Judge John J. Kralik, Case 23BBCV00262 2023-03-30 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiffs Patricia Aronis and Vasilios Aronis (“Plaintiffs”) own the real property located at 12026 Otsego Street, Valley Village, CA 91607 (“Plaintiffs’ Property”). Defendants Yossef Luzon, Dana Ser, and 12034 Otsego St LLC (“Defendants”) own the real property located at 12034 Otsego St (“Defendants’ Property”). The two properties are contiguous and share a common border. Plaintiffs’ driveway is located along the common boundary and purportedly utilized an approximately 18-inch-wide strip of land located on Defendants’ Property adjacent to the common boundary line (“Subject Area”). Plaintiffs allege that the driveway and the Subject Area allow them to access their property. There is a brick border on the driveway within the 18-inch Subject Area. Plaintiffs allege that since they purchased their property in 2010, for 13 years they have used the driveway and Subject Area for ingress and egress and parking without issue. Plaintiffs allege that Defendants claim the Subject Area and intend to build thereon. Plaintiffs allege that the construction of a house on Defendants’ Property is ongoing and has caused significant dirt to be dug up next to the Subject Area and has caused a portion of Plaintiff’s driveway along the brick border to sustain a large crack.

The complaint, filed February 1, 2023, alleges causes of action for: (1) quiet title; (2) injunctive relief; (3) private nuisance; and (4) trespass.

On February 8, 2023, the Court granted Plaintiffs’ ex parte application for an OSC re: Why a Preliminary Injunction should not issue and Temporary Restraining Order. The Court set a hearing date for the motion for preliminary injunction for March 30, 2023. The TRO: (1) restrained and enjoined Defendants from interfering with Plaintiffs’ peaceful use and enjoyment of their Driveway located on or near the common boundary line between 12026 Otsego Street, Valley Village, CA, 91607 and 12034 Otsego St., Valley Village, California, 91607 and (2) ordered that Defendants' construction boundary fence should be placed at least one foot from the driveway so that construction does not interfere with the driveway pending further order.[1]

Plaintiffs’ counsel was ordered to serve the moving papers by February 10, 2023. Any opposition was to be due by March 30, 2023 and any reply was to be due by March 24, 2023. Plaintiffs’ counsel was ordered to post a bond of $500. The TRO was to remain in full force and effect until the March 30, 2023 hearing.

On March 22, 2023, Plaintiffs filed a Proof of Bond re TRO for the amount of $500.

On February 7, 2023, Plaintiffs filed an ex parte application for an OSC re: Why a Preliminary Injunction should not issue and TRO. The Court will consider the application papers as the operative moving papers.

With the moving papers, Plaintiffs submitted a request for judicial notice of Exhibits: (2) the Grant Deed recorded date March 7, 2022 – Owen to Yossef Luzon and Dana Ser; and (3) the Grant Deed recorded date September 8, 2022 – Dana Ser and Yossef Luzon to 12034 Orsego Street LLC. The request is granted. (Evid. Code, § 452(c); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-267.)

With the opposition papers, Defendants submitted a request for judicial notice of Exhibits: (1) the Grant Deed recorded March 8, 2010 regarding Plaintiffs’ Property; (2) the Grant Deed recorded November 8, 2021 regarding Plaintiffs’ Property; (3) the Grant Deed recorded March 2, 2022 regarding Defendants’ Property; and (4) the Grant Deed recorded September 8, 2022 regarding Defendant’s Property. The request is granted.

“[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.” (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Id.)

“Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “[T]he greater the ... showing on one, the less must be shown on the other to support an injunction.” (Id. [quoting Butt v. State of California, (1992) 4 Cal.4th 668, 678].) The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) Injunctive relief may be granted based upon a verified complaint only if it contains sufficient evidentiary as opposed to ultimate facts. (CCP §527(a).) For this reason, a pleading alone rarely suffices. (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2016) ¶¶ 9:579-580.) A plaintiff seeking injunctive relief must also show the absence of an adequate damages remedy at law. (CCP §526(a)(4).)

Plaintiffs move for a preliminary injunction enjoining Defendants and their successors-in-interest and their respective employees/agents from: (a) interfering with Plaintiffs’ peaceful use and enjoyment of their driveway; and (2) continuing construction work which causes further destruction to Plaintiffs’ driveway.

In the opposition brief, Defendants argue that: (1) Plaintiffs are not the real parties in interest regarding Plaintiffs’ Property; and (2) Defendants Luzon and Ser are not the owners of Defendants’ Property.

Defendants argue that according to the March 8, 2010 Grant Deed, Vasilios C. Aronis and Patricia B. Aronis (husband and wife as community property with right of survivorship) and Constantine B. Aronis and Peggy C. Aronis (husband and wife as community property with right of survivorship), all as joint tenants were the original owners of the property and that on November 8, 2021, Vasilios C. Aronis and Patricia B. Aronis transferred their interest to “Vasilios C. Aronis and Patricia B. Aronis, trustees, or to any successor trustee of the Vasilios and Patricia Aronis Trust.” (Def.’s RJN, Exs. 1-2.) Thus, Defendants argue that there is a misjoinder of parties because Plaintiffs’ Property is owned by more than one party and that Plaintiffs’ interest in the property was transferred to a Trust. However, Plaintiffs argue that they may, as trustees, sue without joining as other parties the persons for whose benefit the action is prosecuted. (CCP § 369.) While this may explain Plaintiffs’ involvement in the action, they have not explained whether Constantine and Peggy Aronis are beneficiaries to the trust.

Defendants also argue that the March 2, 2022 original Grant Deed for Defendants’ Property shows that Dana Ser and Yossef Luzon (registered domestic partners, as joint tenants) were the owners of the property, and that on September 8, 2022, they transferred the property to 12034 Otsego St LLC. (Def.’s RJN, Exs. 3-4; Schorr Decl., ¶¶9-10; Pl.’s RJN, Exs. 2-3.) Defendants argue that no injunctive relief may be granted against Defendants Yossef Luzon and Dana Ser since only 12034 Otsego St LLC is the owner of the property. However, preliminary injunctions may ordinarily be granted over entities like 12034 Otsego St LLC, as well as its employees, agents, assigns, successors, etc. Further, Plaintiffs argue that they are bringing claims against the individual defendants for their actual use of the property and driveway area during the construction through the trespass and private nuisance claims.

Plaintiffs argue that they will likely prevail on the merits of their claims because they have a prescriptive easement over the Subject Area on the driveway that is in dispute.

“To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.” (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090.) Unlike a claim for adverse possession, “[a] prescriptive easement does not require payment of taxes; someone claiming a prescriptive easement must show payment of taxes only in the rare instance the easement has been separately assessed. … A successful claimant of a prescriptive easement … gains not title but the right to make a specific use of someone else's property. … The party claiming the existence of a prescriptive easement bears the burden of proof, except with respect to the assessment of taxes—the party contesting the prescriptive easement bears the burden on that issue.” (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054.)

In support of the motion, Vasilios Aronis provides his declaration. He states that he and his wife purchased Plaintiffs’ Property in 2010. (V. Aronis Decl., ¶1.) Mr. Aronis states that in April 2022, Yossef Luzon (who presented himself as owner of the adjacent Defendants’ Property) represented that Plaintiffs’ driveway was utilizing an approximately 18-inches wide strip of land that was located on Defendants’ Property. (Id., ¶3.) Mr. Aronis states that he informed Mr. Luzon not to interfere with the driveway area because they had a right to continue to use the driveway. (Id.) He states that Defendants’ Property is currently an active construction zone whereupon Defendants plan to build a house. (Id., ¶4.) Mr. Aronis believes that he has an easement right over the strip of land because he and his wife moved into Plaintiffs’ Property in 2010; they and their guests have used the driveway area for ingress/egress and parking; they drive over the driveway and the strip on an almost daily basis for parking, opening car doors, walking, and exiting out of vehicles; and from the time they purchased Plaintiffs’ Property, Defendants and any predecessors did not use any part of the driveway. (Id., ¶¶4, 13.) He states that they have never obtained permission from Defendants or prior owners of Defendants’ Property. (Id.) Mr. Aronis states that he and Defendants have discussed the driveway and there is a conflict because Defendants claim they want to use a part of the driveway in their construction plans while Plaintiffs argue that Defendants must change their plans so that Plaintiffs can use of the full driveway. (Id., ¶¶6-8.) Mr. Aronis states that on January 31, 2023, construction workers started work on Defendants’ Property, put up a fence that nearly touches the brick border along the edge of the driveway, and construction caused a crack on a border between the brick portion and the cement portion of the driveway. (Id., ¶¶10-11.)

Plaintiffs argue that they can show that their use of the entirety of the driveway, including the 18-inch strip, was open and notorious for at the past 12-13 years, which was continuous, uninterrupted, and hostile to the true owner. (See V. Aronis Decl., ¶¶1, 3, 4, 13.) They argue by using the 18-inch driveway area in this manner without permission from Defendants or their predecessors-in-interest, Plaintiffs used the area under a claim of right.

In opposition, Defendants argue that Plaintiffs fail to provide an accurate description of the alleged easement area and do not/cannot show that they have an exclusive easement on Defendants’ Property. Defendants also argue that they have only removed trees on their side of the property and have not done anything to intervene with Plaintiffs’ property rights, such that there is no basis to bring an injunction.[2] (Opp. at p.7, lines 22-25.)

The Court notes that neither side to this dispute has submitted a survey establishing where the boundary line actually lies and establishing the amount, if any, that Plaintiffs’ existing driveway intrudes upon Defendants’ property.

A prescriptive easement would not confer upon Plaintiffs an exclusive easement over the 18-inch strip of the driveway that is on Defendants’ Property. Thus, assuming that part of the Plaintiffs’ driveway is on Defendant’s land, an injunction in this matter will not solve the issue in the way that Plaintiffs ultimately desire: exclusive use of their existing driveway.

As pointed out by Defendants, they have not done any construction on the driveway portion. The opposition papers do not state whether Defendants intend to build on the 18-inch portion of the driveway or if they intend only to build up right next to/against it; however, it appears that Defendants do not intend to build into the Subject Area on the driveway.

With respect to Defendants’ argument that Plaintiffs have not paid taxes, Defendants have not shown that taxes must necessarily be paid. As stated in the case law above, “someone claiming a prescriptive easement must show payment of taxes only in the rare instance the easement has been separately assessed.” (Main Street Plaza, supra, 194 Cal.App.4th at 1054.) This showing has not been made.

At this time, the Court finds that Plaintiffs have shown that they can preliminarily establish the probability of success on the merits of their claims, as they are all based on whether a prescriptive easement exists.

Before a court will grant a preliminary injunction, the moving party must establish at least some probability of success on the merits. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) “If a moving party is able to make such a showing, a court will then “examin[e] all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it, ....’ [Citations.]” (Take Me Home Rescue v. Luri (2012) 208 Cal.App.4th 1342, 1353.)

“An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) Thus, the threat of “irreparable harm” must be imminent, as opposed to a mere possibility of harm sometime in the future. (Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2018 Update) Ch. 9(II)-A, §9:508.)

Plaintiffs argue that they will be harmed if a preliminary injunction is not granted, Defendants will not suffer harm, and a preliminary injunction will preserve the status quo. Plaintiffs argue that if construction is allowed to continue, then more parts of the brick portion of their driveway may break off. (See Aronis Decl., Ex. 4.) They also argue that Defendants have threatened to take part of Plaintiffs’ driveway that would block access to their home and that losing 18 inches of the driveway would make it difficult for a standard vehicle to fit in the already-narrow driveway. Plaintiffs also argue that Defendants would not be injured in the preservation of the status quo because the Subject Area has not been used by Defendants or their predecessors-in-interest in years.

The Court has reviewed Plaintiffs’ Exhibit 4 showing that a small portion of the brick has been separated from the cement portion of the driveway. This can be easily remedied with cement work or with adequate monetary damages.

In addition, at most, the construction appears to be taking place on Defendants’ portion of their property on the other side of Plaintiffs’ driveway and the 18-inch portion at issue. While Plaintiffs argue that Defendants threatened to build over the Subject Area on the driveway, they have not shown that construction has been taking place on this disputed portion; rather, it appears that Defendants’ construction workers have fenced off the area between the driveway and the construction zone and Defendants argued in their opposition brief that they have not done construction work into the driveway area.

However, in order to maintain the status quo regarding the 18-inch Subject Area on the driveway, the Court will grant the preliminary injunction motion but will limit the scope of the preliminary injunction and keep its order consistent with the TRO. To maintain the status quo between the parties, (1) Defendants are restrained and enjoined from interfering with Plaintiffs’ peaceful use and enjoyment of their driveway located on or near the common boundary line between 12026 Otsego Street, Valley Village, CA, 91607 and 12034 Otsego St., Valley Village, California, 91607 and (2) Defendants’ construction boundary fence shall be placed at least one foot from the driveway so that construction does not interfere with the driveway pending further order. As stated by Plaintiffs in the reply brief, Defendants have only pushed back the fence six inches. As such, the fence should be pushed by so there is at least one foot of space between the driveway and the construction fence. The fence must be maintained during active construction. The Court declines to order any cessation of construction work on Defendants’ Property.

Plaintiffs Patricia Aronis and Vasilios Aronis’s motion for preliminary injunction is granted as limited herein: (1) Defendants are restrained and enjoined from interfering with Plaintiffs’ peaceful use and enjoyment of their driveway located on or near the common boundary line between 12026 Otsego Street, Valley Village, CA, 91607 and 12034 Otsego St., Valley Village, California, 91607 and (2) Defendants’ construction boundary fence shall be placed at least one foot from the driveway so that construction does not interfere with the driveway pending further order.

The bond is increased to $5,000. Plaintiffs should promptly post the $5,000 bond following the hearing on this matter.

Because of the existence of the preliminary injunction, the Court will set trial preferentially, and the parties should be prepared to discuss that date. The Court orders the parties to meet and confer regarding retaining a joint surveyor and to file a report with the Court within 20 days as to whether that effort has been successful.

[1] In reply, Patricia Aronis states in her declaration that Defendants have disobeyed the TRO by continuing construction but failing to ensure that their construction boundary is at least one foot away from the driveway. (P. Aronis Decl., ¶3.) She states that the fence is only six inches from the driveway. (Id., ¶4, Ex. A.)

[2] This in fact appears to be true. Based on the pictures provided by Plaintiffs, Defendants have pulled shrubbery that acted like a privacy hedge between the two properties and Defendants’ construction workers have erected a fence on the dirt portion of Defendants’ Property (right up against the driveway), which is allowed as no party disputes that this is all a part of Defendants’ claimed property. (See Aronis Decl., Exs. 1-4.) Nevertheless, to keep the peace between the parties, the Court has established a one-foot boundary for the construction fence. Defendants have failed to show how this interferes with their construction plans. It seems like a prudent step while construction is going on.