Case Name: Jonathan Persing, et al. v. Francisco Gutierrez, et al.
Case No.: 16-CV-300631

Currently before the Court is the motion by plaintiffs and cross-defendants Jonathan Persing and Diane Persing, trustees of the Persing Living Trust dated January 23, 2006 (collectively, the “Persings”) for summary judgment of the cross-complaint of defendant and cross-complainant Jonathan Gutierrez (“Gutierrez”) or, alternatively, summary adjudication of each and every cause of action alleged therein.

Factual and Procedural Background

This is an action for quiet title, declaratory relief, and injunctive relief, arising out of a dispute over the existence of an easement. According to the allegations of the cross-complaint, Gutierrez is the owner of a parcel of unimproved real property (“Gutierrez Property”) located in the County of Santa Clara with Assessor’s Parcel Number 773-13-018. (Cross-Complaint, ¶ 5.) The parcel is approximately 3.6 acres and has no street address. (Ibid.) Gutierrez acquired the parcel on or about July 8, 2016, from Darlene Frasher, trustee of the Frasher Family Trust. (Ibid.)

The Persings are the owners of a parcel of unimproved real property (“Persing Property”) located in the County of Santa Clara with Assessor’s Parcel Number 773-13-019. (Cross-Complaint, ¶ 6.) The parcel is approximately 2.5 acres and is immediately adjacent to the Gutierrez Property along its eastern boundary. (Ibid.) The Persings acquired the parcel from William Lorenz (“Lorenz”), trustee of the Lorenz 2009 Living Trust, in or about February 2014. (Ibid.) The Persings own another parcel of real property on the southern boundary of the Persing Property and the Gutierrez Property (“Persing Ranch”), which is developed with a home. (Id. at ¶ 7.)

Directly to the north of the Persing Property and the Gutierrez Property is a privately owned unimproved dirt road (“Arpin Roadway”) that connects to Oak Glen Avenue, a developed public road. (Cross-Complaint, ¶ 8.) The Arpin Roadway is part of an unimproved parcel of real property to the east of the Persing Property and the Gutierrez Property. (Ibid.) Both the Persing Property and the Gutierrez Property have an express ingress/egress easement over the Arpin Roadway. (Ibid.)

The Gutierrez Property is steeply sloped along its northern boundary, which prevents direct access to the Arpin Roadway from the parcel. (Cross-Complaint, ¶ 9.) “[T]he only means of access to the Arpin Roadway from the Gutierrez Property is via an unimproved dirt roadway in the form of a backwards C that runs over the two parcels that are located between the Persing Property and the Arpin Property and which then continues over the southern boundary of the Persing Property.” (Ibid.) The two parcels located between the Persing Property and the Arpin Property have Assessor’s Parcel Numbers 773-13-020 and 773-13-021. (Ibid.)

On the western boundary of the Gutierrez Property there are two parcels of real property with Assessor’s Parcel Numbers 773-13-016 and 773-13-017. (Cross-Complaint, ¶ 10.)

Prior to June 24, 1966, the Arpin Property, the Gutierrez Property, the Persing Property, and Assessor’s Parcel Numbers 773-13-016, 773-13-017, 773-13-020, and 773-13-021 were part of a single parcel owned by Paul Arpin (“Arpin”). (Cross-Complaint, ¶ 11.) “Arpin subdivided his property into two parcels: one parcel which is the current Arpin Parcel and the second parcel consisting of the Persing Property, the Gutierrez Property, and [Assessor’s Parcel Numbers] 773-13-016, 773-13-017, 773-13-020, and 773-13-021 (collectively, the ‘Pourray Property’).” (Ibid.) “On or about June 24, 1966, Arpin grant deeded the Pourray Property to Geral Lawrence Pourray, Joyce Lee Pourray, Floyd Lee Pourray, and Joann A. Pourray (the ‘Pourays’).” (Id. at ¶ 12.) Included in the grant deed was an express ingress/egress easement along the Arpin Roadway. (Ibid.)

In February 1967, the Pourrays “subdivided the Pourray Property into two parcels: one parcel consisting of [Assessor’s Parcel Numbers] 773-13-016 and 773-13-017 and the other parcel consisting of the Gutierrez Property, the Persing Property, [Assessor’s Parcel Numbers] 773-13-020 and 773-13-021 (collectively, the ‘Roberts-Sappington-Lorenz-Frasher Property’).” (Cross-Complaint, ¶ 13.) On February 27, 1967, the Pourrays deeded the Roberts-Sappington-Lorenz-Frasher Property to Max G. Roberts, Nancy Roberts, Kenneth E. Sappington, Suzanne Sappington, Lorenz, William L. Frasher, and Darlene Frasher. (Id. at ¶ 14.) In the grant deed, the Pourrays expressly reserved an ingress/egress easement for the benefit of their remaining parcel—which consists of Assessor’s Parcel Numbers 773-13-016 and 773-13-017—over the backwards C dirt roadway that runs through the portion of the Roberts-Sappington-Lorenz-Frasher Property that is now Assessor’s Parcel Numbers 773-13-020, 773-13-021, and the Persing Property. (Ibid.) At the time of this conveyance, the backwards C dirt roadway was used as an access road “by the portion of the Roberts-Sappington-Lorenz-Frasher Property [that] would later become the Gutierrez Property.” (Ibid.)

In March 1967, the owners of the Roberts-Sappington-Lorenz-Frasher Property subdivided the land into two parcel. (Cross-Complaint, ¶ 15.) The first parcel was comprised of what would later become the Persing Property and the Gutierrez Property. (Ibid.) The second parcel was comprised of what would later become Assessor’s Parcel Numbers 773-13-020 and 773-13-021. (Ibid.) A Record of Survey was recorded, which reflects the portion of the backwards C dirt roadway that runs through what would later become Assessor’s Parcel Numbers 773-13-020 and 773-13-021. (Ibid.) Gutierrez alleges that by depicting a portion of the backwards C dirt roadway on the Record of Survey “the owners of the property intended to grant an ingress/egress easement over the [dirt roadway] to the Persing and Gutierrez Properties.” (Ibid.) Title to the parcel consisting of the Gutierrez Property and the Persing Property was then conveyed William L. Frasher, Darlene Frasher, and Lorenz, and title to become Assessor’s Parcel Numbers 773-13-020 and 773-13-021 was conveyed to “Roberts and Sappington.” (Id. at ¶ 16.)

In September 1968, William L. Frasher, Darlene Frasher, and Lorenz subdivided their parcel into the Persing Property and the Gutierrez Property. (Cross-Complaint, ¶ 15.) A Record of Survey was recorded, which reflects the portion of the backwards C dirt roadway that runs through Assessor’s Parcel Numbers 773-13-020 and 773-13-021, and the Persing Property. (Ibid.) Gutierrez alleges that by depicting the backwards C dirt roadway on the Record of Survey William L. Frasher, Darlene Frasher, and Lorenz intended to grant an ingress/egress easement over the Persing Property to the Gutierrez Property. (Ibid.)

On December 7, 1970, the owners of Assessor’s Parcel Numbers 773-13-020 and 773-13-021 executed a Deed of Right of Way for Road Purposes granting. (Cross-Complaint, ¶ 18.) The deed granted “a right of way for ingress and egress to the owners of existing developed or subsequently approved building sites, or both, requiring or necessarily using the [portion of the backwards C dirt roadway running over Assessor’s Parcel Numbers 773-13-020 and 773-13-021] as a mean of access to a public road.” (Ibid.) The deed irrevocably offered to dedicate that portion of the backwards C dirt roadway as a right of way and easement for public street and road purposes to the County of Santa Clara; the County accepted the offer; and, therefore, the Gutierrez Property has an ingress/egress easement over that portion of the backwards C dirt roadway. (Ibid.)

Four years later, Lorenz quitclaimed his interest in the Gutierrez Property to William L. Frasher and Darlene Frasher. (Cross-Complaint, ¶ 19.) In addition, William L. Frasher and Darlene Frasher quitclaimed their interest in the Persing Property to Lorenz. (Ibid.) The quitclaim deeds refer to the Persing Property and the Gutierrez Property as depicted in the Record of Survey recorded in September 1968. (Ibid.) After this transfer, William L. Frasher, Darlene Frasher, their guests, and their invitees continuously used the backwards C dirt roadway running through Assessor’s Parcel Numbers 773-13-020 and 773-13-021 and the Persing Property to access the Gutierrez Property. (Id. at ¶ 20.) “Such use is evidenced by the clearing of a roadway on the Gutierrez Property off of [the portion of the backwards C dirt roadway that runs over the Persing Property].” (Ibid.)

In 2014, Lorenz deeded the Persing Property to the Persings. (Cross-Complaint, ¶ 21.) In 2016, “Frasher deeded the Gutierrez Property to Gutierrez.” (Id. at ¶ 22.) “Prior to purchasing the Gutierrez Property, Gutierrez accessed the Gutierrez Property via the [backwards C dirt roadway]. Furthermore he was told prior to purchasing the Gutierrez Property that it had ingress/egress rights over the [portion of the backwards C dirt roadway on the Persing Property]. If he had known that the Gutierrez Property had no access easement over [that portion of the dirt roadway] he would not have acquired the Gutierrez Property.” (Id. at ¶ 24.) In reliance on the ingress/egress easement, Gutierrez expended substantial sums in purchasing the property and in building a horse stable, tool sheds, and a water tank on the land. (Id. at ¶ 25.)

Based on the foregoing, Gutierrez filed the cross-complaint against the Persings, alleging causes of action for: (1) quiet title to easement by implication; (2) quiet title to easement by necessity; (3) quiet title to prescriptive easement; (4) quiet title to equitable easement; (5) quiet title to irrevocable license; (6) declaratory relief; and (7) preliminary and permanent injunction.

On June 8, 2017, the Persings filed the instant motion for summary judgment or, alternatively, summary adjudication. Gutierrez filed papers in opposition to the motion on August 8, 2017. Gutierrez subsequently filed a Notice of Errata Re Declaration, a Corrected Declaration of David Ruiz, and a Corrected Declaration of Francisco Gutierrez on August 11, 2017. Most recently, on August 17, 2017, the Persings filed a reply.

Discussion

Pursuant to Code of Civil Procedure section 437c, the Persings move for summary judgment of Gutierrez’s cross-complaint or, alternatively, summary adjudication of the first through fifth causes of action. (See Ntc. Mtn., pp. 1:3-3:12.)

I. Procedural Issue

As an initial matter, the Persings object to the Court’s consideration of the Corrected Declaration of David Ruiz and the Corrected Declaration of Francisco Gutierrez that were filed by Gutierrez on August 11, 2017. The Persings contend that the Court should disregard those declarations because they were filed after August 8, 2017, the deadline for Gutierrez to file his opposition papers.

“An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(2).)

Here, Gutierrez was required to file any declarations supporting his opposition papers 14 days prior to the August 22, 2017 hearing date. Thus, his papers were due on August 8, 2017. The corrected declarations were filed three days late on August 11, 2017. The Court has discretion under California Rules of Court, rule 3.1300(d) to refuse to consider late-filed papers. (Cal. Rules Ct., rule 3.1300(d); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Even though the corrected declarations are untimely, it does not appear that the Persings suffered any prejudice as a result of the delay. The corrected declarations are not substantially different from the original declarations. The corrected declarations merely fix minor typographical errors and provide the Court with clearer copies of certain exhibits. Moreover, the Persings filed a substantive reply the corrected declarations. For these reasons, the Court in its discretion will consider the late-filed declarations. Gutierrez is admonished to comply with applicable rules for all future filings and cautioned that future violations may result in the Court refusing to consider the late-filed paper pursuant to California Rules of Court, rule 3.1300(d).

II. Requests for Judicial Notice

A. The Persings’ Request

The Persings ask the Court to take judicial notice of the following documents: their verified complaint; Gutierrez’s verified cross-complaint; a memorandum of points and authorities and declarations filed in support of Gutierrez’s opposition to the Order to Show Cause Why Preliminary Injunction Should Notice Issue; documents recorded with the Santa Clara County Recorder; and certificates of death for William L. Frasher and Lorenz.

The documents filed with the court in connection with this case are generally proper subjects of judicial notice as they are court records, which are relevant to issues raised by the pending motion. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (Lockyer) [“There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.”].) However, the Court cannot take judicial notice of the truth of hearsay statements in the subject records. (See People v. Woodell (1998) 17 Cal.4th 969B, 455 (Woodell) [“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments-but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’”].)

Next, grant deed and quitclaim deeds recorded with the Santa Clara County Recorder are proper subjects of judicial notice. Evidence Code section 452, subdivision (c) states that courts may take judicial notice of “any official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” This has been interpreted to include documents recorded by a government department. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) “[A] court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Id. at p. 264.)

Finally, the death certificates are proper subjects of judicial notice as they are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Ellenberger v. City of Oakland (1946) 76 Cal.App.2d 828, 835; People v. Terry (1974) 38 Cal.App.3d 432, 439.)

For these reasons, the Persings’ request for judicial notice is GRANTED in its entirety, except as to the truth of hearsay statements set forth in the subject court records.
B. Gutierrez’s Request

Gutierrez asks the Court to take judicial notice of declarations filed in support of his opposition to the Order to Show Cause Why Preliminary Injunction Should Notice Issue and a declaration filed in support of the Persings’ request for a preliminary injunction.

These documents are generally proper subjects of judicial notice as they are court records, which are relevant to issues raised by the pending motion. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also Lockyer, supra, 24 Cal.4th at p. 422, fn. 2 [“There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.”].) However, the Court cannot take judicial notice of the truth of hearsay statements in the subject records. (See Woodell, supra, 17 Cal.4th at p. 455 [“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments-but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’”].)

Accordingly, Gutierrez’s request for judicial notice is GRANTED in its entirety, except as to the truth of hearsay statements set forth in the subject court records.

III. Evidentiary Objections

A. The Persings’ Objections

With their reply papers, the Persings submit objections to evidence offered by Gutierrez in opposition to the pending motion and a proposed order in the proper format pursuant to California Rules of Court, rule 3.1354.

Upon review of the objections, Objection Nos. 1-2, 7-9, 11, 13-14, 31-32, 34, 37-38 are overruled.

The remaining objections do not require rulings as they are immaterial to the disposition of the pending motion. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”].)

B. Gutierrez’s Objections

In his separate statement of undisputed material facts in opposition to the pending motion, Gutierrez sets forth objections to items of evidence that are listed in the Persings’ separate statement of undisputed material facts.

Gutierrez’s objections are procedurally improper because they are not set forth in a separate document. (See Cal. Rules of Ct., rule 3.1354(b) [all written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion].) Furthermore, Gutierrez failed to provide the Court with a proposed order for his evidentiary objections. (See Cal. Rules of Ct., rule 3.1354(c) [a party must provide a proposed order that complies with one of the formats described in the rule].)

Because Gutierrez’s evidentiary objections do not comply with the California Rules of Court, the Court declines to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

IV. Legal Standard on Motions for Summary Judgment and/or Adjudication

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘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.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. A summary adjudication is properly granted only if a motion therefor completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464, internal citations omitted.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468; see California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 631 (California Bank) [a party cannot avoid summary judgment or adjudication by asserting facts “based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact”].) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) The court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-718.)

V. Merits of the Motion for Summary Judgment of the Cross-Complaint

As a threshold matter, the Persings’ motion for summary judgment is procedurally improper because it does not dispose of the cross-complaint in its entirety.

A motion for summary judgment asks courts to determine that an entire action has no merit, or that there is no defense thereto, and to terminate the action without the necessity of a trial. (See Code Civ. Proc., § 437c, subd. (a).) Thus, “[s]ummary judgment is proper only if it disposes of the entire lawsuit.” (All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954.)

In the cross-complaint, Gutierrez alleges seven causes of action for: (1) quiet title to easement by implication; (2) quiet title to easement by necessity; (3) quiet title to prescriptive easement; (4) quiet title to equitable easement; (5) quiet title to irrevocable license; (6) declaratory relief; and (7) preliminary and permanent injunction. However, the Persings’ motion is silent as to the six and seventh causes of action for declaratory relief and preliminary and permanent injunction. The Persings only address the first through fifth causes of action in their memorandum of points and authorities, separate statement, and reply. Because the Persings fail to dispose of the sixth and seventh causes of action, they cannot meet their initial burden to establish that there is no triable issue of material fact with respect to the cross-complaint, as a whole.

Accordingly, the motion for summary judgment is DENIED.

VI. Merits of the Alternative Motion for Summary Adjudication of the First Through Fifth Causes of Action

A. First Cause of Action

In the first cause of action, Gutierrez alleges that he is entitled to quiet title to easement by implication. To support his claim, Gutierrez alleges that: the Gutierrez Property and the Persing Property were part of a single parcel in common ownership until January 11, 1974; prior to that date, the owner of the Gutierrez Property used the backwards C dirt roadway for ingress/egress to the Gutierrez property; the use was so long continued and obvious that it was intended to be permanent; in addition, the transfer of title of the Gutierrez Property to William L. Frasher and Darlene Frasher (collectively, “the Frashers”) referenced a Record of Survey depicting the ingress/egress easement; the depiction in the Record of Survey implies that the parties intended there to be an easement to the Gutierrez Property; the backwards C dirt roadway was and is reasonably necessary for the use and enjoyment of the Gutierrez Property as there is no other means of access; and when ownership of the Persing Property and the Gutierrez Property was divided between Lorenz and the Frashers, the ownership of the Gutierrez Property included an ingress/egress easement by implication of the Persing Property. (Cross-Complaint, ¶¶ 26-33.)

“The law does not favor the implication of easements. Such implication can only be made in connection with a conveyance, and in view of the rule that a conveyance is to be construed against the grantor, the court will imply an easement in favor of the grantee more easily than it will imply an easement in favor of a grantor. Whether an easement arises by implication on a conveyance of real estate depends on the intent of the parties, which must clearly appear in order to sustain an easement by implication. In order to determine the intent, the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted.” (Orr v. Kirk (1950) 100 Cal.App.2d 678, 681.) The elements necessary to create an easement by implication, upon severance of unity of ownership in an estate, are: (1) a separation of title (which implies unity of ownership at some former time as the foundation of the right); (2) necessity that before separation takes place the use which gives rise to the easement shall be so long continued and obvious as to show it was meant to be permanent; and (3) the easement must be reasonably necessary to the beneficial enjoyment of the land granted. (Ibid.)

In their motion, the Persings argue that Gutierrez cannot claim an implied ingress/egress easement over the backwards C dirt roadway for several reasons. First, the Persings point out that claim is based on an alleged interest in an implied ingress/egress easement over the backwards C dirt roadway that the Frashers had at the time ownership in the property was divided. The Persings assert that any such interest was released and extinguished by the Frashers’ execution of a quitclaim deed. Second, the Persings assert that there was no transfer or conveyance of the Gutierrez Property to another. Third, the Persings contend that there is no admissible evidence of obvious and apparent use of the alleged easement by the Frashers at the time the ownership in the Persing Property and the Gutierrez Property was divided. Fourth, the Persings argue that the alleged easement is not reasonably necessary to benefit the land. Finally, the Persings assert that the reference to the backwards C roadway in the Record of Survey does not create an implied easement. The Persings offer 71 undisputed material facts (“UMF”) in support of their arguments.

For the reasons articulated below, the Court finds that the Persings’ first argument based on the execution of the quitclaim deed is persuasive. With respect to the Persings’ first argument, the crucial facts are UMF Nos. 19-22. Those facts provide that the Gutierrez Property and the Persing Property were co-owned as a single parcel by the Frashers and Lorenz prior to September 1968; a Record Survey was recorded on September 20, 1968, reflecting the split of the parcel into two lots (i.e., the Gutierrez Property and the Persing Property); the Frashers and Lorenz retained joint ownership of those lots; and on January 25, 1974, the Frashers quitclaimed their interest in the Persing Property to Lorenz and Lorenz quitclaimed his interest in the Gutierrez Property to the Frashers. (UMF Nos. 19-22.) These facts are not disputed by Gutierrez in his opposition. Moreover, a review of the quitclaim deeds themselves demonstrates that the Frashers expressly released and forever quitclaimed to Lorenz their interest in the Persing Property as of January 25, 1974. (See RJN, Exs. H and I.)

It is well-established that “[a] quitclaim deed transfers whatever present right or interest the grantor has in the property.” (Westlake v. Silva (1942) 49 Cal.App.2d 476, 478 (Westlake); Howard Homes, Inc. v. Guttman (1961) 190 Cal.App.2d 526, 530 [“A quitclaim deed passes whatever interest, legal or equitable, that the grantor possesses at the time of its execution.”].) “A quitclaim deed, being a transfer and release to the grantee of whatever present title or interest the grantor has in the property quitclaimed, when made by the owner of an easement to the owner of the servient tenement operates as a release and extinguishment.” (Westlake, supra, 49 Cal.App.2d at p. 478.) A quitclaim deed is a method universally recognized as proper under the law to release any claim of an easement of a right of way over a lot. (Ibid.)

In light of the foregoing, the Frashers expressly released and extinguished any interest in the Persing Property that they may have had, including any implied easement, when they executed the quitclaim deed on January 25, 1974. Consequently, an implied ingress/egress easement over the backwards C dirt roadway was not transferred to Gutierrez when he purchased the Gutierrez Property.

In opposition, Gutierrez asserts extrinsic evidence raises a triable issue of material fact that the Frashers, in executing the quitclaim deed, never intended to extinguish their right and/or interest in the alleged easement over the backwards C dirt roadway. Gutierrez’s argument is not well-taken. Extrinsic evidence may be considered when the meaning of language in a document is disputed in order to determine whether a latent ambiguity reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible. (See Wolf v. Super. Ct. (2004) 114 Cal.App.4th 1343, 1350; see also Denver D. Darling v. Controlled Environments Construction, Inc. (2001) 89 Cal.App.4th 1221, 1236.) However, Gutierrez does not identify any latent ambiguity in the language used in the quitclaim deed, i.e., he does not identify any specific term that is ambiguous. Moreover, the evidence cited by Gutierrez in opposition does not reveal any latent ambiguity in the language of the document. Also, the evidence does not show that the Frashers intended to reserve an easement over the Persing Property at the time they executed the quitclaim deed. Rather, Gutierrez only points to evidence of actions taken, or not taken, by the Frashers after they had already executed the quitclaim deed. (See Opp’n., p. 16:14-22.) Such post-hoc actions do not reflect upon the parties’ intentions when the quitclaim deed was actually made. Thus, the Court finds that Gutierrez fails to raise a triable issue of material fact in opposition.

Accordingly, the motion for summary adjudication of the first cause of action is GRANTED.

B. Second Cause of Action

In the second cause of action, Gutierrez alleges that he is entitled to quiet title to easement by necessity. To support his claim, Gutierrez alleges that: the only means of access to the Gutierrez Property is by the backwards C dirt roadway; without use of the roadway he is landlocked because the Gutierrez Property is too steeply graded on the northern boundary for direct access to Arpin Roadway; the Gutierrez Property and the Persing Property had a common owner at the time of the conveyance of the parcel to the Frashers; and the roadway is necessary for the use and enjoyment of the Gutierrez Property. (Cross-Complaint, ¶¶ 34-37.)

“An easement by way of necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way, as when the claimant’s property is landlocked and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity.” (Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049.) It is “of common-law origin and supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation …. Thus, the legal basis of a way of necessity is the presumption of a grant arising from the circumstances of the case. This presumption of a grant, however, is one of fact, and whether a grant should be implied depends upon the terms of the deed and the facts of each particular case.” (Daywalt v. Walker (1963) 217 Cal.App.2d 669, 672-673.) Stated more succinctly, based on the foregoing policy, in certain limited circumstances an easement may be implied where it is “absolutely essential” as access to a dominant tenement. (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 130.)

In their motion, the Persings argue that Gutierrez cannot claim an ingress/egress easement over the backwards C dirt roadway by necessity because the Gutierrez Property can be directly accessed from Arpin Road, which connects to Oak Glen Avenue. The Persings assert that, as a matter of law, the fact that the northern boundary of the Gutierrez Property is too steep to access Arpin Road does not constitute strict necessity. In support of their argument, the Persings offer the following UMF: the Gutierrez Property is not landlocked; the Gutierrez Property can be directly accessed from Arpin Road, which connects to Oak Glen Avenue; Gutierrez merely alleges that the Gutierrez Property is too steeply sloped on its northern boundary to permit access to Arpin Road; (UMF Nos. 73-73.) The evidence supporting the UMF are the cross-complaint, and the declarations of Jon Persing and Anthony C. McCants, an expert surveyor. (See Persing Dec., ¶¶ 9 and 12; see also McCants Dec., ¶ 10.)

The Court finds that the Persings’ argument is well-taken. In order to establish an easement by necessity, the dominant tenement must be completely landlocked, the easement must be strictly necessary for access to the dominant tenement; there cannot be any other possible means of access. (See Reese v. Borghi (1963) 216 Cal.App.2d 324, 331-32, superseded by statute on other grounds [“[t]he California rule is settled that a right-of-way necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way as when the claimants’ property is landlocked …”].) “A way of necessity cannot exist except in case of strict necessity; that is, when the claimed way furnishes the only means by which access may be had to the claimant’s property. It does not exist where a man can get to his property through his own land, even though that way is steep or narrow, or presents other and like difficulties. The mere fact that the land owned by the claimant is bounded on one side by a road which connects with county roads is alone fatal to the existence of a way of necessity over another road on his grantor’s land. And it is immaterial that a roadway on the grantor’s land would be a more convenient way for the grantee to reach his property. Even the fact that an available road is impassable confers no more than a temporary right to pass over adjoining land.” (Daywalt v. Walker (1963) 217 Cal.App.2d 669, 672; Kripp v. Curtis (1886) 71 Cal. 62, 65 [“It will not exist where a man can get to his property through his own land. That the way over his own land is too steep or too narrow, or that other and like difficulties exist, does not alter the case, and it is only where there is no way through his own land that a grantee can claim a right over that of his grantor.”].)

In opposition, Gutierrez fails to raise a triable issue of material fact. Gutierrez’s opposition does not address the second cause of action in any respect. Moreover, Gutierrez’s declaration establishes that it is possible for him to construct a roadway over the northern boundary of the Gutierrez Property to the Arpin Roadway, although to do so would be difficult and expensive. (See Gutierrez Dec., ¶ 13.)

Accordingly, the motion for summary adjudication of the second cause of action is GRANTED.

C. Third Cause of Action

In the third cause of action, Gutierrez alleges that he is entitled to a prescriptive easement. To support his claim, Gutierrez alleges that: his claim is based on his and the Frashers’ actual, open, notorious, and hostile use of the backwards C dirt roadway under a claim of right for at least five years; and the use was continuous and uninterrupted. (Cross-Complaint, ¶¶ 48-41.)

“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.” (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.) The elements necessary to establish a prescriptive easement 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.) Whether the elements of a prescriptive easement have been established is a question of fact for the trial court. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.)

In their motion, the Persings argue that Gutierrez cannot claim a prescriptive easement because (1) any alleged use of the backwards C dirt roadway was not sufficiently open, notorious, and hostile; and (2) even if there was a prescriptive easement it was extinguished by non-use. In support of their arguments, the Persings offer UMF Nos. 76-116. These UMF, and the evidence cited in support of the same, show that the Persings lived in the area since 2005; Jon Persing occasionally sees trespassers in the area; from 2005 to July 8, 2016, the Persings did not see anyone using the Persing Property or the Gutierrez Property on a regular basis; Gutierrez did not begin using the Gutierrez Property until 2016; the aerial photographs show only the existence of the roadway, not who was using it; at most there are a total of ten to fifteen instances of persons associated with the Frashers walking across the alleged easement. (See UMF Nos. 105-114.)

However, the Persings’ evidence, in conjunction with evidence submitted by Gutierrez in opposition, raises a triable issue of material fact. The aerial photographs show that the backwards C dirt roadway has continuously been in existence since the mid-1960s. Furthermore, the deposition testimony of Richard Fagerlund (“Fagerlund”) establishes that Fagerlund saw William L. Frasher using the alleged easement on at least two occasions after Fagerlund purchase his nearby parcel in 2001. (See Matteoni Dec., Ex. N, pp. 75:18-21, 113:1-116:12.) Additionally, in 2002, Jack Guercio started to market the Gutierrez Property for sale at the request of the Frasher family. (See RJN, Ex. A, Guerico Dec., ¶¶ 2-5.) On numerous occasions over the next 14 years, he visited the Gutierrez Property using the alleged easement. (Ibid.) The Frashers’ son-in-law, Jeff Cremona, also used the alleged easement to access the Gutierrez Property approximately two times in the last five years. (See Matteoni Dec., Ex. M., pp. 13:1-14:17.) He also used the easement with his wife, the Frashers’ daughter, on a few occasions in the 1980s. (Id. at pp. 16:1-17:18.) Finally, Gutierrez himself used the alleged easement multiple times after he purchased the Gutierrez property and prior to the filing of this action. (See Gutierrez Dec., ¶¶ 5, 8-10.)

This evidence shows that together, Gutierrez, the Frashers, and the Frashers’ family, guests, and business invitees have been using the alleged easement along the backwards C dirt roadway for many more years than five. (See Applegate v. Ota (1983) 146 Cal.App.3d 702, 709 (Applegate) [“The fact that a roadway is used by family, guests, relatives and business invitees is evidence that supports the inference that use was adverse and not permissive”].) Notably, periods of prescriptive use by successive owners of the dominant estate can be “tacked” together. (See Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 270, disapproved on other grounds in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (Cal., July 31, 2017, No. S223536) 2017 WL 3222520.) There is no evidence of concealment or furtive conduct. Moreover, there has been a continuous and uninterrupted use of the roadway. Here, the evidence indicates that whenever Gutierrez and the Frashers needed the roadway from time to time, they made use of it. As the Gutierrez Property was largely vacant, their need only arose occasionally; but, arguably, this is nonetheless “a continuous use.” (See Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593–94; see also Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432 [“A use may be continuous [italics added] though there are periods of time more or less extended between the specific acts of use. Many easements, such as rights of way and rights of hunting or fishing, which are periodical or only occasional in use may be acquired by prescription. The requirement means that there be no break in the essential attitude of mind required for adverse use rather than that the use be constant.”].) Finally, constructive notice can be inferred. (See Applegate, supra, 146 Cal.App.3d at p. 709 [“Notice to Crocker can be inferred or implied since visible, open and notorious use implies that the owner had either actual or constructive notice”].)

In light of the foregoing, the motion for summary adjudication of the third cause of action is DENIED.

D. Fourth Cause of Action

In the fourth cause of action, Gutierrez alleges that he is entitled to an equitable easement. To support his claim, Gutierrez alleges that: any trespass by him over the backwards C dirt roadway was innocent rather than willful or negligent; he was advised in advance of purchasing the Gutierrez Property that he had an ingress/egress easement over the Persing Property; if he had known that he had no such right, he would not have acquired the Gutierrez Property; the public and the Persings will not be irreparably injured by his use of the roadway for ingress/egress to the Gutierrez Property; his hardship from having to cease his use of the roadway is disproportionate to the hardship caused to the Persings; the Persings cannot develop the portion of their property that the roadway runs over; his use does not interfere with the Persings’ use of the remainder of their property; and if he cannot use the roadway, he cannot access his property. (Cross-Complaint, ¶¶ 42-46.)

“A court may create an easement on equitable grounds even though the user is not entitled to an easement on one of the more traditional grounds. When (1) a party has used and improved an easement for a long period of time with an innocent belief that he or she had a right to use the easement, (2) there would be irreparable harm if the party could not continue to use the easement, and (3) the servient tenement would suffer little harm from the further use of the easement, a court can exercise its equitable jurisdiction and issue a permanent injunction against interference with future use.” (6 Miller & Starr, California Real Estate (4th ed. 2016) Easements, § 15:46, pp. 15-172-15-173; see Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008.) Courts have extended this doctrine into cases involving access easements to real property. (6 Miller & Starr, California Real Estate (4th ed. 2016) Easements, § 15:46, p. 15-175.)

In their motion, the Persings argue that Gutierrez cannot claim an equitable ingress/egress easement over the backwards C dirt roadway for several reasons. First, they contend that Gutierrez’s trespass was not innocent. The Persings assert that Gutierrez had actual and constructive knowledge that he did not have an easement over their property because: the “Seller Vacant Land Questionnaire” completed by Darlene Frasher indicated that she was not aware of any use of any neighboring property by her; the preliminary title report and final policy of title insurance did not reflect the alleged easement; had Gutierrez contacted a surveyor, he would have learned that the only express easement was the one along Arpin Road; the Persings did not do anything to give Gutierrez the impression that he had an easement over their property; and the people who allegedly told Gutierrez that he had the alleged easement are not affiliated with the Persings. The Persings also contend that they will suffer irreparable harm because they will lose the right to exclude others; they will be prevented from using their property in any manner they see fit; they will be at risk of legal liability from users of the alleged easement; they will be at risk of disputes and litigation regarding the scope and maintenance of the alleged easement; and they will lose their enjoyment of their rural and private residence. Finally, they assert that the harm to Gutierrez is not disproportionate because he is not landlocked and he can use the Arpin Roadway to access his property.

In support of their arguments, the Persings offer UMF Nos. 117-152. While the Persings’ evidence generally support their UMF, their evidence, in conjunction with evidence presented by Gutierrez in opposition, raises a triable issue of material fact as to each element of the claim for equitable easement.

With respect to the first element of the claim, as Gutierrez persuasively argues, his mere negligence is not necessarily, as a matter of law, sufficient to defeat his claim. (See Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 266 [“It is well settled that the doctrine of balancing conveniences does not apply to willful conduct. [Citation.] But negligence is another matter. The doctrine presumes the defendant is a wrongdoer. [Citation.] It hardly could be applied if a showing of some negligence is in every case enough to defeat its application.”].) The evidence presented in the Persings’ moving papers does not rise to the level of willfulness; at best, it indicates that Gutierrez was negligent in failing to discover that he did not have an easement over backward C dirt roadway on the Persing Property. “The question … whether the quantum of the defendant’s negligence is so great as to justify an injunction is a matter best left to the sound discretion of the trial court. In exercising that discretion, the court must consider the conduct and intent not only of the defendant, but also of the plaintiff. [Citation.] The trial court’s consideration of the conduct of the parties must in turn be made in light of the relative harm that granting or withholding an injunction will do to the interests of the parties.” (Id. at p. 267.) Given the fact that there are triable issues of material fact with respect to the potential hardship to the Persings and Gutierrez, as articulated below, it cannot be said, at this point in time, the Gutierrez’s negligence was so great as to bar his claim.

With respect to the second element, there is a triable issue of material fact as to whether Gutierrez would suffer irreparable harm if he could not use the backwards C dirt roadway to access his property. The evidence indicates that Gutierrez would have to expend substantial effort and money to attempt to create a driveway on the northern boundary of his property to access Arpin Roadway (Gutierrez Dec., ¶¶ 10-11 and 13.) He has installed a large water tank, horse stables, and tool sheds on the Gutierrez Property. (Ibid.) He also stores tools there. (Ibid.) This evidence is sufficient to raise a triable issue of material fact.

Finally, with respect to the third element, there is a triable issue of material fact as to whether the Persings would suffer minimal harm. The evidence shows that the backwards C dirt roadway has existed over the Persing Property for several decades; the roadway has been used for ingress/egress purposes by various people for decades; the Persing Property is currently vacant and undeveloped; and the Persings reside on Persing Ranch, which is a separate and larger parcel of land. (Persings’ UMF Nos. 8-9, 33-34, 39, 43-44, 50-51, 106, and 110-113.) Given the foregoing, on balance, it cannot be said as a matter of law that Gutierrez’s potential harm is not disproportionate to the Persings’ potential harm.

Accordingly, the motion for summary adjudication of the fourth cause of action is DENIED.

E. Fifth Cause of Action

In the fifth cause of action, Gutierrez alleges that he is entitled to an irrevocable license. To support his claim, Gutierrez alleges that: Lorenz promised the Frashers the right to cross over the portion of the backwards C dirt roadway that crosses over the Persing Property; in reliance on that offer, the Frashers agreed to the subdivision of the parcel that was comprised of both the Persing Property and the Gutierrez Property, without the formal recordation of an express ingress/egress easement, and to quitclaim their interest in the Persing Property; but for this alleged promise, the Frashers would not have agreed to the subdivision or to quitclaim their interest in the Persing Property; in reliance on the alleged promise, Gutierrez expended money and labor making improvements on the Gutierrez Property; Lorenz and the Persings knew of his and the Frashers’ detrimental reliance on this promise of a license; and it would be inequitable to terminate the license.(Cross-Complaint, ¶¶ 48-51.)

A license granted by a private person is generally defined as a personal, revocable and non-assignable permission or authority to do an act or acts on the land of another. (See Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 429.) A license is generally revocable at any time at the will of the licensor. (See Golden West Baseball Co. v. Anaheim (1994) 25 Cal.App.4th 11, 36.) If a licensee, in reliance on a license, has expended money in improvements so that termination of the license would be inequitable, the licensor may be estopped from revoking it. In this event the license becomes the equivalent of an easement. (See Cooke v. Ramponi (1952) 38 Cal.2d 282, 286.) “Under certain circumstances a license which is ordinarily revocable at will may become irrevocable by the licensor, when the licensee, acting in good faith under the terms of the instrument, constructs valuable improvements on the property, making it unjust to permit the cancellation without first fully compensating the licensee for his loss and expenditure of money.” (See Belmont County Water Dist. v. State of California (1976) 65 Cal. App. 3d 13, 17.)

“Permission sufficient to establish a license can be express or implied. [Citation.] ‘ “A license to use real property may be … proved by circumstances such as tacit permission or acquiescence in acts already done….” ’ [Citation.] A license may also arise by implication from the acts of the parties, from their relations, or from custom. When a landowner knowingly permits another to perform acts on his land, a license may be implied from his failure to object. [Citation.] In other words, ‘a license may result from circumstances as, for instance, where a person has continued in possession for such a length of time and under such circumstances that objection might well have been expected had there been no assent. [Citations.]’ [Citation.]” (Richardson v. Franc (2015) 233 Cal.App.4th 744, 755 (Richarson).)

As a preliminary matter, the Persings contend that the conveyance of the Persing Property to them by Lorenz ended any license that the Frashers may have had as a matter of law. While a conveyance of the property burdened with a license generally revokes the license, it is well-established that a license may become irrevocable when a landowner knowingly permits another to repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the continuation of the license, has expended time and a substantial amount of money on improvements with the licensor’s knowledge. (Richardson v. Franc (2015) 233 Cal.App.4th 744, 753 [once a license is irrevocable it continues for so long as the nature of the use required the continuance of the license] (Richarson).) Thus, the mere act of conveyance, in and of itself, is not fatal to the claim.

Next, the Persings assert that the Frashers’ execution of the quitclaim deed terminated the license. However, the Persings do not cite any legal authority whatsoever providing that a license made irrevocable by reliance can be extinguished by the execution of a quitclaim deed. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Notably, a quitclaim deed extinguishes interests in land and license does not create an interest in land, but a personal privilege. (See Fisher v. General Petroleum Corp. (1954) 123 Cal.App.2d 770, 776; see also Richardson, supra, 233 Cal.App.4th at p. 758.)

In addition, while the Persings assert that the Record of Survey is insufficient to establish that Lorenz promised the Frashers a license to use the backwards C dirt roadway on the Persing Property (see Mem. Ps. & As., p. 6:23-25), they do not submit any evidence or UMF demonstrating that the Record of Survey is Gutierrez’s only evidence of such a promise and that he cannot obtain any other such evidence. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [a defendant may also demonstrate that an essential element of the plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing”]; see also Weil & Brown, Cal. Prac. Guide: Civil Proc. Before Trial (The Rutter Group 2015) ¶ 10:242, [“Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.”].)

Finally, the Persings persuasively argue that there is no admissible evidence that the Frashers relied on such a promise by expending time and a substantial amount of money on improvements. In support of this argument, the Persings offer UMF Nos. 191 and 192. Those UMF provide that the Frashers did not expend time and a substantial amount of money improving the property and the Gutierrez Property was and remained vacant when Gutierrez purchased it. The Persings’ evidence—Gutierrez’s discovery responses and their declarations—generally support the UMF. In his discovery responses, Gutierrez admitted that he did not know what money and labor where expended by the Frashers to improve the Gutierrez Property. (See Ross Dec., Ex. E, p. 28:3-15.) Also, Jon Persing declares that the Gutierrez Property was vacant and undeveloped at the time it was purchased by Gutierrez. (Persing Dec., ¶5.)

In opposition, Gutierrez fails to raise a triable issue of material fact. Gutierrez offers aerial photographs as evidence that a graded building pad was constructed on the Gutierrez Property sometime between 1966 and June 1968. (See Ruiz Dec., ¶ 5.) However, it is undisputed that the Gutierrez Property was jointly owned by the Frashers and Lorenz during that time period. Consequently, Gutierrez is speculating that the graded building pad was paid for and constructed by the Frashers as opposed to Lorenz. (See California Bank, supra, 222 Cal.App.4th at p. 631 [a party cannot avoid summary judgment or adjudication by asserting facts “based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact”].)

For this reason, the motion for summary adjudication of the fifth cause of action is GRANTED.