Filed 5/1/17 Shaw Road Properties v. Mitchell 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


SHAW ROAD PROPERTIES, LLC etc.,
Plaintiff, Cross-Defendant, and Respondent,
v.
GEORGE M. MITCHELL et al.,
Defendants, Cross-Complainants, and Appellants.

A145995

(San Mateo County
Super. Ct. No. CIV 522839)


I.
INTRODUCTION
This case involves two properties in South San Francisco: one owned by respondent Shaw Road Properties, LLC (referred to herein as Shaw Properties or the Shaw Property), and one owned by appellants the George Mitchell family trust and the Jaffe family (Mitchell Property). The properties share a common driveway. Shaw Properties uses the driveway for deliveries to its businesses, but in 2013 appellant George Mitchell built a fence cutting the driveway area in half. Shaw Properties sought a declaration that it had established an easement to the common driveway and an order to remove the fence. After a four-day trial, the court granted a prescriptive easement, and ordered the fence to be removed.
Appellants argue there was no substantial evidence to support the trial court’s findings that a prescriptive easement had been established, and that the extent of the easement imposed was unreasonable. They also argue the easement has been extinguished by respondent’s inability to control the use of appellants’ property. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
On July 16, 2013, respondent filed a complaint with five causes of action: (1) quiet title, (2) preliminary and permanent injunctions, (3) interference with easement, (4) declaratory relief, and (5) nuisance. The complaint sought an easement to the driveway and an injunction to prevent interference with the easement.
Appellants filed a cross-complaint seeking: (1) quiet title, (2) trespass, (3) nuisance, (4) intentional interference with contract, (5) preliminary and permanent injunctions, and (6) declaratory relief.
Respondent also sought a temporary restraining order and preliminary injunction to have the fence removed.
The court held a bench trial in March 2015, and issued a final decision on June 18, 2015.
B. Evidence at Trial
The Mitchell Property encompasses 344, 348, and 352 Shaw Road, and is owned by George M. Mitchell and Ann T. Mitchell as Trustees of the George M. Mitchell Family 1994 Living Revocable Trust dated December 15, 1994, and Holly Jaffe and Bonita Dawn Berens. The Shaw Property, 360 Shaw Road, is owned by Shaw Road Properties, LLC, which in turn is owned by William Esposto and Richard Cresci. They operate several businesses at the Shaw Property including Pacific Coast Baking Co., Inc., Esposto’s, Inc. (a catering business), Home Made Ravioli Co., Inc., and Your Party Rental Company.
A 110-foot driveway runs between the two properties, with 50 feet of the driveway belonging to the Shaw Property, and 60 feet belonging to the Mitchell Property.
Esposto and Cresci bought the Shaw Property in 2004. The real estate agents for the sale were Marshall Hydorn and Jason Cranston. They told Esposto and Cresci that the property line approximately followed the drainage swale that ran down the middle of the driveway. Hydorn assured them that the driveway was accessible for deliveries, and it was a shared driveway. There was disputed testimony at trial about whether Hydorn and Cranston specifically told Esposto or Cresci there was an easement to use the portion of the driveway that was on the Mitchell Property.
Pacific Coast Baking Company opened at the Shaw Property in mid-2005. Your Party Rental Company and Esposto’s, Inc. opened sometime in 2006, and Home Made Ravioli moved from its previous location to the Shaw Road Property in January 2007. Pacific Coast Baking Company received eight to ten deliveries per week and Home Made Ravioli and Your Party Rental received four to five truck deliveries per day. The businesses also had their own trucks that made deliveries six days per week. The delivery trucks would make a three-point turn, crossing the property line on the driveway, in order to back into the loading docks at the Shaw Property. Delivery trucks crossed over the property line onto the Mitchell Property half of the driveway on a daily basis. The large trucks would sometimes have their cabs parked over the property line while the trucks were being unloaded.
The Shaw Property owners never asked permission, and Mitchell never gave his permission for use of the driveway for deliveries.
While Mitchell was the property owner, he rented the eight units of his property to various tenants. Mitchell was also the property manager. Mitchell came to the property whenever a tenant moved out, or to address specific problems raised by tenants. Mitchell estimated that he visited the property five to ten times per year from 2004 to 2012. He recalled seeing “trucks coming and going all the time.”
Mitchell hired Hydorn and Cranston as leasing agents for the property. Cranston testified that he visited the property between 25 to 50 times in the period between 2005 and 2013. Cranston saw “normal delivery activity” at the Shaw Property. He saw trucks on both sides of the property line because they would have to maneuver to back into the Shaw Property loading docks. He saw trucks with cabs parked over the boundary line, and on at least two occasions he saw trucks blocking the entire driveway. Cranston testified that he never discussed an easement with Cresci or Esposto before they purchased the property.
The other real estate agent, Hydorn, testified that he visited the property a minimum of once per week from 2005 through 2012. He similarly saw trucks using the driveway and crossing the property line to back up to the loading docks.
Shao “Peter” Fang was a tenant of the Mitchell Property from 2007 to 2014. Fang saw Mitchell at the property about every two to four weeks. Fang first testified that trucks blocked the driveway “all of the time” from when he first moved in. He mentioned it to Mitchell during his first year as a tenant, but it became more of a problem over time. He then testified that he remembered complaining about it to Mitchell beginning in 2010. Fang was recalled as a witness by appellants the day after he presented this testimony, and he partially recanted his earlier testimony by later stating that he originally complained to Mitchell about the trucks blocking the driveway in 2012. He did, however, consistently testify that trucks blocking the driveway was a regular occurrence during his seven years as a tenant. He said he repeatedly complained to the truck drivers.
In September 2012, Mitchell was contacted by one of the tenants who complained about 75-foot trucks making deliveries to the Shaw Property and blocking the shared driveway. Mitchell drove to the property and saw a truck blocking the driveway, and several of his tenants waiting in their cars to access the property.
During that same time period in 2012, Mitchell entered into negotiations to sell the property to Blueprint Studio Trends, Inc. (Blueprint). Blueprint requested installation of a fence along the driveway as a prerequisite to its purchase. Blueprint executed a lease and a purchase agreement to buy the Mitchell Property.
In June 2013, Mitchell erected a fence down the driveway. The distance between the fence and the Shaw Property is approximately 40 feet, which provides the delivery trucks significantly less room in which to maneuver. The Shaw Property thereafter could not receive direct deliveries from 75-foot trucks. Instead, the trucks must offload on the street and the employees have to drive a forklift between the truck and the loading docks. Smaller trucks can access the Shaw Property but cannot back into the loading docks.
C. Posttrial Decision
The trial court found respondent had established the right to a prescriptive easement by clear and convincing evidence. The court listed the elements as follows: (1) open and notorious use of the property, (2) hostile to the true owners, (3) under a claim of right, and (4) continuous and uninterrupted for a period of five years.
The court found the use of the driveway was open and notorious, and Mitchell’s allegation he had no knowledge of the use of the driveway for delivery trucks was not credible. Mitchell had actual notice due to his numerous personal visits to the property. In addition, the court found that the use of the driveway was “so obvious as to constitute implied notice.” Further, Mitchell’s real estate agents observed the use of the driveway and, under Guerra v. Packard (1965) 236 Cal.App.2d 272, 289 290 (Guerra), their knowledge was imputed to the owners.
The court found the use was hostile to the true owners. The court rejected Mitchell’s argument that Shaw Properties’ use was a “neighborly accommodation.” A claim of right means that the claimant’s use was without the landowner’s permission, and there was no dispute that Mitchell did not give permission. Further, Shaw Properties believed it had acquired an express easement for use of the driveway.
As to the timing, the court found that Shaw Properties began using the driveway in 2004, and trucks consistently began making deliveries in 2005. Mitchell took no steps during the seven-year period between 2005 and 2012 to limit use of the driveway. The adverse use of the property occurred for more than five years until Mitchell erected the fence in 2013.
The court found Shaw Properties had established a prescriptive easement as follows: “[T]o use the Mitchell Property driveway for the limited purpose of allowing delivery trucks to safely enter and exit the Shaw [P]roperty from Shaw Road and to maneuver onto the Mitchell Property for the purpose of being able to make an appropriate three[-]point turn so as to enable trucks loading and unloading product to back into the loading dock or other receiving area on the Shaw Property.”
The court limited the easement so as not to allow Shaw Properties to park cars or trucks on the Mitchell Property, or to engage in activities that blocked use of the Mitchell Property for more than a minimal period of time.
The court also found that Shaw Properties had not overburdened the easement, which would lead to its extinguishment. The court noted the scope of the easement required Shaw Properties to be responsible for developing a system to regulate the deliveries to its property. This included a responsibility on the part of Shaw Properties to patrol and control its employees, contractors and guests so they do not park on the Mitchell Property, only allow trucks to cross the property line when unloading or loading, and not to use the Mitchell Property except as necessary for three-point turns and for immediate unloading and reloading. The court warned that if Shaw Properties cannot police the activity, the easement was subject to extinguishment.
In addition, the court enjoined Mitchell from placing a fence or barrier on the property dividing line that would interfere with Shaw Properties’ easement rights. Mitchell was ordered to remove the existing fence immediately.
The court retained jurisdiction for one year, until June 1, 2016, to enforce the terms of the judgment including the removal of the fence, and to determine if the prescriptive easement has been extinguished by over-burdening.
III.
DISCUSSION
A. Legal Standards
Whether the elements of a prescriptive easement have been established is a question of fact, which we review under the substantial evidence rule. (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449 (Felgenhauer).) “ ‘In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]’ [Citation.]” (Ibid.)
Our Supreme Court set forth the elements necessary to establish a prescriptive easement in Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564 (Warsaw). “The 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.]” (Id. at p. 570.)
B. Appellants Had Actual or Constructive Knowledge of Respondent’s Use of the Driveway

Appellants’ primary argument is that Mitchell did not have knowledge of respondent’s use of the driveway for an uninterrupted period of five years. Appellants argue both that Mitchell had no actual knowledge, and he had no imputed or constructive knowledge.
First, the evidence at trial supports a finding of actual knowledge. Mitchell testified he visited the property approximately 10 times per year from 2004 to 2012. He recalled seeing “trucks coming and going all of the time.” Fang testified that he saw Mitchell at the property every two to four weeks during the period he was a tenant (2007 2014.)
Appellants argue there was no evidence that on his visits Mitchell saw deliveries being made that blocked the driveway. Mitchell claimed the first time he learned of trucks blocking the driveway was when a tenant complained in September 2012. However, there was inconsistent testimony at trial about when Mitchell became aware of the adverse use. Fang testified that trucks blocked the driveway “all of the time” from when he first moved in. At first he testified that he mentioned it to Mitchell during his first year as a tenant (2007), but it became more of a problem over time. He then testified that he specifically remembered complaining about it to Mitchell beginning in 2010. Nevertheless, during his seven years as a tenant, having a truck block the driveway was a regular occurrence.
However, when he was later recalled as a witness, he partially recanted his testimony about when he originally complained to Mitchell about the trucks blocking the driveway. He reviewed a prior declaration he signed stating he first told Mitchell about the problem in 2012. Compounding the veracity of Fang’s testimony, on cross-examination Fang stated his trial testimony from the preceding day had been true, but he sometimes made mistakes.
The trial court found that Mitchell’s allegation of no knowledge of the use of the driveway for delivery trucks was not credible, concluding that Mitchell had actual notice due to his numerous personal visits to the property. Substantial evidence supports this finding.
Even if Mitchell was not aware of the driveway actually being blocked until 2012, the evidence supports the trial court’s alternative finding that the use of the driveway was “so obvious as to constitute implied notice.” Notice to appellants can be implied or inferred from respondent’s visible, open, and notorious use. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 709 (Applegate); 6 Miller & Starr, Cal. Real Estate (4th ed. 2016) § 15:34, p. 15-140 [“the adequate open, visible, and notorious use of the property raises an inference that the owner has either actual or constructive notice of the use”].) There was ample evidence at trial that respondent used the driveway continuously since at least 2007 for deliveries to and from its property. The trial testimony demonstrated consistent and regular deliveries on a daily basis since 2007. This open and visible use was sufficient to charge Mitchell with knowledge of the manner the easement was being used. (Wallace v. Whitmore (1941) 47 Cal.App.2d 369, 372.)
Additionally, the trial court found Mitchell’s real estate agents observed the use of the driveway and, under Guerra, supra, 236 Cal.App.2d at pages 289 290, their knowledge could be imputed to appellants.
Guerra held that knowledge may be “either actual or constructive, resulting from notice either express or implied. [Citation.]” (Guerra, supra, 236 Cal.App.2d at p. 289.) There, the plaintiffs used an access road across the defendants’ property to get to their ranch. (Id. at p. 278.) The various forepersons who controlled and managed the ranch for the owners were aware of plaintiffs’ use of the access road so notice of the plaintiff’s claim to an easement could be imputed to the owners. (Id. at pp. 289 290.)
Similarly, in Applegate, the court held that the property owner, Crocker National Bank, had imputed notice because the tenant knew of the use of a roadway as an easement. (Applegate, supra, 146 Cal.App.3d at p. 709.) “Notice to CROCKER can be inferred or implied since visible, open and notorious use implies that the owner had either actual or constructive notice. [Citations.]” (Ibid.)
Appellants argue the two leasing agents did not have a duty to report the use of the driveway to Mitchell. However, respondents contend, under principles of agency law, a duty existed. “The basis for imputing knowledge to the principal is that the agent has a legal duty to disclose information obtained in the course of the agency and material to the subject matter of the agency, and the agent will be presumed to have fulfilled this duty. [Citations.]” (Triple A Management Co. v. Frisone (1999) 69 Cal.App.4th 520, 534–535.) As Mitchell’s real estate agents, Hydorn and Cranston owed a fiduciary duty to Mitchell. (Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1563.) The trial court concluded this duty included disclosing information about the use of the driveway to Mitchell.
Given the testimony of both Cranston and Hydorn about their frequent visits to the property as Mitchell’s leasing agents, this evidence further supported the trial court’s finding that Mitchell had constructive notice of the use of the driveway.
Appellants next argue that even if Mitchell had knowledge of use of the driveway, he did not know the use was hostile. The tenants had a friendly, neighborly relationship, so the use of the driveway was not “adverse.”
“Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties. [Citations.]” (Warsaw, supra, 35 Cal.3d at p. 572.) Use of another’s property is “hostile” when “ ‘the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.’ ” (Felgenhauer, supra, 121 Cal.App.4th at p. 450, quoting 3 Casner, American Law of Property (1952) Title by Adverse Possession, § 5.4, p. 776.)
Here, the trial court rejected Mitchell’s argument that Shaw Properties’ use was a “neighborly accommodation.” Esposto and Cresci never requested permission to use Mitchell’s portion of the driveway, and Mitchell never granted it. (See Warsaw, supra, 35 Cal.3d at p. 572 [holding use was hostile where there was no evidence the owner expressly permitted use of his property].) Therefore, the trial court properly found respondent’s use was adverse to appellants.
C. Appellants Retained Constructive Possession and Control Over the
Property During the Prescriptive Period
Appellants contend that Mitchell was not in possession of the Mitchell Property during the five-year limitation period because the property had been leased to tenants. Thus, they argue a prescriptive easement cannot be found against a landlord who is not in possession of the property citing Dieterich Internat. Truck Sales, Inc. v. J. S. & J. Services, Inc. (1992) 3 Cal.App.4th 1601 (Dieterich). In Dieterich, the plaintiff owned a truck sales and repair business. (Id. at p. 1603.) Defendant, Brown, owned the adjoining property and entered into a long-term lease with Terminal Station, a truck stop, coffee shop and store. (Ibid.) In order to reach the plaintiff’s truck service department, the trucks had to cross Brown’s property and use it to maneuver into the truck service bays. (Id. at p. 1604.) After more than 20 years of use, Brown began installing fence posts that blocked plaintiff’s use of the service bays. (Id. at p. 1607.)
Brown argued that he could not be subject of a prescriptive easement because he was not in possession of the property, and only had a reversionary interest at the end of the 49-year lease. (Dieterich, supra, 3 Cal.App.4th at p. 1603.) “Brown, lacking a present possessory interest in the property, was legally unable to bring an action to prevent plaintiff from gaining the easement by prescription.” (Id. at p. 1611.) Therefore, the court held because Brown was not in possession and could not enforce his rights, the plaintiff could not have established an easement against him.
As respondent argues, appellants’ situation here is not analogous to Dieterich. Mitchell was not precluded from bringing a legal action to prevent the use of the driveway. Mitchell was not only the owner of the Mitchell Property, but he acted as the property manager and was in control of the property.
“California law does not require the actual owners of the adversely used land to have been in continuous possession for five years. [Citation.] If 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. [Citation.]” (King v. Wu (2013) 218 Cal.App.4th 1211, 1214.) Where a landlord has numerous tenants over the years, the landlord retains constructive possession at the expiration of each lease. (Id. at p. 1214.) Here, the Mitchell Property had various tenants come and go between 2005 and 2012, with periods of vacancy. Thus, appellants, during the pertinent five-year period, had intermittent actual possession and uninterrupted constructive possession and control over the property. The trial court properly found a prescriptive easement had been established.
D. The Scope of the Easement Was Supported by the Evidence Before the Trial Court
The scope of the prescriptive easement is limited by the nature, character and volume of use during the prescriptive five-year period. (Pipkin v. Der Torosian (1973) 35 Cal.App.3d 722, 727 (Pipkin).) Appellants argue the evidence at trial demonstrated that Shaw Properties received deliveries during the prescriptive five years from trucks of various sizes about 20 30 times per week, with approximately five to ten deliveries by 75-foot trucks. Appellants contend the court was required to limit usage of the easement to a certain number of trucks or a finite number of deliveries per week, and to regulate the manner and timing of the deliveries. Appellants, however, fail to cite any authority to support their argument. While the trial court did not provide limitations on the number of trucks or deliveries, it did provide parameters to control use of the easement.
The court required Shaw Properties only to allow trucks to cross the property line when unloading or loading, and not to use the Mitchell Property except as necessary for making three-point turns and for immediate unloading and reloading. The trucks are not allowed to block use of the Mitchell Property for more than a minimal period of time. Shaw Properties was responsible for developing a system to regulate the deliveries. The court stated if Shaw Properties could not police the activity, the easement is subject to extinguishment. Therefore, the scope of the easement imposed by the trial court was reasonable and limited.
Appellants argue that the prescriptive easement was flawed because it did not limit the usage of the driveway to current numeric levels, and if the businesses continue to grow, there is no limit to the volume of trucks that could make daily deliveries and make use of the driveway. They point out that generally the owner of the easement cannot make a different or greater use of it than during the prescriptive five-year period. (Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 850.) “[T]he rule that the use of a prescriptive easement is fixed and determined by the manner of use in which it originated and cannot be extended or increased has been modified to allow such increased use if the change is one of degree, not kind.” (Applegate, supra, 146 Cal.App.3d at p. 711.)
In fact, the trial court anticipated precisely this situation in its final decision. The court issued its decision in May 2015 and retained jurisdiction for an additional year, until June 1, 2016, to determine if the prescriptive easement had been extinguished by over-burdening of the scope of the easement. There is nothing in the record to demonstrate that appellants presented the trial court, at the time the easement was pronounced or later, with evidence of over-burdening.
“Whether such uses go beyond the extent and scope of the easement is a matter for future determination of the court if and when the question is presented.” (Pipkin, supra, 35 Cal.App.3d at p. 729.)
E. The Easement Has Not Been Extinguished
Appellants argue the easement should be extinguished because Shaw Properties does not and cannot control the 75-foot trucks that make deliveries and block the driveway. Both Esposto and Cresci testified that the 75-foot trucks were used by independent trucking companies.
If the easement holder increases the burden on the property owner, an easement may be extinguished. (Crimmins v. Gould (1957) 149 Cal.App.2d 383 (Crimmins).) In Crimmins, property owners of two parcels of land had an easement to McCormick Lane to access their properties. (Id. at pp. 386-388.) For more than 20 years, the parcels were used as fruit orchards and the lane was used by the tenants to access the land. (Id. at p. 387.) One of the parcels was subdivided into 29 residential lots, and McCormick Lane was used to reach them and connected to a public street. (Id. at p. 387.) The court found the act of changing the nature of the use of the land did not extinguish the easement, but the excessive use of the easement did. (Id. at pp. 390 392.) Therefore, the court found that it was proper to extinguish the easement where the burden could not be decreased. (Id. at pp. 392 393.)
Crimmins is distinguishable. First, respondent has not changed the nature of the use of the land as in Crimmins. Second, appellants have not demonstrated an overburdening or increased use of the easement. Since at least 2007, respondent has received deliveries from independent trucking companies using 75-foot trucks. The evidence before the trial court specifically related to problems arising from these larger trucks blocking access to the Mitchell Property. The easement addresses this concern.
Third, as Crimmins makes clear, even if deliveries by 75-foot trucks become an increased burden, the solution is not necessarily to extinguish the easement, but to take lesser measures to diminish the burden. For example, the court could order that only a certain number of deliveries could be made by trucks of a size more appropriate to the scale of the site, or set specific times of day or other limitations to fit within the scope of the easement.
The court’s decision requires Shaw Properties to develop a system to regulate truck use within the scope of the easement. There is no evidence before us that this has not been done or cannot be done. Where there is no evidence that the easement was in fact enlarged by respondent, we see no basis to extinguish the easement. (See McCarty v. Walton (1963) 212 Cal.App.2d 39, 46.)
IV.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
 





_________________________
RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.
























A145995, Shaw Road Properties, LLC v. Mitchell