Husain v. Cal. Pac. Bank

• Decision Date: 09 March 2021
• Docket Number: A159067
• Citation: 61 Cal.App.5th 717,276 Cal.Rptr.3d 34
• Court: California Court of Appeals Court of Appeals
• Parties: Syed HUSAIN, Plaintiff, Cross-defendant and Appellant, v. CALIFORNIA PACIFIC BANK, Defendant, Cross-complainant and Respondent.

61 Cal.App.5th 717

276 Cal.Rptr.3d 34

Syed HUSAIN, Plaintiff, Cross-defendant and Appellant,

v.CALIFORNIA PACIFIC BANK, Defendant, Cross-complainant and Respondent.

A159067

Court of Appeal, First District, Division 2, California.

Filed March 9, 2021

Attorney for Plaintiff and Appellant Syed Husain: Wagstaffe, von Loewenfeldt, Busch & Radwick LLP, Michael von Loewenfeldt, San Francisco.

Attorney for Defendant and Respondent California Pacific Bank: Wilke Fleury LLP, Matthew W. Powell, Sacramento.

Richman, Acting P.J. Syed Husain appeals from a judgment granting a prescriptive easement over portions of Husain's property on Willow Avenue, Burlingame (the Willow property), a judgment in favor of California Pacific Bank (Bank), the owner of the adjacent property on El Camino Real (the El Camino property).

For at least 50 years, until 2011, the properties were owned by a single owner, most recently by Hana Shiheiber, who acquired them in 2005. Shiheiber allowed tenants of the El Camino property to use portions of the Willow property for access, parking, and garbage removal, and as a garden. Shiheiber defaulted on her mortgage, and in 2011, the properties were sold to lienholders, the Willow property to JPMorgan Chase (JPMorgan), and the El Camino property to the Bank. And after those purchases, the Bank and the tenants of the El Camino property continued to use portions of the Willow property as before.

In 2017, Husain acquired the Willow property and shortly thereafter filed a complaint against the Bank to quiet title. The Bank cross-complained for prescriptive easement. Following a court trial, the court issued a comprehensive statement of decision for the Bank, a decision "[b]ased upon the law and equity and after weighing all the evidence presented." Judgment for the Bank followed, which Husain appeals here, contending that the evidence compelled the opposite conclusion—that the use of the Willow property was permissive and remained permissive unless and until JPMorgan repudiated or revoked that permission. We reject the contention, concluding that the decision of the trial court is sound, it is equitable, and it is supported by the record. We thus affirm the judgment.

BACKGROUND

The Properties, Their Ownership, and the General Setting

The El Camino property, at 789 El Camino Real, is a rectangular parcel on which sits the Villa Tuscany Apartments (the Apartments), a large apartment building with an underground garage. The Willow property, at 1507–1509 Willow Avenue, south of the El Camino property, is an L-shaped parcel on which there is a duplex, a concrete parking area, and a large undeveloped area in the rear.

In the 1960s, both properties were owned by Robert and Edith Carpenter. The Carpenters planned an addition to the Apartments, and in January 1964 they obtained a variance from the City of Burlingame that allowed four off-site parking spaces for the El Camino property to be located on the Willow property. The Carpenters never expanded the Apartments, and under the Building Code the variance became void.

The properties changed hands several times over the next decades, always remaining jointly owned, sometimes transferred by the same deed. In 2005, both properties were acquired by Shiheiber, who allowed tenants of the Apartments to use the Willow property, including for access, parking, storage of garbage, and recreational purposes.

In 2010, Shiheiber defaulted on the mortgages and ultimately both properties were sold via trustees’ sales, the Willow property to JPMorgan in May 2011, and the El Camino property to junior lienholder Bank in June. As the trial court would later describe it, "Accordingly, as of the summer of 2011, for the first time in over 50 years, the two properties were not under common ownership."¹

We digress briefly from the chronology of ownership to note Shiheiber's response to JPMorgan's complaint to foreclose. That response was a cross-complaint in which Shiheiber alleged among other things that JPMorgan (identified in the cross-complaint as "Chase") "has attempted to misappropriate and trespass upon real property over which it holds no security interest, including, without limitation the parking spaces on the parcel adjacent to the [El Camino] property and backyard of the [Willow] property"; that "Chase and/or its agents advertised the backyard and other portions of the adjacent Willow Avenue property as part of the premises of the 789 El Camino property available for use and enjoyment by the tenants of the 789 El Camino property"; that "Chase and/or its agents misappropriated parking spaces allocated to the Willow property, thereby interfering with the Willow tenants’ use and enjoyment"; and that "Shiheiber did not give permission for the entry and/or the entry exceeded any permission."² The cross-complaint concluded that "the actions alleged above constitute trespass onto the land owned by Shiheiber and over which Chase does not hold a security interest and/or which was not part of the 789 El Camino property."

With the two trustee sales in 2011, JPMorgan and the Bank became the owners of the respective properties, which ownership remained the same until the Willow property was sold to Husain on July 31, 2017—a sale closed against the background that Husain was aware that the Bank claimed a prescriptive easement over the Willow property. Specifically:

On June 25, 2017, during his preliminary communications with real estate broker Coldwell Banker Real Estate LLC, Husain was presented with a "Visual Inspection Disclosure" that had an entire page devoted to usage issues at the Willow property and the Bank's prescriptive easement claim. The disclosure notes that the tenants were parking on the Willow property and using the driveway to access the Apartments, and that "[t]he neighboring apartment building claims there is a prescriptive easement on the property's lot for use by [the] tenants." Husain signed the disclosure.

Then, as negotiations continued, JPMorgan insisted that Husain sign a "Hold Harmless Agreement," which he did, acknowledging that JPMorgan had informed him about various issues, including a non-conforming use, a parking space dispute, and pending lawsuits with the former owner involving ownership issues. This agreement required Husain to indemnify and hold JPMorgan harmless from any claims or demands arising in any way out of any issues relating to the "parking issue described above." Husain's signature on this agreement was notarized on July 27, 2017.

JPMorgan then provided Husain with a more detailed description of the easement claimed by the Bank, this in an "Indemnification and Hold Harmless Agreement" Husain signed in late July 2017, just before the close of escrow. The Indemnification and Hold Harmless Agreement contains an attachment titled "Potential Easement Issues," and describes the Bank's prescriptive easement claim over the Willow property, setting forth in detail the factual basis for that claim.³

Against that background, Husain's purchase of the Willow property closed on July 31, 2017.

As indicated above, when Shiheiber owned the properties, the tenants in the Apartments were allowed to use portions of the Willow property, which portions included the driveway, garbage bins, eight parking spaces, and a garden. Not only was this allowed, the fact is that the only access for vehicles to enter and exit the underground garage is via the driveway. Moreover, the sprinkler system for the garden on the Willow property is located in the garage of the Apartments.

Such use continued after the Bank purchased the El Camino property in June 2011, the Bank and the tenants using the Willow property for access, parking, garbage storage, and recreation, the last of which included maintaining a garden, a barbeque, and a picnic area—which use led to the litigation here.

The Proceedings Below

In November 2017, Husain filed a complaint to quiet title against the Bank. The Bank filed an answer and a cross-complaint for prescriptive easement, quiet title, and declaratory relief. Husain filed his answer to the cross-complaint, and the issue was joined.

In July 2019, the case came on for trial before the Honorable Nancy Fineman, a trial which occurred over three court days, included within which was a site visit by Judge Fineman. As she would describe it, the critical issue was "whether the Bank has a prescriptive easement or some other right to use portions of [the] property now owned by Husain. These areas are: (1) a driveway; (2) four parking spaces which were identified in a variance ...; (3) four other parking spaces; (4) a garbage area; and (5) a garden." Following her visit to the site, Judge Fineman heard evidence about those items, which revealed the following:

The Driveway

During the six years that JPMorgan owned the Willow property, the tenants of the Apartments, their guests, vendors, and repair persons used the driveway that straddles the boundary between the two properties, a driveway, as noted, providing the only way to access the underground parking at the Apartments as well as the outdoor parking spaces. Such use was "substantial and constant," perhaps as many as 100 times a day.

The Parking Spaces

As with the driveway, the Bank, the tenants, and their visitors used the eight parking spaces daily. The use of the parking spaces was consistent and frequent, so much so that essentially every photograph of the parking spaces introduced at trial shows cars parked in the spaces. In addition to using the parking spaces, the Bank maintained them, keeping them clean and free of trash, at one point installing a retaining wall in front of the spaces to prevent the accumulation of dirt and debris.

The Garbage Area

During the years JPMorgan owned the Willow property, the "tenants used the garbage area on a daily basis for trash and recycling and that the garbage trucks came onto the Willow property to collect the tenants’ trash and recyclables two times a week for the entire five-year...