Morrow v. Winkler

Filed 8/15/06 Morrow v. Winkler CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County,

Lorna Parnell, Judge. Affirmed in part and reversed in part.

Manatt, Phelps & Phillips, Michael M. Berger and Benjamin G. Shatz for Plaintiffs, Cross-defendants and Appellants.

Zelle, Hofmann, Voelbel, Mason & Gette and Douglas J. Rovens for Defendants, Cross-complainants and Respondents.

This action arises out of a property dispute between the owners of two hillside residences in Pacific Palisades. Appellants Tevis F. Morrow, Jr., (former owner of the lower lot) and Geoffrey W. Emery (current owner of the lower lot) brought this action to quiet title to express and prescriptive easements over the neighboring upper lot owned by respondents Gerald I. Winkler and Marcella M. Winkler. Respondents cross-complained. The trial court awarded judgment in favor of respondents. At issue is whether substantial evidence supports the trial court's findings that: (1) appellants did not establish a prescriptive easement to maintain structures erected on the first and second easements, (2) appellants abandoned planting rights on the second easement, and (3) respondents have the right to build a roadway across the second easement. Appellants also challenge the trial court's refusal to judicially notice property deeds introduced at the close of evidence. We shall affirm the judgment except as to certain of appellants' planting rights on the second easement.

FACTUAL AND PROCEDURAL SUMMARY

Mr. and Mrs. Eric Small owned the lower lot from 1965 through 1974, when they sold the property to Colleen Morrow Platner. Platner lived there until 1994, when she moved to Colorado to live with her son, Tevis Morrow (Morrow). Platner transferred the property to the Morrow Trust, with Morrow serving as trustee. Morrow leased the house to a series of tenants after his mother moved out. Geoffrey Emery, having purchased the lot from the Morrow Trust, is the current owner of the lower lot. Mr. and Mrs. Cliff May were the original owners of the upper lot. They sold the property to Mr. and Mrs. Paul Shure in the mid-1970s. The Shures sold the lot to respondents (the Winklers) in 1995.

There are two express easements granted by the upper lot owners to the lower lot owners. The first easement, called the driveway easement, grants the lower lot owners â€