Judge: Stephen P. Pfahler, Case: 22CHCV01481, Date: 2023-04-18 Tentative Ruling

Case Number: 22CHCV01481    Hearing Date: April 18, 2023    Dept: F49

Dept. F-49

Date: 4-18-23                                                    

Case # 22CHCV01481

Trial Date: Not Set

INJUNCTION

MOVING PARTY: Plaintiffs, Andre Zimbeck, et al.

RESPONDING PARTY: Defendant, Frank Tapanes, Jr.

RELIEF REQUESTED

Motion for Preliminary Injunction

SUMMARY OF ACTION

Plaintiffs Andre Zimbeck and Tatyan Cassanelli-Zimbeck and defendant Frank Tapanes, Jr. own adjacent properties identified as 22570 and 22545 Fern Ann Falls Rd., Chatsworth. On December 30, 2021, a concrete bridge, which was part of a pedestrian access road, failed. The parties have been unable to agree on a replacement/repair of the bridge. Plaintiffs began using an alternative route for access to their property, which traverses Tapanes’ property. On December 14 and 17, 2022, Tapanes allegedly created a blockade thereby interfering with Plaintiffs’ pedestrian access.

On December 23, 2022, Plaintiffs filed a complaint for Quiet Title to Easement, Declaratory Relief, and Injunctive Relief. On December 28, 2022, Plaintiffs filed a notice of pending action (lis pendens), which was recorded on December 27, 2022. On December 29, 2022, the court granted an ex parte temporary restraining order preserving the status quo, whereby the parties could continue to access the disputed route and/or commence construction repairs/rebuilding of the damaged bridge at the parties’ own risk. Defendant answered the complaint on February 22, 2023.

RULING: Granted in Part/Denied in Part.

Plaintiffs Andre Zimbeck and Tatyan Cassanelli-Zimbeck move for a preliminary injunction enjoining defendant Frank Tapanes, Jr. from interfering with access to the “Disputed Area,” and to allow access to their property via alternate route traversing Tapanes’ property pending potential repairs/replacement of the bridge. Plaintiffs seek to enjoin Defendant from placing barriers, such as fences and/or “no trespassing” signs, pending the bridge replacement/repairs. Plaintiffs admittedly live in a home currently without vehicle access, thereby requiring 0.25-mile trek to and from the home from their vehicle access.

According to Plaintiffs, the area comprising the now washed out dam/bridge itself is owned by both Tapenes and third party homeowner(s) Vasquez. Plaintiffs apparently blame either Tapanes or third party property owner Hart for removing the vegetation near the bridge, thereby allowing the dirt and debris to damage the bridge during the winter rainy season. Tapanes denies any wrongdoing.

The destruction of the bridge/dam forced Plaintiffs to utilize an alternative route. Plaintiffs apparently chose to utilize the Tapanes property for their access pending potential resolution or adjudication of the bridge/dam reconstruction dispute, due to other prior restrictions imposed by prior actions and property owner demands. Plaintiffs refer to at least two other actions apparently tangentially addressing prior disputes, including a 1999 action whereby Fern Ann Falls Residents restricted to ingress/egress from the “east only.” Third party property owners identified as the “Sellers” (property transferred from decedent Kasten) also refused Plaintiffs continued use of their property for pedestrian access.

The court also assumes from the declarations of Plaintiffs, that the route traversing Defendant’s property is more convenient, less burdensome, and more direct for Plaintiffs, thereby prompting at least in part, the subject motion. The court cannot determine the boundaries of any and all restrictions from the declarations and maps of the parties, but will address the merits of the claim notwithstanding the lack of a precise geographic description. Plaintiffs admittedly brought this action and motion in order to avoid a larger, financially burdensome coordinated action involving all impacted homeowners,

Defendant in opposition contends the exclusion of people from traversing the property is a function of both property rights and to protect the homeowner from any potential liability claims. On the merits of the motion itself, Defendant challenges the lack of any substantive legal support in support of the sought after injunction. Defendant specifically contends that the washed out dam eviscerated any existing easement. Thus, preservation of the “status quo” remains illusory, in that the dam/bridge washed away.

Defendant maintains that the alternative pedestrian route offered, adjacent to the washed out dam, and without any required trespass to the Defendant’s property provides a reasonable, sufficient alternative. Defendant also references a 40’ wide easement, which is represented as an alternative location for an improved vehicular access. [See declaration of Frank Tapanes Dec., ¶ 22.] Again, the court cannot determine the location of the represented areas, including this potential alternative, and none of the parties address the feasibility of this alternative location either way.

The opposition is also supported by the declarations of Chris Sellars (not “Sellers”) and April Hart, who both represent efforts to rebuild the dam/bridge, as well as the creation of the alternative walking path made available to all residents, including Plaintiffs. According to Sellars, it is Plaintiffs that refuse to cooperate in any rebuilding of the dam suitable for vehicular traffic and meeting certain minimum safety standards.

Plaintiffs in reply maintain that if the blocks to their preferred path over responding Defendant’s property are not enjoined, they will suffer irreparable harm. Plaintiffs deny any alternative route viability due to prior litigation barring said potential plans. Plaintiffs maintain a likelihood of success on the merits based on prescriptive easement.

The court considers both irreparable harm and the likelihood of prevailing on the merits. (Millennium Rock Mortg., Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804, 812.) “An evaluation of the relative harm to the parties upon the granting or denial of a preliminary injunction requires consideration of: ‘(1) the inadequacy of any other remedy; (2) the degree of irreparable injury the denial of the injunction will cause; (3) the necessity to preserve the status quo; [and] (4) the degree of adverse effect on the public interest or interests of third parties the granting of the injunction will cause.’” (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 435.) “‘[T]he more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue .... [I]t is the mix of these factors that guides the trial court in its exercise of discretion.’” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 342.) “The ultimate questions on a motion for a preliminary injunction are (1) whether the plaintiff is 'likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant,’ and (2) whether there is ‘a  reasonable probability that the plaintiffs will prevail on the merits’” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408. Procedurally, an application for a preliminary injunction, must be based upon sufficient evidence.  (CCP §527(a); Bank of America v. Williams (1948) 89 Cal.App.2d 21, 29.)

“[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) “An injunction designed to preserve the status quo as between the parties and to restrain illegal conduct is prohibitory, not mandatory, and does not require heightened appellate scrutiny.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1048.) “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)

The subject motion seeks an injunction preserving the “status quo” of access to previously used areas, but also effectively seeks the imposition of the right to traverse Tapanes’ property. For purposes of the subject motion, the court assumes the “Disputed Area” constitutes, at least in part, the washed out dam/bridge, but it remains unclear whether Plaintiffs’ preferred route is also included in the “disputed area.” Regardless, as phrased, the court finds the portion of the request demanding access to Defendant’s property constitutes a request for mandatory relief, even if it’s based on a claim for a potential prescriptive existent easement. Any relief would require removal of fencing and declaration of rights pending adjudication of the underlying action.

On the showing of the likelihood of the merits, Plaintiffs admit to the lack of any written, recorded easement granting access. The bridge has purportedly been in use for a century. On the other hand, the preferred route over Defendant’s property lacks any citation to authority for the finding of a prescriptive easement, though the quiet title cause of action in the operative complaint essentially alleges the foundation for the argument. A more articulated prescriptive easement appears in the reply, but again, the support remains minimally supported by legal authority and evidence.

Given the paucity of authority, the court instead addresses the 90 paragraph declaration of Andre Zimback or 47 paragraph declaration of Tatyan Cassanelli-Zimbeck. The parties apparently support the existence of any existing easement based on Plaintiffs prior use of the path traversing responding Defendant’s property following the bridge/dam wash out and the construction of fencing. As addressed above, it appears from the declaration that the alternative route was only selected upon the Sellars denying use of his property in 2022, and Plaintiffs’ admitted dislike of the alternative route provided and utilized by April Hart among others. [Zimbeck Dec., ¶¶ 13, 45-49; Declaration of Frank Tapanes, ¶ 23.] The court finds a route of convenience utilized for approximately one years time in no way meets the standard for a prescriptive easement. Plaintiffs own non-cited authority in reply acknowledges a five year use. The court finds no support for five years use. Furthermore, although not stated in the unsupported elements in the reply, a prescriptive easement additionally requires proof of payment of property taxes on disputed parcel. (Code Civ. Proc., § 325; Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1048.)

The motion otherwise lacks address of a potential “equitable easement.” (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008-1009.) The court declines to make the arguments for Plaintiffs, and will not force Defendant to respond to such an argument either way. Given the higher threshold requirements for a mandatory injunction, the court finds the lack of legal and factual support undermines any showing supporting the imposition of such injunctive relief on the likelihood of the merits portion of the test.

As for the dam/bridge itself, the court acknowledges the argument regarding the potential loss of the easement upon the destruction of the bridge, and the lack of reply to this argument. The declarations on both sides concur on efforts to consider rebuilding the dam/bridge, but there appears to be a disagreement over the allocation of payment for the $2,000,000 construction estimate. [Declaration of Andre Zimbeck, ¶¶ 57-58; Declaration of Chris Sellars, ¶¶ 11-19.] The court declines to consider whether the rights were “washed away” with the rain storm without more articulated factual briefing, and given the parties apparent efforts to craft a solution.

More fundamentally, the court also notes that Plaintiffs acknowledge the bridge area includes property owned by third party Vasquez, but Vasquez is neither a named party nor included in any notice of the injunction. The court therefore cannot accord complete relief on this prohibitory portion of the injunction to the extent the former dam/bridge portion of the action is part of the subject “disputed area.”

The court therefore finds Plaintiffs fail to meet the first threshold, likelihood of prevailing on the merits, as to any claims for mandatory relief, and a stalemate as to the Tapanes’ portion of the former dam/bridge area.

On the irreparable harm showing and balance of equities, the court also finds a lack of support. Without a legal foundation for any easement across the Tapanes property, it’s not clear how Plaintiffs otherwise face the prospect of an inadequate legal remedy thereby leading to potential irreparable harm. On the bridge however, the court finds the open factual question regarding the existence of the dam/bridge easement presents a potential basis for irreparable harm, should any development occur in the area detrimental to Plaintiffs. The court therefore finds this factor favorable to Plaintiffs for purposes of the instant motion.

Finally, on the balance of equities, the court finds the alternative route availability undermines any support for the mandatory injunction request. Plaintiffs acknowledge the alternative route provided, but contend the alternative path constitutes a “steep graded slope” strewn with debris at times from the last rain storm, and constitutes a “circuitous” route. [Zimbeck Dec., ¶¶ 66-67.] April Hart counters the opinions of Plaintiffs by representing the alternative route as a satisfactory alternative to the washed out dam/bridge utilized by other impacted neighbors as well. [Declaration of April Hart, ¶¶ 7, 10.]

While not preferable, the alternative route sufficiently accommodates Plaintiffs requirements pending either reconstruction of the bridge/dam or the selection of an alternative path, which may include a potential alternative vehicle path. The court is cognizant of the economic realities in reconstruction, the potential impediments to developing alternative routes, and the greater physical hardship on Plaintiffs. Nevertheless, the court cannot disregard the property rights of both named and unnamed parties for the economic convenience or necessities of Plaintiffs. The economic realities of the situation will not compel the court to compromise the property rights of Defendant and other third parties without better consideration of due process rights. The court on the other hand finds the prior use of the bridge/dam and necessity for vehicle access arguably supports an injunction pending further adjudication of the rights governing potential reconstruction.

The court therefore DENIES any motion for injunction to enjoining Defendant from asserting private property rights as a homeowner excluding Plaintiffs from traversing the property for ingress and egress from their home via this particular path. The court GRANTS the motion as to defendant Tapanes ONLY regarding the prohibitory injunction as to the any actions interfering with potential reconstruction of the dam/bridge pending adjudication of the action.

The case is at issue. The court will set a case management conference and trial date.

Plaintiffs to provide notice.