Gamerberg v. 3000 E. 11th St., LLC

• Citation: 257 Cal.Rptr.3d 652,44 Cal.App.5th 424
• Decision Date: 21 January 2020
• Docket Number: B290755
• Court: California Court of Appeals
• Parties: Ruben GAMERBERG, Plaintiff and Respondent, v. 3000 E. 11TH ST., LLC, Defendant and Appellant.

44 Cal.App.5th 424

257 Cal.Rptr.3d 652

Ruben GAMERBERG, Plaintiff and Respondent,

v.3000 E. 11TH ST., LLC, Defendant and Appellant.

B290755

Court of Appeal, Second District, Division 7, California.

Filed January 21, 2020

Zakariaie & Zakariaie, Jack M. Zakariaie ; Greines, Martin, Stein & Richland, Edward L. Xanders and Meehan Rasch, Los Angeles, for Defendant and Appellant.

Schorr Law, Zachary D. Schorr and Stephanie C. Goldstein, Los Angeles, for Plaintiff and Respondent.

PERLUSS, P. J.

In 1950 the owner of property in Boyle Heights agreed to provide eight parking spaces to the owner of a neighboring lot who wanted to build a warehouse exceeding the maximum allowable square footage then permitted by the Los Angeles Municipal Code (LAMC). A notarized parking affidavit documenting the agreement was filed with the Los Angeles Department of Building and Safety (LADBS), which then issued the second property owner a building permit and, ultimately, a certificate of occupancy for the completed warehouse. The parking affidavit was never recorded; nor is there any evidence the eight parking spaces were ever identified by either property owner or used by the second property owner or his successors.

3000 E. 11th St., LLC, the successor in interest to the first landowner, appeals from the judgment entered after a bench trial upholding the unrecorded parking affidavit as an irrevocable license in favor of Ruben Gamerberg, the successor in interest to the second property owner. The LLC, through its owners Steve Soroudi and his father, contends the trial court erred as a matter of law by upholding the parking affidavit even though Soroudi did not have actual or constructive notice of the parking affidavit when he purchased the property. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In 1994 Soroudi and his father purchased 3001 E. 12th Street in Boyle Heights through a predecessor to their jointly owned limited liability corporation, 3000 E. 11th St., LLC. Soroudi inspected the property before purchase and saw no indication anyone other than the previous owner’s employees had parked on the property. Neither the title report nor the deed he reviewed mentioned the 1950 parking affidavit or listed it as an encumbrance on the property. From 1994 until 2013 Soroudi allocated the parking spaces on the lot to his tenants. He had no knowledge of any outside claim to parking rights on the property.

Gamerberg and his wife purchased 3045 E. 12th Street in 2007. He, too, was unaware of the 1950 parking affidavit or any previous use by his predecessors of parking spaces on 3001 E. 12th Street. In 2013, however, when Gamerberg began consulting with LADBS about expanding and remodeling the warehouse on his property, an LADBS plan checker informed Gamerberg there was a parking affidavit for the property on file. The notarized affidavit, executed in 1950 between the respective owners of the two parcels, asserted that the owner of 3001 E. 12th Street would provide eight parking spaces to "be available at all times for tenants at 3045 E. 12th St."¹ The plan checker explained that the spaces indicated on the parking affidavit could be "grandfathered in" to meet the parking requirements for any expansion, as long as he notified the other owner of the planned construction and Gamerberg’s need for the eight spaces described in the affidavit.

In October 2013 Gamerberg’s architectural designer sent Soroudi a certified letter attaching the parking affidavit and stating: "This letter serves as verification for [the] existence of [a] Parking Affidavit granting use of [eight] Parking Spaces to tenants/owners of 3045 East 12th Street ... at 3001 East 12th Street.... [P]lease provide us with exact locations as soon as possible."

Soroudi returned the receipt for the certified letter, consulted his attorney and made a claim on his title insurance. He did not respond to the letter, and neither Gamerberg nor his architectural designer contacted him further. The architectural designer provided the plan checker with a copy of the return receipt for the certified letter as proof Soroudi had been notified. Based on the receipt, the plan checker approved Gamerberg’s plans for the warehouse expansion; and LADBS issued a building permit for the expansion in January 2014.

Nearing completion of the expansion in March 2015, Gamerberg, having already spent approximately $600,000 adding a new building behind the existing warehouse, dividing the warehouse space into five units and adding a mezzanine space,² again contacted Soroudi to confirm the location and availability of the parking spaces. Soroudi requested documentation and informed Gamerberg the matter had been referred to his counsel. In July 2015 Gamerberg again demanded identification of the parking spaces, but Soroudi said his lawyer was still reviewing the issue. LADBS advised Gamerberg that the parking affidavit gave him the right to the eight parking spaces but that, if he was not able to gain access to the spaces, it was a civil matter between him and his neighbor.

Gamerberg filed his complaint in this action on December 16, 2015, asserting causes of action seeking a declaration of an equitable servitude, an equitable easement or an irrevocable license.³ He proceeded to trial solely on the third cause of action for an irrevocable license. After a bench trial at which Gamerberg and Soroudi, as well as an LADBS supervisor, each testified, the court ruled an irrevocable license had been created in 1950 when Gamerberg’s predecessor had expended money to build the warehouse in reliance on Soroudi’s predecessor’s agreement to provide eight parking spaces. Relying principally on the decision in Noronha v. Stewart (1988) 199 Cal.App.3d 485, 245 Cal.Rptr. 94 ( Noronha ), the court held the license was binding on the 1950 property owners’ successors in interest even if they took title with no knowledge of the parking affidavit.

DISCUSSION

1. Standard of Review

"The grant of an irrevocable license is ‘based in equity,’ " which we review for an abuse of discretion. ( Richardson v. Franc (2015) 233 Cal.App.4th 744, 751, 182 Cal.Rptr.3d 853 ( Richardson ).) " ‘Under that standard, we resolve all evidentiary conflicts in favor of the judgment and determine whether the trial court’s decision " ‘falls within the permissible range of options set by the legal criteria.’ " ’ " ( Ibid . )

The legal question raised in this appeal is whether the 1950 parking affidavit can be construed to create an irrevocable license in favor of Gamerberg that is binding on Soroudi, a subsequent purchaser without notice. Gamerberg dismissed his causes of action seeking declarations of an equitable servitude or equitable easement, each of which typically requires, among other formalities, actual or constructive notice to bind a subsequent purchaser.⁴ (See, e.g., Taormina Theosophical Community , Inc. v. Silver (1983) 140 Cal.App.3d 964, 972, 190 Cal.Rptr. 38 [" ‘[e]ven though a covenant does not run with the land, it may be enforceable in equity against a transferee of the covenantor who takes with knowledge of its terms under circumstances which would make it inequitable to permit him to avoid the restriction,’ " quoting Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 378, 101 P.2d 490 ]; see also Mesmer v. Uharriet (1916) 174 Cal. 110, 162 P. 104 ["A purchaser of land for value takes subject only to interests in the land of which he has actual notice or which appear of record. The rule applies as well to easements as to claims of a greater interest."].)

2. The Characteristics of an Irrevocable License

"When a landowner allows someone else to use her land, the owner is granting a license. A license may be created by express permission or by acquiescence (that is, by ‘tacitly permit[ing] another to repeatedly do acts upon the land’ ‘with full knowledge of the facts’ and without objecting)." ( Shoen v. Zacarias (2019) 33 Cal.App.5th 1112, 1119, 245 Cal.Rptr.3d 683 ( Shoen ).) Unlike covenants that run with the land, such as easements, a license is a personal right and confers no interest in land: "[I]t merely makes lawful an act that otherwise would constitute a trespass." ( Richardson , supra , 233 Cal.App.4th at pp. 758-759, 182 Cal.Rptr.3d 853 ; see Eastman v. Piper (1924) 68 Cal.App. 554, 560, 229 P. 1002 [" ‘a valid license to enter on land ... rests on the distinction that a license is only an authority to do an act or series of acts on the land of another, and passes no estate or interest therein’ "]; see Smith, Neighboring Property Owners (Dec. 2019 supp.) § 7:2 ["A license is best understood as a residuary category, which apples whenever an interest does not meet the definitional parameters of a lease or easement. A license, commonly viewed as an interest of much less significance than other property rights, is often stated to be not an interest in land at all, but only the mere permission of the landowner."].)

In keeping with a license’s permissive nature, " ‘[a] licensor generally can revoke a license at any time without excuse or without consideration to the licensee.’ " ( Richardson , supra , 233 Cal.App.4th at p. 751, 182 Cal.Rptr.3d 853 ; accord, Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36, 31 Cal.Rptr.2d 378 ["a license is normally revocable at will"].) Moreover, "a license, being a mere personal privilege, is never extended to the heirs or assigns of the licensee. Indeed, any attempt by the licensee to assign the license ordinarily destroys and terminates it." ( Eastman v. Piper , supra , 68 Cal.App. at p. 562, 229 P. 1002 ; accord, Beckett v. City of Paris Dry Goods Co. (1939) 14 Cal.2d 633, 637, 96 P.2d 122 ; Richardson , at p. 751, 182 Cal.Rptr.3d 853 ; see 6 Miller & Starr, Cal. Real Estate (4th ed. 2019) § 15.2.)

Nonetheless, "[a]n otherwise revocable license becomes irrevocable when the licensee, acting in reasonable reliance either on the licensor’s representations or on the terms of the license,...