Ceravolo v. Pennell

Filed 6/22/06 Ceravolo v. Pennell CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed.

William Ceravolo appeals from a judgment in favor of Susan and Erin Pennell, denying his claim for a prescriptive easement across their land. We reject his contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Susan Pennell and her daughter, Erin Pennell, own one-half of an undeveloped lot (the Pennell lot) next to their residence on Baja Drive in San Diego.^[1] The other half of the lot is owned by the Pennells' neighbor, Max Schlader. The lot is located between the Pennell and Schlader residences, and is bordered in the front by Baja Drive. In the back of the Pennell lot and the Pennell residence, there is a narrow, 22-foot wide strip of land owned by Ceravolo. Although Ceravolo's strip of land does not border a street, it is not effectively landlocked because Ceravolo owns another property contiguous to the strip that allows him to reach it from Baja Drive.

The Pennell lot was originally intended to be a future public street, but in 1956 the city rejected a dedication of the lot for a street. The lot has no driveway. A curb, a strip of grass, and a sidewalk run along the front of the lot bordering Baja Drive.

Bernadette Doca, Susan's mother, lived in the Pennell's Baja Drive residence commencing in 1973. Ceravolo purchased his strip of land in 1991. The Pennells inherited their Baja Drive residence and the Pennell lot from Doca when she passed away in April 2002. Erin and her family moved into the residence in November 2003.

Since 1991, Ceravolo has used the Pennell lot to reach his strip of land from Baja Drive. In 2003, the Pennells built a fence that blocked this access. In 2004, Ceravolo filed a complaint against the Pennells, claiming that he had acquired a prescriptive

easement across their lot to travel from Baja Drive to his strip of land. Although Ceravolo's complaint also alleged an easement by necessity, this claim was apparently abandoned because Ceravolo can reach his strip of land from his other property on Baja Drive.

At trial, Ceravolo testified that it was difficult to walk the terrain from his other property on Baja Drive to his strip of land; accordingly, he normally accessed the strip of land by going across the Pennell lot. When he first viewed the strip in 1991 for purposes of purchasing it, he crossed the Pennell lot. In 1992, after the purchase, he hired a crew to cut the weeds on the Pennell lot so he could drive his truck on the lot. He also cleared brush and planted succulents on his strip of land. Thereafter, about once a year when he needed to clear brush, he would access the area by driving a truck across the Pennell lot. To get on the Pennell lot, the truck had to "jump[ ]" over the curb and cross the sidewalk.

Ceravolo recalled that the first time he was clearing brush from the area, the elderly woman (Doca) who lived in the residence next to the Pennell lot came outside and asked him what he was doing. Ceravolo told her he was clearing brush, and Doca did not object.^[2] Thereafter, Ceravolo saw Doca a couple of times when he gave her vegetables from his garden, and he would say "hi" to her from time to time. Other than the one time when he was first clearing brush, Ceravolo did not remember seeing Doca while he was crossing the Pennell lot.

Ceravolo testified that he drove his golf cart across the Pennell lot about "once a month or less," and he also walked to his strip of land on a regular basis. A real estate broker who assisted Ceravolo with the purchase of the strip of land testified that on a couple of occasions after Ceravolo purchased the strip, he went to the strip with Ceravolo and to do so crossed the Pennell lot in a truck. Ceravolo's employee, who assisted him with property management, testified that she crossed the Pennell lot about three times to go to Ceravolo's strip of land, twice on foot and once riding in Ceravolo's golf cart.

Ceravolo met Susan Pennell's husband, Charles Pennell, in about 2001 or 2002 when Ceravolo was visiting Schlader to give him a bottle of homemade wine. Charles was in his driveway at the time and Ceravolo gave Charles a bottle of wine as well. Beginning in early 2003, Ceravolo attempted to obtain a written easement from the Pennells over their lot, but was unsuccessful. In about December 2003, the Pennells built the fence along the back of their lot that blocked Ceravolo's access. The Pennels were contemplating expanding the 1,200 square foot residence by building onto the Pennell lot, and they were concerned that an easement would prevent the remodel and interfere with the back yard.

The Pennells visited Doca regularly while she was alive, and Charles, who was retired, helped maintain Doca's property both before and after her death. Charles, Susan, and Erin all recalled Doca mentioning Ceravolo, telling them that she had met an interesting neighbor who brought her tomatoes and wine and who wanted to plant grapes on his strip of land behind her property. Charles has mowed the weeds on the Pennell lot since the late 1980's. There is no road, path, or trail on the Pennell lot.

The Pennells never saw Ceravolo crossing the Pennell lot, and for the most part they did not see any vehicles or tire tracks on the Pennell lot. Charles testified that on one occasion in 2002 he saw tire tracks on the lot, and on this same occasion he noticed (for the first and only time) weed clearing activity on Ceravolo's strip of land. Tommy Henderson, a retired neighbor who lives two houses from the Pennell residence, corroborated Charles's testimony on this point, stating that the only time he saw clearing activity on Ceravolo's strip of land was in about 2002. Henderson testified that during this clearing activity, which lasted two to three days, he saw Ceravolo's workers access the strip of land by using the Pennell lot. However, he did not see Ceravolo or his workers use the lot on any other occasion.

Charles observed people cross the vacant lot coming to and from the canyon behind the Pennell property; they primarily followed a trail that began on the portion of the lot owned by Schlader. Schlader testified that school children walked through the lot and city workers parked their trucks on the lot while performing maintenance in the canyon, but he never saw Ceravolo drive on the lot. Two other neighbors testified they frequently observed people walking their dogs across the vacant lot, going down a trail to the canyon, but they had not observed Ceravolo on the Pennell lot.

Trial Court's Ruling

After a bench trial, the trial court concluded that Ceravolo had not carried his burden to show continuous, open, notorious, clearly visible, and adverse use by clear and convincing evidence. The court did not discredit Ceravolo's testimony regarding the use of the lot, finding that "[f]rom time to time" Ceravolo might walk or drive his golf cart across the Pennell lot; that he would drive his truck on the lot about once a year; and that on one occasion he cleared brush on the Pennell lot. However, the court determined that the conversation in which Ceravolo told Doca he was clearing his land and she said "'[o]h, all right,'" followed by Ceravolo's conduct of bringing her tomatoes and wine, "clearly [showed] neighborly accommodation." The court also noted that others had crossed the lot in a fashion similar to Ceravolo, including dog walkers and children and teachers walking through the canyon. Based on its findings, the court denied Ceravolo's prescriptive easement claim.

DISCUSSION

Ceravolo challenges the court's ruling denying him a prescriptive easement, arguing: (1) the court erred in finding his use of the Pennell lot was not continuous; (2) the court failed to recognize that his showing of long-standing, continuous use created a presumption of a prescriptive right which shifted the burden to the Pennells to show permissive use; and (3) there was an insufficient showing of permissive use based on neighborly accommodation.

Legal Principles

The elements necessary to establish a prescriptive easement are use over a five-year period that is (1) open and notorious, (2) continuous and uninterrupted, (3) hostile to the true owner, and (4) under claim of right. (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045.) The elements are "'"designed to ensure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement."'" (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 235 (Field-Escandon).)

A prescriptive easement must be shown by clear and convincing evidence. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.) "The law will not allow the property of one person to be taken by another, without any conveyance or consideration, upon slight presumptions or probabilities [citation]." (Peck v. Howard (1946) 73 Cal.App.2d 308, 326.) To create the prescriptive easement, "'"[the claimant] must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest."'" (Wood v. Davidson (1944) 62 Cal.App.2d 885, 890.) Whether the elements of a prescriptive easement are established is a question of fact to be determined by the court or jury from all the circumstances of the case, including "the relation of the parties, their conduct, the relative location of the properties, and other factors." (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) Easements, § 15:32, pp. 113-114, fns. omitted; Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw); O'Banion v. Borba (1948) 32 Cal.2d 145, 149 (O'Banion); Field-Escandon, supra, 204 Cal.App.3d at p. 235.)

The open and notorious element requires a use that is "sufficiently visible . . . so that anyone looking at the servient tenement would discover the easement." (6 Miller & Starr, supra, Easements, § 15:34, p. 122.) The use must be sufficient to give the owner actual or constructive notice of the use. (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977.) Constructive notice may arise from "'actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact . . . ." (Field-Escandon, supra, 204 Cal.App.3d at p. 236.) For example, "[a]cts of usage and maintenance, such as grading and repair, are evidence of [a prescriptive easement] claim." (Sufficool v. Duncan (1960) 187 Cal.App.2d 544, 549.)

To satisfy the element of continuous use, the use "'may be continuous . . . though there are periods of time more or less extended between the specific acts of use.'" (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432 (Zimmer), italics omitted.) The use need not be constant as long as there is "'no break in the essential attitude of mind required for adverse use . . . .'" (Ibid.) A continuous use may be established if the claimant uses the property as a right of way whenever needed for the purpose of the use. (Hesperia Land & Water Co. v. Rogers (1890) 83 Cal. 10, 11.) The requirement of uninterrupted use refers to the lack of interruption of the use by the landowner. (Zimmer, supra, 39 Cal.App.3d at p. 432.)

The elements of hostility and claim of right refer to adverse use by the claimant. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252.) The element of hostility means "'the claimant's possession must be adverse to the record owner, "unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter."'" (Otay Water Dist. v. Beckwith, supra, 1 Cal.App.4th at p. 1045.) The element of claim of right does not require a belief that the use is legally justified; it is sufficient if the use is made without subordination to the owner's right. (Lord v. Sanchez (1955) 136 Cal.App.2d 704, 707; see also Gilardi v. Hallam (1981) 30 Cal.3d 317, 322-324.) Open use of land without a request for, or receipt of, permission may be sufficient to show claim of right. (Lord v. Sanchez, supra, 136 Cal.App.2d at p. 707; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450.) However, the use must not be "by consent, permission or mere indulgence of the owner . . . ." (Peck v. Howard, supra, 73 Cal.App.2d at p. 328.)

The burden of proof as to each element is ordinarily upon the person claiming the prescriptive easement. (Zimmer, supra, 39 Cal.App.3d at p. 431.) In some cases, the courts have applied a presumption affecting the burden of proof, holding that a claimant's showing of open and continuous use for a long period of time without the landowner's interference gives rise to a presumption of adverse use that shifts the burden to the landowner to show permissive use. (Warsaw, supra, 35 Cal.3d at pp. 571-572; Fleming v. Howard (1906) 150 Cal. 28, 30; MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 701-702 (MacDonald); Applegate v. Ota, supra, 146 Cal.App.3d at p. 709; Field-Escandon, supra, 204 Cal.App.3d at p. 235, and fn. 1; Smith v. Skrbek (1945) 71 Cal.App.2d 351, 358.) In other cases, the courts have declined to apply this presumption, stating that the issue should simply be resolved by the trier of fact based on "all the circumstances and the inferences that may be drawn therefrom." (O'Banion, supra, 32 Cal.2d at pp. 148-150; Bennett v. Lew (1984) 151 Cal.App.3d 1177, 1184; LeDeit v. Ehlert (1962) 205 Cal.App.2d 154, 160-162, 170-171; see also County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 215 (County of Los Angeles); Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 40-41 (Gion).)^[3]

Even when an adverse use presumption derived from open and continuous use is applied, the ultimate issue of "[w]hether the use is hostile or is merely a matter of neighborly accommodation . . . is a question of fact to be determined in light of the

surrounding circumstances and the relationship between the parties." (Warsaw, supra, 35 Cal.3d at p. 572; see O'Banion, supra, 32 Cal.2d at p. 150.) On appeal, we apply the substantial evidence standard of review, resolving all conflicts in favor of the prevailing party and viewing the evidence in the light most favorable to the judgment. (Warsaw, supra, at p. 570; O'Banion, supra, at pp. 149-150; Taormino v. Denny (1970) 1 Cal.3d 679, 686; Zimmer, supra, 39 Cal.App.3d at p. 431.)^[4]

Analysis

To support his contention that the trial court erred in finding his use of the Pennell lot was not continuous, Ceravolo cites the case authority providing that the use need not be constant as long as it is used whenever needed for the claimant's purposes. Even assuming that Ceravolo's use of the lot was sufficiently continuous to establish this element, the record nevertheless supports the trial court's ruling denying the prescriptive easement. In addition to being continuous, the use must be open and notorious so as to put the landowner on actual or constructive notice of the use. The trial court's finding that Ceravolo's use was not open and notorious is supported by the showing that neither the Pennells nor other neighbors observed Ceravolo using the lot with any continuity; the Pennells (i.e., Charles) observed tire marks only on one occasion in 2002; and Ceravolo performed weed-clearing activity on the lot on only one occasion.

Further, Ceravolo did not carve out a road or path on the lot and he did not alter the curb to create a driveway to facilitate truck access. The trial court could also consider that Ceravolo's pedestrian use of the lot was no different from the use by other persons accessing the canyon. From this evidence, the trial court could reasonably conclude that Ceravolo's intermittent use was not distinctive and did not create any significant impact on the lot, and therefore his use did not alert Doca or the Pennells that he was asserting a right-of-way easement.

Nor can Ceravolo prevail based on his arguments that the trial court failed to recognize a presumption of prescriptive right arising from continuous use over a long period of time, and that there is insufficient evidence of permissive use. As we set forth earlier, the propriety of applying such a presumption is not clearly settled. (See fn. 3, ante.) There is also a question as to whether the presumption properly applies when the claimant is using unenclosed and unimproved land, such as the Pennells' lot. (O'Banion, supra, 32 Cal.2d at p. 149.) In any event, even if we deem the presumption valid and potentially applicable in this case, the trial court was not required to apply it given the evidentiary support for a finding that Ceravolo's use was not open and notorious. Although at times the courts have referred to the presumption of adverse use as arising upon continuous and uninterrupted use (see, e.g., Warsaw, supra, 35 Cal.3d at pp. 571-572; MacDonald, supra, 72 Cal.App.3d at p. 702; Field-Escandon, supra, 204 Cal.App.3d at p. 235), it is clear from a close reading of these cases, as well as the earlier cases defining the presumption, that the claimant must also show open and notorious use to shift the burden to the landowner to show permissive use (see, e.g., Fleming v. Howard, supra, 150 Cal. at p. 30; Smith v. Skrbek, supra, 71 Cal.App.2d at p. 358). As we stated, the record supports a finding that under all the circumstances the nature of Ceravolo's use was insufficient to provide the required notice to the landowner.

Moreover, even if the Pennells were required to show permissive use, the record shows that the court effectively found that they met this burden. It was up to the trial court, as the fact finder, to decide whether Doca's reaction to Ceravolo's use of the Pennell lot during his brush-clearing project constituted "consent, permission or mere indulgence" (Peck v. Howard, supra, 73 Cal.App.2d at p. 328) as opposed to acquiescence in an adverse use. The trial court concluded that Doca was merely engaging in neighborly accommodation. This finding is supported by the overall circumstances of the case, including that Doca was on friendly terms with Ceravolo and that over the years she and Schlader allowed children and dog walkers to cross the lot. The trial court reasonably concluded that Ceravolo's use was permissive.

DISPOSITION

The judgment is affirmed. Ceravolo to bear the Pennells' costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Apartment Manager Attorneys.

^[1] We shall subsequently refer to individual members of the Pennell family by their first names.

^[2] At trial, Ceravolo testified that he stated to Doca, "I was clearing my property," and Doca had no objection to his conduct. Both parties read from Ceravolo's deposition testimony to clarify Ceravolo's testimony on this point. At his deposition, when asked what he told Doca, Ceravolo testified that he told her, "I'm accessing my property. . . . [¶] . . . . I said I'm accessing my property with my truck to clear--I didn't put it that way. I said, 'I'm clearing off my land, clearing brush,' whatever I happened to be doing, planting." When asked at his deposition how Doca responded, Ceravolo testified: "Nothing. Said 'fine.' They didn't say anything. She said 'oh.'" Shortly later in his deposition testimony, he testified that Doca merely said "oh."

^[3] In O'Banion the California Supreme Court recognized that there had been "considerable confusion" on the issue of presumptions in prescriptive easement cases. (O'Banion, supra, 32 Cal.2d at pp. 148-149.) The O'Banion court noted that the presumption of adverse use based on open and continuous use may not be applicable in cases involving unenclosed and unimproved land. (Id. at p. 149.) Further, the court noted that some cases applied a presumption of permissive use in the absence of specific direct evidence of an adverse claim of right. (Ibid.) The O'Banion court ultimately rejected use of these presumptions, concluding that the "preferable view is to treat the case the same as any other, that is, the issue is ordinarily one of fact, giving consideration to all the circumstances and the inferences that may be drawn therefrom." (Id. at pp. 148-149.) O'Banion's conclusion was reiterated by the California Supreme Court in the Gion and County of Los Angeles cases in the context of implied public dedication. (Gion, supra, 2 Cal.3d at pp. 40-41; County of Los Angeles, supra, 26 Cal.3d at p. 215.) However, in its later Warsaw decision, the California Supreme Court referenced with approval the adverse use presumption arising from open and continuous use and made no mention of its contrary statements in O'Banion, Gion, and County of Los Angeles that presumptions should not be used. (Warsaw, supra, 35 Cal.3d at pp. 571-572.) The uncertainty on this issue has been noted in the legal treatises. (See 6 Miller & Starr, supra, Easements, § 15:32, pp. 116-117; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 402, pp. 471-472.)

^[4] We reject Ceravolo's argument that to the extent the facts are undisputed, we independently review the issue of whether a prescriptive easement has been established. It is well established that the issue is one of fact, reviewed on appeal under the substantial evidence standard. (Taormino v. Denny, supra, 1 Cal.3d at pp. 686-687.)