Judge: Lee W. Tsao, Case: 21NWCV00645, Date: 2023-03-30 Tentative Ruling
Case Number: 21NWCV00645 Hearing Date: March 30, 2023 Dept: C
CAPT v.
SZERDAHELYI
CASE NO.: 21NWCV00645
HEARING: 03/30/23
#8
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.) “Also, at the time that Plaintiffs first viewed what
became the Plaintiffs’ Property, there existed a meandering fence that
separated the two subject parcels of property from east to west, the length of
which is approximately 32 feet to the northeast corner of Plaintiffs’ garage,
then continuing from the northwestern corner of the garage to the western
sector of each of the subject parcels; this western section of fencing
terminates approximately forty feet from the western property line of the two
parcels to allow for access to the area of recorded pipeline and utility
easements mentioned above. These two sections of fencing are more or less in a
straight line with the northern outside wall of the garage, the totality of
which combine to form a boundary line between the two subject properties.”
(Complaint ¶18.)
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 argue that they are entitled to summary
adjudication of the following issues: (1) Plaintiffs are entitled to a
declaratory judgment that they have a prescriptive easement for ingress and
egress through a steel gate and over a 26.5 ft. strip of land on the Property
of Defendant Tonya Szerdahelyi (the Access Easement); (2) Plaintiffs are
entitled to a declaratory judgment that the northern building line of
Plaintiffs’ garage and fence that is roughly in line with the wall of the
garage and that separates the Plaintiffs’ property from the Defendants’
property constitutes an agreed boundary line; and (3) Plaintiffs are entitled
to a permanent injunction which will restrain and enjoin the Defendants from
interfering with, obstructing, or otherwise denying to the Plaintiffs access
through the steel gate and across the access easement, or otherwise obstructing
the Plaintiffs’ free use and enjoyment of their real property. Plaintiffs plead
an entitlement to a prescriptive easement over some 1,000 square feet of
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. Plaintiffs further claim that there is an agreed boundary line
between the two subject properties that lies beyond an approximate one-foot
strip of Defendants’ Property—that one-foot strip is closed in by a garage wall
that was constructed by a developer who built both properties in 1955.
Prescriptive Easement – Access Easement
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.)
“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.” (See Silacci v. Abramson
(1996) 45 Cal.App.4th 558, 564.) In Harrison v. Welch (2004) 116
Cal.App.4th 1084, 1090, the Court held that a landowner was not entitled to a
prescriptive easement that would allow her to maintain a woodshed and
landscaping on the neighboring parcel, where these uses effectively excluded
neighboring owners from using that portion of their property.
Plaintiffs plead an entitlement to a prescriptive easement
over the Access Easement that Plaintiffs have been using for over 25 years on a
regular basis for ingress and egress to park their recreational vehicles. In
Opposition, Defendants argue that there is a triable issue of material fact as
to whether Plaintiffs merely seek a prescriptive easement over the Access
Easement or whether Plaintiffs are actually seeking exclusive control over the
Access Easement.
Summary adjudication is DENIED. Defendants raise a triable
issue of material fact as to the true nature of Plaintiffs’ use of the Access
Easement. For example, Defendants allege that Plaintiffs use the Access
Easement to re-position a multitude of vehicles they store on their land in a
manner which completely occupies the area for a period of time. (DAF 32.) Defendants also allege that Plaintiffs
frequently “patrol” the area on foot and maintain a threatening demeanor and
stances, effectively precluding any use of the land by Defendants. (DAF
34.)
Significantly, Plaintiffs maintain a lock to the disputed
swinging gate and have not provided Defendants with a key. While Plaintiffs have agreed to open the gate
for Defendants whenever they wish to use the Access Easement, Plaintiffs
maintain ownership and control over the gate.
This impairs, and potentially denies, Defendants access to their
property. Therefore, Defendants have
raised a triable issue of material fact as to the true nature of Plaintiffs’
use of the Access Easement and whether such use is exclusive.
Agreed Boundary Line – Garage
However, Plaintiffs also argue that Plaintiffs have
establish an agreed boundary line separating the respective parties’
properties. The elements of the agreed boundary doctrine are: (1) uncertainty
as to the true position of the boundary; (2) an agreement to establish a common
boundary line; (3) marking or building up to the agreed boundary; (4)
occupation of the property to such line; and (5) acquiescence in the line thus
established for a period equal to the statute of limitations. (Bryant v.
Blevins (1994) 9 Cal.4th 47, 55.)
The Court finds that Plaintiffs have failed to meet their
burden on summary judgment to establish uncertainty as to the true position of
the boundary, and an agreement to establish a common boundary line. The
Declaration of Tibor Naray submitted in support of Plaintiffs’ Motion states,
“I agreed with [Plaintiffs] that the location of the then-existing fence where
the replacement fence was to be installed, the northern building line of their
garage, and the rear section of fence between our properties, would continue to
constitute the boundary line between those respective properties.” (Naray
Decl., ¶4.) Moreover, Defendants highlight
portions of the Jeff Capt and Rhonda Alger-Capt depositions where Plaintiffs
deny making any such agreement. (DAF 55,
56.) Therefore, even if Plaintiffs had
met their burden on summary judgment, the Court would still deny the Motion
because Defendants raise a triable issue of material fact regarding uncertainty
of the boundary line and the existence of an agreed boundary.
Summary Adjudication is DENIED. Summary judgment is DENIED.
Plaintiffs’ Evidentiary Objections:
1.
Sustained
2.
Overruled
3.
Sustained
4.
Sustained
5.
Overruled
6.
Overruled
7.
Overruled
8.
Overruled
9.
Overruled
10.
Overruled
11.
Sustained
12.
Sustained
13.
Overruled
14.
Overruled
15.
Overruled
16.
Sustained
17.
Overruled
18.
Overruled
19.
Overruled
20.
Overruled
21.
Overruled
22.
Sustained
23.
Sustained
24.
Overruled
25.
Overruled
26.
Overruled
27.
Overruled
28.
Overruled