Case Number: LC107131 Hearing Date: June 08, 2018 Dept: T

Julie Levine v. Carlos Gonzalez and Danielle Decker

Plaintiff Julie Levine is the owner of property commonly described as 24453 Clipstone Street in Woodland Hills (the “Clipstone Property”). Defendants Carlos Gonzalez and Danielle Decker are the owners of an adjacent lot commonly described as 5910 Pat Avenue (the “Pat Property”).

Ms. Levine seeks a preliminary injunction preventing alterations to a part of the Pat Property that she describes as “the Easement.” Mr. Gonzalez and Ms. Decker describe this are the “Back Lot.”

Based on the showing that is presented here, it is unlikely that Ms. Levine will prevail at trial. It appears undisputed that the Easement is actually a portion of the Pat Property. There is no written or recorded easement.

In an action between adjoining landowners, where it is found that a neighbor has made use of a defendant’s property, the owner is entitled to to a mandatory injunction requiring the defendant to remove the encroachment. Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1003. Under the doctrine of relative hardships, the Court may instead exercise its equitable powers to deny the injunction and grant an equitable injunction. Usually, this will require a payment to the landowner whose land is encumbered involuntarily. However, such grants of “equitable easements” are made sparingly, and only upon a showing of disproportional hardship. Usually the party receiving such an easement will be required to compensate the landowner who cannot make use of their own property.

In determining whether an equitable easement will be granted, the Court is to look at three factors:

For a trial court to exercise its discretion to deny an injunction and grant an equitable easement, “three factors must be present. First, the defendant must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury … regardless of the injury to defendant.’ Third, the hardship to the defendant from granting the injunction “must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.’” (Hirshfield, supra, 91 Cal.App.4th at p. 759, italics omitted.) “Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement.” (Shoen, supra, 237 Cal.App.4th at p. 19.)

Nellie Gail Ranch Owners Assn. v. McMullin 4 Cal.App.5th 982, 1003-04. For purposes of discussion here, Ms. Levene would be considered the “defendant” under the Nellie Gail factors, and Mr. Gonzalez and Ms. Decker would be considered the Plaintiff.

Here, it is unlikely that Ms. Levine will be able to establish the Nellie Gail factors at trial. While she does not directly address the issue, from her declaration she appears to acknowledge that “the Easement” is located within the Pat Property. She appears to have known this fact for a long time, but could have obtained a survey to verify it. She has not constructed any improvements on the Easement in reliance on any conduct of the owners of the Pat Property other than planting of trees and irrigation equipment, the removal of which do not create an extreme hardship to her. If a sprinkler system belonging to her was damaged, she has a remedy at law. Other than perhaps an aesthetic effect, “the Easement” does not provide the Clipstone Property with a benefit.

Mr. Gonzalez and Ms. Decker own the Pat Property, including “the Easement.” Based on the facts alleged, it is possible that some aspects of their plans for “the Easement” could negatively affect drainage or some other aspect of the Clipstone Property. As neighbors, it would be prudent to share these plans and take into account the effects of them on the neighbors. But there is no specific showing here that would cause the Court to intervene with a preliminary injunction.

The Court loves a beautiful tree as much as anyone else, but it is the right of the landowner to remove it.