Swenson v. Close CA4/1 ( 2024 )

Filed 1/26/24 Swenson v. Close CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARK R. SWENSON et al., D081067
Plaintiffs, Cross-defendants and
Appellants,
(Super. Ct. No. 37-2020-
v. 00020652-CU-OR-CTL)
CAROL W. CLOSE et al.,
Defendants, Cross-complainants
and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Reversed in part and affirmed in part.
Walker Law Office and Charles F. Walker, for Plaintiffs, Cross-
defendants and Appellants.
Law Office of Danny R. McDonald and Danny R. McDonald, for
Defendants, Cross-complainants and Respondents.
INTRODUCTION
This appeal stems from a dispute between adjoining landowners
regarding the use of a driveway easement by respondents Carol and Charles
Close (together, the Closes). The grant deed describing the easement
provides for “an easement and right of way for private driveway purposes
over and along and across that portion of Lot 2 of Pine Manor which lies
westerly of the northerly prolongation of the easterly line of Lot 1 of said Pine
Manor” (the easement).1 The Swensons objected to the Closes using the
easement for parking, basketball games, neighborhood parties, placement of
personal property, and watching fireworks.
The Swensons sued for quiet title; declaratory and injunctive relief;
trespass and ejectment; and private nuisance and abatement of the nuisance.
The Closes cross-complained for declaratory relief and prescriptive
easement.2 Following a one-day bench trial, the trial court issued a
statement of decision (SOD) interpreting the easement as affording the
Closes “a limited, non-exclusive easement to park their cars on the driveway
in a reasonable manner so as to avoid obstruction of [the Swensons’] access to
their property.” The court further construed the easement as authorizing
pedestrian traffic but declined to make a specific finding as to placing
personal property on the easement.
1 Lot 1 is owned by the Closes. Lot 2, which includes the driveway over
which the easement runs, is owned by appellants Mark and Valerie Swenson
(together, the Swensons).
2 The first amended cross-complaint also included a cause of action for
adverse possession. Argument by counsel for the Swensons at trial suggests
that they demurred to the adverse possession cause of action on the grounds
that the Closes could not demonstrate adverse possession because they had
not paid taxes on the property. Although the record does not contain the
briefing and court rulings reflecting the subsequent proceedings, Carol
admitted in response to an interrogatory that she was “no longer seeking fee
simple title and has conceded this cause of action should be deleted from the
[first amended cross-complaint] in her Response to Demurrer.”
2
On appeal, the Swensons contend the trial court erred as a matter of
law in interpreting the easement. We agree and, therefore, reverse the
judgment3 as to the Swensons’ quiet title cause of action and requests for
declaratory and injunctive relief. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence
In 1965, the Pine family sold the property described as Lot 2 of Pine
Manor to the Willet Land Company. The deed conveying the property
included a provision “reserving an easement and right-of-way for private
driveway purposes over, along, and across that portion of said Lot 2 which
lies westerly of the northerly prolongation of the easterly line of Lot 1 of said
PINE MANOR.” A few months later, the Boland family purchased Lot 2 from
the Willet Land Company. The Swensons purchased Lot 2 from the Bolands
in 2014.
3 Statements of decision generally are not appealable. (Alan v. American
Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) However, “[r]eviewing
courts have discretion to treat statements of decision as appealable when
they must, as when a statement of decision is signed and filed and does, in
fact, constitute the court’s final decision on the merits.” (Ibid.) Because the
SOD in this case was signed and filed; an entry of the same date on the
register of actions states: “Matter decided;” and it does not appear any
subsequent orders or judgments issued; we conclude the trial court intended
the SOD to be its final decision in the case and exercise our discretion to treat
it as such. Accordingly, we will refer to the SOD as the “judgment” in this
case. (See Cal. Rules of Court, 8.104(e) [including appealable orders in the
category of judgments for purposes of determining the timeliness of a
judgment].)
3
Meanwhile, in 1966, the Malanga family purchased Lot 1 and the
easement described ante from the Pines.4 In 2011, the Closes purchased
Lot 1 and the easement from the Malangas.
Lot 2 is shaped like a flag on a flagpole, with the driveway as the pole
leading up to the Swenson home. The Swensons’ house is at a higher
elevation than the Closes’ on the same side of the driveway and looks out over
a coastal area and bay. Both homes have garages that open to the driveway,
with the Closes’ garage located between the driveway and the home on the
way up the slope to the Swenson home. The easement, which is
approximately 20 feet wide, extends along the property line of Lot 1. There is
a gap of roughly seven-and-a-half feet between the easement and the Closes’
garage door.
The Closes have never parked their cars in their garage. Instead, they
park them by the garage door, with the vehicles protruding into the
easement. Carol testified that the only access to her house is via the
easement because the driveway also leads to a sidewalk that extends from
the driveway to her front door. She explained that it is impossible to walk
directly up to her front door from the street because the hill is steep, there is
no stairway, and no one could get through the landscaping she referred to as
“the jungle” in her front yard. In the Closes’ view, the parking area within
the easement that is in front of the garage is exclusively for their use as well
as for their friends and visitors. They acknowledge having parked their cars
there in a hostile, continuous, exclusive, open, and notorious manner
since 2011.
4 The language of the easement conveyed in this grant deed varied
slightly, and in a nonsubstantive manner, from the original easement
reservation and reflects the language subsequently used in the sale to the
Closes.
4
Valerie Swenson testified that she initially did not say anything about
the cars in an effort to be a good neighbor and indicated to Carol her
permission to park outside the garage by waving and smiling when she saw
Carol parking her car. But once she noticed that three cars were being
parked there and that a red Subaru had not been moved in months, was
covered with cobwebs and weeds, had expired plates, and was parked several
feet into the easement, she began to become unhappy. Mark Swenson said
the Closes regularly parked two to three cars by their garage, encroaching
four to eight feet into the easement, but agreed that they initially granted the
Closes “passive permission by waiving and acknowledging their presence
without interference.”5
On April 14, 2020, Mark sent a letter to Carol stating that the
easement on the driveway was for ingress and egress but did not allow the
Closes to park their vehicles on the driveway. He indicated that they
considered the Closes to be trespassing in parking on the driveway. The
Swensons also posted a “Private Property. No Trespassing” sign. The Closes
responded by sending a letter from their attorney indicating that they
believed the only restriction on their use of the easement was that they could
not completely prevent ingress and egress by the Swensons.
B. Statement of Decision
After the trial, the trial court issued its SOD. It indicated that, in
interpreting the easement and resolving the dispute, it “considered the
entirety of the clause while striving to ‘make sense’ of all of the words ‘when
taken together’ (CACI 317) and . . . considered ‘how the parties acted after
(the deeds were) created but before any disagreement between the parties
arose’ (CACI 318).”
5 The Closes disputed these assertions of “permission.”
5
As to the Swensons’ quiet title claim, the trial court noted that the
Swensons sought in their first amended complaint a ruling that “parking is
not allowed, [and] placement of personal property or pedestrian access is not
allowed within the subject easement unless express written permission is
given to Lot 1 occupants or others by the duly recorded owners or their
authorized agents of Lot 2.” In response, the court concluded as follows:
“The Court agrees in part and disagrees in part with [the
Swensons]. The Court agrees that the driveway easement is not
a parking lot where [the Closes] may park car(s) interminably
which approach, if not become, a blight. This finding is
consistent with the portion of the easement which limits [the
Closes’] use to ‘purposes over, along and across’ the driveway.
However, the Court disagrees with [the Swensons] that [the
Closes] parking their cars on the driveway at or near the garage
to their house is not incident to and consistent with the ‘purposes’
of a private driveway. Under a reasonable construction of the
easement, [the Closes] possess a limited, non-exclusive easement
to park their cars on the driveway in a reasonable manner so as
to avoid obstruction of [the Swensons’] access to their property.
“Pedestrian access between Galveston Street and [the Closes’]
residence is also incident to and consistent with ‘purposes over,
along and across’ the driveway.
“Finally, the Court declines to make a specific finding on the
‘placement of personal property’ on the driveway. Though the
examples cited at trial appeared to be a shade tent (Exh’s ‘21-
22’), a worker in a truck (Exh ‘20’) and a basketball court, [The
Closes] explained that these were transitory. [The Closes’]
explanation struck the Court as reasonable. [The Closes] are
admonished that their use of the driveway for the ‘placement of
personal property’ must be exercised in a reasonable manner so
as to avoid obstruction of [the Swensons’] access to their
property.”
The court also incorporated this finding in response to the Swensons’
declaratory relief claim.
6
In addressing the Swensons’ request for an injunction, the trial court
indicated that it was “not persuaded that [the Swensons] have satisfied their
burden of demonstrating that the balance of harms weighs in favor of
injunctive relief at this time or, given the Court’s above finding not to accept
their interpretation of the driveway easement, that they are (or will be) the
prevailing parties.”
With regard to the Swenson’s trespass claim, the court stated that, in
view of its interpretation of the easement, it found that the Swensons had
“not carried their burden that [they] did not give permission for [the Closes’]
entry or that [the Closes] exceeded [the Swensons’] permission.”
Additionally, while it agreed with the Swensons that the Closes “may not
interminably park car(s) on the driveway, which become a blight,” the court
was “not persuaded that [the Closes] have disrupted [the Swensons’] ‘views of
the bay and ocean.’ ”
Finally, the trial court rejected the Swenson’s private nuisance claim,
finding they had not carried their burden of showing the Closes created a
condition that was harmful to their health, was indecent or offensive to their
senses, obstructed their free use of property, or was potentially dangerous.
Turning to the Closes’ cross-claims, the court incorporated its findings
on the Swensons’ quiet title and declaratory relief claims in addressing the
Closes’ declaratory relief cross-claim. It further concluded that the Closes
had “failed to carry their burden that, beyond the limited, non-exclusive
easement they already possess, [the Closes]6 acquired a prescriptive
easement.”
6 The court found that “Plaintiffs” had not acquired a prescriptive
easement, but read in context, we presume the court meant to refer to the
Closes.
7
DISCUSSION
I.
The Trial Court Erred in Interpreting the Easement
The Swensons contend the trial court erred in construing the easement
as allowing for permanent parking by the Closes. We agree.
A. Legal Principles
An easement is a limited privilege to use another’s land but does not
create an ownership interest. (Kazi v. State Farm Fire and Casualty Co.
(2001) 24 Cal.4th 871, 881; McBride v. Smith (2018) 18 Cal.App.5th 1160,
1174.) The existence of an easement creates two tenements: the dominant
tenement is held by the individuals who hold the right to go over another’s
land (e.g., here, the Closes); the servient tenement is held by the owners
whose land is traversed (e.g., here, the Swensons). (See Civ. Code,
§ 803; Kazi, at p. 881.)
When an easement arises from an express grant, the use of the
easement is determined by the terms of the instrument creating it. (Civ.
Code, § 806; City of Pasadena v. California-Michigan Land & Water Co.
(1941) 17 Cal.2d 576, 579 (Pasadena).) “[O]nly those interests expressed in
the grant and those necessarily incident thereto pass from the owner of the
fee. The general rule is clearly established that, despite the granting of an
easement, the owner of the servient tenement may make any use of the land
that does not interfere unreasonably with the easement.” (Pasadena, at
p. 579; Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702.)
Meanwhile, “[t]he owner of the dominant tenement must use his or her
easements and rights in such a way as to impose as slight a burden as
possible on the servient tenement.” (Scruby, at p. 702.) “Every incident of
ownership not inconsistent with the easement and the enjoyment of the same
8
is reserved to the owner of the servient estate.” (Ibid.; Dolske v. Gormley
(1962) 58 Cal.2d 513, 519 (Dolske).)
An express easement is interpreted in the same manner as a contract.
(Civ. Code, § 1066; Pear v. City and County of San Francisco (2021)
67 Cal.App.5th 61, 70; Kerr Land & Timber Co. v. Emmerson (1965)
233 Cal.App.2d 200, 219.) The primary objective is to ascertain and carry out
the parties’ intentions. (See City of Manhattan Beach v. Superior Court
(1996) 13 Cal.4th 232, 238 (Manhattan Beach); Palos Verdes Corp. v. Housing
Authority of Los Angeles County (1962) 202 Cal.App.2d 827, 835 (Palos
Verdes) [“The primary object of the interpretation of a deed is to ascertain
and give effect to the intention of the parties, especially that of the grantor,
as it existed at the time of the execution of the instrument” (italics added)].)
“ ‘The intention of the parties to a grant is to be gathered, if possible, from
the instrument itself and is determined by a proper construction of the
language used, rather than by resorting to extrinsic evidence.’ [Citation.]”
(Norris v. State ex rel. Dept. of Public Works (1968) 261 Cal.App.2d 41, 46; see
also Pulliam v. Bennett (1880) 55 Cal. 368, 371.) “If the language of a deed is
plain, certain and unambiguous, neither parol evidence nor surrounding facts
and circumstances will be considered to add to, detract from or vary its
terms . . . .” (Palos Verdes, at p. 836; Civ. Code, § 1638 [“The language of a
contract is to govern its interpretation, if the language is clear and explicit,
and does not involve an absurdity”].) “Moreover, ‘ “language in a contract
must be construed in the context of that instrument as a whole, and in the
circumstances of that case, and cannot be found to be ambiguous in the
abstract.” ’ ” (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.
(1994) 9 Cal.4th 27, 42.)
9
On appeal, the reviewing court is not bound by the trial court’s
construction of the deed if said construction was “ ‘ “based solely upon the
terms of the written instrument without the aid of evidence [citations], where
there is no conflict in the evidence [citations], or a determination has been
made upon incompetent evidence [citation].” [Citations.]’ ” (Manhattan
Beach, supra, 13 Cal.4th at p. 238.) “In such circumstances, the appellate
court exercises its independent judgment as to the construction of the
instrument at issue.” (Machado v. Southern Pacific Transportation Co.
(1991) 233 Cal.App.3d 347, 352 (Machado).)
B. Analysis
In interpreting the deed language granting the easement, the trial
court stated that it “considered ‘how the parties acted after (the deeds were)
created before any disagreement between the parties arose’ ” pursuant to
CACI No. 318. We find no authority applying this instruction to
interpretation of a deed or other instrument where, as here, the language was
not drafted by the parties to the dispute. As the Supreme Court explained in
Crestview Cemetery Association v. Dieden (1960) 54 Cal.2d 744, 752–753,
“[t]hat the actions of the parties should be used as a reliable means of
interpreting an ambiguous contract is, of course, well settled in our law”
(italics added). This is because “ ‘[t]he acts of the parties under the contract
afford one of the most reliable means of arriving at their intention . . . .’ ”
(Id. at p. 753, italics added.) Because neither the Swensons nor the Closes
had any say in the language of the easement drafted decades before, we
conclude it was improper for the trial court to consider their actions in
construing the easement language. (C.f. Palos Verdes, supra, 202 Cal.App.2d
at p. 835 [relying on the parties’ intentions at the time the instrument was
executed in interpreting the deed].)
10
Additionally, nothing in the trial court’s SOD indicates that it found
the language ambiguous. Rather, the trial court based its conclusion that the
Closes “possess a limited, non-exclusive easement to park their cars . . . on
the driveway in a reasonable manner so as to avoid obstruction of [the
Swensons’] access to their property” on “a reasonable construction of the
easement.” When the instrument is unambiguous, the court should not
consider extrinsic evidence or surrounding facts and circumstances in
interpreting its language. (Palos Verdes, supra, 202 Cal.App.2d at p. 836;
Civ. Code, § 1638.)
While we appreciate the trial court’s effort to reach a pragmatic
solution, the court’s approach left both parties with more questions than
answers. Furthermore, calling it a “non-exclusive” easement does not make
it non-exclusive in reality. If the Closes routinely park cars on the easement,
then the Swensons cannot use the property under the cars. When, as a
practical matter, the true owners are completely prohibited from using their
land, the easement is exclusive. (Silacci v. Abramson (1996) 45 Cal.App.4th
558, 564 [concluding that “the notion of an exclusive prescriptive
easement . . . has no application to a simple backyard dispute”].) Generally,
an exclusive easement is only found to exist where the language of the
instrument “clearly expresse[d] an intention that the use of the easement
area be exclusive” (Gray v. McCormick (2008) 167 Cal.App.4th 1019, 1032),
which is not the case here. There also is no indication that the trial court
11
exercised its equitable powers in granting the Closes a right to park on the
easement.7
Because we find no evidence the trial court made any factual
determinations in construing the language of the easement, except to the
extent it improperly considered the parties’ subsequent actions under CACI
No. 318, the proper interpretation of the easement presents a question of law
we review de novo. (Machado, supra, 233 Cal.App.3d at p. 352.) Here, we
find the language granting the easement to be clear and unambiguous. The
language of the grant provided for “an easement and right of way for private
driveway purposes over and along and across that portion of Lot 2 of Pine
Manor which lies westerly of the northerly prolongation of the easterly line of
Lot 1 of said Pine Manor.” The use of the terms “over and along and across”
suggests movement from one place to another. In this case, the logical start
and end points are the street and the Closes’ garage. Consistent with this,
“driveway” is commonly defined as “a private road giving access from a public
way to a building on abutting grounds.” (Merriam-Webster Collegiate Dict.
(11th ed., 2003) p. 382, col. 1.) While the Closes attempt to read “private
driveway purposes” as an independent term, “[t]he whole of a contract is to be
taken together, so as to give effect to every part, if reasonably practicable,
each clause helping to interpret the other.” (Civ. Code, § 1641.) Doing so
7 We also find puzzling the trial court’s limitation that the Closes may
park their cars on the driveway so long as they do not obstruct the Swensons’
access to their property. This appears to imply that so long as the Swensons
can drive past the Closes’ vehicles to reach their home, the Closes’
encroachment is reasonable. But this would only be appropriate if the
Swensons had an easement entitling them to unobstructed passage across the
Closes’ land. Where, as here, the Swensons own the land, consistent or
prolonged parking on their driveway in and of itself deprives them of their
access to that portion of their property.
12
here suggests nothing more than a right-of-way for unobstructed ingress and
egress for a vehicle to drive “over and along and across” the easement
between the street and the garage. Parking, as a stationary activity, is not
included.
This construction is consistent with the Supreme Court’s interpretation
of a similar driveway easement in Dolske, supra, 58 Cal.2d 513. There, the
dominant tenement included “ ‘the right to use as a driveway in common with
grantor’ ” a strip of land along the edge of the lot. (Id. at p. 516.) After the
grant was made, a house was built on the lot that extended onto the grantor’s
property in several places. (Ibid.) Dolske subsequently acquired the house
and “ ‘[a]lso [the] right to use as a driveway’ the 10 by 128-foot strip adjoining
her easterly property line, ‘Together with the tenements, hereditaments, and
appurtenances whatsoever to the same belonging or in anywise
appertaining.’ ” (Ibid.) Gormely then acquired the grantor’s property and
constructed a fence along the property line with breaks to accommodate
Dolske’s encroachments and garage. (Id. at p. 517.)
Dolske sued to enjoin Gormley from obstructing the driveway with the
fence, and Gormely cross-complained seeking removal of the encroaching
portions of Dolske’s home. (Dolske, supra, 58 Cal.2d at p. 517.) Following a
trial, the court concluded the fence did not unreasonably interfere with
Dolske’s enjoyment of the driveway easement and decreed that Dolske must
remove all encroachments. (Id. at pp. 517–518.) On appeal, Dolske
contended she had the right to use the driveway for pedestrian access as well
as general maintenance of that side of her property. (Id. at p. 519.) In
rejecting this interpretation, the high court noted that “ ‘Driveway’ is defined
in Webster’s New World Dictionary (1951) page 443, as ‘a path leading from a
garage or house to the street, used especially by automobiles.’ ” (Ibid.)
13
Although acknowledging that driveways “are commonly used for multifarious
additional purposes,” the court emphasized that “ ‘The law is jealous of the
claim of an easement . . . and likewise of the extent of the rights claimed
under an instrument granting an easement. The rule is that every incident
of ownership not inconsistent with the easement and the enjoyment of the
same, is reserved to the grantor.’ ” (Ibid.) For this reason, the court found it
appropriate to narrowly construe the term “driveway” and affirm the trial
court’s interpretation of the easement as conveying only “a bare right to use
the easement way for ingress and egress of vehicular traffic.” (Id. at pp. 519,
521.) In so doing, the court further noted that the right to pedestrian and
maintenance access were not part of using land as a driveway. (Id. at p. 519.)
Similarly, the plain meaning of “an easement and right of way for
private driveway purposes over and along and across that portion of
Lot 2 . . .” implies nothing more than a way for ingress and egress of
vehicular traffic between the street and the garage of Lot 1. Given the
similarity of the facts of this case to those of the Dolske case, we also see no
reason to read in an allowance for pedestrian access where none is expressly
included in the easement.8 (See Pasadena, supra, 17 Cal.2d at p. 579
[“Where the easement is founded upon a grant, as here, only those interests
expressed in the grant and those necessarily incident thereto pass from the
owner of the fee”].) The Closes also have not cited any authority interpreting
driveway purposes as including pedestrian use. Rather, they rely only on
Streets and Highways Code section 5870, subdivision (b) which defines
8 The Swensons’ briefing makes somewhat contradictory statements
regarding whether they challenge the trial court’s finding that the easement
allows pedestrian access. But because they appear to dispute the trial court’s
conclusion that unrestricted pedestrian use by the dominant tenement is
allowed, we interpret the easement de novo on this issue as well.
14
“Driveway” as “a paved portion of a public street providing an unobstructed
passage from the roadway to an offstreet area used for driving, servicing,
parking, or otherwise accommodating motor vehicles.” This definition
appears to apply only to public, not private, driveways and does not include
pedestrian uses.
Although driveways often are used for many of the additional purposes
the Closes assert (e.g., parking, sports, storage, and entertainment), the
Closes did not purchase fee ownership in a driveway. Further, they choose
not to use their garage for parking,9 and they opted not to install a walkway
from the street through “the jungle” to their front door, but those choices do
not justify depriving the Swensons of their right to use their own land. The
Closes have only a right-of-way over a driveway and, because “the law is
jealous of the claim of an easement,” we must construe unambiguous
easement language as reserving to the servient tenement owners, here the
Swensons, “every incident of ownership not inconsistent with the easement
and the enjoyment of the same.” (Dolske, supra, 58 Cal.2d at p. 519.)10
We therefore conclude the trial court erred in interpreting the
easement as including parking or pedestrian access.
9 Carol stated in a request for admission that her garage was “used only
for storage and tools, cleaning supplies, laundry, [and] hanging up laundry.”
She further admitted that the garage door opener ran out of batteries, and
she never replaced them or used the garage door opener.
10 Although the trial court declined to make a specific finding as to
whether the easement allowed the Closes to place personal property on the
easement, the placement of personal items on the driveway (beyond the need
to briefly put something down incident to driving between the garage and the
street) would be inconsistent with our interpretation of the easement.
15
II.
The Trial Court Abused Its Discretion in Denying Injunctive Relief
If we construe the easement in their favor, the Swensons contend the
trial court’s denial of injunctive relief must be reversed because the refusal
was predicated on the court’s finding that the Closes had not violated the
easement. They further argue that, without an injunction, the Closes will
continue to park on their property and seek to expand their easement by
prescription.
We review a decision denying a request for an injunction for abuse of
discretion. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 849–850 (Salazar)
[“ ‘ “It is a rule so universally followed and so often stated as to need only to
be referred to that granting, denial, dissolving or refusing to dissolve a
permanent or preliminary injunction rests in the sound discretion of the trial
court upon a consideration of all the particular circumstances of each
individual case” ’ and ‘will not be modified or dissolved on appeal except for
an abuse of discretion’ ”].) “The exercise of discretion must be supported by
the evidence and, ‘to the extent the trial court had to review the evidence to
resolve disputed factual issues, and draw inferences from the presented facts,
[we] review such factual findings under a substantial evidence standard.’ ”
(Horsford v. Board of Trustees of California State University (2005) 132
Cal.App.4th 359, 390 (Horsford).)
In this case, the trial court said it considered “two interrelated
questions” in evaluating the injunction11 request: (1) whether the Swensons
11 The trial court referred to it as a preliminary injunction, but the
Swensons request only an injunction in their first amended complaint. Given
that the proceeding was the final trial of the matter, it does not appear the
Swensons were seeking only a preliminary ruling pending a later proceeding.
16
were likely to suffer greater injury from a denial of the injunction than the
Closes were likely to suffer from its grant; and (2) whether there was a
reasonable probability that the Swensons would prevail on the merits.
Ultimately, the trial court indicated that it was “not persuaded that [the
Swensons] have satisfied their burden of demonstrating that the balance of
harms weighs in favor of injunctive relief at this time or, given the Court’s
above finding not to accept their interpretation of the driveway easement,
that they are (or will be) the prevailing parties.”
We conclude the trial court’s decision must be reversed because its
conclusion as to both elements was based upon its incorrect interpretation of
the easement. Under our construction of the easement, the Swensons are the
prevailing parties, so the trial court’s determination to the contrary was
error. Likewise, the trial court’s balancing of the harms is not supported by
substantial evidence because the harms would be weighed quite differently
when the Closes are viewed as routinely exceeding the scope of their rights
under the easement.12 Accordingly, in view of our interpretation of the
easement, the trial court’s exercise of discretion was not based on substantial
evidence. (Horsford, supra, 132 Cal.App.4th at p. 390.) We therefore
conclude the trial court abused its discretion in denying the Swensons’
request for injunctive relief. (Salazar, supra, 9 Cal.4th at pp. 849–850.)
The question then is whether we may decide the injunction issue on the
record before us or whether remand for development of the record is
necessary. “ ‘A permanent injunction is a determination on the merits that a
plaintiff has prevailed on a cause of action . . . against a defendant and that
12 And again, such a weighing is applicable to the decision whether to
grant a preliminary injunction, not a permanent injunction. (See Robbins v.
Superior Court (1985) 38 Cal.3d 199, 206.)
17
equitable relief is appropriate.’ ” (Horsford, supra, 132 Cal.App.4th at
p. 390.) “It is well settled that an injunction is an equitable remedy available
generally in the protection or to prevent the invasion of a legal right. In a
case such as the one before us the right and its actual or threatened invasion
must be shown.” (Meridian, Ltd., v. San Francisco (1939) 13 Cal.2d 424,
447.) A court may grant an injunction when, among other circumstances,
“it appears by the complaint that the plaintiff is entitled to the relief
demanded, and the relief, or any part thereof, consists in restraining the
commission or continuance of the act complained of, either for a limited
period or perpetually” or “[w]hen it appears, during the litigation, that a
party to the action is doing, or threatens, or is about to do, or is procuring or
suffering to be done, some act in violation of the rights of another party to the
action respecting the subject of the action, and tending to render the
judgment ineffectual.” (Code Civ. Proc., § 526, subd. (a)(1) & (3).) Indeed, an
injunction against continuing trespass to land is proper, even in the absence
of a showing of substantial damages, where the ongoing invasion threatens
creation of a prescriptive right and repetitive suits for damages would not
provide an adequate remedy. (Mendelson v. McCabe (1904) 144 Cal. 230,
232–233; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352 [confirming
continued applicability of injunctive relief principles set forth in Mendelson];
see also City of South Pasadena v. Department of Transportation (1994) 29
Cal.App.4th 1280, 1293 [a permanent injunction is warranted when the party
seeking relief demonstrates the inadequacy of other legal remedies].)
Here, we have established that the Swensons have a legal right to
unobstructed use of the entirety of the driveway, limited only by the Closes’
right to pass “over and along and across it” in a vehicle to reach their garage
or the street. The Closes’ pleadings, briefing, and statements at trial indicate
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they attempted to adversely possess part of the easement and continue to
assert a prescriptive right to exclusively use an undefined portion of the
driveway. Thus, it is apparent that, unless enjoined, nothing prevents the
Closes from continuing to park on and otherwise occupy some portion of the
easement in front of their driveway in an open, notorious, continuous, and
adverse manner. Therefore, entering judgment in the Swensons’ favor is
unlikely to provide effective relief unless accompanied by an injunction.
(Code Civ. Proc., § 526, subd. (a)(3).)
It is not clear from the record why the Closes do not park in their
garage, but we find no evidence indicating it could not be used for vehicle
parking. As for pedestrian traffic, Carol testified that she did not construct
steps up from the street to the front door because she did not have the money
to do it and did not want to do so. While neither the parties nor the trial
court considered whether an equitable easement was warranted under these
circumstances, rightly so because it is plain from the record that the
encroachments by the Closes were not innocent (Hansen v. Sandridge
Partners, L.P. (2018) 22 Cal.App.5th 1020, 1027), it is not clear whether entry
of an injunction of immediate effect would wholly deprive the Closes of safe
access to their home. Accordingly, we remand for consideration of whether a
delay of no more than a month in implementing the injunction is appropriate
so that the Closes may clean out their garage, replace the batteries for the
garage door remote, or make other necessary changes.
III.
Remaining Contentions
The Swensons request that we remand their trespass cause of action so
that the trial court can assess damages. They argue that the trial court was
factually incorrect in indicating that their permission negated their trespass
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claim because they only sought trespass damages for the period after they
sent the April 2020 letter revoking permission.
We decline to provide the requested relief because, even if the trial
court erred in this regard or would be compelled to find otherwise in light of
our interpretation of the easement, the trial court also found a failure of proof
on the element of harm.13 In particular, the court was not persuaded the
Closes have disrupted the Swensons’ “views of the bay and ocean.”
“ ‘ “[W]here the issue on appeal turns on a failure of proof at trial, the
question for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law.” [Citation.] Specifically,
we ask “whether the appellant’s evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave no room for
a judicial determination that it was insufficient to support a finding.’ ” ’
[Citation.] This is ‘an onerous standard’ [citation] and one that is ‘almost
impossible’ for a losing [party] to meet, because unless the trier of fact made
specific factual findings in favor of the losing [party], we presume the trier of
fact concluded that ‘[the party’s] evidence lacks sufficient weight and
credibility to carry the burden of proof.’ ” (Estes v. Eaton Corp. (2020) 51
Cal.App.5th 636, 651.) Here, in addition to hearing testimony from all four
parties, the trial court reviewed photographic exhibits showing the view from
the Swensons’ property over the Closes’ property. It may reasonably have
interpreted the photographs that included cars parked by the Closes’ home as
13 “ ‘Trespass is an unlawful interference with possession of property.’
[Citation] The elements of trespass are: (1) the plaintiff’s ownership or control
of the property; (2) the defendant’s intentional, reckless, or negligent entry
onto the property; (3) lack of permission for the entry or acts in excess of
permission; (4) harm; and (5) the defendant’s conduct was a substantial
factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc.
(2017) 17 Cal.App.5th 245, 261–262; see CACI No. 2000.)
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contradicting the Swensons’ claim that the vehicles disrupted their view.
Accordingly, we cannot find the evidence compels a finding in the Swensons’
favor as a matter of law or that remand for a determination of damages is
warranted.
As for the Swensons’ nuisance cause of action, the trial court concluded
that they had not carried their burden of proof and the Swensons did not
challenge this finding on appeal. We therefore affirm the judgment as to the
private nuisance cause of action.
Finally, the Closes request that, if we overturn the trial court’s ruling
on the Swensons’ quiet title cause of action, we modify the prescriptive
easement decision as well or remand for further findings on that issue. They
argue that the trial court’s SOD implies a finding that they proved a
prescriptive easement equal to the rights afforded by the trial court’s
interpretation of the easement. We decline the Closes invitation because
they did not file a cross-appeal challenging the trial court’s ruling on their
prescriptive easement claim. (Preserve Poway v. City of Poway (2016) 245
Cal.App.4th 560, 585 [“ ‘To obtain affirmative relief by way of appeal,
respondents must themselves file a notice of appeal and become cross-
appellants’ ”].)
DISPOSITION
The judgment is reversed as to the Swensons’ quiet title cause of action
and requests for declaratory and injunctive relief. The matter is remanded
with instructions to: (1) treat the easement as affording nothing more than a
way for ingress and egress of vehicular traffic between the street and the
garage of Lot 1, with no right to park, walk, or store items on the easement,
and (2) issue an injunction consistent with this opinion. The trial court may
allow a delay of no more than a month in issuing the injunction in
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consideration of the time it may take the Closes to ready their garage for
vehicle parking or otherwise arrange for alternate access to their home. In
all other respects, we affirm the judgment. The Swensons are entitled to
their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
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