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Vekic v. Navarro

California Court of Appeals, Second District, Second Division
Dec 21, 2010
No. B218159 (Cal. Ct. App. Dec. 21, 2010)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC388218 Teresa Sanchez-Gordon, Judge.

Law Offices of Bennett A. Spector and Bennett A. Spector for Plaintiffs and Appellants.

Fidelity National Law Group, Donald C. Erickson and Drew M. Taylor for Defendants and Respondents.


DOI TODD, Acting P. J.

Appellants Velibor and Dusica Vekic sought to establish a prescriptive easement over a small piece of property which bordered one corner edge of their property and was owned by respondents Melvin and Maria Navarro. After a bench trial, the court found no merit to their claim to quiet title and entered judgment in favor of respondents. Appellants appeal and contend that the evidence at trial clearly satisfied the requirements for a prescriptive easement. We find no error in the trial court’s determination that appellants’ evidence did not support the finding of a prescriptive easement and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2002, respondents purchased residential property at 17414 Londelius Street, Northridge, California (Lot 21). Two and a half years later in November 2004, appellants purchased the adjacent residential property at 17421 Londelius Street (Lot 17). Respondents’ property is subject to a ten-foot public utility easement which runs along the southern side of Lot 21. Lots 21 and 17 share a common boundary that runs north and south and is 201 feet long. At the southern end of the common boundary, there is a double wooden gate which opens into appellants’ property from a small unpaved piece of land which is part of respondents’ property. This piece of land is approximately 20 feet by 15 feet and is the subject of this lawsuit. The subject property abuts a paved public alley that runs behind respondents’ property. On the northern side of the subject property is another double wooden gate that opens into respondents’ yard. Over the years, listings for sales of Lots 17 and 21 advertised the land as providing RV “access” or “parking.”

Beginning in mid-2007, appellants approached respondents with offers to purchase the subject property in order to “‘square up’” the southern end of their property. Respondents declined the offers as being too low. In March 2008, appellants’ gardeners spent about six hours cleaning up brush on the subject property without respondents’ permission. Respondents then placed “No Trespassing” and “No Parking” signs on the subject property facing appellants’ property. Appellants turned the signs around to face the public alley. On April 2, 2008, appellants filed a lawsuit requesting an in rem judgment “specifically acknowledging plaintiffs’ long established appurtenant ‘right of way’ prescriptive easement over Lot 21....”

After respondents’ demurrer to the complaint was overruled, the case proceeded to a three-day bench trial. Appellants’ case consisted of their testimony, as well the testimony of two prior owners of their property, Eddy Lockwood and Daniel and Cynthia Glick. As part of the defense case, respondents testified, as did respondent Melvin Navarro’s mother Orquedia Navarro, neighbors Charrisse Sheikh and Donald Simpson, and expert arborist Carl Mellinger. The trial court admitted into evidence numerous exhibits, including several photographs of the subject property.

The parties each testified that at the time they purchased their respective lots in 2002 and 2004 until appellants had the subject property cleared in March 2008, it was overgrown, covered with weeds and tall grass and contained mature trees and vegetation. Appellant Velibor Vekic testified that when he purchased Lot 17, he did not realize the subject property was unpaved, because the ground was not visible beneath the vegetation. A few months after appellants moved into their house in December 2004, they had some trees in their backyard trimmed by their gardeners, who gained access through the subject property. When Velibor Vekic later had the subject property cleared in March 2008, he found condoms, syringes, and underwear covered by leaves, testifying that “it was disgusting.” He testified that he cleared the subject property because he wanted it to be nice so that he could start using it. Appellant Dusica Vekic testified that she did not go onto the subject property much because the latch on appellants’ gate was old and would get stuck and she once almost cut her finger on it.

Appellants’ witness Eddy Lockwood bought Lot 17 in 1981, and lived there nearly 20 years. He used the subject property “whenever [he] needed to, ” to bring plants and other materials into his yard. He also used it as access to bring in materials for construction projects in 1985, 1986 and 1988, and following the 1994 Northridge earthquake. He testified that following the earthquake, “neighbors made specific arrangements with neighbors” for rebuilding, and that he had such arrangements with the then-owner of Lot 21. A six-foot high fence ran between Lots 17 and 21, and he did not think people on Lot 21 could see over the fence. He thought the subject property was for public use and never made a claim of ownership.

Around 1998, Lockwood sold Lot 17 to the Glicks, who sold it to appellants in 2004. The Glicks’ real estate agent described the subject property as an “easement.” They had a padlock on their gate, and their children were not allowed on the subject property. Daniel Glick testified that he occasionally had his gardeners clean up the area and trim the surrounding trees. He also testified that while he used the subject property for access to his property from “time to time, ” there was no reason to use it for ingress or egress; trees and plants grew so quickly there that it was “like a weed garden”; and it was “an isolated strip between nowhere and nowhere.” The prior owner of Lot 21 once helped him move a rock off the subject property, and he thought it was a public access area.

Cynthia Glick also thought the subject property was for public access. She and her husband once used it to bring in materials to build a children’s playhouse. She was the listing agent during the sale of Lot 21 to respondents. She attended a showing of the property, but did not make any representations as to the right to use the subject property.

Respondents each testified that from the time they purchased Lot 21 in 2002 until March 2008 when appellants cleared the overgrown land, they never saw any evidence that anyone was making use of the subject property either by vehicle or foot. Respondents’ witnesses supported their testimony that there was no evidence that anyone was using the land.

Neighbor Charrisse Sheikh testified that she had lived at Lot 19 (across the alley to the south of respondents’ property) since 1997, and that the subject property was always covered with very tall grass. She and her mother were so concerned that someone could hide in the tall grass that her mother petitioned to have a light installed in the alley. She sometimes saw animals roaming in the grass, and was unaware of appellants’ gate. The area was overgrown until it was “shaved clean” in March 2008. She never saw any construction trucks or gardeners using the land.

Neighbor Donald Simpson had lived on Lot 18 (part of which borders Lots 17 and 21) since 1995. He also described the subject property as overgrown with tall grass and containing a field of wild poppies that would bloom in the spring. He saw old paint cans, small boulders and granite rocks on the land. He would not walk on the subject property because he was afraid that animals could be hiding in the tall grass. In the thirteen years before the lawsuit, he saw a load of dirt that had been dumped in the alley that he learned was intended for the prior owners of Lot 17. Other than that one occasion, he never saw anyone using the subject property, which he assumed was owned by the city.

Orquedia Navarro testified that when she first saw the subject property in 2002, it was covered with so much vegetation, trees and grass that she could not see appellants’ gate, and there was no evidence that any one had been using it. Though she asked her gardener to clean out respondents’ property during the year she lived on Lot 21, from 2002 to March 2008 the area never looked cleared out.

Carl Mellinger, a certified arborist and licensed California State landscape contractor, viewed the subject property in 2009, as well as photographs of the land before it had been cleared. At the time of his visit, there were eight trees growing there, which he estimated as being nine to 15 years old. He saw indications that a branch had been cut from one of the trees that he opined had been growing at an angle that would have made it extremely difficult for a vehicle to pass and access appellants’ gate. The overgrowth, especially bougainvillea hanging over from respondents’ property, would have come to within three to four feet of the ground, and he did not believe anyone but a small child could pass underneath. He also observed the soil conditions on both the subject property and the other side of appellants’ gate, and found no depressions from vehicles and no compacted dirt.

Following the submission of evidence, the parties filed proposed findings of fact and conclusions of law. The trial court issued judgment in favor of respondents, without making any factual findings or legal conclusions. This appeal followed.

DISCUSSION

Appellants contend that the evidence they presented was sufficient to establish a prescriptive easement.

I. Elements of 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.” (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305; Code Civ. Proc., § 321; Civ. Code, § 1007.) “The elements necessary to establish a prescriptive easement ‘are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.’ [Citation.]” (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938–939.)

II. Standard of Review.

Whether the elements of a prescriptive easement have been established is a question of fact for the trial court. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) The trial court’s express or implied findings will not be disturbed on appeal if substantial evidence supports them. (Ibid.) Where, as here, the judgment was entered in an action in which no written findings were made, we presume the trial court made whatever findings are necessary to support the judgment. (Korry of California v. Lefkowitz (1955) 131 Cal.App.2d 389, 391.) In our appellate review, we do not reweigh conflicts or disputes in the evidence, or evaluate the credibility of witnesses; “‘that is the province of the trier of fact.’” (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514.) A party raising a claim of insufficiency of the evidence “assumes a ‘daunting burden.’” (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678.)

A. Open and Notorious Use

“Use of property alone is insufficient to establish a prescriptive easement. The use must be sufficiently visible, open, and notorious so that anyone viewing the [area] would discover the easement.” (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) Easements, § 15:34, at p. 15-129 (Miller & Starr).) The owner of the land must have either actual knowledge of the use or the use must be so open, visible and notorious as to constitute reasonable notice. (Kerr Land & Timber Co. v. Emmerson (1969) 268 Cal.App.2d 628, 634.)

Here, the evidence showed that appellants made very little use of the subject property during the time they lived on Lot 17 from December 2004 until they filed this lawsuit on April 2, 2008. Dusica Vekic testified that she did not use the land much because the latch on the gate was difficult to open. Velibor Vekic testified that he had the land cleared in March 2008, less than a month before filing this lawsuit, because he wanted to make it “nice so I can start using it.” If he planned to start using the land after the clearing in March 2008, surely this supports a factual inference that he had not made much use of the land before that time, and certainly not use that was open and notorious to respondents. Indeed, he testified that at the time he had the subject property cleared, it was so covered with condoms, syringes, underwear and leaves that it “was disgusting.” There was no evidence that appellants were using the subject property in such a way as to put respondents on actual or constructive notice of their use. A six-foot-high wall divided the properties, and all of respondents’ witnesses testified that there was no evidence of any use of the subject property. “If the owner of the [area] does not have actual or constructive knowledge, the claimant cannot acquire a prescriptive right.” (Miller & Starr, supra, Easements, § 15:34, at p. 15-130.)

B. Continuous and Uninterrupted Use

“‘To acquire a prescriptive easement, the easement must be used in the required manner continuously and without interruption for the full prescriptive period [of five years]. The actual use required depends on the nature of the easement. It need not be used every day during the prescriptive period. The use is sufficient if it occurs on those occasions when it is necessary for the convenience of the user.’” (Fogerty v. State of California (1986) 187 Cal.App.3d 224, 239.)

There was substantial evidence to support the implied finding that the subject property was not being used on a continuous basis, either for its intended purpose or for any purpose at all. It is undisputed that no one ever parked an RV on the subject property. And the evidence showed that appellants rarely used it for ingress or egress. While a party claiming an easement by prescription may “tack” his period of use onto his predecessors’ period of use (see Miller & Starr, supra, Easements, § 15:38, at p. 15-145), there was no evidence that would allow tacking here. Indeed, the evidence showed that the Glicks, who sold Lot 17 to appellants, only used the subject property from “time to time.” Daniel Glick testified that there was no reason to use it for ingress or egress, that trees and plants grew so quickly there that it was like a weed garden, and that it was “an isolated strip between nowhere and nowhere.” Even if the Glicks’ use of the subject property from 1998 to 2004 could be construed as continuous, the evidence showed that after buying Lot 17 in 2004, even without any interruption by respondents, appellants did not make use of the land until 2008. Thus, there was nearly a four-year break in any use of the subject property by appellants, which prevents them from establishing continuous use.

C. Hostile, Adverse, and Under a Claim of Right

Use of a claimed easement is hostile and adverse when the use is made without permission of the owner and without express or implied recognition of the owner’s rights. (Miller & Starr, supra, Easements, § 15:35, at p. 15-133.)

Appellants made offers to purchase the subject property in 2007. “[A] claimant cannot show the use of a right was hostile when, simultaneous to that use, the claimant recognized that the very same right was held by the owner of record.” (Brewer v. Murphy, supra, 161 Cal.App.4th at p. 940.) We find no merit in appellants’ reliance on Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d 564 for the proposition that their “inquiries” about purchasing the land do not defeat their claim of a prescriptive easement. In Warsaw, the plaintiff had unsuccessfully attempted to negotiate an express easement and to purchase the disputed property. The Warsaw court found that the owners’ adamant refusal to negotiate on the issue was evidence that no permission was given or contemplated. (Id. at p. 572.) Because the plaintiff’s use of the disputed property continued uninterrupted for seven years without any express permission, the use was considered hostile. By contrast here, appellants made almost no use of the subject property either before or after offering to purchase it, and instead filed this lawsuit.

Additionally, none of appellants’ predecessors made any claim of right to the subject property. They each believed that it was meant for public use. Eddy Lockwood, who perhaps used the land more than anyone, testified that he did so by way of neighborly accommodation. He testified that following the 1994 earthquake, “neighbors made specific arrangements with neighbors” to rebuild, and that he participated in such arrangements with the then-owner of respondents’ property. Daniel Glick testified that the prior owners of respondents’ property once helped him to move a big rock off the subject property. But use of land that is “merely the type that is customary in the area or normally allowed by one neighbor to another as a friendly gesture and accommodation.... cannot ripen into a prescriptive right.” (Miller & Starr, supra, Easements, § 15:36, at p. 15-139, fn. omitted.)

In light of the foregoing, we are satisfied that there was no error in the trial court’s determination that appellants failed to establish a prescriptive easement.

DISPOSITION

The judgment is affirmed. Respondents are entitled to recover their costs on appeal.

We concur: ASHMANN-GERST, J., CHAVEZ, J.


Summaries of

Vekic v. Navarro

California Court of Appeals, Second District, Second Division
Dec 21, 2010
No. B218159 (Cal. Ct. App. Dec. 21, 2010)
Case details for

Vekic v. Navarro

Case Details

Full title:VELIBOR VEKIC et al., Plaintiffs and Appellants, v. MELVIN NAVARRO et al.…

Court:California Court of Appeals, Second District, Second Division

Date published: Dec 21, 2010

Citations

No. B218159 (Cal. Ct. App. Dec. 21, 2010)