed to the parcel provided that it was subject to easements in favor of the Coachella Valley Water District. Sometime between 1994 and 1999, Befeld and her husband placed a locked gate with a “No Trespassing Sign” on their parcel, between the access route and Jaguar Way, which bordered the parcel on the north. After two locks were cut, Befeld decided not to relock the gate. Around three times weekly between 1994 and 1999, Befeld took morning walks on Jaguar Way, which bordered her parcel on the north. Befeld never saw anyone on her parcel during her walks. She occasionally saw the gate open and would close it. Ms. Striegel did not recall the gate being locked, but recalled opening the gate. Befeld and Ms. Striegel had never met each other.

5. Additional Evidence

In 1992, Bighorn “gated off” its three parcels. David McFarland’s mother lived in a home on one of the Bighorn parcels. Mr. McFarland used the access route to visit his mother but he “never really saw anyone else” driving on the access route other than motorcycles and dirt bikes. Another witness, Mr. Wardell, lived in the area from 1982 until 1995 and hiked there a few times weekly. Mr. Wardell never saw any vehicles, horses, or motorcycles in the area.

D. The Trial Court’s Statement of Decision on Phase I of the Trial

Following Phase I, the Striegels requested a statement of decision, and in March 2015, the court issued a tentative statement of decision. The Striegels submitted 20 objections to the tentative statement of decision, arguing that portions of it were vague, ambiguous, and omitted findings on critical issues. The court ostensibly overruled the objections.

In its decision, the court found the Striegels failed to meet their burden of showing that their use of the access route provided actual or implied (constructive) notice to the Swajians, Bighorn, or Befeld, that the Striegels were asserting a prescriptive easement claim over the access route for ingress and egress to the Striegel Parcel.

Among other things, the court observed: “[T]he mere existence of the ‘access route’ itself does not constitute implied notice,” the Striegels adduced “no evidence whatsoever . . . to support a prescriptive easement for residential or commercial purposes,” and “there was no evidence that the Striegels exercised any adverse use of the ‘access route’ other than their claim they did so.”

The court characterized the Striegels’ evidence regarding their maintenance of the access route after rainstorms as “vague and sketchy.” The court also noted that the Striegels’ claimed use of the access route was “consistent with the use by others and by the public”; and because strangers had used the Striegels’ cabin, the Striegels’ “use of the cabin could not constitute notice [to the Swajians or Bighorn] that the Striegels were using the ‘access route’ to access their cabin.”

E. The Judgment

Following Phases I and II, the court entered judgment against the Striegel Trust on its cross-complaint (Phase I) and in favor of the Swajians on their complaint (Phase II). As prayed for in the complaint, the court enjoined the Striegels and Mr. Rhodes from “making or performing any repairs, construction or alterations to or on any part of the Swajians’ parcels which lie outside of the U.S. Land Patent easements.” The Striegel Trust appealed, and elected to proceed by a settled statement rather than a reporter’s transcript, because the oral proceedings were not reported. (Cal. Rules of Court, rule 8.137(b)(1).) The record contains a certified settled statement of the oral proceedings.

III. DISCUSSION

As noted, the Striegels claim the judgment must be reversed because insufficient evidence supports the court’s finding that the Striegels failed to established a prescriptive easement over the access route, during the alleged five-year prescriptive period of 1981 to 1986 against the Swajians and Bighorn, and during 1994 to 1999 against Befeld.

The Striegels also claim the court applied an erroneous legal standard by requiring them to show that their use of the access route was unique and exclusive. They argue it is reasonably probable the court would have found that cross-defendants had implied notice of the Striegels’ prescriptive easement claim based on the cabin, its use and location, absent the court’s mistaken belief that the Striegels’ use of the cabin or access route had to be unique and exclusive.

We find no merit to these claims.

A. Applicable Legal Principles and Standard of Review

“‘To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.’” (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054; Code Civ. Proc., § 321.) 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.’” (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938-939, italics added.)

A prescriptive easement finding must be based on clear and convincing evidence. (Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938) The evidence must be “‘“‘so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’”’” (Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1558.) On appeal, however, we review a finding that a prescriptive easement either does or does not exist under the substantial evidence standard. (See Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449 [“Whether the elements of a prescriptive easement have been established is a question of fact, which we review under the substantial evidence rule.”].)

Under the substantial evidence standard, we view all of the evidence in the light most favorable to the prevailing party and resolve all evidentiary conflicts in favor of that party. (Felgenhauer v. Soni, supra, 121 Cal.App.4th at p. 449.) If the trier of fact has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even if the different inferences may also be reasonable. (Ibid.) The trier of fact is also not required to believe even uncontradicted testimony. (Ibid.)

B. Substantial Evidence Supports the Court’s Determination That the Striegels Failed to Establish a Prescriptive Easement Over the Access Route

Because it was undisputed that the Striegels did not give cross-defendants actual notice of their adverse prescriptive easement claim, the Striegels’ use of the access route had to be “so obvious as to constitute implied notice of the adverse [prescriptive easement] claim” to cross-defendants. (Smith v. Skrbek (1945) 71 Cal.App.2d 351, 358.) Open and notorious use is use that notifies the owner of the land being encroached upon that a use inconsistent with the owner’s rights is occurring. (Kerr Land & Timber Co. v. Emmerson (1969) 268 Cal.App.2d 628, 634.) The purpose of the open and notorious use element is to provide the owner of the land being encroached upon with “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.) Mere knowledge on the part of the landowner of occasional travel across, or other use of, the landowners’ property does not constitute notice of an adverse claim. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.)

Here, substantial evidence supports the court’s determination that the Striegels’ use of the access route was insufficiently open and obvious, and too infrequent, to impart implied or constructive notice of the Striegels’ prescriptive easement claim to any of cross-defendants, during any continuous five-year period. To be sure, Ms. Striegel testified that, beginning in 1981, she and Mr. Striegel would hike or drive ATVs or pickup trucks on the access route, two to three times monthly, but she also testified that their use of the access route decreased over time to less than once monthly.

In addition, the Striegels never ascertained who owned any of the seven parcels underlying the access route, and never took any steps to apprise those owners of the Striegels’ adverse prescriptive easement claim. The Striegels also never built any structures on the Striegel Parcel, and the cabin on the parcel was torn down in 1991. The area around the Striegel Parcel was largely unimproved and was only occasionally visited by hikers, dirt bike riders, and other motorcyclists. Vehicles rarely used the access route. Under these circumstances, cross-defendants had no reason to believe that the Striegels, or anyone acting on their behalf, were asserting any prescriptive easement claim to the access route at any time.

Indeed, the Swajians never met the Striegels during the alleged prescriptive period of 1981 to 1986, and never saw the Striegels use the access route at any time. Between 1994 and 1999, Befeld walked by her parcel, using Jaguar Way, several times weekly and never saw anyone on her parcel. Regarding Bighorn, the record also supports the court’s finding that the evidence was “neither clear nor persuasive as to how, when and where” if ever, the Striegels used the portion of access route that traversed the Bighorn parcels.

When we compare this case with those in which courts have found evidence of implied notice, we cannot conclude that the Striegels’ use was open and notorious in a way in which cross-defendant landowners could derive notice. (E.g., Castillo v. Celaya (1957) 155 Cal.App.2d 469, 472-473 [daily use and continuous maintenance of roadway by family, guests, relatives, and invitees of prescriptive easement claimant for 16 years supported trial court’s determination that the use was adverse to the owner]; Le Deit v. Ehlert (1962) 205 Cal.App.2d 154, 163 [continuous and visible use and maintenance of roadway for many years showed the use and maintenance was under a claim of right]; Sufficool v. Duncan (1960) 187 Cal.App.2d 544, 549 [same].)

C. The Court Did Not Apply an Erroneous Legal Standard for a Prescriptive Easement

The Striegels contend that some of the statements in the court’s decision show the court applied an erroneous legal standard for establishing a prescriptive easement. They argue the court’s analysis reveals it made an incorrect assumption that, in order to impart implied notice of their prescriptive easement claim to cross-defendants, the Striegels had to show that their use of the access route and cabin was, in the Striegel’s words, “unique” or “exclusive,” or distinct from the use by others or the public. They argue this error was prejudicial because it led the court to erroneously reject the evidence of the Striegels’ use of the access route as insufficient, because that use was neither unique nor exclusive.

We disagree with the Striegels’ interpretation of the court’s decision. We first observe that the Striegels’ prescriptive easement claim had to be based on their individual use of the access route, rather than use by others or the public. (Applegate v. Ota, supra, 146 Cal.App.3d at p. 710.) But “exclusiveness of use[] is not essential to acquisition of a prescriptive easement.” (Ibid.) “[M]erely because the public also uses the easement does not preclude the acquisition by an individual of a right based upon his own use.” (Ibid.)

As the Striegels point out, the court indicated in its decision that, because strangers sometimes used the cabin, the Striegels’ use of the cabin “could not constitute notice to any of the predecessor owners of the two Swajian parcels or the Swajians that the Striegels were using the ‘access route’ to access their cabin.” The court also wrote: “The ‘use’ claimed by the Striegels is consistent with the use by others, the public or [Coachella Valley Water District],” and “[t]here was no specific evidence of use of the ‘access route’ any different tha[n] the public. How was anyone to know, other than Bighorn, that the Striegels were using the ‘access route’ as opposed to the general public or [Coachella Valley Water District]?”

None of these statements indicate that the court incorrectly assumed the Striegels had to show their use of the access route or cabin was “unique” or “exclusive.” Rather, the court’s decision as a whole shows that, by these statements, the court was simply pointing out that the Striegels’ use of the access route and cabin was insufficiently open and notorious to impart implied notice of the Striegel’s prescriptive easement claim to cross-defendants or their predecessors. Indeed, before it wrote the statements, the court wrote, “the issue here is whether the Striegels’ use of the ‘access route’ was sufficient to establish implied notice to all owners, for any continuous 5 year period . . . . The court finds the Striegels have not met their burden of proof on the issue by clear and convincing evidence.”

Nowhere in its decision did the court indicate that, because others used the access route or cabin, the Striegels could not establish sufficient evidence of implied notice. Nor did the court indicate that the Striegels’ use of the access route or cabin, in common with the public, prevented the Striegels from obtaining a prescriptive right.

The decision as a whole shows that, in the court’s mind, the Striegels were impermissibly attempting to base their prescriptive easement claim on the public’s use of the access route and cabin, as well as on the mere existence of the access route and cabin. As explained, substantial evidence supports the court’s conclusion that the Striegels failed to meet their burden of proof because their use of the access route and cabin was insufficiently open and notorious—precisely because their use was no different than the occasional use by others and the public. This was permissible.

Lastly, the Striegels claim the case must be remanded for the court to make factual findings regarding the precise scope of the claimed easement, because the court did not attempt to determine the access route’s precise path, width, or dimensions. We disagree. The court’s findings and judgment cover all of the essential issues presented by the pleadings. “All that is necessary for a court to find are the ultimate facts necessary to support the judgment upon the essential issues which are presented by the pleadings.” (Forman v. Hancock (1934) 3 Cal.App.2d 291, 296; Code Civ. Proc., § 632.) The court must find ultimate facts, to which legal consequences attach, but not evidentiary or probative facts that establish them. (People v. Hecker (1960) 179 Cal.App.2d 823, 832.) Factual findings concerning the dimensions of the access route were of no legal consequence to the Striegels’ prescriptive easement claim.

IV. DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.