Judge: Serena R. Murillo, Case: 22STCV33062, Date: 2023-05-22 Tentative Ruling

Case Number: 22STCV33062    Hearing Date: May 22, 2023    Dept: 31

TENTATIVE

Plaintiffs’ motion for a preliminary injunction is GRANTED on the terms set forth below.

Background

On October 7, 2022, plaintiffs Peter Chen and Penny Chen sued defendant Maziar Yarahmadi for trespass, nuisance, declaratory relief to confirm an express easement, and a preliminary and permanent injunction. Plaintiffs filed their operative first amended complaint (FAC) on December 8, 2022.

Plaintiffs own the property located at 1040 S. Gabriel Blvd. in Pasadena, CA (“Parcel 1”). (Declaration of Peter Chen (Chen Decl.), ¶ 3.) Defendant Maziar Yarahmadi owns the property 1046 S. Gabriel Blvd., Pasadena (“Parcel 2”). (Declaration of Maziar Yarahmadi (Yar. Decl.), ¶ 3.)

Parcel 1 directly abuts San Gabriel Blvd. (DRJN, Ex. 6.) Most of Parcel 2 is situated behind Parcel 1 and does not abut the street. (Ibid.) But one portion of Parcel 2, used as a driveway, runs along the side of Parcel 1 and connects Parcel 2 to San Gabriel Blvd. (Ibid.)

Plaintiffs acquired Parcel 1 by way of a 2016 grant deed which includes not only Parcel 1, but also “[a]n easement for ingress and egress . . . over that portion of said land” (“the Easement”) described in the recorded Parcel Map, which amounts to most of the Parcel 2 driveway. (PRJN, Ex. 1; DRJN, Ex. 6.)

As conceded by defendant: a wall along the edge of the parcels contains a gate into plaintiffs’ backyard (the “backyard gate”), on Parcel 1, onto the Easement on Parcel 2. (Yar. Decl., ¶ 12.) Defendant has erected a steel barrier blocking the gate, preventing anyone from passing between Parcel 1 and the Easement. (Id., ¶ 15.) Plaintiffs also allege defendant has parked cars blocking the gate, though he does not concede this fact.

Defendant also has a separate, pre-existing gate on Parcel 2 (the “driveway gate”) that blocks the end of the driveway, giving him control over those who traverse the Easement. (Id., ¶¶ 6-8.)

Plaintiffs now seek a preliminary injunction enjoining defendant, or anyone acting on his behalf, from blocking the backyard gate and, generally, their use of the Easement, and ordering defendant to remove “the steel posts and solid steel blockade” which bloack the access to the backyard gate. (Ps’ Proposed Order, 2:2-7.)

Legal Standard

“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.  . . . .  The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.”  (Butt v. State of California (1992) 4 Cal.4th 668, 677-78 (citations omitted).) 

“The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action.”  (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.)  The status quo is the “last actual peaceable, uncontested status which preceding the pending controversy.” (14859 Moorpark Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1408 (internal quotations and citations omitted).)  A preliminary mandatory injunction “is not permitted except in extreme cases where the right thereto is clearly established and it appears that irreparable injury will flow from its refusal.”  (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295 (citations omitted).)  

Discussion

Requests for Judicial Notice

Plaintiffs request that the court take judicial notice of four grant deeds, recorded September 19, 2016, July 20, 2006, February 16, 1984, and December 28, 1982.

The court may take judicial notice of “[o]fficial acts of the . . . executive . . . departments of the United States and of any state of the United States”, and of “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.” (Evid. Code § 452, subds. (c) and (g).) A grant deed is judicially noticeable under these sections. (Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1460-1461.)

The court GRANTS plaintiffs’ requests for judicial notice in their entirety.

Defendant requests that the court take judicial notice of (1) a recorded grant deed dated January 30, 1980; (2) a recorded parcel map recorded January 8, 1982; (3) a Deed of Trust and Assignment of Rents recorded February 16, 1984; (4) a recorded Joint Tenancy Grant Deed dated April 24, 1989; and (5) a grant deed recorded December 11, 2002. These documents are noticeable for the same reasons set forth above.

The court GRANTS defendant’s request for judicial notice as to exhibits 5 through 9 attached to their Request for Judicial Notice.

Defendant also requests judicial notice of “[a] photograph of the real property located at 1040 South San Gabriel Boulevard, Pasadena, California as shown on the website http://maps.google.com . . .”, arguing that “[j]udicial notice of this document is appropriate” because “it is a fact” not reasonably subject to dispute as described in Evidence Code section 452, subdivision (g). Defendant is incorrect that information on the Internet is, per se, true.

The court DENIES defendant’s request that the court take judicial notice of geographical information posted on the Internet.

Evidentiary Objections

The court OVERRULES both of plaintiffs’ evidentiary objections to portions of the Declaration of Terry J. Kent.

The court OVERRULES plaintiffs’ objections to the declaration of Maziar Yarahmadi nos. 1-4, 6-9, 11-12, 15-16, and 18-21.

The court SUSTAINS plaintiffs’ objections to the declaration of Maziar Yarahmadi nos. 5, 10, 13-14, and 17.

1. Likelihood of Prevailing

a. Validity of the Express Easement

The court first addresses the validity of the easement, because plaintiffs’ causes of action largely turn on that determination.

Defendant argues plaintiffs have only presented evidence of the existence of an express easement, rather than its creation. (Opp., 9:26-10:2.) He claims his own evidence shows that Parcel 1 was initially owned by two individuals, Joseph and Maria Battaglia, whereas Parcel 2 was owned by “Joseph E. Battaglia, Inc.” and Joseph Battaglia on behalf of a trust. (Opp., 10:4-12.)

Defendant argues that an easement appurtenant, which attaches to the land, may only be created when the same entity owns both the dominant and the servient properties, and because plaintiffs’ and defendant’s properties had different owners, those owners created only an easement in gross, a personal right belonging to the then-owners rather than a property right that passed with the deed to the property. (Id., 10:13-21.)

Defendant suggests that if a party reserving an easement does not own the property to be benefitted from an easement, the easement is in gross “in the absence of express language stating otherwise.” (Opp., 10:14-15.) He does not specify where this “express language” should be. He cites to two cases for this rule. One case, Salvaty v. Falcon Cable Television (1985) 165 Cal.App.3d 789, bears little relevance to his contention. And the other, LeDeit v. Ehlert (1962) 205 Cal.App.2d 154, involved circumstances where a lessee of government land attempted to grant an easement appurtenant over it, which the lessee naturally had no right to do.

As plaintiffs point out in their reply, “[e]asements are presumed appurtenant unless there is clear evidence to the contrary. Although a grantor may reserve interest in property to a stranger to grantor's title . . . that intent must be clearly shown.” (Cushman v. Davis (1978) 80 Cal.App.3d 731.) “[A]n easement is never presumed to attach to the person of the grantee when it can fairly be construed to be appurtenant to some other estate.” (Balestra v. Button (1942) 54 Cal.App.2d 192, 198.) 

Plaintiffs simply have the better argument. They have presented judicially noticeable evidence that an express easement appurtenant exists over defendant’s parcel. Defendant’s case law does not clearly apply to this case.

Defendant’s contention that only an easement in gross was created relies, first, on a determination that the Battaglias did not own both properties. This is not clearly demonstrated by the judicially noticed evidence defendant has offered. And even if defendant’s account were accepted as true, it is by no means clear that the commonality of interest between the parties that allegedly owned both parcels was not such that they could both be ascribed interest. That is to say, “Joseph Battaglia,” “Joseph Battaglia, Inc.”, and “Joseph Battaglia as trustee” could easily be regarded as the same owner of both parcels based on various principal-agent theories.

Also according to the controlling case law cited by plaintiffs, defendant will have to present extrinsic evidence that the Battaglias intended to create an easement in gross, even though they recorded an easement appurtenant in their grant deeds. Based on the record currently before the court, defendant has shown no likelihood of prevailing on this point.

Thus, the court finds plaintiffs are likely to prevail on the claim that they hold an express easement interest over the Easement area described in the parties’ moving papers.

b. First Cause of Action for Trespass

“ ‘Trespass is an unlawful interference with possession of property.’ [Citation.] The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.)

Plaintiffs do not argue in their motion that they are likely to prevail on their trespass claim. Instead, they attempt to subvert defendant’s anticipated counter-argument that he has eliminated the express easement by adverse possession. (See Mot., 11:13-15.) This argument is unhelpful.

Defendant does not argue adverse possession. Instead, he takes the position that plaintiffs must and have not shown they have an “exclusive possessory right” over the express easement. (Opp, 7:1.) He insists plaintiffs’ motion must demonstrate that plaintiffs’ easement is exclusive, and they readily admit it is not. (Id., 7:9-11.) According to defendant, because plaintiffs do not argue they have an exclusive easement, “nothing built within the Easement Area can be a trespass.” (Id., 7:20.)

Plaintiffs need not demonstrate an “exclusive possessory right.” Liability for nuisance requires only ownership or control. An easement interest, while not equivalent to a fee interest, nonetheless grants an enforceable right of control over a property. (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1243.) Plaintiffs cite to Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057 (Vieira); Vieira discussed the question of “occupancy and possession” for the purposes of harm, rather than ownership and control – nonetheless, plaintiffs’ point is well-taken. In Vieira the Sixth District accepted as a given that the appellee’s non-exclusive right of way over property could be injured by trespass.

As to the latter four elements, the parties do not dispute defendant’s intentional disregard of the easement, if the court finds the easement exists. Nor do they dispute that plaintiffs did not give defendant permission to block the gate that opens from their property onto the driveway.

As to harm, Vieira, supra, addresses this matter directly on near-identical facts. There, appellee, the owner of a property adjoining a mobile home park sought to continue using a right of way after the park built homes that blocked his ingress-egress easement. The court upheld a verdict for the appellee.

As stated in McBride v. Smith (2018) 18 Cal.App.5th 1160, a case cited by both parties: “An easement owner may sue to enjoin an obstruction or an unreasonable interference with her specific, limited, definable use of the easement by the servient owner.” (Id., at p. 1175.)

Given that plaintiffs are likely to prevail on establishing that an easement in their favor exists, they are also likely to prevail on their trespass claim.

c. Second Cause of Action for Nuisance

“[T]he elements of an action for private nuisance [are, f]irst, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. [¶] Substantial damage and unreasonableness are to be judged by an objective standard.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

Again, plaintiffs anticipate a counter-argument of adverse possession rather than arguing for the merit of their claims.

Defendant argues plaintiffs must and have not shown that any invasion with their alleged property interest is substantial. (Opp., 9:3.) Nor, according to defendant, have plaintiffs suffered substantial actual damage apart from the anticipated cost of removing alleged encroachments on their property. (Opp., 9:3-4 and 9:7-9.)

The viability of plaintiffs’ nuisance claim depends on much the same analysis as their trespass claim. And it is supported by the same recent case law. In Vieira Enterprises, Inc. v. McCoy, supra, the Sixth Circuit upheld a jury’s finding that the owner of a servient estate was liable for both trespass and nuisance when its owner blocked the ingress-egress easement enjoyed by the owner of the dominant estate. (Vieira, supra, at pp. 1092-1093.) In fact, Vieira implies that the elements of the two causes of action are so intertwined in such cases as to be nearly duplicative of one another. (Ibid.)

For the same reasons plaintiffs are likely to prevail on their trespass claim, they are also likely to prevail on a claim for private nuisance. And a likelihood to prevail on either would justify a preliminary injunction, subject to the proper balancing of hardships.

d. Third Cause of Action for Declaratory Relief

“ ‘To qualify for declaratory relief, [a party] [has] to demonstrate its action present[s] two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.” ’ ” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

The parties do not dispute that the enforceability of plaintiffs’ easement and the extent of any alleged encroachment on their property rights is a proper matter for declaratory relief. And as set forth above, plaintiffs are likely to prevail on their contention that an express easement on their property exists in their favor.

2. Balance of Harms

For the second factor, “irreparable harm” means that the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award.  (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)  Real property is generally considered “unique” so that injury cannot be compensated in damages.  (See Civ. Code § 3387 [transactions in real property].) “A court of equity will in a proper case award a mandatory injunction for the protection and preservation of an easement, including, where the remedy is appropriate, an order for the removal of an obstruction already erected.” (Applegate v. Ota (1983) 146 Cal.App.3d 702, 712–713.)

Defendant focuses on the harm that may come to him if he is forced to remove the gate he has placed across his driveway. The court agrees that forcing defendant to tear out large fixtures on defendant’s property would cause undue hardship. But plaintiffs do not seek such relief. They seek a limited injunction forcing the removal of a steel plate that blocks their backyard gate and enjoining defendant from taking further action to block the easement.

The harm caused to plaintiffs by removing their access to the purported easement is presumed irreparable because it is an interest in real property. And they can be permitted ingress and egress without any serious harm to defendant. Specifically, defendant can provide them with whatever ability he has (e.g. by security code or key or similar device) to access the driveway gate. Apparently he had a similar arrangement with the prior owner of Parcel 1. (Yar. Decl., ¶¶ 6-7.)

Given plaintiffs’ considerable likelihood of prevailing on their claims, and compared with the negligible hardship the injunction in question will cause to the defendant, a preliminary injunction shall issue.

3. Undertaking

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction.  (See Code Civ. Pro. § 529(a); City of South San Francisco v. Cypress Lawn Cemetery Ass’n. (1992) 11 Cal. App. 4th 916, 920.)

The only readily ascertainable damage defendant will sustain by reason of injunction is the cost of removing the steel plate he has used to obstruct plaintiffs’ backyard gate, and then (one assumes) reinstalling it if the court ultimately finds in his favor. Neither party has offered a measure of these damages. From photographs and descriptions in the moving papers, the court estimates the cost of this undertaking to be no more than $1,000.00.

Conclusion

Plaintiffs’ motion for a preliminary injunction is GRANTED.

Defendant and all persons acting on his behalf are enjoined during the pendency of this action from blocking plaintiffs’ access to the Easement, including the “backyard gate” as described above, and from interfering with their use of the Easement as described in plaintiffs’ grant deed to the property (i.e., ingress and egress).

Defendant is ordered to remove the solid steel barrier blocking plaintiffs’ “backyard gate” opening from Parcel 1 onto the Easement, within twenty (20) days. The court makes no order obligating defendant to remove any other fixtures from Parcel 1, Parcel 2, or the Easement, except those which block the “backyard gate.”

Plaintiffs to post an undertaking of $1,000.00.

Moving party is ordered to give notice.