Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC365541, William F. Fahey, Judge.
Law Office of David Alan Cooper and David Alan Cooper for Plaintiff and Appellant.
Gibson Rivera & Toms, James L. Gibson for Defendants and Respondents.
KITCHING, J.
INTRODUCTION
Jose Ruben Aguilar, Jr. appeals from a judgment quieting title to real property by adverse possession in Warren Davis and Janice Davis. Aguilar claims that the trial court erroneously failed to consider appraisal notes and exhibits of a witness who testified to Aguilar’s financial loss if the Davises’ encroachment on Aguilar’s property was not abated. Aguilar argues that this erroneous failure to admit the witness’s appraisal notes and exhibits undercut Aguilar’s showing of hardship when the trial court “balanced the hardships” to the parties in adjudicating the adverse possession claim. Balancing the hardships to the parties, however, is not an element of an adverse possession claim. The trial court is not required to conduct equitable balancing of the hardships in determining whether plaintiff has established an adverse possession claim. Thus any error in failing to consider Exhibit 6 was harmless. Aguilar also claims that a party cannot obtain title to property by adverse possession in a manner that violates the Los Angeles Municipal Code, but provides no authority supporting this claim. A successful claimant to property by adverse possession obtains ownership of and title to real property, but a judgment quieting title to property by adverse possession does not concern the use or development of the property. Violation of a municipal zoning code is a separate issue not implicated in or adjudicated by that judgment. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Aguilar, the owner of real property known as 4216 Berenice Place in Los Angeles, filed a complaint against Warren Davis and Janice Davis, the owners of adjoining real property known as 4220 Berenice Place. The complaint alleged that structures on the Davises’ property encroached three to 10 feet onto Aguilar’s property, which violated city and county zoning ordinances, prevented Aguilar from completing renovations and improvements to his property, and constituted a nuisance.
On July 20, 2007, Warren Davis and Janice Davis filed a cross-complaint to quiet title (adverse possession) and for declaratory relief against Aguilar and others. The cross-complaint alleged that since 1968 and before, the Davises and prior owners of the 4220 Berenice Place property had used a part of the 4216 Berenice Place property, called “the prescriptive area, ” and on or before 1968 prior owners had improved that prescriptive area with portions of a living room and concrete walls. The cross-complaint sought to quiet title to the prescriptive area in Warren Davis and Janice Davis based on their adverse possession of the prescriptive area.
Aguilar filed a second amended complaint on January 14, 2008, which became the operative complaint. It alleged causes of action for continuing nuisance and permanent nuisance, and alleged that the Davises’ house encroached 10 feet onto Aguilar’s property.
Trial was by the court, which found the following facts. Aguilar purchased his property at 4216 Berenice Place in 1994 with two other family members. Based on some mature vegetation, he believed he understood where his property line was located. He also observed a walkway between his house and the Davises’house and retaining walls on the adjacent properties.
Edward and Janice Davis had lived at 4220 Berenice since they purchased that property in 1968. The house was unchanged during that time, and its living room had encroached over the legal property line onto the adjacent property since 1968. Mr. Davis was unaware of the encroachment when he purchased the house, because of vegetation on each side of what he and his then neighbor believed was the property line.
In 1984, the prior owner of the 4216 Berenice Place property gave Mr. Davis permission to build a wall and fence along what they believed to be the property line. Mr. Davis did not obtain permits from the city before building the retaining walls and fence.
In 2005, Aguilar decided to remodel his house. Before obtaining permits or professional help, he demolished the inside of the house, removing all interior walls, plumbing, and floors. He then consulted with an architect about zoning and related issues and spoke with contractors and builders. He also hired a surveyor, Manuel Cortez, who prepared a report showing that the Davises’house encroached on Aguilar’s property. This finding surprised Aguilar. He tried to speak with Mr. Davis, who refused to speak to him about the property line issue. Aguilar conceded that the encroachment of the Davises’ house had existed since 1976.
In 2005, Mr. Davis received a copy of Cortez’s survey. He had a brief discussion with Cortez and with Aguilar. This was the first time Mr. Davis was aware of an issue concerning the property line.
Felix Arroyo, a City of Los Angeles building inspector who handles code enforcement issues based on complaints received by the City, prepared a May 1, 2007, “Order to Comply” which noted that the living room of the Davises’ house was built without permits. The City of Los Angeles has not tried to enforce this order.
Mr. Davis paid all property taxes demanded of him by the County of Los Angeles for what he believed was his property. April Logan, a property assessment specialist and custodian of records for the Los Angeles County Assessor’s Office, concluded that the Davises were assessed property taxes on the entirety of their home, including the part of the living room that encroached over the property line. The size of the Davises’ home was increased to 1250 square feet in 1964.
Accompanied by the parties and their attorneys, the court visited the properties and permitted each side to point out areas of the property and houses which they believed were relevant to the case. The trial judge concluded that vegetation created a visual property line, as did retaining walls built by the parties or their predecessors. The fact that the vegetation is mature and retaining walls are old led the trial court to conclude that any observer of these parcels over the last several decades would have concluded that the visual property line was the “true” property line for all purposes. There was no evidence presented that, before 2005, there was any physical demarcation of the true property line.
Aguilar conceded that because the Davises had removed offending structures, the second cause of action for continuing nuisance was moot. The trial court found that the encroachment on Aguilar’s property having occurred at least 40 years previously when the Davises’ living room was built over the property line, the three-year statute of limitations of Code of Civil Procedure section 338 barred Aguilar’s remaining cause of action for permanent nuisance.
With regard to the Davises’ cross-complaint to quiet title by adverse possession, the trial court found that the evidence showed that the Davises had been in possession of their home for 40 years, that they and various neighbors treated the “visual” property line as the true property line, that based on this visual property line the Davises planted and maintained vegetation in the disputed area, and that this activity was hostile to the title of Aguilar and his predecessors, was under the Davises’ claim of right, and was continuous for more than five years. The trial court also found that the evidence showed that the Davises paid property taxes on the disputed area.
Regarding Aguilar’s argument that adverse possession was defeated if it caused a violation of zoning ordinances, the trial court found that the testimony of plaintiff’s witness Richard Stauffer (a commercial and residential designer who claimed familiarity with zoning and building codes) was not sufficient to establish a violation of City of Los Angeles side yard zoning setbacks and that Stauffer was not competent to render a legal opinion as to a zoning violation. Aguilar, moreover, had cited no case holding that a zoning violation could defeat a common law claim of adverse possession.
In a judgment entered on January 26, 2009, the trial court ordered that Aguilar take nothing on his complaint against defendants. The judgment further ordered that Warren Davis and Janice L. Davis had judgment in their favor on their claims of adverse possession and declaratory relief asserted in their cross-complaint, declared them to be the owners in fee simple of real property as described in the judgment, and declared that Aguilar had no right, title or interest in or to that property.
Aguilar filed a timely notice of appeal.
ISSUES
Aguilar claims that:
1. The exclusion of an exhibit from consideration in the trial court’s statement of decision was a miscarriage of justice; and
2. A party cannot gain a fee interest by adverse possession that violates Los Angeles Municipal Codes.
DISCUSSION
1. Any Error in the Exclusion of Appraisal Notes and Exhibits Was Harmless
Aguilar claims that the trial court erroneously failed to consider Exhibit 6 in its statement of decision.
Plaintiff Aguilar retained Steven J. Decker, a certified general appraiser, to analyze the properties at 4216 and 4220 North Berenice Place. Exhibit 6, Decker’s appraisal notes and exhibits, was marked for identification. The trial court initially sustained the Davises’ objection to the admission of Exhibit 6, without prejudice to Aguilar’s renewed motion to admit Exhibit 6 after cross-examination. At that time Aguilar again moved to admit Exhibit 6 into evidence. The Davises again objected that because the appraisal concerned current value of the property as of September 2006, and damages from permanent nuisance flowed from encroachment that occurred in 1968, Exhibit 6 was irrelevant. The trial court admitted Exhibit 6 subject to a motion to strike. The statement of decision stated that Exhibit 6 was marked for identification only and that plaintiff failed to move it into evidence. Aguilar argues that the trial court’s erroneous refusal to consider Exhibit 6 undercut Aguilar’s showing of hardship, because without Exhibit 6 Decker’s testimony lacked foundation.
Aguilar’s argument assumes that the court was required to “balance the hardships” to the parties in adjudicating the adverse possession claim. Balancing the hardships to the parties, however, is not an element of an adverse possession claim. “The elements necessary to establish title by adverse possession are: (1) tax payments, (2) actual possession which is (3) open and notorious, (4) continuous and uninterrupted for five years, (5) hostile and adverse to the true owner’s title, and (6) under either color of title or claim of right.” (California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803.)
Instead, the trial court balances the hardships to the parties when determining whether to grant an injunction ordering removal of encroachments from another’s land. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 754.) Under the “relative hardship” doctrine, “once the court determines that a trespass has occurred, the court conducts an equitable balancing to determine whether to grant an injunction prohibiting the trespass, or whether to award damages instead.” (Id. at p. 759.) The relative hardship doctrine is used to determine whether to grant or to deny a mandatory injunction sought by plaintiff against an encroaching defendant to remove the encroachment. (Christensen v. Tucker, supra, 114 Cal.App.2d at p. 562.) This differs from an adverse possession claim, in which an encroaching plaintiff seeks to quiet title to property owned by defendant. The trial court is not required to conduct an equitable balancing of the hardships in determining whether plaintiff has established an adverse possession claim. Thus any error in excluding or failing to consider Exhibit 6 was harmless and without effect.
“[I]n encroachment cases the trier of fact possesses some discretion in determining whether to grant or to deny the mandatory injunction.... In order to deny the injunction, certain factors must be present: 1. Defendant must be innocent-the encroachment must not be the result of defendant’s willful act, and perhaps not the result of defendant’s negligence. In this same connection the court should weigh plaintiff’s conduct to ascertain if he is in any way responsible for the situation. 2. If plaintiff will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to defendant, except, perhaps, where the rights of the public will be adversely affected. 3. The hardship to defendant by the granting of the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.” (Christensen v. Tucker (1952) 114 Cal.App.2d 554, 562-563.)
2. Aguilar Has Not Shown That a Judgment Quieting Title by Adverse Possession Is Invalid if it Violates the Municipal Zoning Code
Aguilar claims that a party cannot obtain title to property by adverse possession in a manner that violates the Los Angeles Municipal Code. Aguilar cites two cases. Neither supports this claim.
Aguilar argues that the new property line established by adverse possession would be within three feet of the house on Aguilar’s property, which would create a set-back violation of Los Angeles Municipal Code, Chapter 1, section 12.21, subdivision A(17)(b)(1), which states: “For any main building, each side yard shall be not less than five feet, unless the lot is less than 40 feet in width, then each side yard shall be not less than four feet.”
In Baccouche v. Blankenship (2007) 154 Cal.App.4th 1551, previous owners granted defendant Blankenship an easement over three-quarters of an acre of their property so Blankenship could keep horses on the easement area, part of a large parcel later purchased by plaintiff Baccouche. The municipal code allowed for keeping of horses on properties in conjunction with the residential use of the lot. Blankenship lived on his property, but Baccouche’s much larger property was vacant land. Baccouche sued Blankenship to quiet title, contending the easement granted to Blankenship was for an illegal purpose and was invalid because there was no residence on Baccouche’s property. The trial court found the easement valid and entered judgment in favor of Blankenship. Baccouche reversed the finding that Blankenship could enforce his easement. Baccouche found that the municipal code prohibited keeping horses on the Baccouche property because it had no residence, and held that the easement was unenforceable because it allowed a use not permitted by the zoning ordinance. (Id. at p. 1556.) Baccouche, however, rejected the defendant’s argument that the easement granted to Blankenship was void because it conflicted with applicable zoning restrictions. Baccouche distinguished between land use restrictions limiting use of property and a fee owner’s consent to that use, and affirmed the trial court’s finding that Blankenship had a valid easement. (Id. at pp. 1557-1559.) Thus although the easement was unenforceable because it violated the zoning ordinance, the violation did not make the easement invalid.
In the second case, Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487 (Teachers Ins. & Annuity Assn.), an alley separated plaintiffs’ property, a large apartment building zoned for multiple dwellings, and defendants’ property, a high-rise commercial office building zoned for commercial use. The property owned by plaintiffs, the Furlottis, and the property owned by defendants, Teachers Insurance and Annuity Association (Teachers), each extended to the mid-point of the alley. A previous owner of both properties executed a declaration of reciprocal easement for the alley, giving access to both properties. Because of increasing noise from workers, deliveries, and trash collection at the Teachers’ property, the Furlottis built a fence down the center of the alley. Teachers sued the Furlottis for breach of the reciprocal easement, nuisance, and trespass, and applied for a preliminary injunction to remove the fence and repair the easement area to its pre-fence condition, based on the Furlottis’ violation of the reciprocal easement by building the fence. (Id. at pp. 1490-1491.) The trial court granted the injunction, requiring the Furlottis to remove their fence. The Furlottis appealed. Teachers Ins. & Annuity Assn. concluded that Teachers’ use of the Furlottis’ residential half of the alley was commercial in nature and violated the municipal code prohibiting use of a property in a more restrictive zone. (Id. at p. 1496.) Teachers Ins. & Annuity Assn. also held that the reciprocal easement could not grant by private agreement that which was prohibited by zoning. (Ibid.) Municipalities enacted zoning ordinances through the exercise of their police power, which may not be limited by private contracts. (Id. at pp. 1496-1497.) Teachers Ins. & Annuity Assn. thus concluded that Teachers could not rely on the reciprocal easement to use the Furlottis’ residential half of the alley (id. at p. 1497) and reversed the order granting a preliminary injunction (id. at pp. 1498-1499.)
Both cases therefore prohibit the grant of an easement that violates zoning regulations. Neither Baccouche or Teachers Ins. & Annuity Assn., however, stand for the proposition that a judgment for adverse possession becomes invalid if it violates a zoning regulation. The judgment for adverse possession in favor of the Davises did not arise from the grant of an easement or from a contractual agreement by the parties.
By a judgment quieting title to property by adverse possession, a successful claimant obtains ownership of and title to real property. (Silacci v. Abramson (1996) 45 Cal.App.4th 558, 562; Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261.) A judgment quieting title to property by adverse possession does not concern the use or development of the property. Any violation of a municipal zoning code is a separate issue not implicated in or adjudicated by that judgment.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Warren Davis and Janice Davis.
We concur: KLEIN, P. J., ALDRICH, J.