Judge: John J. Kralik, Case: 23BBCV02942, Date: 2025-06-13 Tentative Ruling
Case Number: 23BBCV02942 Hearing Date: June 13, 2025 Dept: NCB
North
Central District
|
roxana brito, Plaintiff, v. hagop j.
badossian, et al., Defendants. |
Case No.: 23BBCV02942 Hearing
Date: June 13, 2025 [TENTATIVE]
order RE: motion for summary judgment or, in the alternative, summary
adjudication |
BACKGROUND
A.
Allegations
Plaintiff Roxana Brito (“Plaintiff”) alleges that she owns the residential property located at 10453 La
Tuna Canyon Road, Sun Valley, CA 91352 (“Brito Property”) and that Defendants
Hagop J. Badossian and Lara A. Badossian (“Defendants”) own the residential
property located at 10441 La Tuna Canyon Road (“Badossian Property”). She alleges that Defendants purchased the
Badossian Property on July 12, 2012 and she purchased the Brito Property on
July 26, 2019. Plaintiff alleges that
the 2 properties share a border to the east side of the Brito Property and the
west side of the Badossian Property.
Plaintiff alleges that on August 25, 2023, she received a message from
Mr. Badossian stating that he was going to demolish the existing border wall, replace
it with a block wall, and move the shared border wall according to a survey he
commissioned. Plaintiff alleges that she
did not agree to such activity. She
alleges that on October 5, 2023, Defendants began demolishing portions of the
border wall, and Plaintiff asked them to cease and desist. Plaintiff alleges that Defendants responded
with their intention to proceed with the demolition and replacement of the
shared border wall, which would be placed on what they perceived to be the
correct property line. Plaintiff alleges
that this would enclose areas either part of or connected to the Brito
Property, and areas currently used exclusively by Plaintiff and prior owners of
the Brito Property for a period of 5 years or more, which include Plaintiff’s
horse stable, basketball court, and driveway and parking areas (“Driveway”
area), such that she would not have access to these areas anymore.
The complaint, filed December 11, 2023,
alleges causes of action for: (1) trespass; (2) prescriptive easement; (3)
private nuisance; (4) declaratory relief; and (5) injunctive relief.
B.
Motion on Calendar
On March 21, 2025, Defendants filed a
motion for summary judgment. In the
alternative, Defendants seek summary adjudication in their favor on Issues 1 to
5, regarding the 1st to 5th causes of action respectively,
on the ground that there is no genuine dispute to support a triable issue of
material fact, such that Defendants are entitled to adjudication pursuant to
CCP § 437c(f)(1).
On May 27, 2025, Plaintiff file opposition
papers.
On June 2, 2025, Defendants filed a reply
brief.
REQUEST
FOR JUDICIAL NOTICE
With the motion papers, Defendants
request judicial notice of documents, including Exhibits: (A) Grant Deed
regarding the Brito Property; (B) Deed of Trust regarding the Badossian
Property; (E) Los Angeles Department of Building and Safety (“LADBS”),
Certificate Information regarding the Badossian Property; and (F) LADBS
Document Report dated February 3, 2025 regarding the Badossian Property.
The request is granted. (See Fontenot
v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-267, disapproved on other grounds.)
DISCUSSION
Defendants
move for summary judgment or, alternatively, summary adjudication on each cause
of action alleged in Plaintiff’s complaint.
Defendants
provide the following material facts in support of their motion. On July 26, 2019, Plaintiff purchased the
Brito Property from Frank Patrick Cowell.
(Def. Fact 1.) On July 12, 2012,
Defendants purchased the Badossian Property from Steven Clark Brinkerhoff and
Nola May Brinkerhoff. (Def. Fact 2.) On
September 14, 2022, Defendants obtained a survey of their property, which
showed that the wooden fence/block wall separating the properties was
encroaching several feet over the property line, preventing Defendants from
accessing several feet of their property. In 2024, Defendants performed another survey,
which showed the same (the wooden fence along the west line at the Badossian
Property by 3 feet 4 inches at the north end of the fence and by 2 feet 4
inches at the south end of the rear yard), preventing Defendants from accessing
their property. Further, the gaps
depicted in the wooden fence (i.e. the portions of the wooden fence removed by
Defendants) are entirely within their property.
(Def. Fact 3.) Defendants advised Plaintiff that they
intended to remove portions of the wooden fence that were deteriorating and
replace the entire barrier with a newly constructed block wall on the property
line per the 2022 survey. (Def. Fact 4.)
Defendants removed portions of the
wooden fence despite Plaintiff’s protest.
(Def. Fact 5.) On October 18, 2023, Defendants submitted a permit
application with LADBS to construct a new 6’0” tall, 125’0” long concrete
masonry unit block wall at the rear most property line that will run along the
entire property line between the properties. On October 26, 2023, LADBS approved and issued
the permit to Defendants. (Def. Fact 6.) Due to this lawsuit, Defendants have not
completed the demolition of the wooden fence and have not built the block
wall. (Def. Fact 7.)
A. 1st
and 3rd causes of action for trespass and private nuisance
In the
opposition brief, Plaintiff concedes that the walls at issue in this lawsuit
are on the Badossian Property. (Opp. at
2:8-14.) As such, she does not dispute
any of the facts raised by Defendants in support of the motion regarding the 1st
and 3rd causes of action. (See
Def.’s Facts 8-14 re Issue 1; Def.’s Facts 22-28 re Issue 3.) As such, the motion is granted as to the 1st
and 3rd causes of action (Issues 1 and 3).
B. 2nd
cause of action for prescriptive easement
“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.” (Mehdizadeh v. Mincer
(1996) 46 Cal.App.4th 1296, 1305.)
In the 2nd
cause of action for prescriptive easement, Plaintiff alleges that she is
informed and believes that the area Defendants proposed to enclose with a
border wall are not a part of the Badossian Property or, alternatively, if the Driveway
is not part of the Brito Property, then she is entitled to a declaration from
the Court that she has acquired vested, enforceable, and defensible rights
against Defendants and/or any current and successor owners of the portion of
the Driveway used by Plaintiff by way of a prescriptive easement. (Compl., ¶24.) Plaintiff alleges that she and her
predecessors have used the Driveway (which may or may not be located on the
Badossian Property) to access and enjoy the Brito Property, the use was
continuous and uninterrupted for a period of at least 5 years, the use was open
and easily observable to give Defendants notice for a period of at least 5
years, Plaintiff and her predecessors did not have Defendants’ permission to
use the Driveway for a period of at least 5 years. (Id., ¶¶25-29.) In the general allegations at paragraph 15,
Plaintiff alleges:
The two properties share a border on the east side of Plaintiff’s
property and west side of the Defendant’s property. On or about August 25,
2023, Plaintiff received a message from Defendant Hagop Badossian stating that
he was going to demolish the existing border wall and replace it with a block
wall. He also indicated that he wanted to move the shared border wall in
accordance with a survey he had commissioned. Plaintiff told him explicitly
that she would not agree to any such activity. On or about October 5, 2023,
Plaintiff overheard one of the Defendant Hagop Badossian and possibly a
contractor discussing the demolition of the border wall. Also on or about
October 5, 2023, Defendants then began demolishing certain portions of the
border wall. The same day, Defendant Hagop Badossian came over on to
Plaintiff’s property and again informed her that he was going to demolish the
existing border wall and move it. Plaintiff asked Defendants by letter to cease
and desist. A true and correct copy of the cease and desist letter is attached
as Exhibit A. Defendants responded by letter on October 31, 2023, indicating
their refusal and intention to proceed with the demolition and replacement of
the shared border wall. A true and correct copy of Defendants’ response letter
is attached as Exhibit B. Defendants indicated the new wall would be placed on
what they perceive to be the correct property line. This would enclose areas
either part of or connected to Plaintiff’s property, and areas currently
used exclusively by Plaintiff and prior owners of the Brito property for a
period of more than 5 years. Such areas include Plaintff’s[sic] horse stable,
basketball court, and driveway and parking areas (collectively the “Driveway”
area). Plaintiff would no longer have access to these areas.
(Compl., ¶15 [emphasis added].)
Defendants argue that there are no triable
issues of material fact on the 2nd cause of action and that
Plaintiff improperly seeks an exclusive prescriptive easement over a
portion of a few feet of the Badossian Property. (Mot. at pp.7-8.) They argue that because Plaintiff seeks an
exclusive prescriptive easement on a “mere backyard dispute,” her claim must be
dismissed. (Id. at p.8.)
Defendant relies
on Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296. In that case, the plaintiff sought declaratory and injunctive relief and a
prescriptive easement against the defendants over their property. The parties’ predecessors had erected a fence
between their properties and, thereafter, defendants commissioned a survey and
erected a fence based on the boundary lines denoted therein, which showed that
the first fence should have been located 10 feet farther down the slope. The Court of Appeal stated:
The
prescriptive easement granted by the trial court, however, would divest the
Mincers of nearly all rights that owners customarily have in residential
property. A fence will bar the Mincers' access to the property, and they cannot
build on, cultivate, or otherwise use it. Mehdizadeh cannot build on it either,
but otherwise his right to “use” looks more like “occupancy,” possession, and
ownership. [Citations.]
Occupancy,
connoting a claim of possession and title, differs from restricted, partial, or
intermittent use. ‘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.]
A prescriptive
use of land culminates in an easement (i.e., an incorporeal interest). This interest
differs from a corporeal interest, such as that created by adverse possession
or the agreed-boundary doctrine, which creates a change in title or ownership.
Where an incorporeal interest in the use of land becomes so comprehensive as to
supply the equivalent of ownership, and conveys an unlimited use of real
property, it constitutes an estate, not an easement. [Citation.]
(Mehdizadeh, supra, 46 Cal.App.4th at 1305–06 [citations omitted].) The Court stated:
To affirm the
creation of this novel “fencing easement” would dispossess an unconsenting
landowner of property while circumventing readily available, accurate legal
descriptions. (Bryant, supra, at pp. 56-57; Armitage v. Decker,
supra, 218 Cal.App.3d at p. 903;
Mesnick v. Caton, supra, 183 Cal.App.3d at pp. 1256-1257.)
The rule regarding an “exclusive easement” is one of long-standing: “[A]n
'exclusive easement' is an unusual interest in land; it has been said to amount
almost to a conveyance of the fee. [Citations.] No intention to convey such a
complete interest can be imputed to the owner of the servient tenement in the
absence of a clear indication of such an intention.” (Pasadena v.
California-Michigan etc. Co. (1941) 17 Cal.2d 576, 578-579 [110 P.2d 983,
133 A.L.R. 1186].)
(Id. at 1308.)
Similarly,
Silacci v. Abramson (1996) 45 Cal.App.4th 558 involved
a residential backyard dispute between neighbors, where the parties disputed
whether the land fenced and used as a backyard by the defendants actually belonged
to the plaintiffs. The plaintiffs sought
declaratory relief, while the defendants cross-claimed for an exclusive
prescriptive easement. The Court of Appeal stated:
An exclusive prescriptive easement is … a very unusual
interest in land. The notion of an exclusive prescriptive easement, which as a
practical matter completely prohibits the true owner from using his land, has no application to a simple backyard
dispute like this one. An easement, after all, is merely the right to use the
land of another for a specific purpose—most often, the right to cross the land
of another. An easement acquired by prescription is one acquired by adverse use
for a certain period. An easement, however, is not an ownership interest, and
certainly does not amount to a fee simple estate. To permit Abramson to acquire
possession of Silacci's land, and to call the acquisition an exclusive
prescriptive easement, perverts the classical distinction in real property law
between ownership and use. The trial court's order here amounted to giving
Silacci's land completely, without reservation, to Abramson. This the court
did, using the term “exclusive prescriptive easement,” an unusual doctrine which
does not apply.
(Silacci, supra, 45 Cal.App.4th at 564.)
In opposition, Plaintiff argues that she
is not seeking an exclusive prescriptive easement and that her complaint “asks the Court ‘to enjoin [Defendants] from obstructing Plaintiff
Property Owners' access and use to the portion of the Driveway in dispute,
which may or may not be located on the Badossian Property.’” (Opp. at p.4;
Compl. at p.8 at Prayer for Relief ¶4 re 2nd cause of action.)
The Court notes
that Defendants’ facts in their separate statement are largely undisputed. The only disputed fact is Fact 3, which
Plaintiff partially disputes only to the extent that she claims that Defendants’
evidence does not establish that Defendants are or were prevented from
accessing several feet of their property.
Plaintiff cites to Defendants’ same evidence, which include Exhibits C
and D of the motion papers. Exhibit C
includes the survey of the Badossian Property conducted on September 14, 2022. (H. Badossian Decl., ¶4, Ex. C.) Exhibit D includes a January 5, 2021 survey
conducted by Chris Nelson & Associates.
(Nelson Decl., ¶¶1-3, 6-7, Ex. D.)
Although Plaintiff partially disputes Fact 3, the facts and supporting
exhibits are essentially undisputed regarding the property lines and placement
of the fence. As the facts are not
disputed by the parties, what remains before the Court is a question of law
regarding whether Plaintiff is entitled to a prescriptive easement.
By nature
of Plaintiff’s request, Defendants would be denied use of the disputed portion
of the property or to build upon it. In
the opposition brief, Plaintiff states she does not dispute that the wall at
issue in on the Badossian Property.
(Opp. at p.2.) If the original
fence stays erected, then Defendants are in essence giving up possession of
that disputed area for Plaintiff’s sole use.
As alleged by Plaintiff in paragraph 15 of the complaint, she alleges
that Defendants’ installation of the new wall would enclose areas that are
either part of or connected to her property, and which constitute areas that
are currently “used exclusively by Plaintiff,” including her horse
stable, basketball court, and driveway and parking areas. (Compl., ¶15 [emphasis added].) Thus, while Plaintiff argues that she is not
seeking an exclusive prescriptive easement, the Court agrees with Defendants
that Plaintiff’s 2nd cause of action essentially amounts to a
request for an exclusive prescriptive easement.
As “exclusive” easement rights are not applicable in the residential
context (see Mehdizadeh, supra, 46 Cal.App.4th at
1308; Silacci, supra, 45 Cal.App.4th
at 564), the motion is granted as to the 2nd
cause of action (Issue 2).
C. 4th
cause of action for declaratory relief and 5th cause of action for
injunctive relief
In the 4th cause of action,
Plaintiff alleges that an actual controversy exists between Plaintiff and
Defendants relative to property ownership and corresponding rights outlined in
existing and forthcoming land surveys.
(Compl., ¶39.) Plaintiff seeks a
court adjudication on the rights, interests, duties, and obligations of
Plaintiff and Defendants under the land surveys, and “Plaintiff specifically prays that the Court determine that trespass
and nuisance exists, and the portion of the Driveway in question is part of the
Plaintiff Property, or in the alternative, that Plaintiff has a prescriptive
easement in said portion of the Driveway.”
(Id., ¶40.)
In the 5th
cause of action, Plaintiff seeks temporary,
preliminary, and permanent injunctive relief, which prohibits Defendants from
trespassing, creating or maintaining a public nuisance (or in the alternative,
private nuisance), and obstructing Plaintiff’s access and/or use of the portion
of the Driveway during the pendency of these proceedings. (Compl., ¶42.)
Defendants argue
that because there are no triable issues of material fact with respect to the 1st,
2nd, and 3rd causes of action, the 4th and 5th
causes of action for declaratory relief and injunctive relief also fail.
In opposition,
Plaintiff argues that these two causes of action are derivative of the
prescriptive easement cause of action and since Defendants have not negated a
single element of her prescriptive easement cause of action, there are triable
issues of material fact as to these causes of action. (Opp. at p.4.)
The parties each
agree that the 4th and 5th causes of action are dependent
on the prescriptive easement cause of action.
In light of the Court’s discussion on the 3rd cause of
action, the motion is granted as to the 4th and 5th
causes of action as well (Issues 4 and 5).
CONCLUSION AND ORDER
Defendants’
motion for summary judgment or, in the alternative, summary adjudication is
granted. Defendants are ordered to lodge
with the Court and serve on Plaintiff a proposed judgment within ten (10) days consistent
with this written order.
Defendants shall give notice of this
order.
DATED: June 13,
2025 ___________________________
Suzette
Clover
Judge
of the Superior Court