Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County, No. BC378028, of Los Angeles, Rolf M. Treu, Judge. Affirmed.
Franklin K. Lane, In Pro. Per., for Defendant and Appellant.
Shane, Digiuseppe & Rodgers, Stephen A. Digiuseppe for Plaintiffs and Respondents.
MOSK, J.
INTRODUCTION
Plaintiffs and respondents Joseph Sally and Keith Shiles (plaintiffs),owners of a unit in a condominium complex, sued defendant and appellant Frederick Lane (defendant), who also owned a unit in the complex, seeking to quiet title to a parking space in the complex (space 26). Defendant cross-complained, seeking to impose an exclusive prescriptive easement in his favor on space 26. Following a bench trial, the trial court ruled in favor of plaintiffs and against defendant, finding that the facts were undisputed and concluding that defendant was not entitled to the exclusive prescriptive easement that he sought.
As explained below, plaintiffs Sally and Shiles are successors-in-interest to the original plaintiff, Roy Hammer, who was the executor of the estate of his mother, Maxine Hammer, the original owner of plaintiffs’ unit.
On appeal, defendant concedes that he was not entitled to an exclusive prescriptive easement, but argues that the trial court should have found that he was entitled to a nonexclusive easement to space 26. We hold that defendant was not entitled to an exclusive prescriptive easement as a matter of law and that he forfeited any contention that he was entitled to a nonexclusive prescriptive easement by failing to specify and pursue that alternative claim in the trial court.
FACTUAL BACKGROUND
In 1966, defendant’s corporation purchased a unit in a 19-unit condominium complex. After defendant signed the necessary paperwork, one of the developers took him to the subterranean garage, “pointed out the only remaining unoccupied parking space[,] and said ‘that’s yours.’” The developer pointed out parking space 26. After escrow closed, defendant moved into his unit and used space 26 for the next 41 years. At some point, defendant built storage cabinets against the wall that bordered the rear of that parking space.
For reasons unexplained, Providencia Ltd., a corporation in which defendant had an interest and which had been suspended for at least 10 years prior to trial, took title to defendant’s unit at close of escrow and held title at the time of trial.
The deed defendant received in connection the purchase transaction identified defendant’s parking space as “No. 24” (space 24), but he “very foolishly never checked to make sure that the No. 24 on [his] deed was the [parking space he] was occupying and using per the developer’s instructions.” Had defendant ever learned that the space he was using was not the space specified in his deed, he “would have certainly taken steps to correct the mistake... [b]ecause... it was a serious mistake.”
Several years after defendant purchased his unit, Maxine Hammer purchased a unit in the same complex. The developers gave her a deed that identified her parking space as no. 26, i.e., the space defendant had been using. Defendant knew Hammer and saw her occasionally, but she “never mentioned... space 26 to [him] and [he] never mentioned... space 24 to her, because both of [them] thought [they] were operating in good faith and [neither of them]... realize[d] it was a huge mistake. [They] never had any discussions at any time concerning [space] 26.... And [he] never questioned her about [space] 24 because [he] did not realize that [space] was [his]. [Defendant] had no reason to discuss [the parking spaces] with [Hammer].”
The wall that borders the rear of space 24 is where the door to the boiler room is located, and that door would prevent the owner of the space from building storage cabinets in that space. Hammer did not have keys or access to defendant’s storage cabinets, but on one occasion, defendant left the cabinets open at her request so her plumber could access a pipe that was enclosed in the cabinets.
Space 26 was directly below Hammer’s condominium.
The first time defendant learned that his deed identified a parking space different from the one he had been using was when Hammer’s estate sued him. Prior to that time, he did not realize that he “had been occupying the parking space that technically belonged to [Hammer]. And [he did not] realize that [Hammer] had been using [his space].” Defendant admitted he had paid property taxes on space 24, not on space 26. Property taxes were assessed jointly on defendant’s condominium unit and his parking space as identified in his recorded deed.
PROCEDURAL BACKGROUND
The executor of Hammer’s estate filed a complaint against defendant and defendant filed a cross-complaint, neither of which are included in the record. The executor thereafter filed a stipulation and proposed order for leave to file a first amended complaint and a first amended cross-complaint. The trial court accepted the stipulation and executed the proposed order. The first amended complaint substituted plaintiffs, as successors-in-interest, in place of the executor. By their first amended complaint, plaintiffs sought to quiet title to space 26 and to eject defendant from possession of that space.
As noted, title to defendant’s condominium was vested in Providencia, Ltd. which was also apparently named as a defendant in the original complaint because a default was subsequently taken against it as a suspended corporation. As plaintiffs point out, because defendant did not own any unit or parking space in the complex, defendant only had standing to pursue an easement in gross, i.e., a right to personal use of the servient tenement—the parking space—which use did not benefit a dominant tenement. (Civ. Code, § 802; see also Buehler v. Oregon-Washington Plywood Corp. (1976) 17 Cal.3d 520, 527.)
Defendant thereafter filed a second amended cross-complaint against plaintiffs in which he prayed, inter alia, for the following relief: “2. For an order declaring that [defendant] owns prescriptive title to and is entitled to exclusive possession of... [space 26],..., and that [plaintiffs] and all persons claiming under [plaintiffs] have no estate, right, title, lien or interest in or to... [space 26] or any part thereof; [¶] 3. That title to ... [space 26] be quieted in [defendant] against all claims of [plaintiffs], and all persons claiming under [plaintiffs]; [¶] 4. That [plaintiffs] be permanently enjoined from any interest in... [space 26];....” Defendant also filed an answer to the first amended complaint in which he asserted the following affirmative defense: “6. Defendant alleges that by reason of the fact that he has exclusively occupied [p]laintiffs’ [space 26] since 1966, and as a result has had the exclusive possession thereof for the past 41 years,... [d]efendant has acquired title to [p]laintiffs’ [space 26] by proscription [sic] pursuant to Code of Civil Procedure section 1007.” Defendant’s trial brief also asserted that, “... [defendant] seeks to have the Court award him an exclusive prescriptive easement to [space 26].”
At trial, plaintiffs’ counsel queried defendant concerning the relief defendant was seeking: “[Q]: And you are taking the position that you personally have acquired a[n] easement by prescription to exclusive possession and ownership and want title to as an owner as to [space] 26; correct? [¶] [A]: Well, I’m not sure I’m entitled to legal title to the space, but I’m certainly entitled to a prescriptive easement, which many of the appellate decisions have said is tantamount to title. [¶] [Q]: Okay, well, we’ll deal with the legal issue with [the trial court]. But your position is that you are entitled to exclusive possession, excluding everyone else from using space 26, including the plaintiffs in this case. [¶] [A]: I would think so, yes. Yes, sir.” (Italics added.)
At the end of argument, the trial court and defendant engaged in the following colloquy: “ [The Court]: [N]ormally the Court would not permit additional argument, but it does wish to know your position. [Plaintiff’s] [c]ounsel’s made a cogent point with respect to what you want in this case. You don’t want anybody else to park in that spot. You want that for yourself. So what is this—how do you define this exclusivity as an easement as opposed to adverse possession? [Defendant]: Well, your Honor, I would like of course, if possible, to get exclusive use, but all I’m really basically seeking is just a bona fide prescriptive easement. Maybe later other litigation will have to clear up—if these gentlemen and I fight over the use of the same space, we’ll have to work that out later on. But I-- [¶] [The Court]: So what you’re seeking in this case is the right to park in [space] 26, the right to use [space] 26. But if you’re gone to the store and somebody else parks there, you would have no quarrel with that, because all you want is an easement. [¶] [Defendant]: No. I think the fight would be on. I mean, let’s be realistic, your Honor. [¶] [The Court]: So isn’t actually what you’re looking for is the exclusive use of [space] 26? [¶] [Defendant]: That’s, of course, what I would like, your Honor. But I certainly—if I’m not entitled to exclusive use, I’m certainly entitled to a bona fide prescriptive use. [¶] [The Court]: And how do you define that? [¶] [Defendant]: Excuse me, your Honor? [¶] [The Court]: How do you define that? [¶] [Defendant]: Define it? [¶] [The Court]: What are your rights there under that? [¶] [Defendant]: Use and occupy and make available to myself [space 26], as I have been doing for the past 41 years.” (Italics added.)
Following trial, the trial court issued a minute order, ruling as follows: “In this matter, the sole issue is the right to possession of a designated parking space, the use of which has been indisputably held by [d]efendant... since 1966. Plaintiff seeks his ouster, and [d]efendant claims a right to possession by means of prescriptive easement. [¶] The first issue to be addressed is whether the property in question is one that may be subject to a claim for prescriptive easement. Civil Code 802 does not include a right of parking or stationing of vehicles, or building cabinets as a servitude or burden upon land. Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 44, footnote 3 states that the listing in CC 802 is not exclusive, but illustrative, ‘and the easement granted in Gion does not differ markedly from those specifically mentioned.’ [¶] In the instant case, the Court finds that the easement sought does in fact differ markedly from those listed in CC 802. [Defendant] is seeking exclusive use of the parking space and the cabinets he has built therein. His is not just passing through (right of way) nor occasionally using it (seat in church), he wants it all for himself to the exclusion of all others. As [plaintiffs] point out, his claim is more akin to one for adverse possession, a theory [defendant] eschews and indeed cannot prove. [¶[] The Court finds that this matter is barred by CC 802 in that the right to exclusively park in space 26 is not one of, nor similar to any, of the servitudes or burden on land mentioned therein. [¶] Indeed, while [defendant] is correct that an easement may be established as a result of mistake, the right conveyed may not ordinarily be engrossed to exclusivity. Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296; Silacci v. Abramson (1996) 45 Cal.App.4th 558. In the case (mis) cited by [defendant] Otay Water v. Beckwith (1991) 1 Cal.App.4th 1041, the exclusive nature of the easement was upheld, since a reservoir had been constructed on the disputed land and the use to be put to the land by the owner would be inconsistent and harmful to the reservoir. In the instant matter, the property involves a parking space, the fungibility of which is beyond question. It is indeed a ‘simple backyard dispute.’ Silacci, id. [¶] Judgment for [p]laintiffs and against [d]efendant..., and against Cross-Complainant... and for Cross Defendant[s].... Plaintiffs to prepare judgment pursuant to CRC 3.1590(g).” (Italics added.)
The trial court subsequently entered judgment in favor of plaintiffs on their complaint and against defendant on his cross-complaint. Defendant filed a timely notice of appeal from the judgment.
DISCUSSION
A. Standard of Review
Defendant’s testimony was uncontradicted, and the only other evidence was received by stipulation. Thus, the essential facts were undisputed— all that remained for the trial court was to apply the law governing prescriptive easements to those facts. “[I]f ‘the issue is presented to the court on the basis of undisputed facts and uncontroverted evidence and only a question of the application of the law to those facts need be answered,’ appellate review is de novo. (Souza v. Westlands Water Dist. [(2006)] 135 Cal.App.4th [879,] 891; see also, e.g., Neverkovec v. Fredericks [(1999)] 74 Cal.App.4th [337,] 351.)” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1025.)
B. Applicable Law
At trial, defendant sought an exclusive easement to use space 26 to the exclusion of plaintiffs and all others. Plaintiffs argued, and the trial court found, that granting defendant an exclusive easement under these facts would be tantamount to a grant of title to the space based on adverse possession, even though defendant could not prove a right to title through adverse possession because he had not paid property taxes on space 26.
In Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296 (Mehdizadeh), the court explained the distinction between adverse possession and a prescriptive easement. “To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 [199 Cal.Rptr. 773, 676 P.2d 584]; Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045 [3 Cal.Rptr.2d 223].) To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604 [7 Cal.Rptr.2d 738].) [¶]... A prescriptive easement does not require payment of taxes; someone claiming a prescriptive easement must show payment of taxes only in the rare instance the easement has been separately assessed. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321-322 [178 Cal.Rptr. 624, 636 P.2d 588].) [¶] Proof of the elements required for adverse possession... gives a successful claimant title to property. A successful claimant of a prescriptive easement, by contrast, gains not title but the right to make a specific use of someone else’s property. (Mesnick v. Caton [(1986)] 183 Cal.App.3d [1248,] 1261.)” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1305.)
In differentiating between adverse possession and a prescriptive easement, the court in Mehdizadeh, supra, 46 Cal.App.4th 1296, further explained that “[o]ccupancy, connoting a claim of possession and title, differs from restricted, partial, or intermittent use. ‘An easement involves primarily the privilege of doing a certain act on, or to the detriment of, another’s property.’ (Wright v. Best (1942) 19 Cal.2d 368, 381 [121 P.2d 702].) An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership. (Mesnick v. Caton, supra, 183 Cal.App.3d at p. 1261.)” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1306.)
The court in Mehdizadeh, supra, 46 Cal.App.4th 1296, then described the limited circumstances under which an exclusive easement may be granted. “There are some circumstances in which the grant of an exclusive easement, which resembles or is nearly the equivalent of a fee interest, can be justified. Under a proper showing, the courts may recognize, for example, the socially important duty of a utility to provide an essential service, such as water or electricity. (See, e.g., Ajax Magnolia One Corp. v. So. Cal. Edison Co. (1959) 167 Cal.App.2d 743 [334 P.2d 1053]; City of Los Angeles v. Igna (1962) 208 Cal.App.2d 338 [25 Cal.Rptr. 247]; Otay Water Dist. v. Beckwith, supra, 1 Cal.App.4th 1041.)” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1306.)
After noting the limited circumstances under which exclusive easements have been granted, the court in Mehdizadeh, supra, 46 Cal.App.4th 1296, held that the cases recognizing such rights have no application to a dispute between residential property owners that does not involve a socially important duty, such as the duty imposed on a utility to provide the public with clean, safe drinking water. Quoting Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564, the court observed, “‘An exclusive prescriptive easement is... 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.... 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.’ (Silacci v. Abramson, supra, 45 Cal.App.4th at p. 564.)” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1307.)
The court in Mehdizadeh, supra, 46 Cal.App.4th 1296, summarized the rule regarding exclusive prescriptive easements as follows: “The rule regarding an ‘exclusive easement’ is one of long-standing: ‘[A]n “exclusive easement” is an unusual interest in land; it has been said to amount almost to a conveyance of the fee. [Citations.] No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention.’ (Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576, 578-579 [110 P.2d 983, 133 A.L.R. 1186].)” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1308.)
C. Exclusive Easement
Defendant contends that the trial court erred when it found that Civil Code section 802 barred the exclusive easement defendant was seeking. According to defendant, Civil Code section 802 has no application to this case because that section deals with express grants of easement rights and therefore has no bearing on whether defendant had acquired an exclusive easement by prescription.
Assuming, arguendo, that defendant is correct, the issue involving the application of Civil Code section 802 is moot because defendant now concedes in his reply brief that he was not entitled to the exclusive easement that he sought at trial. As the foregoing authorities illustrate, regardless of Civil Code section 802, the circumstances under which exclusive prescriptive easements have been recognized are extremely limited, and such exclusive rights have never been recognized in a case such as this one between residential property owners that does not involve a socially important duty. Defendant’s asserted right to park in the space of his choice does not implicate the public policy considerations that underlie the grants of exclusive easements that were recognized in other cases such as Otay Water District v. Beckwith, supra, 1 Cal.App.4th 1041. Thus, regardless of the trial court’s legal rationale, its conclusion that defendant was not entitled to an exclusive easement was correct as a matter of law. (See Brewer v. Murphy (2008) 161 Cal.App.4th 928, 936 [“an appellate court decides a question of law without deference to how it was answered below”].)
D. Nonexclusive Easement
Defendant now contends that he is entitled to a nonexclusive easement to use space 26. But as the foregoing procedural discussion demonstrates, defendant did not pursue a nonexclusive easement in the trial court. His pleadings, which framed the issues for trial, prayed for an exclusive easement and made no mention of an alternative theory based on a right to a nonexclusive easement. Moreover, his trial brief confirmed that he was seeking exclusive use of space 26 to the exclusion of plaintiff. And, on cross-examination, defendant unequivocally reiterated that he was entitled to an exclusive easement. Although defendant, in response to an inquiry from the trial court, suggested that he would be entitled to a “bona fide” prescriptive easement in the event the trial court determined he was not entitled to an exclusive one, when the trial court pressed him for a definition of a bona fide easement, defendant stated that he would be entitled to use space 26 “ as [he] had for the last 41 years,” i.e., to the exclusion of plaintiffs and all others.
“‘It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. [Citations.]’ (Brown v. Boren [(1999)] 74 Cal.App.4th [1303,] 1316.)” (Paterson v. City of Los Angeles (2009) 174 Cal.App.4th 1393, 1401.) Here, defendant was given an opportunity by the trial court to make an argument for a nonexclusive easement, but in response, he maintained that he had a right to use space 26 as he had for the past 41 years. The trial court reasonably understood that response to mean that defendant was seeking an exclusive easement. As a result, the trial court did not address in its minute order the separate and distinct issue of whether defendant had a right to a nonexclusive easement under the facts of this case. Moreover, plaintiffs did not have an opportunity to address that new issue at trial. It would therefore be unfair to the trial court and plaintiffs to allow defendant to change his position on appeal and assert a new theory. By failing to unequivocally pursue in the trial court the relief he now seeks on appeal, defendant forfeited his contention based on an asserted entitlement to a nonexclusive easement.
DISPOSITION
The judgment of the trial court is affirmed. Plaintiffs are to recover their costs.
We concur: TURNER, P. J., KRIEGLER, J.