Filed 1/24/19
                            CERTIFIED FOR PUBLICATION



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                        DIVISION FIVE


    JASON DITZIAN et al.,
          Plaintiffs and Respondents,
                                                     A152946
    v.
    STEVE UNGER,                                     (Mendocino County
                                                     Super. Ct. No. SCTMCVG16-67625)
          Defendant and Appellant.


         Appellant Steve Unger (appellant) and respondents Jason and Lauren Ditzian
(respondents) own neighboring parcels in Mendocino County. The scenic sand dunes of
MacKerricher State Park are behind the parcels, and respondents historically accessed the
dunes via a path that runs along the parties’ property line, then crosses appellant’s
property, and then crosses the parcel of another neighbor. In October 2015, appellant
erected a fence that blocked respondents’ access to the dunes via the property line path.
Respondents brought suit and the trial court granted respondents a prescriptive easement
allowing them and their invitees (including Airbnb guests) to use the path. Among other
things, appellant contends the easement is a public easement prohibited by Civil Code
section 1009.1 We affirm.
                                        BACKGROUND
         In June 2016, respondents filed suit against appellant, seeking to establish a
prescriptive easement allowing them to cross appellant’s parcel on a path leading to
MacKerricher State Park. Respondents’ complaint alleged that in October 2015 appellant

1
    All undesignated statutory references are to the Civil Code.

                                               1
constructed a fence along the parties’ property line that blocked access to the state park.
The complaint alleged respondents had acquired a prescriptive easement through “open,
notorious, continuous, and adverse” use of the path for “an uninterrupted period of five
years” by themselves and the predecessor owners of respondents’ property.
       At trial in April 2017, respondents first called appellant as an adverse witness. He
bought his Mendocino property in 2006. At the time, Jack and Hyla Bolsta (the Bolstas)
owned the property now owned by respondents; Anna Moody is another neighbor.
Appellant acknowledged the Bolstas had accessed the state park dunes by crossing his
property. It was also necessary to then cross the parcel owned by Ms. Moody to reach
the dunes.
       Aharon Bolsta, the son of the predecessor owners, testified on respondents’ behalf.
His parents purchased the Mendocino property in 1998 or 1999. He first visited the
property in 1999, and thereafter visited at a “minimum three times a year, sometimes up
to five times a year. The holidays, birthdays, whenever I could visit from the Bay Area.”
He usually stayed for three or four days, and he also lived there from May to
October/November 2000 and from July to November 2011. When he visited his parents
used the path to the dunes that crossed appellant’s property “[a]lmost every day.”2 The
Bolstas were friends with the prior owner of appellant’s property, Romana Downie. The
Bolstas moved from the property in around 2013. Aharon Bolsta’s parents were deceased
at the time of trial.
       Respondent Jason Ditzian testified he bought the Bolstas’ property in 2013. Mr.
Ditzian, who was friends with Aharon Bolsta, began coming to the Bolstas’ Mendocino
property in summer 2008. From 2008 to 2013, he visited the Bolstas two or three times a
year. During those visits, he would take the path across appellant’s property to the dunes,
either by himself or with the Bolstas. Following purchase of the property from the


2
 Before 2006 there was another path on the side of the property bordering Ms. Moody’s
parcel, and the Bolstas would use both paths to access the dunes. The other path was
blocked by a fence in roughly 2006, and the Bolstas exclusively used the path along the
property line with appellant thereafter.

                                             2
Bolstas, he lived there part time between February and May 2013, and he lived on the
property full time between May 2013 and summer 2016.
       Jason Ditzian testified that in September or October 2015, while he and Lauren
were on their honeymoon, appellant built a fence that blocked the path providing access
to the dunes from respondents’ parcel. Previously, Mr. Ditzian had never encountered
any obstructions to using that path to the dunes, he had never seen any “no trespassing”
signs, and he had never been told he could not use the path.
       Respondent Lauren Ditzian testified she married Jason in September 2015.3 She
lived on the Mendocino property full time from May 2014 through the summer 2016, and
has visited about once a month since then. When she lived on the property (and during
previous visits to the property), she used the path to the dunes across appellant’s land
“[s]everal times a week,” until appellant put up a fence. Previously, she had encountered
no obstacles and had never been told she could not walk on the path, either the part
crossing appellant’s land or the part crossing Ms. Moody’s parcel.
       Beginning in July 2015, respondents began hosting vacation renters at their
Mendocino property through Airbnb. By the time of trial, 146 separate Airbnb
reservations had been made. In September 2016, respondents were cited by the
Mendocino County Department of Planning & Building Services for not having a permit
to have paying overnight guests at their property. Respondent Jason Ditzian testified he
was remedying the situation and the County was aware respondents continued to have
Airbnb guests.
       Appellant presented the testimony of the prior owner of his parcel, Romana
Downie. She continued to reside on the parcel, after sale to appellant in 2006. Ms.
Downie testified she and her husband built a path to the dunes in 1991. This is not the
path that is the subject of the easement at issue in the present case, which runs along the
property line. The path they built was “somewhere in the middle of the property;” she



3
  Jason Ditzian had not yet met Lauren when he purchased the Bolstas’ property. She is
listed as a co-owner on the grant deed recorded with Mendocino County in January 2016.

                                             3
knew nothing about a path running “along the boundary line of [her] property.” Ms.
Downie told the Bolstas they could use the path she and her husband built.
       The trial court issued a detailed ruling finding in favor of respondents. After
describing the evidence presented at trial, the trial court found respondents had made the
showing required to establish a prescriptive easement on a path leading to the dunes
along the parties’ property line. Among other things, the court “credit[ed] the testimony
of Aharon Bolsta that both he and his parents regularly traversed the subject path dating
as far back as 1998.” Reflecting on a site visit to respondents’ Mendocino property, the
trial court observed, “Hiking out to the dunes is the greatest highlight of living on or
visiting the property. Enjoyment of that natural resource is presumably why the parties
bought the property in the first place. It would be more startling and unexpected if no
one ever bothered to hike out to the dunes on a regular basis.” The court also observed
the path was “very evident” and “well-trodden,” and it was “obvious[]” the path had long
been used to access the dunes. The court also rejected other contentions made by
appellant, including that section 1009 precluded formation of an easement, that the
Airbnb rentals substantially increased the burden of the easement, and that the doctrine of
unclean hands justified denial of the requested easement.
       In September 2017, the trial court entered judgment in favor of respondents,
granting them “an easement along the pathway which originates on their land and
traverses that of defendant along the boundary line between the two properties.” The
judgment specified that the easement extended to “[respondents], personal invitees, and
business invitees, but only while such business invitees are residing on the property.”
The present appeal followed.
                                       DISCUSSION
       “The elements necessary to establish a prescriptive easement are well settled. The
party claiming such an easement must show use of the property which has been open,
notorious, continuous and adverse for an uninterrupted period of five years.” (Warsaw v.
Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).) “Whether the
elements of a prescriptive easement have been established is a question of fact, which we


                                              4
review under the substantial evidence rule. [Citation.] . . . Where the trial court or jury
has drawn reasonable inferences from the evidence, we have no power to draw different
inferences, even though different inferences may also be reasonable.’ ” (Felgenhauer v.
Soni (2004) 121 Cal.App.4th 445, 449.)
       Appellant’s primary contention on appeal is that section 1009, which provides that
the public’s use of another’s property for recreational purposes will never ripen into a
vested right, prevented respondents from acquiring a prescriptive easement. Appellant
also presents several other claims of error. We reject all of appellant’s contentions and
affirm the trial court’s judgment.
I.     Appellant’s Claim Based on Section 1009 Fails
       Section 1009 provides that, because it is “in the best interests of the state to
encourage owners of private real property to continue to make their lands available for
public recreational use,” and because owners who allow “members of the public to use,
enjoy or pass over their property for recreational purposes” risk loss of the property
rights, “no use of such property by the public after the effective date of this section shall
ever ripen to confer upon the public or any governmental body or unit a vested right to
continue to make such use permanently, in the absence of an express written irrevocable
offer of dedication of such property to such use . . . .” 4 Appellant argues the prescriptive



4
  Section 1009 provides in relevant part: “(a) The Legislature finds that: [¶] (1) It is in the
best interests of the state to encourage owners of private real property to continue to
make their lands available for public recreational use to supplement opportunities
available on tax-supported publicly owned facilities. [¶] (2) Owners of private real
property are confronted with the threat of loss of rights in their property if they allow or
continue to allow members of the public to use, enjoy or pass over their property for
recreational purposes. [¶] . . . [¶] (b) . . . [E]xcept as otherwise provided in subdivision
(d), no use of such property by the public after the effective date of this section shall ever
ripen to confer upon the public or any governmental body or unit a vested right to
continue to make such use permanently, in the absence of an express written irrevocable
offer of dedication of such property to such use, made by the owner thereof in the manner
prescribed in subdivision (c) of this section, which has been accepted by the county, city,
or other public body to which the offer of dedication was made, in the manner set forth in
subdivision (c).”

                                               5
easement granted by the trial court is effectively a public easement prohibited by section
1009.
        The Third District rejected a similar argument in Pulido v. Pereira (2015) 234
Cal.App.4th 1246 (Pulido), disapproved on other grounds in Scher v. Burke (2017) 3
Cal.5th 136, 150, footnote 5. There, neighboring property owners sought to establish an
easement for access to their properties over land owned by the appellant. (Pulido, at p.
1248.) Because the property owners used their properties for recreational purposes, the
appellant argued section 1009 prohibited the creation of a prescriptive easement. (Pulido,
at p. 1251.) The Pulido court explained the Legislature, in passing section 1009,
“intended to encourage landowners to allow recreational use of their land without the
threat of the public obtaining an interest in the property as a result of the use.” (Pulido, at
p. 1252.) Pulido concluded section 1009 did not apply “because there is no question of
public use. Rather, this is a matter of a private prescriptive easement between
neighboring landowners.” (Pulido, at p. 1252.)
        The Pulido court distinguished Bustillos v. Murphy (2002) 96 Cal.App.4th 1277,
disapproved on other grounds in Scher v. Burke (2017) 3 Cal.5th 136, 150, footnote 5,
relied upon by appellant in the present case. (Pulido, supra, 234 Cal.App.4th at pp.
1252–1253.) In Bustillos, as summarized by Pulido, “Bustillos and others used an
undeveloped property that was adjacent to a residential development for recreational
purposes. [Citation.] The undeveloped property was owned by Murphy. [Citation.]
Bustillos argued he was entitled to a private easement . . . . [The court held] that
Bustillos’s interest was indistinguishable from the public generally, thus he could not
claim a private easement.” (Pulido, at p. 1252.) The Bustillos court reasoned, “The
effect of granting a prescriptive easement in this case would mean that Bustillos, as well
as other members of the public, would gain a permanent right to use Murphy’s property
for recreational purposes. There is nothing ‘private’ about the prescriptive easement
sought here or anything to distinguish Bustillos’s situation from that contemplated by
section 1009.” (Bustillos, at p. 1281.)



                                              6
       In distinguishing Bustillos, the Pulido court stated, “This case is unlike Bustillos
because the Pulidos’ interest in the easement across Pereira’s property is entirely
distinguishable from the interest of the public generally. The Pulidos seek a right of way
easement to access their own property. That makes their interest distinguishable from the
interest of the public at large. They are not merely passing through Pereira’s property
because it provides access to a public recreational area.” (Pulido, supra, 234 Cal.App.4th
at pp. 1252–1253.)
       The present case is not identical to Pulido, because respondents do seek an
easement over appellant’s property to gain access to a public recreational area. However,
appellant is mistaken in asserting that “neither [respondents] nor their paying guests
‘ “have any use or interest in the property that is distinguishable from the public
generally.” ’ ” (Quoting Bustillos, supra, 96 Cal.App.4th at p. 1281.) As in Pulido,
respondents’ interest is distinguishable from the interest of the general public. The trial
court found respondents acquired a prescriptive easement, as owners of the neighboring
property, due to the use by themselves and their predecessors of the path over appellant’s
land. Although the trial court’s judgment does not specify the nature of the easement, it
is plainly an easement “appurtenant” to respondents’ property. (See Committee to Save
Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92
Cal.App.4th 1247, 1269 [“An easement appurtenant to the land is ‘attached to the land of
the owner of the easement, and benefits him as the owner or possessor of that land.’ ”].)5

5
  “Easements may be appurtenant or in gross.” (12 Witkin, Summary of Cal. Law (11th
ed. 2017) Real Property, § 397, p. 456; see also 6 Miller & Starr, Cal. Real Estate (4th
Ed. 2018) Easements, §§ 15:6-15:8, pp. 15-24 to 15-36.) “In considering extrinsic
evidence of the nature of an easement, courts may consider the type of rights conveyed
and the relationship between the easement and other real property owned by the recipient
of the easement. [Citation.] As an illustration, [treatise authors] suggest that where a
roadway easement provides access to a particular parcel of real property a court may infer
the easement is appurtenant to that parcel.” (Moylan v. Dykes (1986) 181 Cal.App.3d
561, 569.) “The second rule, of judicial origin, is that an easement will not be interpreted
as being in gross if it may fairly be interpreted as being appurtenant.” (Ibid.) In the
present case, the easement’s obvious benefit to respondents’ property and respondents’
reliance on the predecessor owners’ use demonstrates that the easement is appurtenant to

                                              7
In contrast, the easement in Bustillos was plainly personal (or “in gross”), and there was
nothing preventing other similarly situated members of the public from making the same
prescriptive easement claim. (See Moylan v. Dykes, supra, 181 Cal.App.3d at p. 568
[“An easement in gross, unlike an appurtenant easement, is merely a personal right to use
the land of another. [Citation.] It does not pass with the land.”].) Because Bustillos
involved a fundamentally different kind of easement, the concern in that case that the
easement was similar to grant of an easement to the public is not present here.6
       Section 1009 did not prohibit the trial court from awarding the prescriptive
easement in the judgment.
II.    Appellant’s Remaining Contentions Are Without Merit
       Appellant contends the trial court erred in “establishing a ‘partial’ easement”
because respondents were not also awarded an easement over Ms. Moody’s property,
which they needed to cross to reach the dunes after crossing appellant’s land. However,
appellant cites nothing in the record showing that Ms. Moody had blocked or objected to
respondents crossing her land. Appellant presents no reasoned argument why
respondents were required to seek simultaneous recognition of an easement over Ms.
Moody’s property in these circumstances.
       Appellant argues respondents should not have been granted an easement
permitting their Airbnb guests to cross his land. He asserts that “the trial court erred in
interpreting evidence of the [respondents’] own ‘personal’ use of the footpath as proof
establishing prescriptive rights for their paying guests.” However, as we have explained,
the easement granted by the trial court is appurtenant to the land. Appellant cites no



the land. (See Eastman v. Piper (1924) 68 Cal.App. 554, 567–568 [“Whenever the right
in question is in its nature an appropriate and useful adjunct of the land owned by the
grantee of the easement, having in view his intention as to its use, and there is nothing to
show that the parties intended it to be a mere personal right, it will be held to be an
easement appurtenant and not in gross.”].)
6
  We express no opinion as to whether in the proper case an individual could obtain a
prescriptive easement in gross based on an interest distinguishable from the interest of the
public generally.

                                              8
authority that persons paying to stay on a property benefitting from such an easement—
whether long-term tenants or vacation renters—cannot use the easement. Neither has
appellant shown the easement grants respondents, as they assert, “a monopoly on ‘public
access’ to the dunes and the Pacific Ocean at this entryway.” Access by respondents and
their invitees is not public access.
       Furthermore, appellant has not demonstrated that allowing Airbnb guests to use
the easement imposes “a substantial increase or change of burden on the servient
tenement.” (Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 850.) The record
supports the trial court’s finding that “the incremental increased burden . . . is modest”
and “consistent with the pattern formed by the adverse use by which the prescriptive
easement was created.” (Cf. Bartholomew, at p. 851 [the defendants’ easement to travel a
roadway did not “entitle them to invite large numbers of the members and patrons of their
nudist colony, the summer resort, dining room and store, to travel the private roadway to
patronize those commercial enterprises”]; LeDeit v. Ehlert (1962) 205 Cal.App.2d 154,
165–166 [terms of “easement in gross” did not permit owner of easement to “take paying
guests over appellants’ land”].) Appellant emphasizes the potential for a large number of
annual Airbnb visitors, but the trial court reasonably focused on whether the easement
itself would see substantially increased use, observing that “[t]he salient issue is whether
having a couple other people residing on the property from time to time transforms the
scope of the easement and the burden it imposes on the servient tenement.”7
       Appellant has not shown the trial court abused its discretion (Aguayo v. Amaro
(2013) 213 Cal.App.4th 1102, 1110) in declining to award respondents an easement on
the basis of the unclean hands doctrine. He argues respondents illegally hosted numerous
Airbnb guests before applying for a vacation rental permit in October 2016. But “[t]he
unclean hands rule does not call for denial of relief to a plaintiff guilty of any past
improper conduct; it is only misconduct in the particular transaction or connected with

7
 This decision does not preclude a future action should the use of the easement
substantially exceed the use at issue in the present case. (See Bartholomew v. Staheli,
supra, 86 Cal.App.2d at pp. 850–851.)

                                               9
the subject matter of the litigation which is a defense. [Citation.] The bar applies only if
the inequitable conduct occurred in a transaction directly related to the matter before the
court and affects the equitable relationship between the litigants.” (Wilson v. S.L. Rey,
Inc. (1993) 17 Cal.App.4th 234, 244.) Because respondents’ failure to obtain a permit
before hosting Airbnb guests is not directly connected with the prescriptive easement
claim, the trial court did not abuse its discretion in rejecting the unclean hands defense.
       Finally, appellant argues the trial court erred in concluding the use of the property
line path was adverse in light of the testimony by Romana Downie that she gave
respondents’ predecessors permission to use a different path across her land. The
argument fails. Appellant cites no authority that permission to use one path constitutes
permission to use a different path, and appellant cites no evidence respondents were
given permission to use the path at issue in the present case.8 And appellant, who was the
owner after 2006, cites no evidence he gave respondents or the Bolstas permission to
cross his property on any path. Moreover, contrary to appellant’s assertion, respondents
were not required to present evidence they actually communicated their easement claim
to appellant or Ms. Downie. (Warsaw, supra, 35 Cal.3d at pp. 571–572 [“[C]ontinuous
use of an easement over a long period of time without the landowner’s interference is
presumptive evidence of its existence and in the absence of evidence of mere permissive
use it will be sufficient to sustain a judgment.”]; Aaron v. Dunham (2006) 137
Cal.App.4th 1244, 1253 [“continuous use over a long period of time constitutes
communication of the claim of right”].)9


8
  For the first time in his reply brief appellant argues there was insufficient evidence of
continuous use of the contested path over his property. Appellant’s argument is
untimely. (Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9.) In any event, the
trial court could reasonably infer from the testimony of Aharon Bolsta that his parents
walked the path on a near-daily basis after 2006, based on his observations of their habits
during his periodic visits and periods of residence at the Mendocino property.
Furthermore, respondents testified to their regular use of the path.
9
  The case appellant relies on, Case v. Uridge (1960) 180 Cal.App.2d 1, is inconsistent
with the Supreme Court’s decision in Warsaw, supra, 35 Cal.3d at page 572. (See Aaron
v. Dunham, supra, 137 Cal.App.4th at p. 1253 [pointing out that another case, if read to

                                             10
                                     DISPOSITION
      The trial court’s judgment is affirmed. Costs on appeal are awarded to
respondents.




include an express communication requirement, is inconsistent with Warsaw];
MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 701
[pointing out pre-Warsaw split in authority].) There is some debate as to whether
evidence of ongoing use merely “establishes an inference that the use was adverse and
hostile,” rather than a “presumption of adversity.” (6 Miller & Starr, Cal. Real Estate
(4th ed. 2018) § 15:32, p. 15–132.) But, even if evidence of use does not establish a
presumption, it is clear such evidence can support an inference of adversity. (See Grant
v. Ratliff (2008) 164 Cal.App.4th 1304, 1309 [“Warsaw stands for nothing more than that
the open, notorious and continuous use of another’s land is sufficient evidence to support
a finding that the use was adverse. Not to be presumptive, we think the discussion of
presumption was at best dictum.”].)

                                            11
                   SIMONS, J.




We concur.




JONES, P.J.




BURNS, J.




(A152946)




              12
Superior Court of Mendocino County, No. SCTMCVG16-67625, Hon. Clayton L.
Brennan, Judge.


Michael P. Scott for Defendant and Appellant.


Jason Ditzian and Lauren Ditzian, in pro. per., for Plaintiffs and Respondents.




                                            13
