Katz v. Jeppe

Filed 2/21/07  Katz v. Jeppe CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

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

Gerald Rosenberg, Judge.  Affirmed.

            Law Offices of Mark S. Novak, Mark S. Novak for Plaintiffs and Appellants.

            Egerman & Brown, Philip Brown for Defendant and Respondent.

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            This case involves a land use dispute between two neighbors.  Plaintiffs Simon and Vera Katz claim a prescriptive easement over adjacent land owned by defendant Arthur Jeppe, Jr., for the limited purpose of maintaining and repairing their narrow side yard and the side of their home. 

            We find that permissive use allowed by Jeppe and the prior owners of the property of the two-foot-wide strip of land on the side of Jeppe's house, based upon tacit consent or neighborly accommodation, is insufficient to establish a prescriptive title to a right of way over Jeppe's property.  Thus, the trial court properly granted summary judgment in favor of Jeppe on the Katzes' cause of action to quiet title to a prescriptive easement.^[1] 

FACTUAL AND PROCEDURAL SUMMARY

            The Katzes and Jeppe are next-door neighbors in Venice.  The Katzes bought their property in June of 2000, and Jeppe bought his property in May of 1998.  Only approximately three feet separate the structures on the Katzes' property from the structure on Jeppe's property.  The property line creates a one-foot-wide strip of land belonging to the Katzes along the side of their three cottages, which are in a row and one behind the other, and a two-foot-wide strip of land belonging to Jeppe along the side of his house.  Thus, each of the Katzes' cottages has a one-foot setback from the western property line that separates the property from Jeppe's property.  Vera Katz lives in the front cottage, her husband Simon resides out of state and is not often at the property, and tenants occupy the two cottages in the rear of the property.

            Initially, Jeppe was cooperative and raised no objection to the use by Vera Katz and her workmen of the three-foot area between their houses for yard work and house maintenance.  In fact, Jeppe at one point showed Vera Katz how to access the side of her house by walking across part of Jeppe's front lawn to get to water valves and to facilitate repairs.

            Ultimately, however, a series of disputes ensued.  In September of 2003, Jeppe objected to Vera Katz and her contractors crossing and using his property to make repairs on her property.  In October of 2003, Jeppe signed a police department trespass arrest authorization form, permitting the police to arrest Vera Katz if she should enter his property without his permission.  Jeppe also had his attorney write to Vera Katz, advising her not to enter his property without written permission.  In December of 2003, when Vera Katz attempted to pull out a fence post on Jeppe's property, she was arrested for trespassing.  After the fence was erected, Vera Katz contracted with painters to paint her cottages.  They did paint the western side of the cottages where there was only a one-foot-wide access, but the constrained space made it â€