Shoen v. Zacarias ( 2019 )

Filed 4/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LILLI SHOEN, B284374
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC486560)
v.
JULIET ZACARIAS,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Teresa A. Beaudet, Judge. Reversed and
remanded.
Schorr Law, Zachary D. Schorr, and Stephanie C. Goldstein
for Plaintiff and Appellant.
Ervin Cohen & Jessup, and Allan B. Cooper for Defendant
and Respondent.
******
When a landowner grants someone permission to use her
land, she generally retains the right to revoke that license at any
time. (Emerson v. Bergin (1888) 76 Cal. 197, 201.) The
landowner may nevertheless be estopped from revoking that
license—and the license will accordingly become irrevocable for
“so long a time as the nature of it calls for”—if the person using
the land has “expended money[] or its equivalent in labor”
improving the land “in the execution of the license.” (Cooke v.
Ramponi (1952) 38 Cal. 2d 282, 286 (Cooke); Stoner v. Zucker
(1906) 148 Cal. 516, 520 (Stoner).) Critically, however, the
expenditure of money or labor can make a license irrevocable only
if that expenditure is “‘substantial,’” “considerable” or “great.”
(Richardson v. Franc (2015) 233 Cal. App. 4th 744, 756
(Richardson); Dinsmore v. Renfroe (1924) 66 Cal. App. 207, 211-
212 (Dinsmore); Stepp v. Williams (1921) 52 Cal. App. 237, 240,
257 (Stepp).) Here, we conclude that the trial court’s grant of an
irrevocable license was an abuse of discretion because the court
construed the “substantial expenditure” requirement too
permissively and used the wrong legal standard in declaring the
license to be forever irrevocable. For these reasons, we reverse
the grant of the irrevocable license and remand for further
proceedings on the private nuisance claim.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The disputed area
Lilli Shoen (Shoen) and Juliet Zacarias (Zacarias) are
neighbors whose backyards consist primarily of steep upward
hillsides. At the top of Zacarias’s hillside and midway up Shoen’s
is a flat patch of ground. The property line zigzags through this
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flat patch. Of this patch, 490 square feet are on Shoen’s side of
the line; the remainder is on Zacarias’s.
Before either Shoen or Zacarias bought their parcels,
someone had leveled out the flat patch, poured three concrete
“meditation pads,” and placed ornamental gravel on the patch.
The prior owner of Zacarias’s parcel had also installed steps
made of railroad ties leading all the way up to the flat patch,
while the prior owner of Shoen’s parcel had installed railroad-tie
steps leading two-thirds of the way to the flat patch but stopping
about 20 to 30 feet shy of the patch.
B. Zacarias improves the flat patch while believing
it was part of her property
Zacarias bought her parcel in 2003. She mistakenly
believed that the entire flat patch was on her land. Over the next
two years, she (1) brought in contractors to grade the patch to
make it flatter, (2) removed stacks of bamboo and cleared
overgrown brush from the patch, (3) installed new ornamental
gravel, (4) planted a low, 18-inch-tall hedge and built a foot-tall
wooden fence around the perimeter of the patch, (5) populated
the patch with a 10 foot-by-10 foot cloth cabana, a chaise lounge,
a table and chairs, none of which is affixed to the ground and
each of which remains movable, (6) installed underground
electrical conduit from her house to the patch, and (7) installed
sprinklers and then replaced them with a drip system in order to
water the hedges on the patch. Each of these improvements was
made in 2003, 2004 or the early part of 2005.
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C. Zacarias learns that a portion of the patch is
not hers, and continues to maintain it
1. Zacarias learns she does not own the entire
patch
In October 2005, the prior owner of Shoen’s land did a
survey of his property line and discovered that 490 square feet of
the flat patch belonged to him (“the disputed area”). The prior
owner shared this discovery with Zacarias, but told her she could
continue to use the entire flat patch. The prior owner told
Zacarias that his willingness to let her keep her furniture in the
disputed area lasted only as long as he owned the property, and
Zacarias understood as much.
2. The Shoen family buys the property and allows
Zacarias’s use of the disputed area to continue
In 2006, the Shoen family trust acquired the parcel now
owned by Shoen. At that time, the prior owner disclosed
Zacarias’s encroachment of the flat patch. Both Shoen and her
father admitted knowing that the disputed area was on their
land. From that time until April 2011, and in an effort to be a
“good neighbor,” neither the trustees of the Shoen family trust
nor Shoen (who was living on the property) told Zacarias to stop
using the disputed area.
In the latter part of 2011 and the early part of 2012, Shoen
acquired the property from the Shoen family trust. In a series of
letters sent first by Shoen’s father in April 2011, then Shoen in
April 2012, then Shoen’s attorney in May 2012, the authors asked
Zacarias to vacate the disputed area because Shoen desired to
landscape the area. Zacarias ignored all of the letters.
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3. Zacarias’s work on the disputed area between
2006 and 2011-2012
During the period between the Shoen family trust
acquiring the disputed area and its (and Shoen’s) letters asking
Zacarias to stop using that area, Zacarias spent time and money
to keep the entire flat patch usable. In particular, she (1) kept
the trees near the patch trimmed, (2) cleared the brush on her
hillside every year, (3) replaced the plants comprising the low
ficus hedge when it died, (4) watered the hedges, (5) sometimes
used the cabana’s lighting or other electricity, and (6) re-
upholstered the top of the cabana and the furniture. Zacarias
paid the gardener who trimmed the trees $130 per month for the
upkeep of her entire parcel of land. She paid laborers $700 per
year to clear the brush on all of her land. The new ficus hedge
cost $2,350 to replace ($2,000 for the plants and $350 in labor).
Zacarias’s average monthly electric and water bill for her house,
swimming pool and entire yard was $1,200.
II. Procedural Background
A. Complaint and cross-complaint
In June 2012, Shoen sued Zacarias for damages, injunctive
and declaratory relief on theories of (1) trespass, (2) nuisance, (3)
ejectment, and (4) negligence. Zacarias answered and counter-
sued for damages and injunctive relief on theories of (1)
prescriptive easement, (2) equitable easement and (3) nuisance
based on Shoen’s placement of two video cameras on Shoen’s
property that overlooked the disputed area as well as portions of
the flat patch on Zacarias’s property.
B. First trial on equitable easement and reversal
Pursuant to the parties’ stipulation, the case went to trial
solely on the existence of an equitable easement. The trial court
granted Zacarias an equitable easement over the disputed area,
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but we reversed after concluding that Zacarias had not proven
that the hardship she would experience in moving her portable
patio furniture was “greatly disproportionate” to the hardship on
Shoen in losing use of her own property. (Shoen v. Zacarias
(2015) 237 Cal. App. 4th 16, 17-18 (Shoen I.)
C. Second bifurcated trial on irrevocable license
and nuisance
On remand, Zacarias asserted that she had an irrevocable
license to use the disputed area based on Shoen’s acquiescence to
her use of the disputed area. Pursuant to stipulation, the case
went to bifurcated trial, first on the issue of whether Zacarias’s
license to use the disputed area should be deemed irrevocable
and, if so, second on the issue of whether Shoen’s continued use of
cameras to view that area would constitute a private nuisance.
1. Irrevocable license trial and ruling
During the bifurcated trial on the existence of an
irrevocable license, the trial court did a site visit to the flat patch,
heard testimony from Shoen, Zacarias and the former owner of
Shoen’s property, and admitted the prior testimony of Shoen’s
father. During her testimony, Zacarias “estimate[d]” that from
2003 onward she spent “[a]t least” $15,000 to $25,000 “to improve
[and] maintain” the disputed area.” This amount included
$8,638.55 for the cabana and other portable furniture on the flat
patch. It also included a portion of her monthly gardening,
electrical and water bills that Zacarias calculated by dividing the
square footage of her entire property (6,928) by the square
footage of the disputed area (490).
The trial court ruled that Zacarias should be awarded an
exclusive irrevocable license to use the disputed area and that
this license would last forever, even after Zacarias sold the
property. Although acknowledging that “some significant portion
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of” Zacarias’s estimate of the $15,000 to $25,000 “was spent
before” Shoen acquiesced to Zaracias’s use of the disputed area,
the court nonetheless concluded that Zacarias had “spent
substantial sums and physical labor for . . . landscaping,
maintenance and care of the [d]isputed [a]rea” during the “six
and possibly seven years” that Zacarias had used it with Shoen’s
acquiescence. The court further ruled that “the equities”
“favor[ed]” granting the license not only to Zacarias but also in
perpetuity to her successors-in-interest because the disputed area
was “accessible from the Zacarias property” but did not “appear”
to “provide any benefit to the Shoen property” because it was not
viably accessible from that property. The court lastly ruled that
this permanent license would also be exclusive due to the
physical layout of the parcels and the parties’ bad relationship.
2. Nuisance trial and ruling
Following further briefing, the court ruled that Shoen’s two
video cameras amounted to a private nuisance because they
“constitute[d] a substantial and unreasonable interference with
Zacarias’s right to the use and enjoyment of” both the disputed
area and the other portion of the flat patch owned by Zacarias.
The court ordered Shoen to remove the cameras and prohibited
her from installing any other equipment that would track the
disputed area or Zacarias’s property.
D. Judgment and appeal
Following entry of judgment, Shoen filed this timely
appeal.
DISCUSSION
Shoen argues that the trial court erred in granting Zacarias
a perpetual irrevocable license and in declaring her placement of
the two video cameras to be a private nuisance. We review the
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trial court’s ultimate decision to grant an irrevocable license and
the duration of that license for an abuse of discretion, but review
any subsidiary factual findings for substantial evidence and any
subsidiary legal questions de novo. (Richardson, supra, 233
Cal.App.4th at p. 751; Zellers v. State (1955) 134 Cal. App. 2d 270,
275 (Zellers); City of Oakland v. Oakland Police & Fire
Retirement System (2014) 224 Cal. App. 4th 210, 226.) We review
a trial court’s factual findings in support of its private nuisance
ruling for substantial evidence, but the scope of any injunctive
relief for an abuse of discretion. (Vanderpol v. Starr (2011) 194
Cal. App. 4th 385, 397; Van Klompenburg v. Berghold (2005) 126
Cal. App. 4th 345, 349.)
I. Irrevocable License
A. Pertinent law
When a landowner allows someone else to use her land, the
owner is granting a license. (Emerson, supra, 76 Cal. at p. 201.)
A license may be created by express permission or by
acquiescence (that is, by “tacitly permit[ing] another to
repeatedly do acts upon the land” “with full knowledge of the
facts” and without objecting). (Gravelly Ford Canal Co. v. Pope &
Talbot Land Co. (1918) 36 Cal. App. 717, 737; Lusk v. Krejci
(1960) 187 Cal. App. 2d 553, 555.) Although a license may
generally “be revoked at any time at the pleasure of the licensor”
(Emerson, at p. 201; Bryant v. Marstelle (1946) 76 Cal. App. 2d
740, 746), a court may declare the license to be irrevocable “for so
long a time as the nature of it calls for” if the licensee “‘has
expended money, or its equivalent in labor’” while reasonably
relying on the existence of the license. (Cooke, supra, 38 Cal.2d
at p. 286; Stoner, supra, 148 Cal. at p. 520; Hammond v. Mustard
(1967) 257 Cal. App. 2d 384, 389 (Hammond); Belmont County
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Water Dist. v. State of California (1976) 65 Cal. App. 3d 13, 18
(Belmont County).)
Critically, courts may exercise their power to declare a
license irrevocable only if the expenditures in reliance on the
license are “substantial,” “considerable” or “great.” (Richardson,
supra, 233 Cal.App.4th at p. 756 [“substantial”]; Noronha v.
Stewart (1988) 199 Cal. App. 3d 485, 490 (Noronha) [same];
Broads v. Mead (1911) 159 Cal. 765, 768 (Broads) [“substantial
loss”]; Dinsmore, supra, 66 Cal.App. at pp. 211-212
[“considerable”]; Stepp, supra, 52 Cal.App. at pp. 240, 257
[“great”]; Stoner, supra, 148 Cal. at p. 518 [“large and
expensive”]; cf. McCarthy v. Mutual Relief Asso., (1889) 81 Cal.
584, 588 [“trivial” expenditures will not suffice].) This particular
requirement exists for two reasons. First, it mirrors a similar
requirement in the doctrine of equitable estoppel, the doctrine
that forms the “principal” rationale for our Supreme Court’s
recognition of a judicial power to declare licenses irrevocable.
(Cooke, supra, 38 Cal.2d at p. 286 [“The principal basis” of this
power “is the doctrine of equitable estoppel.”]; Stoner, at p. 519
[same].) Just as a party seeking to invoke the doctrine of
equitable estoppel must prove that she “seriously . . . change[d]
[her] position in reliance” on the other party’s conduct (Monarco
v. Lo Greco (1950) 35 Cal. 2d 621, 623, italics added; Byrne v.
Laura (1997) 52 Cal. App. 4th 1054, 1072; City of Hollister v.
Monterey Ins. Co. (2008) 165 Cal. App. 4th 455, 500 [“change of
position” must be “of sufficient gravity to justify the intervention
of equity”]), so too must the party seeking an irrevocable license
prove that she seriously changed her position in reliance on the
license by showing that her subsequent expenditures were
significant. Second, the requirement of significant expenditures
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ensures that courts use their power to create irrevocable licenses
sparingly. (Accord, Brevard County v. Blasky (Fla. Dist. Ct. App.
2004) 875 So. 2d 6, 12 [irrevocable license “only arises under very
narrow circumstances”].) This is critical because such licenses
are functionally indistinguishable from easements (Barnes v.
Hussa (2006) 136 Cal. App. 4th 1358, 1370) and because courts are
rightly reluctant to exercise “what is, in effect, the right of
eminent domain by permitting [the licensee] to occupy property
owned by another” (Christensen v. Tucker (1952) 114 Cal. App. 2d
554, 560; see generally U.S. Const., 5th Amend. [“private
property” “shall” not “be taken for public use, without just
compensation”]; Cal. Const., art. I, § 19, subd. (a) [same]).
Courts have faithfully limited the exercise of their power to
declare a license to be irrevocable to those situations in which the
licensee has expended substantial amounts of money or labor in
reliance on a license. Nearly every case where a license has been
declared irrevocable has involved the licensee’s permanent
alteration of the land and the ensuing upkeep, whether by
building, altering or upgrading a roadway (Cooke, supra, 38
Cal.2d at pp. 285-287; Dinsmore, supra, 66 Cal.App. at pp. 211-
212; Ricioli v. Lynch (1923) 65 Cal. App. 53, 58), constructing a
ditch, canal or levee to transport water (Stoner, supra, 148 Cal. at
pp. 517-519 [ditch]; Gravelly Ford, supra, 36 Cal.App. at pp. 718,
721-722, 736-737 [canal]; Stepp, supra, 52 Cal.App. at pp. 239-
240 [levee]), erecting a wall (Noronha, supra, 199 Cal.App.3d at
p. 491), or raising living quarters (Hammond, supra, 257
Cal.App.2d at pp. 386-387 [cabins]). The high-water mark in this
regard is Richardson, supra, 233 Cal. App. 4th 744, which upheld
an irrevocable license based upon the licensee’s extensive acts of
landscaping that entailed the installation of irrigation and
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lighting systems; the purchase, planting and replanting of
several large and expensive trees for more than two decades; and
the daily watering and lighting of that landscaping. (Id. at pp.
748-749, 753, 756.)
B. Analysis
The trial court abused its discretion in granting Zacarias a
perpetual irrevocable license for two reasons.
1. Insufficient evidence of substantial expenditures
in reliance on Shoen’s implied license
Although substantial evidence supports the trial court’s
findings that the prior owner of Shoen’s property expressly
granted Zacarias permission to use the disputed area and that
Shoen (or her father) acquiesced to Zacarias’s continued use of
the area from 2006 to 2011 or 2012, substantial evidence does not
support the court’s finding that Zacarias expended substantial
amounts of money or labor in the execution of either license. The
sole evidence of Zacarias’s expenditures was Zaracias’s estimate
that she spent “at least” $15,000 to $25,000 in improving and
maintaining the flat area between 2003 and the present along
with a handful of receipts to support her estimate.
Zacarias’s estimate does not constitute substantial evidence
of a substantial expenditure of money for two reasons. First, the
estimate is over-inclusive temporally. The estimate includes all
of Zacarias’s initial improvements to the flat patch, even though
Zacarias freely admitted that those improvements were made
while she labored under the mistaken belief that the whole patch
belonged to her and thus the improvements were not made in
reliance on any license. Zacarias testified that the patio
furniture and cabana cost her $8,638.55, but made no effort to
quantify the other initial improvements, which, as noted above,
also included hiring contractors to grade the patch, removing
11
bamboo and overgrown brush, replacing the ornamental gravel,
installing sprinklers, installing four different types of lighting
(electric and solar-powered), and buying and planting the first
hedge. The trial court acknowledged that “some significant
portion” of Zacarias’s $15,000 to $25,000 estimate was incurred
before Zacarias had any license, but the court did not explain how
or why the remaining expenditures—that is, the portion
attributable solely to upkeep after the license—was also
significant.
Second, the estimate’s calculation of the upkeep costs
incurred in reliance on Shoen’s license rests on faulty factual
premises. Zacarias calculated the upkeep portion of her estimate
as including (1) her monthly gardening bill of $130, (2) her
annual brush clearing bill of $700, and (3) her monthly average
electrical and water bill of $1,200, all proportionately reduced by
the percentage of the size of the disputed area (490 square feet)
over the size of her entire lot (6,928 square feet). The method
Zacarias used to apportion her property expenditures was both
mathematically and factually inaccurate. It is mathematically
inaccurate because the mathematically correct way to determine
the percentage of her bills attributable to the disputed area is to
assess the size of disputed area (490 square feet) vis-a-vis the size
of her entire lot plus the disputed area (7,418 square feet) because
the bills necessarily included the cost to garden, water and light
that area as well; the larger denominator makes the percentage
attributable to the disputed area smaller. Zacarias’s method was
also factually inaccurate because it assumes that the use (and
hence the cost) of gardening, electricity and water was spread
evenly across her property. But this was simply not true as to, at
a minimum, the electricity and water expenses: The disputed
12
patch would only use electricity for lighting at night or when
Zacarias (or her tenants or guests) plugged something in, as
compared with the main house and the pool which would use
electricity for innumerable purposes and all the time; similarly,
the disputed patch had a drip system to water the hedge, as
compared with the main house (which would use water for
bathing, washing clothes and dishes) and the pool. Although our
review for substantial evidence requires us to view the evidence
in the light most favorable to the prevailing party (Oregel v.
American Isuzu Motors, Inc. (2001) 90 Cal. App. 4th 1094, 1100), it
does not require blind acceptance of anything uttered during
trial. We must still assess whether the evidence is
“substantial”—that is, whether it is “reasonable, credible and of
solid value” (Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th
634, 651)—and an opinion that “does not rest upon relevant facts
or which assumes an incorrect legal theory cannot constitute
substantial evidence” (Smith v. Workers’ Comp. Appeals Bd.
(1969) 71 Cal. 2d 588, 593).
Once Zacarias’s estimate is discounted to correct its
temporal and logical defects, what remains of the upkeep
expenses is the share of the monthly gardening and annual brush
clearing bills attributable to the disputed area, the even smaller
share of the monthly electric and water bills attributable to the
disputed area, occasionally replacing sprinkler heads, and the
one-time $2,350 replacement cost of the ficus trees. These
upkeep costs are akin to other expenditures that courts have
determined not to be “substantial.” (See, e.g., Belmont County,
supra, 65 Cal.App.3d at p. 18 [cost of preparing plans and route
surveys for construction; not substantial expenditure]; Broads,
supra, 159 Cal. at p. 768 [cost to remove signs from outside of
13
building; not substantial expenditure]; Heinkel v. McAllister, 113
Cal. App. 2d 500, 503-504 [cost to lay underground pipe; not
substantial expenditure]; Kaler v. Brown (1951) 101 Cal. App. 2d
716, 717, 719 [pouring two concrete strips used as a driveway; not
substantial expenditure].) We do not consider the labor Zacarias
claims to have invested in gardening because she did not testify
to when or how much labor, and we do not consider the cost to re-
top the cabana or reupholster some of the furniture because those
costs inured to Zacarias’s benefit (because the furniture is
movable and can be used elsewhere), not the disputed area itself.1
In holding that Zacarias’s modest costs of upkeep do not
constitute “substantial” expenditures warranting an irrevocable
license, we leave Richardson as the outer boundary of
substantiality. In our view, this result is not only consistent with
the legion of case law that precedes Richardson but also with the
careful boundary staked out by those cases that runs between the
sanctity of private property rights and the occasional need to do
equity in derogation of those rights.
1 The trial court also seemed to find that Zacarias did not
install permanent electrical wiring until 2007 or 2008 because
Shoen only saw the cabana light attached to a “surge protected
extension cord” when she visited the disputed area during that
time frame, but the court’s suggestion is not supported by
substantial evidence because Zacarias testified that she installed
all of the electrical before 2005 and because Shoen also testified
that she saw electrical wiring up to the patch during the 2007 or
2008 visit. Construing the testimony in the light most favorable
to the trial court’s finding, Shoen’s testimony indicates that
Zacarias at some point after 2007 or 2008 ran a different wire
from the patch’s border to the top of the cabana, but this minor
additional improvement does not alter our analysis.
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Zacarias raises three arguments in response.
First, Zacarias argues that our prior conclusion in Shoen I
that she was not entitled to an equitable easement is not
dispositive of whether she is entitled to an irrevocable license.
We agree. (Accord, Richardson, supra, 233 Cal.App.4th at pp.
753-754 [denial of equitable easement due to trespasser’s
knowledge of the trespass did not preclude award of irrevocable
license].) However, Zacarias must still establish that she meets
all of the requirements for obtaining an irrevocable license. She
has not done so.
Second, Zacarias contends that one year of expenditures
can be enough to render a license irrevocable. For support, she
cites Zellers, supra, 134 Cal. App. 2d 270. Zellers held that a
landowner was entitled to an irrevocable license after he dumped
20,000 cubic yards of dirt on his neighbor’s property and she did
not object for a year. (Id. at pp. 272-275.) Zellers focused on
whether the neighbor had acquiesced to the use of her land by
saying nothing for a year; Zellers did not purport to hold that any
expenditure for more than a year qualifies as substantial. (Ibid.)
Lastly, Zacarias asserts that she is not required to quantify
a “specific dollar amount” of her expenditures. (Richardson,
supra, 233 Cal.App.4th at p. 756.) She is nevertheless required
to prove that her expenditures were substantial (Evid. Code,
§ 500 [party advancing claim or defense bears burden of proof]),
and here she did not for the reasons we have explained.
2. Abuse of discretion in granting an irrevocable
license in perpetuity
In fixing the duration of an irrevocable license, the license
should “‘continue for so long a time as the nature of it calls for.’”
(Cooke, supra, 38 Cal.2d at p. 286.) This means the license
should remain irrevocable “‘for a period sufficient to enable the
15
licensee to capitalize on his or her investment.’” (Richardson,
supra, 233 Cal.App.4th at p. 758, quoting 6 Miller & Starr,
Easements 15:2, p. 15-15.) Thus, when a license to operate a mill
or for drainage becomes irrevocable, it should last as long as the
mill is operational or the need for drainage remains. (Stoner,
supra, 148 Cal. at p. 520.)
The trial court abused its discretion in making any
irrevocable license perpetual in duration for two reasons.
First and foremost, the court used the wrong legal
standard. (People v. Knoller (2007) 41 Cal. 4th 139, 156 [trial
court abuses its discretion if its decision is based “on . . . an
incorrect legal standard”].) Rather than look to when Zacarias
would obtain the return on the investment of her upkeep
occurring after she obtained a license, the court engaged in a
wholly separate inquiry into who would make better use of the
disputed area by balancing the greater value and utility of the
disputed area to Zacarias (due to her ready access to the area)
against the lesser value and utility of the area to Shoen (due to
her less-than-ready access to the area). Not only is this the
wrong test, but it is precisely the type of “free-floating inquiry
into which party will make better use of the encroached-upon
land, which values it more, and which will derive a greater
benefit from its use” that we condemned as inappropriate in
Shoen I. (Shoen I, supra, 237 Cal.App.4th at p. 21.)
Second, the proper analysis could not have yielded an
irrevocable license that is perpetual in duration. This is not a
case where Zacarias is seeking to obtain a license for long enough
to obtain a return on her major investments in improving the flat
patch because she made all of those improvements before any
license was granted. The only investment to be recovered here is
16
Zacarias’s annual investment in upkeep. We decline to hold that
a licensee’s annual cost of upkeep, without more, warrants a
perpetual license to recover the investment in upkeep; if we did,
every irrevocable license would be perpetual. Such a result
effectively rewrites our Supreme Court’s more nuanced and fact-
specific test for fixing the duration of an irrevocable license.
In light of our analysis, we have no occasion to reach the
other arguments raised by the parties with regard to the
irrevocable license.
II. Private Nuisance
Although the terms of the parties’ stipulation on remand
(as summarized by the trial court) appear to make the issue of
whether there is an irrevocable license dispositive of whether
Shoen’s cameras constitute a nuisance (because Shoen would
have the right to videotape the disputed area if it was hers to
use),2 the trial court’s nuisance ruling suggests that the cameras
may constitute a nuisance even if Zacarias is not granted an
irrevocable license (because the cameras are also aimed at the
portions of the flat patch unquestionably belonging to Zacarias).
Accordingly, we remand the nuisance claim for the parties to
clarify with one another and with the trial court the effect of the
stipulation and the scope of any injunctive relief yet to be
granted.
2 The parties did not include the stipulation itself in the
record on appeal.
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DISPOSITION
The judgment is reversed as to Zacarias’s entitlement to an
irrevocable license. The judgment is reversed and remanded on
Zacarias’s nuisance claim. Shoen is entitled to her costs on
appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P.J.
LUI
_________________________, J.
ASHMANN-GERST
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