Judge: Lee W. Tsao, Case: 21NWCV00465, Date: 2023-03-09 Tentative Ruling
Case Number: 21NWCV00465 Hearing Date: March 9, 2023 Dept: C
CAPT v.
SZERDAHELYI
CASE NO.: 21NWCV00645
HEARING: 03/09/23
#9
TENTATIVE ORDER
Plaintiffs’ Motion for Summary Judgment is DENIED.
Plaintiffs’ Alternative Motion for Summary Adjudication is DENIED.
Opposing Party to give Notice.
This action for declaratory and injunctive relief was filed
by Plaintiffs JEFF CAPT and RHONDA ALGER-CAPT (“Plaintiffs”) against Defendants
PAUL SZERDAHELYI and TONYA SZERDAHELYI (“Defendants”) on October 4, 2021. The
relevant facts, as alleged in Plaintiffs’ Complaint are as follows: Since
December 2020, Defendants are the recorded owners of real property located at
4973 Deeboyer Ave., Lakewood, CA (“Defendants’ Property”). (Complaint ¶2.) The
Defendants’ Property adjoins the Plaintiffs’ Property located at 4969 Deeboyar
Ave., Lakewood, CA (“Plaintiffs’ Property”). “In or about July, 1996,
Plaintiffs purchased the Plaintiffs’ Property…. [¶] At such time as Plaintiffs
entered into escrow for the purchase of the Plaintiffs’ Property they discussed
with the Sellers thereof a condition at the northwest corner of the Defendants’
Property over which various people had historically traversed to enable them to
access the western sector of both properties and others in the neighborhood for
the purpose of inspecting and working on pipelines and utilities. This section
of the Defendants’ Property, comprising less than 1,000 square feet, is
hereafter referred to as the ‘Access Easement’.” (Complaint ¶¶5-6.)
“Continuously since Plaintiffs took possession of the Plaintiffs’ Property and
without permission, Plaintiffs have driven their motor vehicles and boats over
an unpaved road offsite of either of the two subject parcels to and over the
Access Easement to enable them to park such large items on the western sector
of Plaintiffs’ Property, and in turn, have driven their motor vehicles and
boats out of the western sector of Plaintiffs’ Property, over the Access
Easement and out to the public streets using the unpaved road.” (Complaint ¶7.)
“In March, 2003… Plaintiffs’… installed a 20-foot gate attached to a fence that
had been installed along the western property line of the Defendants Property….
Plaintiffs have continuously thereafter traversed over the Access Easement to
the western sector of the Plaintiffs’ Property…. Plaintiffs maintain a lock on
such gate and unlock it at the request of those persons requiring access
through it.” (Complaint ¶11.) “Sometime
around November, 2017, the Defendants… were expressing interest in purchasing
what is now the Defendants’ Property…. Plaintiff Rhonda had occasion to speak
with Defendants… and at that time Defendant Tonya asked… about the gate and
what is the issue of the area around the gate. Plaintiff Rhonda informed both
Defendants about the history of the use of the Access Easement by third parties
for more than twenty-five years and by the Plaintiffs since 2003 and about the
installation and use of the gate since it was installed, informing them that
there were only two keys to the gate (Plaintiffs have one and the pipeline
company has the other), and that should Defendants acquire the property that
the Plaintiffs would open the gate for them at any time. Defendant Tonya
replied that her real estate agent had informed the Defendants that the gate
would be on their property if they purchased it and that they would get a key;
Plaintiff Rhonda told her emphatically that the gate is the property of the
Plaintiffs and that it was not the property of the owner of that parcel which
adjoined Plaintiffs Property. Defendant Tonya then stated that she and her
husband would want to park some vehicles back there and also drive through the
gate.” (Complaint ¶13.)
The Court notes that it is undisputed that Defendant Paul
Szerdahelyi (“Paul”) no longer has an ownership interest in Defendants’
Property. Paul transferred his interests in the Defendants’ Property to his
wife, Tonya Szerdahelyi by interspousal transfer grant deed in 2020.
Plaintiffs plead an entitlement to a prescriptive easement
over Defendants’ Property because for over 25 years, they have used the Access
Easement on a regular basis as ingress and egress to park their recreation
vehicles.
A prescriptive easement is essentially obtaining a right to
an easement through adverse possession. (Gillardi v. Hallam (1981) 30
Cal.3d 317, 322.) A prescriptive easement requires use of land that is open and
notorious, hostile to the true owner and continuous for five years. (Warsaw
v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) To establish
a prescriptive easement, a plaintiff must establish four elements: (1) open,
notorious, and uninterrupted use; (2) hostile to the true owner; (3) under the
claim of right; (4) for the statutory period of five years. (CCP §§1007, 321.)
Whether the use of the real property of another is hostile
“is a question of fact to be determined in light of the surrounding
circumstances and the relationship between the parties.” (Warsaw v. Chicago
Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572.) “Continuous use of an
easement over a long period of time without the landowner’s interference is
presumptive evidence of its existence and in the absence of evidence of mere
permissive use it will be sufficient to sustain a judgment.” (Id. at
571-572.) “[O]nce a prima facie case is shown by the party asserting the
easement, the burden of proof shifts to the landowner to show the use is
permissive rather than hostile. (Applegate v. Ota (1983) 146 Cal.App.3d
702, 709.) Continuous and uninterrupted use does not mean that the plaintiff
was required to use the disputed property every day. The use can fluctuate, and
it is sufficient if a plaintiff shows that the use occurred on those occasions
when it was necessary for his/her convenience. (See Fogerty v. State of
California (1986) 187 Cal.App.3d 224, 229.)
Open and Notorious
Open and notorious is necessary as the means to put the
owner on notice (actual or constructive) so he can have the opportunity to take
action to prevent the creation of the prescriptive easement/adverse possession.
(Field-Escandon v. Demann (1988) 204 Cal.App.3d 228, 235-236.)
Here, the submitted evidence shows that Plaintiffs have
utilized the Access Easement since moving into Plaintiffs’ Property in
1996.This element is met.
Continuous and Uninterrupted
Continuous is “reasonable use” of the subject property “as
[the] need require[s].” (Hesperia Land & Water Co. v. Rogers (1890)
83 Cal.10, 10.) “If, whenever the claimant needs it from time to time, he makes
use of it, this is a continuous use. An omission to use when not needed does
not disprove a continuity of use, shown by using it when needed. Neither such
intermission nor omission breaks the continuity.” (Id.)
Again, the submitted evidence shows that Plaintiffs utilized
the Access Easement, and installed a 20 foot fence/gate on Defendants’ Property
in order to use the Access Easement for ingress and egress in order to park
their vehicles. This element is met.
Hostile to the True Owner
Hostile means that the claimant’s possession must be adverse
to the record owner, and unaccompanied by any recognition, express or inferable
from the circumstances, of the claimant’s right of possession by the record
owner. (Sorenson v. Costa (1948) 32 Cal.2d 453, 459.)
Here, Plaintiffs acknowledge that their use of the Access
Easement has been shared with Defendants and others. It can be argued that by sharing use of the
Access Easement, Plaintiffs were using it with the permission of others,
including the Defendant. The court
determines that a triable issue exists as to whether Plaintiff’s use was
hostile to the true owner.
Under Claim of Right
The claim of right exists if the claimant believed they have
a prescriptive right to use the property, never asked permission to use the
property, used the property openly, and was never given permission to use. (Applegate
v. Ota (1983) 146 Cal.App.3d 702, 710.)
Here, Plaintiffs submit no evidence that their use of the
Access Easement was under a claim of title/right. They offer no evidence that
they mistakenly believed they had the right to access the Access Easement
because they were told an easement existed for its use, or they believed the
Access Easement was part of the public road. Triable issues exist as to whether
this element can be met.
Statutory Period
The fact that Plaintiffs have used the Access Easement for
over 25 years is undisputed. This element is met.
Since Plaintiffs fail to establish each element with facts
and evidence, summary adjudication/judgment is DENIED.
Plaintiffs’ Evidentiary Objections:
1.
Sustained
2.
Overruled
3.
Overruled
4.
Overruled
5.
Overruled
6.
Overruled
7.
Overruled
8.
Overruled
9.
Overruled
10.
Overruled
11.
Overruled
12.
Overruled
13.
Overruled
14.
Overruled
15.
Overruled
16.
Overruled
17.
Overruled
18.
Overruled
19.
Overruled
20.
Overruled
21.
Overruled
22.
Overruled
23.
Overruled
24.
Overruled
25.
Overruled
26.
Overruled
27.
Overruled
28.
Overruled