Judge Michael E. Whitaker, Case Number: 23SMCV05960, Date: 2024-01-30 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV05960, Date: 2024-01-30 Tentative Ruling

This case arises from a property dispute of an approximate 1,000 square foot strip of land along the border of the adjacent properties of Plaintiffs Thomas Walter Trimborn and Paula Jane Trimborn, co-trustees of the Trimborn Community Property Trust U/D/T July 12, 2001 (“Plaintiffs” or “Trimborn”) and Defendant The Stephen S. Wise Temple (“Defendant” or “Temple.”) Plaintiffs’ property is a single family dwelling, and Defendant’s property is a Jewish synagogue, which includes an elementary school and an early-learning school for young children. (Opposition at pp. 5.)

Since the 1980’s, Plaintiffs contend a wall fence has been erected separating the two properties. Plaintiffs allege their understanding has always been that the wall fence demarcated the property line between the two properties. Subsequently, Plaintiffs improved upon their property on their side of the wall fence, including adding a pool, the equipment for which currently sits directly next to the wall fence, along with several mature trees and a playset.

Defendant contends the actual property line extends a short distance beyond the fence in the direction of Plaintiffs’ property. Thus, according to Defendants, the existing wall-fence and Plaintiff’s pool equipment, which abuts the existing wall-fence, are actually on Defendants’ property.

In 2022, Defendant applied for permits to upgrade its facilities, including removing and replacing the existing wall-fence with improved security features, which the City granted, following a virtual public hearing. Plaintiffs did not attend the hearing or otherwise object to proposed improvements.

The parties attempted to informally resolve the dispute between them, but discussions broke down and Plaintiffs filed a verified complaint for (1) Quiet Title – Implied Easement; (2) Quiet Title – Equitable Easement; (3) Quiet Title – Easement by Estoppel; (4) Quiet Title – Prescriptive Easement; and (5) Injunctive Relief, under the theory that it has an easement over the disputed area.

Plaintiffs moved for a temporary restraining order and for the court to set an order to show cause why a preliminary injunction should not issue restraining Defendant (and its agents) “from removing the Wall Fence, stepping foot on and/or removing or damaging [Plaintiffs’] improvements in the Disputed Area.” The Court granted Plaintiffs’ motion for a temporary restraining order, and set an Order to Show Cause (“OSC” re Preliminary Injunction.

Pursuant to Code of Civil Procedure section 527, subdivision (a), “[a] preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.” (Code Civ. Proc., § 527, subd. (a).) “The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.” (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.)

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc., § 526, subd. (a); Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at p. 867.)

“The decision to grant a preliminary injunction rests in the sound discretion of the trial court . . . before the trial court can exercise its discretion the applicant must make a prima facie showing of entitlement to injunctive relief. The applicant must demonstrate a real threat of immediate and irreparable injury.” (Triple A Machine Shop, Inc. v. State of Cal. (1989) 213 Cal.App.3d 131, 138.) “[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff,” and the party seeking injunctive relief bears the burden to prove its absence. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564-1565.)

The Court rules as follows with respect to the parties’ evidentiary objections:

Defendant requests the Court to take judicial notice of (1) the City’s Notice of Public Hearing regarding Defendant’s proposed construction project, set for February 2, 2022; and (2) the City’s approval letter for the project, dated June 1, 2022.

Evidence Code section 452, subdivision (b) permits the Court to take judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” Similarly, subdivision (c) permits the Court to take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” Here, the exhibits of which Defendant requests the Court to take judicial notice are both regulations enacted by and official acts of the City of Santa Monica. Therefore, the Court grants Defendant’s request for judicial notice as to both exhibits.

Plaintiffs request the Court to take judicial notice of (A) Defendant’s verified answer to the complaint, dated January 16, 2024; (B) Defendant’s cross-complaint; and (C) The City of Thousand Oaks Municipal Code 46.01-46.02.

With respect to exhibits A and B, judicial notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Because the verified answer and cross-complaint are part of the Court’s record for this case, the Court may take judicial notice of them. (Ibid.) However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) Accordingly, the Court takes judicial notice of the existence of the verified answer and cross-complaint filed in this matter as a court record, but not the truth of the allegations contained therein. The Court may, however, weigh the allegations contained in the verified answer as evidence, but may not judicially notice them as true as a matter of law.

As for the City of Thousand Oaks Municipal Code 46.01-46.02, the Court may properly take judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evid. Code, § 452, subd. (b).) In particular, local ordinances are properly the subject of judicial notice under Evidence Code section 452, subdivision (b). (Martin v. City of Corning (1972) 25 Cal.App.3d 165, 167, fn. 1.)

Therefore, the Court grants Plaintiff’s request for judicial notice as to the City of Thousand Oaks Municipal Code 46.01-46.02.

“The trial courts consider two interrelated questions in deciding whether to issue a preliminary injunction: 1) are the plaintiffs likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant; and 2) is there a reasonable probability that the plaintiffs will prevail on the merits.” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)

Under Code of Civil Procedure section 526, an injunction may be granted “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.” (Code Civ. Proc., § 526, subd. (a)(2).) The threat of irreparable harm must be imminent as opposed to a mere possibility of harm sometime in the future. “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.) Plaintiffs need not wait until they have suffered actual harm before applying for an injunction, however, they may seek injunctive relief against threatened infringement of their rights. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.)

21. If Trimborns could not use the Disputed Area, there would be irreparable harm to Plaintiffs in that Plaintiffs would forever lose the privacy buffer between the Trimborn Parcel and the Wise Parcel, possibly lose Trimborns' home setback compliance, lose use of the Trimborn pool equipment, and lose use of landscaping. If Wise removes the Wall Fence, because of the pool on the Trimborn Parcel there would be no barrier between the Wise Parcel children attending school at their facility and the pool, thereby creating an imminent danger and unnecessary Trimborn exposure.

22. Based on information and belief, it is hereby alleged that Defendants and the Wise Parcel would suffer little or no harm with continued Trimborns' Disputed Area use and occupation. As mentioned above, it is alleged that Wise does not intend to improve or occupy the Disputed Area. Based on information and belief, it is alleged that Wise always understood the property line was generally demarcated by the Wall Fence, just as Trimborn understood.

7. If prevented from reconstructing the wall with security features, the Temple would suffer significant hardship and damages. This would include, but not be limited to, a delay in the construction of this security wall portion of the Project which will result in additional direct construction costs of at least $430,000. A delay in construction will also create impacts to the Temple's daily operations because if the wall is not built as part of the current construction sequencing, when it is eventually built, the Temple would have to accommodate construction yet again. This means that the Temple would have to give up its small parking lot for staging, and would have to rent offsite parking and use shuttle vans to bring people onto campus. A delay of this construction would also impact programs at the Aaron Milken Center because we would be without use of the play yard during eventual construction of the security wall and our licensing requirements under the California Department of Social Services Community Care licensing will limit programs allowed during construction. Even if we were able to construct the wall during the summer months, because the impacted areas would be at their lowest use, we would have to limit or postpone any summer programs including the Wise Camp resulting in the loss of hundreds of thousands of dollars.

8. Granting Plaintiffs' requested relief may also result in potential danger to the schoolchildren and anyone else who uses the campus, as the Temple would be unable to install its new reinforced fence and wall with security features. This is particularly problematic given the ongoing rise in antisemitic attacks, as safety on our campus is a matter of acute concern.

Plaintiffs have demonstrated several immediate and irreparable harms that would be done to their property if the requested preliminary injunction is denied, including permanent destruction of the improvements they made on the disputed property, such as trees, pool equipment, and playground equipment, potential setback violations on their home structure, as well as potential immediate danger to the school children attending Defendant’s schools, who will be directly exposed to Plaintiffs’ pool without the existing fencing.[1]

By contrast, Defendant has not demonstrated any such immediate and irreparable harm. Defendant has primarily demonstrated pecuniary harms related to the delay in constructing a new wall fence and the providing offsite parking during the delayed construction. An injunction may be granted only “[w]hen pecuniary compensation would not afford adequate relief.” (Code Civ. Proc. § 526, subd. (a)(4).) “[I]f monetary damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be granted.” (Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306.)

Moreover, while the Court is sensitive to the ongoing rise in antisemitic attacks, a delay in improving the existing wall security will not pose an immediate or imminent threat or other irreparable harm to the children currently attending Defendant’s schools.

Ultimately, the harm to Plaintiffs far outweighs the harm (if any) to Defendant.

A preliminary injunction may not issue unless it is “reasonably probable that the moving party will prevail on the merits. (San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442; see Costa Mesa City Employees’ Association v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309 [no injunction may issue unless there is at least “some possibility” of success].)

Here, Defendant argues that Plaintiffs are not likely to prevail on the merits because (1) Plaintiffs cannot quiet title to the disputed area as against Defendant, as the legal title owner, based on an alleged equitable easement; (2) the requested preliminary injunction exceeds the relief available; (3) Plaintiffs fail to allege the required elements to establish an implied easement, an equitable easement, an easement by estoppel, or a prescriptive easement; and (5) injunctive relief is a remedy, not a cause of action.

Defendant points out that to bring an action for quiet title, a plaintiff must demonstrate a legal interest in the property. Defendant cites to two cases standing for the proposition that a quiet title action cannot stand by a plaintiff claiming an equitable interest in property, as compared to the defendant legal owner of property. Defendant’s cases are distinguishable.

In Lewis v. Superior Court, the plaintiff alleged that the defendant purchased the real property in question with money stolen from plaintiff. The court held: “because whatever interest it might have is only equitable, and the holder of equitable title cannot maintain a quiet title action against the legal owner.” (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866.)

Similarly, in Stafford v. Ballinger, the owner of real property offered to sell the property to plaintiff, and accepted plaintiff’s down payment, with the balance due five days thereafter. Two and a half weeks later, having not received the balance, the owner repudiated the sale, but refused to return the plaintiff’s down payment. The court held, that at most, plaintiff “may at one time have acquired some equitable rights” but such equitable interest was insufficient to maintain a quiet title action against the owner of the legal title. (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 294-295.)

By contrast, here, Plaintiffs do not seek to quiet title solely on the basis of some financial interest in the disputed area. Rather, Plaintiffs seek to quiet title to an easement, based on Plaintiffs’ alleged possession and use of the disputed area. Such actions are generally proper. (See, e.g., Linthicum v. Butterfield (2009) 175 Cal.App.4^th 259 [quieting title to easement in favor of neighbors and against owner was proper].)

Defendant next contends that the preliminary injunction should be denied because Plaintiffs’ requested relief that Defendant be enjoined from “stepping foot” on or “touching” the disputed area exceeds the potential relief available for an easement.

In Raab v. Casper, the court explained that an “easement” limits the uses available to the grantor, whereas an “estate” grants ownership and “exclusive occupation of a portion of the earth’s surface.” (Raab v. Casper (1975) 51 Cal.App.3d 866, 876.) Thus, if an interest which purports to be an “exclusive easement” is tantamount to an “estate,” the plaintiff must establish the elements of adverse possession, not of prescriptive easement. (Id. at p. 877.)

As the Court of Appeal clarified in Mehdizadeh v. Mincer, “[a]n exclusive prescriptive easement is … a very unusual interest in land” typically reserved for utilities, where the area must be secured to prevent interference with or contamination of public utilities, in the interest of public health and safety. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1306-1308.)

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 . . . . 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.

Because the easement at issue is not alleged to involve any public utilities or other overriding public health and safety implications,[2] Plaintiffs are not reasonably likely to prevail in ultimately obtaining a permanent injunction prohibiting Defendant from any and all access to the disputed area, as that would be tantamount to an estate. However, a permanent injunction could potentially issue enjoining Defendant from removing and replacing the existing Wall Fence or “removing or damaging the improvements in the Disputed Area.” Moreover, while the rights of the respective parties are in dispute, the requested preliminary injunction will maintain the status quo, where Plaintiffs use and maintain the disputed area as part of their private backyard, and Defendant does not make changes to the wall, step foot on the disputed area, or destroy Plaintiffs’ improvements to the disputed area.

Therefore, the scope of Plaintiffs’ requested injunction does not preclude relief.

Civil Code section 1104 provides, “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”

“Thus, an easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.” (Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1420.)

5. Since about 1966, Wise holds title to and owns real property [adjacent to and to the west of the Trimborn Parcel] known as 15500 Stephen S. Wise Drive, Los Angeles County, California, APN 4378-001-008 ("Wise Parcel"). […]

8. Based on information and belief, Trimborn alleges that in about the mid-1980s Wise built a wall and fence separating the Wise Parcel and the Trimborn Parcel ("Wall Fence"), it remains in its existing location.

11. Since Trimborn acquired the Trimborn Parcel, (i) Trimborn understood and believed that the Wall Fence demarcated the lot line separating the Trimborn Parcel and the Wise Parcel and the Trimborn Parcel included the Disputed Area, and (ii) Trimborn maintained, irrigated, landscaped, occupied and used the Disputed Area.

16. Trimborn, their agents, tenants, representatives, predecessors and invitees have and do continuously use, improve, maintain, irrigate and landscape the Disputed Area. The Disputed Area use was and is of a nature that Trimborn (and Wise) intended or believed that the use of the Disputed Area would continue indefinitely and be permanent.

17. The Disputed Area and the Wall Fence is necessary as a privacy buffer between the Trimborn Parcel and the Wise Parcel, may be necessary for Trimborn home setback requirements, use of the Trimborn pool equipment, and use of hard and soft landscaping for the Trimborn family home.

18. Trimborn seeks to quiet title to the Disputed Area and the Wall Fence based on implied easement rights as of the date of filing this Complaint.

(Complaint ¶¶ 5, 8, 11, 16-18.) Plaintiff has also provided the Declaration of Jeffrey L. Marcus (“Marcus Decl.”), but it does not provide any additional facts that the properties, or disputed portions of the relevant properties were ever under common ownership, that Plaintiffs or Plaintiffs’ predecessor-in-interest conveyed part of the property to Defendant or Defendant’s predecessor-in-interest, or that an easement was ever intended to be retained for the benefit of Plaintiffs or Plaintiffs’ predecessor-in-interest.

Therefore, Plaintiffs have not demonstrated a likelihood of success on the merits of the first cause of action.

The elements to establish an equitable easement are (1) the encroacher is innocent, such that the encroachment must not be willful or negligent; (2) the burdened landowner must not suffer irreparable injury by way of the encroachment; and (3) the hardship to the encroacher must be disproportionate to the hardship caused by the encroachment. (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1027-1028 (hereafter Hansen).)

With regard to the first element, an equitable easement may be permitted when an encroaching party is negligent if the landowner was also negligent in creating the encroachment. (Hansen, supra, 22 Cal.App.5th at p. 1031.) Here, Plaintiffs contend:

9. The Trimborns always used and occupied the area on the side yard of their home to the Wall Fence. The Disputed Area (defined below) includes pool equipment, playground equipment and hard and soft landscaping ("Improvements"). Currently, a tenant occupies the Trimborn Parcel and based on information and belief, the tenant uses the Disputed Area.

10. Attached as Exhibit "3" is a survey map setting forth the "Disputed Area", the "Wall Fence", the property line, the Trimborn Parcel and the Wise Parcel. The Disputed Area measures approximately 1,000 square feet and includes the Wall Fence.

20. For decades, Trimborn has continuously used, improved, maintained, irrigated and landscaped the Disputed Area. At all relevant times, Plaintiffs had a belief and understanding that they had a right to use the Disputed Area adverse to that of Defendants. Up until 2023, Wise did not voice opposition to such Disputed Area use.

While Plaintiffs may or may not have been negligent in encroaching on the disputed area by planting trees and installing pool equipment and a playground without confirming where the boundary line between the properties was, (see Hansen, supra, 22 Cal.App.5th at p. 1031 [“Here, the Hansens were negligent in encroaching on the Disputed Land by planting pistachio trees without confirming they owned the land in light of their knowledge that a lot line adjustment was needed.”]), Defendant may also have been negligent in building the wall fence in the location it did and not objecting to Plaintiffs’ improvements in the disputed area. (See Complaint ¶ 8 [“Based on information and belief, Trimborn alleges that in about the mid-1980s Wise built a wall and fence separating the Wise Parcel and the Trimborn Parcel[;]” ¶ 25 [“It is alleged, based on information and belief, that Wise knew for many decades that the Disputed Area had been used, maintained, irrigated, hardscaped and landscaped by Trimborn and the Disputed Area and Wall Fence provides Trimborn with a privacy buffer and security for the Trimborn pool.”])

As for irreparable harm, as discussed above, Plaintiffs have demonstrated they will suffer irreparable harm that far exceeds that Defendant will suffer (if any).

Thus, Plaintiffs have demonstrated a reasonable probability of prevailing on the merits of the second cause of action.[3]

Defendant requests the Court require Plaintiffs post a bond in the amount of $600,000 to compensate Defendant for damages sustained by the injunction.

On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant’s undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.

Plaintiffs do not address Defendant’s request for an undertaking. However, Defendant has only provided evidence that it will experience increased construction costs in the amount of $430,000 as a result of the delay. (Spira-Cushnir Decl. ¶ 7; Stafford Decl. ¶ 7 & Ex. 4.) Although Defendant contends it will also incur increased costs to relocate parking during the delayed construction, it has not provided any evidence of those estimated costs.

Therefore, the Court requires Plaintiffs to post an undertaking in the amount of $430,000.

Therefore, the Court grants Plaintiffs’ motion for a preliminary injunction and enjoins Defendant from removing the existing Wall Fence, stepping foot in or occupying the Disputed Area, or removing or damaging the Improvements to the Disputed Area during the pendency of this lawsuit.

The Court further requires Plaintiffs to post an undertaking in the amount of $430,000.

Plaintiffs shall prepare and lodge an Order in conformance with the Court’s ruling on or before February 6, 2024. Further, the Court orders Plaintiffs to provide notice of the Court’s ruling and file a proof of service regarding the same.

[1] Defendant has indicated it intends to erect temporary chain link fencing during the construction of the new security wall, but it is unclear whether such temporary fencing will adequately protect children from the pool.

[2] Plaintiffs do contend that if the wall fence is removed, there will be no safety barrier between Plaintiffs’ backyard pool and the children attending Defendant’s schools, posing a threat to their safety. However, this danger can be rectified by Plaintiffs erecting a fence around their pool within their own property line, and does not require that Plaintiffs have an exclusive easement over the disputed area.

[3] Because the Court finds a reasonable probability that Plaintiff will prevail on the merits of the second cause of action, it does not analyze the remaining causes of action.

DEPARTMENT	207
HEARING DATE	January 30, 2024
CASE NUMBER	23SMCV05960
MOTION	Motion for a Preliminary Injunction
MOVING PARTIES	Plaintiffs Thomas Walter Trimborn and Paula Jane Trimborn, co-trustees of the Trimborn Community Property Trust U/D/T July 12, 2001
OPPOSING PARTY	Defendant The Stephen S. Wise Temple