Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. S.C. 084068, Lisa Hart Cole, Judge.
Dickstein Shapiro, James H. Turken and Chandra R. Hinman, for Plaintiff and Appellant Gary Gelfand, Trustee of the Bruce Gelfand Living Trust.
Procter, Slaughter & Reagan, James N. Proctor II and Gabriele M. Lashly for Defendants and Respondents Wolfgang Peter Grassl and Silgia Grassl.
ZELON, J.
Plaintiff Gary Gelfand, as Trustee of the Gary Gelfand Living Trust (Gelfand), appeals the judgment on his claims for prescriptive easement and equitable easement arising out of a fence dispute with his neighbors, defendants Wolfgang Peter Grassl and Silgia Grassl (the Grassls). The fence, located on the Grassls’ property and benefitting Gelfand’s property, was built by Gelfand’s predecessor-in-interest. The trial court granted summary judgment, concluding that Gelfand could not establish a prescriptive easement because the fence was there with the permission of both the Grassls and their predecessor, and also that Gelfand was not entitled to an equitable easement. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Events Relating to the Fence and Gelfand’s Purchase of the Robbins’ Property.
Gelfand and the Grassls are next-door neighbors on Lachman Lane in the Pacific Palisades. There is a slope between the houses; Gelfand’s house is on the upper slope. In the area, due to the topography, there are numerous boundary fences that do not conform to property lines because fences strictly placed on lot lines would obscure the view. This aberration, termed “Lachman Syndrome” by the Grassls, permits homeowners to preserve the panoramic views from their lots while complying with City requirements that pools and spas be fenced. At the time Gelfand purchased the home, there was a fence downslope on the Grassls’ property that the Robbins, Gelfand’s predecessors, built in 1973. The parties do not dispute the fence at issue here is on the Grassls’ property.
There is some evidence in the record the fence was built in 1971 and replaced in 1973; however, the parties all assert that the fence was built in 1973.
Both parties commissioned surveys of the property; both surveys were in agreement regarding the location of the property line.
William and Juliana Robbins owned Gelfand’s home from August 1971 until they sold it to Gelfand in January 2003. When the Robbins moved in, the Grassls’ home was owned by Wendy Graham. Both of the Robbins testified at their depositions that they asked Graham if they could build a fence on Graham’s property. William Robbins testified they drew up a contract in December 1972, and Graham stated they could put up the fence. The Robbins did not claim to own the 10 feet of land of the Grassls’ property that was on the Robbins’ side of the fence, although they gardened and watered the area. Wendy Graham denied giving anyone, including the Robbins, permission to build a fence on her property.
The Grassls purchased their home in January 1976. Silgia Grassl and her husband always believed that the chain link fence on their property, which was 10 feet downslope from the property line, had been built with their permission. During the 1970s and 1980s, Peter Grassl recalled having conversations about the fence with the Robbins, although in his deposition he declined to characterize them as “discussions.” Robbins told Gelfand that sometime in 1976, and again in 1988 or 1989, the Grassls asked him to put something in writing regarding the fence. Gelfand recalled that Robbins would not agree to what Grassl wanted to put in writing. Juliana Robbins denied that Peter Grassl asked her to sign anything during the 1970s regarding the fence.
Juliana Robbins acknowledged at her deposition that Peter Grassl wanted the Robbins to sign his letter; they did not want to do so. They knew when they put the fence in that it was on Graham’s property. At some point in time, she recalled that they had a discussion with the Grassls that they would sit down and discuss the fence. Gelfand testified that William Robbins told him that what the Grassls wanted reduced to writing was not acceptable to him. Robbins stated to Gelfand that discussions with the Grassls about putting something in writing about the fence started in 1976.
In August 1989, in connection with a remodel to the Grassls’ home, the Robbins sent at letter to the City’s Zoning Administration Office to express their support and to advise the City that disputes in the neighborhood were usually resolved in a friendly manner. “Disputes . . . have always been settled in a friendly and neighborly manner. For example, like in many other properties in this area, our downhill fence is a couple of feet on the Grassls’ property to avoid that the fence obstructs our city view. The Grassls never objected to this, nor did other neighbors in similar situations.”
In November 2002, Peter Grassl learned the Robbins were selling their home. He became concerned about the state of the fence, and sent the Robbins a letter dated November 20, 2002, stating, “Julie and Bill, the only matter to address at this time are the fences (or parts thereof) which you erected on our property for reasons of view preservation and convenience. It has been always our understanding between the four of us . . . that the fences were on our property with our permission strictly for your convenience and that at any time but certainly upon change of ownership of your property the continued location of the fences on our property would be at Silgia’s and my discretion and that, upon our request, they would be subject to removal at any time.” Grassl requested that the Robbins sign the letter and return a copy to him.
The Robbins refused to sign the letter, and returned it to Grassl with several lines crossed out. As relevant to the dispute here, the Robbins lined out the language “but certainly upon change of ownership of your property” and words “at any time” following the words “subject to removal.”
On November 22, 2002, the Robbins wrote the Grassls, “After receiving your fax yesterday and phone conversations today, Julie and I would like to suggest that you continue the good neighbor policy that existed for over 25 years between the Grassls and Robbins with the new owner. . . . Our buyer, Gary Gelfand, was notified [of] the following in the disclosure statement in escrow: ‘. . . . Backyard fences on neighbors properties (with permission). . . .’ [¶] As stated above, why not try to continue the good neighbor policy with Mr. Gelfand, before removing fences and erecting barriers. I am sure he will be a ‘good’ neighbor, and if not, or with any threat of encroachment on your property, then request that the fence be removed.”
Peter Grassl testified at his deposition that he became concerned when the Robbins refused to follow up on what he considered to be their promise of 20 to 25 years. He admitted that he never directly told the Robbins he would remove the fence, but “I wrote them in terms, you know, where any halfway intelligent person would know that I was going to remove the fence.”
On January 3, 2003, Peter Grassl wrote to the Robbins concerning their refusal to sign the letter. “It was always understood among the four of us that you would give us a letter confirming the status of the fence, if and when you would sell the house. . . . [¶] . . . [¶] . . . your November 22 fax had one paramount . . . effect: it brought home the overriding thought that we must establish good and warm neighborhood relations with our new neighbor right from the start and that we cannot burden that new relationship with unresolved issues and possible controversies which arose from the actions of the selling neighbor. . . . [¶] Since we do not believe that you ever contemplated, in the past or in the future, to deprive us of our basic property rights by legal action or otherwise. . . .”
Grassl attached a letter that he requested the Robbins to sign which stated, “This will confirm our longtime understanding that the fence that we previously erected on your property was installed and maintained there at all times with the revocable permission of yourself and the prior owner of the property.” The Robbins did not sign the letter. Juliana Robbins testified at her deposition that the Robbins did not feel it was appropriate to sign.
Prior to close of escrow on March 1, 2003, Grassl removed the fence. William Robbins did not give him permission to do so. During this time, both Gelfand and Grassl commissioned surveys of the property line. Both surveys were in agreement regarding the location of the property line.
Because City ordinances required a six-foot high fence around his pool, which would have obscured his panoramic view, Gelfand filed a complaint that sought an easement for the fence on various theories.
Gelfand’s first amended complaint filed June 10, 2005 stated 12 claims for relief: prescriptive easement; equitable easement; agreed boundary; trespass; conversion; violation of the CC&Rs; declaratory relief (two claims); breach of written agreement; failure to disclose; negligent misrepresentation; and fraudulent misrepresentation.
2. The Grassls’ Summary Judgment/Summary Adjudication Motion.
The Grassls moved for summary judgment or summary adjudication of Gelfand’s complaint. On the first and seventh causes of action (prescriptive easement and declaratory relief), the Grassls argued that at all times the fence was erected and maintained with their permission, and that a prescriptive easement for the fence would be a prohibited exclusive easement. On the second cause of action for equitable easement, they argued that because Gelfand purchased the property in 2003, he could only acquire a right through them, and that he lacked an innocent belief that he had a right to use the easement, nor could he claim irreparable harm or relative hardship because he was informed the fence was not on the property line during escrow.
Gelfand argued in opposition that because neither Wendy Graham nor the Grassls gave the Robbins permission to erect the fence and the evidence demonstrated a significant amount of animosity between the Robbins and the Grassls, the Robbins had acquired a prescriptive easement through their adverse use. Further, he argued that an equitable easement should be found based upon irreparable harm suffered and the balancing of the relative hardships.
On May 18, 2006, the court issued its order granting the motion for summary adjudication as to the first (prescriptive easement), second (equitable easement), third (agreed boundary) and seventh (declaratory relief) causes of action on the grounds of no triable issue of fact, and denied the motion to the remaining causes of action. The court found the first, second, and seventh causes of action were based upon tacking Gelfand’s interest to the Robbins’s interest, and that the Robbins’s use was not permissive. However, the court pointed to the deposition testimony showing the use was with consent, and that Gelfand attempted, but was unable to create, a triable issue by showing the proposed written agreement was never executed.
Gelfand dismissed his remaining claims, and judgment was entered for the Grassls on November 21, 2006. Gelfand dismissed his remaining claims against the Robbins on December 11, 2006.
DISCUSSION
Gelfand appeals from the judgment on his claims for prescriptive easement, equitable easement, and declaratory relief. He contends that triable issues of fact exist on his prescriptive easement claim whether the fence was on the Grassls’ property with their permission; the trial court failed to balance the hardships on his equitable easement claim; and that on his claim for declaratory relief the trial court has broad discretion to fashion appropriate relief.
I. STANDARD OF REVIEW.
“[T]he 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 judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists where “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.” (Aguilar, supra, at p. 850.) Where summary judgment has been granted, we review the trial court’s decision de novo, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navigar, Inc. (2001) 26 Cal.4th 465, 476.) In conducting our review, we undertake an independent analysis of the record as a whole. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465.) We must consider all inferences from the evidence, even those that appear to be contradicted by evidence offered by the moving party. For a summary judgment motion to properly succeed, the evidence must leave no room for conflicting inferences as to material facts. Further, the trial court may not weigh inferences and evidence. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 841.)
II. PRESCRIPTIVE EASMENT.
To obtain a prescriptive easement, the claimant must establish use which is (1) open and notorious, (2) continuous and uninterrupted, (3) under claim of right, (4) hostile to the true owner, and (5) for the statutory period of five years. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) A prescriptive easement, unlike adverse possession, does not require payment of taxes. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321-322; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.) The scope of a prescriptive easement is determined by the use through which it is acquired. (Otay Water District v. Beckwith (1991) 1 Cal.App.4th 1041, 1047; see 6 Miller & Starr, Cal. Real Estate (3d. ed. 2006) § 15.58, pp. 15-192-15-193 [once a prescriptive easement has been acquired, the location and extent of its use is determined by the use during the prescriptive period].)
An easement, by definition, is less than an unqualified ownership right. “‘An easement involves primarily the privilege of doing a certain act on, or to the detriment of, another’s property.’ [Citation.] An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership.” [Citation.] (Mehdizadeh, supra, 46 Cal.App.4th at p. 1306.) Where the use becomes so comprehensive that it is the functional equivalent of ownership and conveys unlimited use, it becomes an estate. (Ibid.) “An easement . . . is not an ownership interest, and certainly does not amount to a fee simple estate . . . [to do so] prevents the classical distinction in real property law between ownership and use.” (Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564; see also Raab v. Casper (1975) 51 Cal.App.3d 866, 876-877.)
The weight of California authority prohibits a prescriptive easement for a fence on another’s property where the fence prevents the servient tenement from making any use, occupancy, or enjoyment of the land. (Mehdizadeh, supra, 46 Cal.App.4th at p. 1308.) The net result of such exclusive use would impair the “determinative legal effect to the description of land contained in a deed . . . [and] would dispossess an unconsenting landowner of property while circumventing readily available, accurate legal descriptions.” (Ibid.)
Courts have applied this rule prohibiting exclusive prescriptive easements for fences uniformly. (See, e.g., Mehdizadeh, supra, 46 Cal.App.4th 1296, 1308 [no prescriptive easement where servient tenement “fenced off from property subject to easement”]; Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564 [no prescriptive easement for fence enclosing yard]; Kapner v. Meadowlark Ranch Association (2004) 116 Cal.App.4th 1182, 1187 [no prescriptive easement for fenced off area]; Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093 [exclusive prescriptive easement will not be granted in “garden-variety residential boundary encroachment”].)
In contrast, in Otay Water District v. Beckwith, supra, 1 Cal.App.4th 1041, the trial court granted an exclusive prescriptive easement to a water district, giving it the right to use land it had enclosed for reservoir purposes. Although the use was exclusive, the court did not find it tantamount to a fee interest because the trial court “granted Otay an easement consistent with its historical use, restricting Otay’s use of the property for reservoir purposes only and prohibiting Otay from increasing the burden placed upon the servient estates. If Otay stops using the property as a reservoir or increases the burden on Beckwith’s property, Otay’s easement can be taken away. Such a restricted use is not the same as a fee interest.” (Id. at p. 1048.) Further, the plaintiff established his exclusive use was necessary to prevent potential contamination of the water supply and for other health and safety reasons. (Id. at pp. 1047-1048.)
Here, even if factual issues existed whether the use of the fence was permissive, Gelfand cannot, as a matter of law, obtain an exclusive prescriptive easement for the fence because his use would be exclusive. To avoid this limitation, he asserts that his complaint seeks relief that would permit the Grassls ingress and egress to the disputed land, and therefore an exclusive easement would not be created. However, Gelfand put forth no evidence in opposition to summary judgment to support this assertion; because he is not entitled to rest on his pleadings to meet his burden on summary judgment, we find no error. (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1210-1211 [party cannot rely on its own pleadings on summary judgment].)
III. EQUITABLE EASEMENT.
Gelfand argues that the trial court failed to balance the hardships to determine whether he was entitled to an equitable easement. We disagree.
“Although more recent court decisions have used the term ‘equitable easement’ to refer to the balancing of hardships analysis, a number of cases have used the term ‘equitable easement’ to apply to a judicially created or enforced covenant of equitable servitude.” (6 Miller & Starr, Cal. Real Estate (3d ed. 2007), § 15:46.) In Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (Hirshfield), the court distinguished the exclusive prescriptive easement cases, finding it “notable that in Raab, Silacci, and Mehdizadeh there is no mention of a court’s power in equity to create a protective interest in favor of an encroacher.” (Id. at p. 768.) Hirshfield concluded that those cases were concerned with “defending the integrity of the adverse possession laws.” On the other hand, “[t]he fundamental distinction between a protective interest in equity and a prescriptive easement is illustrated by the different rationales behind these two theories. Adverse possession and prescriptive easements express a preference for use, rather than disuse, of land. They are designed not to reward the taker or punish the dispossessed, but to reduce litigation and preserve the peace by protecting long-standing possession. . . . Equity is manifestly different. When a court exercises its equity powers, its principal concern is to promote justice, acting through its conscience and good faith.” (Id. at p. 769.)
Therefore, a court may create an easement on equitable grounds even though the encroacher is not entitled to an easement on one of the more traditional grounds. (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 237-238.) “It is our view that the better reasoned cases hold that in encroachment cases the trier of fact possess some discretion in determining whether to grant or to deny the mandatory injunction [to remove the encroachment].” In exercising that discretion, the court should consider whether (1) the encroachment is not the result of a willful act; (2) the party encroached upon will suffer irreparable injury from the encroachment (in which case the injunction should be granted), and (3) the hardship to the encroaching party is greatly disparate to that suffered by the other party. (Christensen v. Tucker (1952) 114 Cal.App.2d 554, 562-563.)
In Hirshfield, the plaintiffs sought the removal of the defendants’ encroachment on their land. The parties were next-door neighbors, and defendants had constructed landscaping that included underground water and electrical lines to run a swimming pool and a fountain on two portions of plaintiffs’ property. (Id. at p. 756.) In Hirshfield, the trial courtbalanced the equities based upon the Christensen factors and awarded the defendants an easement, noting that defendants had constructed the improvements based upon a mistaken belief that a chain-link fence properly marked the property line; the cost to them of relocating the water and electrical lines would be significant; the two parcels had limited value to the plaintiffs and were an insignificant portion of their property. The court awarded use of the parcels and ordered defendants to pay plaintiffs damages equal to the market value of the parcels. (Id. at pp. 757-758.) Hirshfield found the trial court balanced the equities properly, and that the easement awarded was a proper exercise of its equitable powers. (Id. at pp. 763-764.)
Although the trial court had labeled the interest an “easement,” Hirshfield found the interest was not subject to the limitations of prescriptive easements, and would be upheld unless it amounted to an abuse of the trial court’s discretion. Significantly, the trial court had not granted the defendants an unrestricted easement; rather, the relief was no greater than what was required to protect their use. The defendants could not expand their encroachments, and their rights in the parcels would terminate when they sold their home. (Hirshfield, supra, 91 Cal.App.4th at p. 772.)
Here, Gelfand cannot demonstrate error. He did not raise any failure to balance the equities below, and there is nothing in the record to support his assertion that the trial court failed to do so. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judgment of trial court is presumed to be correct].) The trial court, which found no dispute concerning permissive use, had the task of balancing the equities on the non-jury issue of whether Gelfand was entitled to an equitable easement. The record before us demonstrates no abuse of discretion.
Because the claim for declaratory relief was premised on the success of the easement claims, we need not address it further here.
DISPOSITION
The judgment of the superior court affirmed. Respondents are to recover their costs on appeal.
We concur, PERLUSS, P. J., WOODS, J.