Filed 8/14/13


                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN


MICHAEL G. KING et al.                           B239801
        Plaintiffs and Appellants,               (Los Angeles County
                                                 Super. Ct. No. YC060847)
        v.

CHUNG H. WU et al.

        Defendants and Respondents.



        APPEAL from a judgment of the Superior Court of Los Angeles County, Dudley
W. Gray II, Judge. Reversed.

        Hennelly & Grossfeld and Michael G. King for Plaintiffs and Appellants.

        Law Offices of Bennett A. Rheingold and Bennett A. Rheingold for Defendants
and Respondents.



                              __________________________
       Michael and Linda King brought action to quiet title over a strip of land on their
neighbors’ property over which they claimed to have obtained a prescriptive easement.
The trial court granted their neighbors’ summary adjudication motion. We reverse.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Fred and Viola Fluckiger bought their property on June 24, 1960. Shortly
thereafter they poured a concrete driveway partly encroaching on the neighboring
property. The strip of driveway on the neighboring property (“prescriptive strip”) is
approximately eight inches wide and ninety feet long. The Kings bought the Fluckiger
lot in July 1994. They used the concrete driveway for ingress and egress to their garage
and for parking in the rear of the driveway.
       On March 29, 1963, Chung H. Wu, Cindy Wu, and Yu Tsen Wu, as Trustee of the
Chung Han Wu Revocable Trust of 1993 (the “Wus”) became the owners of the property
neighboring the Fluckigers. On October 16, 2009, they began constructing a metal
guardrail over the prescriptive strip. Three days later the Kings filed a complaint seeking
to quiet title over the prescriptive strip and asserting claims for trespass and declaratory
relief. The Wus’ answer claimed in an affirmative defense that the Wus had not had a
possessory interest in their property until 2008. The Wus also filed a cross-complaint
seeking injunctive relief and damages for trespass.

       On June 17, 2011, the Wus moved for summary adjudication on the Kings’
prescriptive easement and declaratory relief claims. To establish their affirmative
defense, the Wus presented declarations by Yu Tsen Wu and accountant Keith Schulberg.
Yu Tsen Wu declared that when she married her husband on June 9, 1966, the property
was already rented out. According to her, the property was “continuously rented out” to
a number of tenants with some “brief vacancies” of less than one year between June 1966
and August 2008. Schulberg opined that the Wu property was not rented for a period of
one year, 10 and a half months between March 29, 1963, and mid-February 1965, and
that it was continuously rented thereafter.


                                               2
        On September 9, 2011, the trial court granted the summary adjudication motion.
The court concluded that the Wus had established an affirmative defense because they or
their predecessors had not been in possession of the property for five continuous years
during the Kings’ and Fluckigers’ 49-year use. The Kings voluntarily dismissed their
trespass claim with prejudice, and the Wus dismissed their injunctive relief claim with
prejudice. The Wus’ remaining cross-claim was heard in October 2011, and a final
judgment resolving all claims was entered in January 2012. The Kings filed a timely
appeal on March 13, 2012.

                                       DISCUSSION

        We review the grant of summary adjudication de novo. (West Shield
Investigations & Security Consultants v. Superior Court (2000) 82 Cal.App.4th 935,
946.)
        A motion for summary adjudication can be granted “only if it completely disposes
of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”
(Code of Civ. Pro., § 437c (f)(1).) The moving party bears the initial burden of
production to make a prima facie showing that no triable issue of material fact exists.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant can meet his
or her burden if he or she shows that one or more elements of the cause of action cannot
be established or that an affirmative defense bars that action. (Code of Civ. Pro., § 437c
(p)(2).) If so, the burden shifts to the plaintiff to demonstrate a triable issue of material
fact. (Ibid.)
        The Wus failed to meet their burden of proof because they could neither establish
an affirmative defense nor demonstrate that the Kings had not obtained a prescriptive
easement. To obtain a prescriptive easement, the Kings or their predecessors must have
used 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 Wus
made no attempt to prove that any of these elements was unsatisfied. Instead, they

                                               3
argued that they had an affirmative defense because they and their predecessors had not
been in continuous possession of the Wu property for five years.
          California law does not require the actual owners of the adversely used land to
have been in continuous possession for five years. (See Gartlan v. C.A. Hooper & Co.
(1918) 177 Cal. 414, 428-429.) 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. (Id. at p. 428.)
As a result, the fact that a prescriptive right cannot arise against an owner or landlord
who has no possessory interest in the property during the period of adverse use, does not
impact this case. (Dieterich Internat. Truck Sales, Inc. v. J. S. & J. Services Inc. (1992) 3
Cal.App.4th 1601; Civ. Code, §741 [an action obtained solely against a landlord’s tenants
cannot affect his or her rights].)
          The Wus’ own evidence demonstrates that the current case does not fall within the
Dieterich limitation. The Wus were in actual possession of their property for nearly two
years between 1963 and 1965 and for a period of almost a year between 1966 and 2008.
Additionally, Yu Tsen Wu declared that the Wus had a number of tenants over the years.
As a result, the Wus had constructive possession at the expiration of each of the various
leases.
          Because the Wus did not provide any evidence that the Kings could not satisfy an
element of the prescriptive easement claim and because they did not establish a valid
affirmative defense, the Wus did not meet their burden. Therefore, the summary
adjudication should not have been granted.




                                               4
                                    DISPOSITION

      The judgment is reversed. The Kings shall recover their costs on appeal.




                                                ZELON, J.




We concur:




      PERLUSS, P. J.




      SEGAL, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                            5
