Judge: Curtis A. Kin, Case: 21STCV24481, Date: 2022-10-11 Tentative Ruling

Case Number: 21STCV24481    Hearing Date: October 11, 2022    Dept: 72

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

  Date:              10/11/22 (9:30 AM)               

Case:               Marga Bakker et al. v. David Shraga et al. (21STCV24481)

TENTATIVE RULING:

Defendants David Shraga and Jennifer Womack’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.

Defendants David Shraga and Jennifer Womack’s requests for judicial notice are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

Defendants’ evidentiary objections are OVERRULED.

Defendants David Shraga and Jennifer Womack move for summary judgment or adjudication on the ground that plaintiffs Marga Bakker and Clark Hamm’s use of defendants’ property for a purported easement is exclusive and prevents defendants from using their land.

Case law holds that an “exclusive prescriptive easement” in a residential property dispute, where the owner of the land burdened by an easement is completely prohibited from using the land, is forbidden. (Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564 [concerning fencing in property of burdened land]; see also Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1094 [concerning installation of woodshed and landscaping on burdened land]; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1300, 1308 [with respect to fence, “[W]hen a claimant cannot satisfy the requirements for adverse possession, the claimant may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property”]; Raab v. Casper (1975) 51 Cal.App.3d 866, 873, 877 [concerning installation of driveway, utility lines, lawn, fences, shrubs, fruit trees, and landscaping on burdened land].)

Defendants contend that plaintiffs’ installation of a driveway gate blocking access to the disputed area, maintenance of landscaping on the disputed area, keeping of dogs, and storage of trash, recycling, and compost bins constitute an exclusive use of the disputed area that dispossesses defendants of their land. (UMF 5-7, 15-17, 25-27.)

Here, however, plaintiffs have adduced evidence sufficient to create triable issues of fact concerning whether their use of the disputed area amounts to an exclusive prescriptive easement. Plaintiffs demonstrate a triable issue regarding whether they are excluding defendants from using the easement. (Resp. to UMF 5-7, 15-17, 25-27.) Plaintiffs unlock the driveway gate during the day. (Bakker Decl. ¶ 37.) Plaintiffs have offered defendants a key to the gate, but defendants have declined. (Bakker Decl. ¶ 38.) If defendants need to access the disputed area when the gate is locked, plaintiffs provided defendants with the combination to the lockbox containing the key to the gate. (Bakker Decl. ¶ 38.) Plaintiffs also present evidence that defendants and their gardeners have been able to access the disputed area. (Bakker Decl. ¶¶ 41-43.) With respect to plaintiffs’ dogs, while defendants maintain the dogs “aggressively bark” and “lunge” at defendants (Shraga Decl. ¶ 12), plaintiffs maintain the dogs are “very loving and affectionate” and have never attacked any person (Bakker Decl. ¶¶ 57, 58).  Further, on this record, this Court cannot determine as a matter of law whether plaintiffs’ use of the disputed area for placement of waste bins, storage of movable flowerpots/potted plants, a tree, and stepping stones (Bakker Decl. ¶¶ 8, 9) amounts to exclusive use.  (Compare Husain v. California Pac. Bank (2021) 61 Cal.App.5th 717, 723-25, 732 [prescriptive easement for garbage bins and garden] with Raab v. Casper (1975) 51 Cal.App.3d 866, 877 [no prescriptive easement for “lawn, fences, shrubs, fruit trees, and landscaping”].)

Accordingly, based on the evidence presented by plaintiffs, whether plaintiffs’ use of the disputed area “as a practical matter completely prohibits” defendants from using their land (see Silacci, 45 Cal.App.4th at 564) is a question of fact that must be resolved at trial.

The motion is DENIED.