Filed 4/15/14 Romero v. Brooktrails Township Commuity Services Dist. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



CLAY O. ROMERO et al.,
         Plaintiffs and Appellants,
                                                                   A138488
v.
BROOKTRAILS TOWNSHIP                                               (Mendocino County
COMMUNITY SERVICES DISTRICT                                        Super. Ct. No. SCUK-CVG-11-59396)
et al.,
         Defendants and Respondents.


                                            MEMORANDUM OPINION*
         Clay O. Romero and his wife, Melanie Romero, owners of a piece of real property
known as Parcel A-1 in Brooktrails Vacation Village Subdivision, filed an action in
Mendocino County Superior Court alleging they possessed an easement on a piece of real
property (Parcel A-2) owned by Brooktrails Township Community Services District
(BCSD). BCSD moved for summary judgment, and the superior court granted its
motion. The Romeros then appealed from the resulting judgment.
         In 2007, the Romeros purchased Parcel A-1, which is located in Brooktrails
Vacation Village Subdivision. The Romeros’ property has frontage on a public street
called Maize Way. Their property also abuts Parcel A-2, which is owned by BCSD. The
Romeros wished to subdivide Parcel A-1 and believed it required an access route wider

*
 We resolve this case by a Memorandum Opinion pursuant to California Standards of
Judicial Administration, Standard 8.1.

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than Maize Way for the subdivision to be accomplished. Thus, in their action, the
Romeros sought the right to use a path known as Meadowlark Trail across Parcel A-2 as
access to their property.
       The Romeros’ first amended complaint alleged they had acquired an easement
across Parcel A-2. Although the precise legal theory upon which the claim was based is
not entirely clear from the complaint, the Romeros alleged that “[t]he basis of [their]
claim is a prescriptive Easement by implication, necessity and equity[.]” They allegedly
acquired their right to the easement “based upon historic adverse usage, by virtue of
open, notorious, and adverse use of the Easement, under claim of right, for access and
ingress and egress to and from Parcel A-1 . . . for an uninterrupted and continuous period
of approximately forty-one (41) years.” In opposing BCSD’s motion for summary
judgment, the Romeros clarified their theories somewhat, arguing they possessed: (1) an
implied easement based on prior use, (2) an easement by necessity because their parcel is
landlocked, and (3) an equitable easement under the doctrine of relative hardships. 1
       Relying chiefly on Clay Romero’s deposition testimony and the Romeros’
responses to discovery, BCSD’s motion for summary judgment argued the undisputed
facts demonstrated the Romeros could not prove any of the theories on which their claim
of an easement was based. The Romeros filed an opposition, but the trial court sustained
virtually all of BCSD’s objections to the evidence the Romeros submitted in support of

1
  The Romeros’ opposition also mentioned that their neighbors, Ralph and Ramona
Waldman, possessed an express easement on Meadowlark Trail. The Romeros asserted
they should have at least the same rights as the Waldmans. But the Romeros
acknowledged that the Waldmans’ easement had been conveyed by a recorded grant
deed, and the Romeros produced no evidence of a similar deed granting them an
easement.
        We note that in Waldman v. Romero (Mar. 17, 2011, A129126) [nonpub. opn.], we
held that the Waldmans possessed a valid and binding express easement appurtenant to
their property. (See Pacific Gas & Electric Co. v. City and County of San Francisco
(2012) 206 Cal.App.4th 897, 907, fn. 10 [citation of unpublished opinions permissible “to
explain the factual background of the case”].) Our holding that the Waldmans’ possessed
an easement was based on the fact that BCSD had expressly conveyed an easement to
Ralph Waldman via a grant deed recorded in the records of Mendocino County.
(Waldman v. Romero, supra, A129126.)

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their opposition, and the Romeros do not challenge that ruling on appeal. At the hearing
on the motion, the court noted the Romeros’ opposition was not supported by admissible
evidence. In particular, the court remarked that Clay Romero’s declaration was not based
on his personal knowledge. The Romeros’ counsel conceded Clay Romero could not
offer evidence regarding the implied easement theory because “[h]e wasn’t even there at
the time” Parcels A-1 and A-2 were created.2
       The Romeros’ opening brief argues they possessed either: (1) a prescriptive
easement, (2) an easement by implication by virtue of state law requirements for school
sites, (3) rights equivalent to those of Ralph and Ramona Waldman, the adjoining
property owners to whom BCSD granted an express easement, or (4) an equitable
easement. The fatal flaw in the first two arguments is that they were not raised below.
Neither the Romeros’ operative first amended complaint nor their opposition to BCSD’s
motion for summary judgment mentions them. On an appeal challenging a trial court’s
grant of summary judgment, a reviewing court will not consider theories not advanced in
the trial court. (DiCola v. White Brothers Performance Products, Inc. (2008) 158
Cal.App.4th 666, 676.) Moreover, basic considerations of fairness prohibit the Romeros
from changing theories on appeal. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44
Cal.4th 1334, 1351, fn. 12 [“ ‘The rule is well settled that the theory upon which a case is
tried must be adhered to on appeal. A party is not permitted to change his position and
adopt a new and different theory on appeal. To permit him to do so would not only be
unfair to the trial court, but manifestly unjust to the opposing litigant.’ ”].)
       Even if the prescriptive easement claim were properly before us, it would fail.
The Romeros admitted in discovery that BCSD is a public entity. (See Richmond v.
Shasta Community Services Dist. (2004) 32 Cal.4th 409, 415, 429-430 [community
services district is a public agency].) Its property is therefore exempt from any claim of a
prescriptive easement. (Civ. Code, § 1007; City of Los Angeles v. City of San Fernando
(1975) 14 Cal.3d 199, 272.) The same is true of the claim of an implied easement based

2
 The Romeros are prosecuting this appeal in propria persona but were represented by
counsel below.

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upon state law requirements for school sites. The Romeros cite no authority that
regulatory requirements for such sites can create easements by implication. Such
easements are not favored, and an easement by implication will not be found absent clear
evidence it was intended by the parties. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th
131, 141-142.)
       The Romeros contend they should enjoy the same rights as the Waldmans, who
hold an express easement over Parcel A-2. But the Waldman’s express easement is just
that—express. They obtained it by grant deed from BCSD. The Romeros’ deed, in
contrast, makes no mention of any easement and the attached maps do not show one.
       Nor is there merit in the Romeros’ cursory argument that they possess an equitable
easement. They claim they and their predecessors in interest have used the Meadowlark
Trail easement for at least 50 years, but as Clay Romero admitted and the trial court
noted, there is no actual evidence of such use. Moreover, “[t]o create an equitable
easement, ‘three factors must be present. First, the defendant must be innocent. That is,
his or her encroachment must not be willful or negligent.’ ” (Tashakori v. Lakis (2011)
196 Cal.App.4th 1003, 1009.) The Romeros received notice from BCSD that they were
to use their deeded access on Maize Way. Nevertheless, they continued to use
Meadowlark Trail as ingress to their property. Thus, the Romeros’ encroachment was
not innocent.
       We conclude the Romeros have failed to demonstrate the trial court erred in
granting BCSD’s motion for summary judgment.3


3
  We may quickly dispose of the Romeros’ remaining arguments. The trial judge did not
disallow acceptable evidence. Instead, it refused to consider hearsay statements in the
minutes of a BCSD public meeting. (See People v. Flaxman (1977) 74 Cal.App.3d Supp.
16, 20 [public record based on statements of third parties is inadmissible under Evid.
Code, § 1280].)
       The Romeros also contend the trial judge stated incorrect information and erred in
some way in prohibiting witnesses “from giving crucial evidence in the summary
judgment.” As to the former argument, the Romeros do not explain how the claimed
erroneous statement prejudiced them, and it therefore presents no ground for reversal.
(See Code Civ. Proc., § 475.) The latter argument is neither supported by citation to the

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                                          DISPOSITION
       The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)




                                                        _________________________
                                                        Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




record nor sufficiently articulated to merit consideration. (Ochoa v. Pacific Gas &
Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.)

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