Lobenstein v. Khodayari

DREW LOBENSTEIN et al., Plaintiffs and Respondents, v. MOHAMMAD KHODAYARI et al., Defendants and Appellants.

B296769

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

May 5, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. LC106634)

APPEAL from a judgment of the Superior Court of Los Angeles County, Virginia Keeny, Judge. Affirmed.

Mohammad Khodayari and Bahman Khodayari, in pro. per., for Defendants and Appellants.

Rosen and Loeb and Alan L. Rosen for Plaintiffs and Respondents.

____________________ Plaintiffs and respondents, Drew Lobenstein, Primitivo L. Valle, Elvia Valle, Russell O'Hearn, Christopher Becker, Frances L. Davey, Nava Skolnik and Ilan Skolnik (Respondents) brought a civil action seeking a prescriptive easement against the defendants and appellants, Mohammad Khodayari and Bahman A. Khodayari (Appellants).¹ The dispute centered on a decades long use of an alley that, in 2016, was partially blocked by the Appellants who extended their back fence making ingress/egress by automobiles nearly impossible. After a two-day bench trial, the trial court found a prescriptive easement in Respondents' favor and ordered the Appellants to remove the fence within 30 days. The trial court's judgment was entered on February 29, 2019. Thereafter, the Appellants filed a notice of appeal and sought a stay on the trial court's fence destruction order which we granted pending the outcome of this appeal.²

Appellants raise three contentions: (1) Respondents failed to prove the element of hostile use of the property for prescriptive easement; (2) the trial court's judgment created an inappropriate exclusive easement/adverse possession; and (3) the trial court in deciding the case erred by using the preponderance of the evidence instead of the clear and convincing standard. We affirm the judgment.

FACTS

Appellants are brothers. In 2004, one of the Appellants, Bahman Khodayari, purchased 19106 Cantara Street, Reseda, California 91335. This Property is located in a suburban residential neighborhood subdivided into parcels with a 14 feet wide alley running along the back of the lots. The Appellants' property is located on the corner of Cantara Street and Vanalden Avenue at one of the mouths of the alley. The residents on Cantara Street have used the alley since the 1950's. According to trial testimony, there are 38 properties that use this alley for ingress and egress from their lots. The alley is accessed through Vanalden Avenue on one end, and Tampa Avenue on the other. The alley is a private road that is 14 feet wide.

In 2016, one of the Appellants, Bahman Khodayari, extended his back fence to the limit of his property line decreasing the alley by seven feet because of alleged theft, trespass, vandalism, garbage dumping, loitering and graffiti on his property. Before he extended his back fence, residents were able to enter the alley on either end (Tampa or Vanalden) and drive through to the other. The decrease in the width of the alley on Vanalden, however, meant automobiles could no longer drive through the alley - they would now have to enter on Tampa Avenue and back up to exit. Many commercial delivery services refuse to enter the alley for this reason.

After a two-day court trial, the court ruled as follows: "The court finds that the use of the alleyway, including that portion that falls within the Defendant's property, to have been hostile to the true owner in that they were not acknowledging that the owner had the right to exclude them. It was done in an adverse manner in that they were claiming, each one of them, that theyhad the right to use that alleyway pursuant to prior agreement among all homeowners or based on prior usage within the neighborhood. And that was a claim of right that each one of them asserted. And that was contrary and adverse to the defendant's claim of right to the property. [¶] And, further, the court finds that their use of this driveway was continuous and uninterrupted for five years prior to the erection of the sign."

DISCUSSION

I. Proof of the Element of Hostile Use for the Prescriptive Easement

Appellants contend the Respondents failed to prove the element of hostile use of the property on two bases: a) "the original homeowners had a verbal agreement as a neighbor accommodation which permitted access to 7 [feet] of their respective property lines for access to the [a]lley," and, b) the Appellants posted a sign establishing a permissive use. We disagree.

A. Legal Principles

"To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right." (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.)

The Appellants contend the element of hostile use of the property was not established. As the Respondents point out, this challenges the sufficiency of the evidence supporting the trial court's decision as a trier of fact in a court trial on the element of hostile use. "Whether the use is hostile or is merely a matter of neighborly accommodation . . . is a question of fact to bedetermined in light of the surrounding circumstances and the relationship between the parties. [Citations.]" (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572.)

"In reviewing the sufficiency of the evidence, our task begins and ends with a determination whether any substantial evidence exists, contradicted or uncontradicted, which will support the trier of fact's conclusion. [Citation.]" (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1229.) "[A] reviewing court will not find unsupported the trial court's findings merely because it might reasonably draw different inferences from those the trial court reasonably drew unless it clearly appears that under no hypothesis is there substantial evidence to support the trier of fact's finding. [Citation.] Questions of credibility and resolution of conflicting evidence are for the trier of fact. [Citation.]" (Ibid.)

B. The Agreement

Appellants claim the Respondents failed to establish that their use of the alley was hostile and adverse because "[t]he [a]lley was created by an oral agreement amongst the original homeowners, which was ratified by their conduct of allocating 7 [feet] of their property to create the [a]lley."

During cross-examination of Robert Alan Scott called by the Respondents, appellant Bahman Khodayari asked whether Scott was upset with him. Scott responded:

"I am upset that you, without asking anyone else's permission, chose to violate an agreement that had been in place for many decades."

Scott further testified that when he purchased his property, his next-door neighbor had explained that in 1952, everyone had agreed to give away seven feet of their property to create an alley.Similar testimony came from another one of Respondents' witnesses, Wyllyam Davey. During cross-examination by appellant Bahman Khodayari, Davey testified, "In 1950 my mom and dad granted - - the whole neighborhood let them do that. So [the alley's] been open since 1950. Okay."

Appellants cite Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263 for the rule that, "[u]se with the owner's permission . . . is not adverse to the owner. [Citations.]" (Id. at p. 271.) Windsor goes on the explain, "[t]o be adverse to the owner a claimant's use must give rise to a cause of action by the owner against the claimant. [Citations.] This ensures that a prescriptive easement can arise only if the owner had an opportunity to protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do so. [Citations.]" (Ibid.) It stands to reason, if the owner of a property has given permission to the claimant to use the property, the owner would have no reason to protect his property as he is the one who permitted the use. The relationship is clearly not hostile.

Such is not true here. First, Appellants, if they wanted the trial court to seriously consider this issue, could have developed this defensive theory of "permissive" use in greater detail. As it was, the testimony on this supposed oral agreement was thin, secondhand, and unclear. The trial court was not provided with any definite information about who may have originally agreed, what the terms of the agreement may have been, or whether there actually ever was an agreement. Other than to establish that Respondents believed they had a right to use the alley, very little about the oral agreement was actually established. It was up to the Appellants, if they chose to rely upon it at trial, todevelop it. They failed to do so. The trial court can only base its decision on the facts presented.

Furthermore, there is no evidence in the record that the Appellants even knew of the existence of the supposed oral agreement before the trial. The purpose of the rule is to provide owners with an opportunity to take legal action against encroachers to eject them. The rationale for the rule simply does not apply to the facts of this case. The Appellants failed to provide the trial court with sufficient facts for it to rule in their favor.

Indeed, the trial court saw this testimony as supportive of another element - that the Respondents believed they had a claim of right to use the alley.

C. Posted Sign

Appellants contend when they purchased the property in 2004, a sign was posted on the back fence which read: "A Private Lane [sic], For Residents ONLY, By Permission Of Owner Of This Property, No Trespassing, No Dumping, No...