Judge: James A. Mangione, Case: 37-2022-00007434-CU-EI-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Eminent domain/Inverse condemnation Motion Hearing (Civil) 37-2022-00007434-CU-EI-CTL SAN DIEGO GAS & ELECTRIC COMPANY VS NORTH PARK TEN LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff San Diego Gas & Electric Company's Motion for Legal Issues Rulings Pursuant to CCP Section 1260.040 is granted.

'The elements necessary to establish an adverse use are: (a) open and notorious use; (b) continuous and uninterrupted use; (c) hostile to the true owner; (d) under claim of right; and (e) for the statutory period of five years. (Civ. Code, § 1007; Code Civ. Proc., § 321.) The above elements are designed to ensure 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.' (Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593 (quotation marks omitted).) '[W]here an open and uninterrupted use of an easement for a sufficient length of time to create the presumption of a grant is shown the law will presume the elements of hostile intent and that the use is adverse and under a claim of right. If the other party relies upon the fact that these acts were permissive or in the nature of a license, or merely given as a matter of accommodation, it is incumbent upon him to rebut the presumption of a nonappearing grant. Otherwise, the presumption stands as sufficient proof and establishes the right.' (Jones v. Harmon (1959) 175 Cal.App.2d 869, 878 (alterations and quotation marks omitted).) Here, Plaintiff has established that it has enjoyed open and uninterrupted use of the Subject Property for its electrical lines since 1941. (See ROA 29 (Declaration of Chris Jensen) ¶¶ 4-5.) Furthermore, even assuming arguendo that Plaintiff had permission of the original property owner to install the electrical line, Defendant has owned the property since August 2015. Defendant was aware that there was no recorded easement for the electrical lines at the time it purchased the property. (SDG&E NOL, Ex. 1, pg.

14:25-17:5.) Therefore, SDG&E enjoyed open and uninterrupted use of the Subject Property hostile to Defendant since at least that time. As this lawsuit was not filed until February 2022, the statutorily prescribed 5-year period has been met. Therefore, the Court applies the presumption that a prescriptive easement has been granted. Defendant has failed to rebut this presumption. Therefore, the Court finds that Plaintiff has a prescriptive easement to operate and maintain its electrical equipment on Defendant's land.

'Every easement includes what are termed 'secondary easements'; that is, the right to do such things as are necessary for the full enjoyment of the easement itself.' (City of Gilroy v. Kell (1924) 67 Cal. App. 734, 743.) For prescriptive easements, that necessarily 'implies the right to make repairs if such repairs do not injuriously increase the burden upon the servient tenement.' (Id.) Plaintiff submitted evidence that, beginning in 1928 and continuing to the present, no structure may be within 6 feet of the electrical lines. (ROA 29, Ex. 7 ('General Order 64-A').) Defendant has not provided any evidence rebutting the Calendar No.: Event ID:  TENTATIVE RULINGS

2988261  8 CASE NUMBER: CASE TITLE:  SAN DIEGO GAS & ELECTRIC COMPANY VS NORTH PARK TEN  37-2022-00007434-CU-EI-CTL 6-foot safety width. Therefore, the Court finds that Plaintiff has a 24-foot-wide prescriptive easement on the Subject Property (12 feet for the physical Electrical System and 6 feet beyond that on either side).

All requests for judicial notice are granted.

The minute order is the order of the Court.

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