Opinion
A130794
01-31-2012
ZHENWEN LIANG, Plaintiff and Appellant, v. GREG LEVY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCV-244985)
Plaintiff Zhenwen Liang appeals the trial court's judgment in favor of defendant Greg Levy concerning a prescriptive easement on Liang's property. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
For the third time, litigation between these parties reaches this court concerning the prescriptive easement in favor of the dominant tenement, owned by respondent Greg Levy, over the servient tenement, owned by appellant Zhenwen Liang. In the first trial, the trial court found an easement for Greg Levy of 66 feet by 70 feet based on unabated use of a parcel of land since the 1940s. On appeal from the judgment entered after the first trial, we reversed, holding that the historical easement found by the trial court had extinguished due to non-use. (See Levy v. Liang (July 14, 2006) 2006 WL 1965780, at *p. 7 (Levy I).) However, we found evidence of more recent use was sufficient to establish a new easement of a more limited scope on the same parcel and remanded the matter for the trial court to determine the boundaries of the easement with more specificity. (Ibid.)
Upon remand, and in accord with our directions, the court held another trial to determine the scope of the prescriptive easement. The trial court determined the easement encompassed two parking spaces, 10-feet wide and 20-feet long, in the northeast corner of the servient tenement, together with a footpath running north-south from the parking lots to an existing gate on the dominant tenement. In Levy v. Liang (Sept. 15, 2009) 2009 WL 2952192 (Levy II), both parties appealed the trial court's determination regarding the scope of the prescriptive easement.
In Levy II, as an initial matter, we addressed the application of the law-of-the-case doctrine, and identified two legal conclusions rendered in Levy I that were binding on the parties for purposes of the appeal in Levy II. First, the historical easement on the servient tenement had expired in the 1990s due to non-use; second, Levy had proved "a different and more limited easement for parking and ingress and egress based on his and his tenant's use of the property after he arrived in 1999." (Levy II, at p *5.) We then "turn[ed] to the issue that is properly before us—whether substantial evidence supports the easement, as found by the trial court, for two parking spaces 10-feet wide and 20-feet long running east-west parallel to West College, and for a footpath running north-south from the parking spots to the existing gate." (Id. at p. *6.) We concluded substantial evidence supported the trial court's award of a prescriptive easement and that the easement, as defined by the trial court, "provides Levy and his tenant 'reasonable use' of the property in a way that does not overly burden Liang's use and enjoyment of the servient tenement. (Citations.)" (Id. at p. *8.)
We incorporate by reference the factual and procedural background set forth in Levy II, and will recount only the more recent history of the litigation.
The complaint for injunctive and declaratory relief in the case now before us was filed by plaintiff Liang in April 2009, after the trial court issued its Statement of Decision on the scope of the prescriptive easement but prior to our decision affirming it in Levy II. In the complaint, Liang alleges that his property is located outside the limit of the City of Santa Rosa in an unincorporated area of Sonoma County, and that under the County's zoning ordinance his property is designated Rural Residential (RR), which precludes any commercial use of his property. Liang's complaint further alleges that parking on his property by Levy and patrons of his real estate brokerage business and coffee shop constitutes a trespass and also violates the County's RR zoning ordinance. The complaint asked for a permanent injunction enjoining Levy and his customers from driving across or parking on his property and for a "declaration of the respective rights and duties of plaintiff and defendants . . . with respect to the use of plaintiff's property at 1030 West College Avenue." Levy filed an answer to the complaint in July 2009.
In January 2010, subsequent to our decision in Levy II, Levy filed a motion for judgment on the pleadings, contending that Liang's complaint should be dismissed because the doctrine of res judicata barred Liang "from re-litigating the issue of whether Levy is entitled to an easement on 1030 W. College Avenue, for the benefit of 1000 W. College Avenue." In May 2010, the trial court issued its order denying Levy's motion for judgment on the pleading. In its order, the trial court found that on their face the allegations of Liang's complaint "claim that those using the easement are doing so in a manner, for purposes, and to an extent that exceed the limitations of the easement as established in the prior action. Moreover, in the prior action, the appellate court, finding that the easement did not extend to customers or commercial user's of [Levy's] property, decided that it did not need to address the zoning issue raised in the motion for new trial and declined to address it as moot. The result is that there was never a final determination of that issue on the merits."
With respect to the zoning issue alleged in Ziang's April 2009 complaint, and now raised on this appeal, we stated as follows in Levy II: "Although Liang asked the trial court to hear evidence on remand concerning the zoning issue that we declined to reach in our previous decision in this matter, the trial court refused his request. Because Liang has not challenged the trial court's decision in this regard in briefing before this court, we again decline to consider the issue on appeal. (See Moore v. Shaw (2004) 116 Cal.App.4th 182, 200, 10 Cal.Rptr.3d 154, fn. 10 ['Ordinarily, an appellant's failure to raise an issue in its opening brief waives the issue on appeal.'].)" (Levy II, supra, at p. *4, fn. 2.)
Following the trial court's denial of Levy's motion for judgment on the pleadings, the matter was set for trial. In his trial brief, Liang set forth four issues for trial: (1) "Is Levy's use of Liang's land commercial in nature?"; (2) "If so, does Levy's commercial use of Liang's land violate the County's Rural Residential zoning ordinance?"; and, (3) "If so, should Levy's illegal use of Liang's land be permanently enjoined and declared impermissible?" The trial court held a bench trial on the matter on August 31, 2010, and entered judgment on November 1, 2010.
Liang also listed the issue of whether his claims are res judicata, but noted this issue had "already been decided in his favor" by the law-and-motion judge in denying Levy's motion for judgment on the pleadings.
Liang provided only a partial copy of the reporter's transcript for August 31, 2010.
In pertinent part, the trial court's judgment stated, "Ultimately Plaintiff Liang's position in this lawsuit is an effort to resurrect the zoning issue and have this court make a determination that because of the RR designation, any commercial use of the property[,] even the prescriptive easement herein which merely provides for the ingress and egress of two vehicles, one demonstrably that of a residential tenant and the other of the owner of the property for the purpose of at the very least tending to that residential property, is prohibited and a public nuisance. . . . [¶] The conclusion of this court simply must come down on the side of defendant herein. The Court of Appeal was quite clear about the scope of the remand in SCV-236130. The fait accompli here is that an easement exists on the property at 1030. There is no way that this court can disturb that finding, nor has there been proof that the extremely limited use decreed by that prescriptive easement . . . in any way runs afoul of the applicable zoning ordinances. Plaintiff Liang's plea for injunctive and declaratory relief is denied."
Following entry of judgment, plaintiff Liang filed a motion for a new trial, which was denied by the trial court on December 20, 2010. Liang filed a timely notice of appeal on December 30, 2010.
DISCUSSION
The trial court adjudged that (1) under its earlier decision, affirmed in Levy II, Levy owned a prescriptive easement over Liang's property and (2) that "there has been no proof that the extremely limited use decreed by the prescriptive easement . . . in any way runs afoul of the applicable zoning ordinances." Under fundamental rules of appellate review, we presume that the trial court's judgment is correct: "All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming the presumption of correctness. "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Applying these standards here, we conclude Liang has failed to show the trial court's judgment is erroneous.
Liang asserts the establishment of two parking spaces on his property for use by Levy and his residential tenant(s), as described in the prescriptive easement, violates Sonoma County's RR zoning ordinance because the parking spaces are used for commercial purposes. According to Liang, a prescriptive easement established in violation of a zoning ordinance is not enforceable at law, therefore the trial court's judgment must be reversed.
The general rule that an easement established in violation of a zoning ordinance is not enforceable at law is applied in two cases cited by Liang, City and County of S. F. v. Safeway Stores, Inc. (1957) 150 Cal.App.2d 327, 332 [acknowledging "defendant's ownership interest in the traffic easement" but concluding that defendant may not "use its interest in violation of a zoning ordinance"] and Teachers Ins. and Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1490, 1497 [where bordering properties, one zoned commercial and the other zoned residential, each extended to the midpoint of an alleyway 21 feet wide, a declaration of reciprocal easement (DRE) over alleyway did not allow the commercial owner to use the residentially zoned half of the alley for commercial purposes].) We need not address the applicability of the rule in this case because Liang fails to identify any record evidence showing that Levy's prescriptive easement entails a commercial use of Liang's property that violates Sonoma County's RR zoning ordinance, see post.
--------
We reject Liang's assertion of error. The only record evidence Liang offers in support of his contention is the testimony of Ben Neuman, Code Enforcement Manager at the Sonoma County Permit and Resource Management Department. Neuman's testimony, however, concerned the restrictions which, absent a conditional use permit, the RR zoning designation places upon commercial uses on Liang's property at 1030 West College Avenue. Neuman's testimony did not address the issue of whether the two parking spaces on 1030 West College Avenue awarded to Levy under the prescriptive easement violated the RR zoning designation. In fact, Neuman testified that the question of whether RR zoning prohibits "access to 1000 West College through the 1030 curb cut" was "beyond the scope of my knowledge" and that, as far as he knew, nothing in the RR zoning ordinance prohibits "access to 1000 West College through the 1030 curb cut." Patently, Neuman's testimony cannot support a finding that a prescriptive easement permitting two car parking spaces on 1030 West College Avenue violates the RR zoning designation. Moreover, the record is devoid of any evidence showing that the parking spaces on the easement are used in connection with the businesses located on Levy's property. In sum, Lang identifies no record evidence, and we have found none, demonstrating that Levy's use of Liang's property under the prescriptive easement, as defined by the trial court and upheld in Levy II, constitutes a commercial use in violation of the Sonoma county RR zoning ordinance.
Furthermore, our conclusion on this point is consistent with the scope of the prescriptive easement defined in Levy I and Levy II. Indeed, Levy I specifically excluded use of Liang's property for commercial purposes: "The easement does not encompass the right to park by customers of commercial activities conducted at 1000 West College Avenue, and should be no larger in area than necessary to permit parking by the owner and tenants of the property at 1000 West College Avenue." (Levy I, supra, at p. *7 [italics added].) After we remanded for "the trial court to define with greater specificity the dimensions of the easement consistent with this determination" (ibid.), the trial court defined the easement to include two parking spaces for use by "Mr. Levy and his residential tenants." In Levy II, we affirmed the trial court's determination, stating it was consistent with the " 'nature, character, and volume' " of Levy's use of Liang's property during the prescriptive period, i.e., "two cars consistently parked on 1030—one by Levy and the other by persons making use of the residential unit on the property." (Levy II, supra, at *p. 8 [italics added].) In short, our prior opinions establish that the prescriptive easement permits parking by Levy himself or by occupants of his residential property and does not include parking associated with any commercial enterprises on Levy's property.
In conclusion, Liang has failed to demonstrate that the trial court's judgment was erroneous. (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564 ["error must be affirmatively shown"].) Accordingly, the judgment must be affirmed. (Ibid.)
DISPOSITION
The judgment is affirmed. Liang shall bear costs on appeal.
______________________
Jenkins, J.
We concur:
______________________
McGuiness, P. J.
______________________
Siggins, J.