Judge Bradley S. Phillips, Case Number: 22STCV25294, Date: 2025-06-13 Tentative Ruling

Judge: Bradley S. Phillips, Case: 22STCV25294, Date: 2025-06-13 Tentative Ruling

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Case Number: 22STCV25294 Hearing Date: June 13, 2025 Dept: 26

BACKGROUND

This case is about an easement. On August 4, 2022, Plaintiff Passmore Properties, LLC (“Plaintiff”) filed the instant quiet-title-to-easement action against Defendants Michael W. Fong and Benjamin Cioppa-Fong, as Trustees of the Cioppa-Fong Living Trust dated June 18, 2022 (jointly “the Fongs”), Yi Chi Shih, and Sue Jane Liu Shin (jointly “the Shihs”) (collectively “Defendants”). Ofer Dayan (“Mr. Dayan”) is the managing member of Plaintiff Passmore Properties, LLC in this action. (Dayan Decl. ¶ 1). The complaint asserts six causes of action for (1) Quiet Title to Easement, (2) Breach of Easement, (3) Private Nuisance, (4) Intentional Inference with Easement, (5) Injunctive Relief and Damages, and (6) Declaratory relief.

Plaintiff has owned the real property located at 3059 Passmore Drive, Los Angeles (“Passmore Property”) since 2002. (UMF 1.) Mr. Dayan bought the Passmore Property from the original builder, Raymond Monroe, in 2002. (UMF 6, 7.)

The Shihs own the real property located at 3040 Munro Circle, Los Angeles (“Shihn Property”). (UMF 2.) The Fongs have owned the real property located at 3036 Beckman Road (“Fong Property”) since 2019. (UMF 3.) The Shihn Property and the Fong Property share a driveway with a metal gate that exits off the main road. (UMF 4.) The Defendants’ properties were previously owned by Raymond Monroe (UMF 5.)

There is no public road access to the Passmore Property. There is, however, a secondary access route by way of a 10-foot-wide strip of land from Passmore Drive up an undeveloped slope that allows for access on foot. (UMF 9; Ex. A – Dayan Decl. ¶ 7, 9; Ex. AA – Survey Drawings.) Plaintiff contends that there is an express easement appurtenant running through the Shihn Property and the Fong Property for the benefit of the Passmore Property. (UMF 8; Plaintiff’s Ex. O – 1948 Grant Deed; Ex. K – 2009 Deed of Trust; Ex. L – 2011 Deed of Trust; Ex. M – 2019 Deed of Trust; Ex. N – 2022 Grant Deed; Ex. B – Goodman Decl.; Ex. A – Dayan Declaration; Ex. G – Dayan Deposition; Ex. F – Shihn Deposition.) The easement language is included in all of the deeds. (See Ibid.)

Defendants contend that the easement never existed and that, even if it had existed, Plaintiff abandoned the easement or the easement was adversely possessed by Defendants. Plaintiff contends that its agents repeatedly used the easement, while Defendants have submitted competing declarations. The declarations submitted by Defendants attest that they never provided access. (Mamikonyan Decl. ¶8, Ex. E, p. 20:14-17; Sue Shih Decl. ¶¶7-10; Michael Fong Decl. ¶¶12-14; Cioppa-Fong Decl. ¶¶12-14; April Shih Decl., ¶13.) Also, in September 2018, Defendants installed an automated gate box that closes and locks the gate that was previously left open to provide access for the easement to the Passmore Property. (UMF 12, 13; Exhibit Q – Shih Deposition 17:16-24, 30:20-25, 31:15-21; Exhibit S – Quote from Signature Garage Doors and Gates Inc.)

On December 9, 2025, Plaintiff filed the instant motion for summary adjudication of its causes of action for Injunctive Relief and Declaratory Relief. Defendants filed an opposition on May 30, 2025. Plaintiff’s reply was filed on June 6, 2025.

REQUESTS FOR JUDICIAL NOTICE

Plaintiff’s request for judicial notice of various public filings, including the Grant Deeds, Quitclaim Deed, and Deeds of Trust, (Ex. H – O) is granted. (Cal. Evid. Code § 452 subd. d.) Plaintiff’s requests for judicial notice of Google Earth Images (Ex. P – V) is denied because Plaintiff has not provided a valid basis for such notice. (See Cal. Evid. Code § 452.)

EVIDENTIARY OBJECTIONS

On May 30, 2025, Defendants filed evidentiary objections. The following are overruled: Dayan Declaration: 1, 12; Ban de Bovenkamp Declaration: 1. All other objections are sustained.

On June 6, 2025, Plaintiff filed evidentiary objections. The following are overruled: Fong Declaration: 1, 2, 3, 4, 5; Cioppa-Fong Declaration: 1, 3, 4, 5; Sue Lane Liu Shih Declaration: 1, 3, 4, 5. All other objections are sustained.

DISCUSSION

I. Declaratory Relief

If there is a properly pled cause of action for declaratory relief, summary adjudication may be proper even though the controversy between the parties spills over into other causes of action. (Southern Calif. Edison Co. v. Sup.Ct. (1995) 37 Cal.App.4th 839, 845 [the same issue raised in declaratory relief claim was raised in breach of contract and specific performance claims].) A party may not, however, cloak a nondispositive issue in a declaratory relief count to evade the requirement that a summary adjudication must completely dispose of the cause of action. (Hood v. Sup.Ct. (1995) 33 Cal.App.4th 319, 322-323 [the adjudication of the declaratory relief cause of action did not purport, by itself, to adjudicate the entirety of any cause of action].)

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366.)

Declaratory relief may be available for a determination of the existence or scope of an easement. (See Code Civ. Proc., § 1060 [authorizing declaratory judgment, in proper circumstances, regarding rights or duties "in respect to, in, over or upon property"].)

Here, an actual controversy has arisen between Plaintiff and Defendants concerning the easement, and Plaintiff’s request for a determination regarding the validity of the easement is a proper subject for declaratory relief. Accordingly, the validity of the easement and Defendants’ defenses may be assessed.

A. Existence of an Easement

An easement is an interest in the land of another which gives the owner of the easement the limited right to use the other's property. (Pacific Bell v. Public Utilities Com'n (2000) 79 Cal. App. 4th 269.) An affirmative easement gives its owner a right to do something on the land of another, such as a right-of-way to pass over another's property. (Wolford v. Thomas (1987) 190 Cal App 3d 347.) Easements can be created by express words, by grant or reservation, usually by deed, by implication, by necessity, and by prescription (Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406.)

An instrument granting or reserving an easement is subject to the same rules of construction applicable to deeds and is interpreted in the same manner as a contract. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512; Moylan v. Dykes (1986) 181 Cal.App.3d 561; Machado v. Southern Pacific Transportation Co. (1991) 233 Cal.App.3d 347.) When the creating instrument is ambiguous, the court looks to the surrounding circumstances, the relationship between the parties, the properties, and the nature and purpose of the easement in order to determine the parties' intention. (Wilson v. Abrams (1969) 1 Cal.App.3d 1030; Zissler v. Saville (2018) 29 Cal.App.5th 630.)

An easement is appurtenant when it is attached to the land of the owner of the easement and benefits him or her as the owner or possessor of that land. (Pacific Bell v. Public Utilities Com'n (2000) 79 Cal. App. 4th 269.) An easement in gross is a personal right in the easement owner and is not attached to the land. (Buehler v. Oregon-Washington Plywood Corp. (1976) 17 Cal 3d 520.) “Easements are presumed appurtenant unless there is clear evidence to the contrary.” (Cushman v. Davis (1978) 80 Cal.App.3d 731.) Where an appurtenant easement is involved, the easement remains attached to the dominant tenement even though the deed does not describe the easement, and successors of the owner of the dominant tenement can enforce the easement even though it is not specifically mentioned in their deeds. (Moylan v. Dykes (1986) 181 Cal App 3d 561.)

Here, Plaintiff asserts that there is no genuine dispute regarding the existence of the easement because the 1941 Grant Deed and the deeds of each property include the easement language. (Ex. O, 1-4.) All of the deeds include the following language:

AN EASEMENT FOR ROAD PURPOSES AND FOR PUBLIC UTILITIES TO BE USED TOGETHER WITH OTHERS, OVER THAT PORTION IN BLOCK "E" OF TRACT NO. 8361, IN THE CITY OF LOS ANGELES, AS SHOWN ON MAP RECORDED IN BOOK 103 PAGES 72 TO 75 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND OVER THAT PORTION OF LOT 1 OF THE REPLAT OF A PORTION OF THE PROPERTY OF THE LANKERSHIM RANCH LAND AND WATER CO., AS SHOWN ON MAP RECORDED IN BOOK 66 PAGE 83 ET SEQ. OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN A STRIP OF LAND 30.00 FEET WIDE THE CENTER LINE OF SAID 30 FOOT STRIP OF LAND BEING DESCRIBED AS FOLLOWS: BEGINNING IN THE NORTHWESTERLY LINE OF LOT 12, IN BLOCK "E" OF TRACT NO. 8361, DISTANT THEREON SOUTH 50° 48' 00" WEST 29.74 FEET FROM THE MOST NORTHERLY CORNER OF SAID LOT 12; THENCE SOUTH 30° 35' 12" EAST 2.27 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE WEST HAVING A RADIUS OF 48.12 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 80° 57' 53" A DISTANCE OF 68.00 FEET; THENCE SOUTH 50° 22' 41" WEST 36.72 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST, HAVING A RADIUS OF 150.00 FEET; THENCE SOUTHERLY ALONG SAID LAST MENTIONED CURVE, THROUGH A CENTRAL ANGLE OF 38° 19' 11" A DISTANCE OF 100.32 FEET; THENCE SOUTH 12° 03' 30" WEST 16.82 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 75.00 FEET; THENCE SOUTHWESTERLY ALONG LAST MENTIONED CURVE THROUGH A CENTRAL ANGLE OF 46° 57' 46" A DISTANCE OF 61.47 FEET; THENCE 59° 01' 16" WEST 73.94 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 146.37 FEET, THE BEGINNING OF SAID LAST MENTIONED CURVE BEING IN THE SOUTHERLY LINE OF SAID BLOCK "E" OF TRACT NO. 8361, DISTANT THEREON SOUTH 80° 09' 37" EAST 19.18 FEET FROM THE SOUTHWEST CORNER OF LOT 17 IN BLOCK "E" OF SAID TRACT NO. 8361; THENCE SOUTHWESTERLY ALONG SAID LAST MENTIONED CURVE THROUGH A CENTRAL ANGLE OF 29° 02' 03" A DISTANCE OF 74.17 FEET TO A POINT OF REVERSE CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 113.50 FEET; THENCE SOUTHWESTERLY ALONG SAID REVERSE CURVE, THROUGH A CENTRAL ANGLE OF 39° 54' 42" A DISTANCE OF 79.06 FEET; THENCE SOUTH 69° 53' 55" WEST 81.05 FEET TO THE SOUTHERLY END LIMIT OF PARCEL 2 SAID END LIMIT BEING A LINE AT RIGHT ANGLES WITH THE LAST ABOVE DESCRIBED COURSE. SAID 30 FOOT STRIP TO TERMINATE AT ITS NORTHERLY END IN THE NORTHWESTERLY LINE OF LOT 12 IN BLOCK "E" OF TRACT NO. 8361.

(Ex. O, 1-4.)

Defendants challenge the existence of an express easement, asserting that the 1941 Grant Deed is illegible. (See Ex. O, 4.) The Grant Deed is not completely illegible as Defendants contend. Although the 1941 Grant Deed is somewhat difficult to make out, the Court finds that the deed contains the same easement language as the other deeds. (Ex. O, 1-3.) The first paragraph under “Description” states:

“An easement for road purposes and for public utilities to be used together with others, over that portion in block "e" of tract no. 8361, in the city of Los Angeles, as shown on map recorded in book 103 pages 72 to 75 inclusive of maps, in the office of the county recorder of said county, and over that portion of lot 1 of the replat of a portion of the property of the lankershim ranch land and water co., as shown on map recorded in book 66 page 83 et seq. Of miscellaneous records, in the office of the county recorder of said county…”

(Ex. O, 4 – 1941 Grant Deed.)

Defendants’ reliance on Tobin v. Stevens¿(1988) 204 Cal.App.3d 945 is misplaced. Tobin was an adverse-possession case in which the defendant was precluded from asserting adverse possession because he had failed to pay taxes on the property. Tobin held that “the requirement of Code Civ. Proc., § 318, that a party must show seisin or possession within five years of commencement of an action for recovery of real property, is met when it is established that the plaintiff was possessed of legal title, and this seisin can be destroyed only by establishing the fact that a title by adverse possession was acquired by the defendant…. [A] plaintiff who relies on paper title alone (i.e.,¿who is not in possession) must,¿when the defendant also asserts paper title,¿trace title back to one of four sources: the government, a grantor in possession, a grantor common to plaintiff and defendant, or a grantor who had obtained a judgment quieting title.’ [Citation.]” (Id. at p. 952; emphasis in original.) Based on this language, Defendants argue that Plaintiff cannot establish an easement because it cannot “trace its claimed title to the easement back to a valid grantor.” (Opp. at p. 21.)

But, here, Defendants have not asserted paper title. Plaintiff has submitted the 1941 Grant Deed, as well as each of the other property deeds, all of which include the easement language. Defendants’ opposition fails to address the fact that the easement language is included in each of the relevant property deeds, including the Shih and Fong properties. (See Plaintiff’s Ex. O, 1-4.) Moreover, in deposition, the Defendants acknowledged that the easement language was included in each of their grant deeds. (Ex. E - Shih Deposition, pgs. 47:3-50:8, 51:24; Ex. F – Fong Deposition, pgs. 58:5-60:1.) Thus, there is no genuine dispute whether Plaintiff had paper title to the easement, and Plaintiff therefore had no obligation to trace such title back to a valid grantor.

The Court accordingly cannot find that there is a genuine issue whether Plaintiff’s alleged easement ever existed. Defendants have failed to demonstrate the existence of such an issue. That is, however, only the first step in the Court’s analysis.

B. Abandonment

An owner of real property subject to an easement may bring an action to establish abandonment of the easement and to clear record title. (Civ. Code, §§ 887.010 et seq.) requires proof of (1) the cessation of use of the easement by the owner of the dominant tenement and (2) “ ‘ “unequivocal and decisive acts on the part of the [dominant tenant], clearly showing an intention to abandon.” (Visitacion Investment, LLC v. 424 Jessie Historic Properties, LLC (2023) 92 Cal.App.5th 1081.)

Here, Defendants contend that Plaintiff abandoned the easement. Plaintiff disputes this and offers the following evidence that its employees or agents have used the easement on numerous occasions:

· Mr. Dayan and his employees visited the Passmore Property site annually to remove weeds for Fire Department-mandated brush clearance, accessing the area via the Easement from 2006-2017. (UMF Nos. 17-18, 34, 38; Ex. G – Dayan Deposition 68:13-25; Ex. A –a Dayan Decl. ¶ 17).

· Harvey Goodman, a civil engineer hired by Plaintiff to do survey work on the Passmore Property, declares that he accesses the Passmore Property by way of the Easement on numerous occasions in 2005, 2006, and 2017. (Ex. B – Goodman Decl. ¶ 6, 7.)

· In April and September 2006, Plaintiff’s agents performed survey work concerning a “private street” to be built along the Easement from the driveway all the way to the Passmore Property proposed home site; and on other occasions during 2004-2006 to conduct investigations in anticipation of submitting plans and proposals to the city for the proposed development. (UMF Nos. 15-17; Ex. A – Dayan Decl. ¶ 16.)

· In early 2018, Stout Design Build performed field work at the Passmore Property. (Ex. A – Dayan Decl. ¶ 23; Ex. HH.)

· Plaintiff’s contractors returned to the Passmore Property numerous times in late-2017 to mid-2018, including in October 2017 to conduct surveys; in January 2018 for the design contractors to meet with Dayan about the development project; in February 2018 to do field work re a landscaping plan to submit to the city; in March-April 2018 to do an updated soils and geologic engineering investigation; and in July 2018 to prepare a new biology report. All such site visits were via the driveway Easement. (UMF Nos. 24-34; Dayan Declaration.)

· On December 7, 2017, L. Newman Design Group Inc. performed a field survey of protected trees at the Passmore Property. (Ex. A – Dayan Decl. ¶ 21; Ex. GG. Ex. EE.)

· The city conducted the brush clearance after Defendants locked the gate to the Easement in late 2018 and charged Plaintiff for the work. (Ex. A – Dayan Decl. ¶ 29.)

· Plaintiff’s construction contractors accessed the Passmore Property via the Easement in or about January 2025 to perform preliminary soils and geologic engineering investigation. (Ex. A – Dayan Decl. ¶ 22-22; Ex. GG, EE, FF.)

Although Plaintiff asserts that its agents performed various site visits at the Passmore Property, the admissible evidence does not show that the agents utilized the easement to access the property rather than using the alternative access route. Ofer Dayan declares that it was his standard practice to meet with all of the consultants working on the development project at the Passmore Property and/or instruct them on how to access the site via the easement. (Ex. A – Dayan Decl. ¶ 22.) There is, however, no admissible evidence in his declaration or the other exhibits showing that the easement was in fact used by the agents. The Passmore Property includes a secondary access route by way of a 10 foot wide strip of land from Passmore Drive up an undeveloped slope that allows for access on foot. (UMF 9; Ex. A – Dayan Decl. ¶ 7, 9; Ex. AA – Survey Drawings.) The admissible evidence submitted by Plaintiff does not show that the agents did not use the secondary access route rather than the easement. Plaintiff has not submitted any declarations by the agents. Thus, Plaintiff has failed to meet its burden as the moving party to present sufficient evidence that it did not abandon the easement.

Also, Defendants have submitted declarations contradicting Plaintiff’s contention that its agents used the easement to access the property. The declarations submitted by Defendants attest that they never provided such access. (Mamikonyan Decl. ¶8, Ex. E, p. 20:14-17; Sue Shih Decl. ¶¶7-10; Michael Fong Decl. ¶¶12-14; Cioppa-Fong Decl. ¶¶12-14.) Michael Fong declares. “Accessing the Passmore Property does not require use of the shared Driveway. There is access directly from Passmore Drive, through a strip of land that extends straight to the Passmore Property. I have observed this existing access personally.” (Michael Fong Decl. ¶ 7.)

The Court finds that Plaintiff’s admissible evidence in support of the motion for summary adjudication is insufficient to support the assertion that Plaintiff’s agents used the easement to access the property on numerous occasions. Defendants’ declarations raise a genuine dispute of material fact as to whether Plaintiff abandoned the easement.

For this reason, the Court denies Plaintiff’s motion for summary adjudication of the cause of action for declaratory relief. There is, as set forth below, a second reason for the Court to do so.

C. Adverse Possession

When there is an interference with the use of an easement for five years, the easement may be terminated by the adverse possession of the servient tenement. (Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374; Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057.) Adverse possession of an easement requires that the servient owner occupies the easement in an open and notorious manner and uses it under a claim of right that is hostile and adverse to the owner of the easement for a five-year period. (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1075.) The five-year prescriptive period begins to run when the owner is deprived of possession. (Sorensen v. Costa (1948) 32 Cal. 2d 453, 460.)

Here, Defendants argue that the easement was extinguished by adverse possession because there has been a gate since they purchased the property in 2009. The gate was, however, broken and left open on various occasions before the Defendants installed the gate box in September 2018, and Plaintiff accessed the easement on various occasions before 2018. (UMF 12; Ex. A – Dayan Decl. ¶ 11; Dayan Deposition 57:16-58:3, 62:4-18; UMF 12, 13.) Defendant Shih admitted in deposition that the gate was left open and was not monitored while the gate box was being installed from August to September 2018. (Ex. Q – Shih Deposition 17:16-24, 30:20-25, 31:15-21; Exhibit S – Quote from Signature Garage Doors and Gates Inc.)

Plaintiff argues that Defendants cannot establish continuous and uninterrupted adverse possession for five years because Plaintiff continued to access the Passmore Property through the easement. Plaintiff argues that at the earliest, the five-year period began to run when Plaintiff was deprived of possession in September 2018, when the gate box was installed. Since Plaintiff filed the instant action in August 2022, it argues that the five-year period cannot be met. In support, Plaintiff provides the following:

· In early 2018, Stout Design Build performed field work at the Passmore Property. (Ex. A – Dayan Decl. ¶ 23; Ex. HH.)

· On December 7, 2017, L. Newman Design Group Inc. performed a field survey of protected trees at the Passmore Property. (Ex. A – Dayan Decl. ¶ 21; Ex. GG. Ex. EE.)

· The city conducted the brush clearance after Defendants locked the gate to the Easement in late 2018 and charged Plaintiff for the work. (Ex. A – Dayan Decl. ¶ 29.)

In opposition, Defendants argue that the five-year period began to run on July 29, 2017, when Plaintiff’s attorney sent a letter regarding Defendant’s use of the easement. (Dayan Decl., Ex. D.) Yet, this does not adequately address the evidence that the gate was left open and accessed from 2017-2018. (Ex. Q – Shih Deposition 31:15-21 [“Q: And approximately how long was the gate open for? A: I would say, starting the later part of late 2017 until it's fixed, in September 2018. Q: During the time that the gate was open, did you monitor who was using the gate or using the road? A: No.”]; Ex. G – Dayan Deposition 68:13-25; Ex. A – Dayan Decl. ¶ 17, 20-25; Ex. B – Goodman Decl. ¶ 7.)

Defendants also assert that “Plaintiff’s occasional access to the driveway (even if proven, which it has not) is not enough to negate Defendants continuous and uninterrupted use and possession.” (Opposition, pg. 19:15-16.) Defendants cite Sevier v. Locher (1990) 222 Cal.App.3d 1082, where, “[a]lthough the [plaintiff] occasionally stepped onto the driveway through a gate in a fence along their property in order to examine plantings and top a tree, they never drove a vehicle over it until 1988.” (Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1087.)

In Ross v. Lawrence (1963) 219 Cal.App.2d 229, the court held that “a continuity of adverse use may be inferred from the testimony of one of the plaintiffs that, except on three occasions, he was unable to travel upon the subject easement during the 8 years prior to suit because of its obstructive use by the owners of the servient tenement.” (Ross v. Lawrence (1963) 219 Cal.App.2d 229, 233.)

Plaintiff attempts to distinguish the present case from Ross by stating that it has provided evidence that the easement was accessed on far more than three isolated occasions. Plaintiff argues that, in contrast to Sevier, here there is evidence that Plaintiff and its contractors used the easement to access the Passmore Property. Thus, Plaintiff contends that, unlike the plaintiff in Sevier who occasionally stepped onto the driveway through a gate to examine plantings on a tree, Plaintiff here utilized the easement for its intended use – to provide Plaintiff access to the Passmore Property.

While Plaintiff’s arguments are theoretically persuasive, they rely on the assertion that its agents used the easement on numerous occasions to access the property rather than the secondary route, which is not supported by adequate admissible evidence. As stated above, the admissible evidence submitted by Plaintiff does not show that its agents used the easement rather than the secondary route to access the property. Nothing in the Dayan Declaration or the other exhibits establishes that the easement was used by the agents. Rather, the evidence merely shows that site visits were performed at the property and that Mr. Dayan’s practice was to advise the agents to use the easement. Plaintiffs have not submitted any evidence to show that the easement was in fact used, such as declarations by the agents or personal observation of such use by Dayan.

The Court therefore finds that Plaintiff has failed to meet its burden as the moving party to present sufficient evidence contradicting Defendants’ adverse-possession claim to prevail on its motion for summary adjudication. There is a triable issue of material fact whether the easement was adversely possessed by Defendants.

For this additional reason, the Court denies Plaintiff’s motion for summary adjudication of the cause of action for declaratory relief.

II. Injunctive Relief

“The elements of a cause of action for injunctive relief are (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410, citation omitted.) Notably, “injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief can be granted.” (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 356.)

Interference with the use of an easement deprives the owner of that easement of a valuable property right, and interference that is wrongful is a private nuisance that can be enjoined by the easement owner. (Code Civ. Proc., § 731; Danielson v. Sykes (1910) 157 Cal. 686.) Where an obstruction is continuous, exclusive, and under claim of right, so as to destroy the easement by adverse possession, an injunction will be granted against the obstruction even though substantial damages are not yet caused. (Id. at p. 109.)

Here, Defendants assert that Plaintiff’s fifth cause of action for injunctive relief fails because injunctive relief is a remedy and not an independent cause of action. The Court agrees that Plaintiff must first prove an underlying claim to obtain injunctive relief, which is not an independent cause of action.

Accordingly, the Court denies Plaintiff’s motion for summary adjudication of the cause of action for injunctive relief.

ORDER

Plaintiff’s motion for summary adjudication of its causes of action for declaratory relief and injunctive relief is DENIED.

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