Romero v. Shih

• Decision Date: 05 May 2022
• Docket Number: B310069
• Citation: 78 Cal.App.5th 326,293 Cal.Rptr.3d 477
• Parties: Tatana Spicakova ROMERO et al., Plaintiffs, Cross-defendants and Appellants, v. Li-Chuan SHIH et al., Defendants, Cross-complainants and Respondents; U.S. Bank National Association, Cross-defendant and Respondent.
• Court: California Court of Appeals

78 Cal.App.5th 326

293 Cal.Rptr.3d 477

Tatana Spicakova ROMERO et al., Plaintiffs, Cross-defendants and Appellants,

v.Li-Chuan SHIH et al., Defendants, Cross-complainants and Respondents;

U.S. Bank National Association, Cross-defendant and Respondent.

B310069

Court of Appeal, Second District, Division 8, California.

Filed May 5, 2022

McCormick, Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie, Fresno, for Plaintiffs, Cross-defendants and Appellants.

Songstad Randall Coffee & Humphrey, Janet E. Humphrey, Costa Mesa, and Elyn C. Holt, Irvine, for Defendants, Cross-complainants and Respondents.

No appearance by Cross-defendant and Respondent.

STRATTON, J.

After a bench trial, the trial court resolved a property line dispute between two neighbors by creating an easement in favor of respondents, the encroaching property owners. It granted respondents an exclusive implied easement and, alternatively, an equitable easement over the entire 1,296-square-foot encroachment. Appellants appeal the judgment.

We reverse the judgment on the cause of action for implied easement, and affirm the judgment on the cause of action for equitable easement.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Two Properties at Issue

The two neighboring properties at issue are located next door to each other at 643 West Algeria Avenue (643 property) and 651 West Algeria Avenue (651 property) in Sierra Madre, California.

Tatana and Cesar Romero (appellants) own 651 property. Li-Chuan Shih and Tun-Jen Ko (respondents) own 643 property. At times we refer to the 651 address as appellants’ 651 property and the 643 address as respondents’ 643 property.

B. Prior Owners’ Application for a Lot Line Adjustment

In 1941, Edwin and Ann Cutler (the Cutlers) purchased both properties. At the time of purchase, the 643 property was improved with a home, while 651 property was a vacant lot. The Cutlers resided in the house located at the 643 address with their son Bevon.¹

More than 40 years later, on February 4, 1985, Edwin submitted to the Planning Commission of the City of Sierra Madre (the City) an application for a variance, seeking a property lot line adjustment. The lot line adjustment would have increased the width of respondents’ 643 property from 50 to 58 feet, and reduced the width of appellants’ 651 property (the vacant lot) from 63 to 55 feet. The application asked, "How are other owners able to use their property that cannot be done on this lot at present?"—to which Edwin provided, "Driveway and fence line."

On February 21, 1985, the City's Planning Department recommended approval of the variance as requested. The minutes from the Planning Commission's meeting held that day provide: "Mr. Cutler told the Commission that the driveway is extremely narrow and he intended at the time of purchase to divide the property and adjust the width of the driveway." The minutes further provide: "In order to adjust the boundary line, Mr. Cutler will need an engineer-surveyed parcel map and must meet county regulations." Finally, the minutes note Edwin's application is "[a]pproved; subject to city engineer review of parcel map and boundary line adjustment." (Some capitalization omitted.)

Edwin thereafter retained the services of registered civil engineer John B. Abell (Abell) of John B. Abell, Inc., who prepared a survey and new legal description for the two properties, dated May 8, 1985.

The new legal description for respondents’ 643 property, post lot line adjustment, included additional language: "The west 50 feet of Lot 15 of Wheeler Heights, in the City of Sierra Madre, County of Los Angeles, State of California, as per Map recorded in Book 8, page 5 of Maps, in the office of the county recorder of said County. [¶] Together with the easterly 8.00 feet of Lot ‘B’ of Gurhardy Heights, as per Map recorded in Book 13, page 188 of Maps, in the office of the county recorder of said County, lying south of the easterly prolongation of the north line of Lot 12 of said tract. " (Italics added; boldface and some capitalization omitted.)

Similarly, the legal description for appellants’ 651 property, post lot line adjustment, contained additional language: "The east 35.2 feet of Lot 12 of Gurhardy Heights, in the City of Sierra Madre, as per Map recorded in Book 13, page 188 of Maps, in the office of the county recorder of said County, and all that portion of Lot ‘B’ of said tract lying south of the easterly prolongation of the north line of said Lot 12. [¶] Except therefrom the easterly 8.00 feet, (measured at right angles to the easterly line), of said Lot ‘B.’ " (Italics added; boldface and some capitalization omitted.)

The problem at the root of the parties’ dispute is that there is no evidence the City ever reviewed or approved the survey and new legal description. A certificate of compliance was never executed by the City. Similarly, there is no evidence the lot line adjustment was ever recorded. But the Cutlers later acted as if the new legal description was operative.

C. Prior Owners’ Improvements on 651 Property

Later that year, in 1985, the Cutlers’ son Bevon partnered with David Shewmake (Shewmake) to build a house on the vacant lot (appellants’ 651 property) and sell it for profit. During construction of the house, Bevon and Shewmake built a six-foot-tall block wall between the two properties, along the new legal boundary line surveyed and described by Abell, but never certified by the City.

In May 1986, a Notice of Completion was issued and recorded for construction of the house on appellants’ 651 property. The Notice stated a legal description of 651 property identical to the original legal description for the 63-foot-wide lot and not the reduced 55-foot-wide lot proposed in Edwin's application for variance. The legal description specified in the Notice did not include the additional language post lot line adjustment in the legal description/survey prepared by Abell: "Except therefrom the easterly 8.00 feet, (measured at right angles to the easterly line), of said Lot ‘B.’ " (Italics added, boldface and some capitalization omitted.)

D. Transfers of Title from 1986 until 2014

On May 9, 1986, the Cutlers recorded a grant deed transferring title to appellants’ 651 property to Bevon and Shewmake, each receiving an undivided ½ interest as tenants in common. The legal description provided in the grant deed did not contain the additional language per Abell's legal description after the tentatively approved lot line adjustment. The legal description specified in the grant deed was again identical to the original legal description for the 63-foot-wide lot and not the reduced 55-foot-lot Edwin requested in his variance application.²

That same date, on May 9, 1986, Bevon and Shewmake executed a grant deed transferring title to 651 property to Manfred and Elizabeth Leong (Leongs). The legal description on the grant deed again did not contain the additional language reflecting a lot line adjustment.

Twenty years later, on January 20, 2006, a grant deed was recorded transferring the 651 property from the Leongs to Dawn Hicks. The legal description in the grant deed for the original 63-foot-wide larger lot was used again.

On April 9, 2014, a grant deed with the original lot dimensions was recorded transferring title of the 651 property to appellants.

Before closing escrow on the 651 property, appellants executed the California Residential Purchase Agreement, which includes the following provisions. "Buyer acknowledges that the square footage of the Property has not been measured by Seller ... (including the square footage of the lot and home) and the square footage quoted on any marketing tools ... is deemed approximate and not guaranteed.... Buyer is buying the Property AS IS, ... WITH ALL FAULTS AND LIMITATIONS and Buyer acknowledges Buyer's responsibility to perform all due diligence and investigation regarding Buyer's acquisition of the Property, including the measurement or confirmation of the square footage of the Property."

On July 1, 2014, a grant deed was recorded transferring title to the 643 property to respondents Tun-Jen Ko and Li-Chuan Shih. The legal description in the grant deed did not contain the additional language increasing their square footage as reflected in Edwin's lot line adjustment application.

The Seller Property Questionnaire—received, initialed, and signed by respondents on June 24, 2014—provided there are no "[s]urveys, easements, encroachments or boundary disputes" regarding 643 property. The Buyer's Inspection Advisory initialed and signed by respondents on May 20, 2014 provided: "The physical condition of the land and improvements being purchased is not guaranteed by either Seller or Brokers. For this reason, you should conduct thorough investigations of the Property personally and with professionals who should provide written reports of their investigations." The Buyer's Inspection Advisory further provides: "YOU ARE ADVISED TO CONDUCT INVESTIGATIONS OF THE ENTIRE PROPERTY, INCLUDING BUT NOT LIMITED TO ... Square footage, room dimensions, lot size, age of improvements and boundaries.... Fences, hedges, walls, retaining walls and other natural or constructed barriers or markers do not necessarily identify true Property boundaries. (Professionals such as appraisers, architects, surveyors and civil engineers are best suited to determine square footage, dimensions and boundaries of the Property.)" (Boldface omitted.)

E. Appellants’ Civil Complaint

On February 10, 2016, appellants initiated a civil action against respondents. The operative third amended complaint, filed on May 22, 2019, alleged causes of action for wrongful occupation of real property, quiet title, trespass, private nuisance, wrongful disparagement of title, and permanent injunction.

The complaint alleged the following: "One of the main reasons [appellants] purchased [the 651] property was because it was advertised to have an approximately 10,000 square foot lot." In June 2015, appellants retained...