Filed 1/5/18 Atallah v. Patel CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


ADEL ATALLAH,
Plaintiff and Respondent,
v.
ANIL PATEL AND SUNITA PATEL,
Defendants and Appellants.

A147184

(Sonoma County
Super. Ct. No. SCV-258046)

Appellants Anil and Sunita Patel own and operate a hotel in Santa Rosa. They also own a parking lot that is located across the street from the hotel in between two commercial properties owned by respondent Adel Atallah. For many years, the parties’ predecessors shared the use of the parking lot in question. However, in November 2015, appellants reconfigured the parking lot to limit its usage to hotel guests, and respondent filed this lawsuit claiming a prescriptive easement. The trial court issued a preliminary injunction ordering appellants to remove the parking restrictions and enjoining them from interfering with respondent’s use of their lot for parking. We find no abuse of discretion and therefore will affirm the order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants’ property consists of three parcels identified as Sonoma County Assessor’s Parcel Number (“APN”) 010-014-012 (“parcel 12”), APN 010-014-013 (“parcel 13”), and APN 010-011-030 (“parcel 30”) (collectively the “hotel property”). The hotel building sits on parcels 12 and 13. There is also some on-site parking adjacent to the hotel building. The parking lot that is the subject of this lawsuit sits on parcel 30, which is across the street from the hotel building and sandwiched in between two parcels owned by respondent, APN 010-011-033/034 (“parcel 33/34”) and APN 010-011-029 (“parcel 29”) (collectively the “restaurant property”). Parcel 33/34 contains a restaurant building and an adjacent parking lot. Parcel 29 contains a commercial rental space and four parking spaces. The current tenant of parcel 29 is an electronic cigarette store called Digital Ciggz.
The hotel and restaurant businesses have been at these locations for decades. On March 9, 1967, then-owner of the hotel property Travelodge of Illinois, Inc. entered into a fifty-five year land lease with The Travelodge Corporation. The land lease gave exclusive possession of the premises to the lessee so long as it faithfully performed its obligations thereunder. The lessee would surrender possession upon either the expiration of the lease term or pursuant to a “Special Option to Terminate,” which was exercised by the surrender of the premises and execution of a quit claim deed. Over the years, the land lease was assigned to various lessees without interruption. In 2001, the land lease was amended to extend the lease term to seventy-five years. In 2003, the land lease and 2001 amendment were assigned to Nitin and Sharmila Patel (the “Patel lessees”) who operated a Travelodge franchise for several years.
Fee title to the hotel property was also transferred several times over the years and eventually sold to appellants in August 2010. In May 2011, appellants issued a 30-day notice to quit the premises after the Patel lessees fell back on their rent. On October 25, 2011, the Patel lessees executed a quitclaim deed of the land lease and 2001 amendment to appellants, who then took possession of the hotel property, including parcel 30, for the first time. In the summer of 2015, appellants made a large cash investment to renovate and rebrand the Travelodge motel as Hotel Azura.
According to respondent, the restaurant business began its operations in or around 1965. Respondent purchased the restaurant in 1986 and operated under the name Adel’s Restaurant (“Adel’s”). In 1993, respondent purchased the restaurant property as well. Respondent retired from management of Adel’s in 2001, and his brother Emad Atallah took over in 2004, followed by their brother, Mike Atallah in 2006.
The parties agree that the hotel and restaurant businesses at this location have jointly used each other’s parking lots, including parcel 30, for many years. However, they dispute certain aspects about the history of this shared use, including whether respondent’s recent use of parcel 30 was permissive or hostile.
After the hotel’s renovation in the summer of 2015, the hotel’s business steadily improved, and its parking needs increased as well. In late August 2015, appellant Anil Patel informed respondent that appellants would be terminating their agreement for shared parking on parcel 30. On November 4, 2015, appellants executed and recorded a “Notice of Revocation of License Agreement.” On November 11, 2015, appellants repaved and restriped parcel 30 to indicate that it was for hotel use only. Thereafter, appellants put up signs indicating that unauthorized vehicles would be towed, as well as metal posts to impede the use of the parking spaces by employees and customers of the restaurant and e-cigarette business.
Respondent filed a verified complaint against appellants for injunctive relief, quiet title to easement, declaratory relief, and damages. He alleged that since the original opening of the first restaurant in 1965 and continuing to the present, customers and employees of the restaurant have parked on all three parcels of the hotel property, including parcel 30, continuously, openly, obviously and without permission, claiming a right to do so. Respondent alleged that he owned an easement for parking and ingress and egress over parcel 30, and appellants unreasonably interfered with his easement by installing a taped barrier, cement traffic stops, and signage asserting that parking on parcel 30 was for hotel guests only.
On November 24, 2015, respondent filed an ex parte application for order to show cause, temporary restraining order and preliminary injunction. The trial court granted the application, ordered appellants to appear on December 9, 2015, and set a briefing schedule for opposition and reply papers. The parties filed their opposition and reply papers, which included written evidentiary objections. On December 9, 2015, the hearing was held on the order to show cause. At the conclusion of the hearing, the trial court orally granted the preliminary injunction, citing the need to maintain the status quo and the potential harm to respondent without the injunction relative to the lack of harm to appellants with the injunction. On December 29, 2015, the trial court entered the preliminary injunction order, finding “[t]he evidence indicates that [respondent] has a prescriptive easement over [appellants’] property.” The trial court ordered appellants to remove and not replace any barriers that blocked access to parcel 30, including concrete curb stops or driving lanes which purport to designate or restrict parking to hotel guests, as well as any signs threatening to have vehicles towed. The trial court also enjoined appellants from taking any other action which would interfere with or prevent respondent’s use of parcel 30 for parking by the customers and employees of respondent’s businesses.
On December 30, 2015, appellants filed a timely notice of appeal.
II. DISCUSSION
A. Standard of Review
“In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. [Citation.]” (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402 (14859 Moorpark Homeowner’s Assn.).) “The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction. [Citation.]” (Butt v. State of California (1992) 4 Cal.4th 668, 678.)
“The determination whether to grant a preliminary injunction generally rests in the sound discretion of the trial court. [Citation.] ‘Discretion is abused when a court exceeds the bounds of reason or contravenes uncontradicted evidence. [Citation.]’ [Citation.]” (14859 Moorpark Homeowner’s Assn., supra, 63 Cal.App.4th at p. 1402.)
“In reviewing an order granting a preliminary injunction, we do not reweigh conflicting evidence or assess witness credibility, we defer to the trial court’s factual findings if substantial evidence supports them, and we view the evidence in the light most favorable to the court’s ruling. [Citation.] To the extent the plaintiff’s likelihood of prevailing on the merits turns on legal rather than factual questions, however, our review is de novo. [Citation.]” (City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291, 298–299.)
B. Likelihood of Success on the Merits
The sole contention raised in this appeal is that the trial court erred as a matter of law in finding respondent likely to prevail on his claim of prescriptive easement. Appellants do not challenge the trial court’s finding with regard to the balance of harms.
1. Prescriptive Easement
To establish a prescriptive easement, “[t]he party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years. [Citations.]” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; see also Civ. Code, § 1007 and Code Civ. Proc., § 321.) The periods of time within which different successive parties have asserted a prescriptive right may be “tacked” together to satisfy the statutory period. (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 435.)
Appellants argue that respondent cannot prevail as a matter of law because no prescriptive easement could be obtained against their reversionary interests as fee owners based on any adverse use that occurred during the leasehold. Appellants argue that since they and their predecessors were out of possession of parcel 30 during the entire term of the land lease and were legally unable to bring an action in trespass against any adverse use of parcel 30, no prescriptive easement could ripen against them. Appellants contend that any prescriptive easement that respondent may have obtained while appellants were out of possession would only be against the now-extinguished leasehold, and the period of adverse use since appellants took in possession in October 2011 until the filing of this lawsuit was eleven months short of the statutory five-year period to establish a prescriptive easement against them.
Appellants rely primarily on California Civil Code section 741 and Dieterich Internat. Truck Sales, Inc. v. J. S. & J. Services, Inc. (1992) 3 Cal.App.4th 1601 (Dieterich), where the court held that a prescriptive easement could not ripen against a landlord who was not in possession of the property and was legally unable to bring an action to prevent the plaintiff from gaining the easement by prescription. The Dieterich court held that its holding was “supported by Civil Code section 741 which explicitly recognizes that a future estate cannot be harmed during the pendency of the intervening estate. That is, the prescriptive period cannot commence until the future estate is vested. [Citation.]” (Dieterich, supra, 3 Cal.App.4th at p. 1610.) However, in King v. Wu (2013) 218 Cal.App.4th 1211 (King), the court distinguished the case from Dieterich because the fee owners in King were in actual and constructive possession of their property for certain periods during the adverse use. The court stated that “[i]f at any point during the adverse use an owner or a landlord has been in possession, including constructively at the expiration of a renewable lease, he or she could and should have taken action to interrupt such use.” (Id. at p. 1214, citing Gartlan v. C.A. Hooper (1918) 177 Cal. 414, 428–429.)
After reviewing all of the evidence in the light most favorable to the ruling, we conclude there was sufficient evidence to support the trial court’s preliminary finding of a prescriptive easement based on the adverse uses of parcel 30 that occurred while the fee owners of the hotel property were in possession. In his verified complaint, respondent alleged that the restaurant had been in operation “[s]ince on or about 1965,” and that since the opening of the original restaurant and continuing to the present, customers and employees of the restaurant have parked on all three parcels, including parcel 30, continuously, openly, obviously, and without permission, claiming a right to do so. Respondent also stated in his moving and reply declarations that the parking areas on parcels 33/34, 30, and 29 were treated as a common parking lot since the opening of the restaurant in 1965, and that “our jointly used parking lot” was used by respondent’s predecessors since 1965. There was no evidence of a lease of the hotel property prior to March 9, 1967. Based on this evidence, combined with the evidence of more than four years of respondent’s allegedly adverse use after appellants took possession in October 2011, the trial court could have reasonably concluded that Dieterich was not controlling, and respondent was reasonably likely to prevail on his claim of a prescriptive easement against appellants.
Appellants attack respondent’s declaration as self-serving and based on hearsay and conclusions. However, appellants did not make timely and specific objections to this portion of the evidence below. Thus, they forfeited the argument that the trial court’s decision is reversible by reason of the erroneous admission of evidence. (See Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1340, citing Evid. Code, § 353, subd. (a).) Even incompetent statements in a declaration “become competent evidence when admitted without objection.” (Vartanian v. Croll (1953) 117 Cal.App.2d 639, 648.) Furthermore, appellants never argued below that the restaurant did not exist in 1965. In fact, they submitted as an exhibit a letter from their counsel stating the restaurant “was not built until 1965,” which suggested the restaurant’s existence in 1965. On this limited record, it was within the bounds of reason for the trial court to conclude that the restaurant was built, operating, and using parcel 30 for customer and employee parking prior to the 1967 leasehold, thereby distinguishing the case from Dieterich.
Appellants contend the motel was not in existence in 1965 since the 1967 land lease referred to the “construction” of improvements on the hotel property. Even so, this would not have ruled out the restaurant’s adverse use of parcel 30 prior to the motel’s construction. So long as the restaurant was operating in 1965 and using parcel 30 for customer and employee parking openly and without permission, this was an adverse use of the property while the fee owner was in possession.
Appellants maintain there was no active use of parcel 30 by the restaurant in 1965 and 1966 because the parties’ predecessors only saw the need to establish a parking easement over the restaurant property, not the hotel property. In support, appellants cite a Joint Use Easement for parking over the westerly 22 feet of the restaurant’s property, which was granted by respondent’s predecessor to appellants’ predecessors in 1965 and 1966. However, appellants’ interpretation of this evidence conflicts with respondent’s evidence that the “jointly used parking lot” containing parcel 30 was used by his predecessors since 1965. Where, as here, the evidence is in conflict, we must interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order. (Hilb, Rogal & Hamilton Ins. Services v. Robb (1995) 33 Cal.App.4th 1812, 1820.)
Appellants argue that to allow the uses of parcel 30 before and after the leasehold to support the establishment of a prescriptive easement would be akin to impermissibly expanding the scope of a prescriptive easement to include a later use that is different in kind. Appellants contend that even if the pre-leasehold use of parcel 30 constituted an easement, its subsequent change in scope after the hotel was built would have been an improper expansion of the original use, requiring its own separate period of prescription.
We find this analogy to be inapt for several reasons. First, appellants point to no new uses by respondent that increased the burden to the servient tenement. It was appellants’ predecessor who constructed the motel, but appellants cite no authority supporting the position that actions by the owner of a servient tenement increasing its burdens relative to an existing easement will trigger a new prescriptive period. This would be tantamount to terminating the existing easement, but “[a]n easement cannot be terminated by the need, necessity, or convenience of the owner of the servient tenement.” (4 Miller & Starr, Cal. Real Estate Law (4th ed. 2017) § 15:86, p. 15-310, citing Keith v. Superior Court (1972) 26 Cal.App.3d 521.)
Furthermore, appellants’ analysis is incomplete because the law permits increases in the scope of use of an easement where “the change is one of degree, not kind.” (Cushman v. Davis (1978) 80 Cal.App.3d 731, 735–736.) “ ‘ “In ascertaining whether a particular use is permissible under an easement appurtenant created by prescription there must be considered . . . the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement.” ’ ” (Id. at p. 736.) “ ‘A normal development is one which accords with common experience. It is, therefore, one which might reasonably have been foretold. Such use, however, must be consistent with the pattern formed by the adverse use by which the prescriptive easement was created.’ ” (Hill v. Allan (1968) 259 Cal.App.2d 470, 484, original italics omitted.)
Although the leasehold at issue spanned many decades, we ascertain nothing fundamentally different about the nature of the respective businesses and their uses of parcel 30 between 1965 and the present day that “ ‘would have provoked the owner of the land being used to interrupt the use had the increase occurred’ ” in 1965. (Cushman, supra, 80 Cal.App.3d at p. 736.) The two businesses have consistently remained commercial establishments providing the same kinds of services to the public that they always have, with concomitant needs for customer parking both then and now. Appellants point out that there is a substantial difference between owning a parking lot with no hotel versus owning one with a completed hotel. However, the evidence shows that even back in 1965, appellants’ predecessors were planning to build a motel on their property, and to that end, they secured additional guest parking through the 1965 and 1966 Joint Use Easements for “motor vehicle parking spaces for mutual use of the customers, patrons or guests of any motel, motor hotel or hotel” over the restaurant property. Any increase over time in the parking needs of these businesses was a reasonably foreseeable change in degree, not a “radical” change in kind. (See Gaither v. Gaither (1958) 165 Cal.App.2d 782, 785–786 [neighbors’ shared road for ingress and egress to homes and farm was substantially changed by neighbor’s operation of trailer park].) Thus, we see nothing here akin to an impermissible expansion of scope of an earlier use.
For these reasons, we conclude the trial court did not abuse its discretion in finding that respondent was likely to prevail on his claim of a prescriptive easement. In light of this conclusion, we need not consider respondent’s alternative theory of irrevocable license.
C. Appellants Did Not Demonstrate Prejudice from the Trial Court’s Failure to Rule on Their Evidentiary Objections
The trial court did not make express rulings on the parties’ evidentiary objections. On appeal, appellants renew their objections to respondent’s initial and reply evidence. However, appellants failed to provide any argument or analysis demonstrating how they were prejudiced by the trial court’s failure to rule on their evidentiary objections. “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10, see also Evid. Code, § 353, subd. (b).) “Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant.” (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853–854.)
Even if we assume the trial court implicitly overruled appellants’ objections, we find no abuse of discretion or miscarriage of justice in the admission of the challenged evidence. Appellants made several relevance objections to respondent’s evidence that restaurant customers and employees parked on parcels 12 and 13 of the hotel property. It appears the challenged evidence was offered to prove that permissive parking on the hotel property was limited to parcels 12 and 13, not parcel 30, which respondent claims was used without permission and under a claim of right. Thus, the evidence was relevant to an essential element for establishing a prescriptive easement.
Appellants also objected to respondent’s evidence of interim harm found in portions of respondent’s moving declaration and the reply declaration of Michael Mullins, owner and operator of Digital Ciggz. Appellants argued that this evidence was not relevant to show irreparable harm to respondent. However, as respondent argued below, erosion of customer and tenant goodwill caused by the acts to be enjoined may support a finding of irreparable harm. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1185–1186.)
Appellants also objected to portions of respondent’s reply declaration regarding his brothers’ management of the restaurant, the restaurant’s hostile use of parcel 30, anticipated statements of other witnesses (i.e., Mr. Mullins, Mike Atallah, Alexis Samuels), customer complaints that were made to respondent about appellant’s changes to parcel 30, and respondent’s prelitigation communications. Appellants objected on the grounds of lack of personal knowledge and hearsay. We see no abuse of discretion or miscarriage of justice in the admission of this evidence. Most of the alleged personal knowledge deficiencies were cured by respondent’s concurrent submission of declarations from Mr. Mullins, Mike Atallah, and Alexis Samuels. As discussed above, appellants’ objections to the Mullins declaration were not well-taken, and Mike Atallah, as manager of Adel’s, adequately established his personal knowledge of the matters set forth in paragraph 6 of his declaration. The hearsay objections, even if well-taken, were not dispositive because the loss of customer goodwill and the details of the hotel property’s location and ownership were already established elsewhere in the record. Respondent’s prelitigation communications were not material to any issue in this appeal.
Appellants also objected that several declarations submitted by respondent were improperly postdated. Most of these declarations were offered to prove that permissive parking on the hotel property was only for parcels 12 and 13, not parcel 30, while the Samuels declaration contained photographs purporting to show the availability of on-site parking on parcels 12 and 13. Even if these declarations should have been excluded, the same facts were established by competent evidence elsewhere in the record, such as in the declarations of respondent and Mike Atallah.
Finally, appellants objected to respondent’s request for judicial notice of the minutes from the November 19, 1964 City of Santa Rosa Board of Zoning Adjustments Regular Meeting regarding the design review for Adel’s. Appellants argued the document was incomplete and unintelligible without the associated plans and maps submitted to the planning commission. Once again, we find no prejudice to appellants from the failure to exclude this evidence, as the restaurant’s existence and shared use of parcel 30 since 1965 was established elsewhere in the record.
III. DISPOSITION
The order granting respondent’s motion for preliminary injunction is affirmed.






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REARDON, ACTING P. J.


We concur:


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RIVERA, J.


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STREETER, J.