Judge Michael E. Whitaker, Case Number: 23SMCV05960, Date: 2024-12-03 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV05960, Date: 2024-12-03 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.

Since the 1980s, 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 Defendant, the existing wall-fence and Plaintiff’s pool equipment, which abuts the existing wall-fence, are actually on Defendant’s 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 of Los Angeles (“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 stalled. Thereafter, 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.

Defendant has cross-complained against Plaintiffs for (1) Trespass; (2) Ejectment; and (3) declaratory relief, related to the disputed area.

Defendant now moves for summary judgment, or in the alternative, summary adjudication as to Plaintiffs’ complaint, on the following grounds:

Issue 1: The Temple is entitled to judgment as a matter of law as to Plaintiffs’ First Cause of Action for Implied Easement because there is no triable issue of material fact as to the cause of action, and the cause of action is without merit and the claim fails as a matter of law.

Issue 2: The Temple is entitled to judgment as a matter of law as to Plaintiffs’ Second Cause of Action for Equitable Easement because there is no triable issue of material fact as to the cause of action, and the cause of action is without merit and the claim fails as a matter of law.

Issue 3: The Temple is entitled to judgment as a matter of law as to Plaintiffs’ Third Cause of Action for Easement by Estoppel because there is no triable issue of material fact as to the cause of action, and the cause of action is without merit and the claim fails as a matter of law.

Issue 4: The Temple is entitled to judgment as a matter of law as to Plaintiffs’ Fourth Cause of Action for Prescriptive Easement because there is no triable issue of material fact as to the cause of action, and the cause of action is without merit and fails as a matter of law.

Issue 5: The Temple is entitled to judgment as a matter of law as to Plaintiffs’ Fifth Cause of Action because there is no triable issue of material fact as to the Cause of Action; and the Cause of Action is without merit and fails as a matter of law because injunctive relief is a remedy not a Cause of Action.

On November 18, 2024 Plaintiffs requested voluntary dismissal of the first and fifth causes of action without prejudice, which the Clerk of the Court entered on November 20, 2024. Therefore, the Court denies summary adjudication as to Issues 1 and 5 as moot. Other than that, Plaintiffs oppose the motion and Defendant replies.

Exhibit 1 – the City’s June 1, 2022, letter to The Stephen S. Wise Temple approving the Aaron Milken Center project.

Exhibit 2 – the Grant Deed transferring the real property described as Lot 7 in Tract No. 16953 from Elmer A. Hartwig and Gladys Hartwig, husband and wife, to Russell C. Brown and Opal Brown, husband and wife, as joint tenants, recorded in the official records of the County of Los Angeles on November 15, 1957.

Exhibit 3 – the Grant Deed transferring the real property described as Lot 7 in Tract No. 16953 from Russell C. Brown and Opal Brown, husband and wife to Hawley B. Pratt and Cecelia V. Pratt, husband and wife, as joint tenants, recorded in the official records of the County of Los Angeles on June 2, 1960.

Exhibit 4 – the Grant Deed transferring the real property described as Lot 7 in Tract No. 16953 from Hawley B. Pratt and Cecelia V. Pratt, husband and wife, to Joey J. Pento, a single man, recorded in the official records of the County of Los Angeles on August 26, 1980.

Exhibit 5 – the Grant Deed transferring the real property described as Lot 7 in Tract No. 16953 and known as Assessor’s Parcel No. 4378-009-007 from Thomas Langan, a single man, to Plaintiffs Thomas and Paula Trimborn recorded in the official records of the County of Los Angeles on July 28, 2000.

Exhibit 6 – the Grant Deed transferring real property from Frank E. Hurd to Temple Stephen S. Wise recorded in the official records of the County of Los Angeles on December 29, 1966 granting Defendant Stephen S. Wise Temple property currently located at 15500 Stephen S. Wise Drive, Los Angeles County, California, APN 4378-001-008. The same 1966 Grant Deed was referenced in Paragraph 5 of Plaintiffs Verified Complaint and attached as Exhibit 2 thereto.

Exhibit 7 – this Court's January 30, 2024 Minute Order on Motion for Preliminary Injunction.

Exhibit 8 – the November 3, 2004, Master Land Use Permit Application filed by Plaintiff Thomas Trimborn with the City of Los Angeles from 2004 including a Site Plan with a handwritten marking and a subsequent letter of withdrawal.

Exhibit 9 – Tract No. 16953 dated August 15, 1950 depicting the Plaintiffs' property labeled as tract No. 7 on page 2 along with an attached zoomed in version of the same tract map.

Exhibit 10 – recent County of Los Angeles Secured Property Tax Bills for the Temple property.

As for Exhibit 1, judicial notice may be taken of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (Evid. § 452, subd. (c).) Therefore, the Court takes judicial notice of Exhibit 1 as an official act of the City.

Regarding Exhibits 2, 3, 4, 5, 6 and 9, Courts can take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) “The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.” (Ibid.) Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions. (Ibid.) Therefore, the Court takes judicial notice of Exhibits 2 through 6 and 9.

Regarding Exhibits 7 and 11, judicial notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Because this Court’s January 30, 2024 Minute Order and Plaintiffs’ Verified 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 Complaint and Minute Order filed in this matter as court records, but not the truth of the allegations contained therein.

With regard to Exhibits 8 and 10, Courts can take judicial notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid., § 452, subd. (h).) Therefore, the Court takes judicial notice of Exhibits 8 and 10, but as discussed above, not the truth of the hearsay statements contained in Exhibit 8.

Exhibit A: Defendant’s Opposition to Plaintiff’s Motion for Preliminary Injunction filed January 16, 2024.

Exhibit B: Declaration of Christopher Jones in Support of Opposition filed January 16, 2024.

Exhibit C: Certified Copy of Defendant’s 1997 permit application to improve the Wall Fence.

Defendant opposes Plaintiffs’ request regarding Exhibit C on the grounds of relevance and Defendant also objects to the extent Plaintiff asks the Court to take judicial notice of Plaintiff’s interpretation of that document.

Regarding Exhibits A and B, as discussed above, the Court can take judicial notice of court records, but not of the hearsay statements contained therein. As such, the Court takes judicial notice of the existence and filing of Exhibits A and B as court records, but not the truth of the hearsay statements contained therein.

Similarly, as with Defendant’s RJN Exhibit 8 above, the Court takes judicial notice of Plaintiffs’ RJN Exhibit C, but not the truth of hearsay statements contained therein.

The Court rules as follows with respect to Defendant’s objections to the Declaration of Thomas Trimborn:

The Court rules as follows with respect to Defendant’s objections to the Declaration of Louis Gonzalez:

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter Aguilar).) ¿“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) Additionally, in line with Aguilar, “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

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.)

Defendant argues that contrary to Plaintiffs’ prior arguments, a 2004 land use application demonstrates Plaintiffs knew they were encroaching onto Temple property, negating the first element, that Plaintiffs must be “innocent.”

In support, Defendant has advanced a notarized 2004 Master Land Use Permit Application filed with the City’s Planning Department signed by “Tom Trimborn” on August 24, 2004. (Defendant’s RJN Ex. 8.) Section 3 of the Application describes the purpose of the request “to maintain a 7’1” side yard for new addition to SFD and existing remodel in lieu of 10’.” (Ibid.) The diagram on the application depicts the “7’1”” distance between Plaintiffs’ home and the actual property line, which is separate from the wall fence line that is also depicted on the diagram. (Ibid.)

Therefore, Defendant has met its initial burdens of production and persuasion that as of 2004, Plaintiffs either knew or should have known that the wall fence was not the property line, and cannot establish the “innocence” element of an equitable easement cause of action.

Plaintiffs indicate in the body of their opposing separate statement that they object to the foundation of Defendant’s RJN Ex. 8, but evidentiary objections cannot be raised in the body of a separate statement. (See California Rules of Court, rule 3.1354(b) [“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion”].) Thus, Plaintiffs have not validly raised any evidentiary objections.

Plaintiffs also argue that they did not actually know where the real property line was. In support, they provide the Declaration of Thomas Trimborn, which provides as follows:

4. Given that the Wall Fence separated our property from the Temple and the many young children on the other side of the Wall Fence, my wife and I reasonably believed and understood that the Wall Fence marked the boundary between the parcels and that we had the right to use the area now in dispute since it separated the preschool and school filled with children from our side and backyard and a public road. We also believed we owned or co-owned the Wall Fence with the Temple.

5. My wife and I have continuously used the disputed area for the benefit of our property for the past two decades.

6. In approximately 2004, we retained a contractor and necessary professionals to substantially remodel our home. I was the main point of contact for the professionals retained. My spouse, Paula, was not involved in the day to day interactions. During this remodel, we built a second level to the home, as well as backyard improvements, such as adding in an unfenced swimming pool and related pool equipment with underground plumbing. We had to remove very mature cypress trees that were adjacent to the Wall Fence, approximately 50 feet tall, which had become diseased. We replaced the cypress trees with mature native protected oak trees and also added soft landscaping, and a playground in the Disputed Area. We also improved the Wall Fence by installing wooden trellises on top of a portion of the Wall Fence. The Temple never objected or complained about the improvements at the time they were being made in 2004 or thereafter until they contacted us in February 2023 demanding to demolish the Wall Fence. Attached as Exhibit A is a true and correct set of photographs that accurately depict the status of the improvements we made in 2004.

7. At the time our home was being remodeled, my wife and I had three young children, including twins, all under the age of three that occupied most of our time, energy and attention. That summer we were in the United Kingdom for most of the summer for my work and to spend time with Paula’s parents. My wife and I relied on the professionals we retained to prepare all permit applications necessary to complete the remodel. I was asked to sign the permit application related to a side yard variance that had been prepared by the contractor. Although the application was later withdrawn, I was not then aware of the reason why it was not necessary.

8. At no time did any of the professionals we retained explain to us that the Wall Fence was not located on the true boundary line. I have no specialized knowledge or prior experience on how to interpret real estate surveys, and thought the side yard variance referenced in the Temple’s motion was from the Wall Fence to the house.

9. My wife and I were unaware of any historical details regarding the Wall Fence, including any zoning, permitting or approval process that was used by the Temple to construct the Wall Fence at the time we purchased our parcel in 2000 until 2023 when this dispute arose.

10. During construction/remodeling of our parcel, the Temple never communicated to us or took any steps to clarify the location of the Wall Fence, nor did the Temple make any objections to the visible addition of trellis on top of the Wall Fence, the removal of the 50-foot-tall cypress trees which we replaced with native oaks, or to our remodel and installation of the pool equipment in the backyard/Disputed Area.

11. We relied on the Temple’s placement of the pre-existing Wall Fence in improving our property.

At best, Plaintiffs’ evidence may create a disputed issue of material fact as to whether Plaintiffs actually knew where the property line was. But Plaintiffs still should have known where the true property line was, as it was depicted on the 2004 Master Use Permit Application signed by Plaintiff Thomas Trimborn and filed on Plaintiffs’ behalf. Thus, the undisputed evidence still demonstrates Plaintiffs were negligent in being unaware that their true property line did not coincide with the wall fence, and Plaintiffs have not provided any evidence that the Temple was in any way negligent in creating the encroachment.

As such, Plaintiffs have not met their burden of production to create a triable issue of material fact that Plaintiffs were “innocent” encroachers for purposes of an Equitable Easement.

“Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Krolikowski v. San Diego City Employees' Retirement System (2018) 24 Cal.App.5th 537, 564–565.)

Further, when applying the doctrine of equitable estoppel to land title, there must be “actual or constructive fraud on the part of the party to be estopped.” (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 490 [hereafter Mansell].) Thus, in cases involving the title to real property, “it must appear: 1. That the party making the admission by his declarations or conduct, was apprised of the true state of his own title; 2. That he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; 3. That the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, 4. That he relied directly upon such admission, and will be injured by allowing its truth to be disproved. There must be some degree of turpitude in the conduct of a party, before a Court of Equity will estop him from the assertion of his title--the effect of the estoppel being to forfeit his property and transfer its enjoyment to another.” (Boggs v. Merced Mining Co. (1859) 14 Cal. 279.)

Defendant argues that Plaintiffs’ verified complaint, which defines the scope of the allegations Plaintiffs must prove, does not allege any actual or constructive fraud.[1] The complaint alleges as follows:

3. Since 2000, Plaintiffs hold title and own a real property home addressed at 15442 Mulholland Drive, Los Angeles County, California, APN 4378-001-007 ("Trimborn Parcel"). A copy of the Quitclaim Deed for the Trimborn Parcel is attached hereto as Exhibit "1".

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"). A copy of the Grant Deed for the Wise Parcel is attached hereto as Exhibit "2".

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.

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.

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.

12. The Wall Fence has not moved from its current location, although commencing in the beginning of 2023, Wise has and continues to threaten the removal of the Wall Fence and use and occupation of the Disputed Area. Wise is currently expanding its children's school facilities up to the Wall Fence and extensive construction activities have been ongoing on the Wise Parcel.

13. Since the first quarter of 2023, Trimborn and Wise have been attempting to resolve the issues related to the Wall Fence and the Disputed Area, to no avail. There have been multiple oral and written communications between Trimborn and Wise relative to Wise not touching the Disputed Area and not touching the Wall Fence.

14. Based on information and belief, Trimborn learned and therefore alleges that as part of the construction activities, Wise does not plan to improve or occupy the Disputed Area in connection with the expansion of its facilities.

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.

26. A visual inspection of the Improvements, the Wall Fence location, and the conduct of Defendant and the Plaintiffs and their respective predecessors for decades relative to Disputed Area use establishes a continued use of the Disputed Area by Trimborn. Trimborn [ and most likely Wise] justifiably relied on this visual inspection opining that the Disputed Area is part of the Trimborn Parcel. As mentioned above, until 2023, Wise did not voice opposition to such Disputed Area use.

27. An injustice to Trimborns would result if they could not continue to use the Disputed Area.

28. Trimborn seeks to quiet title to the Disputed Area and the Wall Fence based on easement by estoppel rights as of the date of filing this complaint.

Thus, the Verified Complaint does not allege fraudulent intent on the part of the Temple. Further, as discussed above, in light of the 2004 Master Use Permit Application, Plaintiffs had the “means of acquiring the knowledge” about the true location of the boundary line, which also precludes the easement by estoppel claim.

As such, Defendant has met its initial burdens of production and persuasion that Plaintiffs cannot establish that Defendant had the requisite fraudulent intent or that Plaintiffs had no means of acquiring knowledge of the actual boundary line, to state a cause of action for easement by estoppel.

Plaintiffs do not dispute that the verified complaint does not allege actual or constructive fraud. (See UMF No. 31.) Therefore, Plaintiffs have not created any triable issues of material fact.

Instead, Plaintiffs raise the legal argument that actual or constructive fraud is only required in cases involving title to real property, not where the dispute concerns an easement. In support, Plaintiffs cite to City of Long Beach v. Daugherty (1977) 75 Cal.App.3d 972, 976-977 (hereafter Daugherty). The same beach properties at issue in Mansell were also at issue in Daugherty, and Daugherty distinguished the factual findings regarding the boundary line disputes in Mansell from the easements at issue in Daugherty on the grounds that fee title ownership is an entirely separate issue from an easement.

However, contrary to Plaintiffs’ characterization, Daugherty did not hold that fraudulent intent is not required in cases involving easements, like it is in cases involving fee title. In fact, the word “fraud” does not appear at all in the Daugherty case. Indeed, the same rationale behind requiring actual or constructive fraud to fee title – that applying equitable estoppel too readily to real property transactions would essentially undermine the statute of frauds – applies with equal force to easements, which also involve (nonpossessory) interests in land.

Further, as discussed above, Plaintiffs have not presented evidence disputing that Plaintiffs had constructive knowledge of the actual boundary line, by virtue of the 2004 Master Use Permit Application signed by Mr. Trimborn.

The elements of a prescriptive easement are “(a) open and notorious use; (b) continuous and uninterrupted use; (c) hostile to the true owner; (d) under claim of right; and (e) for the statutory period of five years.” (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 976.)

Defendant argues that exclusive prescriptive easements are not available in garden variety boundary encroachment cases, such as this.

In Raab v. Casper, the appellate 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 (hereafter Raab).) 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.

In Harrison v. Welch, the appellate court held, “an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land will not be granted in a case like this involving a garden-variety residential boundary encroachment.” Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093 (hereafter Harrison).) In Harrison, the disputed area similarly involved a setback area along the property line. (Id. at p. 1094.) The encroaching party sought an exclusive easement to maintain a wooden shed on the disputed area and a purportedly non-exclusive easement to various landscaping improvements. (Id. at p. 1093.) The appellate court explained: “[a]n encroaching woodshed, just as much as any encroaching fenced-in landscaping, as a practical matter completely prohibits the true owner from using his land” and noted that although the trees, railroad-tie planter boxes, and an irrigation system on the disputed area did not create physical barriers excluding the owners from accessing the landscaped area, as a practical matter, because these encroachments effectively prohibit the landowner from using that portion of their land, were also tantamount to an exclusive easement, which the trial court appropriately refused to grant. (Id. at pp. 1093-1094.)

In so holding, Harrison analyzed several other relevant cases. For example, in Otay Water Dist. v. Beckwith, the appellate court affirmed an exclusive easement to maintain a reservoir that had been on the property for twenty years, because a nonexclusive easement would risk potential contamination of the water supply, creating public health and safety concerns. (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1044-1045, 1047-1048 (hereafter Otay).)

By contrast, in Silacci v. Abramson, applying Raab, the appellate court reversed the creation of an exclusive prescriptive easement in a dispute between neighbors over a portion of land behind their houses that one party had fenced in and used as a backyard. (Silacci v. Abramson (1996) 45 Cal.App.4th 558, 560-562 (hereafter Silacci).) In so holding, Silacci distinguished Otay as follows:

A public water company's right to keep drinking water safe from contamination must be given precedence. An exclusive prescriptive easement is, nonetheless, 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.

Defendant also cites to Kapner v. Meadowlark Ranch Assn. There, the encroacher sought a prescriptive easement over improvements he enclosed on a parcel of land he held in common with other owners. (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1185 (hereafter Kapner).) The Court of Appeal held that by enclosing the land in question, the encroacher had created a possessory interest, precluding a prescriptive easement. (Id. at p. 1187.)

Thus, Defendant has met its initial burdens of production and persuasion that the fenced-in disputed area along the boundary between the parties’ properties would create an impermissible exclusive prescriptive easement.

Plaintiffs cite to Romero v. Shih (2024) 15 Cal.5th 680, 697, fn. 2 as standing for the proposition that “while exclusive prescriptive easements are rare, they are not categorically prohibited.”

Plaintiffs also cite to Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 769, fn. 11, as standing for the proposition that “while prescriptive easements are generally based on historical use, exclusive easements are possible when appropriately limited and conditioned.”

Plaintiffs also cite to Mehdizadeh, which permitted an exclusive prescriptive easement when it “serves a public health or safety interest.” (Opp. at p. 16.)

Plaintiffs argue that their exclusive easement benefits the public, because the Temple’s Wall Fence creates a physical boundary keeping the children attending its early childhood education center from the pool in Plaintiffs’ private backyard, as well as a public road.

While the Court agrees that some form of boundary fence is necessary to keep the children attending Defendant’s early childhood education center safe, the Court disagrees that an exclusive prescriptive easement, entitling Plaintiffs exclusive access to the disputed area, is necessary to keep the children attending Defendant’s early childhood education center from accessing the pool in Plaintiffs’ backyard or the nearby public road.

Therefore, Plaintiffs have not met their burden to create any triable issue of material fact. As such, the Court grants summary adjudication as to Issue 4.

Therefore, the Court grants in part and denies in part Defendant’s motion for summary adjudication. In light of Plaintiffs’ voluntary dismissal of the first and fifth causes of action, the Court denies summary adjudication as to Issues 1 and 5 as moot. Because the Court denies summary adjudication as to Issues 1 and 5, the Court similarly denies summary judgment.

Finding Defendants met their initial burdens of production and persuasion that Plaintiffs were on at least constructive notice of the true boundary line, by virtue of the 2004 Master Land Use Permit Application signed by “Tom Trimborn” and publicly filed on Plaintiffs’ behalf, and that Plaintiffs did not meet their burden of production to create a triable issue of material fact, the Court grants summary adjudication as to Issues 2 and 3. The Court also grants summary adjudication as to Issue 3 on the alternative grounds that the operative complaint does not allege actual or constructive fraud, as required to apply equitable estoppel to interests in real property.

Finding Defendants met their initial burdens of production and persuasion that the law precludes exclusive prescriptive easements in ordinary private boundary line disputes, like the one here, and Plaintiffs failed to create a triable issue of material fact that granting them an exclusive prescriptive easement is necessary to protect public health and safety, the Court grants summary adjudication as to Issue 4.

Moving Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service regarding the same.

[1] “The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding. As our Supreme Court has explained it: The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment. Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [cleaned up]; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond”].)

DEPARTMENT	207
HEARING DATE	December 3, 2024
CASE NUMBER	23SMCV05960
MOTION	Motion for Summary Judgment/Summary Adjudication
MOVING PARTY	Defendant The Stephen S. Wise Temple
OPPOSING PARTIES	Plaintiffs Thomas Walter Trimborn and Paula Jane Trimborn, co-trustees of the Trimborn Community Property Trust U/D/T July 12, 2001