Filed 8/28/20 Valles v. Kim CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION THREE


 RUDY E. VALLES et al.,                                        B296274

           Plaintiffs and Respondents,                         (Los Angeles County
                                                               Super. Ct. No. BC642256)
           v.

 SAMIL KIM et al.,

           Defendants and Appellants.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Michelle Williams Court, Judge. Affirmed.
      Hennelley & Grossfeld, Paul T. Martin and Susan J.
Williams for Defendants and Appellants.
      Sullivan Workman & Dee, Karyn A. M. Jakubowski and
Charles D. Cummings for Plaintiffs and Respondents.
                     ——————————
      At issue is a dispute over an exclusive easement for
parking. The trial court found that plaintiffs1 had extinguished
the easement burdening their property by adverse possession.
Defendants,2 the easement holders, appeal challenging only the
finding that plaintiffs’ use of the easement for parking, deliveries,
and to house a boat, was hostile to defendants’ rights. We hold
that the easement at issue was an exclusive one that did not
reserve to plaintiffs any right to use it, and so the evidence
supports the trial court’s finding that plaintiffs’ use was hostile.
Accordingly, we affirm the judgment.
                         BACKGROUND
      The easement at issue is located in a larger parking lot
situated behind a block of commercial buildings on the corner of
Alburtis Avenue and Telegraph Road in Santa Fe Springs,
California (the easement). Measuring approximately 3,500
square feet and comprising 22 parking spaces, the easement
burdens the rear of 9901 Alburtis Avenue and is sandwiched
between two nonexclusive easements for ingress and egress. The
easement was created by M & R Investment Company II in May
1999, by deed that granted “an exclusive easement for parking”
(capitalization omitted) to M & R Investment Company with a
mailing address of 11621 Telegraph Road.



      1Plaintiffs are Rudy E. and Evelyn M. Valles, individually
and as trustees of the Valles Living Trust dated June 26, 1997.
      2Defendants are Samil and Nana Ruth Kim, individually
and as trustees of the Kim Revocable Trust dated February 29,
1996.




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I.    Plaintiffs’ property at 9901 and 9915 Alburtis Avenue
      Immediately adjacent to 9901 Alburtis Avenue, at the
corner of Alburtis Avenue and Telegraph Road, is 9915 Alburtis
Avenue, which plaintiffs have owned since 1988. There, plaintiffs
operated their company Revco Spring Manufacturing (Revco
Spring), a maker of precision springs. In addition to owning 9915
Alburtis Avenue, plaintiffs rented neighboring 9901 Alburtis
Avenue to warehouse Revco Spring’s machines and equipment.
      In the fall of 1999, just months after creating the easement,
M & R Investment Company II sold 9901 Alburtis Avenue to
plaintiffs. The deed to plaintiffs identifies several non-exclusive
easements but makes no mention of the easement at issue here.
However, at the time of the sale, an executive at M & R
Investment Company II told plaintiff Rudy Valles that an
easement existed at the back of 9901 Alburtis Avenue for the
benefit of 11621 to 11627 Telegraph Road. Also, the easement
was listed as an exclusion from title insurance coverage on
Schedule B, part 2 of the preliminary title report prepared for
plaintiffs’ escrow. As of autumn 1999, plaintiffs owned both 9901
and 9915 Alburtis Avenue.
      Since at least 1993, employees of Revco Spring, along with
members of plaintiffs’ family, regularly parked on the easement,
some three, and others five days a week. Also, two to three times
a week, and sometimes daily depending on business, Revco
Spring occupied the easement to load and unload equipment and
products from big-rig trucks. The trucks were so large that they
needed the entire easement simply to turn around.
      In early 2000, Revco Spring slurry coated the easement
area.




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        In February 2003, plaintiffs executed a deed to M & R
Investment confirming the easement’s existence. Still, plaintiffs
continued to use the easement in the same manner for parking
and deliveries.
        From 2008 to 2014, plaintiffs’ son David Valles used the
easement to park a 27-by-8-foot trailer carrying his boat. At one
point, he left the boat and trailer there for two years straight.3
        Defendants’ predecessors in interest resurfaced the
easement in 2009.
        Mario Andrade (Andrade) became plaintiffs’ tenant at 9901
Alburtis Avenue in 2014 and used the easement daily for
deliveries. At least 20 trucks loaded and unloaded boxes for
Andrade twice a day, from between 5:00 a.m. and 8:00 a.m. and
again from 11:00 a.m. until around 1:00 p.m. Meanwhile,
Andrade’s employees waited around on the easement for the
trucks to arrive. During these deliveries, Andrade used all 22 of
the easement’s parking spaces.
        Revco Spring did not erect barriers or prevent anyone from
parking on the easement. Plaintiff Rudy Valles agreed that
anyone who wanted to could park there.
        Before 2015, no one told plaintiffs or any of plaintiffs’
employees or tenants that they could not use the easement. The
first time anyone attempted to restrict parking on the easement
was in 2016 when defendants hired a security guard.




      3In November 2012, plaintiffs conveyed the property to
themselves for the purpose of changing the name of the owner of
record. This transfer did not mention the easement.




                                4
II.   Defendants’ property at 11621-11627 Telegraph Road
      In July 2015, defendants purchased 11621-11627
Telegraph Road. Defendants’ property consists of an office
building with 74 parking spaces in the rear. In addition to
several nonexclusive easements for ingress and egress over five
parcels, the deed to defendants conveyed the easement.
Including the easement’s 22 spaces, defendants believed they had
exclusive right to 96 parking spaces in the larger lot behind the
block of commercial buildings on the corner of Alburtis Avenue
and Telegraph Road. Defendants created PSM Joy, LLC to
manage their property.
      From the beginning, defendants saw that the easement was
being used by parked cars, trucks, and David Valles’ boat.
Although no one prevented defendants’ tenants from parking on
the easement, tenants complained to defendants that they were
unable to park there because plaintiffs were using all 22 spaces.
      Days after purchasing the property, on July 20, 2015,
defendant Samil Kim notified plaintiffs by letter that defendants
owned the easement and that it was to be used by the owners and
tenants of defendants’ property only. Defendants requested that
plaintiffs remove the boat trailer from the easement by the end of
the month, and notified plaintiffs of defendants’ intention to
resurface and reline the easement.
      Plaintiffs’ attorney responded that his clients believed that
they owned the disputed property. If there were an easement,
counsel wrote, it was not exclusive. Hence, counsel instructed his
clients not to remove any property from the easement.
      Defendants restriped the easement in the summer of 2016
and plaintiffs made no attempt to stop them. In January 2016,
defendants hired a security guard to police the 96 parking spaces




                                5
and assigned the spaces to their own tenants. During the
10 months the guard worked there, plaintiffs did not use the
easement area.
      However, on November 30, 2016, plaintiffs brought the
instant lawsuit against defendants. The complaint sought to
quiet title to the easement as of July 10, 2015 when defendants
purchased their property, to cancel the easement deed, trespass
damages, and declaratory relief.
      After a two-day trial to the bench, the trial court found in
favor of plaintiffs on the basis that they had satisfied all of the
elements of adverse possession.4 The court declared the
easement extinguished. Defendants timely appealed.
                          DISCUSSION
I. Legal principles
       “ ‘ “An easement involves primarily the privilege of doing a
certain act on, or to the detriment of, another’s property.”
[Citation.] An easement gives a nonpossessory and restricted
right to a specific use or activity upon another’s property, which
right must be less than the right of ownership. [Citation.]’
[Citations.] Thus, ‘[t]he owner of the easement is not the owner
of the property, but merely the possessor of a “right to use
someone’s land for a specified purpose.” ’ ” (Blackmore v. Powell
(2007) 150 Cal.App.4th 1593, 1598.)
       “The land to which an easement is attached is called the
dominant tenement; the land upon which a burden or servitude is
laid is called the servient tenement.” (Civ. Code, § 803; accord,


      4The court found for defendants on plaintiffs’ trespass
cause of action.




                                  6
Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 767.) Here,
defendants’ land would be the dominant tenement and plaintiffs’
land was the servient tenement.
       The “extent of a servitude is determined by the terms of the
grant.” (Civ. Code, § 806.) “ ‘In construing an instrument
conveying an easement, the rules applicable to the construction of
deeds generally apply.’ [Citation.] The instrument, ‘unless it is
ambiguous, must be construed by a consideration of its own
terms. The meaning and intent thereof is a question of law and
the reviewing court is not bound by the trial court’s findings and
conclusions regarding such intent and meaning.’ ” (Gray v.
McCormick (2008) 167 Cal.App.4th 1019, 1024 (Gray).)
       An “easement may be extinguished by the user of the
servient tenement in a manner adverse to the exercise of the
easement, for the period required to give title to land by adverse
possession.” (Glatts v. Henson (1948) 31 Cal.2d 368, 371.) In
California, to establish title by adverse possession, the claimant
must show five elements: “ ‘1) Possession under claim of right or
color of title; 2) actual, open, and notorious occupation of the
premises in such a manner as to constitute reasonable notice to
the true owner; 3) possession which is adverse and hostile to the
true owner; 4) possession which is uninterrupted and continuous
for at least five years; and 5) payment of all taxes assessed
against the property during the five-year period.’ ” (Marriage v.
Keener (1994) 26 Cal.App.4th 186, 192.)
       “Whether the various elements of adverse possession have
been established is a question of fact.” (Sevier v. Locher (1990)
222 Cal.App.3d 1082, 1087.) “ ‘On appeal, when the evidence is
contradictory, conflicting interpretations are presented thereby,
or conflicting inferences may be drawn therefrom, that which




                                7
favors the judgment must be accepted as true, and that which is
unfavorable must be discarded as not having had sufficient verity
for acceptance by the trial court.’ ” (Ibid.)
II.   Analysis
      A. The easement is exclusive and reserved no rights to the
servient tenement.
       Defendants do not dispute that plaintiffs established four of
the five elements of adverse possession. They only challenge the
trial court’s finding that the “easement at issue in this case is an
‘exclusive easement for parking.’ Any use of the easement area
would be hostile to the Parking Easement.” (Italics added.)
Defendants contend that to meet the hostility element, plaintiffs
must have actually erected a barrier or made a permanent
improvement on the easement that completely prevented
defendants from using it. They argue that plaintiffs’ “transitory”
use of the easement and failure to prevent defendants from
parking on it was not inconsistent with defendants’ rights and
did not operate to extinguish the easement.
       Here, the deed conveying the easement benefiting
defendants’ land granted “an exclusive easement for parking.”
(See Civ. Code, § 806.) The parties do not dispute that the
easement was exclusive.
       An “ ‘exclusive easement’ is an unusual interest in land; it
has been said to amount almost to a conveyance of the fee.” (City
of Pasadena v. California-Michigan Land & Water Co. (1941)
17 Cal.2d 576, 578.) “ ‘The term “exclusive” used in the context of
servitudes means the right to exclude others. The degree of
exclusivity of the rights conferred by an easement . . . is highly
variable and includes two aspects: who may be excluded and the
uses or area from which they may be excluded. At one extreme,




                                 8
the holder of the easement . . . has no right to exclude anyone
from making any use that does not unreasonably interfere with
the uses authorized by the servitude. . . . At the other extreme,
the holder of the easement . . . has the right to exclude everyone,
including the servient owner, from making any use of the land
within the easement boundaries.’ ” (Gray, supra,
167 Cal.App.4th at p. 1024.) The former extreme is relative,
whereas the latter is absolute.
       In Gray, supra, 167 Cal.App.4th at page 1026, the
questions were whether the easement was exclusive, and the
extent of the exclusivity conferred. After reviewing the case law
of exclusive easements, the Gray court construed the instrument
creating the easement there as granting an exclusive one. (Ibid.)
Gray then rejected the servient owners’ argument that the
instrument gave them the right to all uses of the easement area
that were not inconsistent with the easement holders’ rights. (Id.
at pp. 1027–1028.) Gray concluded that the degree of exclusivity
fell on the latter, absolute extreme because the language of the
instrument did not reserve to the servient tenement any rights.
(Id. at pp. 1029–1029.) Thus, the dominant owner had the right
to exclude everyone while the servient tenement had no right to
use the easement at all.
       Here, viewing the easement deed, not only does the grant
expressly convey an exclusive easement for parking, but it
contains no express reservation of any rights in favor of the
owners of the servient tenement at 9901 Alburtis Avenue.
Accordingly, this easement lies at the absolute extreme described
in Gray, supra, 167 Cal.App.4th at page 1024, in which the
easement holder has “ ‘the right to exclude everyone, including




                                 9
the servient owner, from making any use of the land within the
easement boundaries.’ ” (Italics added.)
      B. The evidence supports the trial court’s finding that
plaintiffs’ use was hostile.
       One may extinguish a servitude by “the performance of any
act upon either tenement, by the owner of the servitude, or with
his assent, which is incompatible with its nature or exercise.”
(Civ. Code, § 811, subd. (3), italics added.) Here, only the
dominant tenement owner, defendants, and their tenants were
entitled to park on the easement. Nonetheless, the evidence and
inferences therefrom establish that starting around 1999 and
continuing for 17 years, plaintiffs, their tenants, employees, and
their deliverers, used the easement for parking, for trucks, and
even left a boat trailer on the easement for two of those years.
Defendants’ tenants complained that they were unable to park
there because it was occupied by plaintiffs. Accordingly, we
discern no trial court error in finding that plaintiffs’ use was
hostile to the easement holders’ right to exclude everyone from
the easement because the use was incompatible with the
easement’s nature.
       Defendants cite numerous cases involving nonexclusive
easement rights to argue that the hostile element of adverse
possession requires the construction of a barrier or the alteration
of the easement to prevent the dominant tenement from using it.
They observe that plaintiffs’ conduct did not oust them because
plaintiffs’ use was transitory and did not physically prevent
defendants and their tenants from parking in the 22 spaces.
Defendants contend therefore, that “the trial court apparently
assumed that an exclusive easement is subject to a different,
more lenient legal standard than is applied to non-exclusive




                                10
easements, such that an exclusive easement is easily
extinguished by ‘any use’ whereas a non-exclusive easement is
extinguished only where its use is rendered impossible.”
        The trial court did not apply a different standard for
exclusive easements than for nonexclusive easements. A servient
owner extinguishes an easement by “the performance of any
act . . . which is incompatible with [the easement’s] nature or
exercise.” (Civ. Code, § 811, subd. (3), italics added.) That
statute does not distinguish between exclusive and nonexclusive
easements and so it applies to both kinds. Likewise, the statute
allows for “any act” to extinguish a servitude so long as it is
incompatible with the nature or exercise of the easement. (Ibid.)
Thus, to terminate an easement by adverse possession the
occupancy must be sufficient to interfere with the easement’s
practical use. (6 Miller & Starr, Cal. Real Estate (4th ed. 2020)
Easements, § 15:85, fn. omitted (Miller & Starr).) Whether the
servient owner’s use is incompatible with an easement’s nature
or exercise, is a question of fact for the trier of fact, whose
findings are binding on the appellate court if supported by
substantial evidence. (Inzana v. Turlock Irrigation Dist. Bd. of
Directors (2019) 35 Cal.App.5th 429, 445; Sevier v. Locher, supra,
222 Cal.App.3d at p. 1087; Popovich v. O’Neal (1963)
219 Cal.App.2d 553, 556.)
        “With non-exclusive easements, the respective rights and
duties of the dominant and servient tenements are relative and
complementary.” (6 Miller & Starr, Cal. Real Estate, supra,
§ 15:63, fn. omitted.) The servient tenement owner is “ ‘entitled
to make all uses of the land that are not prohibited by the
servitude and that do not interfere unreasonably with the uses
authorized by the easement.’ ” (Dolnikov v. Ekizian (2013)




                               11
222 Cal.App.4th 419, 429.) Servient tenement owners may use
their property burdened by a nonexclusive easement without
unreasonably interfering with the dominant owner’s rights.
(Ibid.) Therefore, to successfully extinguish a nonexclusive
easement, where both the dominant and servient owners’ use
rights coincide, the servient owner’s hostile activity necessarily
must actually interfere with the dominant owner’s exercise, such
as by preventing, or materially obstructing, the dominant owner’s
use.5
       That is not the case with an exclusive easement that, as
with the one at issue here, permits only the dominant owner to
use it. With an easement granting the strict degree of exclusivity
found in defendants’ deed, any use of, and command over the
easement, is naturally incompatible with the dominant owner’s
rights to exclude everyone. The evidence supports the trial
court’s finding that plaintiffs’ use of the exclusive easement in
this case was hostile because it was wholly incompatible with the


      5 The cases defendants rely on are distinguished because
they all involved easements in which the dominant owner did not
hold the right to exclude any use by everyone. (Gerhard v.
Stephens (1968) 68 Cal.2d 864 [no interference with subsurface
right to drill for oil by conduct on surface]; Vieira Enterprises, Inc.
v. McCoy (2017) 8 Cal.App.5th 1057 [nonexclusive right of way];
Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 762 [easement
not exclusive]; Tract Development Services, Inc. v. Kepler (1988)
199 Cal.App.3d 1374, 1387 [no claim easement was exclusive];
Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 427 [nondedicated
alleyway]; Guerra v. Packard (1965) 236 Cal.App.2d 272
[nonexclusive right of way]; Weller v. Chavarria (1965) 233
Cal.App.2d 234, 238 [tenants in common owning undivided one-
half interests in roadway].)




                                  12
easement’s exclusive nature and the dominant owner’s right to
exercise that exclusivity. (See, e.g., Civ. Code, § 811, subd. (3).)
      Defendants also argue that plaintiffs’ use was “transitory”
because plaintiffs intermittently occupied the easement during
work hours but did not permanently bar others from using it.
Defendants cite testimony that plaintiffs allowed anyone who
wanted to park in the easement’s spaces, including the tenant of
defendants’ predecessor in interest, whose employees parked on
the easement as of 2003. We disagree. “Exclusive” occupation by
the adverse claimant is not an element of adverse possession and,
plaintiffs’ use, in the circumstances of this case, interfered with
defendants’ right to exclude all use of the easement and hence
was hostile.6
      Defendants dedicated much trial time to exhibits 236 and
237, the deed that plaintiffs executed in February 2003
confirming the easement’s existence. They also elicited testimony
that defendants’ predecessors in interest resurfaced and restriped
the easement in 2009. The five-year statute of limitations began
to run in 2003 when plaintiffs persisted in using the exclusive
parking space, openly, notoriously, and without permission,
notwithstanding their acknowledgment of the easement’s
existence. Hence, by 2009, when defendants’ predecessors in
interest restriped the easement, and long before 2015 when
defendants purchased the dominant tenement, or 2016 when


      6 Code of Civil Procedure section 325, subdivision (a) does
not aid defendants because that statute sets forth the elements of
adverse possession in general and not with specific reference to
easements, which involve the adverse possession of a right to use,
not of a fee.




                                13
defendants themselves resurfaced the easement, plaintiffs had
already extinguished the easement by adverse possession.
                        DISPOSITION
      The judgment is affirmed. Respondents are awarded their
costs on appeal.
      NOT TO BE PUBLISHED.



                                   DHANIDINA, J.

We concur:



             EDMON, P. J.



             EGERTON, J.




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